Jones v. Collins ( 1998 )

  •                REVISED, February 2, 1998
                             FOR THE FIFTH CIRCUIT
                                  No. 96-41192
              ETHEL JONES,
              GARY COLLINS, Superintendent of Texarkana Independent
              School District
               Appeal from the United States District Court
                     for the Eastern District of Texas
                              January 9, 1998
    Before KING, DUHÉ, and WIENER, Circuit Judges.
    KING, Circuit Judge:
         Defendant-appellant Gary Collins, the superintendent of
    Texarkana Independent School District, appeals the district
    court’s partial denial of his motion for summary judgment on the
    ground that a fact issue exists as to whether he possesses
    qualified immunity from liability for plaintiff-appellee Ethel
    Jones’s claim, asserted under 42 U.S.C. § 1983, that Collins
    violated her First Amendment rights.    Because we find that the
    evidence in the summary judgment record, construed in the light
    most favorable to Jones, indicates that Collins did not violate
    Jones’s First Amendment right to free expression, we reverse the
    district court’s order denying Collins’s motion for summary
    judgment on his defense of qualified immunity and remand for
    entry of judgment granting this portion of the motion.
                     I.   FACTS & PROCEDURAL BACKGROUND
         This case arises out of the transfer of plaintiff-appellee
    Ethel Jones from her position as principal of Dunbar Elementary
    School (“Dunbar”) to the position of assistant principal of
    Westlawn Elementary School (“Westlawn”) in July 1993.     Defendant-
    appellant Gary Collins, the superintendent of Texarkana
    Independent School District (“TISD”), recommended this transfer,
    and the TISD Board of Trustees (the “Board”) approved it.
         Jones served as Dunbar’s principal from the 1986-87 school
    year through the 1992-93 school year.   Her performance
    evaluations for the 1987-88 through the 1990-91 school years
    reflect that Collins gave Jones ratings of “clearly outstanding”
    or “exceeds expectations” in most of the evaluation categories.
         On February 22, 1992, Jones attended a Board retreat at
    which Board members discussed possible locations for a proposed
    alternative education program for the school district to cope
    with the educational needs of emotionally disturbed and at-risk
    students.   Jones later asked Collins if Dunbar was a potential
    site for the alternative education program.   Collins responded
    that this was possible because Dunbar had extra rooms available
    that could be allocated to the program.   Collins contends that he
    discussed the possibility of Dunbar serving as the site of the
    alternative education program with no one other than Jones.
         In May or June of 1992, after Jones’s conversation with
    Collins regarding the location of the alternative education
    program, representatives from the community appeared at a Board
    meeting and voiced opposition to the prospect of placing the
    alternative education program at Dunbar.   The Board president
    informed the parents that the Board did not intend to place the
    alternative education program at Dunbar.   Collins surmised that
    the parents must have received the information regarding the
    possibility of placing the program at Dunbar from Jones because
    he had discussed the matter with no one else.   When confronted by
    Collins, Jones denied leaking information to the community.
         In Jones’s 1991-92 employment evaluation, Collins stated
    that Jones “[i]sn’t supportive of controversial approaches [and]
    doesn’t like to be in [the] line of fire on any decision.”    In an
    attachment to the evaluation, Collins explained that, after
    discussing with Jones the possibility of placing the alternative
    education program at Dunbar, various members of the faculty and
    parents of Dunbar students complained about locating the program
    at Dunbar.   The attachment also stated the following with regard
    to the alternative education program’s location:
         The Board of Trustees, when making decisions as to the
         utilization of facilities, makes their determination in
         the best interest of all students in this district.
         Before that decision is made, options will be
         discussed, alternatives weighed, and a rational
         decision arrived at by consensus. Up until that event
         occurs, you are to support the administration and Board
         of Trustees in their attempts to determine the best use
         of facilities for the students and instructional
         program of this district. You are not to work behind
         our backs in an effort to salvage what you consider the
         most important use of a facility nor use other
         individuals to carry out your point of view.
    Collins recommended that Jones’s contract be renewed for another
         In Jones’s evaluation for the 1992-93 school year, Collins
    rated Jones’s performance in many evaluation categories as
    “unsatisfactory” and recommended that the district not renew her
    contract.   In a memorandum accompanying the evaluation form,
    Collins listed a number of alleged deficiencies in Jones’s
    performance, and discussed in particular her alleged
    “gamesmanship” in inciting unrest in the community regarding
    district policy affecting Dunbar.    The evaluation states that
    Jones’s “community involvement consisted of creating controversy
    over items [she] did not want on the Dunbar campus.”    The
    evaluation also reiterated Collins’s belief that Jones had spoken
    negatively with members of the community regarding the
    possibility of placing the alternative education program on the
    Dunbar campus.
         Jones’s contract with TISD covering the 1992-93 and 1993-94
    school years provided that Jones could be transferred between
    administrative positions within the district at the sole
    discretion of the superintendent so long as her salary was not
    reduced as a result of the transfer.    On July 21, 1993, Collins
    attempted to transfer Jones to a teaching position.    However,
    counsel for the school district informed him that, under the
    terms of the contract then in effect between Jones and TISD,
    Collins could not transfer Jones from an administrative position
    to a teaching position.     Collins thereafter reassigned Jones to
    the position of assistant principal of Westlawn.
         Jones exhausted her administrative remedies and, on
    September 29, 1995, filed suit against TISD and Collins both in
    his individual capacity and his official capacity as
    superintendent of TISD (collectively “Defendants”).    Jones
    alleged various violations of the U.S. Constitution, including
    claims that her transfer deprived her of property and liberty
    interests without due process and a claim that her reassignment
    constituted retaliation for exercise of her First Amendment right
    to free speech.   Jones also asserted parallel claims under the
    Texas Constitution.    Defendants answered and affirmatively
    pleaded the defense of qualified immunity on behalf of Collins in
    his individual capacity.     Defendants moved for summary judgment
    on all claims, including Collins’s claim of qualified immunity.
    The district court granted Defendants’ motion for summary
    judgment except as to Jones’s First Amendment retaliation claim
    and Collins’s defense of qualified immunity.     Collins appeals the
    district court’s refusal to grant summary judgment on Jones’s
    First Amendment retaliation claim on grounds of qualified
                          II.   APPELLATE JURISDICTION
         Although Jones has not argued that this court lacks
    jurisdiction over the instant appeal, we nonetheless address the
    issue sua sponte.     See Joseph v. City of New Orleans, 
    110 F.3d 252
    , 253 (5th Cir. 1997); Pemberton v. State Farm Mut. Auto. Ins.
    996 F.2d 789
    , 791 (5th Cir. 1993).   The Supreme Court has
    held that “[a]ppeals from district court orders denying summary
    judgment on the basis of qualified immunity are immediately
    appealable under the collateral order doctrine, when based on an
    issue of law.”   Cantu v. Rocha, 
    77 F.3d 795
    , 802 (5th Cir. 1996)
    (citing Mitchell v. Forsyth, 
    472 U.S. 511
    , 526 (1985)).     In this
    context, an appeal is based on “issues of law” if the issues it
    raises “concern only application of established legal principles,
    such as whether an official’s conduct was objectively reasonable
    in light of clearly established law, to a given (for purposes of
    appeal) set of facts.”    See id. (citing Johnson v. Jones, 
    515 U.S. 304
    , 313 (1995).    However, if the appeal involves a matter
    of evidentiary sufficiency, i.e., if the party moving for summary
    judgment merely disputes the district court’s determination that
    the nonmoving party may be able to prove at trial a fact that is
    material to the appellant’s entitlement to qualified immunity,
    then the district court’s denial of summary judgment is not
    immediately appealable.    See id.
         Collins contends on appeal that the summary judgment
    evidence, viewed in the light most favorable to Jones, indicates
    that he did not violate Jones’s constitutional rights.    He does
    not contend that the district court erroneously determined that
    the summary judgment record indicates that disputes exist as to
    factual issues material to Jones’s claim.   We therefore possess
    jurisdiction over Collins’s appeal and proceed to its merits.
                         III.   STANDARD OF REVIEW
         “This court reviews de novo the denial of a public
    official’s motion for summary judgment predicated on qualified
    immunity.”   Southard v. Texas Bd. of Criminal Justice, 
    114 F.3d 539
    , 548 (5th Cir. 1997); see also Johnston v. City of Houston,
    14 F.3d 1056
    , 1059 (5th Cir. 1994).     We therefore apply the same
    criteria used by the district court in the first instance.      See
    Texas Manufactured Housing Ass’n v. City of Nederland, 
    101 F.3d 1095
    , 1099 (5th Cir. 1996), cert. denied, 
    117 S. Ct. 2497
    Summary judgment is proper only “if the pleadings, depositions,
    answers to interrogatories, and admissions on file, together with
    the affidavits, if any, show that there is no genuine issue as to
    any material fact and that the moving party is entitled to
    judgment as a matter of law.”     FED. R. CIV. P. 56(c); see also
    Celotex Corp. v. Catrett, 
    477 U.S. 317
    , 327 (1986).
                                IV.   ANALYSIS
         While the nature of Jones’s First Amendment claim is not
    altogether clear from her pleadings at the district court level
    and her brief on appeal, her claim appears to be that Collins
    retaliated against her based upon his perception that she spoke
    negatively to members of the local community about the prospect
    of placing the TISD alternative education program at Dunbar.
    With this understanding of the claim in mind, we turn to the
    legal standard applicable in evaluating Collins’s entitlement to
    qualified immunity from liability based on the claim.
                     A.   Qualified Immunity Standard
         A determination of whether a public official is entitled to
    qualified immunity from liability under § 1983 potentially
    involves a two-step analysis.   First, if the official’s conduct
    did not violate a clearly established constitutional right, the
    official is entitled to qualified immunity.   See Nerren v.
    Livingston Police Dep’t, 
    86 F.3d 469
    , 473 (5th Cir. 1996).     That
    is, in order for immunity not to attach, the official’s conduct
    must have violated a right recognized under current
    constitutional law, and that right must have been clearly
    established at the time of the official’s conduct.    See Siegert
    v. Gilley, 
    500 U.S. 226
    , 231-32 (1991) (“Once a defendant pleads
    a defense of qualified immunity, on summary judgment, the judge
    appropriately may determine, not only the currently applicable
    law, but whether the law was clearly established at the time an
    action occurred. . . .   A necessary concomitant to the
    determination of whether the constitutional right asserted by a
    plaintiff is clearly established at the time the defendant acted
    is the determination of whether the plaintiff has asserted a
    violation of a constitutional right at all.” (internal quotation
    marks and alteration omitted)).   Second, even if the official’s
    conduct violated a clearly established constitutional right, the
    official is nonetheless entitled to qualified immunity if his
    conduct was objectively reasonable.   See Nerren, 86 F.3d at 473.
    We need not reach the second step of this analysis because the
    summary judgment evidence, construed in the light most favorable
    to Jones, indicates that Collins did not violate Jones’s First
    Amendment right to free expression.
                          B.   First Amendment Law
         A state may not deny an individual public employment or
    benefits related thereto based on the individual’s exercise of
    her First Amendment right to free expression even when the
    individual lacks a liberty or property interest in the employment
    or related benefit.   See Rankin v. McPherson, 
    483 U.S. 378
    , 383-
    84 (1987) (“Even though McPherson was merely a probationary
    employee, and even if she could have been discharged for any
    reason or for no reason at all, she may nonetheless be entitled
    to reinstatement if she was discharged for exercising her
    constitutional right to freedom of expression.”); Connick v.
    461 U.S. 138
    , 143-45 (1983); Pickering v. Board of Educ.,
    391 U.S. 563
    , 568 (1968); Thompson v. City of Starkville, 
    901 F.2d 456
    , 460 (5th Cir. 1990).   However, a government’s interest
    in insuring that its agencies perform the tasks assigned to them
    by law in the most efficient manner possible is substantial and
    in certain circumstances justifies placing restrictions upon
    public employees’ freedom of expression.    See Waters v.
    511 U.S. 661
    , 675 (1994) (plurality opinion)
    (O’Connor, J.) (“The government cannot restrict the speech of the
    public at large just in the name of efficiency.   But where the
    government is employing someone for the very purpose of
    effectively achieving its goals, such restrictions may well be
         In light of the competing interests of government employees
    in free expression and the government in efficiency of its
    operations, the Supreme Court has held that the First Amendment
    precludes retaliation against a public employee based upon her
    expression only if that expression satisfies two criteria.
    First, the expression must relate to a matter of public concern.
    See Connick, 461 U.S. at 146; Kinsey v. Salado Indep. Sch. Dist.,
    950 F.2d 988
    , 992 (5th Cir. 1992). Second, the employee’s
    interest in “commenting upon matters of public concern” must
    outweigh the public employer’s interest “in promoting the
    efficiency of the public services it performs through its
    employees.”    Pickering, 391 U.S. at 568; see also Kinsey, 950
    F.2d at 992.   If a public employee establishes that her
    expression is protected by meeting the above two criteria, she
    must still prove that her expression caused the retaliatory act
    of which she complains in order to establish a violation of the
    First Amendment.    See Kinsey, 950 F.2d at 993.
         In this case, Jones contends that she never made any public
    comment about the prospect of placing the alternative education
    program on the Dunbar campus and that Jones retaliated against
    her based upon his perception that she spoke out negatively
    regarding this matter.   Assuming for the sake of argument that
    Jones’s expression as perceived by Collins would have been
    subject to constitutional protection (i.e., the negative comments
    perceived by Collins related to a matter of public concern and
    Jones’s interest in making them outweighed TISD’s interest in
    efficiently providing educational services), retaliation based on
    this perception, in the absence of any actual expression by Jones
    that is subject to First Amendment protection, does not
    constitute a constitutional violation.
          In Barkoo v. Melby, 
    901 F.2d 613
     (7th Cir. 1990), the
    Seventh Circuit addressed a factual scenario analogous to the one
    at issue here:   the plaintiff alleged that she was constructively
    discharged from her position as a communications operator for the
    Village of Skokie Police Department based upon her supervisors’
    erroneous belief that she had discussed a matter relating to the
    department with local media.   See id. at 614-16.   The court
    concluded that the plaintiff could not establish a violation of
    her First Amendment right to free expression because she had not
    actually engaged in any protected First Amendment activity.     See
    id. at 619.   The court observed:
          To the extent Barkoo alleges that her employers
          retaliated against her because they thought she was
          engaged in First Amendment protected speech on an issue
          of public concern, we reject the notion that this
          allegation brings her claim within the requirements of
          § 1983. Every § 1983 case relating to workplace
          freedom of speech, from Connick on down, discusses the
          actual speech engaged in by the employee. Barkoo not
          only admits, she insists that she did not provide any
          information to the press. Barkoo provides no authority
          for the proposition that her free speech rights are
          deprived in violation of § 1983 when the speech at
          issue admittedly never occurred.
          In Fogarty v. Boles, 
    121 F.3d 886
     (3d Cir. 1997), the Third
    Circuit reached a similar conclusion regarding a claim that a
    public school teacher was punished based upon the school
    principal’s erroneous belief that the teacher had contacted the
    press about a matter of public interest at the school.     See id.
    at 887.    The court held that the teacher “fail[ed] to meet his
    burden of proving a violation of his free speech rights [because]
    he denie[d] contacting, attempting to contact, or having any
    intention of contacting the press.”    Id.   The court noted that,
    in Mt. Healthy City School District Board of Education v. Doyle,
    429 U.S. 274
     (1977), the Supreme Court held that a plaintiff
    alleging retaliation based upon the plaintiff’s exercise of her
    First Amendment rights bears the burden of showing, among other
    things, “‘that his conduct was constitutionally protected.’”
    Fogarty, 121 F.3d at 890 (quoting Mt. Healthy, 429 U.S. at 287).
    The court reasoned that the teacher could not “sustain that
    burden of proof because there was no conduct that was
    constitutionally protected--indeed, there was no conduct--
    period.”    Id.
         The instant case is analogous to Barkoo and Fogarty in all
    material respects, and we find the reasoning of the Seventh and
    Third Circuits persuasive.    Jones contends that she never spoke
    out--positively or negatively--regarding the prospect of placing
    the alternative education program on the Dunbar campus.    The fact
    that Collins transferred her on the basis of a mistaken belief
    that she spoke out in a manner that we assume for the sake of
    argument would have been constitutionally protected fails to
    establish a violation of Jones’s First Amendment rights.    An
    asserted “bad motive” on the part of Collins cannot of itself
    form the basis of a First Amendment violation.   See id. at 890.
    “‘[A] free speech claim depends on speech, and there was none in
    this case.’”   Id. (quoting Pro v. Donatucci, 
    81 F.3d 1283
    , 1292
    (3d Cir. 1996) (Roth, J., dissenting)).
         Jones argues, however, that her silence on the issue of the
    location of TISD’s alternative education program is entitled to
    First Amendment protection.   In support of this contention, she
    relies on Wooley v. Maynard, 
    430 U.S. 705
     (1977), in which the
    Supreme Court invalidated a New Hampshire statute requiring
    residents to display the state motto of “Live Free or Die” on
    their license plates.   While it is true that silence in the face
    of an illegitimate demand for speech is subject to First
    Amendment protection, see id. at 714, this principle is
    inapplicable here.   Jones does not contend that Collins made a
    demand--legitimate or otherwise--that she speak out in favor of
    the possibility of placing the alternative education program on
    the Dunbar campus.   Indeed, she specifically contends that he did
    not instruct her to speak on this matter.1   Therefore, Jones’s
    reliance on Wooley is inapposite.
         Jones’s silence in the absence of a demand for speech
    likewise does not constitute a form of symbolic expression
            Moreover, while Jones alleges that Collins transferred
    her in part “because [she] refused to publicly endorse his plans
    for Dunbar,” she directs us to no summary judgment evidence
    supporting this allegation. The summary judgment evidence cited
    by Jones indicates only that Collins may have transferred her
    based upon his belief that she had spoken out negatively to
    members of the community regarding the prospect of placing the
    alternative education program on the Dunbar campus.
    warranting First Amendment protection.   We reach this conclusion
    because “[t]he First Amendment ‘was fashioned to assure
    unfettered interchange of ideas for the bringing about of
    political and social changes desired by the people.’”      Connick,
    461 U.S. at 145 (quoting Roth v. United States, 
    354 U.S. 476
    , 484
    (1957)).   The goal of unfettered interchange of ideas is not
    furthered by “conduct without substantial communicative intent
    and impact.”    Smith v. Goguen, 
    415 U.S. 566
    , 586 (1974) (White,
    J., concurring).   Accordingly,
         [f]or activities to constitute expressive conduct and
         fall within the scope of the First Amendment, they must
         be sufficiently imbued with elements of communication.
         In deciding whether particular conduct possesses
         sufficient communicative elements to bring the First
         Amendment into play, we ask whether an intent to convey
         a particularized message was present and whether the
         likelihood was great that the message would be
         understood by those who viewed it.
    Cabrol v. Town of Youngsville, 
    106 F.3d 101
    , 109 (5th Cir. 1997)
    (internal quotation marks and citations omitted).
         Nothing in the summary judgment record indicates that Jones
    intended her silence on the issue of placement of TISD’s
    alternative learning program to constitute a statement of any
    sort.   Nor does the summary judgment record provide any
    indication that anyone, Collins included, had reason to perceive
    it as such.    Jones has therefore not alleged that she engaged in
    any expressive conduct potentially subject to First Amendment
    protection.    Cf. Langford v. Lane, 
    921 F.2d 677
    , 679 (6th Cir.
    1991) (applying the public interest and Pickering/Connick
    balancing test to an employer’s express refusal to speak with her
    supervisor); Nicholson v. Gant, 
    816 F.2d 591
    , 599 (11th Cir.
    1987) (concluding that the plaintiff had engaged in speech
    warranting First Amendment protection where she “clearly
    expressed her desire not to read [a] prepared statement at [a]
    political rally” (emphasis added)); Sykes v. McDowell, 
    786 F.2d 1098
    , 1104 (11th Cir. 1986) (“A public employee who positively
    asserts the right not to speak when ordered to support his
    employer [politically] is within the protection of the first
    amendment.” (emphasis added)).
         In sum, the summary judgment record construed in the light
    most favorable to Jones indicates that Collins’s transfer of
    Jones from her position as principal of Dunbar did not violate
    Jones’s constitutional rights, much less any rights clearly
    established at the time of the transfer.     Collins is therefore
    entitled to summary judgment on the basis of qualified immunity.
                               V.   CONCLUSION
         For the foregoing reasons, we REVERSE the order of the
    district court insofar as it denied Collins’s motion for summary
    judgment on his defense of qualified immunity and REMAND for
    entry of judgment granting this portion of the motion.     Costs
    shall be borne by Jones.