IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 93-8006

 

DAVID GILLUM,

Plaintiff-Appellant,

versus

THE CITY OF KERRVILLE, ET AL.,

Defendants-Appellees.

 

Appeal from the United States District Court

for the Western District of Texas

 

( September 16, 1993 )

Before GOLDBERG, HIGGINBOTHAM, and DAVIS, Circuit Judges.

PER CURIAM:

David Gillum filed this 42 U.S.C. § 1983 suit against

Kerrville, Texas, a city that once employed him as a policeman, and

three of its officials, City Manager Glenn D. Brown, Police Chief

Louis A. Barrow, Jr., and Personnel Director Kirk McCarley,

claiming that he was fired in violation of his federal

constitutional rights to free speech and due process, and in

violation of state constitutional and common law rights and duties.

Holding that these claims did not have merit, the district court

granted summary judgment. We affirm.

I

In early August 1990, David Gillum was a policeman with the

Kerrville Police Department. A "reliable" confidential informant
2

told Gillum that Police Chief Louis Barrow had "smoked dope" with

Cheryl Schilling, a woman with a criminal record. Gillum asked Joe

Lanning, Chief of the Internal Affairs Division, how to proceed.

Then, in an attempt to follow requirements for reporting and

conducting internal investigations of police officers, as reflected

in the department's Procedural Order No. 90-06, Gillum reported the

information to Rosie McCray, his commanding officer. Procedural

Order No. 90-06 provided that an internal affairs officer must

investigate all allegations of police misconduct; it did not

specifically treat investigations of the police chief. 

Lanning authorized Gillum to interview Schilling. Lanning

also told Chuck Dickerson, his superior officer, and Kirk McCarley,

the city personnel director, about the allegations, and that Gillum

would interview Schilling. Gillum reported that Schilling denied

smoking dope with Barrow, but admitted drinking a beer and

discussing her recent arrest with him. Lanning then authorized

Gillum to interview Debbie Vasquez, another witness identified by

Schilling.

Lanning then told Barrow about the situation. The record does

not reflect Barrow's response, but Lanning then told Gillum that he

would no longer have a role in the investigation, and that he

should submit a written statement about the matter. At this point,

Gillum says, he began to suspect that his superiors wanted to

stonewall the investigation, a point confirmed in his mind when he

was summoned to a meeting with Barrow, McCarley, Lanning, and

McCray.
3

During this meeting, Gillum was told that Internal Affairs

would conduct a formal investigation. Gillum, however, was worried

that the Chief had been told about the Internal Affairs

investigation before the filing of a formal complaint. He

commented that he did not think that Internal Affairs could conduct

an impartial inquest, and speculated that Barrow and the others

would either suspend him until he could acquiesce in the formal

investigation or fire him altogether. Gillum stated that he did

not want to quit his job, but wanted to return to normal police

work. The meeting ended when Gillum placed his badge and gun on

the desk and left the room, stating, "I won't compromise this

badge." Gillum asserts that he did so because he suspected that he

was being ordered to participate in a cover-up.

As he left the police station, Gillum told Larry Rhodes, the

police dispatcher, that he did not quit. Gillum did not clean his

locker but reported to work on his next scheduled day. His name

was not on the duty roster. When he inquired, McCarley and Barrow

told Gillum that he had quit and no longer worked for the Kerrville

Police Department. Gillum requested a hearing on his status with

the police force in a letter to McCray. Gillum was given a hearing

before McCray and Barrow under rules for fired employees.

Gillum was not reinstated and appealed to Glenn Brown, the

city manager. Brown held a hearing. Gillum requested that the

hearing be open, but it was closed. Gillum also requested that

Lanning attend the hearing, but Lanning did not. However, Brown

offered reinstatement with the Kerrville Police Department without
4

compensation for time off the duty roster. Not satisfied, Gillum

filed this suit. Kerrville offered Gillum a name clearing hearing,

but he did not attend.

In the district court, Gillum argued that he was fired for

expressing his opinion about the investigation of Barrow, and for

refusing to participate in a conspiracy to stonewall the

investigation. Gillum maintained that his firing violated his

right to free speech under the First Amendment to the U.S.

Constitution, and under Article I, Section 8, of the Texas

Constitution. Gillum also argued that he was denied a meaningful

opportunity to clear his name, in violation of his right to due

process under the Fifth and Fourteenth Amendments to the U.S.

Constitution. 

Gillum also filed claims for defamation and intentional

infliction of emotional distress and conspiracy to deny his civil

rights in violation of 42 U.S.C. § 1983. Gillum demanded

compensatory damages for lost wages and earning capacity, past and

future mental anguish, severe emotional distress, future medical

expenses, loss of reputation, punitive damages for conscious

disregard of his rights, attorneys' fees under 42 U.S.C. § 1988,

and declaratory and injunctive relief. The district court granted

summary judgment to defendants. Gillum appealed.

II

We cannot affirm a summary judgment unless "there is no

genuine issue as to any material fact that the moving party is

entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).
5

We review the evidence, as well as inferences that may be drawn

from the evidence, in the light most favorable to the party that

opposed the motion. Little v. Liquid Air Corp., 952 F.2d 841, 847

(5th Cir. 1992).

III

Gillum argues that a reasonable jury could find a violation of

his right to free speech under the First Amendment because he was

fired for speaking to his superior officers about police

corruption. Of course, the state cannot fire an employee for

exercising the right to speak on matters of public concern.

Connick v. Myers, 461 U.S. 138, 147 (1983); Pickering v. Board of

Educ., 391 U.S. 563, 574 (1968). 

The district court held that though allegations of misconduct

by Barrow were a matter of public concern, Gillum did not prove

that he spoke or engaged in expressive conduct within the

contemplation of the First Amendment. It also held that even if

Gillum engaged in protected speech or expressive conduct, he could

not invoke the First Amendment as his speech or expressive conduct

imposed an impermissible burden on the proper administration of the

workplace.

Whether Gillum quit the police force or lost his job for

insubordination was on this record a question of fact. We are not

persuaded, however, that Gillum's right to free speech as an

employee protected him from being fired for the expressive conduct

he has pointed to.
6

In Terrell v. University of Texas Sys. Police, 792 F.2d 1360

(5th Cir. 1986), cert. denied, 479 U.S. 1064 (1987), we did not

focus on the inherent "importance" of the subject matter of the

speech, but on the extent to which the terminated employee spoke as

a citizen or employee. In Terrell, as in this case, the employee

did not speak as a citizen, but as an employee embroiled in a

personal employment dispute. Id. at 1363. This focus on the hat

worn by the employee when speaking rather than upon the

"importance" of the issue reflects the reality that at some level

of generality almost all speech of state employees is of public

concern. Relatedly, we are chary of an analytical path that takes

judges so uncomfortably close to content based inquiries.

Whether Barrow broke the law is of public concern, but that

was not Gillum's focus. Instead, Gillum disputed his role in the

internal investigation. To be sure, corruption in an internal

affairs department is a matter of public concern. Gillum's focus

was, however, on this issue only insofar as it impacted his wish to

continue his investigation. Gillum was not told to withhold any

information he had. To the contrary, he was told to put it in

writing, and subsist from his investigation. That Gillum did not

think that adequate adds nothing. Had he submitted his statement

and later found that it was ignored, he might have complained or

"gone public." Firing Gillum for those acts would have presented

a quite different case.
7

IV

Gillum argues that he was denied a name clearing hearing in

violation of his due process right to work in a chosen profession.

Gillum must prove (1) that he was discharged; (2) that defamatory

charges were made against him in connection with the discharge; (3)

that the charges were made public; (4) that the charges were false;

(5) that he requested a hearing in which to clear his name; (6)

that the request was denied; and (7) that no meaningful public

hearing was conducted before the discharge. Rosenstein v. City of

Dallas, 876 F.2d 392 (5th Cir. 1989), aff'd on relevant grounds,

902 F.2d 91 (en banc) (per curiam), cert. denied, 498 U.S. 855

(1990).

-1-

Gillum argues that Brown, McCarley, and Barrow published

defamatory statements in the Kerrville Daily Times in connection

with his discharge. The alleged defamatory statements appeared on

September 30, 1990, during the administrative appeals process. The

statements concerned Gillum's dispute with the Kerrville Police

Department and appeared in a news account of the administrative

proceeding. 

The threshold question is whether there is a sufficient nexus

between the alleged defamatory statements and the discharge, as

required by Siegert v. Gilley, 111 S.Ct. 1789 (1991). It is

apparent that these statements were sufficiently tied to Gillum's

termination. The statements were about his termination and were

made while the administrative process was in play. It does not
8

follow, however, that Gillum has a claim that he was deprived of

any constitutionally secured rights.

-2-

The difficulty with Gillum's claim is that his initial

"firing" was subject to an administrative appeals process. The

result of that process was tender of reinstatement, which Gillum

declined. It is true that the process took from mid August until

the end of September and the city declined to pay Gillum for the

interim period. We cannot conclude, however, that defendants

impaired Gillum's employment opportunities sufficiently to deprive

him of constitutionally secured liberty interests. Gillum was

given an opportunity to be heard and prevailed. Gillum cannot

create a constitutional claim by declining to return to work. The

district court granted summary judgment because Gillum declined

reinstatement. We agree.

V

Gillum argues that his discharge violated Article I, Section

8, of the Texas Constitution, which provides in relevant part that

"[e]very person shall be at liberty to speak, write or publish his

opinions on any subject, being responsible for the abuse of that

privilege." Tex. Const. of 1876, art. I, § 8 (1955). The district

court held that no cause of action for damages could be assessed

for violation of Article I, Section 8, and that finding no

violation of the First Amendment precludes finding a violation of

Article I, Section 8.
9

Texas courts have not recognized a violation of Article I,

Section 8, as an actionable constitutional tort. One Texas Court

of Appeals has stated that "Texas has a strong bill of rights, but

. . . no Texas statute or case . . . provides a citizen the kind of

redress afforded by 42 U.S.C. § 1983 or by Bivens v. Six Unknown

Named Agents of the Federal Bureau of Narcotics. There is no state

constitutional tort." Bagg v. University of Tex. Medical Branch,

726 S.W.2d 582, 584 n.1 (Tex.App.--Houston [14th Dist.] 1987, writ

ref'd n.r.e.) (citations omitted); see also City of Houston v.

Leach, 819 S.W.2d 185 (Tex.App.--Houston [14th Dist.] 1991, no

writ). But see Jones v. Memorial Hosp. Sys., 746 S.W.2d 891

(Tex.App.--Houston [1st Dist.] 1988, no writ) (implicitly

recognizing actionable constitutional tort in reversing summary

judgment in case involving Article I, Section 8).

Gillum reads Bagg as holding that though he cannot recover

damages under Article I, Section 8, against a governmental unit of

the state, employees remain personally liable for wrongdoing. As

we read it, Bagg holds that government employees cannot be liable

for doing their job. Brown, McCarley, and Barrow were about their

official duties in considering how to proceed in the internal

investigation, and how to deal with a police officer who resisted

their determination.

VI

Gillum charges that Brown, McCarley, and Barrow made false and

defamatory statements published in the Kerrville Daily Times that

injured his reputation. We have held that "defamation of a police
10

officer by city officials in the course of discharging that police

officer is protected under the city's governmental immunity and, as

an exercise of a governmental function, is not actionable either

against the city or the state officials under state slander law."

Rosenstein, 876 F.2d at 397 (citing City of Dallas v. Moreau, 718

S.W.2d 776, 779-80 (Tex. App.--Corpus Christi 1986, writ n.r.e.)).

On this basis, the district court concluded that both the city and

its officials are not liable for defamation as a matter of law.

In Moreau, the court found immunity not only for the city but

also for its officers who published information concerning a

policeman's dismissal from the police force. Id. at 779. After

holding that "appellant city was immune from the libel cause of

action by appellee for publishing a letter of discharge as a matter

of law," the court noted, "[t]his reasoning also applies to the

cause of action (if such exists) for appellant's employees' acting

without proper motive and without due care and diligence in the

performance of their official duties in regard to the act of

posting the termination letter on the bulletin board." Id. at 779-

80. We have located no Texas case concerning comments to the press

about a discharge. The facts of this case resemble those in

Moreau, and we are not persuaded that Texas courts would conclude

that these responses to press inquiries are ultra vires.

VII

Gillum alleges that Brown, McCarley, and Barrow intentionally

caused him emotional distress. To prevail on this claim, Gillum

has to demonstrate that (1) the defendant acted intentionally and
11

recklessly; (2) the conduct was "extreme and outrageous;" (3) the

actions of the defendant caused the plaintiff emotional distress;

and (4) the emotional distress suffered by the plaintiff was

severe. Dean v. Ford Motor Credit Co., 885 F.2d 300, 306 (5th Cir.

1989); Bushell v. Dean, 781 S.W.2d 652, 657 (Tex.App.--Austin

1989), rev'd in part on other grounds, 803 S.W.2d 711 (Tex. 1991);

Tidelands Auto Club v. Walters, 699 S.W.2d 939, 942 (Tex.App.--

Beaumont 1985 writ ref'd n.r.e.).

We have interpreted the term "outrageous" to mean surpassing

"all possible bounds of decency," such that it is "utterly

intolerable in a civilized community." Dean, 885 F.2d at 306

(quoting Restatement (Second) of Torts § 46, Comment d). Given

this framework, the district court correctly granted summary

judgment, as Gillum failed to demonstrate that any of the

defendants acted in an outrageous way. Their statements provided

either accurate descriptions of the Gillum controversy, or at worst

hyperbolist ramblings. Gillum has not demonstrated that his

superiors either surpassed the bounds of decency or contravened the

standards of a civilized community.

The district court correctly observed that Section 101.057 of

the Texas Civil Practices and Remedies Code provides that any

limited waiver of sovereign immunity does not apply where the claim

arises out of an intentional tort. Tex. Civ. Prac. & Rem. Code

Ann. § 101.057 (West 1986). This provision shields municipalities

from suits arising out of intentional torts committed by

governmental employees, City of Waco v. Hester, 805 S.W.2d 807,
12

810-12 (Tex. App.--Waco 1990, writ denied), and should be liberally

construed to accomplish this objective. Robinson v. Central Texas

MHMR Center, 780 S.W.2d 169, 170 (Tex. 1989). 

VIII

Gillum advances a wrongful termination claim based on a common

law exception to the "at will" employment doctrine. He argues that

he had a good faith belief that he would be required to perform an

illegal act of omission or commission, acquiescence or

participation in an attempt to conceal Barrow's alleged

recreational drug use, and as such should not have been terminated

for his refusal to follow formal investigative procedures. The

district court granted summary judgment on this claim, holding that

Gillum could not have held such a good faith belief after he

received an offer to provide a written statement concerning his

investigation, an offer of reinstatement, and an offer of a name

clearing hearing. We agree.

IX

Gillum attacks the dismissal of his claim of civil conspiracy

to violate his constitutional rights to free speech and due

process. The district court denied this claim because Gillum's

constitutional rights had not been violated, so that no basis

existed for assigning liability for conspiracy. As we have noted,

"it remains necessary to prove an actual deprivation of a

constitutional right; a conspiracy to deprive is insufficient."

Villanueva v. McInnis, 723 F.2d 414, 418 (5th Cir. 1984). 

AFFIRMED.