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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
JERRY E. SMITH, Circuit Judge:
BANC
Treating the Petition for Rehearing En
Banc as a Petition for Panel Rehearing, the
Before HIGGINBOTHAM and SMITH,
Petition for Panel Rehearing is DENIED. In
Circuit Judges, and FALLON, District
response to the petition, however, the court
Judge.*
determines that it need not have decided
* District Judge of the Eastern District of
*(...continued)
(continued...)
Louisiana, sitting by designation.

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

were motivated by her statements to terminate
Defendants' summary judgment evidence
her, because she cannot show that they took
establishes that they would have fired Gerhart
any actions as result of her speech.
regardless of her stated positions on the RICIS
funding. GerhartSSwho was hired to diversify
Hayes, then, was the only defendant who
and increase the sources of RICIS fund-
made the decision to terminate Gerhart. He
ingSSdoes not dispute that she failed to secure
also was aware of her stated position that the
any new funding during her two years on the
accumulated funds should be used for research
job. Nor does she dispute that the overall
purposes, not discretionary spending, a
funding for RICIS declined precipitously dur-
position with which he disagreed. From these
ing her tenure. Notably, even she conceded
two facts, Gerhart asserts that there was
that it was appropriate for Hayes to link his
sufficient evidence of causation to require that
assessment of her job performance to her suc-
this issue be submitted to the jury.
cess in diversifying and increasing the funding
sources for RICIS.
But these facts are insufficient to defeat
summary judgment. Gerhart has offered no
Hayes's May 1995 notification letter
other evidence that would establish that the
recounted these very reasons for her
motive behind Hayes's decision to terminate
termination. There is no evidence that
her was to retaliate for her having spoken out
defendants would not have fired her because
on this issue. In Crawford-El v. Britton, 523
of these failures, and all of their evidence
U.S. 574, 600 (1998), the Court held that
suggests they would have done so. Therefore,
where a defendant public official moves for
defendants have established that, even if
summary judgment, "the plaintiff may not re-
Gerhart's speech was protected and was a
spond simply with general attacks upon the de-
substantial factor motivating their termination
fendant's credibility, but rather must identify
decision, they would have taken the same
affirmative evidence from which a jury could
action in the absence of that speech. See Hillis
find that the plaintiff has carried his or her
v. Stephen F. Austin State Univ., 665 F.2d
burden of proving the pertinent motive." Ger-
547, 551-52 (5th Cir. 1982) (rejecting as
hart has failed to set forth any evidence of im-
clearly erroneous the factual finding that the
proper intent with respect to Hayes or any
plaintiff's non-renewal was predicated on his
other defendant.
First Amendment speech, and granting
summary judgment).
Gerhart's First Amendment retaliation
claims also fail under the third prong of the
The order denying summary judgment is
Mt. Healthy analysis. "[E]ven if we assume
REVERSED, and a judgment of dismissal is
the exercise of protected first amendment ac-
RENDERED in favor of defendants.
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).
3