Roberts v. Titus County Memorial Hospital , 129 F. App'x 82 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 14, 2005
_______________________ Charles R. Fulbruge III
Clerk
Summary Calendar
No. 04-41101
_______________________
JOAN CAROL ELLIS ROBERTS,
Plaintiff-Appellant,
versus
TITUS COUNTY MEMORIAL HOSPITAL;
GEORGE BURNS, Director of Radiology Titus County
Memorial Hospital; GENE LOTT, Director of
Human Resources Titus County Memorial Hospital,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Texas,
Texarkana Division
No. 5:03-CV-00021-DF
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Appellant Joan Roberts (“Roberts”) appeals pro se the
district court’s award of summary judgment to Appellees Titus
County Memorial Hospital (“Hospital”) and employees of the
Hospital, Director of Radiology George Burns, and Director of Human
Resources Gene Lott. The district court wrote a thorough,
carefully reasoned opinion and held, inter alia, that Roberts
*
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opinion should not be published and is not precedent except under the limited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.
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failed to raise a material issue of triable fact on her claims of
invasion of her First Amendment and Due Process rights, as well as
Roberts’s allegations of Title VII violations. We AFFIRM the
district court in all respects.
BACKGROUND
The Hospital employed Roberts as a CAT scan technologist
in the radiology department from 1986 to 2002. Roberts routinely
received high marks for her technological capabilities, but she had
a mixed record for interpersonal relationships. Specifically,
Roberts had a documented history of undermining doctors’ orders and
diagnoses of patients, as well as difficulty in arriving to work on
time and in getting along with coworkers. In light of her inter-
personal problems, and the qualifications of another technologist,
when the Hospital opened a “lead tech” position, which required the
same amount of work and paid the same salary, Roberts did not
receive the position.
Roberts’s First Amendment claim arises in part out of her
disagreement with the Hospital’s method for purchasing equipment,
and her verbal complaints to two Hospital board members asserting
the Hospital’s violation of unspecified “competitive bidding” laws.
Although the Hospital ultimately purchased the equipment favored by
Roberts (who claims no entitlement to participate in this decision-
making process), Roberts notified Hospital employees she intended
to pursue a whistleblower action against the Hospital. After
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filing suit, Roberts began soliciting Hospital employees for
information concerning this action during working hours in
violation of Hospital policy. Roberts received written warnings
for soliciting during working hours and for improperly offering
medical advice to patients. Failing to heed these warnings,
Roberts was terminated.
Roberts pursued administrative action with the Equal
Employment Opportunity Commission (EEOC) and ultimately filed the
instant suit, claiming, inter alia, a violation of her First
Amendment rights, her Due Process rights under the Fourteenth
Amendment, as well as violations of Title VII.
DISCUSSION
This court reviews the grant of summary judgment de novo,
using the same standard as the district court. Urbano v.
Continental Airlines, Inc., 138 F.3d 204, 205 (5th Cir. 1998).
A property right in maintaining employment may not be
deprived without due process. Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 538, 105 S. Ct. 1487, 1491 (1985).
However, no process is due where no protected property interest
exists. Bd. of Regents v. Roth, 408 U.S. 564, 569, 92 S. Ct. 2701,
2705 (1976). As the constitution does not itself create property
interests, a plaintiff claiming deprivation of a property right
must clearly establish existence of such a right. Bishop v. Wood,
426 U.S. 341, 344-47, 96 S. Ct. 2074, 2076-79 (1972). In
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ascertaining the existence of a property interest, we look to state
law. Id. at 344, 96 S. Ct. at 2077.
Texas courts strongly adhere to the employment at-will
doctrine. See, e.g., Sabine Pilot Serv. v. Hauck, 687 S.W.2d 733,
734 (Tex. 1985). Texas law imposes a strong presumption in favor
of at-will employment. Zenor v. El Paso Healthcare Sys., Ltd., 176
F.3d 847, 862 (5th Cir. 1999); Montgomery County Hosp. Dist. v.
Brown, 965 S.W.2d 501 (Tex. 1998). Where a plaintiff relies on an
employment policy, as opposed to an employment contract, to rebut
the presumption of at-will employment, the proffered employment
policy must contain explicit contractual terms altering the at-will
relationship in a meaningful way (e.g., through an employment
contract). Id. Texas courts are reluctant to imply deviation from
at-will employment from ambiguous employment policies. Id.
Based on Texas law and the employment policy at issue,
the district court rejected Roberts’s Due Process claims. Roberts
claims no employment contract. Instead, Roberts cites the follow-
ing provision from the Hospital’s bylaws as evidence of a
constitutional property interest in her continued employment:
The Board of Managers shall appoint, under terms
prescribed by the Board, a general manager to be known as
the Administrator of the hospital district. . . . He
shall supervise the work of all employees . . . and also
may dismiss any employee for good cause and shall
thereafter make a report to the Board of the dismissal.
This provision, however, has nothing to do with Roberts’s
employment. Instead, it discusses the responsibilities of an
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entirely different employee at the Hospital, the Hospital
Administrator. Roberts was not terminated by the Hospital
Administrator, but instead by the Director of Human Resources. The
district court correctly found that Roberts lacked a property
interest in her continued employment because she failed to
demonstrate that she was not an employee at-will, and therefore was
not entitled to any process prior to her termination.
Roberts’s First Amendment claims are similarly
unavailing. She raises two specific claims in this vein: (1) that
the Hospital’s policy prohibiting her from acting as a “patient
advocate”1 was impermissibly vague and impeded her First Amendment
rights; and (2) that the Hospital’s anti-solicitation policy
violated her First Amendment rights.
A statute, rule, or policy may be deemed impermissibly
vague for either of two discrete reasons: It fails to provide
people of ordinary intelligence a reasonable opportunity or fair
notice to understand what conduct it prohibits; or, it authorizes
or encourages arbitrary and discriminatory enforcement.
See Chicago v. Morales, 527 U.S. 41, 56-57, 119 S. Ct. 1849, 1859
(1999).
Roberts contends that Hospital policy preventing her from
interpreting x-rays or CAT scan results — i.e., diagnosing patients
— constituted an impermissibly vague policy. As a matter of law,
1
This title is an invention of Roberts. No term or condition of her
employment vests her with such a title.
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as the district court held, this claim is without merit. The
Hospital’s policy provides an individual of ordinary intelligence
fair notice that diagnosing patients is the realm of physicians,
and that staff are not to do so. Roberts, a non-physician,
radiologic technologist, had sufficient notice to conform her
conduct to clear Hospital policy.
Roberts’s second First Amendment claim rests on an
individual’s ability to speak on matters of public concern. Speech
addresses a matter of public concern when it is made primarily in
the speaker’s role as a citizen rather than as an employee
addressing solely matters of personal interest. Connick v. Myers,
461 U.S. 138, 148, 103 S. Ct. 1684, 1690-91 (1983). This court has
addressed First Amendment implications of policies similar to the
instant policy. In Southern Christian Leadership Conference v.
Supreme Court of the State of Louisiana, we held that a state
supreme court rule prohibiting non-lawyer students from
representing certain solicited indigent parties did not prevent
speech of any kind. 252 F.3d 781, 789-90 (5th Cir. 2001). If a
court finds that the speech touches upon a matter of public
concern, it must balance the plaintiff’s interest in making those
statements against “the interest of the State, as an employer, in
promoting efficiency of public services it performs through its
employees.” Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.
Ct. 1731, 1734-35 (1968).
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Roberts’s practice of providing diagnoses to patients
receiving x-rays and CAT scans, as well as giving unsolicited
diagnoses to doctors, did not touch on a matter of public concern.
The policy existed to protect patients from the unauthorized
practice of medicine; to term this a free speech limitation would
be a dangerous intrusion by the judiciary on the Hospital’s
prerogative to render medical services. See Connick, 461 U.S. at
146, 103 S. Ct. at 1690 (“[W]hen employee expression cannot be
fairly considered as relating to any matter of political, social,
or other concern to the community, government officials should
enjoy wide latitude in managing their offices, without intrusive
oversight by the judiciary in the name of the First Amendment.”).
Moreover, we agree with the district court that even if Roberts
could demonstrate her speech touched on a matter of public concern,
the Pickering balancing test requires ruling in the Hospital’s
favor. The Hospital was constitutionally justified in regulating
the time, place, and manner of Roberts’s speech where Roberts was
in no way qualified to provide diagnoses.
As to Roberts’s First Amendment claim concerning the
Hospital’s anti-solicitation policy, we agree with the district
court that her speech in this area was arguably a matter of public
concern. The goal of the Texas Whistleblower Act is to enhance
openness and protect those informing officials of government
wrongdoing. See TEX. GOV’T CODE ANN. § 554.002(a) (VERNON SUPP. 2004).
Nevertheless, under the Pickering balancing test, Roberts cannot
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prevail on these claims. Although Roberts had a right to make
inquiries and statements about possible violations of state law and
policy, the Hospital had a concomitant right to prevent such
solicitations during working hours in the workplace. Roberts could
have done her factfinding outside the Hospital on her own time; the
anti-solicitation policy represents a valid time, place, and manner
restriction. Cf. Connick, 461 U.S. at 148-53, 103 S. Ct. at 1691-
93 (holding that termination of a public employee who distributed
questionnaire did not violate the First Amendment, as most of the
questions related to inter-office policies and the conduct
threatened the agency’s institutional efficiency). For these
reasons, the district court properly awarded Appellees summary
judgment on all of Roberts’s First Amendment claims.
In considering a Title VII claim, unless direct evidence
of discrimination exists, a court must utilize the three-step
analysis first enunciated in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-05, 93 S. Ct. 1817, 1824-25 (1973). Under this
formula, a plaintiff must first establish a prima facie case of
discrimination. If the plaintiff makes a prima facie case, the
employer can rebut the claim by offering a legitimate, non-
discriminatory reason for the employment decision. Bodenheimer v.
PPG Industries, Inc., 5 F.3d 955, 957 (5th Cir. 1993). If the
defendant succeeds, the court moves to the third step of the
analysis, where the plaintiff bears the burden to prove that the
reasons offered by the defendant are pretextual. Id.
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Additionally, a plaintiff may establish a Title VII
violation by demonstrating a hostile work environment. Harris v.
Forklift Sys., Inc., 510 U.S. 17, 22-23, 114 S. Ct. 367, 371
(1993). A prima facie case of a hostile work environment is
achieved by producing evidence that (1) she belongs to a protected
group; (2) she experienced unwelcome sexual harassment; (3) the
harassment was based on sex; (4) the harassment affected a “term,
condition or privilege” of employment; and (5) the employer knew or
should have known of the harassment and failed to take prompt
remedial action. See Shepherd v. Comptroller of Public Accounts
for the State of Texas, 168 F.3d 871, 873 (5th Cir. 1999).
Because Title VII addresses only “ultimate employment
decisions,” Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995),
Roberts failed to state a prima facie case because the “lead tech”
job did not constitute a new position — it required identical hours
and received identical pay. Additionally, even assuming the “lead
tech” job was considered a new position, the Hospital put forward
valid, non-discriminatory reasons (namely, that Roberts was not
suited for the job as she did not get along with others well, and
that the person hired had superior credentials) that Roberts is
unable to rebut with competent summary judgment evidence.
Similarly, Roberts failed to adduce any material issue of
triable fact connecting her EEOC complaint with her valid
termination, so her Title VII retaliation claim also fails under
McDonnell-Douglas. Based on the numerous valid reasons for her
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termination, and the dearth of evidence demonstrating any sort of
pretext for that termination decision, Roberts fails on this claim
as well. Cf. Chancy v. New Orleans Public Facility Management,
Inc., 179 F.3d 164, 168 (5th Cir. 1999) (discussing the very high
standard a plaintiff must meet once an employer articulates a
rational justification for the termination).
The judgment of the district court is AFFIRMED.
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