United States Court of Appeals,

Fifth Circuit.

No. 91–4618

Summary Calendar.

Marilyn WILSON, Plaintiff–Appellant,

v.

UT HEALTH CENTER, UT System Police Department, Etc., et al., Defendants–Appellees.

Oct. 6, 1992.

Appeal from the United States District Court for the Eastern District of Texas.

Before REAVLEY, HIGGINBOTHAM and BARKSDALE, Circuit Judges.

REAVLEY, Circuit Judge:

Marilyn Wilson contends that officials of the University of Texas Health Center (UTHC)

demoted and discharged her from her position as a sergeant in retaliation for her reports of sexual

harassment within the UTHC police force. At the close of Wilson's case-in-chief, the district court

granted all defendants a directed verdict on Wilson's First Amendment and due process claims under

42 U.S.C. § 1983 and on her defamation claim under Texas law. After considering both sides'

evidence, the district court entered judgment against Wilson on her claim under 42 U.S.C. § 2000e

et seq. (Title VII) 773 F.Supp. 958. We affirm in part and reverse in part to allow a jury to consider

Wilson's First Amendment and defamation claims against some defendants.

I. BACKGROUND

The events that occasioned this controversy occurred on UTHC's Tyler, Texas campus

between August 1986 and March 1987. During that time, uncontroverted evidence establishes that

UTHC po lice officers commonly used sexually suggestive language in communicating with one

another. Wilson claims that UTHC officials disciplined her for reporting various incidents of sexual

harassment. The officials claim that they disciplined Wilson because she made several

misrepresentations in reporting those incidents to her immediate supervisor, po lice chief and
 

1Davis and Wilson had some disagreements in 1984, but there was evidence that by August

1986 they appeared to be friends. For example, they bowled on a team together. 

 

2Davis has also acknowledged such antics as giving black panties to a married woman, but the

record does not show that he was reprimanded for any of these other sexually suggestive

incidents. 

defendant John Moore, and in appealing from disciplinary action that Moore took against her.

Wilson'stroubles began inAugust 1986 when she brought a camera lensto the UTHCcampus

so that her co-worker and subordinate, defendant Chester Davis, could evaluate it.1 Wilson claims

that, instead of going to a hilltop to view the lens, Davis took her to a secluded place, grabbed her

and kissed her on the neck despite her protestations and said that he would have his way with her.

Davis denies any such contact or statement.

Almost one month later, Wilson reported the incident to UTHC's Acting Director of

Personnel, SharonBriery, who advised that she see ChiefMoore. According to Moore's instructions,

Wilson prepared a written report of the incident and also detailed incidents of Davis's verbal sexual

misconduct toward three other UTHC employees. Davis admitted harassing one of these employees

and Moore suspended him three days without pay for making sexually suggestive comments to

women.2 Moore also issued a letter of reprimand to Wilson for waiting so long to report Davis'

conduct, stating:

You, as a supervisor and an officer, have a duty to speak out. You cannot unclothe yourself

of duty at your convenience. In this matter, you undressed yourself of responsibility both

mentallyand administrativelybyalleging intimidation and bywaiting twenty-eight days before

taking any action and/or reporting the incident to me.

Meanwhile, on October 30, 1986, Wilson went to Moore and said that she had hearsay

evidence that Officer Bill Glover had been harassing two other UTHC employees, including Nancy

Simms. Moore asked Wilson to investigate further, and he testified that he immediately reprimanded

Glover. Wilson submitted a letter to Moore concerning Glover's requests that Simms spend time with

him outside work and Glover's expenditure of inordinate amounts of time at Simms' place of work.
Glover admitted asking Simms out for coffee, but denied many aspects of Wilson's report, including

that he flirted with Simms. At a subsequent meeting with Moore and Wilson, and later at trial, Simms

agreed with Glover's version of events and identified several exaggerations in Wilson's report.

On February 5, 1987, Moore issued Wilson a letter of reprimand, suspended her for ten days

without pay, and reduced her in rank fromsergeant to police officer. In his letter, Moore cites several

incidents beginning in 1984 and concluding with the Glover incident in which he understands Wilson

to have lied and maliciously maligned her fellow officers. Wilson indicated that she had read and

understood Moore's letter by signing it, and then she signed a Personnel Disciplinary Report (PDR)

form that Moore prepared concerning the matter for submission to the University System Police in

Austin, Texas.

The PDR that Wilson signed for Moore (Moore's PDR) references attached documentation.

Wilson asked to see the attachments and to have a copy of the PDR. Moore refused, but he allowed

Wilson to copy the sparse information fromthe PDR by hand. She then paraphrased this information

on a new PDR form (Wilson's PDR). Wilson gave Wilson's PDR to her attorney. At a subsequent

hearing that constituted part of Wilson's appeal of her demotion, Wilson's attorney demanded the

attached documentation fromMoore'ssupervisor, defendant RonMays. Wilson's attorney presented

Mays with Wilson's PDR without stating that it was not an exact duplicate of Moore's PDR.

Mays took Wilson's PDR to Moore and asked for the attached documentation that it

referenced. Moore did not recognize Wilson's PDR as the one he prepared. He and Mays compared

the PDRs and discovered that they did not match. Two days later, on March 5, 1987, Moore

presentedWilsonwitha letter oftermination, citingWilson's continued misrepresentationsinthePDR

incident as the reason for her discharge.

Wilson appealed her termination through UTHC channels and ultimately sued Davis, Moore,
 

3The district court heard the testimony of Moore, Wilson, Jackson, and Davis. 

Mays, Henry Jackson (UTHC's Director of Equal Employment Opportunity), and George Hurst

(UTHC's Director), among others, for, inter alia, depriving her of constitutionalrightsto free speech

and due process, defamation, and retaliatory discharge in contravention of Title VII.

AfterWilson's case-in-chief,3the district court directed a verdict against Wilson 1) on her First

Amendment claim after holding that Wilson'sspeech regarded a matter of insufficient public concern

to merit protection, 2) on her due process claim after holding that Wilson received constitutionally

sufficient process, and 3) on her defamation claim after holding that Wilson produced insufficient

evidence of malice on the defendants' part. The court then continued the trial to resolve Wilson's

Title VII retaliatory discharge claimand entered judgment against Wilson after hearing the evidence.

The court found that Wilson made misrepresentation in her report about Glover and that Moore

demoted her because ofthosemisrepresentations, and then terminated her because she misrepresented

the authenticity of the PDR that her attorney handed to Mays.

II. DISCUSSION

A. TITLE VII

Wilson tried her Title VII claimto the court asrequired by statute before Congress permitted

jury trials of these cases in the Civil Rights Act of 1991. Our precedent precludes us from heeding

Wilson'ssuggestion that we accord retroactive effect to the jury trial provision ofthe CivilRights Act

of 1991. Landgraf v. USI Film Products, 968 F.2d 427, 432–33 (5th Cir.1992).

Wilson arguesthat the district court applied the wrong legalstandard in deciding that she was

not discharged in retaliation for reporting sexualharassment as prohibited by42 U.S.C. § 2000e–3(a).

First, she claims that the court ignored the distinction between the truth of her charges and her belief

in the truth of her charges. See De Anda v. St. Joseph Hosp., 671 F.2d 850, 853 n. 2 (5th Cir.1982)

("reasonable belief" that employer engages in discriminatory practices sufficient to invoke Title VII
protection); Berg v. La Crosse Cooler Co., 612 F.2d 1041, 1045–46 (7th Cir.1980) (employee who

makes good faith, reasonable charges that employer's practice violates Title VII is protected from

retaliatory discharge though charges unfounded). But the court found the opposite of good faith on

Wilson's part; it found that she knowingly made several misrepresentations to Moore, which caused

her demotion and termination.

The court'sfindings also destroyWilson's contention thatshe is entitled to recover under Title

VII even if the defendants discharged her for both legitimate and illegitimate reasons. See Price

Waterhouse v. Hopkins, 490 U.S. 228, 241, 109 S.Ct. 1775, 1785, 104 L.Ed.2d 268 (1989) ("Title

VII meant to condemn even those decisions based on a mixture of legitimate and illegitimate

considerations"). The court concluded that Wilson did not prove that her reports of sexual

harassment caused her termination and that her misrepresentations did.

Wilson next arguesthat the fact findings on which the court based its Title VII judgment are

clearly erroneous. Our review of the record convinces us that ample evidence supports both Wilson's

and the defendants' opposite positions concerning the reasonsfor the disciplinaryaction taken against

Wilson. We are bound in such cases to defer to the credibility determinations of the trier of fact.

Finally, Wilson argues that Pettway v. American Cast Iron Pipe Co., 411 F.2d 998 (5th

Cir.1969), requires a different standard than that applied by the district court to decide whether the

defendants disciplined her for legitimate or illegitimate reasons. She claims that Pettway interprets

Title VII to prevent an employer from making a disciplinary decision based on its evaluation of the

veracity of an employee's allegations that concern an activity that Title VII protects, such as

complaints about sexual harassment. No court has read Pettway so broadly, and we see no

justification for doing so now.

Pettway concerns a letter written by Peter Wrenn to the chairman of the Equal Employment
Opportunity Commission (EEOC) in which Wrenn complained of his employer's discriminatory

practices. Wrenn's employer got a copy of the letter and discharged him for making

misrepresentations in the letter. This court held that "where, disregarding the malicious material

contained in a charge (or ... other communication with EEOC sufficient for EEOC purposes, or in

a proceeding before EEOC) the charge otherwise satisfies the liberal requirements of a charge, the

charging party is exercising a protected right under [Title VII]." Id. at 1007. The Pettway court

understood that if it did not protect employee statements in EEOC proceedings, the EEOC's ability

to administer Title VII would be impaired. Id. at 1005. Applying its understanding of the law, the

Pettway court found that Wrenn's submission of the letter to the EEOC was protected by Title VII

and his employer violated that statute by discharging him for making misrepresentationsin the letter,

even if a court later agreed with the employer that Wrenn's statements were misrepresentations. Id.

at 1007–08.

Pettway does not protect Wilson from the consequences of any misrepresentations that she

made to Moore or Mays, because she made any such misrepresentations outside the context of any

EEOC proceeding. The Pettway court expressly refused to "decide whether a writing purporting to

be and to be used as a charge, which does not meet the requisites of a charge such as is required to

set the EEOC machinery in operation is protected." Id. at 1007. Thus, Pettway only protects

employeesfromretaliation for misrepresentationsmade in certain documents orstatementsin EEOC

proceedings. Pettway's rationale entirely depends on EEOC's function in the administration of Title

VII, so we cannot extend Pettway's holding to extra-EEOC proceedings without a reason for doing

so.

We thus affirm the district court's judgment dismissing Wilson's Title VII claims.

B. SECTION 1983

1. First Amendment
 

4The defendants argue that the falsity of Wilson's charges forfeits any constitutional protection

that they would otherwise enjoy. But, as we stated in our discussion of Wilson's Title VII claim,

the evidence in this case conflicts on the veracity of Wilson's statements. Before the district court

directed a verdict on Wilson's First Amendment claim under section 1983, a jury sat as the trier of

fact for this claim. Thus, the district court's findings as to Wilson's Title VII claim do not apply to

her section 1983 claim. 

Wilson claimsthat the defendants deprived her of her constitutionalright to free speech under

color of law in contravention of 42 U.S.C. § 1983 by discharging her in retaliation for her speech

about sexual harassment byUTHC police officers. This claim resembles Wilson's Title VII claim, but

Title VII does not preempt a collateralsection 1983 action based on the same incident. Johnston v.

Harris County Flood Control Dist., 869 F.2d 1565, 1573–76 (5th Cir.1989), cert. denied, 493 U.S.

1019, 110 S.Ct. 718, 107 L.Ed.2d 738 (1990). The district court directed a verdict against Wilson

on her First Amendment claim after ruling that her speech concerned a matter of insufficient public

concern to merit constitutional protection.

"[W]hen a public employee speaks not as a citizen uponmatters of public concern, but instead

as an employee upon matters only of personal interest, absent the most unusual circumstances, a

federal court is not the appropriate forum in which to review the wisdom of a personnel decision

taken by a public agency allegedly in reaction to the employee's behavior." Connick v. Myers, 461

U.S. 138, 147, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983) (emphasis added). Exercising de novo

review, "we decide whether speech addresses a matter of public concern with reference to the

"content, form and context of a given statement, as revealed by the whole record.' " Johnston, 869

F.2d at 1577 (quoting Connick, 461 U.S. at 147–48, 103 S.Ct. at 1690).

The content of Wilson's speech—reports of sexual harassment perpetrated on her and other

women at UTHC4—is of great public concern. Cf. Connick, 461 U.S. at 148, 103 S.Ct. at 1691 n.

8 (plaintiff's constitutional "right to protest racial discrimination [is] a matter inherently of public

concern," citing Givhan v. Western Line Consolidated School Dist., 439 U.S. 410, 415–16, 99 S.Ct.

693, 696–97, 58 L.Ed.2d 619 (1979)).
The defendants rely on Terrell v. University of Texas System Police, 792 F.2d 1360 (5th

Cir.1986), cert. denied, 479 U.S. 1064, 107 S.Ct. 948, 93 L.Ed.2d 997 (1987) in arguing that

Wilson's speech was not of public concern. The Terrell court held that the speech at issue was not

of public concern in part because the speech consisted exclusively of criticisms of the competence of

the speaker's supervisor. Id. at 1362; see also Connick, 461 U.S. at 147–48, 103 S.Ct. at 1690–91

(employee intra-office questionnaire was not speech of public concern inasmuch as questionnaire

sought employee opinions on office's transfer policy). Terrell and Connick are thus distinguishable

because the only reason that the public would be concerned about the speech there at issue was

because it involved a public workplace. See Terrell, 792 F.2d at 1362 ("almost anything that occurs

within a public agency could be of concern to the public"). This court before has cited Terrell in

identifying this critical distinction between speech concerning personnel policies and that concerning

public official misconduct, and designated the latter of "public concern." Brawner v. City of

Richardson, Tex., 855 F.2d 187, 191–92 & nn. 10–14 (5th Cir.1988).

The defendants also argue that because Wilson acknowledged some duty as a police officer

to report sexual harassment, she made the reports as an employee, not as a citizen. But practically,

such a rule would permit public employersto remove constitutionalprotection fromspeech on certain

subjects by including those subjects within employees' reporting duties. Any employer can require

employeesto report sexual harassment; because some forms of harassment are not criminal offenses,

the reporting of harassment does not fallwithin the special province of police officers. Thus, the rule

proposed bythe defendants could ironicallyfacilitate the suppression ofspeechthrougha requirement

that the speech be made.

We return to Connick to determine the significance of an employee's duty to speak in the

"public concern" determination. Connick "hold[s] only that when a public employee speaks not as

a citizen upon matters of public concern, but instead as an employee upon matter only of personal

interest," the First Amendment does not protect the employee from discipline forspeaking. 461 U.S.
at 147, 103 S.Ct. at 1690 (emphasis added). The words "not" and "instead" in this key statement can

only mean that the Court removed from First Amendment protection only that speech that is made

only as an employee, and left intact protection for speech that is made both as an employee and as

a citizen.

We think that Wilson made her reports of sexual harassment both as a citizen and an

employee. She contends that she started her reports after personally experiencing considerable

harassment, and obviously had a stake as an individual citizen in having that conduct stopped,

regardless of whether her reports also coincided with her job responsibilities.

Nor did Wilson forfeit her right to speak by choosing an internal forum to speak as a citizen

about sexual harassment within the UTHC police force. See Givhan, 439 U.S. at 415–16, 99 S.Ct.

at 696–97; see also Johnston, 869 F.2d at 1577 (employee's testimony in a closed hearing convened

to review intragovernment employment dispute is of public concern, and therefore protected speech).

Having considered the jurisprudence and the parties' contentions, we conclude that the district court

erred in holding that Wilson's speech was not of public concern.

Though the speech of public employees may be of public concern, that speech still does not

enjoy First Amendment protection if legitimate government interestsin limiting the speech outweigh

the employees' interest in speaking. See Connick, 461 U.S. at 150–51, 103 S.Ct. at 1691–92 (citing

Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)). The

defendants invite us to affirm the district court's dismissal of Wilson's First Amendment claim on the

ground that her interest in reporting sexual harassment is outweighed by UTHC's interest in

eliminating dissension among its employees and in providing efficient police protection. We cannot

accept thisinvitation because the defendants prematurely assume a finding that Wilson did not speak

in good faith. If a jury determines that she reported sexual harassment in good faith, then UTHC's

interest in maintaining a police force that is free of sexual intimidation, which Wilson's good faith
reports would serve, outweighs any interest in departmental efficiency and harmony.

Finally, the defendants argue that Wilson produced insufficient evidence that they retaliated

against her for herspeech,so we may affirmthe district court's directed verdict on this ground. After

reviewing the record, we agree as to defendants Davis and Hurst. Moore and Mays decided to

discipline Wilson and Jackson reviewed that decision, so each could have retaliated against Wilson

for her protected speech. And any retaliation for Wilson's speech on a matter of such prominent

public concern as workplace sexual harassment represents a violation of a clearly established right,

so under Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982),

these defendants are not entitled to qualified immunity. On remand, a jury will decide whether they

in fact retaliated against Wilson for her protected speech.

2. Due Process

 The district court directed a verdict against Wilson on her due process claim under section

1983 after ruling that Wilson's own evidence showed that she received constitutionally sufficient

process in each instance in which the defendants took disciplinary action against her. Wilson argues

that she received insufficient pre-disciplinary process. But even when a government terminates an

employee, the Constitution only requires notice and an opportunity to respond prior to termination.

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 1495, 84 L.Ed.2d 494

(1985). The record establishes that Wilson got this much process in each instance in which the

defendants disciplined her. We thus affirm the district court's judgment as to Wilson's due process

claim under section 1983.

C. DEFAMATION

Wilson claimsthat the court erred in directing a verdict against her on her defamation claims

against Mays and Moore under Texas law. The court held that Wilson could not prevail because she

adduced insufficient evidence of malice. See Ramos v. Henry C. Beck Co., 711 S.W.2d 331, 335
(Tex.App.—Dallas 1986, no writ) (privilege for employer's accusations against employee, made to

person with common interest in employee's discharge, lost if plaintiff carries burden of proving that

communication made with malice). In considering a motion for a directed verdict in a jury trial, the

court must "consider all the evidence ... in the light and with allreasonable inferences most favorable

to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly

in favor of one party that the Court believes that reasonable men could not arrive at a contrary

verdict, granting the motion[ ] is proper." Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969)

(en banc). We apply this same standard in reviewing the district court's decision. Id. at 377.

Applying the Boeing standard, we think that Wilson presented sufficient evidence of malice

to survive summary judgment. Mays and Moore portrayed Wilson as a forger and a liar in her letter

of termination. Wilson testified that neither of these were true and asked the jury to infer that Moore

and Mays said these things to justify terminating her when they really wanted to discharge her for

reporting sexual harassment. Based on the evidence presented, the jury was entitled to accept this

version of events and find that Moore and Mays acted with malice.

The defendants claim that, under Pennhurst State School & Hosp. v. Halderman, 465 U.S.

89, 101–02, 104 S.Ct. 900, 908–909, 79 L.Ed.2d 67 (1984), the Eleventh Amendment precludesthe

district court from exercising jurisdiction over Wilson's state-law defamation claim against state

officials. But the district court dismissed all claims against UTHC and the defendants in their official

capacities before directing a verdict on the defamation claimasto Moore and Maysin their individual

capacities. Pennhurst and the Eleventh Amendment do not deprive federal courts ofjurisdiction over

state law claims against state officials strictly in their individual capacities. Voisin's Oyster House,

Inc. v. Guidry, 799 F.2d 183, 187–88 (5th Cir.1986). Thus, the district court properly exercised

jurisdiction over Wilson's defamation claims against Mays and Moore.

III. CONCLUSION
We REVERSE the district court'sjudgment insofar asit dismisses Wilson's First Amendment

claims under section 1983 against Jackson, Mays, and Moore, and insofar as it dismisses Wilson's

defamation claims against Mays and Moore. We AFFIRM the court's judgment in all other respects.

We REMAND this case for further consideration.