Gerhart v. Hayes, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-20005
_______________
SUSAN L. GERHART,
Plaintiff-Appellee
VERSUS
EDWARD J. HAYES, ET AL,
Defendants,
EDWARD J. HAYES, GLENN GOERKE, JAMES T. HALE,
and
WILLIAM A. STAPLES,
Defendants-Appellants.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
February 4, 2000
Before HIGGINBOTHAM and SMITH,
Circuit Judges, and FALLON, District
Judge.*
JERRY E. SMITH, Circuit Judge:
Susan Gerhart sued Edward Hayes, Glenn
Goerke, James Hale, and William Staples fol-
lowing her termination from the University of
Houston’s Research Institute for Computing
and Information Systems (“RICIS”). The de-
fendants appeal the denial of their motion for
summary judgment on the basis of qualified
immunity. Concluding that Gerhart did not
* District Judge of the Eastern District of
Louisiana, sitting by designation.

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allege sufficient facts to create a genuine issue
of material fact as to her claim of retaliatory
discharge in violation of the First Amendment
or of violation of procedural due process, we
reverse and render judgment in favor of
defendants.
I.
RICIS was founded in 1986 through a
cooperative agreement between the University
of Houston and the Lyndon B. Johnson Space
Center jointly to manage an integrated
program of research in advanced data
processing technology for the space program.
Through the agreement, a portion of the
research support funding provided to RICIS
by the Space Center was retained by the
university’s Finance and Administration
Department to cover indirect costs associated
with the support of RICIS.
In April 1993, Gerhart was hired as the di-
rector of RICIS to diversify and increase the
sources of RICIS funding. Hale was vice-
president for administration and finance, and
Hayes was senior vice-president and provost.
Gerhart questioned, as excessive, the amount
of discretionary funding the university
retained. Specifically, she complained to Hale
and Hayes that the finance and administration
funds should be reallocated for use in RICIS’s
research program. She also voiced these con-
cerns to other academic colleagues within the
university. Her complaints ultimately had little
impact, however; none of the defendants
adopted her position or changed the allocation
of funds.
In May 1995, Hayes notified Gerhart that
her employment was being terminated, citing
a lack of progress to broaden the funding base
for RICIS. In the dismissal letter, Hayes in-
vited her to present any argument or evidence
as to why she should be retained. Gerhart did
not dispute that the funding for RICIS had
declined precipitously during her tenure; she
admitted that she had failed to secure any new
funding for RICIS in the two years she was the
director, and she subsequently admitted that it
was appropriate for Hayes to link his
assessment of her job performance to her
success in diversifying the funding sources for
RICIS.
Gerhart appealed her dismissal
administratively within the university, which
assembled a grievance hearing panel of one
faculty member and two administrators, all of
whom were chosen by a human resources
director without any influence by defendants.
After hearing testimony and receiving
documents from Gerhart, the panel upheld the
termination. President Staples received and
accepted the panel’s recommendation.
Gerhart alleged, inter alia, claims pursuant
to 42 U.S.C. § 1983, asserting that defendants
had violated her First Amendment right to free
speech by terminating her in retaliation for her
complaints about RICIS’s allocation of
funding and had violated her procedural due
process rights guaranteed by the Fifth and
Fourteenth Amendments. The defendants
moved for summary judgment on the basis of
qualified immunity.1 The district court denied
1 Gerhart argues, for the first time on appeal,
that the defendants’ assertion of qualified immunity
within one month of the date of trial is abusive and,
as a result, that we should summarily dismiss the
appeal. She points to the fact that at the time the
summary judgment motion was filed, the
scheduling order in effect had closed discovery and
had closed the filing for dispositive motions.
The defendants correctly point out, however,
(continued...)

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the motion, concluding that material issues of
fact remained as to both claims.
II.
Gerhart argues that we are without
jurisdiction to hear this appeal because the
defendants seek a review of factual, not legal,
issues. She points to Colston v. Barnhart, 146
F.3d 282 (5th Cir.) (on petition for rehearing
en banc), cert. denied, 525 U.S. 1054 (1998),
as supporting the proposition that a defendant
may not appeal an order denying a qualified
immunity defense when review is sought on a
finding that the summary judgment record sets
forth a genuine issue for trial.2
Gerhart selectively quotes from Colston
and overlooks its more important and relevant
discussion. In interpreting Behrens v. Pelle-
tier, 516 U.S. 299 (1996), the Colston court
noted that “when a district court denies a mo-
tion for summary judgment on the ground that
‘genuine issues of material fact remain,’ the
court has made two distinct legal conclusions.
First, the court has concluded that the issues of
fact in question are genuine.” Colston,
146 F.3d at 284 (emphasis added).
More significantly, the Colston court noted
the district court’s second legal conclusion
“that the issues of fact are material, i.e.,
resolution of the issues might affect the
outcome of the suit under governing law.” Id.
(emphasis added). While the first of these
determinations was not reviewable, Colston
and Behrens made “clear that an appellate
court is free to review a district court’s
determination that the issues of fact in
question are material.” Id.
When a district court does not identify the
evidence that creates the “genuine” issue of
fact, we “may have to undertake a
cumbersome review of the record to determine
what facts the district court, in the light most
favorable to the nonmoving party, likely
assumed.” Behrens, 516 U.S. at 313. Here,
on both claims the district court stated only
summarily that there remained genuine issues
of material fact that precluded summary
judgment. Consequently, we may review the
underlying facts to make our own
determination on both genuineness and
materiality issues.
Moreover, we have jurisdiction to consider
whether the district court applied the correct
legal standard on summary judgment.3 Here,
(...continued)
that their motion was timely filed on the deadline
for dispositive motions. Because Gerhart does not
set forth any facts that would suggest that the de-
fendants acted with any dilatory or improper mo-
tive in filing when they did, we decline the request
to dismiss.
2 Gerhart also quotes Lemoine v. New Horizons
Ranch & Ctr., Inc., 174 F.3d 629, 633 (5th Cir.
1999), in which we stated, in a qualified immunity
case, that “[w]e have appellate jurisdiction to re-
view the district court’s decision denying summary
judgment only to the extent it turns on an issue of
law. Or said differently, our appellate jurisdiction
does not allow us to review that district court’s
factual findings.” Gerhart does not read enough of
Lemoine, however, for that court actually held that,
consistent with Colston, we defer only to a district
court’s articulation of the genuinely disputed facts,
not to a determination that those facts are material.
See id. at 634.
3 See Hare v. City of Corinth, 74 F.3d 633, 638
(5th Cir. 1996) (en banc) (holding that the appeal
did not present a fact-intensive inquiry, but “[r]ath-
er, it presents a legal issue antecedent to the
(continued...)

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that review involves a question of what are the
necessary elements of each of Gerhart’s claims
and whether there are genuine issues of
material fact on each of those elements. These
are questions of law that we review de novo.
Before reaching the narrower issue of qualified
immunity, we must consider whether the plain-
tiff has alleged the violation of a clearly
established constitutional right. Siegert v.
Gilley, 500 U.S. 226, 232 (1991).
III.
Defendants argue that the district court in-
correctly rejected their qualified immunity de-
fense on Gerhart’s procedural due process
claim. They assert that she has not set forth
sufficient facts to establish a constitutional
claim of a due process violation. Gerhart, on
the other hand, alleges that the defendants vio-
lated her right to procedural due process be-
cause she was not provided sufficient notice of
the reason for her termination and was not af-
forded the opportunity to have an attorney
present at the administrative review panel.
The district court concluded that there was
a material issue of fact as to whether the de-
fendants had provided adequate notice of ter-
mination and an opportunity for Gerhart to be
heard. The court did not identify what those
issues of fact were, however, but instead fo-
cused almost exclusively on justifying its con-
clusion that Gerhart held a constitutionally
protected property interest in continued
employment.
Regardless of the nature of Gerhart’s
interest in her employment,4 it was incumbent
on the court to identify which facts were at
issue and were material to her claim of a due
process violation. Because it failed to do so,
we must undertake an independent review of
the record to determine which facts, if any,
were genuinely disputed and were material to
the claim.
The constitutional guarantee of due process
requires notice and an opportunity to respond.
See generally Cleveland Bd. of Educ. v. Lou-
dermill, 470 U.S. 532 (1985). In our review
of the record, we find no facts that suggest
that Gerhart did not receive bot h. First, it is
undisputed that she received the termination
letter from Hayes. It provided her with the
reason for her termination,SSi.e., her complete
failure to achieve the main job objective of
increasing funding for RICISSSand it informed
her of the procedure for appealing the decision
to Hayes.
Furthermore, when she received the notice
of intent to terminate her employment, Gerhart
provided extensive documentation in an
attempt to rebut any criticism of her
performance. Hayes read her response. It is
odd, then, that Gerhart still maintains that
although she received the letter, on its face
that letter gave no notice of any charges
against her that would support her termination.
The undisputed facts simply do not support
her assertion, and, as a result, no issues of fact
remain as to whether she received notice.
In addition, Gerhart argues that she did not
have an opportunity to be heard, because she
was not allowed an attorney at her
(...continued)
determination of whether there are genuine issues
of material fact. Our review of the legal issues in
this appeal goes to the legal question of the correct
legal standard.”).
4 For purposes of this appeal, the defendants
have conceded that Gerhart has a constitutionally
protected liberty interest in continued employment.

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administrative hearing.5 She asserts that under
Texas law, a public employee is entitled to be
represented by an attorney where termination
of employment is at issue. What she fails to
establish, however, is that constitutional due
process requires an attorney present at her
post-termination administrative review
hearing. The fundamental issue in due process
law is not whether state officials violated state
law, but whether they provided the plaintiff
with the constitutional minima.6
Gerhart has not set forth any facts
establishing that the defendants violated the
constitutional due process minima of notice
and an opportunity to be heard. See
Loudermill. Therefore, the district court erred
in denying summary judgment on this claim.
IV.
The defendants appeal the denial of their
summary judgment motion on Gerhart’s First
Amendment claim. They contend that she has
not set forth sufficient facts to establish the re-
quired elements for determining whether a
public employee has been discharged in
retaliation for constitutionally protected
speech, to-wit, that (1) the employee’s speech
must be “a matter of public concern;” (2) “the
public employee’s interest in commenting on
matters of public concern must outweigh the
public employer’s interest in promoting
efficiency;” and (3) “the employee’s speech
must have motivated the decision to discharge
the employee.” Fowler v. Smith, 68 F.3d 124,
126 (5th Cir. 1995).
The district court concluded that there was
“a fact question concerning whether Gerhart’s
expression of concern regarding allocation of
RICIS funds constitutes protected speech and
if so, whether her utterance of this speech was
the real reason she was terminated.” But the
court is mistaken. The question whether Ger-
hart’s expression is constitutionally protected
speech is a legal issue, not a factual one, and
there is no dispute as to the content of that
speech. Consequently, whether Gerhart’s
speech is a matter of public concern is a
question that is appropriate for summary
judgment.
In Wallace v. Texas Tech Univ., 80 F.3d
1042, 1051 (5th Cir. 1996), we held that
“speech made in the role as employee is of
public concern only in limited cases: those
involving the report of corruption or
wrongdoing to higher authorities.” (Emphasis
added.) Gerhart relies on Barnes v.
McDowell, 848 F.2d 725,734 (6th Cir. 1988),
for the proposition that “it is possible to view
allegations that public monies are being spent
unwisely and that government program is
being run inefficiently, as implying that public
agency or official is corrupt.”
But even Barnes does not support Ger-
hart’s position, for that court opined that
“when a defendant has moved for summary
judgment, a plaintiff must present concrete
evidence to support the allegation [of
retaliation] in order to survive the motion.”
Id. Gerhart has not done this: She sets forth
no facts or allegations that she spoke out as a
citizen, rather than as an employee. Likewise,
5 On appeal, Gerhart does not renew her
argument that the administrative review panel’s
members were biased.
6 See FM Properties v. City of Austin, 93 F.3d
167, 174 (5th Cir. 1996) (“Converting alleged vio-
lations of state law into federal due process claims
improperly bootstraps state law into the
Constitution.”) (internal punctuation marks
omitted) (quoting Stern v. Tarrant County Hosp.
Dist., 778 F.2d 1052, 1056 (5th Cir. 1985)
(en banc)).

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she has presented no evidence or allegations
that her speech involved the reporting of any
corruption or wrongdoing by the defendants.
The only logical inference from the facts
presented is that Gerhart was speaking in her
role as an employee, and, consequently, her
expression was not a matter of public concern
and was not constitutionally protected speech.
Thus, the district court should have granted
summary judgment.7
The order denying summary judgment is
REVERSED, and a judgment of dismissal is
RENDERED in favor of defendants.
7 See Wallace, 80 F.3d at 1051 (upholding
summary judgment because plaintiff “failed to
allege facts, much less present evidence, sufficient
to constitute speech on a matter of public
concern”). Accord Barnes, 848 F.2d at 736 (not-
ing that plaintiff “presented no evidence linking any
of [the employee’s expression] to corruption in the
Bureau or in the Program. Consequently, instead
of having addressed a matter of public concern,
[plaintiff’s] complaints appear to be nothing more
than examples of the quintessential employee beef:
management has acted incompetently.”).

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