*Pursuant to Local Rule 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 96-20341

JOHNIE VOLLERT,

Plaintiff-Appellant,

versus

CITY OF HOUSTON, ET AL.,

Defendants,

CITY OF HOUSTON,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Texas

(CA-H-95-674)

January 17, 1997

Before HIGGINBOTHAM, EMILIO M. GARZA, and DeMOSS, Circuit Judges.

PER CURIAM:*

The district court granted summary judgment in favor of

Defendant/Appellee the City of Houston because Plaintiff/Appellant

Johnie Vollert failed to raise a genuine fact issue concerning his
1For a discussion of the consent decree in this unpublished

case, see the decision of the United States Court of Appeals for

the Fifth Circuit in Edwards v. City of Houston, 78 F.3d 983 (5th

Cir. 1996).

2

claim that the Houston Police Department violated his First

Amendment rights when it issued a written reprimand in response to

racially-oriented speech which Vollert published to other officers.

We affirm.

BACKGROUND

In December 1992, the City of Houston (the “City”) entered

into a consent decree that settled Edwards v. City of Houston.

1

In Edwards, the plaintiffs alleged that the Houston Police

Department (HPD) discriminated against minorities in hirings and

promotions. The consent decree required the City to promote

certain minority officers and to determine whether questions on

promotion tests were racially biased. Questions determined by the

City to be racially biased were to be eliminated from the test

results and the applicants’ scores were to be adjusted accordingly.

On March 5, 1993, Vollert took the promotion examination for

the rank of sergeant. In May 1993, Vollert was elected as a board

member of the Houston Police Officers Association (HPOA). At board

meetings, Vollert was a vocal opponent of the Edwards’ consent

decree.

 In May 1993, the HPD promoted Vollert to sergeant. On May
3

17, 1993, Vollert placed the following invitation (written on HPOA

stationary) in the HPOA mailboxes of his 14 co-HPOA board members:

I will be getting promoted (despite my race) on May

24, 1993 at 1:30 pm at the High School of Law

Enforcement. It is located just north of the St.

Thomas high school which is on the northeast corner

of Memorial and S. Shepherd. You are cordially

invited to attend and give proper and justice [sic]

respects to those who deserve it. There will be a

number of “remedial” promotions from the welfare

list, but they should stand out should you decide

to congratulate only those who deserve it.

 

One of the recipients of this letter was Ignacio Aranda, President

of the Houston Police Organization of Spanish Speaking Officers

(OSSA). Aranda was upset with the racial content of the letter and

wrote a letter of protest to both the President of the HPOA, Doug

Elder, and the Chief of Police, Sam Nuchia. The contents of the

letter became widely known and elicited a strong and wellpublicized response from the minority officers. 

On October 8, 1993, the HPD issued Vollert a written reprimand

for distributing the invitation. The reprimand stated, in relevant

part:

Investigation revealed that on the above date,

while off duty, you prepared a letter to announce

your upcoming promotion to sergeant on May 24,

1993. Although the correspondence was distributed

to a limited number of co-workers, you used poor

judgment by including remarks and/or terms in the

letter which were demeaning to fellow officers,

embarrassing to the Department, and of a nature

that could be considered a racial slur or to be

racially motivated.

It has been determined that, by your actions, you

have violated the following:
4

HOUSTON POLICE DEPARTMENT RULES MANUAL

Section(s)2.3 - Conduct and Behavior

3.1 - Respect for Fellow

Officers

4.21 - Use of Racial Jokes and

Slurs

Vollert appealed the reprimand to a third party hearing examiner

pursuant to TEX. LOC. GOV’T CODE ANN. § 143.1016 (Vernon Supp. 1996).

On September 29, 1994, the examiner upheld the reprimand but

ordered that the reprimand be removed from Vollert’s file three

years after the date of its issuance if Vollert received no

additional disciplinary actions during that time.

Vollert filed this lawsuit on March 6, 1995, alleging that the

City violated 42 U.S.C. § 1983 by infringing upon Vollert’s First

Amendment rights. The district court granted summary judgment in

favor of the City holding that, while Vollert’s speech was a matter

of public concern, it was not entitled to First Amendment

protection because, as a matter of law, under the facts of this

case, the HPD’s interest in the efficient management of its

operations outweighs Vollert’s interest in the speech. Vollert now

appeals.

DISCUSSION

As always, we review the district court’s order granting

summary judgment de novo. Lee v. Wal-Mart Stores Inc., 34 F.3d

285, 288 (5th Cir. 1994). Summary judgment is appropriate where
5

the record, taken as whole, “together with the affidavits, if any,

show that there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of law.”

FED. R. CIV. P. 56(c). 

The test used for determining whether a government employer

may place limits upon its employee’s speech is set forth in

Vojvodich v. Lopez, 48 F.3d 879, 884-885 (5th Cir.), cert. denied,

116 S. Ct. 169 (1995). “To assert the protections of the First

Amendment, the employee must establish, as a threshold matter, that

his speech or activity related to a matter of public concern.” Id.

at 884. If the employee meets this burden, the employer then must

establish that its interest in promoting the efficient services

provided by its employees outweighs the employee's interest in

engaging in the protected activity. Id. at 885 (citing United

States Dept. of Justice v. Federal Labor Relations Authority, 955

F.2d 998, 1005-1006 (5th Cir. 1992)). “This analysis in reality is

a sliding scale or spectrum upon which 'public concern' is weighed

against disruption." Id. at 884. “We have repeatedly recognized

that a stronger showing of disruption may be necessary if the

employee's speech more substantially involves matters of public

concern." Id. at 885 (internal citations omitted). Because of the

wide variety of situations in which this issue might arise, each

case should be considered on its particular facts. Vojvodich, 48

F.3d at 885. 
6

To aid our evaluation of a given case, we look to the factors

discussed by the Supreme Court in Connick v. Myers, 103 S. Ct. 1684

(1983).

Although not intended to be the exclusive

considerations, these factors include (1) the

degree to which the employee's protected activity

involved a matter of public concern, and the

gravity of that concern, (2) whether close working

relationships are essential to fulfilling the

responsibilities of the public office and the

extent to which the employee's protected activities

may have affected those relationships, (3) the

time, place, and manner of the employee's

activities, and (4) the context in which the

employee's activities were carried out.

Vojvodich, 48 F.3d at 885 (citing Connick, 103 S. Ct. at 1694). “A

proper consideration of these factors allows a court to balance the

plaintiff's interest in the claimed protected activity against the

alleged disruption caused by that activity to the effective and

efficient fulfillment of the government's public responsibilities.”

Id.

The district court first determined that Vollert’s speech was

a matter of public concern. In so finding, the district court

stated:

Police officers had widely discussed the

Edwards consent decree, and Vollert had previously

discussed the decree with the HPOA board members.

Given this context, Vollert’s invitation was, in

part, a comment on the Edwards consent decree.

Police Chief Nuchia appears to agree that through

the invitation, Vollert intended to comment upon

the Edwards consent decree. The Edwards consent

decree was a matter of public concern; Vollert’s

invitation commented on a matter of public concern.
 

2The district court enumerated the Connick factors as follows:

(1) the need for harmony in the work place; (2) whether the

government’s responsibilities require a close relationship between

the employees which might be deteriorated by the speech; (3) the

time, manner, and place of the speech; (4) the context in which the

dispute arose; (5) the degree of public interest in the speech,

and; (6) whether the speech impeded the employee’s ability to

perform his or her duties. See Connick, 103 S. Ct. at 1694.

7

Having so found, the district court next engaged in a

balancing of the HPD’s interests versus Vollert’s interests.

Applying the Connick factors,2 the district court held: 

The contents of the invitation elicited a strong

and well-publicized response from minority

officers. HPD found that Vollert’s invitation was

demeaning to fellow officers, embarrassing to the

department, and of a nature that could be

considered a racial slur or to be racially

motivated. HPD concluded that Vollert’s invitation

violated department regulations governing the

conduct and behavior of an officer, respect for

fellow officers, and the use of racial jokes and

slurs. HPD and the hearing examiner agreed that

Vollert’s invitation had the potential to disrupt

the efficiency of HPD. As a sergeant in HPD,

Vollert works closely with minority officers.

Chief Nuchia issued the reprimand to Vollert to

prevent further disruption in the department.

The undisputed facts show that HPD’s concern

that Vollert’s invitation would disrupt the

efficient operation of the police department had a

reasonable basis. 

The district court concluded that “HPD’s interest in promoting the

efficiency of its services outweighs Vollert’s interest in

disseminating the contents of the invitation.” In reaching this

conclusion, the district court considered an affidavit submitted by
 

3Chief Nuchia’s affidavit states, in relevant part: 

My intent in issuing the written reprimand to

Sergeant Vollert was to prevent any further

disruption in the efficiency of the Houston Police

Department. As a supervisor in the Houston Police

Department, Sergeant Vollert will work closely with

minority officers and supervisors. It is essential

to the operation of the Police Department that all

employees maintain the utmost respect for their

fellow officers and supervisors and in my opinion

and experience racial jokes and slurs detract from

that respect. Such behavior is demeaning and

embarrassing to fellow officers and is likely to

result in a deterioration in the efficiency of the

department. The written reprimand issued to

Sergeant Vollert was issued to prevent any further

such occurrence and to quell the growing resentment

within the Police Department created by the

publication of the invitation. The basis of the

action was not because of the [sic] Sergeant

Vollert’s criticism of the consent decree but

because of the manner in which it was presented.

 

4Vollert agrees that a showing of actual disruption is not

required. 

8

Chief Nuchia.3

On appeal, Vollert argues that the district court misapplied

the Connick/Vojvodich factors. Specifically, Vollert argues that

there is no evidence of any “actual or threatened4 disruption of

the HPD’s daily commitment to protecting Houston’s citizens,” or to

the “working relationships between Appellant and other officers.”

Vollert contends that Chief Nuchia “extended his authority outside

the parameters of his jurisdiction when he reached into a private

union hall to punish Appellant’s speech....” 

In support of its position, the City offered, inter alia, the
9

affidavit of Chief Nuchia which specifically states that Vollert’s

speech was so offensive, in the context of his work environment,

that it caused, and would continue to cause, a disruption to the

work environment. Vollert offered no summary judgment evidence

showing that his letter did not, or would not, create a disruption.

After carefully reviewing the briefs, the record excerpts, and

relevant portions of the record itself, for the reasons stated by

the district court, we are satisfied that the decision of the

district court is not in error. The judgment of the district court

is, in all things, 

AFFIRMED.