1 United States Court of Appeals,

Fifth Circuit.

No. 93-5490.

Andrea Millicent PIERCE, Plaintiff-Appellant,

v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, et

al., Defendants-Appellees.

Nov. 15, 1994.

App eal from the United States District Court for the Eastern

District of Texas.

Before POLITZ, Chief Judge, GOLDBERG and DUHÉ, Circuit Judges.

DUHÉ, Circuit Judge:

Andrea Millicent Pierce appeals the trial court's judgment in

favor of Appellees Texas Department of Cr iminal Justice,

Institutional Division (TDCJ), Warden Janie Cockrell, and Assistant

War den Harry Kinker. Pierce sued all three defendants for

retaliation under Title VII, and the two wardens under 42 U.S.C. §

1983 for retaliation against her for her alleged First Am endment

speech. The Title VII claim was tried to a judge, who entered

judgment for Defendants. The § 1983 claim was tried to a jury,

which rendered its verdict for Pierce. Nevertheless, on the § 1983

claim the court granted Defendants' Rule 50 motion for judgment as

a matter of law. We affirm.

BACKGROUND

Pierce, an African-American femal e, has been a corrections

officer for fourteen year s. She began working for TDCJ in 1987.

TDCJ transferred her to its Beto I Unit in 1988. Pierce engaged in2

general whistleblowing activity beginning in July 1990. She wrote

an anonymous letter to the Internal Affairs Division about a

relationship between a female officer and a male inmate. She

reported other officer-inmate relationships and racial slurs

written in places to which only officers had access. Pierce filed

several char ges of discrimination with the Equal Employment

Opportunity Commi ssion (EEOC), and she filed numerous grievances

with the warden.

Kinker served as assistant warden at Beto I from 1990 to

September 1992. He was responsible for making personal

investigations of rep orted wrongdoing. Cockrell has served as

senior warden of Beto I since August 1991. Beto I is an all-male,

maximum-security prison. The prison houses 3342 inmates and has

1110 employees.

Pierce complains about the following employment-related

incidents. Kinker investigated a verbal altercation between Pierce

and another officer that took place in December 1990. Kinker found

the other officer guilty and Pierce not guilty in the

i nvestigation. In September 1991, Pierce reported to Cockrell a

relationship between a female officer and a male inmate. A few

weeks later, Pierce was ordered to undergo a polygraph examination.

Another time Kinker warned her to stay out of other people's

business and to take care of herself. According to Pierce, Kinker

also told one of her supervising officers that Pierce was the

smartest black, and if he got her, the rest of the blacks would

fall into line. Pierce was videotaped without authorization once3

while working in the library. In July 1992, Pierce was assigned to

guard the general population showers. She was the only woman at

that time to receive such an assignment. Internal Affairs

investigated Pierce during the summer of 1992 for taking food from

an inmate. The investigation lasted three months, but Pierce was

found not guilty. In addition, Pierce was written up on five

occasions for minor infractions, such as tardiness or walking slow

on post.

In January 1993, Cockrell reprimanded Pie rce for allegedly

telling an inmate to lie. The reprimand was the result of an

Internal Affairs investigation dating back to July 1991. In April

1993, Cockrell put Pierce on probation and reduced her pay for

disclosing confidential information over the telephone. Pierce had

spoken with a union representative after an inmate had sexually

assaulted a female officer.

DISCUSSION

The district court entered judgment as a matter of law on the

§ 1983 claimafter the jury had rendered its verdict. S ee

Fed.R.Civ.P. 50(b). We review that action de novo. O mnitech

Int'l, Inc. v. Clorox Co., 11 F.3d 1316, 1322 (5th Cir.1994), cert.

denied, --- U.S. ----, 115 S.Ct. 71, --- L.Ed.2d ---- (1994). We

will reverse if a rational jury could have co ncluded as the jury

did. I d. at 1323. In contrast, the trial court served as the

factfinder for the Title VII claim. We review a trial court's

findings of fact from a bench trial under a clearly erroneous

standard. Fed.R.Civ.P. 52(a).4

I. Section 1983 Claim

Pierce's § 1983 claim is based on claims that Ki nker and

Cockrell retaliated against her for speaking out on matters of

public concern. To establish a prima facie case, Pierce must

prove: (1) Defendants were acting under color of state law; (2)

Pierce's speech activities were protected under th e First

Amendment; and (3) Pierce's exercise of her protected right was a

substantial or motivating factor in Defendants' actions. M t.

Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287,

97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977). The trial court ruled

that Pierce did not establish the third element. The court

determined that causation was lacking.

Before we can determine whether evidence of causation exists,

we must identify the protected speech and the harm. Pierce's

protected speech consists of her whistleblowing activity, which

occurred regularly between 1990 and 1993. Both Pierce and the

trial court agreed that numerous examples of protected speech were

present. The trial court disagreed with Pierce, however, with

regard to harm. The trial court cited the January 1993 reprimand,

the May 1993 probation/reduction in pay, and the minor disciplinary

write-ups as adverse employment decisions. Pierce points to other

events that she claims had the effect of chilling her speech.

To establish a First Amendment violation, a public employee

must demonstrate that she has suffered an adverse employment action

for exercising her right to free speech. M cCabe v. Sharrett, 12

F .3d 1558, 1563 (11th Cir.1994). Adverse employment actions are1 Rutan 's delineation of the scope of harm actionable under

the First Amendment comports with our pre- Rutan retaliation

cases. See Bickel v. Burkhart, 632 F.2d 1251, 1255 n. 6 (5th

Cir.1980) (requiring important conditions of employment to be

involved in the retaliation). The last sentence of Rutan 's

footnote 8, however, can be read to create a distinction between

retaliation and other claims under the First Amendment. See 497

U.S. at 76 n. 8, 110 S.Ct. at 2738 n. 8 (suggesting that trivial

acts of retaliation may be actionable). Such a literal reading

of this Supreme Court dictum "would be a serious mistake" because

that sentence is inconsistent with the body of the opinion.

Scott v. Flowers, 910 F.2d 201, 216 n. 32 (5th Cir.1990)

(Garwood, J., dissenting). But see Tao v. Freeh, 27 F.3d 635,

639 (D.C.Cir.1994) (applying Rutan 's footnote 8 as the standard

for actionable harm in First Amendment retaliation claim). We

choose not to read the Supreme Court's dicta literally; rather,

we apply the main analysis of Rutan to retaliation claims and

require more than a trivial act to establish constitutional harm.

5 discharges, demotions, refusals to hire, refusals to promote, and

reprimands. I d. (citing Rutan v. Republican Party, 497 U.S. 62,

74, 110 S.Ct. 2729, 2737, 1 11 L.Ed.2d 52 (1990)). The Supreme

Court in Rutan held that the scope of harm actionab le under the

First Amendment was broader than actual or constructive discharge

from employment. 497 U.S. at 74, 110 S.Ct. at 2737. Although

Rutan concerned employment practices relating to political

patronage, we have applied Rutan to retaliation claims. 1 S ee Click

v. Copeland, 970 F.2d 106, 110-11 (5th Cir.1992); s ee also Dorsett

v. Board of Trustees for State Colleges & Univs., 940 F.2d 121, 123

(5th Cir.1991) (denying First Amendment claim b e cause alleged

retaliatory acts were not actionable).

Pierce would include other events within the scope of harm

actionable under the First Amendment. We disagree. Although some

actions may have had the effect of chilling her protected speech,

they are not actionable. For instance, Pierce was investigated2 Kinker's statement about "getting Pierce" suggests a

connection. Of the five write-ups she received, one occurred in

May 1993 and two more in July 1993. The record does not indicate

the dates of the other two. Kinker, however, left Beto I in

September 1992. His lack of presence there during at least a

majority of her write-ups negates any possible connection to

them.

6 once for trafficking and once for a verbal altercation. Neither

investigation resulted in any action being taken against Pierce.

Similarly, the videotaping took place in a public place, even

though the action was unauthorized. Pierce's polygraph examination

and Kinker's threat to her to mind her own business do not amount

to adverse employment decisions because no adverse result occurred.

The other incidents alleged by Pierce are also not

actionable. Pierce was written up for minor infractions by junior

officers. No evidence connects Cockrell and Kinker to these

disciplinary measures. 2 Vicarious liability does not apply to §

1983 claims. M onell v. Department of Social Servs., 436 U.S. 658,

694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978). Pierce's

assignment to the showers is not actionable because it is a regular

assignment fo r prison guards at Beto I. Pierce does not suggest

that she was incapable of performing that assignment. Nor does

evidence show that shower assignment was punishment. The fact that

Pierce may have been the first woman assigned to guard the general

population showers does not equate the assignment with punishment.

Because shower assignment does not amount to a sanction, Pierce's

assignment is not actionable.

Now we must determine whether a rational jury could find that

Pierce's exercise of her protected speech was a substantial or3 Pierce notes that the nurse actually placed the call. The

purpose of the offense, however, is to prevent unauthorized

disclosure of confidential information.

7 motivating factor in her reprimand or probation/reduction in pay.

We recognize that summary disposition of this causal inquiry is

often inappropriate. Click, 970 F.2d at 113. Cockrell's January

1993 reprimand of Pierce was the result of an Internal Affairs

investigation begun in July 1991. Pierce points out that the only

evidence against her was the word of an inmate. Cockrell replies

that Internal Affairs controlled the investigation and that she had

no choice but to discipline Pierce. Internal Affairs made the

guilty finding. Cockrell selected the least sanction allowable for

that offense under the TDCJ Guidelines. No evidence of retaliation

is attributable to the reprimand.

Evidence of causation is also lacking with regards to

Pierce's probation and reduction of pay in May 1993. A male inmate

had sexually assaulted a female officer. Pierce was present with

the officer and a nu rse in the infirmary. The officer wanted

another f emale officer present when she spoke with Internal

Affairs. To assist in accomplishing this Pierce spoke with Ms.

Harshe, an off-duty officer and union representative, on an outside

t elephone line. In the conversation Pierce released information

concerning the assault to Ms. Harshe. Pierce thereby violated TDCJ

Guideline s by making the phone call without receiving supervisor

permission. She leaked news of a criminal investigation. Cockrell

investigated the violation and disciplin ed Pierce for the

unauthorized call, which she admitted making. 3 Because Pierce4 Pierce filed a grievance against Cockrell after Pierce

received her sanction. She complained that Cockrell was in a bad

mood at their meeting because of events that had occurred earlier

in the day. Cockrell may have very well been in a bad mood, but

the sanctions she imposed were reasonable under the Guidelines.

8 committed a disciplinary violation for the second time within a

year, Cockrell had the following discipl inary choices under the

Guidelines: probation 10 to 12 months, suspension 21 to 30

workdays, reductio n 2 to 3 steps, demotion 1 to 3 groups, any

combination thereof, or dismissal. She disciplined Pierce for 12

months probation and reduced her pay 2 steps. The sanctions given

were light in comparison to the maximum actions allowable under the

Guidelines. No evidence suggests that Cockrell acted with any

retaliatory intent when she disciplined Pierce. 4

Pierce contends that Click requires us to leave causation in

this case with the jury. We disagree. C lick concerned a sheriff's

trans fer of two deputies who had announced their candidacies for

the sheriff's position. The sheriff testified that he had

transferred them to the jail because of a severe personnel shortage

there. The deputies, however, introduced evidence that the sheriff

had transferred five jail guards to law enforcement that same day.

The court determined that the contradictory evidence was fodder for

the jury. C lick, 970 F.2d at 114. No such conflict exists in this

case. Cockrell twice disciplined Pierce for violating the TDCJ

Guidelines. Pierce does not allege facts that would allow a

rational jury to conclude otherwise.

Given the evidence presented, no rational jury could h ave

found that Pierce's exercise of her protected spe ech was a9

substantial o r motivating factor for the disciplinary measures

taken against her by the wardens. The disciplinary measures were

taken for violations of the TDCJ Guidelines, and the sanctions

imposed were relatively light. The trial court correctly granted

Defendant s' motion for judgment as a matter of law on the § 1983

claim.

II. Title VII Claim

Pierce contends that adverse emplo yment actions were taken

against her by TDCJ, Cockrell, and Kinker in retaliation for her

activities in opposing unlawful p ractices or for filing EEOC

charges of discrimination. To establish a Title VII retaliation

claim, Pierce must prove: (1) that she engaged in activity

protected by Title VII; (2) that an adverse employment action

occurred; and (3) that a causal connection existed between the

participation in the protected activity and the adverse employment

action. 42 U.S.C. § 2000e-3(a) (1988); S hirley v. Chrysler First,

Inc., 970 F.2d 39, 42 (5th Cir.1992).

The trial court determined that no causal connection existed

between her protected activity and the adverse employment

decisions. This causation inquiry is essentially the same inquiry

undertaken for the § 1983 claim. Pierce again confronts the hurdle

that the Defendants had legitimate reasons for imposing their two

disciplinary measures. We see no clear error.

CONCLUSION

For the foregoing reasons, the trial court's judgment is

AFFIRMED.10