## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 99-20005

_______________



### SUSAN L. GERHART,

Plaintiff-Appellee

VERSUS



### EDWARD J. HAYES, ET AL,

Defendants,



### EDWARD J. HAYES, GLENN GOERKE, JAMES T. HALE,

and

WILLIAM A. STAPLES,

Defendants-Appellants.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________

February 4, 2000

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 Instit u te for Computing

and Information Systems (“RICIS”). The defendants appeal the denial of their motion for

summary judgment on the basis of q ualified

immunit y. Co ncluding that Gerhart did not * District Ju dge of the Eastern District of

Louisiana, sitting by designation.2

allege sufficient facts to create a genuine issue

o f 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 judgme n t 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 porti on of the

research support fun ding 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

s ources of RICIS funding. Hale was vicepresident for administration and finan ce, 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

i mpact, however; none of the defendants

adopted her position or changed the allocation

of funds.

In May 19 95, Hayes notified Gerhart that

her employment was being terminated, citing

a lack of progress to broaden the funding base

for RICIS. In the dismissal let t er, Hayes invited her to present any argument or evidence as to why she should be retained. Gerhart did

not dispute that the funding for R I CIS had

declined precip it ously 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 performa n ce to her

success in diversifying the funding sources for

RICIS.

Gerhart appealed her dismi ssal

administratively wit hin the university, which

assembled a grievance hearin g panel of one

faculty member and two administrators, all of

whom were chosen by a human r esources

director without any influence by defendants.

A fter hearing testimony and receivin g

documents from Gerhart, the panel upheld the

te rmination. 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

c o mplaints about RICIS’s allocation of

funding and had violated her procedural due

process rights guaranteed by th e Fifth and

Fourteenth Amendments. The defendants

moved for summary judgment on the basis of

qualified immunit y. 1 The district court denied

1 Gerhart argues, for the first time on appeal,

that the defendants’ assertion of qualified immu n ity

within one month of the date of trial is abusive and,

as a result, that we should summarily dismiss the

appea l. She points to the fact that at the time the

summary judgment motion was filed, the

scheduling order in effect had closed discovery and

had closed the filing for dispositive motions.

T he defendants correctly point out, however,

(continued...)3

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 C

olston v. Barnhart, 146

F.3d 282 (5th C ir.) (on petition for rehearing

en banc), cert. denied

, 525 U.S. 1054 (1998),

as supporting the proposition that a defendant

may no t 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 B ehrens v. Pelletier

, 51 6 U.S. 299 (1996), the C olston 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 quest ion are g enuine .” C olston

, 146 F.3d at 284 (emphasis added).

More significant ly, the Colston court noted

the district co urt’s second legal conclusion

“that the issues of fact are material , i.e.,

resolution of the issues might a f fect the

outcom e of the suit under governing law.” I d.

(emphasis added). While the first of these

determinations was not revie w able, Colston

and Behrens made “clea r that an appellate

court is free to rev iew a district court’s

d e termination that the issues of fact in

question are material.” Id.

When a district court does not identify the

evidence that cre at es 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.” B ehrens

, 516 U.S. at 313. Here,

on both claims the district court st ated onl y

summarily that there remained genuine issues

of material fact that precluded summary

judgme n t. Consequently, we may review the

underlying fact

s to make our own

determinati on on b oth genuineness and

materiality issues.

Moreover, we have jurisdiction to consider

whether the district court applied t he correct

legal standard on summary judgment. 3 Here, (...continued)

that their motion was timely filed on the deadline

for dispositive motions. Because Gerhart does not

set forth any facts that would suggest that the defendants acted with any dilatory or improper motive in filing when they did, we decline the request

to dismiss.

2 Gerhart also quotes Lemoine v. New Horizons

Ranch & Ctr., Inc.

, 174 F.3d 629 , 633 (5th Cir.

1999), in which we stated, in a qualified immunity

case, that “[w]e have appellatejurisdiction to review the district court’s decision denying summary

judgment only to the extent it turns on an issue of

law. Or said differently, our appellate jurisdiction

does not al l ow us to review that district court’s

factual findings.” Gerhart does not read enough of

Lemoine

, however, for that court actually held that,

consistent with Colston

, we defer only to a district

court’s articulation of the genuinely disputed facts,

not to a determination that those facts are material.

See id. at 634. 3 See Hare v. City of Corinth

, 74 F.3d 633, 638

(5th Cir. 1996) (en banc) (holding that the appeal

did not present a fact-intensive inquiry, but “[r]ather , it presents a legal issue antecedent to the

(continued...)4

that review involves a question of what are the

necessary elements of each of Gerhart’s claims

and whether there are ge nuine issues of

material fact on each of those elements. These

are questions of law that we review d e novo

. Before reaching the narrower issue of qualified

immunit y, we must consider whether the plaintiff has alleged the violati o n of a clearly

established constitutional right. S ieg ert v.

Gilley , 500 U.S. 226, 232 (1991).

III.

Defendants argue that the district court incorrectly rejected their qualified immunit y 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 rig ht to procedural due process because she was not provided sufficient notice of

the reason for her termination and was not afforded the op p ortunity 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 opportuni ty for Gerhart to be

heard. The court did not identify what those

issues of fact were, however, bu t instead focused almost exclusively on just ifying its conclusion that Gerhart held a constitutionally

protected property interest in continued

employment.

Regardless of the nature of Gerha rt’s interest in her employment, 4 it was incumbent

o n the court to identify which facts were at

issue and were mat erial to her claim of a due

process violation. Because it failed to do so,

w e 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 opportuni ty to respond.

See generally Cleveland Bd. of Educ. v. Loudermill

, 470 U.S. 532 (1985). In our review

o f the record, we find no facts that suggest

that Gerhart did not receiv e bot h. First, it is

undisputed that she received t he t ermination

l et t er from Hayes. It provided her with the

reason for her termination, 

### SS i.e., her complete

failure to achieve the main job objective of

increasing funding for RICIS 

### SS and 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 do cumentation in an

attempt to rebut any criticism of her

perfo rmance. Hayes read her response. It is

odd, t hen, that Gerhart still maintains that

although she received the letter, o n 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 opportuni ty to be heard, because she

w as not allowed an attorney a t her

(...continued)

determination of whether ther e a re genuine issues

of material fact. Our review of the legal issues in

this appeal goes to the legal question of the correct

legal standard.”). 4 For purposes of this appeal, the defendants

have conceded

that Gerhart has a constitutionally

protected liberty interest in continued employment.5

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-term i nation administrative revi ew

hearing. The fundamental issue in due process

law is not whether state o fficials violated state

law, but whether they provided the plaint iff

with the constitutional minima. 6

Gerhart has not set forth any facts

establishing that t h e defendants violated the

constitutio nal due process minima of notice

and an opportuni ty t o be heard. S ee

Loudermill. T herefore, the district court erred

in denying summary judgment on this claim.

IV.

The defendants appeal t he denial of their

summary judgment motion on Gerhart’s First

Amendment claim. They contend that she has

not set forth sufficient facts to establish the required elemen t s for determining whether a

public employee has been discharged in

retaliation for constitutionally protected

speech, to-wit

, that (1) the employee’s speech

must be “a matter of public concern;” (2) “the

public employee’s interest in commenting on

matters o f public concern must outweigh the public employer’s interest in promoting

efficiency;” and (3) “the employee’s speech

must have motivated the decision to discharge

the employee.” F

owler v. Smith

, 68 F.3d 124,

126 (5th Cir. 1995).

The district court concluded that there was

“a fact question concerning whether Gerhart’s

expression of concern regarding allocation of

RICIS funds constitutes protected speech and

if so, whether her utterance of this speech was

the re al reason she was terminated.” But the

court is mistaken. The question whether Gerhart’s expression is constitutionally protected

speech is a legal issue, not a f a ctual one, and

there is no dispu te as to the content of that

s peech. Consequently, whether Gerhart’s

s peech is a matter of public concer n is a

question that is appropriate for summary

judgment.

In Wallace v. Texas Tech Univ

. , 80 F.3d

1042, 1051 (5th

Cir. 1996), we held that

“speech made in the role as employee is of

p u blic concern only in limited cases: those

invol v ing the report of corrupti on or

wrongdoing to higher authorities.” (Emphasis

added.) Gerhart relies on Barnes v.

McDow ell

, 848 F.2d 725,734 (6th Cir. 1988),

for the proposition that “it is possible to view

allegations that public monies are being spent

u nwisely and that government progra m is

being run inefficient ly, as implying that public

agency or official is corrupt.”

But even Barnes does not support Gerhart’s position, for that court opi ned that

“when a defendant has moved for summary

judgment, a plaintiff must present concrete

evidence to support the a llegation [of

retaliation] in order to survive the m o tion.”

Id. Gerhart has not done this: She sets forth

no facts or allegations that she spoke out as a

citizen, rather than as an employee. Likewise, 5 On appeal, Gerhart does not r enew her

argument that the administrative review panel’s

members were biased.

6 See FM Properties v. City of Austin

, 93 F.3d

167, 174 (5th Cir. 1996) (“Converting alleged violations of state law into federal due process claims

improperly bootstraps state law into the

Constitu tion.”) (internal punctuation marks

omitted) ( quoting Stern v. Tarrant County Hosp.

Dist.

, 778 F.2d 1052 , 1056 (5th Cir. 1985)

(en banc)).6

she has presented no evidence or allegations

that her speech involved the re porting of any

corrupti on or wrongdoing by the de fendants.

The only logical inference from the facts

presented i s that Gerhart was speaking in her

role as an employee, and, co n sequently, her

expression was not a matter of public concern

and was not constitutionally protected speech.

Thus, t he district court should have granted

summary judgment. 7

The order denying summary judgment is

REVERSED, and a judgment of dismi ssal is

RENDERED in favor of defendants.

7 S ee Wallace

, 80 F.3d at 1051 (upholding

summary judgment because plaintiff “failed to

allege facts, much less present evidence, sufficient

to constitute speech on a matter of public

concern”). Accord Barnes , 848 F.2d at 736 (noting that plaintiff “presented no evidence linking any

of [the employee’s expression] to corruption in the

Bureau or in the Program. Consequently, instead

of having addressed a matter of public concern,

[plaintiff’s] complaints appear to be nothing more

than examples of the quintessential employee beef:

management has acted incompetently.”).