Brady v. Houston Independent School Dist.

• Citation: 113 F.3d 1419
• Decision Date: 11 June 1997
• Docket Number: Nos. 96-20122,96-20191,s. 96-20122
• Parties: Shirley BRADY, Plaintiff--Appellee-Cross-Appellant, v. HOUSTON INDEPENDENT SCHOOL DISTRICT; Ernie Carney; Faye Bryant, Defendants--Appellees, Thomas Cortese; Brent Mahaffey; Steve Sokol, Defendants--Appellants-Cross-Appellees. Shirley BRADY, Plaintiff-Appellee, v. HOUSTON INDEPENDENT SCHOOL DISTRICT, et al., Defendants, Thomas Cortese; Brent Mahaffey; Steve Sokol, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1419

113 F.3d 1419

Shirley BRADY, Plaintiff--Appellee-Cross-Appellant, v. HOUSTON INDEPENDENT SCHOOL DISTRICT; Ernie Carney; Faye

Bryant, Defendants--Appellees,

Thomas Cortese; Brent Mahaffey; Steve Sokol,

Defendants--Appellants-Cross-Appellees.

Shirley BRADY, Plaintiff-Appellee, v. HOUSTON INDEPENDENT SCHOOL DISTRICT, et al., Defendants, Thomas Cortese; Brent Mahaffey; Steve Sokol, Defendants-Appellants.

Nos. 96-20122, 96-20191.

United States Court of Appeals, Fifth Circuit.

June 11, 1997.

Beatrice A. Mladenka-Fowler, Barbara Brady Gupta, Karen Susie Adams, Mladenka-Fowler, Adams & Associates, Houston, TX, for Brady.

David M. Feldman, Christopher Velle Bacon, Feldman & Associates, Houston, TX, for Cortese, Mahaffey, Sokol and Bryant.

A.J. Harper, II, Scott Robert McLaughlin, Fulbright & Jaworski, Houston, TX, for Carney.

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

Before DAVIS, SMITH and DUHE, Circuit Judges.

DUHE, Circuit Judge:

In March 1994, Shirley Brady sued the Houston Independent School District ("HISD"), four HISD employees (Thomas Cortese, Brent Mahaffey, Steve Sokol, and Faye Bryant), and Ernie Carney, an outside computer consultant employed by HISD on an hourly basis. Brady alleged numerous federal and state claims relating to her reassignment from her position as systems programmer to a position of significantly reduced responsibilities. The district court dismissed many of these claims both pre- and post-trial, and Brady prevailed only on her First Amendment retaliation claim against three of the HISD employees (Cortese, Mahaffey, and Sokol), securing a jury verdict of $546,200 in compensatory and punitive damages. The three employees (collectively, the "Appellants" ¹) unsuccessfully moved to set aside the verdict as a matter of law, and they now appeal. Brady cross-appeals, contending that the district court erred by dismissing her other claims.

We believe that the evidence is insufficient to support the jury verdict on Brady's First Amendment claim. We therefore reverse and render judgment for the Appellants, and accordingly also vacate the order granting attorney's fees to Brady. Because we conclude that the issues raised by Brady's cross- appeal are without merit, we affirm the district court's dismissal of her various other claims.

I

This lawsuit concerns two significant incidents in the recent history of HISD's data processing department. The first occurred in the fall of 1991, when Shirley Brady testified before HISD investigators about certain inappropriate activities on the part of Ernie Carney and Alexander Winkler. The second transpired in early 1993, when HISD divested Brady of her duties as systems programmer following a computer breakdown and then outsourced these duties to a computer consulting firm that employed Carney. The central question is whether the Appellants dispossessed Brady of her systems-programmer responsibilities in early 1993 in retaliation for her protected statements made to HISD investigators in late 1991. Before turning to this issue, we first provide a more detailed summary of the facts and procedural history of the litigation.

A

In 1984, Shirley Brady was hired by HISD as systems programmer for the data processing department. Because of the heavy demands of Brady's job, however, HISD frequently contracted with outside computer consultants on an hourly basis to assist Brady with her duties. The most frequently used consultant was Ernie Carney, and from approximately 1984 through 1991, Brady and Carney worked together in the data processing department.

In August 1991, a local television station aired an expose revealing improprieties in HISD's data processing department. As a result of this program, HISD conducted an internal investigation of the department, interviewing every member of that department, including Brady and Appellants Brent Mahaffey and Steve Sokol. Brady disclosed to investigators that Carney had confided in her that he and Alexander Winkler, who at the time was the assistant superintendent in charge of the data processing department, had engaged in wrongdoing. According to Brady, Carney had lent money to Winkler; when Winkler was unable to repay the loan, Carney confronted him and, in exchange for forgiveness of this loan, demanded to be given a higher hourly wage and to be paid for hours not actually worked. Winkler apparently acceded to these demands.

Following the internal investigation, Winkler resigned under pressure from HISD's Board of Trustees, and HISD ceased employing Carney as an hourly consultant. Appellant Thomas Cortese replaced Winkler as the assistant superintendent in charge of data processing. Brady remained in her job as systems programmer, continuing to receive positive employment evaluations.

During the 1992 Christmas break, Brady "converted" HISD's old computer operating system to a newer one. Although the conversion was completed over the break, the financial programs were inoperative when HISD employees returned to work after the holiday. Faye Bryant, the deputy superintendent for district planning, soon learned of the problem, and she pressured Cortese, who in turn looked to Brady, to fix the problem immediately. ² Brady determined that she needed outside help, and asked Cortese to rehire Ernie Carney. After Cortese approved the request, HISD rehired Carney as a consultant on an hourly basis. The problems with the financial programs were soon fixed, although the parties dispute whether the solution was due to the efforts of Carney or Brady.

Shortly thereafter, HISD administrators (including Bryant, Cortese, Mahaffey, and Sokol) decided to outsource the systems-programmer duties to Operating Systems, Inc. ("OSI"), a computer consulting firm run by Mike Cox that employed Carney as a consultant. As part of the negotiations between HISD and OSI, Carney and Cox informed HISD that they could not guarantee OSI's performance unless OSI consultants had exclusive access to HISD's computer system. Pursuant to these discussions, Mahaffey, upon the direction of Cortese, restricted Brady's access to the system. Because Brady's responsibilities as systems programmer had been outsourced to OSI, Mahaffey and Cortese recommended eliminating her position as of September 1, 1993, the beginning of the next fiscal year.

Concerned about the loss of her job duties, Brady filed a grievance with HISD in August 1993. HISD never formally acted upon Brady's grievance, nor did it eliminate her job in September 1993. Although Brady never again performed the duties of a systems programmer, she held that position, in name only, until three weeks before the July 1995 trial date, when she was reassigned to another job within HISD. ³

B

In March 1994, Brady sued Carney, HISD, and four HISD employees (Cortese, Mahaffey, Sokol, and Bryant). She raised the following claims: (1) retaliation for her exercise of protected speech, in violation of the First Amendment; (2) violation of her right to due process under the Fourteenth Amendment; (3) conspiracy to deprive her of her right to speak, in violation of 42 U.S.C. § 1983; (4) violation of the Texas Whistleblower Act; (5) intentional infliction of emotional distress; and (6) tortious interference with a business relationship. At summary judgment, the district court dismissed all of Brady's claims except: (1) the First Amendment claim against the four HISD employees; (2) the § 1983 claim against the four HISD employees and Carney; and (3) the intentional infliction of emotional distress claim against Carney. The case went to trial, and the jury returned a verdict for Brady on each of the three claims against three of the HISD employees (Cortese, Mahaffey, and Sokol) and Carney. ⁴ The district court thereafter directed a verdict for Carney and the HISD employees on the latter two claims, leaving intact only the verdict on the First Amendment claim against Cortese, Mahaffey, and Sokol. The court then awarded Brady $87,930 in attorney's fees against the three.

Cortese, Mahaffey, and Sokol appeal the district court's order refusing to set aside the jury verdict on the First Amendment claim. Brady cross-appeals, alleging that the court erred by dismissing her other federal and state claims. In addition, both parties appeal the award of attorney's fees.

II

The primary issue raised by Cortese, Mahaffey, and Sokol is whether the evidence is sufficient to support the jury's determination that they retaliated against Brady in 1993 for her exercise of protected speech in 1991. Because we agree with the Appellants that Brady has presented insufficient evidence to sustain the jury verdict, we reverse the district court's order denying the Appellants' motion for judgment as a matter of law, and render judgment for the Appellants.

A

When reviewing a district court's denial of a motion for judgment as a matter of law, we use the same standard to review the verdict as that used by the district court. See Hiltgen v. Sumrall, 47 F.3d 695, 699-700 (5th Cir.1995). We must uphold the jury verdict unless " 'there is no legally sufficient evidentiary basis for a reasonable jury to find' as the jury did." Id. (quoting Fed.R.Civ.P. 50(a)(1)). We review the evidence and all reasonable inferences in the light most favorable to the verdict. See Polanco v. City of Austin, 78 F.3d 968, 974 (5th Cir.1996). We must, however, consider all of the evidence, not merely that favorable to the nonmovant, and a "mere scintilla" of evidence is insufficient to sustain a jury verdict. See Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc). Although we draw inferences favorable to the verdict, such inferences must be reasonable and may not rest upon speculation and conjecture only. See Love v. King, 784 F.2d 708, 711 (5th Cir.1986).

B

In order to establish that one's First Amendment right to free speech has been violated by an employer's retaliatory conduct, a...