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 c o nt ends 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 o n 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 thi s 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 superviso r, po lice chief and1 Davis 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.

2 Davis 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's troubles began in August 1986 when she brought a camera lens to the UTHC campus

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 protestati ons 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 UTH C's Acting Di rector of

Personnel, Sharon Briery, who advised that she see Chief Moore. 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 makin g sexually suggestive comments to

women. 2 Moore also issued a letter o f 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

mentally and administratively by alleging intimidation and by waiting 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 from sergeant 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 from the 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 par t of Wilson's appeal of her demotion, Wilson's attorney demanded the

attached documentation from Moore's supervisor, defendant Ron Mays. 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

t he PDRs and discovered that they did not match. Two day s later, on March 5, 1987, Moore

presented Wilson with a letter of termination, citing Wilson's continued misrepresentations in the PDR

incident as the reason for her discharge.

Wilson appealed her termination through UTHC channels and ultimately sued Davis, Moore,3 The 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 constitutional rights to free speech

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

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

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

to m eri t protecti on, 2) on her due process claim after holding that Wilson received constitutionally

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

evidence of malice on the defendants' part. The co urt t hen continued the trial to resolve Wilson's

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

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

demoted her because of those misrepresentations, and then terminated her because she misrepresented

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

II. DISCUSSION

A. T ITLE VII

Wilson tried her Title VII claim to the court as required by statute before Congress permitted

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

Wilson's suggestion that we accord retroactive effect to the jury trial provision of the Civil Rights Act

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

Wilson argues that the district court applied the wrong legal standard in deciding that she was

not discharged in retaliation for reporting sexual harassment as prohibited by 42 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. S ee 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 VIIprotecti on); B erg 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's findings also destroy Wilson's contention that she is entitled to recover under Title

VII even if the defendants discharged her for both legitimate and illegit imate reasons. S ee 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 i llegit imate

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

harassment caused her termination and that her misrepresentations did.

Wilson next argues that 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 reasons for the disciplinary action 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 pro tects, such as

complaints about sexual harassme nt. No court has read P ettway 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 EmploymentOpportunity Commissi o n (EEOC) in which Wrenn complained of his employer's discriminatory

practices. Wrenn's employer got a copy of the letter and discharged him fo r 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]." I d. at 1007. The P ettway court

understood that if it

did not protect employee statements in EEOC proceedings, the EEOC's abilit y

to administer Title VII would be impaired. I d. 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 misrepresentations in the letter,

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

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 P ettway 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 EEO C machinery in operation is protected." I d. at 1007. Thus, P ettway only protects

employees from retaliation for misrepresentations made in certain documents or statements in EEOC

proceedings. P ettw ay's rationale entirely depends on EEOC's function in the administration of Title

VII, so we cannot extend Pettw ay'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. S ECTION 1983

1. First Amendment4 The 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 claims that the defendants deprived her of her constitutional right 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 by UTHC police officers. This claim resembles Wilson's Title VII claim, but

Title VII does not preempt a collateral section 1983 action based on the same incident. J ohnston 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 upon matters of public concern, but instead

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

federal co urt 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 d e 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.' " J ohnston, 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 UTHC 4 —is of great public concern. C f. Connick, 461 U.S. at 148, 103 S.Ct. at 1691 n.

8 (plaintiff's constitutional "right t o 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 Terr ell 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. I d. at 1362; s ee also Connick, 461 U.S. at 147–48, 103 S.Ct. at 1690–91

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

sought employee opinions on office's transfer policy). T errell and Connick are thus distinguishable

because the only rea so n t hat t he public would be concerned about the speech there at issue was

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

within a public agency could be of concern to the p ublic"). This court before has cited T errell in

ident ifying this critical distinction between speech concerning personnel policies and that concerning

public official misconduct, and designated t he lat t er of "public concern." B rawner 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 employers to remove constitutional protecti on from speech on certain

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

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

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

proposed by the defendants could ironically facilitate the suppression of speech through a requirement

that the speech be made.

We return to Connick to determin e t he 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 for speaking. 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 harassmen t bot h as a citizen and an

e mplo yee. She contends that she started her reports after personally experiencing considerable

harassment, and obvi o usly 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; s ee 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 protecti on if legitimate government interests in limit ing the speech outweigh

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

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

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

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

eliminat ing dissension among its employees and in providing efficient police protecti on. We cannot

accept this invitation 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 maint aining a police force that is free of sexual intimidation, which Wilson's good faithreports 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 her speech, so we may affirm the district court's directed verdict on this ground. After

reviewing the record, we agree as t o 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 pro minent

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 immunit y. 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 opportuni ty 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. D EFAMATION

Wilson claims that 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. S ee 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 plaint iff 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 all reasonable 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 arri ve at a contrary

verdict, granting the motion[ ] is proper." B oeing 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 w ant ed 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 precludes the

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 claim as to Moore and Mays in their individual

capacities. P ennhurst and the Eleventh Amendment do not deprive federal courts of jurisdiction over

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

Inc. v. Guidry, 799 F.2d 1 83, 187–88 (5th Cir.1986). Thus, the district court properly exercised

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

III. CONCLUSIONWe REVERSE the district court's judgment insofar as it dismisses Wilson's First Amendment

claims under section 1983 against Jackson, Mays, and Moore, and inso far 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.