Steadman v. Texas Rangers

• Decision Date: 06 July 1999
• Docket Number: No. 97-20862,97-20862
• Citation: 179 F.3d 360
• Parties: 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.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 360

179 F.3d 360

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.

Beatrice A. Mladenka-Fowler, Karen Susie Adams, Mladenka-Fowler & Associates, Houston, TX, for Plaintiff-Appellee.

John B. Lay, Susan Desmarais Bonnen, Austin, TX, for Defendant-Appellant.

Appeals from the United States District Court for the Southern District of Texas.

Before POLITZ, EMILIO M. GARZA and STEWART, Circuit Judges.

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 shielded by the doctrine of qualified immunity. The district court found genuine issues of material fact to exist and allowed the case to proceed past summary judgment. The court also found that Cook's violation of Sheppard's constitutional rights was not entitled to the protection of qualified immunity. After the most searching review, however, we disagree with the district court that Sheppard's views constitute something more than tacit, private beliefs. Ironically, even though Cook considered those beliefs when he worked to ensure that Sheppard would not be hired, we need not reach the question whether he is entitled to qualified immunity because we hold that he did not violate any of Sheppard's established rights. We therefore reverse the judgment of the district court and render judgment for Cook.

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 only the most qualified female applicant, but one of the most qualified of all applicants for a Ranger position in 1993. In addition, the Ranger assigned to investigate Sheppard's background found her qualified to become a Ranger.

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 impermissibly considered that comment to Sheppard's detriment.

II. Course of Proceedings and Disposition Below

Sheppard brought this lawsuit against the Texas Department of Public Safety ("TDPS") and Cook claiming under 42 U.S.C. § 1983, inter alia, the violation of her First Amendment rights. Cook filed a motion to dismiss and a motion for summary judgment on the basis of qualified immunity. The district court denied both of Cook's motions, determining that Sheppard produced sufficient evidence to establish a genuine issue of material fact concerning her First Amendment claim. Cook now appeals the lower court's denial of his motion to dismiss and for summary judgment.

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 28 U.S.C. § 1291; Mitchell v. Forsyth, 472 U.S. 511, 524-25, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). An order is purely legal where it concerns only the application of established legal principles to a given set of facts. See Johnson v. Jones, 515 U.S. 304, 313-14, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). An order is not "legal" where it resolves a fact-related dispute of "evidence sufficiency." Id. Here, the legal principle is the objective reasonableness of an official's conduct under clearly-established law, the qualified immunity doctrine.

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 ...