### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 19

- 60313

GALE NELSON WALKER,

Plaintiff

- Appellant

v. ROBERT SHULER SMITH, individually and in his official capacity as District Attorney of Hinds County, Mississippi,

Defendant

- Appellee

Appeal from the United States District Court fo r the Southern District of Mississippi U S D C No. 3:15

- CV

- 911

Before CLEMENT, HIGGINSON, and ENGELHARDT, Circuit Judges

. PER CURIAM:* This appeal arises out of an employment dispute between a former Assistant District Attorney , Gale Walker, and her boss, Robert Smith, the Hinds County, Mississippi , District Attorney. Smith fired Walker after approximately a year and a half of employment . Smith claims he fired Walker because (1) she used office letterh ead to deceive a creditor into believing her

* Pursuant to 5 TH C IR . R. 47.5, the court has determine d that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED February 6, 2020 Lyle W. Cayce Clerk Case: 19-60313 Document: 00515300364 Page: 1 Date Filed: 02/06/2020No. 19

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2 payments were late for official reasons, and (2) she had a previously unknown history of writing bad checks. Walker then sued Smith, alleging race and gender discrimination pursuant to Title VII of the Civil Rig hts Act of 1964, 42 U.S.C. § 2000e , and 42 U.S.C. § 1983; First Amendment retaliation under §
1983 ; violation of the Computer Fraud Abuse Act (“CFAA”) , 18 U.S.C. § 1030;
and various state

- law claims

. Smith moved for summary judgment on all of Walker’s clai ms. In two o rders, dated February 5, 2019 , and April 23, 2019, the district court granted Smith’s motion

. We affirm the district court’s judgment s

. We affirm the d istrict court’s rejection of Walker’s state

- law claims and claim for violation of the CFAA for essentially the reasons given by the district
court in its o rder dated February 5, 2019

. 1 Walker has abandoned her race discrimination claim s under Title VII and § 1983 on appeal

. Accordingly, this opinion analyzes Walker’s claims for gender discrimination under Title VII and First Amendment retaliation only

. I. Walker served as an Assistant District Attorney in Hinds County from August 2012 to January 2014, where Smith, the District Attorney, was her boss. In July 2 013, Walker sent the following letter to a local self

- storage facility , regarding her non

- payment on her personal storage units :

I am writing this letter in response to the NOTICE OF LIEN PROCEEDINGS that I received in reference to the above listed storag e units. As you know, I have been waiting for approval from the State for payment of the storage fees. The problem is that I transferred, as an Assistant District Attorney, from Holmes/Humphreys/Yazoo County to Hinds County. There was a

1 Walker’s state

- law claims that were properly appealed include the following : termination for reporting a potential br each of the check

- unit computer syste m, in violation of Mississippi’s whistleblower statute, M ISS

. C ODE A NN

. § 25

- 9

- 173 ; termination for reporting a violation of the CFAA , in violation of public policy ; invasion of privacy by intrusion upon seclusion ; and intentional infliction of emotional distress. Case: 19-60313 Document: 00515300364 Page: 2 Date Filed: 02/06/2020No. 19

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3 mix

- up about the un its and everything has been tied up in “red tape”. I have inquired about the payment and I have been assured that the paperwork has been submitted to the appropriate committee. I should have the full payment no later than Friday, August 16, 2013. Will you please hold off on the sale? I don’t have any other alternative at this time.
The letter was on the DA office’s letterhead, and s he signed the letter “Gale N. Walker, Assistant District Attorney.” 2 Around the time Walker sent her letter to the self

- storage facility, the Hinds County Public Defender’s Offic e received a letter from an unnamed

perso n 3 alleging that Walker had written numerous worthless, or “bad” checks in her past. Walker was made aware of th e anonymous letter an d proceeded to

repo rt it to Smith

. S he alleges that she was concerned that the security of the DA’s “Bad Check Unit” had been “breached . . . to actively, purposely, and with

2 Walker claims she self

- reported the letter and that Smith told her not to “worry about it right now.” Her complaint states that she “requested a meeting with Smith. . . . [where she] admitted . . . that she had made an error in judgment” and “Smith verbalized his understanding of the act, affirmed that he forgave [her], and assured her that she did not need to worry about losing her job over the personal use of the letterhead.” Smith disputes th is telling of events: He stated in his affidavit that he learned of the letter from a state legislator. However, Smith argues that the issue of whether Walker self

- reported is not a genuine dispute of material fact. We agree with Smith. A brief look at th e portion of the record Walker cites to back up her contention

— the transcript of a hearing before an Administrative Law Judge regarding Walker’s unemployment compensation

— shows that Walker took Smith’s words out of context. While it’s true that in the ALJ hearing , Smith said he told Walker to “wait, hang on, don’t worry about it right now . . . we’ll talk about it later,” when she “self

- disclosed,” he also stated that Walker knew that he was “already aware” of the letter at that time: “[Walker] actually sai d, I know you know about this storage situation.” Smith then stated that once Walker “knew that . . . I knew, she then finally came to me.” There is a stark difference between self

reporting out of remorse for one’s actions and self

- reporting because one b elieves they’re close to being “caught.” Walker points to no evidence in the record that she self

- disclosed the letter to Smith before he was aware of it. Thus, the record shows Smith’s alleged “assurance” that Walker would not lose her job over the letter was not an assurance, but rather, Smith telling Walker that he was investigating the situation, and that they would talk about it “later.”

3 The sender claimed to be someone facing felony charges, who had a “conflict with

. . . ‘ G.W. ’ ” Case: 19-60313 Document: 00515300364 Page: 3 Date Filed: 02/06/2020No. 19

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4 malicious intent seek information to use to threaten, coerce, harass, and intimidate . . . an office r of the court.” Walker then requested and received authorization from Smith to report the possible security breach to the Mississippi Bureau of Investigation (“MBI ”)

. Walker was fired from the DA’s office on January 9 , 2014. Smith terminated her because of her “history of writing worthless ch e c k s and [because] she had written a false and deceitful letter to a storage facility to which she owed money.” 4 Smith also sent the check

- unit documents and the storage

- unit letter to the Mississippi Bar Association. 5 With respect to Walker’s race and gender discrimination claims, the
district court held in its initial o rder that summary judgment was appropriate because Walker failed to allege a prima faci e case under either Title VII or § 1983 , as she failed to identify proper comparators. As for Walker’s First Amendment retaliation claim

— which she bases on her choice to contact the
MBI to investigate a possible security breach in the Bad Check Unit

— the cou rt first granted Walker “14 days to show cause why the [c]ourt should not find that she spoke as an employee ” and to “ address why Smith would not be entitled to qualified immunity.” In its o rder dated April 23, 2019, the court found that Smith was entitled to qualified immunity , reasoning that Walker

4 Walker claims th at Smith showed printouts of both her “bad check” documents and her letter to the self

- storage unit to her former co

- workers and superiors , which included sensitive information such as her social security number. We find there is no genuine dispute of material fact here , as Walker has offered no record evidence that Smith did so: she cites to her own deposition

. None of the allegations contained therein are based on Walker’s personal knowledge. See Fed. R. Civ. P. 56(c)(4).

5 Walker alleged below, but does not allege on appeal, that Smith “blamed” her for reporting smoking in the Hinds County Courthouse building after a State Fire Marshal issued a warning to Smith for smoking inside

. She also claim ed that Smith attempted to interfere in her prosecution of a criminal case, and that “at some point

. . . Smith took the case from [Walker] and her trial partner and assumed full responsibility for the management of the case

. ” On appeal, she only relies on Smith’s interference and his later indictme nt for hindering this prosecution as one basis for her intentional infliction of emotional distress claim. Case: 19-60313 Document: 00515300364 Page: 4 Date Filed: 02/06/2020No. 19

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5 failed to show that Smith had violated clearly established law

. Walker timely appealed.
II.

“ We review the district court’s grant of summary judgment de novo, applying the same standards as the district court. ” Davenport v. Edward D. Jones & Co ., 891 F.3d 162, 167 (5th Cir. 2018)

. Summary judgment is proper

“ only if, viewing the evidence in the light most favorable to the nonmovant, ‘ the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. ’” Id. ( quoting Fed. R. Civ. P

. 56(a)) ; see Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986)

. However, “ t he mere existence of some alleged factual dispute between the parties will not defeat an ot herwise properly supported motion for summary judgment; the requirement is that there be no genuine [dispute] of material fact .” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247− 4 8 (1986)

. And although the moving party generally bears the burden of demonstrating to the court that a genuine issue for trial does not exist, a “qualified immunity defense alters the usual summary judgment burden of proof” : The burden shifts to the nonmovant to show that qualified immunity does not apply. Brown v. Callahan , 623 F.3d 249, 253 ( 5th Cir. 2010).
III. A. Walker argues that she was discriminated against on the basis of gender and identifies three male comparators in her brief. We address her argument concerning the identified comparator named “Shaun Yur t kuran” o nly. With regard to the other two male comparators, as the district court explained, Walker did not offer sufficient legal authority or record evidence to support her argument that the y were treated more favorably than herself. Case: 19-60313 Document: 00515300364 Page: 5 Date Filed: 02/06/2020No. 19

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6 Under Title VII, Walker must first establish a prima facie case of gender
discrimination. She must show that she (1) belongs to a protected group , (2) was qualified for the position, (3) suffered an adverse employment action, and (4) either (i) was replaced by someone outside of the protected group , or (ii) was treated less favorably than a similarly situated employee (disparate treatment)

. See Haire v. Bd. of Supervisors of La. State Univ. Agric. and Mech. Coll ., 719 F.3d 356, 363 (5th Cir. 2013) ; Okoye v. Univ. of Tex. Hous. Health Sci. Ctr. , 245 F.3d 507, 51 2−1 3 (5th Cir. 2001) ; McDonnell Douglas Corp. v. Green , 411 U.S. 792 , 802 (1973)

. Walker is a woman who was qualified for the position and was fired . Thus, elements one through three of the pri ma facie test are satisfied. It’s also undisputed that Walker was not replaced by someone outside of the protected group

— her replace ment was also female. So, our inquiry turns on whether she was treated less favorably than a similarly situated employee. He re, Walker argues that she was treated less favorably than Yurtkuran, who also worked as an Assistant District Attorney under Smith. “[ T ] o establish disparate treatment a plaintiff must show that the employer ‘ gave preferential treatment to another emplo yee under nearly
identical circumstances ’ ; that is, ‘ that the misconduct for which the plaintiff was discharged was nearly identical to that engaged in by other employees. ’ ” Okoye , 245 F.3d at 514 ( first quoting Little v. Republic Refining Co. , 924 F.2d 93, 97 (5th Cir.1991) ; then quoting Smith v. Wal

- Mart Stores (No. 471) , 891 F.2d 1177, 1180 (5th Cir.1990) ( cleaned up ) )

. The district court held that
Yurtkuran ’s “conduct [was] not nearly identical” to Walker ’s conduct , and thus, “he [was] not a prop er comparator.” We find the district court was correct

. Yurtkuran engaged in inappropriate conduct concerning alcohol and social media usage. First, Yurtkuran was stopped by the police at an alcohol roadblock for driving while intoxicated. In his depositi on, Smith admit ted that Case: 19-60313 Document: 00515300364 Page: 6 Date Filed: 02/06/2020No. 19

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7 he went to retrieve Yurtkuran from the roadblock but dismissed the incident as one not requiring discipline: “ [P]eople do go out sometimes, and they will call someone to pick them up, if they feel like they’ve had too much to drink. ”
Yurtkuran also posted a public comment on Facebook that resulted in a change of venue in a capital murder case

. In his deposition, Smith stated that he couldn’t recall whether he disciplined Yurtkuran for the Facebook post, but that he remembered that nothing “adverse happened” because of the post and
that the DA’s office “got a conviction.” Smith also “counseled [Y urtkuran] on an allegation of appearing in court after ingesting alcohol.” Though we certainly don’t condone Smith’s hand ling of Yurtkuran’s infractions

— i.e., his inaction

— we fail to see how the “misconduct for which [Walker] was discharged was nearly ide ntical ” to Yurtkuran’s conduct. Wal

Mart Stores (No. 471) , 891 F.2d at 1180 (emphasis added) (quoting Davin v. Delta Air Lines, Inc. , 678 F.2d 567, 570 (5th Cir. 1982) )

. As the district court highlighted, the actions for which Smith discharged Walker

— penni ng a false letter on the DA office’s letterhead and writing worthless checks

— “involved fraudulent conduct aimed at financial gain.”
Even if, as Walker argues, there is no evidence that she intended to wr ite “bad” checks, her false letter to the self

- storag e facility remains. 6 And as much as Walker tries to pass the letter off as a “ fib [that] was just part of her desperate attempt to have a little more time to pay her bill ,” we simply cannot ignore the fact that Walke r’s letter was glaringly dishonest

. 7 A s the Mississippi

6 We note that the record shows that Walker was arrested in 2004 for writing a worthless check.

7 The Mississippi Rules of Professional Conduct def ine “Fraud” or “Fraudulent” as “conduct having a purpose to deceive.” Miss. R. Prof’l Conduct Terminology. The Code proscribes “ conduct involving dishonesty, fraud, deceit or misrepresentation ,” and notes that

“ [ a ] lthough a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving . . . dishonesty . . . are in that catego ry.” Id

. R. 8.4 (c) & Case: 19-60313 Document: 00515300364 Page: 7 Date Filed: 02/06/2020No. 19

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8 Rules of Professional Conduct reflect, dishonesty is a cardinal offense in the legal profession. 8 Thus, we hold that Walker has not shown that Yurtkuran is a proper comparator, and that she has failed to establish her prima f acie case of gender discrimination. 9
B. In regard to her First Amendment retaliation claim, Walker avers that Smith fired her because of her contact with the MBI concerning a possible security breach in the DA’s Bad Check Unit

— a breach she suspected beca use her own “ worthless check ” history had come to light. We agree with the district
court ’s thorough analysis and finding that Smith was entitled to qualified immunity as to Walker’s First Amendment claim but reiterate why Smith was afforded such immunity. The qualified immunity standard gives ample room for mistaken judgments, by protecting all but the plainly incompetent or those who knowingly violate the law. Thus, a public official is entitled to qualified immunity unle ss a plaintiff demonstrates (1) a violation of a constitutional right and (2) that the right at issue was clearly established at the time of the violation.

cmt

. As the district court noted, the Rules state that “[a] lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty , trus tworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.” Id. R. 8.3(a) (emphasis added)

.

8 Moreover, although Walker has not established a prima facie case of gender discrimination, we note that this cour t has held that falsifying documents is a legitimate, nondiscriminatory reason for termination under the McDonnell Douglas test. See, e.g. , Nasti v. CIBA Specialty Chems. Corp. , 492 F.3d 589, 593 (5th Cir. 2007).

9 To the extent Walker argues she and Yurt kuran are similarly situated because both “used [their] connection with the DA to relieve [them] of responsibility,” Walker did not dispute Smith’s deposition testimony that “[i]t was [within the police officers’ ] discretion whether or not they wanted him [Yurtkuran] to be arrested or not. They had decided that they would not arrest him, and they would allow me [Smith] to come and pick him up.” Thus, there is no evidence in the record affirmatively establishing that the police officers’ actions were prompte d by Yurtkuran’s invocation of his position. Case: 19-60313 Document: 00515300364 Page: 8 Date Filed: 02/06/2020No. 19

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9 DePree v. Saunders , 588 F.3d 282, 28 7 (5th Cir. 2009) (cleaned up)

.

“ Ultimately, ‘ the central concern is whether the official has fair warning that his conduct violates a constitutional right. ’ ” Clarkston v. White , 943 F.3d 988, 993 (5th Cir. 2019) (quoting Delaughter v. Woodall , 9 0 9 F.3d 130, 140 (5th Cir. 2018))

. In order “ [t] o succeed [o n] a First Amendment retaliation claim under § 1983, a public employee [such as Walker ] must show: ‘ (1) [s]h e suffered an adverse employment action; (2) [s] he spoke as a citizen on a matter of public concern; (3) [her] interest in the speech outweighs the government ’ s interest in the efficient provision of public services; and (4) the speech precipitated the adverse employment action. ’” Wilson v. Tregre , 787 F.3d 322, 325 (5th Cir. 2015) (quoting Nixon v. City of Houston , 511 F.3d 494, 497 (5th Cir. 2007) ). Here, we assume elements one and four are satisfied , and focus on element
two

— i.e., whether Walker spoke as a citizen in reporting the Bad Check Unit’s

pos sible security breach to the MBI. On appeal, W alker barely address es the crux of the district court’s qualified immunity finding , which concerns the “clearly established law” prong of its analysis

. The court held that “Walker has not met her burden of
est ablishing that Smith violated clearly established law” because she failed to “provide

. . . a case indicating that an ADA who works at times alongside an
outside law

- enforcement agency speaks as a citizen when she seeks and receives permission to initiate an investigation with one of those agencies .” We

agree

— and Walker concedes

— that the clearly established law regarding speech as a citizen at the time of Walker’s termination is dictated by Garcetti v. Ceballos , 547 U.S. 410 (2006). Garcetti says that, “when public employees make statements pursuant to their official duties , the employees are not speaking as citizens for First Amendment purposes, and the Constitution does Case: 19-60313 Document: 00515300364 Page: 9 Date Filed: 02/06/2020No. 19

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10 not insulate their communications from employer discipline.” 10 Id. at 421 (emphasis added). Walker claims tha t contacting the MBI was not with in the scope of her “official duties,” and therefore, “[i]t is implicit that Smith had notice in 2014 ” that her speech was “ made as a citizen and not as an employee .” She relies on

one c ase, Davis v. McKinney , 518 F.3d 304 (5th Cir. 2008), to support this
assertion

. Davis is clearly distinguishable from the case at hand for one main reason: Smith authorized Walker to contact the MBI.
In Davis , an employee of a public university contacted the FBI because she suspected that her co

- workers were watching pornography, including child pornography, on their university

- issued computers. Id. at 307− 10

. Her superiors

— up the so

- called “chain of command”

— disregarded her report, so she went outside the “chain” and reported her concerns to the FBI. Id. The
court held that, “[i] f

. . . a public employee takes his job concerns to persons outside the work place in addition to raising them up the chain of command at his workplace, then t hose external communications are ordinarily not made as an employee, but as a citizen

. ” I d. at 313 (citing Freitag v. Ayers , 468 F.3d 528

10 While we agree that Garcetti ’ s “official duties” test was far from clear, Walker cannot rely on the Supreme Court’s holding in Lane v. Franks , 573 U.S. 228 (2014) , because it was issued in June 2014

— after Walker lost her job. See Howell v. Town of Ball , 827 F.3d 515, 52 5 (5th Cir. 2016) (noting that “ the Supreme Court did not emphasize [ Lane ’s holding] that only speech made in furtherance of an employee ’ s ‘ ordinary ’ job duties is not protected until nearly three years after [the plaintiff] was discharged ” ). Lane held that “[t]he critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties. ” 573 U.S. at 240. “ Under Lane , a general job

- imposed obligation to detect an d prevent wrongdoing does not qualify as an employee’s ‘ official duty ’ because ‘ such broad [obligations] fail to describe with sufficient detail the day

- to

- day duties of a public employee’s job. ’” Anderson v. Valdez , 913 F.3d 472, 477 (5th Cir. 2019) (alte ration in original) (quoting Howell , 827 F.3d at 524 ). As the district court explained, the recent Howell and Anderson cases also dealt with pre

- Lane First Amendment retaliation claims

. In both cases, the court concluded that qualified immunity shielded the public officials in question from liability because the First Amendment citizen

employee standard was not clearly established at the time of the relevant employees’ terminations. See Howell , 827 F.3d at 525−2 6; Anderson , 913 F.3d at 478. Case: 19-60313 Document: 00515300364 Page: 10 Date Filed: 02/06/2020No. 19

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11 (9th Cir. 2006)). Thus , the court analyze d communications to an employee’s superiors and outside persons separately. I d. at 31 4 −17. But here, we cannot conduct such an analysis, because Walker did not take her concerns to the MBI “in addition to raising” them with her supervisor, Smith. Instead, she followed Smith’s directive to contact the MBI regarding the matter. 11 As Smith states in his brief, “ Walker’s complaint to the MBI should be viewed only as a continuation of her up

- the

- chain report made to her employer, Smith. ”
Further , Walker fails to point us to any record evidence showing that speaking to the MBI was not an “official duty.” In fact, she admit ted in her deposition that she “worked alongside law enforcement agencies.” 12 T he Bad Check Unit was housed in the DA’s office, and as explained above, she was instructed by her supervisor , Smith, to report the possible s ecurity breach.
Because (1) the facts in Davis are inapposite to the case at hand , and (2) the record is devoid of evidence showing that Walker’s correspondence with the MBI was not an “official duty,” we hold that Smith is entitled to qualified immunity, as the law surrounding “citizen

- versus
- employee” speech was not
clear ly in Walker’s favor at the time of her firing. Put differently, Garcetti and
Davis could not have provided Smith “fair warning” that his conduct violated Walker’s First Amendment rights

. Finally, we note that it’s unlikely that the security breach was actually

“ a matter of public concern. ” Walker was concerned about her own “bad check”

11 A recent case in this circuit, Rodriguez v. City of Corpus Christi , 687 F. App’x 386 (5th Cir. 2017), supports our conclusion. In Rodriguez , the court held that an employee who made a statement “ intended for the benefit of [ her] employer” spoke as an employee, rather than a citizen. Id. at 390. There, the court reasoned, “ although [ the plaintiff] considered her action to be voluntary, she admitted that [her supervisor] , who had authority to assign [ the plaintiff] work, reques ted that she [contact] human resources .” Id. The p laintiff “ thus did not act solely on her own initiative but did so pursuant to a supervisor’s directive .” Id

.

12 Walker says the district court construed this statement to “creat[e] an excessively broad job description,” in violation of Garcetti

. However, the record evidence she cites is irrelevant : it merely establishes other tasks she performed as an ADA. Case: 19-60313 Document: 00515300364 Page: 11 Date Filed: 02/06/2020No. 19

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12 history and offers no record evidence that any other employees had been affected by the supposed security breach. Thus, it’s likely that this was a matter that “implicat e[ d] only the private employment interests of the plaintiff.” Cutrer v. McMillan , 308 F. App’x 819, 82 1 (5th Cir. 20 09).
Walker has not met her burden of prov ing that the qualified immunity defense does not apply. Thus, we hold that Smith is entitled to suc h immunity

. We AFFIRM the district court’s judgments. Case: 19-60313 Document: 00515300364 Page: 12 Date Filed: 02/06/2020