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United States Court of Appeals,
Fifth Circuit.
94-60679.
William Stanley FOWLER, Plaintiff-Appellant,
v.
James M. SMITH, Ed.D., etc., et al., Defendants-Appellees.
Nov. 3, 1995.
Appeal from the United States District Court for the Southern
District of Texas.
Before GARWOOD, DUHÉ and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
Plaintiff-Appellant, William Stanley Fowler ("Fowler") appeals
the district court's grant of summary judgment in favor of
Defendants-Appellees, James Smith, Ed.D. ("Smith") and Angleton
Independent School District ("AISD"). We affirm.
FACTS AND PROCEEDINGS BELOW
Fowler was employed under a term contract as the Director of
Maintenance Operations for AISD beginning June 1977. Smith was
hired as Superintendent of AISD in August 1989. In May 1990, Smith
began an investigation of Fowler that resulted in his recommending
that AISD discharge Fowler pursuant to the "for cause" term of his
contract. Specifically, Smith alleged that Fowler used an AISD
truck and gas for personal use, including trips to the lake and to
a local pool hall, stored his boat and trailer on AISD property,
kept a pool table in the maintenance building, used AISD personnel
to run personal errands and took district property for his own use,
sometimes declaring it scrap or salvage. AISD's Board of Trustees,
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after holding a pre-termination hearing, discharged Fowler for
cause on October 3, 1990, prior to the end of his contract.
Although Fowler was entitled to appeal AISD's decision to the Texas
Commissioner of Education and then to state district court, he
failed to avail himself of these avenues of relief. As a
consequence of this failure, Fowler's subsequent state court suit
for wrongful termination was dismissed for failure to exhaust
administrative remedies.
Fowler filed suit in federal district court against Smith and
AISD on May 11, 1993, alleging, inter alia, that his discharge (1)
was unconstitutional retaliation for his exercise of First
Amendment freedoms and (2) was in violation of substantive and
procedural due process under the Fourteenth Amendment. Fowler's
First Amendment claims are premised on his contention that Smith
wanted to get rid of him because he spoke out in opposition to a
proposal to privatize AISD's maintenance, custodial and food
service departments. Appellees filed a Motion for Summary Judgment
and Fowler responded. The district court, holding that Fowler
failed to produce evidence sufficient to raise a genuine issue of
material fact that his discharge violated either the First or
Fourteenth Amendment, granted Appellees' motion as to all federal
law claims and dismissed the remaining claims by declining to
exercise its supplemental jurisdiction over the state law causes of
action.
STANDARD OF REVIEW
We review a district court's grant of summary judgment de
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novo, applying the same standard as did the district court. Neff
v. American Dairy Queen Corp., 58 F.3d 1063, 1065 (5th Cir.1995).
Summary judgment is appropriate if "the pleadings, depositions,
answers to interrogatories, and admissions of file, 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 a
judgment as a matter of law." FED.R.CIV.P. 56(c). For purposes of
summary judgment determination, all fact questions are viewed in
the light most favorable to the nonmovant. Hassan v. Lubbock
Indep. Sch. Dist., 55 F.3d 1075, 1078 (5th Cir.1995). But only
materials which were included in the pretrial record and that would
have been admissible evidence may be considered. See Martin v.
John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.1987).
EVIDENTIARY RULINGS
Fowler challenges the district court's ruling that the
transcript of the school board's pre-termination hearing and
Fowler's affidavit are inadmissible under the Federal Rules of
Evidence. Appellees, for their part, challenge Fowler's
interpretation of the district court's holding, stating that a
close reading of the Order of Dismissal reveals that the court
rejected only those parts of the transcript and affidavit that it
considered incompetent.
While we agree that the Order of Dismissal rejects only
incompetent evidence, it is not clear which specific portions of
the proffered evidence were considered and which were rejected.
Further, the district court states in its subsequent Order Denying
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Motion to Amend or Vacate Judgment, "This Court reiterates that the
transcript of the school board hearing is inadmissible under the
Federal Rules of Evidence."
Evidence on summary judgment may be considered to the extent
not based on hearsay or other information excludable at trial.
Martin, 819 F.2d at 549; Salas v. Carpenter, 980 F.2d 299, 304
(5th Cir.1992) (should not disregard entire affidavit just because
a portion is inadmissible.) Therefore, we will review the hearing
transcript and Fowler's affidavit, which have been included in the
record on appeal, as well as all other evidence which was before
the district court, to determine if there are genuine issues of
material fact raised by competent evidence.
FIRST AMENDMENT CLAIMS
Fowler makes two types of First Amendment claims. He claims
first that he was discharged in violation of his right to free
speech and secondly, that his discharge violated his right of
association. The district court summarily dismissed his freedom of
association claim, and Fowler does not challenge that ruling on
appeal.
While "a public employee may not be discharged for exercising
his or her right to free speech" under the First Amendment, it is
clear that only certain speech is protected. Thompson v.
Starkville, 901 F.2d 456, 460 (5th Cir.1990). This Court has
established a three-part test to determine whether particular
speech by a public employee is protected. Id. First, the speech
must have involved a matter of public concern. Id. Second, the
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public employee's interest in commenting on matters of public
concern must outweigh the public employer's interest in promoting
efficiency. Id. The third prong of the test is based on
causation; the employee's speech must have motivated the decision
to discharge the employee. Id.
The district court granted summary judgment on Fowler's free
speech claim based on the third prong of this test, holding that
the evidence did not raise a genuine issue of material fact
regarding whether Fowler's discharge was motivated by his speech.
Appellees argue that summary judgment should be affirmed, since
Fowler points to no evidence supporting his assertion that he was
fired because of--or even partially because of--his speech.
Fowler contends that a fact finder could conclude, based on
inferences drawn from the evidence in the record, that his speech
criticizing privatization motivated his termination. This Court
has held that direct evidence in proving illegitimate intent is not
required to avoid summary judgment in unconstitutional retaliation
claims; circumstantial evidence will suffice. Tompkins v.
Vickers, 26 F.3d 603, 608-09 (5th Cir.1994). We recognize that
direct evidence of improper motive is usually difficult, if not
impossible, to obtain and requiring direct evidence would
effectively insulate from suit public officials who deny an
improper motive in cases such as this. Id. at 609.
When viewed in the light most favorable to Fowler, there is
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admissible1 evidence that (1) Smith had a previous friendship with
Ray Terrell, an employee of the company that conducted the
privatization study and sought a privatization contract with AISD;
(2) when he was superintendent of two other school district, Smith
had suggested that the school district privatize portions of their
work force and contract with the company for which Terrell worked;
(3) Terrell helped Smith obtain information about AISD and the
superintendent job before he interviewed for the position; (4) as
superintendent of AISD, Smith called Terrell and asked him to
submit a privatization study proposal; (5) Fowler was a
well-respected maintenance supervisor of AISD when Smith arrived;
(6) Smith was determined to discharge Fowler.
There is no direct evidence that Smith knew that Fowler was
speaking out against privatization. Fowler's Affidavit asserts
that he told his supervisor Peterson, co-workers, subordinates, and
some of his neighbors that he was against privatization; he did
not aver that he told Smith directly. Fowler argues that Smith's
knowledge can be inferred from Smith's May 11, 1990 letter to the
AISD Board, in which Smith stated that he was not recommending that
the Board accept the privatization proposal because of "[t]he
negative morale effect on personnel in these departments including
our supervisors, Glynis Ramsey and Stan Fowler[.]" Fowler points
1Smith testified to facts (1) through (5) listed below,
making any conceivable hearsay problems irrelevant because his
testimony would be admissible as admissions of a party opponent.
FED.R.EVID. 801(d)(2). For the same reason, the fact listed in
item (6), which was based on the testimony of Donny Davis
regarding what Smith said to him, would have been admissible.
See id.
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to no other evidence, direct or indirect, and we find none in the
record that supports a finding of illegal motivation. Fowler also
contends that the evidence supports the inference that Fowler's
efficiency in running the maintenance department impeded Smith's
plan for privatization. Rather than supporting Fowler's cause of
action, this contention actually refutes his position. Smith's
alleged motivation of forcing Fowler out so that a deteriorating
maintenance department made privatization more attractive to the
Board is not a violation of Fowler's First Amendment rights.
Having reviewed the evidence in the record, we find that Fowler did
not raise a genuine issue of material fact concerning whether or
not his termination was motivated by his speech against
privatization.
FOURTEENTH AMENDMENT CLAIMS
Fowler alleges violations of both substantive and procedural
due process.
Procedural due process entitles a public employee with a
property right in his employment to notice of the charges against
the employee, an explanation of the employer's evidence, and an
opportunity to present his side of the story. Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 1495, 84
L.Ed.2d 494 (1985); Delahoussaye v. New Iberia, 937 F.2d 144, 151
(5th Cir.1991). There is no dispute that Fowler received notice
and an extensive pre-termination hearing. His procedural due
process claim rests on his contention that he was denied an
opportunity to present his side of the story, due to the hearing
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officer's exclusion of a proffered witness affidavit. The
affidavit was a report by a school employee of an out of court
statement made by Terrell suggesting that Fowler would be fired or
forced out of his position. Because the specific statement
identified by Fowler is inadmissible hearsay, see FED.R.EVID.
801(c), Fowler raised no genuine issue of material fact concerning
his procedural due process claim.
Public officials violate substantive due process rights if
they act arbitrarily or capriciously. Spuler v. Pickar, 958 F.2d
103, 107-108 (5th Cir.1992). In Thompson v. Bass, 616 F.2d 1259,
1268 (5th Cir.), cert. denied, 449 U.S. 983, 101 S.Ct. 399, 66
L.Ed.2d 245 (1980), this Court held that a plaintiff who failed to
show that his employer discharged him for exercising his First
Amendment rights also failed to establish a substantive due process
claim when both were "based primarily on" his factual allegation
that his employer discharged him for speaking to a reporter.2
Similarly, Fowler's substantive due process claim cannot withstand
summary judgment if it is based on his claim that he was discharged
for speaking against privatization because he failed to present a
genuine issue of material fact that his discharge was motivated by
his speech.
If Fowler's substantive due process claim is based on
2We recognize that the Eleventh Circuit subsequently
repudiated a portion of this opinion. See Monroe v. U.S. Dep't
of Labor, 690 F.2d 1359, 1363 (11th Cir.1982). However, Monroe s
criticism concerned the Bass holding on procedural due process,
and did not call into question the portion of the opinion dealing
with substantive due process.
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something other than his First Amendment claim, then this Court
need only determine that Appellees' action was a rational means of
advancing a legitimate government purpose. Delahoussaye v. New
Iberia, 937 F.2d at 149. The district court held that "a review of
the evidence reveals that the School had ample reason to terminate
Fowler," supporting this finding with the facts that Fowler
admitted to using a school truck to pull his boat on a weekend
trip, kept a pool table in the maintenance building, stored his
boat on school property, drove the school vehicle to pool halls,
and sent school employees on personal errands. Fowler's position
is that he had authorization for these activities, such that they
did not amount to cause for his dismissal. However, the
appropriate inquiry is not whether Fowler engaged in the misconduct
at issue, but whether the Appellees "had sufficient reason to
believe that he engaged in misconduct so that [their] action was
not wholly arbitrary or irrational." Id. at 151. Even when viewed
in the light most favorable to Fowler, the record clearly indicates
sufficient reason to believe that Fowler engaged in the misconduct.
Thus, Fowler failed to raise a genuine issue of material fact as to
his substantive due process claim.
CONCLUSION
For the foregoing reasons, we AFFIRM the summary judgment
entered by the district court.

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