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, GLENN GOERKE, JAMES T. HALE,
and
WILLIAM A. STAPLES,
Defendants-Appellants.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
June 29, 2000
ON PETITION FOR REHEARING EN
BANC
Before HIGGINBOTHAM and SMITH,
Circuit Judges, and FALLON, District
Judge.*
JERRY E. SMITH, Circuit Judge:
Treating the Petition for Rehearing En
Banc as a Petition for Panel Rehearing, the
Petition for Panel Rehearing is DENIED. In
response to the petition, however, the court
determines that it need not have decided
* District Judge of the Eastern District of
(continued...)
*(...continued)
Louisiana, sitting by designation.

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whether the plaintiff’s statements regarding the
allocation of funding were of public concern or
whether they were constitutionally protected
speech. Instead, it was dispositive of
plaintiff’s First Amendment retaliation claims
that she could not establish that her speech
was a “substantial factor” motivating de-
fendants’ termination decision and that the
defendants had shown that they would have
taken the same action even in the absence of
her speech. Accordingly, part IV of the
opinion, 201 F.3d 646, 650 (5th Cir. 2000), is
hereby deleted, and the following is
substituted:
IV.
The defendants appeal the denial of their
motion for summary judgment on Gerhart’s
First Amendment retaliation claim. First, they
contend that she has not set forth sufficient
facts to establish that her statements criticizing
the allocation of RICIS’s funds were
constitutionally protected speech. Next, they
argue that even if her speech was protected,
she cannot show that her statements were a
substantial or motivating factor in their
decision to terminate her. Finally, defendants
argue that even if her protected speech was a
substantial factor in the decision to terminate
her, they have established undeniably that they
would have terminated her regardless of that
speech.
In Mt. Healthy Bd. of Educ. v. Doyle, 429
U.S. 274 (1977), the Court set forth a three-
prong test that a plaintiff must satisfy to
prevail on a First Amendment retaliation claim.
That test provides that: (1) a plaintiff must first
show that his speech was on a matter of public
concern; (2) he must prove that his speech was
a “substantial or motivating factor in the
termination;” and (3) the defendant can escape
liability by showing that it would have taken
the same action even in the absence of the
protected conduct. Id. at 287.
In our original opinion, we concluded that
Gerhart had failed to satisfy the first of these
prongs, because when she criticized the
amount of discretionary funding the university
retained, she “was speaking in her role as an
employee, and, consequently, her expression
was not a matter of public concern and was
not constitutionally protected.” 201 F.3d
at 650. But because Gerhart’s claim fails un-
der the second and third prongs, we can avoid
the more difficult question of whether her
speech regarding the RICIS funding was on a
matter of public concern. See, e.g., Connick v.
Myers, 461 U.S. 138 (1983); Wallace v. Texas
Tech Univ., 80 F.3d 1042, 1051 (5th Cir.
1996); Moore v. City of Kilgore, Tex., 877
F.2d 364 (5th Cir. 1989).
With respect to the causation prong, then,
defendants note that only defendant Hayes
made the decision to terminate Gerhart. The
undisputed summary judgment evidence is that
Hale was not involved with personnel matters
involving RICIS and made no recommendation
or decision regarding Gerhart’s employment.
While Goerke, the former president,
approved Gerhart’s recommended termination
before leaving office in August 1994, it is
undisputed that his approval was never acted
upon. In fact, Goerke subsequently gave
Hayes permission to evaluate Gerhart’s
performance independently.
Staples had no role whatsoever in the ter-
mination decision. Instead, his only in-
volvement was as the final authority in the
university’s appeal process. Thus, in no way
has Gerhart established that these defendants

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were motivated by her statements to terminate
her, because she cannot show that they took
any actions as result of her speech.
Hayes, then, was the only defendant who
made the decision to terminate Gerhart. He
also was aware of her stated position that the
accumulated funds should be used for research
purposes, not discretionary spending, a
position with which he disagreed. From these
two facts, Gerhart asserts that there was
sufficient evidence of causation to require that
this issue be submitted to the jury.
But these facts are insufficient to defeat
summary judgment. Gerhart has offered no
other evidence that would establish that the
motive behind Hayes’s decision to terminate
her was to retaliate for her having spoken out
on this issue. In Crawford-El v. Britton, 523
U.S. 574, 600 (1998), the Court held that
where a defendant public official moves for
summary judgment, “the plaintiff may not re-
spond simply with general attacks upon the de-
fendant’s credibility, but rather must identify
affirmative evidence from which a jury could
find that the plaintiff has carried his or her
burden of proving the pertinent motive.” Ger-
hart has failed to set forth any evidence of im-
proper intent with respect to Hayes or any
other defendant.
Gerhart’s First Amendment retaliation
claims also fail under the third prong of the
Mt. Healthy analysis. “[E]ven if we assume
the exercise of protected first amendment ac-
tivity played a substantial part in the decision
to terminate an employee, the termination is
not unconstitutional if the employee would
have been terminated anyway.” White v.
South Park Indep. Sch. Dist., 693 F.2d 1163,
1169 (5th Cir. 1982).
Defendants’ summary judgment evidence
establishes that they would have fired Gerhart
regardless of her stated positions on the RICIS
funding. GerhartSSwho was hired to diversify
and increase the sources of RICIS fund-
ingSSdoes not dispute that she failed to secure
any new funding during her two years on the
job. Nor does she dispute that the overall
funding for RICIS declined precipitously dur-
ing her tenure. Notably, even she conceded
that it was appropriate for Hayes to link his
assessment of her job performance to her suc-
cess in diversifying and increasing the funding
sources for RICIS.
Hayes’s May 1995 notification letter
recounted these very reasons for her
termination. There is no evidence that
defendants would not have fired her because
of these failures, and all of their evidence
suggests they would have done so. Therefore,
defendants have established that, even if
Gerhart’s speech was protected and was a
substantial factor motivating their termination
decision, they would have taken the same
action in the absence of that speech. See Hillis
v. Stephen F. Austin State Univ., 665 F.2d
547, 551-52 (5th Cir. 1982) (rejecting as
clearly erroneous the factual finding that the
plaintiff’s non-renewal was predicated on his
First Amendment speech, and granting
summary judgment).
The order denying summary judgment is
REVERSED, and a judgment of dismissal is
RENDERED in favor of defendants.

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