Cheryl STEADMAN; et al., Plaintiffs, Lisa Sheppard, Plaintiff-Appellee, v. The TEXAS RANGERS; et al., Defendants, Maurice Cook, Captain, Chief of the Texas Rangers, Defendant-Appellant.
No. 97-20862
United States Court of Appeals, Fifth Circuit
July 6, 1999.
The state trial court concluded that even if counsel‘s actions were in error, the result of the proceedings would have been different. Lamb has not shown that this conclusion involved an “unreasonable application” of clearly established federal law as determined by the Supreme Court. See
In Williams, the state court found that the defendant was not prejudiced by counsel‘s failure to present the testimony of family and friends regarding the defendant‘s troubled family history. The evidence would have opened the door for cross-examination regarding the defendant‘s drug and alcohol abuse, expulsion from school, and discharge from his job. The evidence would have had little mitigating effect against the evidence of the murder at issue in that case. See id. Similarly, Lamb cannot show that his proposed mitigating evidence of a non-violent history and troubled family life raises more than a mere possibility of a different outcome, and not the required “reasonable probability.” Ransom, 126 F.3d at 723. Given Lamb‘s confession to the Texas murder, the subsequent robbery and shooting of the female gas station attendant in Florida five days later, and especially given his statement to the authorities taking him into custody in Florida that he was glad they had “finally caught [him] before [he] killed somebody else,” we cannot say that there is a reasonable probability of a different outcome. See Carter, 131 F.3d at 465 (holding that given the defendant‘s confession to the murder of a service station attendant during a robbery, the court could not conclude that the testimony of character witnesses as to the defendant‘s reputation as a good and peaceful person would have sufficiently impressed the jury to avoid the death sentence).
CONCLUSION
Lamb has not made a substantial showing of the denial of a constitutional right. We therefore DENY his request for a COA.
John B. Lay, Susan Desmarais Bonnen, Austin, TX, for Defendant-Appellant.
Before POLITZ, EMILIO M. GARZA and STEWART, Circuit Judges.
CARL E. STEWART, Circuit Judge:
This case presents us with an intriguing question at the intersection of semantics and constitutional law. We must determine whether the First Amendment rights of a female applicant to the Texas Rangers (“Rangers“) were violated by Maurice Cook, the Chief of the Rangers (“Cook“), and, if so, whether Cook is entitled to qualified immunity. The twist to this case is that the applicant, Lisa Sheppard (“Sheppard“), while seeking to shoehorn supposed feminist beliefs into the constitutionally-protected rubric of political speech, concedes that she never verbally expressed these beliefs to Cook. Cook would have us hold, therefore, that he violated no First Amendment rights and that, even if he did, his actions should be
BACKGROUND
I. Facts
The Texas Rangers were organized and legally recognized in 1835. During the first one hundred years of their existence, they were eulogized as the white knights of the American Southwest.1 In 1935, Texas created the Department of Public Safety (“TDPS“), which combined the Texas Rangers with the Highway Patrol. The TDPS is in turn under the guidance of the Public Safety Commission (“PSC“), whose three members are appointed by the Governor of Texas; the PSC‘s duties include the formulation of plans and policies for the TDPS and the supervision of the TDPS.
As of 1993, the Texas Rangers had never selected a woman for membership. Following increased pressure from both inside the Texas government and without, the PSC decided to hire female Rangers for the first time, a move which generated no small amount of controversy among the Rangers.
Sheppard joined the TDPS as a commissioned officer in 1983 and made known her desire to become a Ranger someday. According to TDPS policy, an applicant to the Rangers must have served eight years in the TDPS (or its equivalent). At the end of that probationary period, the applicant must take a written exam. If the applicant‘s score on the written exam is high enough, he or she will be presented to an oral review board. Each member of the review committee scores the applicant on a scale of 0-500, with the top overall scorers becoming Texas Rangers.2
By 1992, Sheppard had served her probationary period, and she took the written exam for the Rangers; her score was high enough to allow her to proceed to the oral interview.3 Sheppard elected not to proceed through the interview process in 1992, however, after advice from several Rangers that it was not yet time for a woman to join the Rangers. Instead, Sheppard accepted a promotion to the rank of Criminal Investigator, believing that a year‘s experience in that position would help her when she re-applied for the Rangers the following year. No woman was made a Ranger in 1992.
In 1993, Sheppard again took the Rangers’ written exam. This time, her score was among the highest of the individuals taking the exam, and she again qualified for review by the committee. After this second test, a number of individuals, including Ranger Lieutenant Ray Cano (“Cano“) told Sheppard that she was not
In June 1993, Sheppard appeared before the oral interview board.4 Cook, the Senior Ranger Captain, chaired the six-member interview committee. The day before Sheppard‘s interview, another woman, Cheryl Steadman (“Steadman“) appeared before the board; following Steadman‘s interview, and in direct contravention of Rangers’ policy, Cook insisted on reviewing the scores that Steadman had received from Cano and another committee member, Ranger Lieutenant Earl Pearson. He made numerous remarks, both disparaging and laudatory, about the various candidates, and he eventually told Cano and Pearson to change their scores because he wanted Steadman and another woman, Marrie Garcia, to be selected as Rangers.5 Cano protested Cook‘s action to the extent that he suggested that Sheppard would make the best candidate of the women being discussed. Cook responded to Cano by saying that “we‘re not going to promote Lisa ... [because] Lisa‘s too independent and she‘s too opinionated.” As a result of Cook‘s pressure, both Cano and Pearson, knowing that they were violating procedure, changed the scores for Steadman so that she would be selected instead of Sheppard.
At Sheppard‘s interview the next day, some members of the committee, including Pearson, treated her with veiled contempt. Nonetheless, Sheppard was surprised to learn later that she had been an unsuccessful candidate for transfer to the Rangers; Steadman and Garcia were selected. She later discovered that Cano had given her the highest score of any member of the committee (465 out of a possible 500 points); another member gave her her lowest score (250), while Cook gave her the second-lowest score (275). Because Sheppard‘s average interview score was lower than that of nine other applicants, she was not offered a position with the Rangers. Colonel James Wilson, the head of the TDPS, ratified the decisions made by Cook and the committee without having any direct knowledge of why Sheppard was not selected.
Sheppard contends that her low average score was due to retaliation by Cook motivated by his hostility toward her for her protected free speech activities, including her political beliefs, expressions, and associations. In support of this allegation, Sheppard adverts to another remark by Cook, not made during the selection process, that Sheppard was black-balled because she was a “woman‘s libber.” Bruce Casteel, the Senior Ranger Captain who replaced Cook, and Ron Stewart, another Ranger officer, both testified in deposition that Cook made this remark.6
Sheppard has never denied that she believes in the equality of women, and the fact that she was one of the first women to apply to the Texas Rangers suggests that she does believe that women can and should serve in historically-male positions. The record below does not show, however, that Sheppard ever engaged in any free speech activity of either a public or a private nature or that any committee member relied upon or even heard Cook‘s “woman‘s libber” comment and impermis-
II. Course of Proceedings and Disposition Below
Sheppard brought this lawsuit against the Texas Department of Public Safety (“TDPS“) and Cook claiming under
DISCUSSION
I. The Exercise of Appellate Jurisdiction
Before reaching the merits of this case, we must first satisfy ourselves that the appeal is properly before us. Sheppard would have us avoid a discussion of the merits of Cook‘s appeal by finding that the appeal concerns the sufficiency of the evidence surrounding Sheppard‘s claim rather than the determination of an issue of law. We are unpersuaded by this argument and thus conclude that we possess jurisdiction to accept this appeal.
The denial of Cook‘s motions to dismiss and for summary judgment, and the district court‘s refusal to accept his defense of qualified immunity, were based on judgments of law. Appellate jurisdiction is proper under the collateral order doctrine where the district court‘s ruling was based on an issue of law. See
In an earlier case involving the same issue—appeal of a denial of qualified immunity—we held that the collateral order doctrine permits an interlocutory appeal in circumstances such as these, even though we normally would not hear an appeal from a denial of summary judgment. See Wren v. Towe, 130 F.3d 1154, 1157 (5th Cir. 1997). Even the existence of disputed issues of material fact does not preclude review where the district court‘s actions were based in law. See Hare v. City of Corinth, 135 F.3d 320, 324 (5th Cir. 1998); Wren, 130 F.3d at 1157. Indeed, ”Johnson permits petitioner to claim on appeal that all of the conduct which the District Court deemed sufficiently supported for the purposes of summary judgment met the Harlow [v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)] standard of objective legal reasonableness.” Wren, 130 F.3d at 1157 (quoting Behrens v. Pelletier, 516 U.S. 299, 313, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996)) (internal quotation omitted); see also Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 531 (5th Cir. 1997).
We are satisfied that the district court‘s action in this case was based in law; taking this appeal comports with our prior rulings in this area and with the accepted understanding of the collateral order doctrine, and we thus recognize our jurisdiction.
II. The District Court‘s Order
On September 22, 1997, the district court entered an order denying Cook‘s motions for summary judgment and to dismiss. It is not clear from the face of the order whether the district judge based his decision on
Pursuant to our review of the record in this case, we are persuaded that the district court issued its order on the basis of
After carefully reviewing the record, we are persuaded that, in denying the motions, the district court considered information beyond the pleadings, commenting as he did that Plaintiff‘s “summary judgment evidence” was “sufficient ... to establish a genuine issue of fact concerning her first amendment claim against Cook.” Id. We thus consider this appeal as protesting the denial of summary judgment.
III. Standard of Review
We exercise de novo review of the grant of a summary judgment.7 See Wenner v. Texas Lottery Comm‘n, 123 F.3d 321, 324 (5th Cir. 1997). Summary judgment shall be entered in favor of the moving party if the record, taken as a whole, “show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
IV. The First Amendment Claims8
To establish a
Cook argues that because Sheppard did not “speak out” on issues of public concern, she has no First Amendment claim. He reasons that, even if he thought Sheppard were a “woman‘s libber,” he maintained this belief not because of anything Sheppard ever said, or because of any groups to which she belonged, but because of her comportment or for other non-speech reasons. As such, he contends, his
Although Cook‘s contention that Sheppard never verbally espoused feminist ideals or advertised her membership in feminist political organizations is seductive, we do not dismiss out of hand Sheppard‘s claim that she was subjected to retaliation for First Amendment activities. “Speech,” as we have come to understand that word when used in our First Amendment jurisprudence, extends to many activities that are by their very nature non-verbal: an artist‘s canvas, a musician‘s instrumental composition, and a protester‘s silent picket of an offending entity are all examples of protected, non-verbal “speech.” See, e.g., National Endowment for the Arts v. Finley, 524 U.S. 569, ---, 118 S.Ct. 2168, 2175 (1998) (accepting as a first principle that “artistic speech” qualifies for First Amendment protection); R.A.V. v. City of St. Paul, 505 U.S. 377, 391, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (finding constitutional non-verbal “[d]isplays containing abusive invective“); see also Madsen v. Women‘s Health Ctr., Inc., 512 U.S. 753, 790, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994) (Scalia, J., concurring in part and dissenting in part) (listing as forms of persuasive speech “singing, chanting, praying, shouting, the playing of music ... from handheld boom boxes, speeches, peaceful picketing, communication of familiar political messages, [and] handbilling“). Requiring Sheppard verbally to espouse her political views in the workplace in order to receive the protection of the First Amendment would constrain us in a way that we deem undesirable.
Indeed, the Supreme Court has never required that an individual “speak out” in order to find shelter under the First Amendment. Where lower-level government employees have been punished because of their political beliefs and associations, the Court has held that their First Amendment rights were violated. See Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990); Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). In each of those cases, the plaintiff suffered adverse consequences not because of anything they said, but because they were not members of a particular political party or organization. The Court found that “there is no requirement that dismissed employees prove that they, or other employees, have been coerced into changing, either actually or ostensibly, their political allegiance;” they must merely show that they were “discharged because they were not affiliated with or sponsored by” a particular party. Branti, 445 U.S. at 517. Following the same logic, if an employee is discharged because of her affiliation with a party, she also would be protected.10 In either case, the affected individual “will feel a significant obligation to support political positions held by [her] superiors, and to refrain from acting on the political views [she] actually held, in order to progress up the career ladder.” Rutan, 497 U.S. at 76.
Where a government employee has engaged in speech—either verbally or through such an association—we apply the balancing test that we enunciated in Click v. Copeland, 970 F.2d 106 (5th Cir. 1992). In Click, we concluded that a court must balance an employee‘s First Amendment rights with the employer‘s right to loyal and efficient service. Where no “countervailing considerations appear[] against the employees’ right to believe as they chose,” id. at 112, the employee‘s First Amendment rights should be given full weight.
Cook argues that, if we deem Sheppard‘s belief to constitute speech, she would nonetheless not merit protection because advocating gender equality is not a matter of public concern. Cf. Click, 970 F.2d at 112 (listing as a component of the balance whether the employees speech involved a matter of public concern). While one could debate whether an individual‘s belief in the equality of women and men is a matter of public concern, we are not called upon to decide this question because of the lack of record evidence that Sheppard expressed her views on this issue one way or the other.
Even assuming that the residue of the Click balancing test favored a finding that Sheppard engaged in speech activities, it is an understatement to say that her claim does not fall within an easily-cognizable free-speech paradigm. By never saying anything, Sheppard may only rely on the Supreme Court‘s political association jurisprudence to anchor her First Amendment claim. Unfortunately for her case, this foothold is decidedly narrow because Sheppard never produced any evidence showing an outward sign of her membership in a feminist organization or support—even tacit support—of a feminist agenda.11 Notwithstanding the fact that Cook thought she was a member of a political organization that he disdained and that Sheppard never denied these political beliefs, we cannot simply allow the case to proceed past summary judgment on the theory that Cook‘s actions on their face were an attempt to violate Sheppard‘s First Amendment rights. Cook‘s bad motive alone is insufficient under our case law to establish a First Amendment claim. See Jones v. Collins, 132 F.3d 1048, 1052-55 (5th Cir. 1998).
Based on our independent review, then, we are inclined to a different outcome than our learned colleague below. We sympathize with the district court‘s struggle through the maze of this close case and its search for a clarion dispute over material facts, but we ultimately believe that the case cannot proceed because Sheppard never placed into evidence any set of facts that would allow a reasonable jury to conclude that Cook violated her First Amendment rights. Instead, she has attempted to weave a garment of whole cloth from disparate strands, but she has succeeded in fashioning only a piecemeal claim.
Sheppard‘s argument to this court had threshold appeal because the evidence is overwhelming that Cook acted unreason-
CONCLUSION
For the foregoing reasons, we conclude that Sheppard has not presented enough evidence to survive summary judgment, and that Cook‘s motion was therefore improvidently denied by the district court. We therefore REVERSE the judgment of the district court and RENDER judgment for Cook.
REVERSED AND RENDERED.
EMILIO M. GARZA, Circuit Judge, specially concurring:
I concur, but write separately to elaborate on the majority‘s statement that “[e]ven the existence of disputed issues of material fact does not preclude review where the district court‘s actions were based in law.”1 The statement simply stands for the proposition that we can consider an unsuccessful summary judgment motion that asserts qualified immunity when the defendant takes the genuine issues of material fact off the table—by accepting the plaintiff‘s version of the facts—and thereby leaves us with nothing to review but legal issues. See Behrens v. Pelletier, 516 U.S. 299, 313, 116 S.Ct. 834, 842, 133 L.Ed.2d 773 (1996) (”Johnson [v. Jones, 515 U.S. 304, 319, 115 S.Ct. 2151, 2159, 132 L.Ed.2d 238 (1995)] permits [the defendant] ... to ‘claim on appeal that all of the conduct which the District Court deemed sufficiently supported for purposes of summary judgment met the Harlow standard of objective reasonableness’ “); see also Colston v. Barnhart, 146 F.3d 282, 284 (5th Cir.) (discussing Behrens) (explaining the difference between “genuineness” and “materiality” in the context of qualified immunity), cert. denied, --- U.S. ---, 119 S.Ct. 618, 142 L.Ed.2d 557 (1998); Coleman v. Houston Independent School District, 113 F.3d 528, 536 (5th Cir. 1997) (Emilio M. Garza, J., specially concurring) (approving of the grant of summary judgment based on qualified im-
Accordingly, I concur.