IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 92-8369

Summary Calendar

 

Brian Grady,

Plaintiff-Appellee,

versus

El Paso Community College, et al.,

Defendants,

Linda Luehrs

Defendant-Appellant.

 

Appeal from the United States District Court

for the Western District of Texas

 

Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.

PER CURIAM:

Defendant Luehrs appeals the district court's denial of her

motion for dismissal or summary judgment on the basis of qualified

immunity. This interlocutory decision may be appealed under 28

U.S.C. § 1291. Mitchell v. Forsyth, 472 U.S. 511, 527, 105 S. Ct.

2806, 2816 (1985).

Grady brought this action against his former employer, El Paso

Community College, and two of its faculty members, Luehrs and

Canuteson. Grady claims that the defendants violated his rights

under the First Amendment and 38 U.S.C. § 2021(b)(3). 
2

Grady was employed as a probationary instructor in law

enforcement at El Paso Community College, a political subdivision

of the State of Texas. Grady, a Naval reserve officer, also acted

as campus liaison officer for the Navy Recruiting Command. Luehrs

headed the department in which Grady taught. Grady contends that

Luehrs and Canuteson disliked his military affiliation and support

for the Persian Gulf war. Disputed summary judgment evidence shows

conflicts between Grady and Luehrs and Canuteson. According to

Grady's submissions, Luehrs criticized and harassed Grady for

wearing his Navy uniform on campus. Canuteson and Grady argued

over Grady's reservist duties, their effect on his tenure status,

and the war. In December 1991, Grady learned that his teaching

contract would not be renewed at the end of the 1991-92 school

year.

Grady claims that Luehrs and Canuteson wrongfully caused his

termination. Luehrs and Canuteson allegedly conspired to persuade

the College to end Grady's employment, doing so in bad faith and

intending to deprive Grady of his rights.

Luehrs moved for dismissal or summary judgment granting her

qualified immunity. Grady's claim that Luehrs is not a public

official entitled to qualified immunity under any circumstances is

without merit. Grady's complaint states that Luehrs is employed by

the College as a Division Chair for the department in which Grady

was employed. Grady also alleged that Luehrs acted upon authority

vested in her by the College. Public school administrators making

employment decisions are government officials who may receive
3

qualified immunity. See e.g Mangaroo v. Nelson, 864 F.2d 1202 (5th

Cir. 1989).

Our first step when reviewing the denial of qualified immunity

is whether the plaintiff has stated a claim for the violation of

federal rights. See Duckett v. City of Cedar Park, 950 F.2d 272,

278 (5th Cir. 1992). The existence of a viable claim is a

threshold requirement in order for plaintiff to overcome the

qualified immunity defense. Siegert v. Gilley, 111 S. Ct. 1789,

1793 (1991). In this case, Grady has failed to state a valid claim

under § 2021 against Luehrs. 38 U.S.C. § 2021(b)(3) provides that

a person "shall not be denied hiring, retention in employment, or

any promotion or other incident or advantage of employment because

of any obligation as a member of a Reserve component of the Armed

Forces." Reservists may bring an action to compel employers to

comply with § 2021(b)(3)'s requirements and award lost wages. 38

U.S.C. § 2022. An action under §§ 2021 et seq. against Luehrs in

her individual capacity, however, is not appropriate. An action at

law for damages under § 2021 is not available. Britt v. Georgia

Power Co., 677 F. Supp. 1169, 1174 (N.D. Ga. 1987). Instead the

statute provides relief in the form of reinstatement and back pay--

remedies available only from the College. In an analogous

situation, an employer's owner escaped personal liability under

§ 2021 because the plaintiff failed to establish that the owner was

the alter ego of the employer corporation. Chaltry v. Ollie's

Idea, Inc., 546 F. Supp. 44, 52 n.13 (W.D. Mich. 1982).
4

Nor may Grady seek compensation from Luehrs for violating his

reservists' rights by suing under 28 U.S.C. § 1983. A suit may be

brought under § 1983 for the violation of a federal statute. Maine

v. Thiboutot, 448 U.S. 1, 100 S. Ct. 2502 (1980). Section 1983 is

not available, however, in two settings: (1) where Congress has

foreclosed § 1983 enforcement in the enactment itself and (2) where

the statute does not create enforceable rights, privileges, or

immunities within the meaning of § 1983. Middlesex Cty. Sewerage

Authority v. National Sea Clammers Ass'n, 453 U.S. 1, 20, 101 S.

Ct. 2615, 2626 (1981); Pennhurst State School & Hosp. v. Halderman,

451 U.S. 1, 28, 101 S. Ct. 1531, 1545 (1981). To determine whether

Congress meant to foreclose a § 1983 suit based on the Veterans'

Reemployment Rights Act, we must infer its intent from the Act's

provisions.

One factor implying foreclosure is that the Act provides for

a private judicial remedy. See Victorian v. Miller, 813 F.2d 718,

723 (5th Cir. 1987). Furthermore, in Irby v. Sullivan, 737 F.2d

1418 (5th Cir. 1984), we held that a violation of Title VII cannot

support a § 1983 suit. Id. at 1429. One basis for this decision

was that § 1983 authorized compensatory damages not available under

Title VII, id., which also weighs against § 1983 claims based on

the Veterans' Reemployment Rights Act. See Britt, 677 F. Supp. at

1174. We conclude that § 1983 will not provide a vehicle allowing
 

1We are not persuaded by the district court decision in

Boyle v. Board of Police Commissioners, 717 F. Supp. 23, 27

(D.N.H. 1989), which allowed a § 1983 claim based on the

Veterans' Reemployment Rights Act. Boyle's cursory analysis

stated that Congress must "specifically foreclose" § 1983

enforcement, rather than examining the statute to infer intent.

5

Grady to make claims against Luehrs based upon the Act.1 Appellant

was entitled to dismissal of all claims under 38 U.S.C. § 2021.

On the other hand, Grady has stated a

§ 1983 claim against Luehrs based upon the First Amendment.

Grady contends that Luehrs deprived him of his right to free speech

under color of state law by causing his termination. He alleges

that Luehrs was motivated to do so by Grady's outspoken support of

the Persian Gulf war. A state educational institution may not

refuse to rehire a non-tenure teacher due to his exercise of

protected First Amendment freedoms. See Mt. Healthy City School

Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283-84, 97 S. Ct. 568,

574 (1977).

Luehrs contended that even after amending his complaint, Grady

failed to satisfy the heightened pleading requirement of Elliott v.

Perez, 751 F.2d 1472 (5th Cir. 1985). On the contrary, Grady's

Second Amended Complaint sufficiently states grounds for denying

qualified immunity. Grady alleged that Luehrs acted as division

chair for the department in which he worked and used that position

to prevent the renewal of his employment contract. The complaint

alleges that Luehrs was motivated to do so by his expression of

protected speech on a matter of public concern, United States

military involvement in the Persian Gulf. Although Grady does not
6

specifically allege when he made the protected statements or how

Luehrs was made aware of them, his allegation that she was

motivated by those statements necessarily entails her awareness.

Because Grady's complaint states a violation of federal

rights, we turn to the question of whether Grady has met his burden

on summary judgment of showing that Luehrs' conduct does not

entitled her to qualified immunity. See Chrissy F. v. Mississippi

Dep't of Public Welfare, 925 F.2d 844, 851 (5th Cir. 1991)(holding

that plaintiff bears the burden of negating the qualified immunity

defense). On summary judgment, the nonmoving party who bears the

burden of proof on an issue may not rely upon his pleadings, but

must present evidence to show a genuine issue of fact. Celotex

Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 2553 (1986).

Grady points to affidavits in the record to show an issue regarding

whether Luehrs retaliated against Grady for his speech. Michael

Faupel's affidavit states Grady and Canuteson argued concerning

Grady's reserve membership and the Persian Gulf war. During this

argument, Faupel states, Canuteson told Grady that Canuteson and

Luehrs could "get rid of Mr. Grady." Although other testimony that

Luehrs disliked Grady personally and his membership in the reserves

does not support the First Amendment claim, Faupel's testimony

creates an issue of fact precluding summary judgment.

An official is entitled to qualified immunity unless her

conduct violated clearly established federal rights. Harlow v.

Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982). The

contours of the right must be sufficiently clear that a reasonable
7

official would understand that what she is doing violates that

right. Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034,

3039 (1987). The First Amendment protections of state employees

who speak on matters of public concern are clearly established.

See e.g. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429

U.S. 274, 97 S. Ct. 568 (1977). Moreover, a reasonable official

would have recognized that speech regarding the Persian Gulf war

constituted a matter of public concern. A genuine issue exists

regarding whether Luehrs brought about the end of Grady's

employment in response to his protected speech. Luehrs was not

entitled to qualified immunity against Grady's First Amendment

claim.

The district court should have granted Luehrs' motion in part,

by dismissing claims against her individually based on the

Veterans' Reemployment Rights Act. Luehrs was not entitled,

however, to summary judgment based on qualified immunity against

Grady's First Amendment claims.

REVERSED in part and AFFIRMED in part.