Noyola v. Texas Dept. of Human Resources

• Decision Date: 15 June 1988
• Docket Number: No. 87-2669,87-2669
• Citation: 846 F.2d 1021
• Parties: Conrad NOYOLA, Plaintiff-Appellee, v. TEXAS DEPARTMENT OF HUMAN RESOURCES, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1021

846 F.2d 1021

3 Indiv.Empl.Rts.Cas. 798

Conrad NOYOLA, Plaintiff-Appellee, v. TEXAS DEPARTMENT OF HUMAN RESOURCES, et al., Defendants-Appellants.

No. 87-2669.

United States Court of Appeals, Fifth Circuit.

June 15, 1988.

Edwin N. Horne, James C. Todd, Jim Mattox, Austin, Tex., for defendants-appellants.

Larry Watts, Houston, Tex., for plaintiff-appellee.

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

Before GARWOOD and JONES, Circuit Judges, and FISHER ^*, District Judge.

EDITH H. JONES, Circuit Judge:

Following the careful pruning of Appellee Noyola's complaint and amended complaint by the district court, there is one issue open for review. The question is whether Appellants, Elizondo, Westbrook and Rodriguez, employees of the Texas Department of Human Resources (TDHR), are entitled to qualified immunity in connection with Noyola's dismissal from TDHR in 1981. The district court denied summary judgment to Appellants on this issue. We reverse and render in their favor.

I. BACKGROUND

Noyola worked for TDHR in South Texas as a welfare services technician from 1974 until 1981. After being terminated, he pursued a grievance proceeding within the department unsuccessfully. It is significant that the record does not evidence any claim by Noyola before TDHR that he was terminated for exercising first amendment rights.

He next challenged the firing by means of a federal lawsuit initiated in 1983, in which he asserted, inter alia, that he was terminated in violation of his first amendment rights. Following procedural maneuvering not material to this opinion, Appellants, who had been sued in their individual Plaintiff Noyola made suggestions to Defendant Elizondo regarding efficient and customary procedure for handling a caseload. ... Every worker in the Lower Valley Unit had one case load. I had two case loads ...

                capacities, moved for summary judgment to establish their qualified immunity from suit.   See Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).  Appellants' affidavits denied that the termination had anything to do with Noyola's "speaking out" on "matters of public concern."   See Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983).  In Noyola's response to the summary judgment motion, the only portion that may be construed to evidence a matter arguably related to the exercise of free speech protected by the first amendment is as follows
                

In the accompanying affidavit, Noyola elaborated:

I suggested to Mrs. Elizondo that to better deliver services on [sic] a more timely and efficient manner to our clients, that perhaps the case load could be distributed on a more equitable basis. Her sarcastic reply was, 'What's the matter? I thought you were supposed to be Super Worker?' At this time, she again retaliated and imposed an area which composed [sic] of approximately 250 cases on me. I was now to work the largest case load in a three-county geographic area which involved 13 different communities.

The district court, evaluating this language, concluded that it was unable to determine whether Noyola's speech could have been protected by the First Amendment, and it consequently denied Appellants' motion for summary judgment founded on that defense.

II. ANALYSIS

The Appellants may seek interlocutory review of the district court's decision denying qualified immunity. See Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Our analysis is limited to two matters. If the district court erred in concluding that Noyola's speech touched upon "a matter of public concern," then no first amendment rights were at stake in his termination and the Appellants' defense must prevail. Unlike the district court, we conclude that Noyola's "speech" was not constitutionally protected. Second, if the first amendment rights were not "clearly established" at the time Noyola was terminated, ¹ Appellants may defend on the basis of qualified official immunity from suit. We resolve this issue in their favor also.

We first observe that two and one-half years passed between the filing of Noyola's complaint and his affidavit in response to Appellants' motion for summary judgment. Noyola could not, nor did he, contend to the district court that he lacked a fair opportunity to develop his "first amendment" claim. See FED.R.CIV.P. 56(f). The claim in fact is uniquely dependent upon his evidence concerning the circumstances and content of the allegedly protected speech. We are in these circumstances bound by the Supreme Court's determinations that when the parties have been given adequate opportunity for discovery, a party bearing the burden of proof must offer evidence sufficient to raise a genuine issue of material fact on the elements of his case or suffer an adverse summary judgment. FED.R.CIV.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2511-12, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986).

While it is true that a state may not discharge an employee for exercising his right to free speech on matters of public concern, Rankin v. McPherson, --- U.S. ----, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987), the employee making this contention must Noyola's affidavit, quoted above, furnishes the sole clue as to the content, nature and circumstances of his allegedly protected speech. ² That excerpt reflects a conversation between Noyola and his supervisor that may suggest the existence of a large welfare case load. It definitely implies that Noyola urged a realignment of his own case load. It was made to his direct supervisor with whom he had daily contact, and it was made, according to Appellee's affidavits, at a time when his level of performance was being questioned. No one else is even alleged to have heard the speech. Nothing in this minimalist glimpse of Noyola's conversation or conversations suggests that the speech was anything other than the airing of an internal grievance with his supervisor. The record before us also indicates that Noyola was speaking to his supervisor primarily as an employee rather than in his role as a citizen. See Terrell v. University of Texas System Police, 792 F.2d 1360, 1362 (5th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 948, 93 L.Ed.2d 997 (1987). We must conclude that no first amendment issue is raised by this "speech."

                establish that his speech addressed a matter of public concern in the first place.    Rankin, --- U.S. at ----, 107 S.Ct. at 2897.  The speech must be considered in its context on the record as a whole.   Connick v. Myers, 461 U.S. at 147-48, 103 S.Ct. at 1690.  The protected status of the speech is an issue of law for the court, but subsidiary fact issues may require resolution by a jury.   See Simon v. City of Clute, Texas, 825 F.2d 940, 943 (5th Cir.1987)
                

Ample authority from our Court supports our conclusion. This court recently decided Page v. DeLaune, 837 F.2d 233 (5th Cir.1988), and held that a telephone conversation between two state employees in which they decided to bypass normal bureaucratic communication channels "is clearly a personnel matter internal to the program, not a matter of public concern." 837 F.2d at 238. Reviewing past circuit and Supreme Court precedent, Page further noted that the first amendment had been held not to protect public employees who "spoke out" concerning the transfer policies and morale problems of a district attorney's office (Connick, 461 U.S. at 148-49, 103 S.Ct. at 1690-91); the personnel policies of university police (Terrell v. University of Texas System Police, 792 F.2d at 1362-63); an unfavorable employee evaluation (Day v. South Park Independent School District, 768 F.2d 696, 700-01 (5th Cir.1985), cert. denied, 474 U.S. 1101, 106 S.Ct. 883, 88 L.Ed.2d 918 (1986)); and isolated disputes among doctors and other professionals at a public hospital (Davis v. West Community Hospital, 755 F.2d 455, 460-61 (5th Cir.1985)). Id. This case falls squarely within the boundaries of such prior authority. Because the First Amendment does not protect the speech at issue, we hold that even if Noyola was terminated for making this speech (an issue that we need not analyze), his termination did not violate any constitutional right. Consequently, Appellants could not have violated any "clearly established constitutional rights," and they are protected by qualified immunity from suit.

III. QUALIFIED IMMUNITY

Even if our analysis of the protected status of Noyola's speech should be in error, the TDHR officials were nonetheless entitled to qualified immunity for a different reason. Qualified immunity is a defense available to public officials performing discretionary functions "... insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person should have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The defense fixes an objective standard for an official's behavior. By allowing the court to determine whether the law allegedly violated by the official was "clearly established" at the time the challenged action occurred, a test for qualified immunity should permit insubstantial claims to be resolved by summary judgment. Id.

The Supreme Court recently expanded upon the meaning of a right "clearly established" for purposes of qualified immunity:

The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, see Mitchell [v. Forsyth ], 472 U.S. 511, 535 n. 12, 105 S.Ct. 2806, 2820 n. 12 ; but it is to say that in the light of preexisting law the unlawfulness must be apparent (citations omitted).

Anderson v. Creighton, --- U.S....