IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-10808
Summary Calendar
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ROY LEE McCLUNG, JR., and
CAROL JEAN McCLUNG,
Plaintiffs-Appellants,
VERSUS
DAVID W. HAJEK, et al.,
Defendants,
DAVID W. HAJEK,
Defendant/Appellee.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
(7:90-CV-120-X)
_________________________
February 13, 1996
Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Roy and Carol McClung appeal a summary judgment in their 42
U.S.C. § 1983 action alleging an unlawful termination. Concluding
that reconsideration is needed in light of recent Supreme Court
precedent, we vacate and remand.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
I.
The McClungs filed this suit against numerous public officials
regarding the termination of Roy McClung’s employment. At the time
of his termination, Roy McClung (“McClung”) was the Chief Adult and
Juvenile Probation Officer of the 50th Judicial District of Texas,
where Judge Hajek is a district judge. He, along with the county
judges of the surrounding counties within the 50th Judicial
District, comprise the Juvenile Probation Board. Pursuant to TX.
HUMAN RES. CODE §§ 15.00007 and 15.0008, Judge Hajek terminated
McClung’s employment, and the Juvenile Probation Board ratified
this termination on August 15, 1990.
Following McClung’s termination, an internal investigation of
the Probation Office was conducted, which ultimately led to Judge
Hajek’s request for further investigative assistance by the Texas
Attorney General’s Office. The investigation culminated in
McClung’s indictment and conviction on four counts of tampering
with governmental records, based upon acts that occurred during his
tenure as chief probation officer.
Among his other claims, McClung contended that he was
terminated because he was involved in a “highly divisive political
situation involving Baylor County Sheriff Jerry Barton.” McClung
states that he was terminated by Judge Hajek because he assisted
the district attorney in obtaining the signature of an individual
on a petition to remove Barton, who was Judge Hajek’s “political
ally and friend.”
All defendants were dismissed pursuant to motions filed under
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FED. R. CIV. P. 12(b)(6). The McClungs appealed only the dismissal
of defendant Hajek on his defense of qualified immunity. Express-
ing no opinion as to the viability of the claims, we reversed and
remanded only as to McClung’s § 1983 First Amendment and malicious
prosecution claims and the state law claims.
On remand, the McClungs expressly abandoned all but the § 1983
First Amendment claim. Hajek filed a supplemental brief in support
of the rule 12(b)(6) motion, by now converted to a motion for
summary judgment, to which he attached the opinion of the Texas
appellate court finalizing McClung’s criminal conviction, as well
as his own affidavit. Hajek makes no statement concerning his
reasons for terminating McClung, neither admitting nor denying that
McClung’s political activities formed any part in his motivation.
His affidavit states simply that he was empowered to terminate
McClung’s employment and did so, that a subsequent investigation
led to the criminal charges and conviction, and that McClung’s
employment would have been terminated in any event upon discovery
of the acts which led to the criminal convictions.
In response, McClung submitted his own affidavit in which he
noted that his salary was increased from $28,000 when he was hired
in 1986, to $55,000 by the time of his termination in 1990 because
of pay raised accorded him by Hajek, which McClung views as
evidence of Hajek’s satisfaction with his work. He stated that
Hajek maintained silence in response to McClung’s question as to
why his resignation was requested and gave no reason for the
dismissal. (In attachments to McClung’s original and amended
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complaint, however, McClung stated that Hajek had told him that he
had lost confidence in McClung.) McClung further states, “I
truthfully believe” that a motivating reason for the termination
was because he assisted the district attorney with the attempt to
have the sheriff of Baylor County, Jerry Barton, removed from
office by procuring the signature of a county resident on the
removal petition and on an affidavit.
As support for his belief, McClung submitted the deposition of
the district attorney involved, Bobby Burnett, who reported that
during the proceedings against the sheriff, Burnett had a
conversation with Hajek in which Hajek asked whether Burnett had
requested McClung’s assistance in the civil removal effort.
Burnett responded that McClung had volunteered his help, and Hajek
mentioned that he “had told [McClung] to stay out of it.” Burnett
replied that he hoped McClung’s involvement would not get him in
trouble or jeopardize his employment. Hajek replied that it was
one of several instances in which he had had some problems with
McClung, “and he said that this might be the last straw, or words
to that effect.”
Burnett said it was evident that Hajek was not happy with
McClung, not just because of the Sheriff Barton matter, but that
McClung had not done what the judge told him to in other, unrelated
matters. Burnett could not recall other reasons why Hajek was
displeased with McClung, “but Roy was a loose cannon, so to speak,
he had had problems with a lot of people in the district, and I
think the judge indicated that that was part of it.” Burnett felt
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from previous conversations he had had with Hajek that there had
been some friction between McClung and Hajek. The district court
granted summary judgment for Hajek, based upon its determinations
that McClung would have been fired anyway once his criminal
misconduct had been discovered.
II.
For McClung to establish a prima facie case on his § 1983
claim that Hajek fired him in retaliation for his protected
political activities, he must prove that (1) Hajek was acting under
color of state law; (2) McClung’s speech activities were protected
under the First Amendment; and (3) McClung’s exercise of his
protected right was a substantial or motivating factor in Hajek’s
decision to fire him. Pierce v. Texas Dept. of Crim. Justice,
Institutional Div., 37 F.3d 1146, 1149 (5th Cir. 1994), cert.
denied, 115 S. Ct. 1957 (1995). The district court did not make
any finding as to whether McClung’s political activities were a
substantial or motivating factor in Hajek’s decision to fire
McClung, or even, for that matter, whether the assistance McClung
rendered the district attorney in the attempted ouster of Sheriff
Barton was constitutionally protected conduct.
The district court found that McClung had failed to establish
a fourth element of his claim, “that the defendant public employer
would [not] have discharged him [] if he had not engaged in the
protected speech.” The district court cited a principle announced
in Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S. 274,
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287 (1977), that one who is terminated for legitimate reasons
should not be placed in a better position as a result of the
exercise of constitutionally protected conduct than he would have
occupied had he done nothing.
McClung argues correctly that the district court misapplied
the Mt. Healthy analysis and should have gone on to examine the
facts under the analysis set forth in McKennon v. Nashville Banner
Pub. Co., 115 S. Ct. 879 (1995), which addressed the problem of
evidence of employee wrongdoing discovered after termination, as in
the case at bar.1
In Mt Healthy, the school board gave several reasons for its
decision not to rehire plaintiff. One of the reasons was the
board’s disapproval of plaintiff’s conduct in calling a radio
station about a school policy, which the district court found to be
protected by the First Amendment. The district court had ruled
that so long as the constitutionally protected conduct was a
substantial or motivating factor in the decision not to rehire, the
1
McKennon was decided during the pendency of the district court
proceedings, and the district court at one point stayed the proceedings pending
the outcome of McKennon in the Supreme Court. When McKennon was decided, Hajek
argued that McClung had no remedy, since McKennon barred reinstatement and
frontpay, and the discovery of McClung’s misconduct followed so close in time to
his dismissal that there was no claim for backpay. McClung sought to distinguish
McKennon in the district court by pointing out that it is an employment
discrimination case, not a constitutional tort case; but concluding that, in any
event, granting summary judgment against him based upon McKennon would be
inappropriate because he is entitled to his day in court regardless of the amount
of actual damages he could claim, as there is no jurisdictional amount required
under § 1983.
Thus, although the parties and the district court were obviously aware of
McKennon, the district court did not mention the decision in its opinion, except
for a footnote stating, “The Court does not reach the issue of whether the after-
acquired evidence doctrine precludes Plaintiff’s claims.” On appeal, both
parties agree that the principles announced in McKennon are applicable to this
constitutional tort case.
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decision could not stand. 429 U.S. at 284. The Supreme Court did
not agree that the fact that protected conduct played a substantial
part in the decision not to rehire amounts to a constitutional
violation. Id. at 285. “A rule of causation which focuses solely
on whether protected conduct played a part, `substantial’ or
otherwise, in a decision not to rehire, could place an employee in
a better position as a result of the exercise of constitutionally
protected conduct than he would have been had he done nothing.”
Id. Initially, the Court held, the burden was properly placed upon
plaintiff to show that his conduct was constitutionally protected,
and that this conduct was a “substantial” or “motivating” factor in
the Board’s decision not to rehire him. Id. at 287. Plaintiff
having carried that burden, the Court remanded for the district
court to determine whether the board had shown by a preponderance
of the evidence that it would have reached the same decision on
plaintiff’s reemployment even in the absence of the protected
conduct. Id.
In the case at bar, the district court should have determined
first whether McClung’s conduct was protected, and whether it was
a substantial factor in Hajek’s decision to fire him. Hajek’s
evidence on summary judgment does not address the question of his
motivation in firing McClung at all; the deposition of Burnett
submitted by McClung would seem to be sufficient to raise a fact
question that Hajek was in part retaliating against McClung for his
political activities in the Sheriff Barton matter.
Under Mt. Healthy, there is a fact issue as to whether, at the
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time of the firing, Hajek would have made the same decision even if
McClung had not engaged in the (presumably) protected activity. If
he would have reached the same decision at that time, there is no
constitutional violation, as Mt. Health dictates. If Hajek would
not have fired McClung at that time, then McClung has succeeded in
establishing a constitutional violation. The question then
becomes, in the light of the after-acquired evidence of McClung’s
criminal wrongdoing, whether Hajek would have then terminated
McClung based upon that evidence (which the district court
determined he would), and what is the appropriate remedy, if any,
for the constitutional violation already established by the initial
improper termination.
This issue was addressed in McKennon, a case decided under the
Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., but
whose principles are directly applicable to this case. McKennon
alleged she was terminated by her employer, the Banner, because of
her age. 115 S. Ct. at 882-83. At her deposition, taken in the
course of her lawsuit, she related that, fearing she would soon
lose her job, she had copied some confidential documents and
brought them home. Id. at 883. A few days after these deposition
disclosures, the Banner sent McKennon a letter declaring that
removal and copying of the records was a violation of her responsi-
bilities and advising her (again) that she was terminated. Id.
The Banner maintained that it would have discharged McKennon at
once had it known of her misconduct. Id.
For purposes of summary judgment, the Banner conceded that it
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had discriminated against McKennon because of her age. Id. The
district court granted summary judgment for the Banner, holding
that McKennon’s misconduct was ground for her termination and she
was not entitled to backpay or other remedies under the ADEA. Id.
The Supreme Court reversed and remanded, holding that the fact that
McKennon’s misconduct was a supervening ground for discharge does
not make it irrelevant that she was discriminated against. Id. at
883-84, 887.
The Court noted that the ADEA is part of a wider statutory
scheme, which includes title VII, aimed at protecting employees in
the workplace nationwide, reflecting a societal condemnation of
invidious bias in employment decisions. 115 S. Ct. at 884.
Deterrence is one subject of these statutes. Compensa-
tion for injuries caused by the prohibited discrimination
is another . . . . The private litigant who seeks
redress for his or her injuries vindicates both the
deterrence and the compensation objectives. . . . It
would not accord with this scheme if after-acquired
evidence of wrongdoing that would have resulted in
termination operates, in every instance, to bar all
relief for an earlier violation of the Act.
Id. (citations omitted). The Court emphasized that the analysis
employed in “mixed-motives” cases like Mt. Healthy is not control-
ling in the after-acquired evidence context. In a case like this
one, Hajek “could not have been motivated by knowledge [he] did not
have and [he] cannot now claim that the employee was fired for the
nondiscriminatory reason” of McClung’s misconduct that was not
known at the time. 115 S. Ct. at 885. “Mixed motive cases are
inapposite here, except to the important extent they underscore the
necessity of determining the employer’s motives in ordering the
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discharge, an essential element in determining whether the employer
violated the federal antidiscrimination law.” Id. For purposes of
its decision, the Court assumed that the sole reason for McKennon’s
discharge was her age and that the misconduct was so grave that she
would have been fired when her employer learned of it. 115 S. Ct.
at 883. Those determinations would have to be made in this case in
accordance with Mt. Healthy as outlined above.
The Court went on to consider “how the after-acquired evidence
of the employee’s wrongdoing bears on the specific remedy to be
ordered,” 115 S. Ct. at 885, concluding that the problem is one to
be addressed by the judicial system in the ordinary course of
further decisions. Id. at 886.
We do conclude that here, and as a general rule in cases
of this type, neither reinstatement nor front pay is an
appropriate remedy. It would be both inequitable and
pointless to order the reinstatement of someone the
employer would have terminated, and will terminate, in
any event and upon lawful grounds.
Id. The Court also suggested that “[t]he beginning point in the
trial court’s formulation of a remedy should be calculation of
backpay from the date of the unlawful discharge to the date the new
information was discovered. Id.
Assuming McClung would have been terminated based upon the
after-acquired evidence, he still has some remedy for any improp-
erly motivated earlier termination, although the available remedies
are circumscribed, as set forth in McKennon. He cannot be
reinstated, but he may be entitled to backpay for the interim
between his actual termination and the time his misconduct was
discovered, or to damages as determined by a trier of fact.
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Accordingly, the decision of the district court is VACATED and
the case REMANDED for further proceedings in accordance with Mt.
Healthy and McKennon as described above.
11