* Pursuant to 5 TH C IR

. 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opinion should not be published and is not precedent except under the limited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 5 TH C IR . R. 47.5.4.

1 United States Court of Appeals

Fifth Circuit



## FILED

April 14, 2005

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

Summary Calendar

No. 04-41101

_______________________

JOAN CAROL ELLIS ROBERTS,

Plaintiff-Appellant,

versus

TITUS COUNTY MEMORIAL HOSPITAL;

GEORGE BURNS, Director of Radiology Titus County

Memorial Hospital; GENE LOTT, Director of

Human Resources Titus County Memorial Hospital,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Texas,

Texarkana Division

No. 5:03-CV-00021-DF

Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM: *

App ellant Joan Roberts (“Roberts”) appeals p ro se the

district court’s award of summary judgment to Appellees Titus

County Memorial Hospital (“Hospital”) and employees of the

Hospital, Director of Radiology George Burns, and Director of Human

Resources Gene Lott. The district court wrote a thorough,

carefully reasoned opinion and held, inter alia, that Roberts2

failed to raise a material issue of triable fact on her claims of

invasion of her First Amendment and Due Process rights, as well as

R oberts’s allegations of Title VII violations. We AFFIRM the

district court in all respects.

BACKGROUND

The Hospital employed Roberts as a CAT scan technologist

in the radiology department from 1986 to 2002. Roberts routinely

received high marks for her technological capabilities, but she had

a mix ed record for interpersonal relationships. Specifically,

Roberts had a documented history of undermining doctors’ orders and

diagnoses of patients, as well as difficulty in arriving to work on

time and in getting along with coworkers. In light of her interpersonal problems, and the qualifications of another technologist,

when the Hospital opened a “lead tech” position, which required the

same amount of work and paid the same salary, Roberts did not

receive the position.

Roberts’s First Amendment claim arises in part out of her

disagreement with the Hospital’s method for purchasing equipment,

and her verbal complaints to two Hospital board members asserting

the Hospital’s violation of unspecified “competitive bidding” laws.

Although the Hospital ultimately purchased the equipment favored by

Roberts (who claims no entitlement to participate in this decisionmaking process), Roberts notified Hospital employees she intended

to pursue a whistleblower action against the Hospital. After3

filing suit, Roberts began soliciting H ospital employees for

information concerning this action during working hours in

violation of Hospit al policy. Roberts received written warnings

for soliciti ng during working hours and for improperly offering

medical advice to patients. Failing to heed these warnings,

Roberts was terminated.

Roberts pursued administrative action with the Equal

Employment Opportunity Commission (EEOC) and ultimately filed the

instant suit, claiming, inter alia, a violation of her First

Amendment rights, her Due Process rights under the Fourteenth

Amendment, as well as violations of Title VII.

DISCUSSION

This court reviews the grant of summary judgment de novo,

using the same standard as the district court. U rbano v.

Continental Airlines, Inc. , 138 F.3d 204, 205 (5th Cir. 1998).

A propert y right in maintaining employment may not be

deprived without due process. C leveland Bd. of Educ. v.

Loudermill

, 470 U.S. 532, 538, 105 S. Ct. 1487, 1491 (1985).

However, no process is due where no protected property interest

exists. B d. of Regents v. Roth

, 408 U.S. 564, 569, 92 S. Ct. 2701,

2705 (1976). As the constitution does not itself create property

interests, a plaintiff claiming depr ivation of a property right

must clearly establish existence of such a right. B ishop v. Wood

,

426 U .S. 341, 344-47, 96 S. Ct. 2074, 2076-79 (1972). In4

ascertaining the existence of a property interest, we look to state

law. Id. at 344, 96 S. Ct. at 2077.

Texas courts strongly adhere to the emplo yment at-will

doctrine. S ee, e.g.

, Sabine Pilot Serv. v. Hauck

, 687 S.W.2d 733,

734 (Tex. 1985). Texas law imposes a strong presumption in favor

of at-will employment. Z enor v. El Paso Healthcare Sys., Ltd.

, 176

F.3d 847, 862 (5th Cir. 1999); Montgomery County Hosp. Dist. v.

Brown

, 965 S.W.2d 501 (Tex. 1998). Where a plaintiff relies on an

employment policy, as opposed to an employment contract, to rebut

the presumption of at-will employment, the proffered employment

policy must contain explicit contractual terms altering the at-will

relationship in a meaningful way ( e.g.

, through an employment

contract). I d. Texas courts are reluctant to imply deviation from

at-will employment from ambiguous employment policies. Id.

Based on Texas la w and the employment policy at issue,

the district court rejected Roberts’s Due Process claims. Roberts

claims no employment contract. Instead, Roberts cites the following provision from the Hospital’s bylaws as evi dence of a

constitutional property interest in her continued employment:

The Board of Managers shall appoint, under terms

prescribed by the Board, a general manager to be known as

the Administrator of the hospital district.

. . . He

shall supervise the work of all employees

. . . and also

may dismiss any employee f or good cause and shall

thereafter make a report to the Board of the dismissal.

This provision, however, has nothing to do with Roberts’s

employment. Instead, it discusses the responsibilities of an1 This title is an invention of Roberts. No term or condition of her

employment vests her with such a title.

5 entirely dif ferent employee at the Hospital, the Hospital

Administrator. Roberts was not terminated by the Hospital

Administrator, but instead by the Director of Human Resources. The

district court correctly found that Roberts lacked a property

interest in her con tinued employment because she failed to

demonstrate that she was not an employee at-will, and therefore was

not entitled to any process prior to her termination.

Roberts’s First Amendment claims are similarly

unavailing. She raises two specific claims in this vein: (1) that

the Hospital’s pol icy prohibiting her from acting as a “patient

advocate” 1 was impermissibly vague and impeded her First Amendment

right s; and (2) that the Hospital’s anti-solicitation policy

violated her First Amendment rights.

A statute, rule, or policy may be deemed impermissibly

vague for eithe r of two discrete reasons: It fails to provide

people of ordinary intelligence a reasonable opportun ity or fair

notice to understand what conduct it prohibits; or, it authorizes

or encourages arbitrary and discriminatory enforcement.

See Chicago v. Morales , 527 U.S. 41, 56-57, 119 S. Ct. 1849, 1859

(1999).

Roberts contends that Hospital policy preventing her from

interpreting x-rays or CAT scan results

— i.e.

, diagnosing patients

— constituted an impermissibly vague policy. As a matter of law,6

as the district court held, t his claim is without merit. The

Hospital’s policy provides an individual of ordinary intelligence

fair notice that di agnosing patients is the realm of physicians,

and that staf f are not to do so. Roberts, a non-physician,

radiologic technologist, h a d sufficient notice to conform her

conduct to clear Hospital policy.

Roberts’s second First Am endment claim rests on an

individual’s ability to speak on matters of public concern. Speech

addresses a matter of public concern when it is made primarily in

the speaker’s role as a citizen rather than as an employee

addressing solely matters of personal interest. C onnick v. Myers

,

461 U.S. 138, 148, 103 S. Ct. 1684, 1690-91 (1983). This court has

addressed First Amendment implications of policies similar to the

i nstant policy. In S outhern Christian Leadership Conference v.

Supreme Court of the State of Louisiana

, we held that a state

supreme court rule prohibiting non-lawyer students from

repr esenting certain solicited indigent parties did not prevent

speech of any kind. 252 F.3d 781, 789-90 (5th Cir. 2001). If a

court finds that the speech touches upon a matter of public

concern, it must balance the plaintiff’s interest in making those

statements against “the interest of the State, as an employer, in

promoting efficiency of public services it performs through its

employees.” P ickering v. B d. of Educ. , 391 U.S. 563, 568, 88 S.

Ct. 1731, 1734-35 (1968).7 Roberts’s practice of providing diagnoses to patients

receiving x-r ays and CAT scans, as well as giving unsolicited

diagnoses to doctors, did not touch on a matter of public concern.

The policy existed to protect patients from the unauthorized

practice of medicine; to term this a free speech limitation would

be a dangerous intrusion by the judiciary on the Hospital’s

prerogative to render medical services. See Connick , 461 U.S. at

146, 103 S. Ct. at 1690 (“[W]hen employee expression cannot be

fairly considered as relating to any matter of political, social,

or other concern to the community, governme nt officials should

enjoy wide latitude in managing the ir offices, without intrusive

oversight by the judiciary in the name of the First Amendment.”).

Moreover, we agree with the district court that even if Roberts

could demonstrate her speech touched on a matter of public concern,

the Pickering b alancing test requires ruling in the Hospital’s

favor. The Hospital was constitutionally justified in regulating

the time, place, and manner of Roberts’s speech where Roberts was

in no way qualified to provide diagnoses.

As to Roberts’s First Amendment claim concerning the

Hospita l’s anti-solicitation policy, we agree with the district

court that her speech in this area was arguably a matter of public

concern. The goal of the Texas Whistleblower Act is to enhance

openness and protect those info rming officials of government

wrongdoing. S ee T EX

. G OV ’ T C ODE A NN

. § 554.002(a) (V ERNON S UPP

. 2004).

Nevertheless, under the Pickering balancing tes t, Roberts cannot8

prevail on these cl aims. Although Roberts had a right to make

inquiries and statements about possible violations of state law and

policy, the Hospital had a concomitant right to prevent such

solicitations during working hours in the workplace. Roberts could

have done her factfinding outside the Hospital on her own time; the

anti-solicitation policy represents a valid time, place, and manner

restriction. C f. Connick

, 461 U.S. at 148-53, 103 S. Ct. at 1691-

93 (holding that termination of a public employee who distributed

questionnaire did not violate the First Amendment, as most of the

questions related to inter-office policies and the conduct

threatened the agency’s institutional efficiency). For these

reasons , the district court properly awarded Appellees summary

judgment on all of Roberts’s First Amendment claims.

In considering a Title VII claim, unless direct evidence

of discrimination exists, a court must utilize the three-step

analysis first enunciated in McDonnell Douglas Corp. v. Green

, 411

U.S. 792, 802-05, 93 S. Ct. 1817, 1824-25 (1973). Under this

formula, a plaintiff must first establish a prima facie case of

discrimination. If the plaintiff makes a prima facie case, the

employer can rebut the claim by offering a legitimate, nondiscriminatory reason for the employment decision. B odenheimer v.

PPG Industrie s, Inc. , 5 F.3d 955, 957 (5th Cir. 1993). If the

defendant succeeds, the court moves to the third step of the

analysis, where the plaintiff bears the burden to prove that the

reasons offered by the defendant are pretextual. Id.9 Additionally, a plaintiff m a y establish a Title VII

violation by demonstrating a hostile work environment. Harris v.

Forklift Sy s., Inc. , 510 U.S. 17, 22-23, 114 S. Ct. 367, 371

(1993). A prima facie case of a hostile work environment is

achieved by producing evidence that (1) she belongs to a protected

group; (2) she experienced unwelcom e sexual harassment; (3) the

harassment was based on sex; (4) the harassment affected a “term,

condition or privilege” of employment; and (5) the employer knew or

should have known of the harassment and failed to take prompt

remedial action. S ee Shepherd v. Comptroller of Public A ccounts

for the State of Texas , 168 F.3d 871, 873 (5th Cir. 1999).

Because Title VII addresses only “ultimate employment

decisions,” D ollis v. Rubin

, 77 F.3d 777, 781-82 (5th Cir. 1995),

Roberts failed to state a prima facie case because the “lead tech”

job did not constitute a new position

— it required identical hours

and received identical pay. Additionally, even assuming the “lead

tech” job was considered a new position, the Hospital put forward

valid, non-discriminatory reasons (namely, that Roberts was not

suited for the job as she did not get along with others well, and

that th e person hired had superior credentials) that Roberts is

unable to rebut with competent summary judgment evidence.

Similarly, Roberts failed to adduce any material issue of

triable fact connecting her EEOC complaint with her valid

termi nation, so her Title VII retaliation claim also fails under

McDonnell-Douglas

. Based on the numerous valid reasons for her10

termination, and the dearth of evidence demonstrating any sort of

pretext for that termination decision, Roberts fails on this claim

as well. C f. Chancy v. New Orleans Public Facility Management,

Inc. , 179 F.3d 164, 168 (5th Cir. 1999) (discussing the very high

standard a plaintiff must meet once an employer articulates a

rational justification for the termination).

The judgment of the district court is AFFIRMED.