James v. City of Houston TX

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

m 01-20979 _______________

ANDREW B. JAMES,

Plaintiff-Appellant,

VERSUS

CITY OF HOUSTON, TEXAS; LEE P. BROWN, MAYOR; MARY DESVIGNES-KENDRICK,

Defendants-Appellees.

_________________________

Appeal from the United States District Court for the Southern District of Texas (00-CV-2594) _________________________ September 12, 2002

Before SMITH and BENAVIDES, Circuit The district court held that Andrew James Judges, and FITZWATER, District Judge.* had failed to provide summary judgment proof that the defendants (1) fired him for his consti- JERRY E. SMITH, Circuit Judge:** tutionally protected speech or (2) deprived him of due process. We affirm on the first claim because the defendants inevitably would have * terminated James regardless of the content of District judge of the Northern District of Texas, sitting by designation. ** ** Pursuant to 5TH CIR. R. 47.5, the court has (...continued) determined that this opinion should not be pub- lished and is not precedent except under the limited (continued...) circumstances set forth in 5TH CIR. R. 47.5.4.

his speech. We affirm on the second for sub- Ward. Construction was scheduled to begin in stantially the same reasons given by the district late spring or summer of 1998. During early court. 1998, James Douglas, then president of Texas Southern University (“TSU”), began discus- I. sions with the Third Ward Redevelopment We consider the summary judgment record Council and the Houston Independent School in the light most favorable to James.1 The City District about joining with Houston to build a of Houston employed him as assistant director baseball complex next to the planned Third of the Administrative Support Division of the Ward MSC. The city held a town hall meeting Department of Health and Human Services on May 9, 1998, during which a Third Ward (“DHHS”). He coordinated the city’s ac- community leader proposed to Mayor Brown quisition, development, and operation of that the Third Ward MSC be expanded to Multi-Service Centers (“MSC’s”), which the include the proposed joint-use baseball com- complaint describes as “community facilities at plex. The expansion would require moving the which citizens can receive information and MSC building approximately 155 feet. services.” James opposed the expansion. According In November 1996, James purchased resi- to his testimony, he thought expansion would dential property in the Third Ward, at 3024 further delay the completion of the Third Ward Holman. The owners signed quitclaim deeds MSC. James voiced his opposition at various transferring their total interest to James, who community and department meetings. He recorded the deeds in Harris County. The could not identify precisely the various oc- original owners and James contracted to give casions at which he expressed opposition, but the three original owners 82% of the sales pro- he specifically recalls sharing his concerns with ceeds if James sold the property within ten Mary desVignes-Kendrick, the director of years. The contract terminates by its own DHHS, Earl Travis, James’s immediate su- terms in November 2006, presumably leaving pervisor, and at various community meetings. James with ownership of the real property and no further obligations to the original owners. As a follow-up to the town hall meeting, a As an assistant director, James was required to community gathering was organized to discuss report all personal financial holdings, but he the topic on June 11, 1998. The next day, failed to report 3024 Holman on his financial James and other city employees physically disclosure statement filed in October 1997. walked the land encompassed by the proposed expansion. According to the defendants, At work, James concentrated on planning James “even then, failed to disclose his owner- the development of an MSC for the Third ship of the very property they walked on.” James did not disclose his ownership interest until early July 1998. According to des- 1 We lift our statement of the facts from the Vignes-Kendrick, she immediately instructed district court’s thorough memorandum and opinion. James to recuse himself from the development James himself incorporated these facts into his of the Third Ward MSC. brief, so we can safely assume that the court successfully recited them in the light most favor- Brown then postponed construction and able to James.

authorized a feasibility study of the proposed financial disclosure statement. expansion. James contends that Brown decid- ed in July or August 1998 that changes would Following the investigation, desVignes- be made to the plans for construction of the Kendrick recommended James’s demotion to Third Ward MSC. The defendants claim that, deputy assistant director. She notified James after being asked to divorce himself entirely that she had “complete[ly] lost trust and confi- from the Third Ward MSC project, James at- dence in [his] judgment in [his] current posi- tended at least one community meeting and tion.” She listed, as supporting reasons, obtained a copy of the confidential report on James’s tardy disclosure of property owner- the project’s feasibility. ship and his failure to recuse himself when she so requested. The letter also notified James Once James realized the city was abandon- that he was scheduled for a meeting at which ing the original plans in favor of expansion, he he and his representative could discuss the al- hired an attorney to represent him in the con- legations and recommendation. James and his demnation proceedings. Houston appraised attorney attended the meeting on November 4, James’s property at $117,899 and offered him 1999. that sum in December 1998. The summary judgment evidence showed that James never Based on James’s response to the allega- accepted the offer but does not reveal why. tions, at the meeting, desVignes-Kendrick de- cided that the city should terminate, rather In February 1999, Brown initiated an in- than demote, him. She issued another notice vestigation into whether James had acted il- letter outlining her recommendation and legally or improperly in connection with his scheduling a meeting with him and his attor- purchase of 3024 Holman or the expansion ney. The allegations included the additional proposal. DesVignes-Kendrick reassigned charge that James had abused his power as James to work at home with full pay and supervisor by asking an employee to notarize benefits pending the outcome of the investiga- the quitclaim deeds outside the presence of the tion by the Office of the Inspector General signatories. She also cited concerns that sur- (“OIG”). faced during the meeting about his lack of candor and judgment, including his continued Concurrently, on August 18, 1999, a grand refusal or inability to perceive and recognize jury considered evidence of James’s criminal the potential conflicts of interest. James ad- wrongdoing and declined to indict. Within a mits attending the termination meeting on couple of weeks, the OIG issued its report, March 30, 2000, with his attorney, but denies concluding that James had no knowledge of that he had an opportunity to further explain expansion plains for the Third Wave MSC his actions. when he acquired the nearby property and did not use his influence to instigate the expansion. Brown received desVignes-Kendrick’s rec- The OIG found insufficient evidence to prove ommendations and met with her to discuss or disprove the charges of perjury and misuse them. Both defendants deny discussing any of of official information. The report did find James’s protected speech activities. Brown sufficient evidence to conclude that James agreed with her recommendation and issued a violated municipal ordinances by filing a false letter formalizing James’s termination, iterat-

ing the above allegations, and listed various sional allegations do not count as competent policies and ordinances violated by James’s evidence. Galindo v. Precision Am. Corp., actions. 754 F.2d 1212, 1216 (5th Cir. 1985). The nonmovants must go beyond the allegations James appealed to the civil service commis- contained in their pleadings and identify spe- sion, which held a hearing and permitted James cific facts creating a genuine issue worthy of to present witnesses and exhibits. The com- trial. Anderson, 477 U.S. at 248-49.2 mission denied James’s appeal on June 23, 2000. James sued in state court, and the city Title 42 U.S.C. § 1983 allows James to sue removed to federal court. James alleged for alleged violation of constitutional rights violations of his due process and free speech and requires him to allege and prove (1) that rights, similar claims under the Texas Consti- an individual acting under the color of state tution, and a state claim to review the civil law (2) violated one of his federal constitu- service commission’s decision. tional or statutory rights. Doe v. Rains County Indep. Sch. Dist., 66 F.3d 1402, 1406 By agreement, the case was assigned to the (5th Cir. 1995). The individual defendants magistrate judge (“the district court” or “the have a qualified immunity defense to such court”). Defendants filed a motion for sum- claims, Hope v. Peltzer, 122 S. Ct. 2508 mary judgment, which the court granted on the (2002), while James must prove that the city’s federal claims. The court remanded the state policy caused the violation of his constitutional claims to state court. rights, Brown v. Bryan County, Okla., 219 F.3d 450, 457 (5th Cir. 2000). II. We review a summary judgment de novo. Because we resolve this case by deciding Int’l Shortstop, Inc. v. Rally’s, 939 F.2d 1257, the scope of James’s constitutional rights, we 1263 (5th Cir. 1991). Summary judgment is need not reach either the qualified immunity or appropriate if the movant shows the absence municipal policy issues. We first address of a genuine issue of material fact. Anderson James’s claim that defendants discharged him v. Liberty Lobby, Inc., 477 U.S. 242, 248 in retaliation for his exercise of the First (1986). The movant should do so by inform- Amendment right to free speech. ing the court of the motion’s basis and identi- fying portions of the record to highlight the absence of a factual dispute. Id.. After the 2 movant identifies a deficiency in proof, the Defendants argue that the district court has nonmovant must present record evidence es- discretion to resolve factual questions at summary tablishing each o f the challenged elements of judgment in a nonjury case. We need not reach this question, because we can affirm under FED. R. its case for which it will bear the burden of CIV. P. 56’s more lenient standard. As we have proof at trial. Topalian v. Ehrman, 954 F.2d noted, our circuit precedent conflicts on whether 1125, 1132 (5th Cir. 1992). the court may apply a different standard at sum- mary judgment in a nonjury case. Phillips Oil Co. The nonmovant can point to depositions, v. OKC Corp., 812 F.2d 265, 273 n.15 (5th Cir. affidavits, or any other competent evidence. 1987). Even the cases that permit the court to Int’l Shortstop, 939 F.2d at 1263. Conclu- apply a different standard diverge over which standard it should apply. Id.

III. the protected speech.3 The evidence may be James must prove four elements to establish circumstantial: For example, where a school a First Amendment claim: (1) speech touching teacher sent a letter to the superintendent, on a matter of public concern, (2) that his published a letter to the editor in the local interest in speaking outweighed the city’s paper reflecting the same views, and repeated interest in efficiency, and (3) an adverse them yet again at a school board meeting, we employment action (4) in retaliation for his. found she had created a fact question about Kennedy v. Tangipahoa Parish Library Bd. of whether an intermediate supervisor knew of Control, 224 F.3d 359, 366 (5th Cir. 2000). If her protected speech. Tompkins v. Vickers, 26 James establishes that his protected speech F.3d 603, 609 (5th Cir. 1994). was a substantial or motivating factor in the adverse employment decision, the burden Propinquity between the protected speech shifts to the city, which may prove that it and the adverse employment action, however, discharged him for another reason. Mt. Heal- is not enough. Beattie, 254 F.3d at 605 & thy City Sch. Dist. Bd. of Educ. v. Doyle, 429 n.18. The plaintiff must provide proof that the U.S. 274, 287 (1977). In this appeal, the par- supervisor was aware or likely to be aware of ties dispute only the causation element. the speech. Supra note 3. Absent any direct or circumstantial proof of awareness, we have James points to Branton v. City of Dallas, considered the supervisor’s testimony of ig- 272 F.3d 730, 739 (5th Cir. 2001), in which norance conclusive. Beattie, 254 F.2d at we stated that “[i]t is for a jury to resolve any 603-04. remaining factual disputes as to whether plaintiff’s protected speech was a substantial The district court held that James had not or motivating factor in the adverse presented sufficient evidence to show that employment decision.” Our statement in Brown had knowledge of James’s opposition Branton, however, was conditionalSSwhere to expansion. James does not offer any real there is a genuine dispute over a material fact, evidence that Brown knew. James did, the jury should resolve it. The motion for summary judgment tests whether such a 3 dispute exists by requiring the person who E.g, Beattie v. Madison County Sch. Dist., bears the burden of proof to point to record 254 F.3d 595, 604 (5th Cir. 2001) (“Without a evidence supporting each element of his claim. showing that the board had actual knowledge of the E.g., Topalian, 954 F.2d at 1131-32. In this alleged improper basis of Jones’s and Acton’s appeal, we must examine what summary recommendation, the board cannot be held liable judgment proof our precedent requires to for the alleged retaliation.”); Fowler v. Smith, 68 establish a triable, First Amendment retaliation F.3d 124, 127 (5th Cir. 1995) (“[D]irect evidence in proving illegitimate intent is not required to claim. avoid summary judgment in unconstitutional re- taliation claims; circumstantial evidence will suf- We repeatedly have held that the plaintiff fice.”) (citation omitted). See Price v. Brittain, must present direct or circumstantial evidence 874 F.2d 252 (5th Cir. 1989) (“[T]he employee showing that the supervisor who made the ad- bears the initial burden of demonstrating that his verse employment decision had knowledge of speech was constitutionally protected and that it was a ‘substantial’ or ‘motivating’ factor in the termination decision.”).

however, offer some circumstantial evidence because he is elected, is not subject to the nor- that desVignes-Kendrick knew of his mal procedures for the hiring and firing of oth- opposition and recommended his termination. er city employees. The failure to report, He pointed to evidence that desVignes- standing alone, justifies James’s dismissal re- Kendrick supported expansion. She gardless of the content of his speech. He fails contradicted that evidence in her affidavit, but to point to sufficient summary judgment to his impeachment might suffice to show create a fact question that his protected pretext. This is a close and difficult question speech, independent of his failure to disclose that we need not decide. the conflict of interest, led to his discharge.

Under Mt. Healthy, 429 U.S. at 287, an James argues that because he spoke out employer that would have reached the same against expansion, he did not have a conflict of decision as to an employee’s discharge in the interest. This argument fundamentally mis- absence of protected speech is not liable for understands the importance of disclosure. The retaliating against the employee. Defendants city has an interest in passing prophylactic satisfied their burden of showing that the city measures so that it at least has knowledge of would have discharged James anyway.4 James any personal financial holdings affected by does not dispute that he failed to report the municipal decisions. The city has a legitimate real property on his financial disclosure forms. interest in avoiding both corruption and the The OIG report concluded that his failure to appearance of impropriety, and comprehensive report was material, false, misleading, and vio- disclosure obligations are rationally related to lated a municipal ordinance. that interest.

James argues that Brown himself failed to James oversimplifies the potential conflict disclose some financial dealings, but Brown, of interest. His brief belabors the most obvious conflict: Because he owned property necessary for the expansion, he had an 4 To obtain summary judgment, “if the movant incentive to push for expansion so the city bears the burden of proof on an issue, . . . he must would buy his property. The conflict of establish beyond peradventure all of the essential interest easily could cut in the other direction, elements of the claim or defense to warrant judg- however. ment in his favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). We have granted For example, James may have intentionally summary judgment previously where the employer purchased property adjacent to the MSC to has demonstrated that no material fact question speculate in the value that the MSC would add exists about whether the employer would have dis- to the property in the neighborhood. If he es- charged the employee for an unrelated reason. timated that value as greater than the market Benningfield v. City of Houston, 157 F.3d 369, 376 (5th Cir. 1998) (concluding that evidence in- had estimated, then he could make a profit, dicated that employee was given a medical dis- and the fair market value established in a con- charge as the result of “an independent psychiatric demnation proceeding would not reflect that evaluation”); Brady v. Houston Indep. Sch. Dist., value. Thus, he would have recommended 113 F.3d 1419, 1424-15 (5th Cir. 1997) (accepting against expansion, even if it was in the city’s employer’s proof of employee’s deficient best interests. performance).

Alternatively, James stood to gain only him of a constitutionally protected interest 18% of the house’s sale proceeds if he sold (2) without adequate procedures. Cleveland immediately in a condemnation proceeding. If Bd. of Educ. v. Loudermill, 470 U.S. 532, he could retain the property for ten years, he 538, 541 (1985). James argues that additional would realize 100% of the sale price. The dif- state procedures are constitutionalized as part ference in his individual gain provides a pow- of the due process minimum; he also avers that erful incentive to avoid expansion. We defendants provided him with process that fell provide these illustrations not to demonstrate below the independent, constitutional that James had an actual conflict of interest, minimum. We dismiss each argument in turn. but only to show that conflicts of interest are complicated, and the city has a strong interest A. in disclosure requirements to prevent actual James argues that the district court erred by and apparent conflicts. ignoring a Texas Court of Appeals opinion that requires the employer to bear the burden Disentangling James’s speech from the rea- of proof in a civil service proceeding. See son for his discharge is difficult; the two are Dallas County Civil Serv. Comm’n v. Warren, interrelated. Regardless of his views on the 988 S.W.2d 864, 871 (Tex. App.SSSan expansion, however, his financial interest was Antonio 1999, no pet.). He contends that so closely associated with the proposed Fifth Circuit precedent requires the federal expansion that the city would have terminated court to incorporate these additional state him regardless. procedures into the federal, constitutional minimum. His explanation misunderstands the James has presented evidence that Brown state court decision and the nature of the and possibly desVignes-Kendrick supported federal system. expansion, but he has not presented a shred of summary judgment evidence that they would In Warren, id. at 870-71, the court held have terminated him for this reason; that the federal Constitution’s Due Process defendants already had a persuasive reason to Clause required the employer to bear the end his employment. As explained in Mt. burden of proof in the civil service Healthy, a misbehaving employee should not commission’s post-termination hearing. The be able to insulate his wrongful behavior by court did not describe additional procedures engaging in protected speech. 429 U.S. at guaranteed by the state constitution, state 286. The summary judgment evidence statute, state regulation, or even internal sufficiently demonstrates that the city “would employment policies. Id. Even if state law have reached the same decision as to” James’s could augment the procedures required by discharge “in the absence of protected federal due process, Warren does not speech.” Id. at 287. We now turn to James’ represent state law; it is a state court’s procedural due process claim. interpretation of federal law that federal courts have no obligation to follow. At most, it has IV. only persuasive force. To state a claim for deprivation of due pro- cess, James must create a genuine issue of Courts sometimes look to state law when material fact that (1) the defendants deprived defining the scope of protected liberty

interests, but state law does not generally is not Texas law, and Texas law does not establish t he constitutionally required define the scope of procedures guaranteed by procedures.5 James cites Ferguson v. Thomas, the federal Constitution. 430 F.2d 852, 856 (5th Cir. 1970), for the proposition that “[w]hen published rules and B. regulations establish a particular statutory James argues that because the city afforded procedure for the termination of a teacher’s him inadequate pre-termination process, shift- employment, t hey may add to the ing the burden of proof to him in the civil ser- constitutional minimum.” Since Ferguson, vice commission’s post-termination hearing vi- however, we have realized that we need not olated due process. We balance three factors look to state law to determine the to determine wether a government has af- constitutionally-required procedures. 6 Warren forded constitutionally adequate procedures: (1) the private interest affected; (2) the risk of erroneous deprivation from current and 5 Drawing the line between state procedures proposed procedures; and (3) the comprehensive or absolute enough to create a pro- government’s interest. Matthews v. Eldridge, tectable liberty interest and those procedures that 424 U.S. 319, 335 (1976). do not give rise to such an interest is difficult enough. The Supreme Court has struggled most Under the first prong, James had a acutely with the question whether state regulations significant interest in continued employment. create a protectable liberty interest in the prison Loudermill, 470 U.S. at 543 (“We have context. Compare Hewitt v. Helms, 459 U.S. 460, frequently recognized the severity of depriving 471-72 (1983) (looking to state prison regulations a person of the means of livelihood.”). Under to determine that state law gave prisoner a the second prong, we find that the risk of protectable liberty interest but then to federal erroneous deprivation was minimal. In constitutional standards to determine minimum procedures) with Sandin v. Connor, 515 U.S. 472, Loudermill, the Court described the 481 (1995) (“[S]hifting the focus of the liberty constitutional requirements for state agencies’ interest inquiry to one based on the language of a decisions to terminate employees. Before particular regulation . . . encouraged prisoners to discharging an employee, public employers comb regulations in search of mandatory language must provide notice of the reason for on which to base entitlements to various state- discharge and an opportunity to respond. 470 conferred privileges.”). 6 6 McDowell v. Texas, 465 F.2d 1342, 1345-46 (...continued) (5th Cir. 1972) (en banc) (“[E]ven an invalid or unless the conduct trespasses on federal improper discharge from such an office, constitutional safeguards, there is no constitutional unaccompanied by some more precise claim of deprivation.”); Richard A. Fallon, Daniel J. federal right than a general claim of lack of due Meltzer, & David L. Shapiro, eds., HART AND process, is not the sort of deprivation of a right, WECHSLER’S THE FEDERAL COURTS AND THE privilege or immunity which is secured by the FEDERAL SYSTEM 559 (Foundation 4th ed. 1996) Constitution of the United States . . . .”); Levitt v. (“[I]f the case does involve a ‘property’ or ‘liberty’ Univ. of Tex. at El Paso, 759 F.2d 1224, 1230 interest (whether rooted in state or federal law), (5th Cir. 1985) (“Such action may constitute a federal law governs the questions (i) whether there breach of contract or violation of state law, but has been a deprivation, and (ii) if so, whether due (continued...) process was afforded.”).

U.S. at 545-46.7 James argues that he should not have been forced to bear the burden of proof in front of The state need not hold a full evidentiary the civil service commission, but this hearing. Id. 8 The hearing “need not represented only one of several levels of definitively resolve the propriety of the review. And not a single federal court of discharge”; instead, it should serve as “an appeals has held that shifting the burden of initial check against mistaken decisions.” Id. proof in such a review proceeding violates the “The opportunity to present reasons, either in Fourteenth Amendment’s Due Process person or in writing, why proposed action Clause.10 should not be taken is a fundamental due process requirement.” Id. at 546. Although we respect the decision of the Texas Court of Appeals in Warren, we, like James does not contest that he had notice of the city’s complaints against him. He also had two opportunities to rebut the charges that 9 (...continued) formed the basis for his discharge. Counsel included in the Matthews balancing test. Louder- represented him at both meetings. mill, 470 U.S. at 546-57. 10 At the first meeting, James attempted to We recently avoided the question whether the explain his failure to disclose his ownership of burden of proof could constitutionally be shifted in the property. At the seco nd meeting, James an attorney disciplinary proceeding. Sealed avers that he did not have an opportunity to Appellant 1 v. Sealed Appellee 1, 211 F.3d 252, 255 (5th Cir. 2000). The other courts of appeals, respond, but the city had already unveiled however, have upheld burden shifting in a variety most of its charges at the first meeting. After of public employment cases. Benavidez v. his termination, the civil service commission Albuquerque, 101 F.3d 620, 626-27 (10th Cir. reviewed his claim for a full day and 1996) (holding that government could considered both testimonial and documentary constitutionally shift burden in post-termination evidence.9 proceedings because formal pre-termination proceedings existed); Chung v. Park, 514 F.2d 382, 386-87 (3d Cir. 1975) (finding hearing 7 “[I]n employment termination cases, the adequate where employee bore the burden of minimum pretermination procedural protections showing termination was “arbitrary, capricious or required by the Fourteenth Amendment are discriminatory”); McTaggart v. Sec’y of the Air (1) written notice of the reasons for the termination Force, 458 F.2d 1320, 1323 n.4 (7th Cir. 1972) and (2) an effective opportunity to rebut those (finding that United States could shift burden in reasons.” Davis v. Mann, 882 F.2d 967, 974 (5th military disciplinary proceeding that determined Cir. 1989). ultimate rank and pay upon retirement). See Papapetropoulous v. Milwaukee Transp. Servs., 8 Inc., 795 F.2d 591, 601 & n.15 (7th Cir. 1986) For example, the state need not provide an opportunity for oral testimony at the pretermination (finding that arbitrator could use either clear and hearing. FDIC v. Mallen, 486 U.S. 230, 247 convincing or preponderance standard when (1988). reviewing employee’s claim); Boston v. Webb, 783 F.2d 1163, 1167 (4th Cir. 1986) (permitting shift 9 Post-termination procedures should be in burden of proof after finding that employee (continued...) lacked property interest in his job).

the district court, conclude that the federal courts have struck the correct balance. After the civil service commission denied his claim, James had a statutory right to seek review in state court, which he exercised. Although the district court declined to exercise jurisdiction over this state law claim after dismissing the federal claims, he may still seek a remedy in state court. These multi-layered formal procedures should sufficiently reduce the risk of erroneous deprivation.

Finally, the city and state have an interest in placing some limits on the procedures they guarantee through internal, civil service commission, and judicial review. The benefits of additional procedures would appear minimal, given the procedures already in place. James failed to create a fact question about whether his discharge conformed with due process.

AFFIRMED.