United States Court of Appeals,
Fifth Circuit.
No. 93-5490.
Andrea Millicent PIERCE, Plaintiff-Appellant,
v.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, et
al., Defendants-Appellees.
Nov. 15, 1994.
Appeal from the United States District Court for the Eastern
District of Texas.
Before POLITZ, Chief Judge, GOLDBERG and DUHÉ, Circuit Judges.
DUHÉ, Circuit Judge:
Andrea Millicent Pierce appeals the trial court's judgment in
favor of Appellees Texas Department of Criminal Justice,
Institutional Division (TDCJ), Warden Janie Cockrell, and Assistant
Warden Harry Kinker. Pierce sued all three defendants for
retaliation under Title VII, and the two wardens under 42 U.S.C. §
1983 for retaliation against her for her alleged First Amendment
speech. The Title VII claim was tried to a judge, who entered
judgment for Defendants. The § 1983 claim was tried to a jury,
which rendered its verdict for Pierce. Nevertheless, on the § 1983
claim the court granted Defendants' Rule 50 motion for judgment as
a matter of law. We affirm.
BACKGROUND
Pierce, an African-American female, has been a corrections
officer for fourteen years. She began working for TDCJ in 1987.
TDCJ transferred her to its Beto I Unit in 1988. Pierce engaged in
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general whistleblowing activity beginning in July 1990. She wrote
an anonymous letter to the Internal Affairs Division about a
relationship between a female officer and a male inmate. She
reported other officer-inmate relationships and racial slurs
written in places to which only officers had access. Pierce filed
several charges of discrimination with the Equal Employment
Opportunity Commission (EEOC), and she filed numerous grievances
with the warden.
Kinker served as assistant warden at Beto I from 1990 to
September 1992. He was responsible for making personal
investigations of reported wrongdoing. Cockrell has served as
senior warden of Beto I since August 1991. Beto I is an all-male,
maximum-security prison. The prison houses 3342 inmates and has
1110 employees.
Pierce complains about the following employment-related
incidents. Kinker investigated a verbal altercation between Pierce
and another officer that took place in December 1990. Kinker found
the other officer guilty and Pierce not guilty in the
investigation. In September 1991, Pierce reported to Cockrell a
relationship between a female officer and a male inmate. A few
weeks later, Pierce was ordered to undergo a polygraph examination.
Another time Kinker warned her to stay out of other people's
business and to take care of herself. According to Pierce, Kinker
also told one of her supervising officers that Pierce was the
smartest black, and if he got her, the rest of the blacks would
fall into line. Pierce was videotaped without authorization once
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while working in the library. In July 1992, Pierce was assigned to
guard the general population showers. She was the only woman at
that time to receive such an assignment. Internal Affairs
investigated Pierce during the summer of 1992 for taking food from
an inmate. The investigation lasted three months, but Pierce was
found not guilty. In addition, Pierce was written up on five
occasions for minor infractions, such as tardiness or walking slow
on post.
In January 1993, Cockrell reprimanded Pierce for allegedly
telling an inmate to lie. The reprimand was the result of an
Internal Affairs investigation dating back to July 1991. In April
1993, Cockrell put Pierce on probation and reduced her pay for
disclosing confidential information over the telephone. Pierce had
spoken with a union representative after an inmate had sexually
assaulted a female officer.
DISCUSSION
The district court entered judgment as a matter of law on the
§ 1983 claim after the jury had rendered its verdict. See
Fed.R.Civ.P. 50(b). We review that action de novo. Omnitech
Int'l, Inc. v. Clorox Co., 11 F.3d 1316, 1322 (5th Cir.1994), cert.
denied, --- U.S. ----, 115 S.Ct. 71, --- L.Ed.2d ---- (1994). We
will reverse if a rational jury could have concluded as the jury
did. Id. at 1323. In contrast, the trial court served as the
factfinder for the Title VII claim. We review a trial court's
findings of fact from a bench trial under a clearly erroneous
standard. Fed.R.Civ.P. 52(a).
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I. Section 1983 Claim
Pierce's § 1983 claim is based on claims that Kinker and
Cockrell retaliated against her for speaking out on matters of
public concern. To establish a prima facie case, Pierce must
prove: (1) Defendants were acting under color of state law; (2)
Pierce's speech activities were protected under the First
Amendment; and (3) Pierce's exercise of her protected right was a
substantial or motivating factor in Defendants' actions. Mt.
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287,
97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977). The trial court ruled
that Pierce did not establish the third element. The court
determined that causation was lacking.
Before we can determine whether evidence of causation exists,
we must identify the protected speech and the harm. Pierce's
protected speech consists of her whistleblowing activity, which
occurred regularly between 1990 and 1993. Both Pierce and the
trial court agreed that numerous examples of protected speech were
present. The trial court disagreed with Pierce, however, with
regard to harm. The trial court cited the January 1993 reprimand,
the May 1993 probation/reduction in pay, and the minor disciplinary
write-ups as adverse employment decisions. Pierce points to other
events that she claims had the effect of chilling her speech.
To establish a First Amendment violation, a public employee
must demonstrate that she has suffered an adverse employment action
for exercising her right to free speech. McCabe v. Sharrett, 12
F.3d 1558, 1563 (11th Cir.1994). Adverse employment actions are
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discharges, demotions, refusals to hire, refusals to promote, and
reprimands. Id. (citing Rutan v. Republican Party, 497 U.S. 62,
74, 110 S.Ct. 2729, 2737, 111 L.Ed.2d 52 (1990)). The Supreme
Court in Rutan held that the scope of harm actionable under the
First Amendment was broader than actual or constructive discharge
from employment. 497 U.S. at 74, 110 S.Ct. at 2737. Although
Rutan concerned employment practices relating to political
patronage, we have applied Rutan to retaliation claims.1 See Click
v. Copeland, 970 F.2d 106, 110-11 (5th Cir.1992); see also Dorsett
v. Board of Trustees for State Colleges & Univs., 940 F.2d 121, 123
(5th Cir.1991) (denying First Amendment claim because alleged
retaliatory acts were not actionable).
Pierce would include other events within the scope of harm
actionable under the First Amendment. We disagree. Although some
actions may have had the effect of chilling her protected speech,
they are not actionable. For instance, Pierce was investigated
1
Rutan 's delineation of the scope of harm actionable under
the First Amendment comports with our pre-Rutan retaliation
cases. See Bickel v. Burkhart, 632 F.2d 1251, 1255 n. 6 (5th
Cir.1980) (requiring important conditions of employment to be
involved in the retaliation). The last sentence of Rutan 's
footnote 8, however, can be read to create a distinction between
retaliation and other claims under the First Amendment. See 497
U.S. at 76 n. 8, 110 S.Ct. at 2738 n. 8 (suggesting that trivial
acts of retaliation may be actionable). Such a literal reading
of this Supreme Court dictum "would be a serious mistake" because
that sentence is inconsistent with the body of the opinion.
Scott v. Flowers, 910 F.2d 201, 216 n. 32 (5th Cir.1990)
(Garwood, J., dissenting). But see Tao v. Freeh, 27 F.3d 635,
639 (D.C.Cir.1994) (applying Rutan 's footnote 8 as the standard
for actionable harm in First Amendment retaliation claim). We
choose not to read the Supreme Court's dicta literally; rather,
we apply the main analysis of Rutan to retaliation claims and
require more than a trivial act to establish constitutional harm.
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once for trafficking and once for a verbal altercation. Neither
investigation resulted in any action being taken against Pierce.
Similarly, the videotaping took place in a public place, even
though the action was unauthorized. Pierce's polygraph examination
and Kinker's threat to her to mind her own business do not amount
to adverse employment decisions because no adverse result occurred.
The other incidents alleged by Pierce are also not
actionable. Pierce was written up for minor infractions by junior
officers. No evidence connects Cockrell and Kinker to these
disciplinary measures.2 Vicarious liability does not apply to §
1983 claims. Monell v. Department of Social Servs., 436 U.S. 658,
694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978). Pierce's
assignment to the showers is not actionable because it is a regular
assignment for prison guards at Beto I. Pierce does not suggest
that she was incapable of performing that assignment. Nor does
evidence show that shower assignment was punishment. The fact that
Pierce may have been the first woman assigned to guard the general
population showers does not equate the assignment with punishment.
Because shower assignment does not amount to a sanction, Pierce's
assignment is not actionable.
Now we must determine whether a rational jury could find that
Pierce's exercise of her protected speech was a substantial or
2
Kinker's statement about "getting Pierce" suggests a
connection. Of the five write-ups she received, one occurred in
May 1993 and two more in July 1993. The record does not indicate
the dates of the other two. Kinker, however, left Beto I in
September 1992. His lack of presence there during at least a
majority of her write-ups negates any possible connection to
them.
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motivating factor in her reprimand or probation/reduction in pay.
We recognize that summary disposition of this causal inquiry is
often inappropriate. Click, 970 F.2d at 113. Cockrell's January
1993 reprimand of Pierce was the result of an Internal Affairs
investigation begun in July 1991. Pierce points out that the only
evidence against her was the word of an inmate. Cockrell replies
that Internal Affairs controlled the investigation and that she had
no choice but to discipline Pierce. Internal Affairs made the
guilty finding. Cockrell selected the least sanction allowable for
that offense under the TDCJ Guidelines. No evidence of retaliation
is attributable to the reprimand.
Evidence of causation is also lacking with regards to
Pierce's probation and reduction of pay in May 1993. A male inmate
had sexually assaulted a female officer. Pierce was present with
the officer and a nurse in the infirmary. The officer wanted
another female officer present when she spoke with Internal
Affairs. To assist in accomplishing this Pierce spoke with Ms.
Harshe, an off-duty officer and union representative, on an outside
telephone line. In the conversation Pierce released information
concerning the assault to Ms. Harshe. Pierce thereby violated TDCJ
Guidelines by making the phone call without receiving supervisor
permission. She leaked news of a criminal investigation. Cockrell
investigated the violation and disciplined Pierce for the
unauthorized call, which she admitted making.3 Because Pierce
3
Pierce notes that the nurse actually placed the call. The
purpose of the offense, however, is to prevent unauthorized
disclosure of confidential information.
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committed a disciplinary violation for the second time within a
year, Cockrell had the following disciplinary choices under the
Guidelines: probation 10 to 12 months, suspension 21 to 30
workdays, reduction 2 to 3 steps, demotion 1 to 3 groups, any
combination thereof, or dismissal. She disciplined Pierce for 12
months probation and reduced her pay 2 steps. The sanctions given
were light in comparison to the maximum actions allowable under the
Guidelines. No evidence suggests that Cockrell acted with any
retaliatory intent when she disciplined Pierce.4
Pierce contends that Click requires us to leave causation in
this case with the jury. We disagree. Click concerned a sheriff's
transfer of two deputies who had announced their candidacies for
the sheriff's position. The sheriff testified that he had
transferred them to the jail because of a severe personnel shortage
there. The deputies, however, introduced evidence that the sheriff
had transferred five jail guards to law enforcement that same day.
The court determined that the contradictory evidence was fodder for
the jury. Click, 970 F.2d at 114. No such conflict exists in this
case. Cockrell twice disciplined Pierce for violating the TDCJ
Guidelines. Pierce does not allege facts that would allow a
rational jury to conclude otherwise.
Given the evidence presented, no rational jury could have
found that Pierce's exercise of her protected speech was a
4
Pierce filed a grievance against Cockrell after Pierce
received her sanction. She complained that Cockrell was in a bad
mood at their meeting because of events that had occurred earlier
in the day. Cockrell may have very well been in a bad mood, but
the sanctions she imposed were reasonable under the Guidelines.
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substantial or motivating factor for the disciplinary measures
taken against her by the wardens. The disciplinary measures were
taken for violations of the TDCJ Guidelines, and the sanctions
imposed were relatively light. The trial court correctly granted
Defendants' motion for judgment as a matter of law on the § 1983
claim.
II. Title VII Claim
Pierce contends that adverse employment actions were taken
against her by TDCJ, Cockrell, and Kinker in retaliation for her
activities in opposing unlawful practices or for filing EEOC
charges of discrimination. To establish a Title VII retaliation
claim, Pierce must prove: (1) that she engaged in activity
protected by Title VII; (2) that an adverse employment action
occurred; and (3) that a causal connection existed between the
participation in the protected activity and the adverse employment
action. 42 U.S.C. § 2000e-3(a) (1988); Shirley v. Chrysler First,
Inc., 970 F.2d 39, 42 (5th Cir.1992).
The trial court determined that no causal connection existed
between her protected activity and the adverse employment
decisions. This causation inquiry is essentially the same inquiry
undertaken for the § 1983 claim. Pierce again confronts the hurdle
that the Defendants had legitimate reasons for imposing their two
disciplinary measures. We see no clear error.
CONCLUSION
For the foregoing reasons, the trial court's judgment is
AFFIRMED.
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