United States Court of Appeals,
Fifth Circuit.
Nos. 96-20122, 96-20191.
Shirley BRADY, Plaintiff—Appellee-Cross-Appellant,
v.
HOUSTON INDEPENDENT SCHOOL DISTRICT; Ernie Carney; Faye Bryant,
Defendants—Appellees,
Thomas Cortese; Brent Mahaffey; Steve Sokol,
Defendants—Appellants-Cross-Appellees.
Shirley BRADY, Plaintiff-Appellee,
v.
HOUSTON INDEPENDENT SCHOOL DISTRICT, et al., Defendants,
Thomas Cortese; Brent Mahaffey; Steve Sokol, Defendants-
Appellants.
June 11, 1997.
Appeals from the United States District Court for the Southern
District of Texas.
Before DAVIS, SMITH and DUHÉ, Circuit Judges.
DUHÉ, Circuit Judge:
In March 1994, Shirley Brady sued the Houston Independent
School District ("HISD"), four HISD employees (Thomas Cortese,
Brent Mahaffey, Steve Sokol, and Faye Bryant), and Ernie Carney, an
outside computer consultant employed by HISD on an hourly basis.
Brady alleged numerous federal and state claims relating to her
reassignment from her position as systems programmer to a position
of significantly reduced responsibilities. The district court
dismissed many of these claims both pre- and post-trial, and Brady
prevailed only on her First Amendment retaliation claim against
1
three of the HISD employees (Cortese, Mahaffey, and Sokol),
securing a jury verdict of $546,200 in compensatory and punitive
damages. The three employees (collectively, the "Appellants"1)
unsuccessfully moved to set aside the verdict as a matter of law,
and they now appeal. Brady cross-appeals, contending that the
district court erred by dismissing her other claims.
We believe that the evidence is insufficient to support the
jury verdict on Brady's First Amendment claim. We therefore
reverse and render judgment for the Appellants, and accordingly
also vacate the order granting attorney's fees to Brady. Because
we conclude that the issues raised by Brady's cross-appeal are
without merit, we affirm the district court's dismissal of her
various other claims.
I
This lawsuit concerns two significant incidents in the recent
history of HISD's data processing department. The first occurred
in the fall of 1991, when Shirley Brady testified before HISD
investigators about certain inappropriate activities on the part of
Ernie Carney and Alexander Winkler. The second transpired in early
1993, when HISD divested Brady of her duties as systems programmer
following a computer breakdown and then outsourced these duties to
a computer consulting firm that employed Carney. The central
question is whether the Appellants dispossessed Brady of her
systems-programmer responsibilities in early 1993 in retaliation
1
Cortese, Mahaffey, and Sokol are actually both the Appellants
and Cross-Appellees, but for the sake of brevity, we refer to them
collectively as the Appellants.
2
for her protected statements made to HISD investigators in late
1991. Before turning to this issue, we first provide a more
detailed summary of the facts and procedural history of the
litigation.
A
In 1984, Shirley Brady was hired by HISD as systems programmer
for the data processing department. Because of the heavy demands
of Brady's job, however, HISD frequently contracted with outside
computer consultants on an hourly basis to assist Brady with her
duties. The most frequently used consultant was Ernie Carney, and
from approximately 1984 through 1991, Brady and Carney worked
together in the data processing department.
In August 1991, a local television station aired an exposé
revealing improprieties in HISD's data processing department. As
a result of this program, HISD conducted an internal investigation
of the department, interviewing every member of that department,
including Brady and Appellants Brent Mahaffey and Steve Sokol.
Brady disclosed to investigators that Carney had confided in her
that he and Alexander Winkler, who at the time was the assistant
superintendent in charge of the data processing department, had
engaged in wrongdoing. According to Brady, Carney had lent money
to Winkler; when Winkler was unable to repay the loan, Carney
confronted him and, in exchange for forgiveness of this loan,
demanded to be given a higher hourly wage and to be paid for hours
not actually worked. Winkler apparently acceded to these demands.
Following the internal investigation, Winkler resigned under
3
pressure from HISD's Board of Trustees, and HISD ceased employing
Carney as an hourly consultant. Appellant Thomas Cortese replaced
Winkler as the assistant superintendent in charge of data
processing. Brady remained in her job as systems programmer,
continuing to receive positive employment evaluations.
During the 1992 Christmas break, Brady "converted" HISD's old
computer operating system to a newer one. Although the conversion
was completed over the break, the financial programs were
inoperative when HISD employees returned to work after the holiday.
Faye Bryant, the deputy superintendent for district planning, soon
learned of the problem, and she pressured Cortese, who in turn
looked to Brady, to fix the problem immediately.2 Brady determined
that she needed outside help, and asked Cortese to rehire Ernie
Carney. After Cortese approved the request, HISD rehired Carney as
a consultant on an hourly basis. The problems with the financial
programs were soon fixed, although the parties dispute whether the
solution was due to the efforts of Carney or Brady.
Shortly thereafter, HISD administrators (including Bryant,
Cortese, Mahaffey, and Sokol) decided to outsource the
systems-programmer duties to Operating Systems, Inc. ("OSI"), a
computer consulting firm run by Mike Cox that employed Carney as a
consultant. As part of the negotiations between HISD and OSI,
Carney and Cox informed HISD that they could not guarantee OSI's
2
The chain-of-command, from most senior to least, is as
follows: Bryant, Cortese, Mahaffey/Sokol, and Brady. Unlike the
other three administrators, Sokol was not Brady's direct
supervisor, but his position was roughly equivalent in seniority to
that of Mahaffey.
4
performance unless OSI consultants had exclusive access to HISD's
computer system. Pursuant to these discussions, Mahaffey, upon the
direction of Cortese, restricted Brady's access to the system.
Because Brady's responsibilities as systems programmer had been
outsourced to OSI, Mahaffey and Cortese recommended eliminating her
position as of September 1, 1993, the beginning of the next fiscal
year.
Concerned about the loss of her job duties, Brady filed a
grievance with HISD in August 1993. HISD never formally acted upon
Brady's grievance, nor did it eliminate her job in September 1993.
Although Brady never again performed the duties of a systems
programmer, she held that position, in name only, until three weeks
before the July 1995 trial date, when she was reassigned to another
job within HISD.3
B
In March 1994, Brady sued Carney, HISD, and four HISD
employees (Cortese, Mahaffey, Sokol, and Bryant). She raised the
following claims: (1) retaliation for her exercise of protected
speech, in violation of the First Amendment; (2) violation of her
right to due process under the Fourteenth Amendment; (3)
conspiracy to deprive her of her right to speak, in violation of 42
U.S.C. § 1983; (4) violation of the Texas Whistleblower Act; (5)
intentional infliction of emotional distress; and (6) tortious
interference with a business relationship. At summary judgment,
3
Although Brady remained the titular systems programmer and
did not suffer any loss of pay, she won damages for mental anguish
and diminished ability to obtain employment.
5
the district court dismissed all of Brady's claims except: (1) the
First Amendment claim against the four HISD employees; (2) the §
1983 claim against the four HISD employees and Carney; and (3) the
intentional infliction of emotional distress claim against Carney.
The case went to trial, and the jury returned a verdict for Brady
on each of the three claims against three of the HISD employees
(Cortese, Mahaffey, and Sokol) and Carney.4 The district court
thereafter directed a verdict for Carney and the HISD employees on
the latter two claims, leaving intact only the verdict on the First
Amendment claim against Cortese, Mahaffey, and Sokol. The court
then awarded Brady $87,930 in attorney's fees against the three.
Cortese, Mahaffey, and Sokol appeal the district court's order
refusing to set aside the jury verdict on the First Amendment
claim. Brady cross-appeals, alleging that the court erred by
dismissing her other federal and state claims. In addition, both
parties appeal the award of attorney's fees.
II
The primary issue raised by Cortese, Mahaffey, and Sokol is
whether the evidence is sufficient to support the jury's
determination that they retaliated against Brady in 1993 for her
exercise of protected speech in 1991. Because we agree with the
Appellants that Brady has presented insufficient evidence to
sustain the jury verdict, we reverse the district court's order
denying the Appellants' motion for judgment as a matter of law, and
4
The jury actually awarded Brady punitive, but not
compensatory, damages against Bryant. The parties agreed that
these damages should be set aside.
6
render judgment for the Appellants.
A
When reviewing a district court's denial of a motion for
judgment as a matter of law, we use the same standard to review the
verdict as that used by the district court. See Hiltgen v.
Sumrall, 47 F.3d 695, 699-700 (5th Cir.1995). We must uphold the
jury verdict unless " "there is no legally sufficient evidentiary
basis for a reasonable jury to find' as the jury did." Id.
(quoting Fed.R.Civ.P. 50(a)(1)). We review the evidence and all
reasonable inferences in the light most favorable to the verdict.
See Polanco v. City of Austin, 78 F.3d 968, 974 (5th Cir.1996). We
must, however, consider all of the evidence, not merely that
favorable to the nonmovant, and a "mere scintilla" of evidence is
insufficient to sustain a jury verdict. See Boeing Co. v. Shipman,
411 F.2d 365, 374 (5th Cir.1969) (en banc). Although we draw
inferences favorable to the verdict, such inferences must be
reasonable and may not rest upon speculation and conjecture only.
See Love v. King, 784 F.2d 708, 711 (5th Cir.1986).
B
In order to establish that one's First Amendment right to
free speech has been violated by an employer's retaliatory conduct,
a plaintiff must prove that (1) her conduct was protected by the
First Amendment, and (2) that such conduct was a "substantial" or
"motivating" factor behind the defendant's action. See Mt. Healthy
City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283-87, 97
S.Ct. 568, 574-76, 50 L.Ed.2d 471 (1977); Click v. Copeland, 970
7
F.2d 106, 113 (5th Cir.1992). If the plaintiff carries this
burden, the defendant must then show, by a preponderance of the
evidence, that it would have taken the same action against the
plaintiff even in the absence of the protected conduct. See Mt.
Healthy, 429 U.S. at 287, 97 S.Ct. at 576; Click, 970 F.2d at 113.
In this case, the Appellants admit that Brady's conduct was
protected by the First Amendment, and therefore we address only
whether Brady has satisfied the causation prongs of the Mt. Healthy
test.
C
1
Brady asserts that she was divested of her job duties as
systems programmer in retaliation for the protected statements that
she had made to HISD's investigators concerning Carney's improper
dealings with Winkler. In support of her contention, she presents
a chronology of events that allegedly gives rise to an inference of
retaliation. Specifically, Brady maintains that since her hiring
in 1984, she had uniformly been viewed as a trusted, respected, and
diligent employee by her supervisors in the data processing
department. After many exemplary years as systems programmer, in
1991, she implicated Ernie Carney in a scandal, and as a result of
her testimony, HISD ceased employing Carney as an outside computer
consultant. Even after making the protected statements, Brady was
still considered to be a valuable employee, and she was twice
recommended for promotion by both Cortese and Mahaffey, her direct
supervisors. In January 1993, however, when Carney—the individual
8
inculpated by Brady—returned to HISD, the Appellants stripped Brady
of her duties as systems programmer and outsourced these duties to
Carney. This action, Brady maintains, gives rise to an inference
of retaliation.
In addition to the above narrative, Brady bolsters her
retaliation claim by pointing out inconsistencies in the
Appellants' testimony. For example, she notes that: (1) although
the Appellants claimed to have restricted Brady's computer access
in response to OSI's request for exclusive access to the system,
they nonetheless allowed another HISD employee to access the
system; (2) the Appellants testified that outsourcing Brady's
duties was a cost-saving proposal, while Faye Bryant testified that
cost was never mentioned in meetings held to consider outsourcing;
(3) outsourcing was not, in reality, a cost-saving measure, for the
Appellants continued to employ and pay Brady as the systems
programmer from 1993 through 1995, although OSI actually performed
and was paid for handling the systems-programmer duties during that
period; (4) in the months immediately after the Appellants
outsourced Brady's duties to OSI, they provided her with
contradictory information regarding whether they would return her
job responsibilities to her; and (5) the Appellants mishandled
Brady's grievance process.
2
Given Carney's prior dishonest conduct, it does appear
suspicious to us that the Appellants dispossessed Brady of her job
duties upon Carney's return to HISD. Nevertheless, our review of
9
the record convinces us that the evidence is insufficient to
support Brady's First Amendment claim against the Appellants. At
the outset, we note that it is entirely reasonable to conclude that
Carney harbored a retaliatory motive against Brady, for it was she
who implicated him in the scandal. Brady has long since abandoned
her First Amendment claim against Carney, however, and before us is
Brady's First Amendment claim against Cortese, Mahaffey, and Sokol
only. She must therefore prove that her protected speech was a
substantial or motivating factor behind the decision of the three
Appellants—not Carney—to divest her of systems programmer duties.
This Brady has failed to do.
First, and most obviously, Brady has presented no direct
evidence that any of the Appellants possessed a retaliatory motive.
This by itself, of course, is not fatal to a First Amendment
retaliation claim, for Brady may also rely upon "a chronology of
events from which retaliation may plausibly be inferred." See
Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir.1995) (internal
quotation marks omitted), cert. denied, --- U.S. ----, 116 S.Ct.
800, 133 L.Ed.2d 747 (1996). We believe, however, that Brady has
also failed to present a chronology of events that would allow
reasonable jurors to draw an inference of retaliation.
It is undisputed that Brady—in her protected First Amendment
statements to the HISD investigators—implicated only Ernie Carney
and Alexander Winkler in wrongdoing; she herself admitted at trial
that her allegations did not concern Cortese (who was not even
10
employed at HISD at the time), Mahaffey, or Sokol.5 In addition,
Brady has presented absolutely no evidence that the Appellants may
have retaliated on behalf of, or conspired with, Carney or Winkler.
Brady has not alleged that Cortese, Mahaffey, and Sokol were
friendly with Carney, and indeed Cortese was first introduced to
Carney by Brady herself. Moreover, both Mahaffey and Sokol
testified that they disliked Winkler intensely, and there is no
evidence suggesting that Cortese ever met Winkler. We therefore
find it difficult to believe that any of the Appellants would
retaliate against an employee whose protected speech did not
adversely affect them in any way.6
5
The parties argue about whether the three Appellants even
knew the substance of Brady's testimony. Because we view the
evidence in the light most favorable to the verdict, see Polanco,
78 F.3d at 974, we proceed under the assumption that Appellants
were in fact aware of Brady's testimony.
6
Brady suggests two possible retaliatory motives: (1)
Mahaffey and Sokol were themselves implicated in the 1991 scandal,
and (2) the scandal subjected the data processing department as a
whole to embarrassment. Neither of these two contentions has
merit.
First, the evidence linking Mahaffey and Sokol to the
1991 scandal was extremely weak. Brady testified at trial
that both of them were investigated—but not implicated—in the
scandal, but she did not suggest that either man committed
wrongdoing of any sort, and there is no evidence that they
were detrimentally affected in any way. Moreover, regardless
of the weight of the evidence against Mahaffey and Sokol,
Brady admitted that she was not the one who had brought the
unsubstantiated accusations against them. Therefore, even if
Mahaffey and Sokol did harbor ill will because of the
investigation, such sentiments would not have been directed at
her.
We are also unmoved by Brady's assertion that
department-wide embarrassment prompted the Appellants to
retaliate against her. Certainly Cortese could not have been
embarrassed by any improprieties that occurred before his
11
Brady's case suffers from other critical flaws. During the
eighteen month period between Brady's protected statements and the
Appellants' alleged retaliation, Mahaffey and Cortese gave Brady
positive evaluations and twice recommended that she be promoted.
This fact is utterly inconsistent with an inference of retaliation,
and we fail to understand why two individuals allegedly harboring
a retaliatory motive against Brady would take affirmative steps to
secure a job promotion for her.7
The Appellants have also presented a believable,
non-retaliatory reason for outsourcing the systems programmer
duties. They contend that as administrators in the data processing
department, they were under tremendous pressure to solve the
malfunction with the financial programs that occurred after the
December 1992 conversion. Brady herself was unable to remedy the
problem, and she requested the assistance of Carney, who—despite
his other faults—was a very competent systems programmer familiar
with HISD's computer operations. The problem was resolved shortly
after Carney arrived, although the parties dispute whether Brady or
tenure at HISD, and it simply stretches the imagination too
far to presume that an assertion of such insignificance, by
itself, could provide a retaliatory motive for Mahaffey and
Sokol.
7
Moreover, nearly eighteen months elapsed between the date of
Brady's testimony and the date upon which her access to the
computer system was restricted. This lengthy lapse of time, when
coupled with the lack of other evidence supporting Brady's case,
suggests that a retaliatory motive was highly unlikely. See
Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 268 (5th
Cir.1994) (reaching the same conclusion in a case involving a
ten-month lapse of time between the protected statements and the
alleged retaliation).
12
Carney was responsible for the solution. Spurred by the crisis,
but also concerned more generally with Brady's ability to
permanently handle the systems-programmer duties by herself,
Cortese testified that he considered two options: (1) hiring
another systems programmer to fill the second systems programmer
position that had been vacant during Brady's tenure at HISD, or (2)
outsourcing the systems programmer duties. Cortese eventually
settled on outsourcing, he testified, because it would both improve
service and save money. The Appellants explain that outsourcing to
a company such as OSI is a more cost-effective way of ensuring the
computer systems's stability because HISD may rely upon the
computer support of an entire company's consultants rather than
that of just one individual.8
Finally, we do not think that Brady's list of the Appellants'
inconsistencies establishes that her protected speech was a
substantial or motivating factor behind the Appellants' decision to
outsource her job responsibilities. Brady must affirmatively
prove—either with direct evidence or with a plausible chronology of
events—that the Appellants divested her of the systems-programmer
duties because of her First Amendment speech. This she has not
done. Merely pointing out inconsistencies in the Appellants'
stated justifications for outsourcing and their other actions does
8
Cortese's decision to outsource the systems programmer duties
is consistent with his prior behavior. He had previously
outsourced HISD's data entry positions and testified that he had
considered outsourcing the systems programmer position on
cost-related grounds even before the problems arose in connection
with the December 1992 conversion.
13
not by the mere fact itself create the opposite inference that the
Appellants harbored retaliatory motivation. Furthermore, we think
that Brady's list of alleged inconsistencies is overstated. Some
of her contentions are after-the-fact attacks on the prudence of
the Appellants' decision to outsource; others establish only that
the Appellants mishandled a delicate situation involving the
termination of a long-time employee; and still others suggest that
the decision to outsource was based upon multiple reasons and that
not all of the HISD administrators were involved in the entire
decision-making process. None of her assertions, however,
affirmatively indicates that any of the Appellants possessed a
retaliatory motive, especially when viewed in conjunction with the
dearth of any evidence suggesting retaliation.
3
Because Brady has not shown that her protected speech was a
substantial or motivating factor behind the Appellants' decision to
outsource the systems-programmer responsibilities, we therefore
conclude that Brady has presented insufficient evidence to sustain
her First Amendment retaliation claim. Although we may be
sympathetic to a trusted employee who has been cast aside after
years of exemplary work, we nonetheless cannot assume, in the
absence of any such evidence, that she was divested of her
responsibilities in retaliation for protected statements. We
therefore reverse the district court's order denying the
Appellants' motion for judgment as a matter of law and render
judgment for the Appellants. Because we hold that the Appellants
14
have prevailed on the merits, we also reverse Brady's award of
attorney's fees.
III
In her cross-appeal, Brady maintains that the district court
erred by: (1) granting Carney's motion for summary judgment on her
claim of tortious interference with a business relationship; (2)
granting Carney's and the HISD employees' motions for judgment as
a matter of law on her § 1983 conspiracy claim; (3) granting
Carney's motion for judgment as a matter of law on her claim of
intentional infliction of emotional distress; (4) granting HISD's
motion for summary judgment on her claim arising under the Texas
Whistleblower Act; and (5) reducing her award of attorney's fees.
Because we conclude that these contentions are wholly without
merit, we affirm the district court in all respects.
IV
For the foregoing reasons, we REVERSE and RENDER judgment in
favor of Cortese, Mahaffey, and Sokol, and we AFFIRM in all other
respects.
REVERSED and RENDERED in part; AFFIRMED in part.
15