1

United States Court of Appeals,

Fifth Circuit.

Nos. 96-20122, 96-20191.

Shirley BRADY, Plaintiff—Appellee-Cross-Appellant,

v.

HOUSTON INDEPENDENT SCHOOL DISTRICT; Ernie Carney; Faye Bryant,

Defendants—Appellees,

Thomas Cortese; Brent Mahaffey; Steve Sokol,

Defendants—Appellants-Cross-Appellees.

Shirley BRADY, Plaintiff-Appellee,

v.

HOUSTON INDEPENDENT SCHOOL DISTRICT, et al., Defendants,

Thomas Cortese; Brent Mahaffey; Steve Sokol, DefendantsAppellants.

June 11, 1997.

Appeals from the United States District Court for the Southern

District of Texas.

Before DAVIS, SMITH and DUHÉ, Circuit Judges.

DUHÉ, Circuit Judge:

In March 1994, Shirley Brady sued the Houston Independent

School District ("HISD"), four HISD employees (Thomas Cortese,

Brent Mahaffey, Steve Sokol, and Faye Bryant), and Ernie Carney, an

outside computer consultant employed by HISD on an hourly basis.

Brady alleged numerous federal and state claims relating to her

reassignment from her position as systems programmer to a position

of significantly reduced responsibilities. The district court

dismissed many of these claims both pre- and post-trial, and Brady

prevailed only on her First Amendment retaliation claim against
 

1Cortese, Mahaffey, and Sokol are actually both the Appellants

and Cross-Appellees, but for the sake of brevity, we refer to them

collectively as the Appellants. 

2

three of the HISD employees (Cortese, Mahaffey, and Sokol),

securing a jury verdict of $546,200 in compensatory and punitive

damages. The three employees (collectively, the "Appellants"1)

unsuccessfully moved to set aside the verdict as a matter of law,

and they now appeal. Brady cross-appeals, contending that the

district court erred by dismissing her other claims.

We believe that the evidence is insufficient to support the

jury verdict on Brady's First Amendment claim. We therefore

reverse and render judgment for the Appellants, and accordingly

also vacate the order granting attorney's fees to Brady. Because

we conclude that the issues raised by Brady's cross-appeal are

without merit, we affirm the district court's dismissal of her

various other claims.

I

This lawsuit concerns two significant incidents in the recent

history of HISD's data processing department. The first occurred

in the fall of 1991, when Shirley Brady testified before HISD

investigators about certain inappropriate activities on the part of

Ernie Carney and Alexander Winkler. The second transpired in early

1993, when HISD divested Brady of her duties as systems programmer

following a computer breakdown and then outsourced these duties to

a computer consulting firm that employed Carney. The central

question is whether the Appellants dispossessed Brady of her

systems-programmer responsibilities in early 1993 in retaliation
3

for her protected statements made to HISD investigators in late

1991. Before turning to this issue, we first provide a more

detailed summary of the facts and procedural history of the

litigation.

A

In 1984, Shirley Brady was hired by HISD as systems programmer

for the data processing department. Because of the heavy demands

of Brady's job, however, HISD frequently contracted with outside

computer consultants on an hourly basis to assist Brady with her

duties. The most frequently used consultant was Ernie Carney, and

from approximately 1984 through 1991, Brady and Carney worked

together in the data processing department.

In August 1991, a local television station aired an exposé

revealing improprieties in HISD's data processing department. As

a result of this program, HISD conducted an internal investigation

of the department, interviewing every member of that department,

including Brady and Appellants Brent Mahaffey and Steve Sokol.

Brady disclosed to investigators that Carney had confided in her

that he and Alexander Winkler, who at the time was the assistant

superintendent in charge of the data processing department, had

engaged in wrongdoing. According to Brady, Carney had lent money

to Winkler; when Winkler was unable to repay the loan, Carney

confronted him and, in exchange for forgiveness of this loan,

demanded to be given a higher hourly wage and to be paid for hours

not actually worked. Winkler apparently acceded to these demands.

Following the internal investigation, Winkler resigned under
 

2The chain-of-command, from most senior to least, is as

follows: Bryant, Cortese, Mahaffey/Sokol, and Brady. Unlike the

other three administrators, Sokol was not Brady's direct

supervisor, but his position was roughly equivalent in seniority to

that of Mahaffey. 

4

pressure from HISD's Board of Trustees, and HISD ceased employing

Carney as an hourly consultant. Appellant Thomas Cortese replaced

Winkler as the assistant superintendent in charge of data

processing. Brady remained in her job as systems programmer,

continuing to receive positive employment evaluations.

During the 1992 Christmas break, Brady "converted" HISD's old

computer operating system to a newer one. Although the conversion

was completed over the break, the financial programs were

inoperative when HISD employees returned to work after the holiday.

Faye Bryant, the deputy superintendent for district planning, soon

learned of the problem, and she pressured Cortese, who in turn

looked to Brady, to fix the problem immediately.2 Brady determined

that she needed outside help, and asked Cortese to rehire Ernie

Carney. After Cortese approved the request, HISD rehired Carney as

a consultant on an hourly basis. The problems with the financial

programs were soon fixed, although the parties dispute whether the

solution was due to the efforts of Carney or Brady.

Shortly thereafter, HISD administrators (including Bryant,

Cortese, Mahaffey, and Sokol) decided to outsource the

systems-programmer duties to Operating Systems, Inc. ("OSI"), a

computer consulting firm run by Mike Cox that employed Carney as a

consultant. As part of the negotiations between HISD and OSI,

Carney and Cox informed HISD that they could not guarantee OSI's
 

3Although Brady remained the titular systems programmer and

did not suffer any loss of pay, she won damages for mental anguish

and diminished ability to obtain employment. 

5

performance unless OSI consultants had exclusive access to HISD's

computer system. Pursuant to these discussions, Mahaffey, upon the

direction of Cortese, restricted Brady's access to the system.

Because Brady's responsibilities as systems programmer had been

outsourced to OSI, Mahaffey and Cortese recommended eliminating her

position as of September 1, 1993, the beginning of the next fiscal

year.

Concerned about the loss of her job duties, Brady filed a

grievance with HISD in August 1993. HISD never formally acted upon

Brady's grievance, nor did it eliminate her job in September 1993.

Although Brady never again performed the duties of a systems

programmer, she held that position, in name only, until three weeks

before the July 1995 trial date, when she was reassigned to another

job within HISD.3

B

In March 1994, Brady sued Carney, HISD, and four HISD

employees (Cortese, Mahaffey, Sokol, and Bryant). She raised the

following claims: (1) retaliation for her exercise of protected

speech, in violation of the First Amendment; (2) violation of her

right to due process under the Fourteenth Amendment; (3)

conspiracy to deprive her of her right to speak, in violation of 42

U.S.C. § 1983; (4) violation of the Texas Whistleblower Act; (5)

intentional infliction of emotional distress; and (6) tortious

interference with a business relationship. At summary judgment,
 

4The jury actually awarded Brady punitive, but not

compensatory, damages against Bryant. The parties agreed that

these damages should be set aside. 

6

the district court dismissed all of Brady's claims except: (1) the

First Amendment claim against the four HISD employees; (2) the §

1983 claim against the four HISD employees and Carney; and (3) the

intentional infliction of emotional distress claim against Carney.

The case went to trial, and the jury returned a verdict for Brady

on each of the three claims against three of the HISD employees

(Cortese, Mahaffey, and Sokol) and Carney.4 The district court

thereafter directed a verdict for Carney and the HISD employees on

the latter two claims, leaving intact only the verdict on the First

Amendment claim against Cortese, Mahaffey, and Sokol. The court

then awarded Brady $87,930 in attorney's fees against the three.

Cortese, Mahaffey, and Sokol appeal the district court's order

refusing to set aside the jury verdict on the First Amendment

claim. Brady cross-appeals, alleging that the court erred by

dismissing her other federal and state claims. In addition, both

parties appeal the award of attorney's fees.

II

The primary issue raised by Cortese, Mahaffey, and Sokol is

whether the evidence is sufficient to support the jury's

determination that they retaliated against Brady in 1993 for her

exercise of protected speech in 1991. Because we agree with the

Appellants that Brady has presented insufficient evidence to

sustain the jury verdict, we reverse the district court's order

denying the Appellants' motion for judgment as a matter of law, and
7

render judgment for the Appellants.

A

When reviewing a district court's denial of a motion for

judgment as a matter of law, we use the same standard to review the

verdict as that used by the district court. See Hiltgen v.

Sumrall, 47 F.3d 695, 699-700 (5th Cir.1995). We must uphold the

jury verdict unless " "there is no legally sufficient evidentiary

basis for a reasonable jury to find' as the jury did." Id.

(quoting Fed.R.Civ.P. 50(a)(1)). We review the evidence and all

reasonable inferences in the light most favorable to the verdict.

See Polanco v. City of Austin, 78 F.3d 968, 974 (5th Cir.1996). We

must, however, consider all of the evidence, not merely that

favorable to the nonmovant, and a "mere scintilla" of evidence is

insufficient to sustain a jury verdict. See Boeing Co. v. Shipman,

411 F.2d 365, 374 (5th Cir.1969) (en banc). Although we draw

inferences favorable to the verdict, such inferences must be

reasonable and may not rest upon speculation and conjecture only.

See Love v. King, 784 F.2d 708, 711 (5th Cir.1986).

B

In order to establish that one's First Amendment right to

free speech has been violated by an employer's retaliatory conduct,

a plaintiff must prove that (1) her conduct was protected by the

First Amendment, and (2) that such conduct was a "substantial" or

"motivating" factor behind the defendant's action. See Mt. Healthy

City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283-87, 97

S.Ct. 568, 574-76, 50 L.Ed.2d 471 (1977); Click v. Copeland, 970
8

F.2d 106, 113 (5th Cir.1992). If the plaintiff carries this

burden, the defendant must then show, by a preponderance of the

evidence, that it would have taken the same action against the

plaintiff even in the absence of the protected conduct. See Mt.

Healthy, 429 U.S. at 287, 97 S.Ct. at 576; Click, 970 F.2d at 113.

In this case, the Appellants admit that Brady's conduct was

protected by the First Amendment, and therefore we address only

whether Brady has satisfied the causation prongs of the Mt. Healthy

test.

C

1

Brady asserts that she was divested of her job duties as

systems programmer in retaliation for the protected statements that

she had made to HISD's investigators concerning Carney's improper

dealings with Winkler. In support of her contention, she presents

a chronology of events that allegedly gives rise to an inference of

retaliation. Specifically, Brady maintains that since her hiring

in 1984, she had uniformly been viewed as a trusted, respected, and

diligent employee by her supervisors in the data processing

department. After many exemplary years as systems programmer, in

1991, she implicated Ernie Carney in a scandal, and as a result of

her testimony, HISD ceased employing Carney as an outside computer

consultant. Even after making the protected statements, Brady was

still considered to be a valuable employee, and she was twice

recommended for promotion by both Cortese and Mahaffey, her direct

supervisors. In January 1993, however, when Carney—the individual
9

inculpated by Brady—returned to HISD, the Appellants stripped Brady

of her duties as systems programmer and outsourced these duties to

Carney. This action, Brady maintains, gives rise to an inference

of retaliation.

In addition to the above narrative, Brady bolsters her

retaliation claim by pointing out inconsistencies in the

Appellants' testimony. For example, she notes that: (1) although

the Appellants claimed to have restricted Brady's computer access

in response to OSI's request for exclusive access to the system,

they nonetheless allowed another HISD employee to access the

system; (2) the Appellants testified that outsourcing Brady's

duties was a cost-saving proposal, while Faye Bryant testified that

cost was never mentioned in meetings held to consider outsourcing;

(3) outsourcing was not, in reality, a cost-saving measure, for the

Appellants continued to employ and pay Brady as the systems

programmer from 1993 through 1995, although OSI actually performed

and was paid for handling the systems-programmer duties during that

period; (4) in the months immediately after the Appellants

outsourced Brady's duties to OSI, they provided her with

contradictory information regarding whether they would return her

job responsibilities to her; and (5) the Appellants mishandled

Brady's grievance process.

2

Given Carney's prior dishonest conduct, it does appear

suspicious to us that the Appellants dispossessed Brady of her job

duties upon Carney's return to HISD. Nevertheless, our review of
10

the record convinces us that the evidence is insufficient to

support Brady's First Amendment claim against the Appellants. At

the outset, we note that it is entirely reasonable to conclude that

Carney harbored a retaliatory motive against Brady, for it was she

who implicated him in the scandal. Brady has long since abandoned

her First Amendment claim against Carney, however, and before us is

Brady's First Amendment claim against Cortese, Mahaffey, and Sokol

only. She must therefore prove that her protected speech was a

substantial or motivating factor behind the decision of the three

Appellants—not Carney—to divest her of systems programmer duties.

This Brady has failed to do.

First, and most obviously, Brady has presented no direct

evidence that any of the Appellants possessed a retaliatory motive.

This by itself, of course, is not fatal to a First Amendment

retaliation claim, for Brady may also rely upon "a chronology of

events from which retaliation may plausibly be inferred." See

Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir.1995) (internal

quotation marks omitted), cert. denied, --- U.S. ----, 116 S.Ct.

800, 133 L.Ed.2d 747 (1996). We believe, however, that Brady has

also failed to present a chronology of events that would allow

reasonable jurors to draw an inference of retaliation.

It is undisputed that Brady—in her protected First Amendment

statements to the HISD investigators—implicated only Ernie Carney

and Alexander Winkler in wrongdoing; she herself admitted at trial

that her allegations did not concern Cortese (who was not even
 

5The parties argue about whether the three Appellants even

knew the substance of Brady's testimony. Because we view the

evidence in the light most favorable to the verdict, see Polanco,

78 F.3d at 974, we proceed under the assumption that Appellants

were in fact aware of Brady's testimony. 

 

6Brady suggests two possible retaliatory motives: (1)

Mahaffey and Sokol were themselves implicated in the 1991 scandal,

and (2) the scandal subjected the data processing department as a

whole to embarrassment. Neither of these two contentions has

merit.

First, the evidence linking Mahaffey and Sokol to the

1991 scandal was extremely weak. Brady testified at trial

that both of them were investigated—but not implicated—in the

scandal, but she did not suggest that either man committed

wrongdoing of any sort, and there is no evidence that they

were detrimentally affected in any way. Moreover, regardless

of the weight of the evidence against Mahaffey and Sokol,

Brady admitted that she was not the one who had brought the

unsubstantiated accusations against them. Therefore, even if

Mahaffey and Sokol did harbor ill will because of the

investigation, such sentiments would not have been directed at

her.

We are also unmoved by Brady's assertion that

department-wide embarrassment prompted the Appellants to

retaliate against her. Certainly Cortese could not have been

embarrassed by any improprieties that occurred before his

11

employed at HISD at the time), Mahaffey, or Sokol.

5 In addition,

Brady has presented absolutely no evidence that the Appellants may

have retaliated on behalf of, or conspired with, Carney or Winkler.

Brady has not alleged that Cortese, Mahaffey, and Sokol were

friendly with Carney, and indeed Cortese was first introduced to

Carney by Brady herself. Moreover, both Mahaffey and Sokol

testified that they disliked Winkler intensely, and there is no

evidence suggesting that Cortese ever met Winkler. We therefore

find it difficult to believe that any of the Appellants would

retaliate against an employee whose protected speech did not

adversely affect them in any way.6
tenure at HISD, and it simply stretches the imagination too

far to presume that an assertion of such insignificance, by

itself, could provide a retaliatory motive for Mahaffey and

Sokol. 

 

7Moreover, nearly eighteen months elapsed between the date of

Brady's testimony and the date upon which her access to the

computer system was restricted. This lengthy lapse of time, when

coupled with the lack of other evidence supporting Brady's case,

suggests that a retaliatory motive was highly unlikely. See

Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 268 (5th

Cir.1994) (reaching the same conclusion in a case involving a

ten-month lapse of time between the protected statements and the

alleged retaliation). 

12

Brady's case suffers from other critical flaws. During the

eighteen month period between Brady's protected statements and the

Appellants' alleged retaliation, Mahaffey and Cortese gave Brady

positive evaluations and twice recommended that she be promoted.

This fact is utterly inconsistent with an inference of retaliation,

and we fail to understand why two individuals allegedly harboring

a retaliatory motive against Brady would take affirmative steps to

secure a job promotion for her.7

The Appellants have also presented a believable,

non-retaliatory reason for outsourcing the systems programmer

duties. They contend that as administrators in the data processing

department, they were under tremendous pressure to solve the

malfunction with the financial programs that occurred after the

December 1992 conversion. Brady herself was unable to remedy the

problem, and she requested the assistance of Carney, who—despite

his other faults—was a very competent systems programmer familiar

with HISD's computer operations. The problem was resolved shortly

after Carney arrived, although the parties dispute whether Brady or
 

8Cortese's decision to outsource the systems programmer duties

is consistent with his prior behavior. He had previously

outsourced HISD's data entry positions and testified that he had

considered outsourcing the systems programmer position on

cost-related grounds even before the problems arose in connection

with the December 1992 conversion. 

13

Carney was responsible for the solution. Spurred by the crisis,

but also concerned more generally with Brady's ability to

permanently handle the systems-programmer duties by herself,

Cortese testified that he considered two options: (1) hiring

another systems programmer to fill the second systems programmer

position that had been vacant during Brady's tenure at HISD, or (2)

outsourcing the systems programmer duties. Cortese eventually

settled on outsourcing, he testified, because it would both improve

service and save money. The Appellants explain that outsourcing to

a company such as OSI is a more cost-effective way of ensuring the

computer systems's stability because HISD may rely upon the

computer support of an entire company's consultants rather than

that of just one individual.8

Finally, we do not think that Brady's list of the Appellants'

inconsistencies establishes that her protected speech was a

substantial or motivating factor behind the Appellants' decision to

outsource her job responsibilities. Brady must affirmatively

prove—either with direct evidence or with a plausible chronology of

events—that the Appellants divested her of the systems-programmer

duties because of her First Amendment speech. This she has not

done. Merely pointing out inconsistencies in the Appellants'

stated justifications for outsourcing and their other actions does
14

not by the mere fact itself create the opposite inference that the

Appellants harbored retaliatory motivation. Furthermore, we think

that Brady's list of alleged inconsistencies is overstated. Some

of her contentions are after-the-fact attacks on the prudence of

the Appellants' decision to outsource; others establish only that

the Appellants mishandled a delicate situation involving the

termination of a long-time employee; and still others suggest that

the decision to outsource was based upon multiple reasons and that

not all of the HISD administrators were involved in the entire

decision-making process. None of her assertions, however,

affirmatively indicates that any of the Appellants possessed a

retaliatory motive, especially when viewed in conjunction with the

dearth of any evidence suggesting retaliation.

3

Because Brady has not shown that her protected speech was a

substantial or motivating factor behind the Appellants' decision to

outsource the systems-programmer responsibilities, we therefore

conclude that Brady has presented insufficient evidence to sustain

her First Amendment retaliation claim. Although we may be

sympathetic to a trusted employee who has been cast aside after

years of exemplary work, we nonetheless cannot assume, in the

absence of any such evidence, that she was divested of her

responsibilities in retaliation for protected statements. We

therefore reverse the district court's order denying the

Appellants' motion for judgment as a matter of law and render

judgment for the Appellants. Because we hold that the Appellants
15

have prevailed on the merits, we also reverse Brady's award of

attorney's fees.

III

In her cross-appeal, Brady maintains that the district court

erred by: (1) granting Carney's motion for summary judgment on her

claim of tortious interference with a business relationship; (2)

granting Carney's and the HISD employees' motions for judgment as

a matter of law on her § 1983 conspiracy claim; (3) granting

Carney's motion for judgment as a matter of law on her claim of

intentional infliction of emotional distress; (4) granting HISD's

motion for summary judgment on her claim arising under the Texas

Whistleblower Act; and (5) reducing her award of attorney's fees.

Because we conclude that these contentions are wholly without

merit, we affirm the district court in all respects.

IV

For the foregoing reasons, we REVERSE and RENDER judgment in

favor of Cortese, Mahaffey, and Sokol, and we AFFIRM in all other

respects.

REVERSED and RENDERED in part; AFFIRMED in part.