McPherson v. Rankin, 83-2399

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation736 F.2d 175
Docket NumberNo. 83-2399,83-2399
PartiesArdith McPHERSON, Plaintiff-Appellant, v. Walter RANKIN, Individually and In His Official Capacity As Constable, Precinct One of Harris County, TX and Harris County Texas, Defendants-Appellees.
Decision Date12 July 1984

Stefan Presser, ACLU, Houston, Tex., Annie S. Garcy, Bellaire, Tex., for plaintiff-appellant.

Billy E. Lee, Molly D. Shannon, Asst. County Attys., Houston, Tex., for defendants-appellees.

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

Before TATE, JOLLY, and DAVIS, Circuit Judges.

TATE, Circuit Judge:

The plaintiff, Ardith McPherson, a non-tenured deputy constable 1 formerly employed by the defendant Constable of Harris County, Texas, appeals from the grant of summary judgment against her in her 42 U.S.C. Sec. 1983 suit against Constable Walter Rankin and Harris County, Texas. The plaintiff McPherson alleges that she was denied her rights secured by the First and Fourteenth Amendments when she was fired by the Constable for a political remark made to a coworker during a private conversation. Finding that the existence of substantial issues of material fact made summary judgment inappropriate, we vacate the judgment in favor of the defendant Walter Rankin, and remand for a full trial on the merits.

On March 30, 1981, during lunch hour, McPherson and a coworker, after hearing of an assassination attempt on President Reagan, engaged in a brief, private conversation about their opposition to the President's policies on welfare and unemployment. The plaintiff concluded the discussion with the statement: "I hope if they go for him [President Reagan] again, they get him." 2

A deputy constable overheard this statement and reported it to Constable Rankin who summoned McPherson to his office. McPherson admitted to the Constable that she made the statement. A genuine dispute exists in the factual showing, however, over whether she also admitted that she actually intended the remark as seriously made. 3 Constable Rankin then summarily fired the plaintiff. 4

McPherson then in June 1981 sued Constable Walter Rankin and Harris County, alleging a violation of her constitutional rights under color of state law. 42 U.S.C. Sec. 1983. Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, McPherson filed a motion for summary judgment. The defendant Constable Rankin responded and requested a dismissal, claiming that McPherson failed to state a cause of action upon which the court could grant relief. The district court considered the parties' opposing motions as cross-motions for summary judgment, and it ordered an evidentiary hearing, which was held on February 14, 1983, to determine whether the plaintiff's speech was protected under applicable First Amendment principles. Following the hearing, the district court granted summary judgment in favor of the defendant Walter Rankin; McPherson appeals.

In reviewing a district court's grant of summary judgment, we are required to consider the evidence presented in the light most favorable to the party opposing the motion. Simon v. United States, 711 F.2d 740, 743 (5th Cir.1983). Hence, the factual recitals in the opponent's affidavit as well as hearing testimony of McPherson and her witnesses must be regarded as true for the purposes of this appeal.

If there is a genuine issue of material fact which would cause a dispute to reasonably be resolved in favor of the party resisting the summary judgment, the summary judgment cannot stand. National Hygienics, Inc. v. Southern Farm Bureau Life Insurance Company, 707 F.2d 183, 186 (5th Cir.1983). That the movant appears to the court more likely than not to prevail at trial is no reason to grant summary judgment; it is not the province of the trial court on motion for summary judgment to weigh evidence, assess its probative value or decide factual issues. Byrd v. Roadway Express, Inc., 687 F.2d 85, 87 (5th Cir.1982). The standard is simply that the evidence shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).

Prior to its ruling granting summary judgment in favor of the defendants, the trial court ordered a hearing so that it could "hear testimony regarding the details of this incident, the intent and motivation of those involved, and the extent to which such speech by one in plaintiff's position affects the ability of the constable's office to perform its services efficiently." In determining whether private speech by a public employee is entitled to First Amendment protection, it is important to consider the context in which it is made, relevant considerations including the "manner, time, and place in which it is delivered," and the intention of the speaker. Bickel v. Burkhart, 632 F.2d 1251, 1256-57 (5th Cir.1980).

In this instance, the statement was made by McPherson during the lunch hour in a conversation between McPherson and her boyfriend, a coworker. The conversation took place in a non-public computer room of the constable's workforce; only two other regular coworkers in the room were present at that time, and one of them that testified stated that she did not overhear the conversation when it took place. However, the conversation chanced to be overheard by a deputy constable, who had entered the computer room to pick up papers to take to other precincts. He immediately reported the conversation to the Constable Rankin, the defendant, precipitating the events and McPherson's discharge at issue.

At the evidentiary hearing, Ardith McPherson testified that her statement--"if they go for him again, I hope they get him"--was intended only as a verbal expression of her anger with the Reagan administration's social and economic policies. The plaintiff maintained that "it is just like if I ask my sister to pick me up somewhere and she's late and I say, 'Where is she.' and I said 'Wait till she get[s] here, I'm going to kill her.' That don't mean I'm going to kill her with a gun or knife or weapon. It is an expression of conversation." Hence, the essence of McPherson's contention is that her statement was merely a form of political hyperbole and was not intended to advocate harm to the President.

McPherson also testified that when confronted by Constable Rankin, she assured him that she "didn't mean anything by it," but was not allowed to further explain her comment to him. Constable Rankin testified that when he asked McPherson whether she meant what she said, her reply was "I sure do."

The issue of McPherson's intent 5 is relevant to the present inquiry because it is imperative that a court's characterization of speech as political expression, for purposes of First Amendment protection, be predicated upon consideration of its "content, form, and context". See Connick v. Myers, --- U.S. ----, ----, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983), applied in McBee v. Jim Hogg County, Texas, 730 F.2d 1009, 1013, (5th Cir.1984) (factors include employee's motives in voicing the expressions at issue and their context).

Thus, in a Sec. 1983 suit brought by a public employee against his public employer, the "manner, time, and place" of a statement, and the "context" in which it is made, as revealed by the whole record, is relevant to the determination of whether the statement is protected speech under the First Amendment. Id. --- U.S. at ----, 103 S.Ct. at 1693.

The context of the speech is especially material when private expression is involved. In Bickel v. Burkhart, 632 F.2d 1251, 1257 (5th Cir.1980), this court noted that when a public employee expresses himself publicly, the primary focus is on the content of his speech; however, where private expression is involved, the balancing test encompasses the manner, time and place in which it is delivered as well as the context in which the statement is made. See Givhan v. Western Line Consolidated School District, 439 U.S. 410, 415 n. 4, 99 S.Ct. 693, 696 n. 4, 58 L.Ed.2d 619 (1979).

The court's task is to fully consider each of these factors in applying the Pickering balancing test, which compels us "to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer in promoting the efficiency of the public services it performs through its employees." Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968).

Based upon the testimony evinced at this hearing, the court issued an order on April 15, 1983, in which it concluded:

The plaintiff's comment did not disrupt the workplace in general. There was no criticism of her immediate superiors. However, the comment clearly undermined her employer's confidence in her as one of his deputies whose public comments and actions during work hours he would be deemed to have ratified. Further, plaintiff's comment in no way served the public's interest in matters of general concern. While made during the noon hour, the comment was made in the office while at least some employees, including the plaintiff, were working or as they returned to work from lunch, and loud enough to be overheard by nearby co-workers.

Offering no further reasons for its determinations, 6 the court concluded that McPherson's speech was unprotected under the Pickering balancing test.

As to the intent or motivation of the plaintiff, the trial court merely noted the discrepancy in the testimony regarding McPherson's intention in making the...

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