Page v. DeLaune

• Decision Date: 12 February 1988
• Docket Number: No. 86-2736,86-2736
• Citation: 837 F.2d 233
• Parties: , 43 Ed. Law Rep. 1337, 2 Indiv.Empl.Rts.Cas. 1873 Linda PAGE, Plaintiff-Appellant Cross-Appellee, v. Kathryn A. DeLAUNE, et al., Defendants-Appellees Cross-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 233

837 F.2d 233

10 Fed.R.Serv.3d 812, 43 Ed. Law Rep. 1337,

2 Indiv.Empl.Rts.Cas. 1873

Linda PAGE, Plaintiff-Appellant Cross-Appellee, v. Kathryn A. DeLAUNE, et al., Defendants-Appellees Cross-Appellants.

No. 86-2736.

United States Court of Appeals,

Fifth Circuit.

Feb. 12, 1988.

Harry H. Walsh, III, Huntsville, Tex., for Page.

Robert Ozer, Asst. Atty. Gen., Austin, Tex., for DeLaune, et al.

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

Before SNEED, ^* REAVLEY, and JOHNSON, Circuit Judges.

JOHNSON, Circuit Judge:

Linda Page appeals the summary judgment dismissal of her suit under 42 U.S.C. Sec. 1983 for her discharge from employment by Texas A & M University. Finding genuine issues of material fact as to whether Page's supervisors violated her constitutional right to due process, we reverse and remand.

I. BACKGROUND

In 1981, Texas A & M University hired Linda Page as an instructor-counselor to work with the handicapped. In April 1982, Page became a site supervisor in an ex-offender program operating under the federal Comprehensive Employment and Training Act (CETA). 29 U.S.C. Secs. 801 et seq. University regulations provided that employees such as Page were subject to dismissal only for "adequate cause." Record at 174.

In January 1982, Page's immediate supervisor, Kathryn DeLaune, wrote a memorandum criticizing Page's job performance, particularly her "unprofessional verbal attitude," her "failure to follow instructions," and incidents purportedly showing a lack of loyalty. Record at 117. The memo concluded with the admonition, "Any evidence of a repeat performance will necessitate termination of employment." Id. Page responded with a memorandum to DeLaune attributing the incidents to a failure of communication and reaffirming her loyalty.

From this point on, the parties' versions of events differ markedly. Page asserts that her supervisors approved her work, granted her pay raises, and promoted her. DeLaune contends that Page was not promoted, that Page's work was not satisfactory, and that Page was so informed repeatedly. Towards the end of 1982, Patricia Turner, DeLaune's immediate supervisor, spoke at a staff meeting attended by Page and other employees. Turner announced an "open door" policy, inviting observations or complaints about the ex-offender program. On December 12, 1982, Page spoke on the telephone with a co-worker Barbara Witte-Howell. Witte-Howell announced her desire to speak to Turner about problems with the program and with DeLaune. Page also expressed a desire to speak with Turner. DeLaune overheard the conversation and she gave Page the option of resigning or being fired. When asked for an explanation, DeLaune replied, according to Page, that she " 'didn't have to have a reason.' " Record at 147. DeLaune fired both Page and Witte-Howell.

Page brought a grievance and was given a formal post-termination hearing. The hearing officer concluded that Page had been denied procedural due process and ordered restoration of her benefits, back pay, and the purging of unfavorable dismissal records from Page's file. Reinstatement was not granted because the term of Page's contract had expired. Page then filed the instant suit against DeLaune, Turner, James Bradley, another supervisor, and the president and regents of A & M University, seeking damages for additional lost wages and for emotional distress. As a settlement, the University offered to pay the award ordered by the hearing officer. Page declined the settlement, but the University subsequently made the payment. The district court granted summary judgment in favor of all the defendants.

II. DISCUSSION

A. Notice of Appeal

At the outset, we must deal with the question of the adequacy of Page's notice of appeal. On August 8, 1986, the district court entered its order dismissing the case. On August 25, 1986, Page mailed a notice of appeal to the district court and to counsel for DeLaune and the other defendants. DeLaune's counsel received the notice of the appeal on August 27. On September 3, 1986, Page mailed a second notice of appeal to the district court. On September 4, the district court received a letter designating the record on appeal. The district court did not receive the first and second notices of appeal until September 12 and 10, respectively, after the thirty-day period for filing a notice of appeal had expired. Fed.R.App.P. 4(a)(1). Page filed a timely motion to extend time for a notice of appeal on September 18, 1986, but the district court has not to date acted on that motion. Fed.R.App.P. 4(a)(5).

The "notices of appeal" that Page filed on September 10 and 12 were untimely, absent permission from the district court. Fed.R.App.P. 4(a). However, within the thirty-day period, Page did file two documents that could be construed as the equivalent of a notice of appeal: the notice of appeal sent to DeLaune, and the "designation of record on appeal" sent to the district court. Federal Rule of Appellate Procedure 3 requires that a notice of appeal designate the parties making the appeal, the judgment appealed from, and the court appealed to. Fed.R.App.P. 3(c). The rule goes on to caution against narrow interpretation: "An appeal shall not be dismissed for informality of form or title of the notice of appeal." In Foman v. Davis, the Supreme Court reversed a circuit court for "narrowly reading" a notice of appeal that clearly indicated an intent to appeal and "did not mislead or prejudice" the opposing party. 371 U.S. 178, 181, 83 S.Ct. 227, 229, 9 L.Ed.2d 222 (1962). Similarly, this Court has validated notices of appeal that contain the three items of information specified in Rule 3 while clearly notifying the courts and the parties. Fischer v. United States Dep't of Justice, 759 F.2d 461, 464 (5th Cir.1985) (construing a timely motion to proceed in forma pauperis as a notice of appeal); Tidemark, Inc. v. Brazos Port Towing Co., Inc., 756 F.2d 1236, 1237 (5th Cir.1985) (accepting a notice of appeal mislabeled as a "motion to appeal"); Matter of Cobb, 750 F.2d 477, 479 (5th Cir.1985); Cobb v. Lewis, 488 F.2d 41, 44-46 (5th Cir.1974) (construing a petition to file an interlocutory appeal as a notice of appeal); see generally 9 J. Moore, B. Ward, J. Lucas, Federal Practice, p 203.16 (1987). As this Court observed in Cobb v. Lewis, " 'The rules ... were not adopted to set traps and pitfalls by way of technicalities for unwary litigants....' ... [T]he notice of appeal requirement may be satisfied by any statement, made either to the district court or to the Court of Appeals, that clearly evinces the party's intent to appeal." 488 F.2d at 45. Of course, this latitude has limits. If the appellant's submissions to the district court ask primarily for reconsideration and only secondarily for leave to appeal, the rule has not been satisfied. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir.1987). A request for an extension of time to file an appellate brief will not suffice, nor will a "Form of Appearance for Counsel" plus three communications from court clerks. Alamo Chemical Transportation Co. v. M/V Overseas Valdes, 744 F.2d 22, 23 (5th Cir.1984); Van Wyk El Paso Investment, Inc. v. Dollar Rent-A-Car Systems, Inc., 719 F.2d 806, 807 (5th Cir.1983).

In the instant case, DeLaune and the other defendants received full notice of appeal on August 27, well within the thirty-day period. Apparently without fault on Page's part, the district court received the "notice of appeal" two days late. However, Page's letter designating the record on appeal, which was filed within thirty days, specifies that Page is appealing the district court's August 8, 1986 judgment to the "United States Courts of Appeals for the fifth circuit." Record at 8. The letter thus contains all the information required by Rule 3(c). We hold that this letter, combined with the "notice of appeal" received by DeLaune, satisfies both the letter and the spirit of Rule 3.

B. The First Amendment Claim

The district court granted summary judgment against Page on her first amendment claim, holding that Page's announcement, during the December 12, 1982, telephone call, of an intention to contact DeLaune's superior did not touch on a matter of public concern. 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, 2896, 97 L.Ed.2d 315 (1987); Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968); Day v. South Park Independent School District, 768 F.2d 696, 700 (5th Cir.1985), cert. denied, 474 U.S. 1101, 106 S.Ct. 883, 88 L.Ed.2d 918 (1986). An employee who contends that his discharge violated the first amendment must establish that his speech addressed a matter of public concern. Rankin, 107 S.Ct. at 2897; Day, 768 F.2d at 700. Only if the employee crosses this initial hurdle need the court address other questions, such as whether the speech was a substantial factor in the employer's decision, or whether certain interests of the employer counterbalanced the employee's free-speech interests. Rankin, 107 S.Ct. at 2898; Connick v. Myers, 461 U.S. 138, 146-47, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983); Terrell v. University of Texas System Police, 792 F.2d 1360, 1362-63 (5th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 948, 93 L.Ed.2d 997 (1987).

In determining whether an employee's speech addresses a matter of public concern, this Court considers the speech and its context and independently reviews the record as a whole. Connick, 461 U.S. at 147-48, 103 S.Ct. at 1690; Day, 768 F.2d at 700; Davis v. West Community Hospital, 755 F.2d 455, 461 (5th Cir.1985). The issue is a question of law for the court. Connick, 461 U.S. at 148 n. 7, 103 S.Ct. at 1690 n. 7; Terrell, 792 F.2d at 1362 n. 2. The courts will not interfere with personnel decisions "when a public employee speaks not as a citizen...