United States Court of Appeals,
Fifth Circuit.
No. 93-7250.
Robert TOMPKINS, Plaintiff-Appellee,
v.
Dr. Nolan VICKERS, Superintendent, et al., Defendants,
Dr. Nolan Vickers, Superintendent, Defendant-Appellant.
July 26, 1994.
Appeal from the United States District Court for the Northern
District of Mississippi.
Before GOLDBERG, DAVIS and DeMOSS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
In this § 1983 action, Nolan Vickers appeals the district
court's order denying his motion for summary judgment based on
qualified immunity. We agree with the district court that issues
of fact are presented with respect to Vickers' motivation for
transferring Tompkins to a less desirable employment position. We
therefore dismiss the appeal.
I.
For approximately twenty-one years, Robert Tompkins taught art
at Greenville High School (Greenville) without controversy. In
August 1988, Tompkins began criticizing school district
Superintendent Nolan Vickers for cancelling the art program at
Coleman Junior High School (Coleman), an "historically black
[junior] high school." Tompkins decried the cancellation because
the same art program was spared at Solomon Junior High, an
"historically white junior high school". When the Vickers
1
administration explained that the program was cancelled because
instructors could not be found for Coleman, Tompkins located art
instructors for the school.
Around this same time, the Vickers administration was the
subject of extensive criticism in the community. His management
style was criticized by a large segment of the teachers and staff
of the school district. Criticism of his vindictive and
retaliatory management style was reported in the press and was the
subject of discussion at school board meetings.
In September 1988, Tompkins, on behalf of a local teachers'
organization, presented a letter of "no confidence" to Vickers,
detailing the grievances of employees, staff and teachers.
Tompkins also wrote a letter to the editor of the local newspaper,
further publicizing his criticism of the Vickers administration for
its poor relations with faculty, staff and students. Finally, in
October 1988, Tompkins appeared before the School Board of Trustees
and urged the Board to reinstate the art program at Coleman.
The following April, Charlie Lynch, the Greenville principal,
recommended Tompkins for re-employment as an art instructor at
Greenville.1 However, this recommendation was revoked after a July
1989 meeting between Lynch, Mac Durastanti (the principal of
Coleman) and Sammie Felton (the principal of T.L. Weston). On
Vickers' instruction, the group of principals met for the avowed
purpose of redistributing art instructors throughout the school
1
Under school district policy, each principal made staffing
recommendations for their schools each April for the coming year.
2
district; according to Tompkins, a meeting of this kind had never
taken place before. After the meeting, the principals unanimously
recommended that Tompkins be reassigned to Coleman for the upcoming
school year. Vickers accepted this recommendation and ordered
Tompkins' transfer. After being notified of the transfer, Tompkins
requested the Board to reassign him to Greenville, but the Board
denied his request.
Tompkins then filed this suit under 42 U.S.C. § 1983 against
the Greenville Municipal School District, Superintendent Vickers,
several other administrators and the members of the School Board of
Trustees. Tompkins alleged that his reassignment to Coleman was
made in retaliation for the public criticism he had expressed
toward the various defendants, in violation of his First Amendment
rights. Tompkins also complained that his reassignment violated
his Due Process and Equal Protection rights.
All defendants moved for summary judgment on a number of
grounds, including qualified immunity. The district court granted
summary judgment in favor of the defendants on Tompkins' Due
Process and Equal Protection claims, but denied summary judgment on
Tompkins' First Amendment claim, rejecting the defendants' request
for qualified immunity. Only defendant Vickers appeals the
district court's denial of qualified immunity.
II.
A.
We review de novo the denial of a public official's motion
for summary judgment predicated on qualified immunity. Johnston v.
3
City of Houston, 14 F.3d 1056, 1059 (5th Cir.1994) (citation
omitted).
Tompkins' First Amendment claim is predicated on his
contention that Vickers reassigned him to Coleman to retaliate
against him for criticizing the Vickers administration on matters
of public concern. Vickers argues that his actions did not violate
Tompkins' clearly established constitutional rights. Vickers
further contends that Tompkins was reassigned solely because of a
personality conflict with Lynch, and that Tompkins has not met his
summary judgment burden of establishing a causal connection between
his transfer and his First Amendment activity.
In reviewing the denial of a summary judgment motion based on
a claim of qualified immunity, the Supreme Court has instructed us
to first consider whether the actions of the plaintiff are entitled
to constitutional protection. Siegert v. Gilley, 500 U.S. 226,
231, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). Even if the
plaintiff's actions are constitutionally protected, public
officials are nonetheless entitled to qualified immunity unless the
constitutional right asserted was clearly established at the time
of their conduct. The law is considered clearly established if the
contours of the right asserted are sufficiently clear that a
reasonable official would understand that what he is doing violates
that right. Texas Faculty Ass'n v. University of Texas at Dallas,
946 F.2d 379, 389 (5th Cir.1991) (quoting Anderson v. Creighton,
483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987)).
The parties do not dispute that the First Amendment prohibits
4
a public employer from retaliating against an employee for
exercising his right to speak on a matter of public concern. Nor
do the parties dispute whether the contours of this right were
clearly established at the time of Tompkins' transfer. However,
Vickers contends that it was not clearly established that Tompkins'
speech addressed a matter of public concern because the statements
were arguably motivated by Tompkins' personal interests as an
employee. Whether the speech at issue relates to a matter of
public concern is a question of law to be resolved by the court.
Rankin v. McPherson, 483 U.S. 378, 386 n. 9, 107 S.Ct. 2891, 2898
n. 9, 97 L.Ed.2d 315 (1987).
In Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d
708 (1983), a public employee, disgruntled by an undesirable
transfer, complained that she was terminated because of statements
pertaining to the office transfer policy, the need for a grievance
committee, and the level of confidence in various supervisors. In
distinguishing between speech relating only to the employee's
personal interests and speech relating to a matter of public
concern, Connick instructs us to look to "the content, form, and
context of [the speech at issue], as revealed by the whole record."
Id. at 147-48, 103 S.Ct. 1684, 1690, 75 L.Ed.2d at 720. The
Connick Court interpreted the public employee's statements as "mere
extensions of [her] dispute over her transfer," which were not "of
public import in evaluating the performance of ... an elected
official." Accordingly, the Court declined to afford First
Amendment protection because the employee had spoken "not as a
5
citizen upon matters of public concern, but instead as an employee
upon matters only of personal interest." Id.
We are persuaded that Tompkins' complaints about cancelling
the art program at a black junior high school for no apparent
reason while maintaining the art program at a white junior high
school relates to a matter of public concern. This conclusion is
strengthened by the content, form and context of Tompkins'
complaints. See id. Tompkins' complaints were made against a
backdrop of widespread debate in the Greenville community regarding
the art program and other aspects of Vickers' management of the
school system. Thus, Tompkins' complaints can be seen "in the
context of a continuing commentary that had originated in [a]
public forum." See Brawner v. City of Richardson, 855 F.2d 187,
192 (5th Cir.1988). In fact, most of Tompkins' complaints were
made in a public forum. He wrote a letter to the editor of the
local newspaper criticizing the Vickers administration. This
criticism continued at a public meeting of the local School Board,
where Tompkins urged the Board to reinstate the art program at
Coleman. See id. Moreover, Tompkins, on at least one occasion,
spoke not only on his behalf, but as a representative of a local
teachers' organization.
Vickers' only specific argument that Tompkins did not engage
in public speech is that Tompkins spoke out as an employee on a
matter of solely personal interest. Specifically, Vickers contends
that Tompkins stood to benefit personally from the continuation of
the art program at Coleman because his Greenville students would be
6
better prepared for high school art classes. Vickers points to no
record support for this argument and we find it unpersuasive. The
district court correctly concluded that Tompkins engaged in
protected public speech.2
B.
Vickers argues next that, even if Tompkins' speech is
constitutionally protected, his claim must still suffer early
dismissal on qualified immunity grounds because Tompkins did not
meet his summary judgment burden of establishing that he was
transferred because of his speech. Vickers contends that Tompkins
has not met his summary judgment burden because he did not produce
specific, direct proof that Vickers had an unconstitutional motive
in transferring Tompkins to Coleman.
Vickers correctly points out that in Harlow v. Fitzgerald,
457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Supreme
Court expressly discarded the subjective component of the qualified
immunity test. The Court held that the public official's state of
mind was generally no longer relevant in deciding a claim of
qualified immunity. By shifting the focus of the qualified
immunity defense to the objective reasonableness of the official's
2
Once a court determines that the employee's speech relates
to a matter of public concern, the court must then weigh the
interests of the employee as a citizen in commenting upon the
matter of public concern against the public employer's interest
in promoting the efficiency of the public services it performs.
See, e.g., Connick, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708.
The district court struck the balance in this case in favor of
the employee, Tompkins, because Vickers had failed to present any
evidence that Tompkins' speech impeded the operation or
effectiveness of his administration. Vickers does not challenge
this conclusion on appeal.
7
conduct, the Court balanced the need to provide redress for
constitutional violations with the desire to shield public
officials from undue interference with their duties. The Court
sought to protect public officials from the costs that attend
"[j]udicial inquiry into subjective motivation" by affording not
only immunity from liability, but also immunity from suit. Id. at
817, 102 S.Ct. at 2737. Under Harlow, therefore, the focus of an
inquiry into a defendant's qualified immunity is ordinarily the
"objective reasonableness" of the official's discretionary conduct
as measured by reference to clearly established law. See, e.g.,
Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523
(1987).
But in Harlow, the public official's state of mind was not an
essential element of the underlying constitutional violation.
Every Circuit that has considered the question has concluded that
a public official's motive or intent must be considered in the
qualified immunity analysis where unlawful motivation or intent is
a critical element of the alleged constitutional violation. See,
e.g., Branch v. Tunnell, 937 F.2d 1382 (9th Cir.1991); Siegert v.
Gilley, 895 F.2d 797 (D.C.Cir.1990), aff'd on other grounds, 500
U.S. 226, 235, 111 S.Ct. 1789, 1795, 114 L.Ed.2d 277, 289 (1991);
Pueblo Neighborhood Health Centers v. Losavio, 847 F.2d 642, 648
(10th Cir.1988); Poe v. Haydon, 853 F.2d 418 (6th Cir.1988);
Gutierrez v. Municipal Ct. of Southeast Judicial Dist., 838 F.2d
1031 (9th Cir.1988); Musso v. Hourigan, 836 F.2d 736, 743 (2d
Cir.1988) ("Harlow does not require us ... to ignore the fact that
8
intent is an element of the relevant cause of action."); see also
Balcerzak, Qualified Immunity for Government Officials: The
Problem of Unconstitutional Purpose in Civil Rights Litigation, 95
Yale L.J. 126, 127 (1985).
Vickers does not seriously contend that his motive in
transferring Tompkins is irrelevant. He argues, however, that a
public official's burden of defending his subjective motivation in
taking discretionary action should be diminished in light of the
policies underlying qualified immunity. Vickers contends that this
diminished burden would best be achieved by a bright-line rule
requiring Tompkins to present direct evidence, as opposed to
circumstantial evidence, that Vickers was motivated by a desire to
retaliate against Tompkins for his criticism. Additionally,
Vickers advocates a heightened requirement of proof for a plaintiff
seeking to overcome a motion for summary judgment on a cause of
action embodying the public official's state of mind.
We agree that a public official's qualified immunity defense
should not be defeated simply because the plaintiff alleges a claim
that hinges on the requisite state of mind of the public official.
Some protection must be afforded against groundless claims,
otherwise the burden Harlow sought to abate would be inescapable
and qualified immunity rendered a hoax. See Pueblo, 847 F.2d at
648.
But we are convinced that the requirements of Rule 56
accommodate the interests of public officials seeking protection
from groundless claims as well as the interests of plaintiffs
9
seeking vindication of constitutional rights. The Supreme Court
has made clear that a party moving for summary judgment has no
burden to disprove unsupported claims of an opponent. Celotex
Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91
L.Ed.2d 265 (1986). Application of this rule is especially
important "when, as in the area of concern in this case, the
reasons for swiftly terminating insubstantial lawsuits are
particularly strong." See Pueblo, 847 F.2d at 649 (quoting Martin
v. D.C. Metropolitan Police Dept., 812 F.2d 1425 (D.C.Cir.1987)
(Ginsburg, J.)). At the summary judgment stage, Tompkins cannot
rely on allegations; he must produce specific support for his
claim of unconstitutional motive. Id.; see also Siegert v.
Gilley, 500 U.S. 226, 235, 111 S.Ct. 1789, 1795, 114 L.Ed.2d 277,
289 (1991) (Kennedy, J., concurring) (the plaintiff must produce
"specific, nonconclusory factual allegations which establish [the
necessary mental state], or face dismissal.")
As the Seventh Circuit recognized in Elliott v. Thomas, 937
F.2d 338, 345 (7th Cir.1991):
[i]f a rule of law crafted to carry out the promise of Harlow
requires the plaintiff to produce some evidence, and the
plaintiff fails to do so, then Rule 56(c) allows the court to
grant the motion for summary judgment without ado.
See also Pueblo, 847 F.2d at 649.
We are not persuaded, however, that this requirement
obligates the plaintiff to come forward with direct, as opposed to
circumstantial, evidence. We are guided in this regard by Justice
Kennedy's concurrence in Siegert, 500 U.S. at 235, 111 S.Ct. at
1795. In Siegert, the Court of Appeals held that where
10
illegitimate intent is an element of the underlying constitutional
violation, the plaintiff, to defeat a motion to dismiss on grounds
of qualified immunity, must satisfy a "heightened pleading
standard" by alleging specific, direct evidence of illicit intent.3
Siegert, 895 F.2d 797, 802 (D.C.Cir.1990). The Court of Appeals
concluded that the plaintiff's allegations of improper motive were
insufficient to overcome the defendant public official's assertion
of qualified immunity. Id. at 803-04.
The Supreme Court granted certiorari to "clarify the
analytical structure under which a claim of qualified immunity
should be addressed." Siegert, 500 U.S. at 226, 111 S.Ct. at 1789.
The Majority concluded that the plaintiff's complaint "failed to
satisfy the first inquiry in the examination of ... a [qualified
immunity] claim" because it "failed to allege the violation of a
clearly established constitutional right."
Although the Majority took no occasion to address the Court of
Appeals' direct evidence requirement, Justice Kennedy, concurring,
rejected the notion "that a plaintiff must present direct, as
opposed to circumstantial evidence" of an illegitimate intent in
order to overcome a public official's claim of qualified immunity.
Id. 500 U.S. at 235, 111 S.Ct. at 1795; contra Siegert, 895 F.2d
3
This case has already proceeded to the summary judgment
stage, so we have no occasion to discuss a plaintiff's pleading
requirements where motive or intent is an essential element of
the clearly established right, an issue which we recognize may be
affected by the Supreme Court's recent decision in Leatherman v.
Tarrant County Narcotics Intelligence and Coordination Unit, 507
U.S. ----, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). As Judge
Easterbrook wrote in Elliott, 937 F.2d at 345, "[n]othing we say
here affects what the plaintiff must put in his complaint."
11
at 802, aff'd on other grounds, 500 U.S. 226, 111 S.Ct. 1789; Poe,
853 F.2d at 430. Three other members of the Siegert Court also
expressly rejected the District of Columbia Circuit's direct
evidence requirement. Siegert, 500 U.S. at 238, 111 S.Ct. at 1797
(Marshall, Blackmun, and Stevens, J.J., dissenting in part). Since
the Supreme Court's opinion in Siegert, every Circuit that has
considered the question has concluded that a plaintiff is not
required to come forward with direct, as opposed to circumstantial,
evidence under these circumstances. See Branch, 937 F.2d at 1387
("we are unwilling to require a plaintiff to present direct
evidence of [illegitimate] intent in order to avert dismissal);
Elliott, 937 F.2d at 345.
We agree with those Circuits that have rejected the argument
that a plaintiff must produce direct evidence in a case such as
this. Circumstantial evidence is equally as probative as direct
evidence in proving illegitimate intent. Also, direct evidence of
an improper motive is usually difficult, if not impossible, to
obtain. Thus, requiring direct evidence would effectively insulate
from suit public officials who deny an improper motive in cases
such as this. See Siegert, 500 U.S. at 235, 111 S.Ct. at 1795
(Kennedy, J. concurring); Branch, 937 F.2d at 1386-87 (motion to
dismiss); Elliott, 937 F.2d at 345.
C.
In light of these standards, we turn now to the question of
whether Tompkins presented sufficient evidence of an
unconstitutional motive to overcome summary judgment. The district
12
court found the uncontroverted circumstances surrounding Tompkins'
transfer sufficient to raise a genuine issue of material fact. We
agree.
The dispute in this case surrounding the cancellation of the
art program at Coleman was widely publicized, as were many other
general complaints against the Vickers administration during the
1989-90 school year. Tompkins openly participated in this protest
by personally delivering the letter of "no confidence" to Vickers,
by penning a letter to the editor of the local newspaper and by
appearing before the Board to air complaints against the Vickers
administration. Prior to these protestations, Tompkins had never
been reprimanded during his 21 years of employment with the school
district. Lynch conceded in his deposition that Tompkins'
personnel file contained no reprimands. Moreover, Tompkins was an
accomplished artist, held in high regard as an art teacher by
faculty and students. Lynch acknowledged that Tompkins' teaching
evaluations were above average and that several of Tompkins' art
students had received outstanding achievement awards.
Vickers counters with evidence that Tompkins' transfer was
prompted by a personality conflict between Lynch and Tompkins;
Vickers also points out that the initial recommendation to transfer
Tompkins resulted from a private meeting between the three
principals—a meeting which Vickers did not attend. But, Tompkins
presented evidence that Lynch had originally recommended Tompkins
for reemployment at Greenville; the reassignment recommendation
came after Vickers took the unprecedented step of requiring the
13
principals to meet to redistribute the art instructors. Moreover,
Vickers was present at a second meeting to discuss the transfer
with Tompkins and the three principals. During this second
meeting, Tompkins alleges that when he objected to the transfer,
Vickers responded: "Well, I thought you'd want to go to Coleman as
much fuss as you kicked up over this." Finally, Lynch conceded
that he knew of no other instances where a teacher had been
transferred to another school because of a personality conflict
with the principal.
We are persuaded that the summary judgment record supports the
district court's conclusion that a genuine factual dispute
surrounds Vickers' motivation for approving Tompkins' transfer.
Thus, we dismiss Vickers' appeal for want of jurisdiction. See
Lion Boulos v. Wilson, 834 F.2d 504, 509 (5th Cir.1987).
APPEAL DISMISSED.
14