*1 Bеfore HIGGINBOTHAM and SMITH, Susan Gerhart sued Edward Hayes, Glenn
Circuit Judges, and FALLON, District Goerke, James Hale, and William Staples fol- Judge. [*] lowing her termination from the University of Houston’s Research Institute for Computing JERRY E. SMITH, Circuit Judge: and Information Systems (“RICIS”). The de-
fendants appeal the denial of thеir motion for summary judgment on the basis of qualified [*] District Judge of the Eastern District of immunity. Concluding that Gerhart did not Louisiana, sitting by designation.
allege sufficient facts to create a genuine issue as to why she should be retained. Gerhart did of material fact as to her claim оf retaliatory not dispute that the funding for RICIS had discharge in violation of the First Amendment declined precipitously during her tenure; she or of violation of procedural due process, we admitted that she had failed to secure any new reverse and render judgment in favor of funding for RICIS in the two years she was the defendants. director, and she subsequently admitted that it
was appropriate for Hayes to link his I. assessment of her job performance to her RICIS was founded in 1986 through a success in diversifying the funding sources for coopеrative agreement between the University RICIS.
of Houston and the Lyndon B. Johnson Space
Center jointly to manage an integrated Gerhart appealed her dismissal program of research in advanced data administratively within the university, which processing technology for the space progrаm. assembled a grievance hearing panel of one Through the agreement, a portion of the faculty member and two administrators, all of research support funding provided to RICIS whom were chosen by a human resources by the Space Centеr was retained by the director without any influence by defendants. university’s Finance and Administration After hearing testimony and receiving Department to cover indirect costs associated documents from Gerhart, the panel upheld the with the support of RICIS. termination. President Staples received and
accepted the panel’s recommendation. In April 1993, Gerhart was hired as the di-
rector of RICIS to diversify and increase the Gerhart alleged, inter alia , claims pursuant sources of RICIS funding. Hale was vice- to 42 U.S.C. § 1983, asserting that defendants president for administration and finance, and had violated her First Amendment right to free Hayes was senior vice-president and provost. speech by terminating her in retaliation for her Gerhart questioned, as excessive, the amount complaints аbout RICIS’s allocation of of discretionary funding the university funding and had violated her procedural due retained. Specifically, she complained to Hale process rights guaranteed by the Fifth and and Hayes that the finance and administration Fourteenth Amеndments. The defendants funds should be reallocated for use in RICIS’s moved for summary judgment on the basis of research program. She also voiced these con- qualified immunity. The district court denied cerns to other academic colleagues within the
university. Her cоmplaints ultimately had little impact, however; none of the defendants adopted her position or changed the allocation of funds. Gerhart argues, for the first time on appeal, that the defendants’ assertion of qualified immunity within one month of the date of trial is abusive and, as a result, that we should summarily dismiss the appeal. She points to the fact that at the time the In May 1995, Hayes notified Gerhart that summary judgment motion was filed, the her employment was being terminated, citing scheduling order in effect had closed discоvery and a lack of progress to broaden the funding base had closed the filing for dispositive motions. for RICIS. In the dismissal letter, Hayes in-
vited her to present any argument or evidence The defendants correctly point out, however,
(continued...) *3 the motion, concluding that material issues of tion for summary judgment on the ground that fact remained as to both claims. ‘genuine issues of material fact remain,’ the
court has made two distinct legal conclusions.
II.
First, the court has concluded that the issues of
Gerhart argues that we are without
fact in question are
genuine
.”
Colston
,
jurisdiction to hear this appeal because the
issues. She points to
Colston v. Barnhart,
146
More significantly, the
Colston
court noted
F.3d 282 (5th Cir.) (on petition for rehearing
the district court’s second legal conclusion
en banc),
cert. denied
,
court is free to review a district court’s Gerhart selectively quotes from Colston determination that the issues of fact in and overlooks its more important and relevant question are material.” Id.
discussion. In interpreting Behrens v. Pelle-
tier
,
fact, we “may have
to undertake a
cumbersome review of the record to determine
what facts the district court, in the light most
(...continued)
favorable to the nonmоving party, likely
that their motion was timely filed on the deadline
assumed.”
Behrens
,
underlying facts
to make our own
[2]
Gerhart also quotes
Lemoine v. New Horizons
determination on
both
genuineness and
Ranch & Ctr., Inc.
,
1999), in which we stated, in a qualified immunity
case, that “[w]e have appellate jurisdiction to re- view the district court’s decision dеnying summary judgment only to the extent it turns on an issue of law. Or said differently, our appellate jurisdiction legal standard on summary judgment. Here, whether the district court applied the correct Moreover, we have jurisdiction to consider does not allow us to reviеw that district court’s
factual findings.” Gerhart does not read enough of
Lemoine
, however, for that court actually held that,
See Hare v. City of Corinth
,
established constitutional right. Siegert v.
Gilley
,
requires notice and an opportunity to respond.
III.
See generally Cleveland Bd. of Educ. v. Lou-
Defendants argue that the district court in-
dermill
,
forded the opportunity to have an attorney
present at the administrative review panel. Furthermore, when she received the notice
of intent to terminate her employment, Gerhart The district court concluded that there was provided extensive documentation in an a material issue оf fact as to whether the de- attempt to rebut any criticism of her fendants had provided adequate notice of ter- performance. Hayes read her response. It is mination and an opportunity for Gerhart to be odd, then, that Gerhart still maintains that heard. The court did not identify what those although she received the letter, on its face issues of fact were, however, but instead fo- that letter gave no notice of any charges cused almost exclusively on justifying its con- against her that would support hеr termination. clusion that Gerhart held a constitutionally The undisputed facts simply do not support protected property interest in continued her assertion, and, as a result, no issues of fact employment. remain as to whether she received notiсe.
Regardless of the nature of Gerhart’s In addition, Gerhart argues that she did not have an opportunity to be heard, because she was not allowed an attorney at her (...continued)
determination of whether there are genuine issues
of material fаct. Our review of the legal issues in
For purposes of this appeal, the defendants
this appeal goes to the legal question of the correct
have conceded that Gerhart has a constitutionally
legal standard.”).
protected liberty interest in continued employment.
*5
administrative hearing.
[5]
She asserts that under
public employer’s interest in promoting
Texas law, a public employee is entitled to be
efficiency;” and (3) “the employee’s speech
represented by an attorney where termination
must have motivated the decision to discharge
of employment is at issue. What she fails to
the employee.”
Fowler v. Smith
,
process requires an attorney present at her
post-termination administrative review The district court concluded that there was hearing. The fundamental issue in due process “a fact question concerning whether Gerhart’s law is not whether state officials violated state expression of concern regarding allocation of law, but whether they provided the plaintiff RICIS funds constitutes protected speech and with the constitutional minima. [6] if so, whether her utterance of this speech was
the real reason she was terminated.” But the Gerhart has not set forth any facts court is mistaken. The question whether Ger- establishing that the defendants violated the hart’s expression is constitutionally protected constitutional due process minima of notice speech is a legal issue, not a factual one, and and an opportunity to be heard. See there is no dispute as to the content of that Loudermill. Therefore, the district court erred speech. Consequently, whether Gerhart’s in denying summary judgment on this claim. speech is a matter оf public concern is a
question that is appropriate for summary IV. judgment.
The defendants appeal the denial of their
In
Wallace v. Texas Tech Univ
., 80 F.3d
summary judgment motion on Gerhart’s First
1042, 1051 (5th Cir. 1996), we held that
Amendment claim. They contend that she has
“speech made in the role as employee is of
not set forth sufficient facts to establish the rе-
public concern only in
limited
cases: those
quired elements for determining whether a
involving
the report of corruption or
public employee has been discharged in
wrongdoing to higher authorities.” (Emphasis
retaliation for constitutionally protectеd
added.)
Gerhart relies on
Barnes v.
speech,
to-wit
, that (1) the employee’s speech
McDowell
,
being run inefficiently, as implying that public agency or official is corrupt.” On appeal, Gerhart does not renew her argument that the administrative review panel’s But even Barnes does not support Ger- members were biased. hart’s position, for that court opined that See FM Properties v. City of Austin , 93 F.3d 167, 174 (5th Cir. 1996) (“Converting alleged vio- lations of state law into federal due process claims improperly bootstraps state Constitution.”) (internal punctuation marks law into the “when a defendant has moved for summary judgmеnt, a plaintiff must present concrete evidence to support the allegation [of retaliation] in order to survive the motion.” Id. Gerhart has not done this: She sets forth no facts or allegations that she spoke out as a omitted) ( quoting Stern v. Tarrant County Hosp. citizen, rather than as an employee. Likewise, Dist. , 778 F.2d 1052, 1056 (5th Cir. 1985) (en banc)).
she has presented no evidence or allegations
that her speech involved the reporting of any
corruption or wrongdoing by the defendants.
The only logical inference from the facts presented is that Gerhart was speaking in her
role as an employee, and, consequently, her
expression was not a matter of public concern
and was not constitutionally protected speech.
Thus, the district court should have granted
summary judgment. [7]
The order denying summary judgment is REVERSED, and a judgment of dismissal is
RENDERED in favor of defendants.
Notes
[7]
See Wallace
, 80 F.3d at 1051 (upholding
summary judgment because plaintiff “failed to
allege facts, much less present evidence, sufficient
to constitute speech оn a matter of public
concern”).
Accord Barnes
,