Gerhart v. Hayes, 99-20005

• Decision Date: 04 February 2000
• Docket Number: No. 99-20005,99-20005
• Citation: 201 F.3d 646
• Parties: (5th Cir. 2000) SUSAN L. GERHART, Plaintiff-Appellee, v. EDWARD J. HAYES, ET AL, Defendants, EDWARD J. HAYES, GLENN GOERKE, JAMES T. HALE, and WILLIAM A. STAPLES, Defendants-Appellants
• Court: U.S. Court of Appeals — Fifth Circuit

Page 646

201 F.3d 646 (5th Cir. 2000)

SUSAN L. GERHART, Plaintiff-Appellee, v. EDWARD J. HAYES, ET AL, Defendants, EDWARD J. HAYES, GLENN GOERKE, JAMES T. HALE, and WILLIAM A. STAPLES, Defendants-Appellants.

No. 99-20005

IN THE UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

February 4, 2000

Appeal from the United States District Court for the Southern District of Texas

Before HIGGINBOTHAM and SMITH, Circuit Judges, and FALLON, District Judge.^*

JERRY E. SMITH, Circuit Judge:

Susan Gerhart sued Edward Hayes, Glenn Goerke, James Hale, and William Staples following her termination from the University of Houston's Research Institute for Computing and Information Systems ("RICIS"). The defendants appeal the denial of their motion for summary judgment on the basis of qualified immunity. Concluding that Gerhart did not allege sufficient facts to create a genuine issue of material fact as to her claim of retaliatory discharge in violation of the First Amendment or of violation of procedural due process, we reverse and render judgment in favor of defendants.

I.

RICIS was founded in 1986 through a cooperative agreement between the University of Houston and the Lyndon B. Johnson Space Center jointly to manage an integrated program of research in advanced data processing technology for the space program. Through the agreement, a portion of the research support funding provided to RICIS by the Space Center was retained by the university's Finance and Administration Department to cover indirect costs associated with the support of RICIS.

In April 1993, Gerhart was hired as the director of RICIS to diversify and increase the sources of RICIS funding. Hale was vice-president for administration and finance, and Hayes was senior vice-president and provost. Gerhart questioned, as excessive, the amount of discretionary funding the university retained. Specifically, she complained to Hale and Hayes that the finance and administration funds should be reallocated for use in RICIS's research program. She also voiced these concerns to other academic colleagues within the university. Her complaints ultimately had little impact, however; none of the defendants adopted her position or changed the allocation of funds.

In May 1995, Hayes notified Gerhart that her employment was being terminated, citing a lack of progress to broaden the funding base for RICIS. In the dismissal letter, Hayes invited her to present any argument or evidence as to why she should be retained. Gerhart did not dispute that the funding for RICIS had declined precipitously during her tenure; she admitted that she had failed to secure any new funding for RICIS in the two years she was the director, and she subsequently admitted that it was appropriate for Hayes to link his assessment of her job performance to her success in diversifying the funding sources for RICIS.

Gerhart appealed her dismissal administratively within the university, which assembled a grievance hearing panel of one faculty member and two administrators, all of whom were chosen by a human resources director without any influence by defendants. After hearing testimony and receiving documents from Gerhart, the panel upheld the termination. President Staples received and accepted the panel's recommendation.

Gerhart alleged, inter alia, claims pursuant to 42 U.S.C. 1983, asserting that defendants had violated her First Amendment right to free speech by terminating her in retaliation for her complaints about RICIS's allocation of funding and had violated her procedural due process rights guaranteed by the Fifth and Fourteenth Amendments. The defendants moved for summary judgment on the basis of qualified immunity.¹ The district court denied the motion, concluding that material issues of fact remained as to both claims.

II.

Gerhart argues that we are without jurisdiction to hear this appeal because the defendants seek a review of factual, not legal, issues. She points to Colston v. Barnhart, 146 F.3d 282 (5th Cir.) (on petition for rehearing en banc), cert. denied, 525 U.S. 1054 (1998), as supporting the proposition that a defendant may not appeal an order denying a qualified immunity defense when review is sought on a finding that the summary judgment record sets forth a genuine issue for trial.²

Gerhart selectively quotes from Colston and overlooks its more important and relevant discussion. In interpreting Behrens v. Pelletier, 516 U.S. 299 (1996), the Colston court noted that "when a district court denies a motion for summary judgment on the ground that 'genuine issues of material fact remain,' the court has made two distinct legal conclusions. First, the court has concluded that the issues of fact in question are genuine." Colston, 146 F.3d at 284 (emphasis added).

More significantly, the Colston court noted the district court's second legal conclusion "that the issues of fact are material, i.e., resolution of the issues might affect the outcome of the suit under governing law." Id. (emphasis added). While the first of these determinations was not reviewable, Colston and Behrens made "clear that an appellate court is free to review a district court's determination that the issues of fact in question are material." Id.

When a district court does not identify the evidence that creates the "genuine" issue of fact, we "may have to undertake a cumbersome review of the record to determine what facts the district court, in the light most favorable to the nonmoving party, likely assumed." Behrens, 516 U.S. at 313. Here, on both claims the district court stated only summarily that there remained genuine issues of material fact that precluded summary judgment. Consequently, we may review the underlying facts to make our own determination on both genuineness and materiality issues.

Moreover, we have jurisdiction to consider whether the district court applied the correct legal standard on summary judgment.³ Here, that review involves a question of what are the necessary elements of each of Gerhart's claims and whether there are genuine issues of material fact on each of those elements. These are questions of law that we review de novo. Before reaching the narrower issue of qualified immunity, we must consider whether the plaintiff has alleged the violation of a clearly established constitutional right. Siegert v. Gilley, 500 U.S. 226, 232 (1991).

III.

Defendants argue that the district court incorrectly rejected their qualified immunity defense on Gerhart's procedural due process claim. They assert that she has not set forth sufficient facts to establish a constitutional claim of a due process violation. Gerhart, on the other hand, alleges that the defendants violated her right to procedural due process because she was not provided sufficient notice of the reason for her termination and was not afforded the opportunity to have an attorney present at the administrative review panel.

The district court concluded that there was a material issue of fact as to whether the defendants had provided adequate notice of termination and an opportunity for Gerhart to be heard. The court did not identify what those issues of fact were, however, but instead focused almost exclusively on justifying its conclusion that Gerhart held a constitutionally protected property interest in continued employment.

Regardless of the nature of Gerhart's interest in her employment,⁴ it was incumbent on the court to identify which facts were at issue and were material to her claim of a due process violation. Because it failed to do so, we must undertake an independent review of the record to determine which facts, if any, were genuinely disputed and were material to the claim.

The constitutional guarantee of due process requires notice and an opportunity to respond. See generally Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985). In our review of the record, we find no facts that suggest that Gerhart did not receive both. First, it is undisputed that she received the termination letter from Hayes. It provided her with the reason for her termination,i.e., her complete failure to achieve the main job objective of increasing funding for RICISand it informed her of the procedure for appealing the decision to Hayes.

Furthermore, when she received the notice of intent to terminate her employment, Gerhart provided extensive documentation in an attempt to rebut any criticism of her performance. Hayes read her response. It is odd, then, that Gerhart still maintains that although she received the letter, on its face that letter gave no notice of any charges against her that would support her termination. The undisputed facts simply do not support her assertion, and, as a result, no issues of fact remain as to whether she received notice.

In addition, Gerhart argues that she did not have an opportunity to be heard, because she was not allowed an attorney at her administrative hearing.⁵ She asserts that under Texas law, a public employee is entitled to be represented by an attorney where termination of employment is at issue. What she fails to establish however, is that constitutional due process requires an attorney present at her post-termination...