*Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 97-60086

Summary Calendar

 

ALFRED SHORT,

Plaintiff-Appellant,

versus

CITY OF WEST POINT, MISSISSIPPI;

RICHARD STRIPLING,

Defendants-Appellees.

 

Appeal from the United States District Court

For the Northern District of Mississippi

USDC No. 1:95-CV-359-D-D

 

August 29, 1997

Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.

PER CURIAM:*

Alfred Short appeals the district court’s grant of summary

judgment in favor of defendants. Short attempts to convince us

that the filing of his EEOC charge is protected speech under the

First Amendment. We disagree and affirm the decision of the lower

court. 
2

Short began working for the City of West Point Fire Department

on January 16, 1992, as a firefighter/EMT. At the time, he was

residing in Macon, Noxubee County, Mississippi. An explicit

qualification for employment in the West Point Fire Department was

residence in Clay County. In July of 1994, a position as

Engineer/Pump Operator opened at the Fire Department. Short

applied for the job and made the highest grade on the test, but he

did not get the promotion. The men promoted had several years more

experience than Short and were white. 

On November 1, 1994, Short filed an EEOC charge. The EEOC,

however, found that the other two applicants were more qualified

and issued a right-to-sue letter. By the time Short filed his

Title VII claim, the statute of limitations had run. 

Short was fired for failing to comply with the residency

regulation. On November 24, 1995, he filed this suit, which

alleges both race discrimination and a violation of the First

Amendment. The district court granted summary judgment to the

defendants on the race discrimination claim, and Short has not

appealed that ruling. In his remaining claim, Short asserts that

the filing of an EEOC charge is protected under the First Amendment

and that his firing constitutes an unconstitutional retaliatory

action on the part of West Point. 

This case is controlled by Ayoub v. Texas A&M Univ., 927 F.2d

834 (5th Cir. 1986), cert. denied, 479 U.S. 1064, 107 S.Ct. 948

(1987). In Ayoub, the plaintiff filed a discrimination complaint
3

based on his belief that he was paid a salary that reflected a

discriminatory pay scale that penalized foreign-born professors and

rewarded white, American professors. Additionally, he claimed that

his office was relocated in retaliation for engaging in

constitutionally protected speech: the filing of an EEOC charge.

We held that Ayoub’s speech was not protected because it did not

address a matter of public concern. Lodging a complaint with the

EEOC, without further airing of grievances, creates a private,

personal dispute between employer and employee. It does not create

a generalized petition for a remedy to a public problem. Id. at

837-838. 

Short also relies on the theory that the First Amendment gives

special protection to EEOC claims. This argument rests on the view

that 42 U.S.C. §2000e-3(a) affords unqualified protection to the

filing of these claims. However, we held in Rathjen v. Litchfield

that “[t]he law is no different where the act which allegedly gave

rise to the retaliation claim is the filing of a grievance or a

lawsuit.” 878 F.2d 836, 842 (5th Cir. 1989). Both are subject to

the qualification that the complaint be a matter of public concern.

This type of speech is not protected by the First Amendment because

it concerns merely personal employment status. 

AFFIRMED.