IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-30595

VERONICA GLOVER,

Plaintiff - Appellant

v.

MARILYN SMITH, in her official capacity as Acting Clerk of Shreveport City

Court; FRANCES MANISCALCO YOUNGBLOOD, Independent Executrix of

the Succession of Virginia Maniscalco Hester; R. Lee IRVIN, in his official

capacity; CHARLES KELLY, in his official capacity; RANDY COLLINS, in

his official capacity; PAMMELA LATTIER, in her official capacity,

Defendants - Appellees

Appeal from the United States District Court 

for the Western District of Louisiana

USDC No. 5:09-CV-978

Before KING, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

This appeal is from the grant of summary judgment in favor of the

Defendants-Appellees in an employment discrimination case. PlaintiffAppellant raises a procedural due process violation and federal and state

retaliation claims. Finding no reversible error, we AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

June 13, 2012

Lyle W. Cayce

Clerk

 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.

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I. BACKGROUND

The Shreveport City Court is comprised of four elected judges. Pursuant

to statute, the judges appointed Virginia Hester (Hester) as the Clerk of the City

Court. Hester had been serving as the Clerk since 1979. At the time of the

instant proceedings, the following judges were serving on the court: Judge

Collins, Judge Irvin, Judge Kelly and Judge Lattier. 

In 1998, Plaintiff-Appellant Veronica Glover (Glover) began working for

the Shreveport City Court as a deputy clerk. In 2002, Rebecca Payne (Payne)

was Glover’s supervisor and on two occasions documented Glover’s attitude 

problem and/or failure to perform a requested task. Joann Howard (Howard)

also completed a performance documentation, noting that Glover had an

insubordinate attitude. Glover, Payne, and Howard are African-American. 

In 2005, Rita Jackson (Jackson) became Glover’s supervisor. Jackson’s

reviews of Glover from 2005 through 2007 indicate Glover was adequately

performing her duties. On June 26, 2007, Jackson completed a performance

documentation noting that Glover had been conducting duties for an outside job

while on duty as a deputy clerk. Glover denied the accusation. 

On July 2 & 17, 2007, Glover filed race discrimination and harassment

complaints with the personnel department. Glover thereafter filed a complaint

of race discrimination with the EEOC and a race discrimination and retaliation

complaint with the Louisiana Commission on Human Rights. In August 2007,

Glover’s attorney wrote to the city attorney to make a complaint of harassment

against Hester and Jackson. Glover claimed that she had been falsely accused

of conducting personal business during court hours and had been retaliated

against for making a complaint to personnel. Glover’s attorney sent a similar

letter to Judge Kelly on October 2, 2007. At some point, Glover accused Hester

of working a secondary job during court hours.

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In April 2008, Glover was standing at the security desk in the entrance to

the court and talking to Deputy Marshal Isaac Brass about Charlie Caldwell’s

recent appointment as interim City Marshal. Glover told Brass that she had

heard that Caldwell used drugs. At least part of that conversation was captured

on surveillance video. After hearing the video, Marshal Caldwell made a

complaint about Glover’s remarks. 

In late April, Glover began taking leave under the Family Medical Leave

Act. While Glover was on leave, Hester and Judge Irvin made an inquiry with

personnel as to whether Glover’s statements about Marshal Caldwell were

grounds for dismissal. Judge Kelly was included in this correspondence. 

Meanwhile, Hester drafted a termination notice. The director of personnel

responded that dismissal based on her remarks may be seen as violating her

First Amendment rights. Also, dismissal on that basis could trigger a retaliation

claim, and the fact that Glover was on leave status was a concern. The director

further advised Hester to consult legal counsel with respect to “[w]hether or not

a termination can be made defensible on any ensuing issue.” 

Upon Glover’s return to work on July 23, Hester did not terminate her but

instead re-assigned her to a different division with the same pay grade. Hester

began cautioning Glover’s co-workers about going to lunch with Glover. Hester

questioned Glover’s co-workers regarding why Glover had accused her of selling

shoes during court hours. 

On January 14, 2009, Glover and a co-worker, Angela Clay (Clay), were

involved in a heated verbal altercation. The next day, Clay reported the incident

to Judge Irvin. Judge Irvin referred the matter to Hester, informing her that

this incident constituted grounds to terminate Glover. Judge Kelly agreed, and

Hester terminated Glover.

After Glover’s termination, the judges met to review Hester’s report and

watch a surveillance video of the incident between Glover and Clay. Judge

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Collins did not think Glover had been treated fairly. The judges took a vote on

reinstating Glover. Judges Collins and Lattier voted to reinstate Glover. Judges

Kelly and Irvin voted to uphold the decision to terminate. Pursuant to the

court’s policy, it takes three votes to reach a decision. Because the judges’ vote

was split, Glover was not reinstated. 

Glover filed suit in district court against Hester both in her individual

capacity and her official capacity as clerk of court. Since the filing of this appeal,

a suggestion of death was made and the new clerk, Marilyn Smith, in her official

capacity as Acting Clerk, has been substituted for Hester. Glover also sued the

city court judges in their official capacity. Glover raised several claims under

federal and state law, including retaliation for protected speech under the First

Amendment, and violation of procedural due process. Hester and the judges

filed a joint motion for summary judgment. Glover also filed a motion for

summary judgment on the procedural due process claim. Initially, the district

court granted the defendants’ motion for summary judgment, dismissing all

claims except the procedural due process claim and denying Glover’s motion for

summary judgment. The defendants moved for reconsideration ofthe procedural

due process claim, and the district court granted their motion, dismissing the

remaining claim. Glover now appeals.

II. ANALYSIS

A. Standard of Review

We review summary judgment de novo, using the same standards as the

district court. Holt v. State Farm Fire & Cas. Co., 627 F.3d 188, 191 (5th Cir.

2010). Summary judgment is proper when “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). We view the evidence and all justifiable inferences in the light

most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986). 

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B. Procedural Due Process

Glover contends that she had a protected property interest in her

employment. In Louisiana, “[a]bsent a specific contract or agreement

establishing a fixed term of employment, an employer is at liberty to dismiss an

employee at any time for any reason without incurring liability for the

discharge.” Tolliver v. Concordia Waterworks Dist. No. 1, 735 So.2d 680, 682

(La.App. 3 Cir. 1999) (internal quotation marks and citation omitted). 

Glover “bases her property interest upon a mutual understanding with the

city court judges that [her] employment would not be terminated except for

cause.” Glover points to the testimony of Judge Kelly and Judge Collins, which

indicated that their practice was to dismiss for cause. Based on this mutual

understanding, Glover contends that a property interest arose that was

protected by the procedural due process provisions of the Louisiana Constitution

and the Fourteenth Amendment.

The Appellees admit that mutually explicit understandings can give rise

to property interests under Louisiana law. Indeed, “[e]xplicit contractual

provisions or ‘other agreements implied from the promissor’s words or conduct

in light of the surrounding circumstances’ may also create property interests.”

Driscoll v. Stucker, 893 So.2d 32, 42 (La. 2005) (quoting Perry v. Sindermann,

408 U.S. 593, 601-02 (1972)). However, this Court has “held that when formal

rules and informal understandings conflict, the formal rules control. In other

words, when the state provides an explicit and formal policy governing

entitlement to a job, informal and customary understandings cannot create a

property interest in the face of the formal rules.” Staheli v. Univ. of Miss., 854

F.2d 121, 125 (5th Cir. 1988). 

The Appellees point to the Shreveport City Court Employee Handbook,

which provides that Glover’s position was an unclassified employee position. 

They further point to Glover’s signature on an acknowledgment of receipt of the

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handbook, which stated that she understood that “nothing in this document

should be construed as creating any entitlement to any process described or in

any way changing the ‘at will’ nature of non-classified employment.” She further

acknowledged that she understood she was “free to resign from my position with

the Court at any time, just as the Court is able to terminate my employment at

any time.” 

The Appellees also point to a statute, which provides in pertinent part: 

“The judge may appoint one or more deputy clerks to serve at the pleasure of the

judge.” La. R.S. § 1887 (emphasis added). In response, Glover points to the

statute that provides the number of clerks and deputy clerks the judges of the

Shreveport city court shall appoint. La. R.S. § 2086. Glover contends that

because the statute that is specific to Shreveport does not contain the phrase

“serve at the pleasure of the judge,” the judges were free to modify her “at will”

employment by imposing a cause requirement. This argument is unpersuasive. 

The district court correctly observed that § 2086 was simply a miscellaneous

provision establishing the parameters of the Shreveport City Court but it did not

change the “at will” status of deputy clerks. As such, although Glover may have

created a fact issue with respect to existence of a mutual understanding with the

city court judges about the procedures for job termination, that informal

understanding directly conflicts with the explicit, formal policy governing her

entitlement to the position of deputy clerk. The formal “at will” policy thus

controls. Staheli, 854 F.2d at 125. The district court properly found that Glover

did not have a property interest in her job and granted summary judgment on

the procedural due process claim.1

Glover argues thatthe district court erred in considering the reasons for her dismissal 1

when it analyzed her state law procedural due process claim. We do not see any indication

that the court improperly considered the reason for her dismissal in its analysis. Glover also

argues that Hester did not have the authority to dismiss her and thus, her dismissal was a

nullity in violation of her procedural due process rights. This argument is without merit

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C. Retaliation Claims Based on Protected Speech

Glover contends that the district court erred in granting summary

judgment on her claims of retaliation based on protected speech under the First

Amendment. To make a § 1983 claim for First Amendment retaliation, Glover

must demonstrate: (1) that she suffered an adverse employment action; (2) that

she spoke as a citizen on a matter of public concern; (3) that her interest in the

speech outweighed the government’s interest in the efficient provision of public

service; and (4) that the speech caused the adverse employment action. Nixon

v. City of Houston, 511 F.3d 494, 497 (5th Cir. 2007). 

1. Protected Speech Regrading Public Official

Glover contends that the district court erred in granting summary

judgment on her retaliation claim that her employers terminated her because

of her protected speech that the City Marshal had used drugs. The district court

ruled that Glover had suffered an adverse employment action and that she was

speaking as a citizen (not an employee) when she made the comments during a

conversation with a friend. However, the question whether her interest in the

speech outweighed the government’s interest in the efficient provision of public

service gave the court “pause.” The court likened Glover’s remarks to idle gossip

as opposed to whistle blower speech. Nonetheless, “out of an abundance of

caution, the Court . . . assume[d] that Glover’s interest in the speech outweighs

the government’s interests.” 

The district court ruled that the nine-month delay between Glover’s

protected comments and her discharge failed to show causation. This Court has

explained that “a time lapse of up to four months has been found sufficient to

satisfy the causal connection for summary judgment purposes.” Evans v. City

of Houston, 246 F.3d 344, 354 (5th Cir. 2001) (internal quotation marks and

because, as set forth above, Glover has no property interest in her employment.

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citation omitted) (emphasis added). Accordingly, the district court was correct

that under this Court’s precedent, a 9-month interval would not support

temporal causation. See, e.g., Raggs v. Miss. Power & Light Co., 278 F.3d 463,

471–72 (5th Cir. 2002) (five-month period alone insufficient to support inference

of causal link). 

The district court alternatively ruled that even assuming Glover had made

a prima facie case, her claim would fail because Hester terminated her based on

her altercation with a co-worker. In other words, the court ruled that Glover had

not shown that the Appellees’ proffered nondiscriminatory reason was a pretext. 

We agree. Once a plaintiff establishes a prima case of retaliation, the burden of

production shifts to the employer to advance a legitimate, non-discriminatory

reason for the adverse employment action. Aryain v. Wal-Mart Stores Tex. LP,

534 F.3d 473, 484 (5th Cir. 2008). Here, the employers pointed to Glover’s

altercation at work with a co-worker. Glover does not dispute that she had an

altercation with a co-worker and has failed to raise a genuine issue of fact with

respect to whether the proffered reason was pretext. 

2. Protected Speech Regarding Commercial Activity 

On June 27, 2007, Glover was accused of conducting personal business

during work hours. On July 2, 2007, Glover submitted a complaint of racial

discrimination with the City of Shreveport, alleging that although several other

individuals,including Hester, were routinely conducting outside business during

work hours, she was the only person targeted. Glover also submitted a

complaint alleging retaliation and discrimination with the EEOC on October 1,

2007. On January 16, 2009, Hester terminated Glover. 

The district court found an adverse employment action. With respect to

whether Glover spoke on a matter of public concern, the court, “out of a sense of

caution and realizing that [Glover’s] complaint implicates the misuse of

government time and salaries the Court will find that [it] . . . is a matter of

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public concern.” The court also found that her interest in the speech outweighed

the city court’s interest in the efficient provision of services. Nevertheless, the

district court ruled that because she was terminated a year and a half after filing

the complaint she could not show that her speech caused her termination. As

the district court noted, the Appellees were made aware of Glover’s complaint

shortly after she made it on July 2, 2007, and she was not terminated until

January 16, 2009. The district court correctly found that Glover failed to carry

her burden of causation with respect to this speech. See Clark Cty. Sch. Dist. v.

Breeden, 532 U.S. 268, 274 (2001) (explaining that a twenty-month lapse

between employee’s protected activity and adverse employment action indicates

no causation). 

D. State Law Retaliation Claim 

Pursuant to Louisiana law, Glover also argues that the Appellees

retaliated against her for filing a claim of racial discrimination in which she

alleged that, although other individuals routinely conducted outside business

during work hours, she was the only person written up. This state law claim of

retaliation is the mirror image of the First Amendment retaliation claim

discussed above in Section II.C.2. 

The district court ruled that the anti-retaliation provision in Louisiana’s

Human Rights Act (LHRA) did not extend to employment discrimination claims

addressed in the Louisiana Employment Discrimination Law (LEDL). Thus,

because the court held that no cause of action for retaliation in the context of an

employment discrimination exists under Louisiana law, it dismissed her state

retaliation claim.

In 1988, the Louisiana legislature enacted the LHRA, La. R.S. § 51:2231,

et seq., and also created the Louisiana Commission on Human Rights

(Commission) to enforce the LHRA. Smith v. Parish of Washington, 318

F.Supp.2d 366, 371 (E.D. La. 2004). “As part of its original charge, the

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commission was granted statutory authority to address allegations of unlawful 

discriminatory practices in employment.” Id.; see §§ 51:2242-2245. The LHRA 

contained the following anti-retaliation provision, which made it unlawful for

employers:

[t]o retaliate or discriminate in any manner against a person

because he has opposed a practice declared unlawful by this

Chapter, or because he has made a charge, filed a complaint,

testified, assisted, or participated in any manner in any

investigation, proceeding, or hearing under this Chapter.

§ 51:2256. 

Subsequently,in 1997, the Louisiana legislature repealed §§ 51:2242-2245

and replaced those provisions with the LEDL, La. R.S. §§ 23:301, et seq. Smith,

318 F.Supp.2d at 371. The LEDL, however, “does not contain its own retaliation

provision” in the context of racial discrimination. Lowry v. Dresser, Inc., 893

So.2d 966, 967 (La.App. 3 Cir. 2005). Thus, the question is whether the

anti-retaliation provision in the LHRA “continues to apply to employment

discrimination after the 1997 revisions.” Smith, 318 F.Supp.2d at 372. 

We have found no controlling precedent addressing the instant question. 

Because the Louisiana Supreme Court has not addressed this question, we must

make an “Erie guess and determine as best [we] can what the Louisiana

Supreme Court would decide.” Howe ex rel. Howe v. Scottsdale Ins. Co., 204 F.3d

624, 627 (5th Cir. 2000) (internal quotation marks and citation omitted). “In 2

making an Erie guess in the absence of a ruling from the state’s highest court,

this Court may look to the decisions of intermediate appellate state courts for

guidance.” Howe ex rel. Howe v. Scottsdale Ins. Co., 204 F.3d 624, 627 (5th Cir.

2000). Louisiana’s Third Circuit Court of Appeal has addressed the precise

issue at hand. Lowry, 893 S.2d 966. Because there were no reported Louisiana

 See Erie R. Co. v. Tompkins, 304 U.S. 64 (1938). 2

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cases addressing the 1997 amendments, the Court of Appeal looked to federal

cases. The Court of Appeal recognized a magistrate judge’s ruling that the

anti-retaliation provision in the LHRA continues to apply in the employment

discrimination context because “the definition section of the [LHRA] still defines

an ‘unlawful practice’ as ‘a discriminatory practice in connection with

employment.’” Id. at 967-68 (quoting Miller v. American Gen. Fin. Corp., 2002

WL 2022536, at *7 (E.D. La. 2002) (unpublished). The Court of Appeal then

looked to Judge Fallon’s decision in which he came to the opposite conclusion of

the magistrate judge in Miller. Smith v. Parish of Washington, 318 F.Supp.2d

366, 371 (E.D. La. 2004). In a published opinion, Judge Fallon noted that the

Louisiana legislature had included specific anti-retaliation provisions in sections

of the LEDL addressing age discrimination and sickle cell trait discrimination;

however, the corresponding sections addressing race, color, religion, sex,

national origin, and pregnancy did not contain an anti-retaliation provision. 

Smith, 318 F.Supp.2d at 372. The district court opined that “[h]ad the

legislature intended to include parallel provisions in the other sections, [it]

would have done so.” Id. at 373. Accordingly, Judge Fallon ruled that “as a

matter of law, § 51:2256 no longer applies to unlawful employment

discrimination.” Smith, 318 F.Supp.2d at 373. 

After quoting extensively from Judge Fallon’s decision, the Louisiana

Court of Appeal agreed with his conclusion and held that after the statutory

amendments, the anti-retaliation provision in the LHRA does not apply to

employment discrimination claims. Lowry, 893 So.2d at 968. Thus, the Court

of Appeal held that the plaintiffs did not have a cause of action for retaliation. 

Id. We are persuaded by the opinion of the Louisiana Court of Appeal and

likewise hold that the statute does not provide a cause of action for retaliation

in the context of employment discrimination cases. 

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In any event, even assuming arguendo that the Louisiana Supreme Court

would recognize a claim for retaliation, Glover is not entitled to relief. As

explained above in Section II.C.2, Glover’s mirror image claim for retaliation

under federal law fails, and Louisiana courts analyze claims of racial

discrimination in employment pursuant to Title VII standards. DeCorte v.

Jordan, 497 F.3d 433, 437 (5th Cir. 2007). Therefore, assuming arguendo that

Louisiana recognizes such a retaliation claim, because Glover’s claim fails on the

merits, the district court properly granted summary judgment in favor of the

defendants. 

III. CONCLUSION

For the above reasons, the district court’s judgment is AFFIRMED.

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