The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 97-60177
Summary Calendar
_______________
PAUL A. LENART,
Plaintiff-Appellant,
VERSUS
A. WALLACE CONNERLY, M.D.,
GAIL CARLSON,
UNIVERSITY OF MISSISSIPPI MEDICAL CENTER;
and
JOHN DOE,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Southern District of Mississippi
(3:96-CV-307BN)
_________________________
September 17, 1997
Before JOLLY, SMITH, and STEWART, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
*
Pursuant to 5TH CIR. R. 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should not be published and is not precedent except under the limited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 5TH CIR. R. 47.5.4.
Paul Lenart appeals an adverse summary judgment on his
42 U.S.C. § 1983 claims alleging retaliatory employment actions for
engaging in public speech and organizing activities. Finding no
reversible error, we affirm.
I.
Lenart worked as a night-shift respiratory therapy technician
at the University of Mississippi Medical Center (“UMC”) for a
little over two years beginning in January 1994. In that position,
his duties included working in the critical care areas of the
hospital. During the time of his employment at UMC, Lenart joined
a union, the Mississippi Alliance of State Employees, or “MASE.”
He was an active union member who provided sign-up cards to enable
his fellow employees to enlist; he and other union members also
attended monthly departmental “birthday parties” in order to
organize.
Lenart believed, as did MASE, that the UMC was understaffed
and should hire more employees. He made no secret of his opinion
on this issue (or, for that matter, on other issues as well).
Lenart, however, apparently could not always manage to express his
views diplomatically. Although it is not evident, from the record,
exactly how many such outbursts there actually were, Lenart admits
to one incident, in January 1996, in which he used profanity to
express himself on the under-staffing issue in front of patients
and their families. The defendants also contend that there were
2
other such incidents, including ones in December 1995 and February
1996.1
On February 22, 1996, a letter to the editor appeared in a
local newspaper, signed by Lenart and some of his colleagues from
the UMC. The letter supported litigation against tobacco companies
by the state attorney general and criticized the governor for not
supporting the attorney general’s efforts. The letter indicated
that the authors were employed in respiratory therapy and that
their employer was the UMC.
Upon reading the letter, defendant Gail Carlson, the Director
of Respiratory Therapy at UMC, wrote memoranda to Lenart and the
other authors stating that they should refrain from identifying
themselves as UMC employees. Although employees could comment on
public issues in their individual capacities, she stated that
representation as UMC employees was inappropriate. Carlson
explained that under UMC policy, only the public relations office
could comment for the UMC on matters of public importance. She
thereafter placed a copy of the memorandum in each employee's
personnel file.2
Subsequently, Carlson learned from one of her colleagues about
1
In the case of the January 1996 incident, Lenart was “counseled” by his
immediate supervisor, who failed to file a written report on any of the
incidents.
2
Lenart responded to Carlson with his own memorandum stating that he
believed he was entitled to express his views and that Carlson’s memo was unfair,
illegal, and against UMC procedures.
3
the outbursts that Lenart had made in front of patients and their
families. Concerned about Lenart’s fitness to work around
patients, Carlson wrote memoranda to Lenart’s supervisors asking
for a full explanation of any of his aberrant conduct. She also
placed Lenart on suspension, without pay, pending investigation by
the UMC campus police.
Upon completion of the investigation, Carlson terminated
Lenart. In the termination letter, she notified him that the
reason for his dismissal was his “unprofessional conduct in the
presence of patients and their families.”3
Lenart brought the instant actions under § 1983 and asserted
related state law claims,4 complaining, inter alia, that Carlson,
under color of state law, had infringed his liberty interests in
free expression and free association under the First Amendment. He
alleged, among other things, that his dismissal was retaliatory for
his union activities and his letter to the editor. He made similar
claims against the UMC itself, against Dr. A. Wallace Connerly, the
chief administrator of the UMC, and against a John Doe, an employee
of the UMC to be determined as more information came to light.
The magistrate judge granted defendants an order protecting
3
During litigation, UMC also discovered that Lenart had falsified his
application for employment. Defendants assert this violation of UMC policy as
an additional justification for Lenart’s termination.
4
The district court dismissed the state law claims under Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89, 121 (1984). The dismissal of those
claims was not appealed.
4
them from discovery on the underlying claims, pending a
determination of their official immunity status. Before moving for
summary judgment, defendants deposed Lenart, who, in the meantime,
failed to conduct any discovery on defendants concerning the
immunity issue. He also did not conduct any discovery on persons
other than defendants to support his claims.
Defendants moved for summary judgment, or in the alternative,
a determination that their claims were barred by official
immunity.5 In his opposition to the motion, Lenart requested a
stay until he had more time to conduct discovery (a request
apparently based on FED. R. CIV. P. 56(f)). Because the protective
order prevented him from conducting discovery on defendants about
the merits of the case, Lenart maintained that a stay was justified
until the protective order was removed. In the event the court
would not grant a stay, however, Lenart believed that the pleadings
themselves were sufficient to withstand summary judgment. He did
not submit any documents under FED. R. CIV. P. 56(e)SSaside from the
complaint and the motion in opposition to summary judgmentSSto
rebut defendants’ motion and supporting affidavits.
The district court refused to grant the motion to stay.
Although aware of the need to give Lenart a full and fair
5
The defendants moved, without Lenart’s opposition, to dismiss the actions
against the UMC, and Carlson and Connerly in their official capacities, and in
their private capacities for retrospective damages, without prejudice under the
Eleventh Amendment. The district court granted the motions to dismiss without
prejudice in the order granting summary judgment on the remaining claims. Lenart
does not contest any of the dismissals based on Eleventh Amendment grounds.
5
opportunity to present evidence at the summary judgment stage, the
court refused the motion for three reasons: He had failed to
comply with the local rule requiring that the motion to stay be
filed separately from his opposition to the summary judgment
motion; he had failed to give any indication that further discovery
would be useful in ascertaining evidence to oppose the summary
judgment motion; and finally, he had failed to make use of the
limited discovery available to him, that is, he had conducted no
discovery of independent witnesses in the seven months between
filing the complaint and defendants’ filing the summary judgment
motion, and had failed even to file his own affidavits in support
of his motion to stay and his opposition to the summary judgment
motion.
The district court granted summary judgment. Because Lenart
had presented no evidence6 to support his claims in the face of
defendants’ motion and supporting materials submitted in accordance
with rule 56(e), the court found that there was no genuine issue of
material fact presented. In the alternative, the court found that
Connerly and Carlson were entitled to official immunity, and thus
it dismissed the claims.
II.
6
Lenart did attach several unsworn documents to his opposition to summary
judgment. The district court, however, correctly refused to weigh the evidence
as it would have if the evidence had been in accordance with rule 56(e).
6
Lenart contends that the district court erred in not staying
consideration of the summary judgment motion until he was able to
conduct further discovery. The decision whether to grant a stay of
consideration of a summary judgment motion pending further
discovery under rule 56(f) is within the sound discretion of the
district court.7
It is not an abuse of discretion to deny a rule 56(f)
continuance “where the result of a continuance to obtain further
information would be wholly speculative.” Robbins, 952 F.2d at 107
(quoting Paul Kadair, Inc. v. Sony Corp., 694 F.2d 1017, 1029 (5th
Cir. 1983) (quoting Contemporary Mission, Inc. v. United States
Postal Serv., 648 F.2d 97, 107 (2d Cir. 1981))). To merit such a
continuance, the moving party must make some colorable showing
that further discovery would be justified.
The district court reasonably could have concluded that the
basis of any continuance would have been “wholly speculative.”
Lenart made no showing that further discovery would be useful to
the court’s decision making. He had failed to make use of any of
the discovery available to him: Not subject to the protective
order were independent witnesses, including, but not limited to,
hospital workers, union members, and newspaper editors; none were
deposed, and none submitted affidavits for Lenart. Also, Lenart
7
See, e.g., Carriere v. Sears, Roebuck & Co., 893 F.2d 98, 102 (5th Cir.
1990) (“Denial of a continuance under Rule 56(f) is governed by an abuse of
discretion standard.” (citation omitted)); Robbins v. Amoco Prod. Co., 952 F.2d 901,
907 (5th Cir. 1992).
7
could have propounded discovery on the defendants about the status
of their qualified immunitySSbut he did not. Finally, he could
have submitted his own affidavits in support of the motion to stay
and in opposition to the summary judgment motionSSagain, he did
not.
Instead, after sitting on his hands for over seven months,
Lenart asked the court for additional time without any justifiable
explanation. Under these facts, the district court reasonably
could conclude that extra time would only result in an unjustified
and unnecessary delay.8
III.
We review a summary judgment de novo. See Hanks v.
Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.
1992). Summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on 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). The
party seeking summary judgment carries the burden of demonstrating
that there is an absence of evidence to support the non-moving
8
The district court also argued that Lenart’s failure to comply with the
the court’s local ruleSSrequiring that the motion to stay be filed separately
from the opposition to summary judgmentSSjustified the court’s refusal to grant
the stay. We find it unnecessary to address the issue, as other circumstances
solidly support the court’s decision.
8
party’s case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). After a proper motion for summary judgment is made, the
non-movant must set forth specific facts showing that there is a
genuine issue for trial. See Hanks, 953 F.2d at 997.
We begin our determination by consulting the applicable
substantive law to determine what facts and issues are material.
See King v. Chide, 974 F.2d 653, 655-56 (5th Cir. 1992). We then
review the evidence relating to those issues, viewing the facts and
inferences in the light most favorable to the non-movant. See id.
If the non-movant sets forth specific facts in support of
allegations essential to his claim, a genuine issue is presented.
See Celotex, 477 U.S. at 327; Brothers v. Klevenhagen, 28 F.3d 452,
455 (5th Cir. 1994).
IV.
A.
First, we address Lenart’s claims against Carlson. A claim
under § 1983 asserting retaliatory employment actions because of
the employee’s protected speech requires that a plaintiff
first prove that [his] speech involved a matter of public
concern. Connick v. Myers, 461 U.S. 138, 147 (1983).
Second, [he] must demonstrate that [his] interest in
“commenting upon matters of a public concern” is greater
than the defendants’ interest in “promoting the
efficiency of the public services [they] perform.”
Pickering Board of Education, 391 U.S. 563, 568 (1968).
Third, [he] must show that [his] speech motivated the
defendants’ decision to fire [him]. Mt. Healthy City
School District v. Doyle, 429 U.S. 274, 287 (1977). If
9
[the plaintiff] is able to prove these three elements,
the burden shifts to the defendants to prove that they
would have [taken the same adverse employment actions]
even if [the plaintiff] had not exercised [his] right to
free speech. Id.
Frazier v. King, 873 F.2d 820, 825 (5th Cir. 1989).9
As noted by the district court, there are three actions that
Lenart alleges Carlson took in retaliation for his letter to the
editor and for his union activities. We conclude that none of the
alleged actions constitutes actionable retaliation under § 1983.10
First, Lenart alleges that Carlson changed the frequency of
the departmental birthday parties from monthly to quarterly in
order to prevent his union-organizing activities. Second, he
alleges that Carlson’s placement in his personnel file of the
memorandum concerning the letter to the editor was an adverse
employment action taken in retaliation for his speech on a matter
of public concern. Finally, he alleges that Carlson terminated him
in retaliation for his union activities and for his letter to the
editor.
9
Accord Brady v. Houston Ind. Sch. Dist., 113 F.3d 1419, 1422 (5th Cir.
1997); Wallace v. Texas Tech Univ., 80 F.3d 1042, 1050 (5th Cir. 1996); Thompson v.
City of Starkville, 901 F.2d 456, 460 (5th Cir. 1990).
10
The district court correctly determined that the first two
actionsSSchanging the frequency of the parties and placing the memo in the
personnel fileSSwere not “adverse employment actions” as a matter of law. See
Pierce v. Texas Dept. of Criminal Justice, 37 F.3d 1146, 1149 (5th Cir. 1994),
cert. denied, 514 U.S. 1107 (1995). Thus, the district court found that the
actions could not have been retaliatory in nature. For purposes of our
discussion, however, we will assume that all three actions were “adverse
employment actions.”
10
1.
Lenart has failed to raise a material fact issue that would
“show that [his] speech motivated [Carlson’s] decision” to
reschedule the frequency of the departmental birthday parties.
Frazier, 873 F.2d at 825 (citing Mt. Healthy, 429 U.S. at 287).
There is no evidence that Carlson changed the frequency of the
birthday parties in order to interfere with Lenart’s free
association with other MASE members. Lenart provides only
supposition in the face of Carlson’s sworn denials.11 Lenart
presents neither affidavits nor other evidence in accordance with
rule 56(e). Therefore, when we compare the generalities of the
pleadings with the specifics of Carlson’s affidavits and
defendants’ deposition of Lenart, we find there to be no genuine
fact issue presented with regard to the birthday parties.12
2.
Second, Lenart maintains that Carlson placed her memorandum
concerning the letter to the editor in his personnel file in
retaliation for his protected speech. Because Lenart has made no
11
Indeed, the district court perceptively noted that “Lenart admits in his
deposition that, although he had never thought about it, the changing of the
birthday parties was not focused on him as an individual . . . .”
12
We could alternatively analyze this issue under the second prong of the
Frazier test. See Frazier, 873 F.2d at 825 (quoting Pickering, 391 U.S. at 568).
Lenart offers no evidence that would lead a reasonable fact finder to conclude
that his interest in free association in this instance outweighs the UMC’s
interest in providing efficient medical care to its patients.
11
showing of why his speech interest outweighed the UMC’s
organization interests in operating a hospital, this claim fails
the second prong of the Frazier test as a matter of law.
Lenart has offered no evidence to “demonstrate that [his]
interest in 'commenting upon matters of public concern' is greater
than the defendants’ interest in 'promoting the efficiency of the
public services [that they] perform.'” Frazier, 873 F.2d at 825
(quoting Pickering, 391 U.S. at 568). He submitted nothing to the
court that could make any reasonable person think that his interest
in identifying himself as a UMC employee when commenting on
controversial public issues outweighs the UMC’s interests in having
an efficient procedure for official comment upon such issues by the
public affairs office. Lenart also offers nothing to suggest that
his speech interest outweighs the UMC’s interest in keeping a
record of supervisors’ interactions with their subordinates by the
placement of copies of memoranda sent to employees in their
personnel files.
Lenart again has simply relied upon his own vague accusations
in his complaint, his opposition to the summary judgment motion,
and the unsworn statements attached thereto. Such evidence does
not satisfy Lenart’s burden under rule 56(c). See Celotex,
477 U.S. at 327; Hanks, 953 F.2d at 997.
3.
12
Finally, the analysis of Carlson’s termination of Lenart is
much the same as the analysis of the birthday party issue. Lenart
has failed to show any facts demonstrating that there is a material
fact issue with respect to Carlson’s motivation for firing Lenart.13
Lenart alleges that Carlson fired him in retaliation for his
letter to the editor and for his union activities. Carlson swears
in an affidavit that the reason for Lenart’s termination was his
use of profanity in front of patients and their families. Again,
Lenart offers no additional, rule 56(e)-type, evidence to refute
Carlson’s explanation; he even fails to submit his own affidavit.
When we look at Lenart’s vague pleadings next to Carlson’s specific
sworn denials, we have no choice but to affirm the summary
judgment. See Celotex, 477 U.S. at 327.
B.
Next we address Lenart’s claims against Connerly. Lenart sues
Connerly because he is the chief university administrator in charge
of the UMC. Lenart does not allege that Connerly personally
ordered or engaged in any of the above “adverse employment actions”
or instituted any policies that deprived him of his constitutional
rights. The district court correctly noted that the claims against
13
See Brady, 113 F.3d at 1423 (“In order to establish that one’s First
Amendment right to free speech has been violated by an employer’s retaliatory
conduct, a plaintiff must prove . . . that such conduct was a 'substantial' or
'motivating' factor behind the defendant’s action.” (citations omitted)).
13
Connerly are merely respondeat superior claims for the actions of
his subordinate Carlson.
We do not recognize vicarious liability for § 1983 claims.14
The superior must somehow have engaged in the action, instituted
the policy the subordinates followed, or committed some act of
willfulness or gross negligence in supervising the subordinate who
committed the § 1983 violation. See Doe, 15 F.3d at 452.
Lenart has alleged none of these facts needed to maintain his
claim. In the face of his vague accusations, Connerly has offered
an affidavit saying that he had no idea who Lenart was prior to the
lawsuit and that he (Connerly) instituted no policies with the
intention of depriving Lenart of his constitutional rights of free
expression and free association. Again, rule 56(c) and Celotex
lead us to conclude that summary judgment was correct. See
Celotex, 477 U.S. at 327.15
For the foregoing reasons, the judgment is AFFIRMED.16
14
See, e.g., Southard v. Texas Bd. of Criminal Justice, 114 F.3d 539, 550
(5th Cir. 1997) (“A supervisor cannot be held liable under section 1983 on the basis
of respondeat superior. Rather, the misconduct of the subordinate must be
affirmatively linked to the action or inaction of the supervisor.” (citation
omitted)); Doe v. Taylor Ind. Sch. Dist., 15 F.3d 443, 452 (5th Cir. 1994 (en banc).
15
Lenart argues that the circumstantial evidence of the timing of his
terminationSSCarlson learned of his outbursts only after she wrote the memorandum
about the letter to the editorSSshould be enough to raise a material fact issue.
What Lenart fails to appreciate is that once Carlson has sworn that her actions
were motivated by the outbursts and not by Lenart’s public comments, Lenart must
provide some evidence to show that Carlson’s explanation was pretext. See Brady,
113 F.3d at 1423. Because he has failed to do so, we must rely on Carlson’s
unopposed affidavit and affirm the summary judgment.
16
Because we find no material fact issues presented, we need not address
(continued...)
14
16
(...continued)
qualified immunity.
15