Davis v. McKinney
| Decision Date | 21 February 2008 |
| Docket Number | No. 07-20184.,07-20184. |
| Citation | 518 F.3d 304 |
| Parties | Cynthia M. DAVIS, Plaintiff-Appellee, v. Michael McKINNEY, M.D., Being Sued Individually and In His Official Capacity; and Charles G. Chaffin, Being Sued Individually and In His Official Capacity, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
William T. Deane, Asst. Atty. Gen. (argued), Austin, TX, for Defendants-Appellants.
Appeal from the United States District Court for the Southern District of Texas.
Before DAVIS, STEWART and OWEN, Circuit Judges.
Defendants Michael McKinney and Charles Chaffin bring this interlocutory appeal challenging the denial of their summary judgment motion seeking dismissal based on qualified immunity from plaintiff Cynthia Davis' § 1983 suit for retaliatory discharge in violation of the First Amendment. For the reasons set forth below, we affirm in part, reverse in part and remand to the district court for further proceedings.
I.
Davis filed this suit against the above named defendants and the several arms of the University of Texas ("UT") System. Prior to December 2003, Davis was the IS Audit Manager at the UT Health Science Center in Houston, Texas ("UTHSC-H"). As IS Audit Manager, Davis' job duties included overseeing computer-related audits and creating audit summaries and reports. Defendant McKinney is the Senior Executive Vice-President and Chief Operating officer of UTHSC-H. Defendant Chaffin is the UT System's Director of Audits and System-wide Compliance Officer.
In June 2003, Davis learned that the UT System was considering restructuring certain aspects of the UTHSC-H Internal Audit department and adding an Assistant Director position. The position was officially announced in late June. Davis told Sharon Corum, the director of the UTHSC-H Internal Audit Department and her direct supervisor, that she would like the position. Thereafter, Corum sought and received permission from human resources and Dr. James Willerson ("Willerson"), UTHSC-H President, to waive the normal requirement that a search committee be used to find applicants for the job.
In August 2003, David Healey ("Healey"), UTHSC-H Vice President for Facilities Planning, approached the Internal Audit department and requested an audit of his department's computer systems because he suspected that employees were viewing pornography on work computers. Davis, with the assistance of the IT Security department, investigated the computers in the Facilities department. An expanded UTHSC-H wide investigation began in late August. The investigation revealed that several computers had accessed pornographic material and that certain employees had intentionally accessed pornography. A log of internet activity was developed to establish probable cause for confiscating computers at the request of Tex Martin, an inspector with the UT System Office of the Director of Police. Martin provided the information to McKinney.
In late August 2003, Davis met with McKinney, Martin and Arline Staller. At the meeting, Davis presented evidence of 300 or more employees at UTHSC-H who were accessing pornography. McKinney authorized Davis to confiscate computers from employees if she had a clear indication that the access was intentional. McKinney expressed an intent to terminate the employees who had intentionally accessed the offending material and told Davis to schedule a meeting with him on September 2, 2003 to discuss the investigation.
After the meeting, Davis engaged IT Security and Information Service departments for assistance in confiscating computers from UT personnel. Eleven computers were identified that were believed to have intentionally accessed pornography. After further investigation, evidence in ten of the eleven computers strongly indicated that pornography had been intentionally accessed, including some material that Davis believed to be child pornography.
Davis attempted to meet with McKinney on September 2, 2003, as she had been directed, but McKinney was unavailable and never responded to Davis' request to contact her. That same day, Davis received a call from Mike Jimenez, UTHSC-H Human Resources Manager, asking Davis to return several of the confiscated computers to physicians. Davis alleges that she heard that McKinney wished to terminate the investigation, even though her analysis of the confiscated computers was not complete.
In response to Jimenez's request, Davis and the rest of the investigation team worked to copy the hard drives of the confiscated computers so they could be returned. Directory listings from the computers were provided to Human Resources. Davis noted that all of the users of the confiscated computers had signed acceptable use policy forms detailing the restrictions and permissible uses of the internet on work computers.
Davis continued the investigation and claims that she provided McKinney with lists of physicians whose computers contained pornography and included descriptions of the material that had been accessed. Davis also continued to ask McKinney to meet with her but he avoided any such meeting. She concluded that McKinney and others in upper management were turning a blind eye to the investigation. UTHSC-H physicians perceived the investigation as an intrusion into their privacy. Davis claims that several employees' supervisors chastised her and that a physician sent a demeaning letter about her to McKinney. Davis also heard that McKinney was accusing her of botching the investigation. Corum told her that the Internal Audit department was receiving the brunt of employees' disdain toward the investigation.
Around September 9, 2003, Davis asked Corum to be taken off the investigation because she felt it created a hostile work environment and the requirement that she review repugnant pornographic material denigrated her as a woman. Davis felt that she was receiving "heat" from other employees and that management was unresponsive to the findings of the inquiry.
On September 11, 2003, Davis applied for the newly created Assistant Director position for UTHSC-H's Internal Audit department. Around the same time, she sought assistance from the Employee Assistance Program to cope with the stress of dealing with the pornography and receiving no support in the investigation from UTHSC-H or the UT System. Davis also contacted the EEOC about discriminatory behavior of UT's upper management.
Davis claims that shortly thereafter her work responsibilities were reduced to mundane tasks. She heard from Corum that upper management, particularly Chaffin, were pressuring Corum to terminate Davis. Davis also claims that she heard that McKinney was threatening adverse action against the Quality Assurance Review team, which Davis had joined years earlier on Chaffin's recommendation, if Davis was not terminated.
On October 12, 2003, Davis wrote a letter to Willerson, UTHSC-H President, accusing UTHSC-H and UT System upper management of several unethical and allegedly illegal activities (the "Complaint Letter"). A complete copy of the Complaint Letter is attached to this opinion as an Appendix. Davis sent copies of the letter to Corum and Mark Yudof, the UT System Chancellor. The Complaint Letter alleged that upper management had a pattern of sweeping pornography investigations under the rug and not terminating or disciplining offending employees. In the Complaint Letter, Davis detailed the most recent investigation and complained that McKinney had not taken corrective action. She also outlined a pattern of treating certain employees, white men, physicians and faculty members more leniently than black employees. Davis asserted that in the course of the investigation she, a female, under the direction of males, had been required to view horrific and deviant pornography that men had been viewing at work, and then men in supervisory positions excused the behavior. Davis also stated that as a result of the investigation, her reputation and credibility had suffered, even though she was doing her job.
The Complaint Letter also alleged that the president was creating an excessive number of highly paid upper management positions to the detriment of the division's budget, demonstrating a pattern of favoritism towards white men and persons with political influence. Davis stated that she viewed Willerson's failure to address the issues brought to him as a dereliction of his duties to the university, its students, employees, patients and Texas taxpayers.
Near the end of the Complaint Letter, Davis wrote that because she was no longer confident that the UT System could investigate itself, she had contacted the Federal Bureau of Investigation concerning possible child pornography on eight computers and the EEOC about discriminatory practices.1
Willerson responded by outlining his response to the most recent pornography investigation. Other issues were not addressed.
In November 2003, Davis emailed Corum inquiring about the status of her application for the Assistant Director position. Corum had previously indicated to her that Davis was the most likely candidate to be selected for the position because she was the most qualified. In response to Davis' inquiry, Corum advised her that McKinney had frozen the position and it would not be filled. Davis contends that this action was taken in retaliation for her Complaint Letter and related reports to the FBI and EEOC. McKinney asserts that he froze the position because he was considering outsourcing the entire internal audit function. He also alleges that he and Corum met in September and determined that if Davis were promoted to Assistant Director, she would still have to participate in pornography investigations after her request to be relieved from those duties.
In December 2003, feeling that her termination was imminent, Davis resigned from UTHSC-H. Davis had been diagnosed with...
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