* District Judge of the Eastern District of Texas, sitting by designation.

1 United States Court of Appeals,

Fifth Circuit.

No. 96-30219.

Philip CABROL, Plaintiff-Appellant,

Gloria Cabrol, Plaintiff,

v.

TOWN OF YOUNGSVILLE; Lucas Denais, Mayor, Defendants-Appellees.

Feb. 24, 1997.

Appeal from the United States District Court for the Western District of Louisiana.

Before SMITH and PARKER, Circuit Judges, and JUSTICE, * District Judge.

PARKER, Circuit Judge:

This case arises from the sights, smells and early morning sounds emanating from the yard of

P hilip Cabrol ("Cabrol"), who appeals from an order granting summary judgment to the tow n of

Youngsville, Louisiana ("Youngsville"), and the mayor of the town, Lucas Denais ("the mayor") in

his action under 42 U.S.C. § 1983 for alleged violations of his rights under the First Amendment and

the Due Process Clause of the Fourteenth Amendment. An at-will employee of Youngsville, Cabrol

brought this action after being terminated from his position after refusing the mayor's request to

relocate the chickens inhabit ing Cabrol's residence's yard. Cabrol contends on appeal that (1) the

district court improperly granted summary judgment on Cabrol's due process claim because Cabrol

had a property interest in his employment, the deprivation of which required due process protections;

(2) t hat summary judgment was improperly granted on his second due process claim because

stigmatizing allegations were made in connection with his termination that deprived him of a liberty

interest without due process; (3) that summary judgment was improperly granted on his claim that

he was retaliatorily discharged for exercising his right to speech under the First Amendment; (4) that

the district court improperly found that the mayor was entitled to qualified immunity; and (5) that1 Cabrol refers to the inhabitants of his yard as "fighting chickens." Fighting chickens are raised

for "cockfighting." See Blood Sport, The Tucson Citizen, Mar. 20, 1996, at A1, 1996 WL

8173922, for one description of the sport.

2 the district court erred in dismissing Cabrol's supple ment al st at e law claims. For the following

reasons, we affirm.

I. FACTUAL AND PROCEDURAL HISTORY

Viewing the summary judgment record in a light most favorable to the nonmovant, Cabrol,

the facts are as follows. Cabrol was hired by Youngsville as a part-time water meter reader in

December 1986 following a unanimously suppor t ed motion of the town council. In November of

1 987, by vote of the town council, a part-time position of "mayor's assistant" was created and,

following a vote of the town council, Cabrol was hired for this job. In addition to reading meters,

Cabrol's duties in this position included maintenance of city utilities and streets, and customer service

related to utilities and streets.

Cabrol raises "fighting chickens" 1 at his residence in Yo ungsville. By the fall of 1994, the

mayor had received complaints regarding the noise and smell ge nerat ed by Cabrol's and others'

chickens. The record indicates that at least one council member had received similar complaints.

In the fall of 1994, t he mayor sponsored a proposed amendment to Youngsville's nuisance

ordinance. The amendment apparently added "disagreeable or obnoxious odors and stenches" and

"unnecessary or unauthorized noises

... including animal noises" to the nuisance ordinance's definition

of nuisance. One member of the town council expressed co ncern about the amendment's

ramifications for animal ownership in Youngsville when it was discussed at the October 1994 council

meeting, and the amendment was tabled.

Cabrol testified that he was opposed to the am endment, and spoke to several council

members, other chicken fighters and some Youngsville residents while at the post office regarding

the issue. Cabrol understood that the amendment would be discussed at t he November 10, 19942 No meeting agenda reflecting the scheduling of the amendment for the council discussion is in

the record. Agendas for other months' meetings are in the record.

3 t o wn co uncil meeting. 2 Cabrol's position with the town involved attending the town council

meetings. He attended the meeting but did not speak. The amendment was not reintroduced at the

November meeting; in fact, it was never reintroduced or adopted.

On November 16, 1994, the mayor sent Cabrol a letter informing him that his employment

with the town would be terminated if he did not rid his yard of the chickens by November 30, 1994.

This letter apparently followed some conversation on the topic. The mayor explained t hat he had

received "numerous complaints" about Cabrol's chickens: "The complaints about your chickens range

from stinky, unsightly to noisy." Cabrol did not remove the chickens from his yard.

Effective November 30, 1994, the mayor terminated Cabrol. Cabrol subsequently filed this

action in district court under 42 U.S.C. § 1983, claiming that Youngsville and the mayor deprived

him of liberty and property intere st s wit hout due process as guaranteed by the Fourteenth

Amendment and retaliatorily discharged him for exercising his First Amendment right to expression.

He also included supplementary state law claims based on Louisiana's Constitution and statutory law

that parallel the 42 U.S.C. § 1983 c laims. The district court granted summary judgment for the

defendants and dismissed the state law claims without prejudice. It issued no written opinion but its

st at ements at the summary judgment hearing indicate that it found that Cabrol had no propert y

interest in his job and, as an at-will employee, could be terminated for any reason.

Cabrol appeals the district court's judgment to this court, arguing the following: (1) that his

termination failed to comply with the Due Process Clause of the Fourteenth Amendment in that he

had a property interest in his continued employment of which he was deprived without due process;

(2) that stigmatizing allegations were made in connection with his termination implicat ing a liberty

interest o f which he was deprived without due pro from his at-will position was his verbal and

symbo lic opposition to the proposed amendment to Youngsville's nuisance ordinance in violation of

his right to expression under the Fi rst Amendment; (4) that the district court erred in finding the4

mayor entitled to qualified immunit y; and (5) that the district court erred in dismissing the

supplementary state law claims.

II. DISCUSSION

We review orders granting summary judgment de novo, applying the same standards as the

district court. F

owler v. Smith, 68 F.3d 124, 126 (5th Cir.1995). Summary judgment is appropriate

where there is no genuine issue of material fact and the m o ving party is entitled to judgment as a

matter of law. Fed.R.Civ.P. 56(c). When reviewing an order granting summary judgment, we are

not limit ed to the district court's conclusions but can affirm a district court's judgment on any grounds

supported by the summary jud gment record. S ojourner T. v. Edwards, 974 F.2d 27, 30 (5th

Cir.1992), cert. denied, 507 U.S. 972, 113 S.Ct. 1414, 122 L.Ed.2d 785 (1993).

In reviewing 42 U.S.C. § 1983 actions where qualified immunit y is asserted, our first inquiry

c oncerns whether a constitutional violation occurred. S iegert v. Gilley, 500 U.S. 226, 111 S.Ct.

1789, 114 L.Ed.2d 277 (1991). Thus, we turn to a review of the three constitutional claims, after

which we address Cabrol's additional contentions, which include the issue of the mayor's entitlement

to qualified immunity.

A. Deprivation of a Property Interest w ithout Due Process

Cabrol contends that his due process rights were violated by the mayor's termination of him,

rather than such occurring following a vote of the town council. Cabrol argues that even though no

written contract vested him with a property interest, the town council practice of voting when hiring

issues are presented to the council created an understanding that a town council vote would precede

any dismissal. He contends that this underst anding functioned as an implicit contract regarding

termination procedure that acted to secure a property interest.

The Fourteenth Amendment's Due Process Clause does not create a property interest in

government employment. B oard of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct.

2701, 2709, 33 L.Ed.2d 548 (1972); B lackbur n v. City of Marshall, 42 F.3d 925, 936 (5th

Cir.1995). Rather, property interests stem from independent sources. I d. A government employee5

may possess such an interest by operati on of contract or state law, s ee Board of Regents of State

Colleges, 408 U.S. at 577, 92 S.Ct. at 2709; C leveland Board of Ed. v. Loudermill, 470 U.S. 532,

538, 105 S.Ct. 1487, 1491, 84 L.Ed.2d 494 (1985), or perhaps a policy, see Schaper v. City of

Huntsville, 813 F.2d 709, 713 (5th Cir.1987) (policy that "just cause" required f o r dismissal).

Accordingly, in order to advance a due process claim in connection with his termination, Cabrol must

point to some state or local law, contract or u nderstanding that creates a property interest in his

continued employment. Absent a property interest, there is nothing subject to due process

protections and our inquiry ends.

To determine if Cabrol had a property interest in his employment we look to Louisiana state

and local law. S chaper, 813 F.2 d at 713. Absent a contractual agreement for employment for a

specified term or a legislative or regulatory restra int o n a public entity's termination authority,

Louisiana law does not establish a riy v. St. Landry Parish Police Jury, 802 F.2d 822, 825-26 (5th

Cir.1986), cert. denied, 482 U.S. 916, 107 S.Ct. 3190, 96 L.Ed.2d 678 (1987); O verman v. Fluor

Constructors, Inc., 797 F.2d 217, 218 (5th Cir.198 6); C owart v. Lee, 626 So.2d 93

(La.Ct.App.1993); J

ackson v. East Baton Rouge Parish Indigent Defender's Board, 353 So.2d 344,

345 (La.Ct.App.1977) ("[T]here is no case holding that a specific employment position is a property

right of that employee, absent a showing of any contractual agreement or legislative act or rule.").

Cabrol did not have an employment contract and no state law or regulation assists him.

Rather than creating a property interest, Louisiana law delegates to mayors the authority to

fire an employee holding a position such as Cabrol's as long as he is not a civil servant and ordinances

do not provide otherwise. Louisiana's Lawrason Act delegates the following powers to mayors:

Subject to applicable state law, ordinance, and civil service rules and regulations, to appoint

and remove municipal employees, o t her than employees of a police department with an

elected chief of police. However, appointment or removal of a nonelected chief of police, the

municipal clerk, the municipal attorney

, or any department head, shall be subject to approval

by the board of aldermen, except t hat in the case of a tie vote, the recommendation of the

mayor shall prevail.

La.Rev.Stat.Ann. § 33:404(A)(3). Cabrol was no t a civil servant and no ordinances are alleged.

Thus, state law is of no assistance to Cabrol in the establishment of a property interest.6

Lacking either an employment contract or a statutory provision creating a property interest

in his position, Cabrol relies on the local pract ice of the town council voting when presented with

hiring questions. He does not allege that Youngsville has any ordinance or charter provision

regarding the town council's involvement in the hiring or firing of town employees. The sole custom

alleged by Cabrol is not that the council always votes on firings, but that the council regularly uses

Robert's Rules of Order

when hiring issues are introduced at council meetings. Cabrol argues that

the town council's practice of voting wh en present ed with hiring issues constitutes a policy

encompassing employment termination that stands as an implicit contract, and that such an implicit

contract provides him with a property interest.

Robert's Rules of Order

is a leading source of parliamentary law in the United States, first

published in this country in 1876. C leary v. News Corp., 30 F.3d 1255, 1257 (9th Cir.1994). Unless

adopted by some type of legislative enactment, we view Robert's Rules of Order as purely

parliamentary procedure governing the operati on of the town council upon convening, see Mapp v.

Lawaetz, 882 F.2d 49, 52 n. 1 (3rd Cir.1989), which we examine only in the context of the council's

conduct's compliance with statutory and constitutional requirements, see Brown v. Hansen, 973 F.2d

1118, 1122 (3rd Cir.1992); G eorge v. Local Union No. 639, 825 F.Supp. 328, 333 (D.D.C.1993).

There is no allegation or evidence in the record that the council adopted by ena ct ment any part of

Robert's Rules of Order

either generally for purposes of council business, or specifically in relation

to any personnel procedures. Even if they had, the council's parliamentary rules would not operate

to create a property i

nterest. S ee Henderson v. Sotelo, 761 F.2d 1093, 1097-98 (5th Cir.198 5 )

(violation of city charter's procedure requiring "advice and consent" of city commissioners prior to

termination does not create a property interest that otherwise did not exist).

Even viewing the use of Robert's Rules of Order by the town council in addre ssing hiring

issues presented to th e council as an understanding of some sort as to termination procedures,

Cabrol's argument similarly fails since " "property ' cannot be defined by the procedures provided for

its deprivation," Loudermill, 470 U.S. at 541, 105 S.Ct. at 1493, irrespective of the source of that7

procedure, be it city charter, ordinance, or policy.

Since Cabrol cannot establish a property interest even with the most indulgent reading of his

evidence, his argument on this issue fails.

B. Deprivation of Liberty Interest w ithout Due Process

The Due Process Clause of the Fourteenth Amendment of the U.S. Constitution protects an

individual's liberty interest which is viewed as including an individual's freedom to work and earn a

living and to establish a home and position in one's community. B oard of Regents of State Colleges,

408 U.S. at 572, 92 S.Ct. at 2706-07. Cabrol maintains that the town violated his due process rights

by terminating his employment in a stigmatizing manner, thus depriving him of a libert y interest.

Cabrol points to the mayor's rendition in his letter of complaints about Cabrol's chickens as "ranging

from stinky, unsightly to noisy." The defendants assert that Cabrol suffered no such deprivation.

Due process protecti ons are triggered only upon deprivation of "life, liberty, or property ," see

U.S. Const. Amend. XIV, § 1, and thus our init ial inquiry in reviewing Cabrol's claim concerns

whether he was deprived of a liberty interest. See Cuellar v. Tex. Employment Comm'n, 825 F.2d

930, 934 (5th Cir.1987). A public employee is deprived of a protected liberty interest e ither if

terminated for a reason which was (i) false, (ii) publicized, and (iii) stig mat izing to his standing or

reputati on in his community or if terminated for a reason that was (i) false and (ii) had a stigmatizing

effect such that (iii) he was denied other employment opportunities as a result. B oard of Regents of

State Colleges, 408 U.S. 564, 92 S.Ct. 2701; C odd v. Velger, 429 U.S. 624, 627, 628, 97 S.Ct. 882,

883, 884, 51 L.Ed.2d 92 (1977) ( per curiam ); M

oore v. Miss. Valley State Univ., 871 F.2d 545,

549 (5th Cir.1989); W

ells v. Hico I.S.D., 736 F.2d 243, 256-57 (5th Cir.1984), cert. dismissed, 473

U.S. 901, 106 S.Ct. 11, 87 L.Ed.2d 672 (1985). Cabrol does not argue that his termination impaired

his employment opportunities, but contends that the basis of his termination stigmatized him in his

community. "[I]n a small, close knit community such as Yo ungsville, allegations of one's owning

smelly, noisy, unsightly chickens in connection with firing from one's job constitutes blackening of

one's name."8

We affirm the district court's grant of summary judgment on this claim for two reasons. A

necessary prerequisite to finding th e deprivation of a liberty interest in this scenario is that the

publicized basis of the termination was false. B lackburn v. City of Marshall, 42 F.3d 925, 936 (5th

Cir.1995). A stigma depriving a person of a liberty interest does so in part because it is a false

impression broadcast to either one's personal or professional communities. S ee Codd, 429 U.S. 624,

97 S.Ct. 882; E rsek v. Township of Springfield, 102 F.3d 79 (3rd Cir.1996) (harm must be caused

by falsity of statements and facts stated were true); Fraternal Order of Police v. Tucker, 868 F.2d

74, 82 (3rd Cir.1989) (no liberty interest implicated when pre ss release about discharge of police

officers was not misleading). While Cabrol invokes the term "false" in his brief, he does not indicate

what aspect of the basis of his termination is false. He does not contend that he did not raise chickens

in his yard, he does not contend that the mayor did not receive complaints, and he does not contend

that his chickens are not "stinky," "unsightly" or "noisy." Cabrol does not argue that a dissemination

of falsehoods or untruths about the circumstances surrounding his termination stigmatized him, but

rather that the true circumstance of losing his job in connection with his refusal to rel ocate hi s

chickens caused him some embarrassment. Such is insufficient.

The seco nd reason supporting our affirming the district court on tnot impose a stigma on

Cabrol of the nature that works a deprivation of a liberty interest. While it is generally understood

that the loss of a job can be stigmatizing in itself, the law requires more to find a liberty deprivation.

Wells, 736 F.2d at 258. Terminations have imposed a stigma depriving plaintiffs of a liberty interest

where the allegations supporting a termination involved dishonesty or immorality, s ee Board of

Regents, 408 U.S. at 573, 92 S.Ct. at 2707; B lackburn, 42 F

. 3d at 936 n. 9, and alcoholism,

disloyalty , o r subversive acts, s ee Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27

L.Ed.2d 515 (1971); L ashbrook v. Oerkfitz, 65 F.3d 1339, 1348 (7th Cir.1995). Charges supporting

termination that have not imposed a stigma sufficient to implicate a constitutionally protected liberty

interest include participatio n in an illegal strike, B urnly v. Thompson, 524 F.2d 1233, 1240 (5th

Cir.1975), and "incompetence and outside activities," Robertson v. Rogers, 679 F.2d 1090, 1092 (4th9

Cir.1982). Like these latter examples, the publicized basis of Cabrol's termination did not involve

"any charge against him that might seriously damage his standing and association in the community,"

or put Cabrol's "good name, reputation, honor, or integrity at stake." B oard of Regents of State

Colleges, 408 U.S. at 573, 92 S.Ct. at 2707 (citations omitted). Raising chickens for cockfighting

purposes is not illegal and cockfighting itself is not illegal in Louisiana. Far from serving as a stigma,

Cabrol continues to embrace his avocation in a public fashion. He associates with an affiliation of

chicken fighters and continues to raise the chickens in his yard. At the same time that Cabrol asserts

that the public dissemination of the reason for h is firing was stigmatizing, he testified that many

people in Youngsville have indicated their support of his decision to retain the chickens in his yard.

There is no evidence of a stigma of the magnituourteenth Amendment did not require any procedural

safeguards in connection with Cabrol's discharge, and his argument on this issue fails.

C. First Amendment Claim

Cabrol alleges that he was discharged in retaliation for exercising his First Amendment right

to free speech and political expression. Specifically, he maintains that t he mayo r terminated his

employment because he actively opposed the ordinance amendment sponsored by the mayor. The

defendants contend that Cabrol was not fired for any type of opposition to the ordinance, but rather

because he did not rid his yard of the chickens as requested by the mayor.

An at-will public employee may not be discharged for exercising his First Amendment right

to freedom of expression. T hompson v. City of Starkville, 901 F.2d 456, 460 (5th Cir.1990). To

prove a retaliation claim cognizable under the First Amendment, Cabrol must (1) show that his speech

was constitutionally protected, i.e., that it involved a matter of public concern; (2) that his interest

in commenting on the matters of public concern outweighs the public employer's interest in promoting

efficiency; and (3) that his speech was a motivating or substantial factor in the termination decision.

Fow ler v. Smith, 68 F.3d 124, 126 (5th Cir.1995).

1. Cabrol's Conversations

Cabrol argues that he spoke with some council members about the ordinance amendment,10

and also that he spoke with some Youngsville residents at the post office as well as fellow chicken

fighters about the issue. These are the sole conversations alleged by Cabrol as the basis of his claim.

Accepting Cabrol's testimony as true for summary judgment purposes, we skip ahead in our inquiry

to the third element, the causation issue. Cabrol submitted no evidence regarding how the mayor,

the person who terminated him, was made aware of any of these conversations. By failing to do so,

Cabrol fails to address an essential element of his claim. In the absence of evidence that such

conversations made their way back to the mayor, this First Amendment claim fails. S ee Fowler, 68

F.3d at 127 (no genuine issue of material fact raised concerning motivation behind discharge where

no evidence that defendant knew of plaint iff's speech). When the nonmovant fails to make a sufficient

showing on an essential element of his claim, the moving party is entitled to summary judgment "since

a complete failure of proof concerning an essential element of the nonmoving party's case necessarily

renders all other facts immaterial." C elotex Corp. v. Catrett, 477 U. S. 317, 323, 106 S.Ct. 2548,

2553, 91 L.Ed.2d 265 (1986).

2. Cabrol's Expressive Conduct

Cabrol also advances a First Amendment claim based on retaliation for symbo lic speech, citing

his conduct in not getting rid of his chickens following the mayor's request and his attendance of the

council meeting in which he understood that the proposed ordinance amendment would be discussed.

In some situations, nonverbal conduct can constitute protected "speech" for purposes of the

First Amendment. S ee, e.g., Buckley v. Valeo, 424 U.S. 1, 14-23, 96 S.Ct. 612, 632-36, 46 L.Ed.2d

659 (1976) (campaign expenditures are political expression); S pence v. Washington, 418 U.S. 405,

410-11, 94 S.Ct. 2727, 2730, 41 L.Ed.2d 842 (1974) (taping black peace symbo ls to United States

flag in 1970 expressed political criticisms that viewers understood); T inker v. Des Moine s Indep.

Community School District, 393 U.S. 503, 505, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969) (wearing

armbands to protest Vietnam War is protected "symbolic act").

The question of the protected status of speech is one of law, and as such, we review the issue

de novo. Stew

art v. Parish of Jefferson, 951 F.2d 681, 683 (5th Cir.1992); Kirkland v. Northside11

I.S.D., 890 F.2d 794, 797 (5th Cir.1989), cert. denied, 496 U.S. 926, 110 S.Ct. 2620, 110 L.Ed.2d

641 (1990). In considering Cabrol's conduct, we keep in mind the Supreme Court 's reject io n in

United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968), of "the

view that an apparently limit less variety of conduct can be labeled "spe ech' whenever the person

engaging in conduct intends thereby to express an idea." S ee also City of Dallas v. Stanglin, 490

U.S. 19, 25, 109 S.Ct. 1591, 1595, 104 L.Ed.2d 18 (1989) ("possible to find kernel of expression in

almost every activity a person undertakes ... but such a kernel is not sufficient to bring the activity

within the protecti on of the First Amendment."); N ew Orleans S.S. Ass'n v. General Longshore

Workers, 626 F.2d 455, 462 n. 5 (5th Cir.1980) (noting that all communication involves conduct),

aff'd sub nom. Jacksonville Bulk Terminals, Inc. v. Int'l Longshoremen's Ass'n, 457 U.S. 702, 102

S.Ct. 2672, 73 L.Ed.2d 327 (1982). For activities to constitute expressive conduct and fall within

the scope of the First Amendment, they must be "sufficie nt ly imbued with elements of

communication." S

pence, 418 U.S. at 409, 94 S.Ct. at 2730. In deciding whether particular conduct

possesses sufficient communicative elements to bring the First Amendment into play, we ask whether

an intent to convey a particularized message was present and whether the likelihood was great that

the message would be understood by those who viewed it. T exas v. Johnson, 491 U.S. 397, 404, 109

S.Ct. 2533, 2539, 105 L.Ed.2d 342 (1989); U nited St ates v. Hayward, 6 F.3d 1241, 1249 (7th

Cir.1993), cert. denied,

--- U.S.

----, 114 S.Ct. 1369, 128 L.Ed.2d 46 (1994). In considering such,

we look to the appellant's activity, combined with the factual context and environment in which it was

undertaken. S

pence, 418 U.S. at 409-10, 94 S.Ct. at 2729-30; S teirer v. Bethlehem Area School

District, 987 F.2d 989, 995 (3rd Cir.), cert . denied, 510 U.S. 824, 114 S.Ct. 85, 126 L.Ed.2d 53

(1993).

The nature of Cabrol's activities, combined with the factual context and environment in which

undertaken, do not amount to an expressive act for purposes of the First Amendment. C f. Buckley,

424 U.S. 1, 96 S.Ct. 612; S pence, 418 U.S. 405, 94 S.Ct. 2727; T inker, 393 U.S. 503, 89 S.Ct. 733.

In order for a message to be delivered by conduct, it must, in context, be reasonably apprehended by12

viewers. S ee Spence, 418 U.S. 405, 94 S.Ct. 2727; T inker, 393 U.S. 503, 89 S.Ct. 733; S teirer, 987

F.2d at 995. There was no likelihood, s ee Johnson, 491 U.S. at 404, 10 9 S.Ct. at 2539-40, that

Cabrol's activity, combined with its context and environment, communicated a message to viewers.

Cabrol was not doing anything that he had not been doing previously. His continued maintenance

of the chickens in his yard did not occur in the context of, for example, any accompanying conduct

or speech or symbo l, and there is no allegation that either the proposed amendment or the mayor's

request had en t ered the local public consciousness. There was no context that would allow the

continued residence of the chickens in Cabrol's yard to resonate a message to viewers that Cabrol

opposed the proposed ordinance amendment. C ompare Spence, 4 18 U.S. 405, 94 S.Ct. 2727

(current events and t iming allowed message to be communicated). With no likelihood that viewers

would perceive any message, there is no expressive conduct to be protected by the First Amendment.

See Steirer, 987 F.2d at 997 (no evidence that people in community who saw students performing

community service were likely t o perceive actions as expression of belief in value of community

service or altruism).

The second instance of conduct on which Cabrol relies, his attendance at a council meeting

at which he understood that the ordinance amendment was to be discussed, also fails to support his

claim. He did not speak at the meeting and his attendance at council meetings was part of his job

performance. As such, his attendance is not protected expressive conduct. General job performance,

lacking assertion of specific speech activity, fails to resemble the expressive conduct at stake in cases

such as Tinker, Spence, and Valeo. G uillory v. St. Landry Parish Police Jury, 802 F.2d 822, 826

(5th Cir.1986).

D. Qualified Immunity

In 42 U.S.C. § 1983 actions in which qualified immunit y is asserted, we, as previously noted,

first determine if a constitutional violation has occurred. S iegert v. Gilley, 500 U.S. 226, 111 S.Ct.

1789, 114 L.Ed.2d 277 (1991). Because we find no constitutio nal vio lat ions, as explained in our

discussion, we need not address the qualified immunity issue.13 E. State Law Claims

Regarding the district court's dismissal of Cabrol's state law claims, we review such a decision

for an abuse of discretion. Laird v. Board of Trustees of Inst'ns of Higher Learning of Miss., 721

F.2d 529, 534 (5th Cir.198 3). The district court has the discretionary power to adjudicate

supplemental state law claims after dismissing the federal claims that originally served as the basis of

its jurisdiction. C inel v. Connick, 15 F.3d 1338, 1344 (5th Cir.) (c iting United Mine Workers of

America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)), cert. denied,

--- U.S.

----,

115 S.Ct. 189, 130 L.Ed.2d 122 (1994). After reviewing the factors involved in the exercise of the

district court's discretion, see Id.; Laird, 721 F.2d at 534 (citing G ibbs, 383 U.S. 715, 86 S.Ct.

1130), we affirm the district court's decision. Cabrol failed to provide any reason that his state law

claims should be reinstated and remand e d. After reviewing the customary considerations, e.g.,

judicial economy, convenience, fairness and comity, see Cinel, 15 F.3d at 1344, we find no support

for the suggestion that the district court abused its discretion in dismissing the state law claims. S ee

Laird, 721 F.2d at 534-35.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court's order granting summary judgment

to the defendants and dismissing the supplemental state law claims.

JUSTICE, District Judge, dissenting:

An at-will employee has very few protections against being discharged from employment,

whether working in the private or public sector. One crucial difference between a private and public

employee, however, lies in the fact that the United States Constitution prohibits the government from

discharging a public employee for exercising his First Amendment right to freedom of expression.

Specifically, public employees have the right to speak out on matters of public concern and cannot

be retaliated against for such speech, if the employee's interest in commenting on matters of public

co ncern outweighs the public employer's interest in promoting efficiency. S ee Kinsey v. Sa lado

Indep. School Dist., 950 F.2d 988 (5th Cir.) (en banc), cert. denied, 504 U.S. 941, 112 S.Ct. 2275,14

119 L.Ed.2d 201 (1992). Upon becoming a public employee, an individual such as Philip Cabrol is

thus not forced to sacrifice one of the gre atest rights our Consti tuti on affords the peopl e of thi s

nation—the right to participate freely in debates on public issues.

T he majo rity concedes the First Amendment right of public employees such as Cabrol to

speak out on issues of public concern, in this instance, "fighting chickens." But, the majority finds

that Cabrol failed to make a sufficient showing that his comments on this public issue were, in any

manner, made known to the mayor, who discharged Cabrol from his employment by the Town. This

failure, the majority holds, obviate s a finding that Cabrol's speech was a motivating or substantial

factor in the mayor's decision to dismiss Cabrol. Hence, the majority has affirmed the district court's

order granting summary judgment against Cabrol on this issue. I believe, however, that the evidence

in the record shows otherwise, and for this reason, I dissent from the majority's resolution of Cabrol's

First Amendment claims. I concur in the remainder of the majority's opinion.

The Town of Youngsville is a small community in Louisiana with wellty's opinion, in the fall

of 1994, the mayor sponso red a proposed amendment to Youngsville's nuisance ordinance which

targeted Cabrol's and other citizens' fight ing chickens by outlawing "disagreeable or obnoxious odors

and stenches" in addition to "unnecessary or unauthorized noises

... including animal noises." Cabrol,

apparently an avid chicken fighter, believed that the proposed ordinance constituted foul play, and,

rather than brooding over the proposal, vocalized his opposition to the amendment in the community.

He spoke to several council members, others raising fight ing chickens in the community, and various

Youngsville residents about his opposition to the amendment. Several members of the town council

rallied behind Cabrol, and told him that he should be able to keep his chickens. Indeed, at the meeting

of the Town Council that considered the matter, opposition to the proposed ordinance amendment

was so strong that it was tabled and never brought up for a vote.

Subsequently, on November 16, 1994, the mayor wrote Cabrol a letter in which the mayor

made clear his high displeasure with the continued presence o f Cabro l's chickens. The following

appears in the letter:15

This may be the perfect time for you to move on to another occupation if you do not agree

w ith my philosophy. November 30, 1994, I feel will give you ample time to get rid of your

chickens. I am confident that you will do what will best serve you and the town. No matter

what you do I will harbor no ill feelings and I hope that you don't, either.

(emphasis in the original). Cabrol, however, was defiant, and refused to get rid of his chickens. On

November 29, 1994, the mayor notified Cabrol that he was being fired, effective the next day.

As previously stated, the majority found that the absence of proof of notice by Cabrol to the

mayor of his opposition to the mayor's proposed amendment to the nuisance ordinance was fatal to

Cabrol's First Amendment claim. There is, however, direct evidence in this case that the mayor knew

that Cabrol had spoken out against the amendment. A letter that Cabrol's attorney sent to the mayor

on November 18, 1994, twelve days before Cabrol was fired, reads as follows:

If someone under your employment is not doing a good job and/or is not representing

the town in a manner which the town fathers disagree with, then certainly disciplinary action

can be instituted, including termination; h owever, you cannot stick a gun t o somebody's

mo uth and try to force them to do something that the laws of your town do not pro hibit

merely for political reasons. Several of the co uncilmen in your town voted against animal

control laws within your town's limit s, and certainly Mr. Cabrol and his wife expressed their

disagreement w ith those law s, as w ell.

(emphasis added).

This letter supports the finding that the mayor was aware of Cabrol's expressions of

oppositi o n t o the animal control amendment. Not until after this letter was sent to Cabrol did the

mayor actually terminate Cabrol's employment. A reasonable jury could thus find that the mayor was

aware of Cabrol's speech at the time he made his decision to fire Cabrol. Furthermore, this record

evidence supports a finding that the mayor was not only aware of Cabrol's speech, but also fired

Cabrol in retaliation for speaking against the amendment. Direct evidence of illegitimate intent is not

required. T

ompkins v. Vic kers, 26 F.3d 603, 608-09 (5th Cir.1994). In this case, the improper

motive of the mayor in firing C abrol can be inferred from the record, including evidence of the

mayor's attempt to pass an ordinance to outlaw Cabrol's chickens and Cabrol's role— i.e., speaking

against the proposed ordinance with fellow citizens—in defeating the mayor's proposal.

Cabrol has also met his summary judgment burden of establishing the other elements of his

First Amendment claim. First, examining the content, form, and context of his complaints, Cabrol's16

speech was clearly a matter of public concern. S ee Connick v. Myers, 461 U.S. 138, 147-48, 103

S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983); T ompkins v. Vickers, 26 F.3d 603, 606-07 (5th Cir.1994).

The fact that Cabrol spoke out against the proposed amendment as a participant in a widespread

debate taking place throughout the Town of Youngsville supports this finding. I d. at 607. Cabrol's

personal interest in the amendment does not dictate a contrary finding: an employee can have a mixed

motive without defeating his First Amendment claim. T hompson v. City of Starkville, Miss., 901 F.2d

4 56, 463 (5th Cir.1990). Moreover, Cabrol's speech constituted a public concern even though he

may have expressed his opposition to the amendme nt o nly in private conversations with fellow

citizens of the town. S ee Givhan v. Western Line Consol. School Dist., 439 U.S. 410, 413, 99 S.Ct.

693, 695, 58 L.Ed.2d 619 (1979).

Second, Cabrol's inte rest, as a citizen, in commenting on the amendment outweighs the

interest of the mayor, as an employer, in promoting the efficiency of his governmental office. K insey,

950 F.2d at 992; D avis v. Ector County, Tex., 40 F.3d 777, 783 (5th Cir.1994). The balancing test

acts as a sliding scale, under which a stronger showing of disruption is necessary when the employee's

speech, as here, involves a highly significant matter of public concern in the community where Cabrol

resided. M

atherne v . Wilson, 851 F.2d 752, 761 (5th Cir.1988). The mayor has the burden of

producing evidence of disruption. M oore v. City of Kilgore, Tex., 877 F.2d 364, 372 (5th Cir.1989),

cert. denied, 493 U.S. 1003, 110 S.Ct. 562, 107 L.Ed.2d 557 (1989). As the mayor's assistant,

Cabrol's duties were to read meters, maintain city utilities and streets, and handle citizen complaints

related to utilities. The mayor has presented no evidence, and the record does not otherwise support

a finding, that Cabrol's opposition to the proposed amendment hindered the abilit y of the mayor,

Cabrol, or other Town of Youngsville employees to perform their du t ies. The may or's mere

dissatisfaction

wit h Cabro l's opposition to the amendment a public debate on an issue of great

importance to the community.

For the foregoing reason, I respectfully dissent.