IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 93-8006
DAVID GILLUM,
Plaintiff-Appellant,
versus
THE CITY OF KERRVILLE, ET AL.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Texas
( September 16, 1993 )
Before GOLDBERG, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:
David Gillum filed this 42 U.S.C. § 1983 suit against
Kerrville, Texas, a city that once employed him as a policeman, and
three of its officials, City Manager Glenn D. Brown, Police Chief
Louis A. Barrow, Jr., and Personnel Director Kirk McCarley,
claiming that he was fired in violation of his federal
constitutional rights to free speech and due process, and in
violation of state constitutional and common law rights and duties.
Holding that these claims did not have merit, the district court
granted summary judgment. We affirm.
I
In early August 1990, David Gillum was a policeman with the
Kerrville Police Department. A "reliable" confidential informant
told Gillum that Police Chief Louis Barrow had "smoked dope" with
Cheryl Schilling, a woman with a criminal record. Gillum asked Joe
Lanning, Chief of the Internal Affairs Division, how to proceed.
Then, in an attempt to follow requirements for reporting and
conducting internal investigations of police officers, as reflected
in the department's Procedural Order No. 90-06, Gillum reported the
information to Rosie McCray, his commanding officer. Procedural
Order No. 90-06 provided that an internal affairs officer must
investigate all allegations of police misconduct; it did not
specifically treat investigations of the police chief.
Lanning authorized Gillum to interview Schilling. Lanning
also told Chuck Dickerson, his superior officer, and Kirk McCarley,
the city personnel director, about the allegations, and that Gillum
would interview Schilling. Gillum reported that Schilling denied
smoking dope with Barrow, but admitted drinking a beer and
discussing her recent arrest with him. Lanning then authorized
Gillum to interview Debbie Vasquez, another witness identified by
Schilling.
Lanning then told Barrow about the situation. The record does
not reflect Barrow's response, but Lanning then told Gillum that he
would no longer have a role in the investigation, and that he
should submit a written statement about the matter. At this point,
Gillum says, he began to suspect that his superiors wanted to
stonewall the investigation, a point confirmed in his mind when he
was summoned to a meeting with Barrow, McCarley, Lanning, and
McCray.
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During this meeting, Gillum was told that Internal Affairs
would conduct a formal investigation. Gillum, however, was worried
that the Chief had been told about the Internal Affairs
investigation before the filing of a formal complaint. He
commented that he did not think that Internal Affairs could conduct
an impartial inquest, and speculated that Barrow and the others
would either suspend him until he could acquiesce in the formal
investigation or fire him altogether. Gillum stated that he did
not want to quit his job, but wanted to return to normal police
work. The meeting ended when Gillum placed his badge and gun on
the desk and left the room, stating, "I won't compromise this
badge." Gillum asserts that he did so because he suspected that he
was being ordered to participate in a cover-up.
As he left the police station, Gillum told Larry Rhodes, the
police dispatcher, that he did not quit. Gillum did not clean his
locker but reported to work on his next scheduled day. His name
was not on the duty roster. When he inquired, McCarley and Barrow
told Gillum that he had quit and no longer worked for the Kerrville
Police Department. Gillum requested a hearing on his status with
the police force in a letter to McCray. Gillum was given a hearing
before McCray and Barrow under rules for fired employees.
Gillum was not reinstated and appealed to Glenn Brown, the
city manager. Brown held a hearing. Gillum requested that the
hearing be open, but it was closed. Gillum also requested that
Lanning attend the hearing, but Lanning did not. However, Brown
offered reinstatement with the Kerrville Police Department without
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compensation for time off the duty roster. Not satisfied, Gillum
filed this suit. Kerrville offered Gillum a name clearing hearing,
but he did not attend.
In the district court, Gillum argued that he was fired for
expressing his opinion about the investigation of Barrow, and for
refusing to participate in a conspiracy to stonewall the
investigation. Gillum maintained that his firing violated his
right to free speech under the First Amendment to the U.S.
Constitution, and under Article I, Section 8, of the Texas
Constitution. Gillum also argued that he was denied a meaningful
opportunity to clear his name, in violation of his right to due
process under the Fifth and Fourteenth Amendments to the U.S.
Constitution.
Gillum also filed claims for defamation and intentional
infliction of emotional distress and conspiracy to deny his civil
rights in violation of 42 U.S.C. § 1983. Gillum demanded
compensatory damages for lost wages and earning capacity, past and
future mental anguish, severe emotional distress, future medical
expenses, loss of reputation, punitive damages for conscious
disregard of his rights, attorneys' fees under 42 U.S.C. § 1988,
and declaratory and injunctive relief. The district court granted
summary judgment to defendants. Gillum appealed.
II
We cannot affirm a summary judgment unless "there is no
genuine issue as to any material fact that the moving party is
entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).
4
We review the evidence, as well as inferences that may be drawn
from the evidence, in the light most favorable to the party that
opposed the motion. Little v. Liquid Air Corp., 952 F.2d 841, 847
(5th Cir. 1992).
III
Gillum argues that a reasonable jury could find a violation of
his right to free speech under the First Amendment because he was
fired for speaking to his superior officers about police
corruption. Of course, the state cannot fire an employee for
exercising the right to speak on matters of public concern.
Connick v. Myers, 461 U.S. 138, 147 (1983); Pickering v. Board of
Educ., 391 U.S. 563, 574 (1968).
The district court held that though allegations of misconduct
by Barrow were a matter of public concern, Gillum did not prove
that he spoke or engaged in expressive conduct within the
contemplation of the First Amendment. It also held that even if
Gillum engaged in protected speech or expressive conduct, he could
not invoke the First Amendment as his speech or expressive conduct
imposed an impermissible burden on the proper administration of the
workplace.
Whether Gillum quit the police force or lost his job for
insubordination was on this record a question of fact. We are not
persuaded, however, that Gillum's right to free speech as an
employee protected him from being fired for the expressive conduct
he has pointed to.
5
In Terrell v. University of Texas Sys. Police, 792 F.2d 1360
(5th Cir. 1986), cert. denied, 479 U.S. 1064 (1987), we did not
focus on the inherent "importance" of the subject matter of the
speech, but on the extent to which the terminated employee spoke as
a citizen or employee. In Terrell, as in this case, the employee
did not speak as a citizen, but as an employee embroiled in a
personal employment dispute. Id. at 1363. This focus on the hat
worn by the employee when speaking rather than upon the
"importance" of the issue reflects the reality that at some level
of generality almost all speech of state employees is of public
concern. Relatedly, we are chary of an analytical path that takes
judges so uncomfortably close to content based inquiries.
Whether Barrow broke the law is of public concern, but that
was not Gillum's focus. Instead, Gillum disputed his role in the
internal investigation. To be sure, corruption in an internal
affairs department is a matter of public concern. Gillum's focus
was, however, on this issue only insofar as it impacted his wish to
continue his investigation. Gillum was not told to withhold any
information he had. To the contrary, he was told to put it in
writing, and subsist from his investigation. That Gillum did not
think that adequate adds nothing. Had he submitted his statement
and later found that it was ignored, he might have complained or
"gone public." Firing Gillum for those acts would have presented
a quite different case.
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IV
Gillum argues that he was denied a name clearing hearing in
violation of his due process right to work in a chosen profession.
Gillum must prove (1) that he was discharged; (2) that defamatory
charges were made against him in connection with the discharge; (3)
that the charges were made public; (4) that the charges were false;
(5) that he requested a hearing in which to clear his name; (6)
that the request was denied; and (7) that no meaningful public
hearing was conducted before the discharge. Rosenstein v. City of
Dallas, 876 F.2d 392 (5th Cir. 1989), aff'd on relevant grounds,
902 F.2d 91 (en banc) (per curiam), cert. denied, 498 U.S. 855
(1990).
-1-
Gillum argues that Brown, McCarley, and Barrow published
defamatory statements in the Kerrville Daily Times in connection
with his discharge. The alleged defamatory statements appeared on
September 30, 1990, during the administrative appeals process. The
statements concerned Gillum's dispute with the Kerrville Police
Department and appeared in a news account of the administrative
proceeding.
The threshold question is whether there is a sufficient nexus
between the alleged defamatory statements and the discharge, as
required by Siegert v. Gilley, 111 S.Ct. 1789 (1991). It is
apparent that these statements were sufficiently tied to Gillum's
termination. The statements were about his termination and were
made while the administrative process was in play. It does not
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follow, however, that Gillum has a claim that he was deprived of
any constitutionally secured rights.
-2-
The difficulty with Gillum's claim is that his initial
"firing" was subject to an administrative appeals process. The
result of that process was tender of reinstatement, which Gillum
declined. It is true that the process took from mid August until
the end of September and the city declined to pay Gillum for the
interim period. We cannot conclude, however, that defendants
impaired Gillum's employment opportunities sufficiently to deprive
him of constitutionally secured liberty interests. Gillum was
given an opportunity to be heard and prevailed. Gillum cannot
create a constitutional claim by declining to return to work. The
district court granted summary judgment because Gillum declined
reinstatement. We agree.
V
Gillum argues that his discharge violated Article I, Section
8, of the Texas Constitution, which provides in relevant part that
"[e]very person shall be at liberty to speak, write or publish his
opinions on any subject, being responsible for the abuse of that
privilege." Tex. Const. of 1876, art. I, § 8 (1955). The district
court held that no cause of action for damages could be assessed
for violation of Article I, Section 8, and that finding no
violation of the First Amendment precludes finding a violation of
Article I, Section 8.
8
Texas courts have not recognized a violation of Article I,
Section 8, as an actionable constitutional tort. One Texas Court
of Appeals has stated that "Texas has a strong bill of rights, but
. . . no Texas statute or case . . . provides a citizen the kind of
redress afforded by 42 U.S.C. § 1983 or by Bivens v. Six Unknown
Named Agents of the Federal Bureau of Narcotics. There is no state
constitutional tort." Bagg v. University of Tex. Medical Branch,
726 S.W.2d 582, 584 n.1 (Tex.App.--Houston [14th Dist.] 1987, writ
ref'd n.r.e.) (citations omitted); see also City of Houston v.
Leach, 819 S.W.2d 185 (Tex.App.--Houston [14th Dist.] 1991, no
writ). But see Jones v. Memorial Hosp. Sys., 746 S.W.2d 891
(Tex.App.--Houston [1st Dist.] 1988, no writ) (implicitly
recognizing actionable constitutional tort in reversing summary
judgment in case involving Article I, Section 8).
Gillum reads Bagg as holding that though he cannot recover
damages under Article I, Section 8, against a governmental unit of
the state, employees remain personally liable for wrongdoing. As
we read it, Bagg holds that government employees cannot be liable
for doing their job. Brown, McCarley, and Barrow were about their
official duties in considering how to proceed in the internal
investigation, and how to deal with a police officer who resisted
their determination.
VI
Gillum charges that Brown, McCarley, and Barrow made false and
defamatory statements published in the Kerrville Daily Times that
injured his reputation. We have held that "defamation of a police
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officer by city officials in the course of discharging that police
officer is protected under the city's governmental immunity and, as
an exercise of a governmental function, is not actionable either
against the city or the state officials under state slander law."
Rosenstein, 876 F.2d at 397 (citing City of Dallas v. Moreau, 718
S.W.2d 776, 779-80 (Tex. App.--Corpus Christi 1986, writ n.r.e.)).
On this basis, the district court concluded that both the city and
its officials are not liable for defamation as a matter of law.
In Moreau, the court found immunity not only for the city but
also for its officers who published information concerning a
policeman's dismissal from the police force. Id. at 779. After
holding that "appellant city was immune from the libel cause of
action by appellee for publishing a letter of discharge as a matter
of law," the court noted, "[t]his reasoning also applies to the
cause of action (if such exists) for appellant's employees' acting
without proper motive and without due care and diligence in the
performance of their official duties in regard to the act of
posting the termination letter on the bulletin board." Id. at 779-
80. We have located no Texas case concerning comments to the press
about a discharge. The facts of this case resemble those in
Moreau, and we are not persuaded that Texas courts would conclude
that these responses to press inquiries are ultra vires.
VII
Gillum alleges that Brown, McCarley, and Barrow intentionally
caused him emotional distress. To prevail on this claim, Gillum
has to demonstrate that (1) the defendant acted intentionally and
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recklessly; (2) the conduct was "extreme and outrageous;" (3) the
actions of the defendant caused the plaintiff emotional distress;
and (4) the emotional distress suffered by the plaintiff was
severe. Dean v. Ford Motor Credit Co., 885 F.2d 300, 306 (5th Cir.
1989); Bushell v. Dean, 781 S.W.2d 652, 657 (Tex.App.--Austin
1989), rev'd in part on other grounds, 803 S.W.2d 711 (Tex. 1991);
Tidelands Auto Club v. Walters, 699 S.W.2d 939, 942 (Tex.App.--
Beaumont 1985 writ ref'd n.r.e.).
We have interpreted the term "outrageous" to mean surpassing
"all possible bounds of decency," such that it is "utterly
intolerable in a civilized community." Dean, 885 F.2d at 306
(quoting Restatement (Second) of Torts § 46, Comment d). Given
this framework, the district court correctly granted summary
judgment, as Gillum failed to demonstrate that any of the
defendants acted in an outrageous way. Their statements provided
either accurate descriptions of the Gillum controversy, or at worst
hyperbolist ramblings. Gillum has not demonstrated that his
superiors either surpassed the bounds of decency or contravened the
standards of a civilized community.
The district court correctly observed that Section 101.057 of
the Texas Civil Practices and Remedies Code provides that any
limited waiver of sovereign immunity does not apply where the claim
arises out of an intentional tort. Tex. Civ. Prac. & Rem. Code
Ann. § 101.057 (West 1986). This provision shields municipalities
from suits arising out of intentional torts committed by
governmental employees, City of Waco v. Hester, 805 S.W.2d 807,
11
810-12 (Tex. App.--Waco 1990, writ denied), and should be liberally
construed to accomplish this objective. Robinson v. Central Texas
MHMR Center, 780 S.W.2d 169, 170 (Tex. 1989).
VIII
Gillum advances a wrongful termination claim based on a common
law exception to the "at will" employment doctrine. He argues that
he had a good faith belief that he would be required to perform an
illegal act of omission or commission, acquiescence or
participation in an attempt to conceal Barrow's alleged
recreational drug use, and as such should not have been terminated
for his refusal to follow formal investigative procedures. The
district court granted summary judgment on this claim, holding that
Gillum could not have held such a good faith belief after he
received an offer to provide a written statement concerning his
investigation, an offer of reinstatement, and an offer of a name
clearing hearing. We agree.
IX
Gillum attacks the dismissal of his claim of civil conspiracy
to violate his constitutional rights to free speech and due
process. The district court denied this claim because Gillum's
constitutional rights had not been violated, so that no basis
existed for assigning liability for conspiracy. As we have noted,
"it remains necessary to prove an actual deprivation of a
constitutional right; a conspiracy to deprive is insufficient."
Villanueva v. McInnis, 723 F.2d 414, 418 (5th Cir. 1984).
AFFIRMED.
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