Arthur Elizondo v. Fletcher Parks

Case: 10-50680 Document: 00511520929 Page: 1 Date Filed: 06/27/2011

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

June 27, 2011

No. 10-50680

Lyle W. Cayce

Clerk

ARTHUR ELIZONDO,

Plaintiff-Appellant,

v.

FLETCHER PARKS, Individually and in His Official Capacity,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:04-cv-01025

Before DAVIS, CLEMENT, and ELROD, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Arthur Elizondo appeals the district court’s summary

judgment for Defendant-Appellee Fletcher Parks on Elizondo’s 42 U.S.C. § 1983

claim based on Parks’s alleged violation of Elizondo’s First Amendment free

speech rights. On a prior interlocutory appeal, this court vacated the district

court’s original order denying summary judgment for Parks and remanded for

consideration of whether Elizondo’s alleged speech was made pursuant to his

job duties in light of the Supreme Court’s decision in Garcetti v. Ceballos, 547

*

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.

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U.S. 410 (2006). After receiving supplemental briefing from the parties, the

district court found that Elizondo’s statements were made pursuant to his job

duties and, therefore, were not protected by the First Amendment. Because

Elizondo failed to show a violation of a constitutional right, the district court

granted summary judgment for Parks based on qualified immunity.

At issue is whether Elizondo’s statements to his employer, Parks, were

made pursuant to his official duties and are therefore not protected by the First

Amendment under Garcetti. Id. We hold that Elizondo’s statements are not

protected and AFFIRM.

I

In 1987, Elizondo started working as a Business Development Specialist

for the Minority Business Development Center (the Center) at the University of

Texas at San Antonio (UTSA). In that position, Elizondo assisted prospective

minority entrepreneurs in starting businesses. Elizondo’s position was funded

by the Minority Business Development Agency, a subdivision of the United

States Department of Commerce. Parks was Elizondo’s immediate supervisor

at the Center.

In the fall of 2002, the Center experienced a budget shortfall. Rather than

fire two employees, a plan was devised to temporarily transfer Elizondo and

Luke Ortega to the UTSA Small Business Development Center (SBDC), run by

Judy Ingalls. The SBDC was funded by a different federal grant, and this grant

would pay Elizondo’s and Ortega’s salaries until the end of the year. Elizondo

and Ortega would continue serving the Center’s clients without charging a fee,

and would also assist the SBDC. Ingalls sought and received approval for the

plan from the Small Business Administration, which provided part of the

funding for the SBDC.

In mid-October 2002, Parks met with Elizondo and Ortega about the

proposed temporary reassignments. Ortega accepted the reassignment, but

Elizondo refused. Elizondo contends that when he heard of the plan, he

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immediately objected. Elizondo allegedly told Parks that the SBDC would

essentially be paying Elizondo’s salary while Elizondo continued to perform work

for the Center, and such commingling of funds from two separate federal grants

would be illegal and fraudulent.1

Parks denies that Elizondo said that the reassignment was fraudulent.

Rather, according to Parks, Elizondo only objected to a change in work

assignment because of concerns about reporting to both Ingalls and Parks and

the potential increased workload. Ortega testified at his deposition that he did

not remember Elizondo saying that he thought the reassignment was illegal.

Ingalls also stated in her affidavit that Elizondo never told her that he thought

the transfer was fraudulent.2

On October 31, 2002, Parks sent a memorandum to Elizondo requesting

a decision whether Elizondo would accept the new assignment by November 1.

Elizondo responded in writing that he needed “more time to review this matter

with legal before I can respond. . . . I know that you would request the same,

especially since this memo indicates that my job position is in jeopardy and other

references made in this memo bring up several questions that need full

responses and complete answers, so that my 15 years and 2 months, plus my

retirement are not in jeopardy.” On November 11, Parks spoke with Elizondo

again and when Elizondo still refused the reassignment, Parks handed Elizondo

a termination letter. The letter stated that the reasons for Elizondo’s

1

Elizondo also claims that he reported the fraud to Raquel Suniga, an employee of the

Dallas regional office of the MBDA, and that he called a Department of Commerce hotline and

several attorneys to discuss the situation. However, on appeal, Elizondo only briefed the

district court’s conclusion as to his internal communications with Parks. Thus, Elizondo has

waived any argument that his other alleged communications were protected speech activities.

See Audler v. CBC Innovis, Inc., 519 F.3d 239, 255 (5th Cir. 2008).

2

Robert Guerrero also testified via deposition that Elizondo simply did not want to

accept the position and that Elizondo did not believe that the new job was what he wanted.

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termination were “failure to cooperate with [his] supervisor, refusal to follow

instructions and [Elizondo’s] refusal to perform [his] assigned duties.”

Elizondo filed suit against UTSA and Parks alleging a 42 U.S.C. § 1983

First Amendment retaliation claim, as well as claims for violation of the False

Claims Act, 31 U.S.C. § 3730(h), and the Texas Whistleblower Act, Tex. Gov’t

Code Ann. § 554.001 et seq. (Vernon 1988). UTSA asserted sovereign immunity,

as did Parks on all claims against him in his official capacity. The district court

dismissed all of Elizondo’s claims against UTSA and against Parks other than

the First Amendment retaliation claim. Both Parks and Elizondo then moved

for summary judgment, and Parks asserted qualified immunity. After the

district court denied Parks’s motion, Parks filed an interlocutory appeal with

this court. Although noting that the district court applied the correct legal

framework for assessing a First Amendment retaliation claim at the time of its

ruling, this court vacated the district court’s order and remanded the case in

light of the Supreme Court’s holding in Garcetti, 547 U.S. 410.

On remand and after receiving supplemental briefing on Garcetti, the

district court granted summary judgment to Parks, finding that Elizondo’s

comments to Parks were made pursuant to his official duties and were therefore

unprotected by the First Amendment. In reaching its conclusion, the district

court noted that Parks called the meeting during which Elizondo allegedly made

the comments about fraud and that the subject matter of the speech concerned

Elizondo’s continued employment—his pay, duties, and to whom he would

report. The district court found that official duties of any job included meeting

with a supervisor to discuss a new assignment and continued employment.

Even though reporting fraud was a matter of public concern, the

communications all related to Elizondo’s job. Thus, because Elizondo could not

establish violation of a constitutional right, the district court granted Parks’s

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motion for summary judgment based on qualified immunity. Elizondo timely

appealed to this court.

II.

This court reviews a district court’s summary judgment de novo, including

judgments based on qualified immunity, applying the same standard as the

district court. See Gen. Universal Sys. v. HAL Inc., 500 F.3d 444,448 (5th Cir.

2007). Summary judgment is appropriate if the moving party can show that

“there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In deciding a motion for

summary judgment, the court draws all reasonable inferences in the light most

favorable to the nonmovant. United Fire & Cas. Co. v. Hixson Bros., Inc., 453

F.3d 283,285 (5th Cir. 2006). However, the nonmoving party may not rest on

mere allegations, but must set forth specific facts indicating a genuine issue for

trial. Rushing v. Kan. City S. Ry., 185 F.3d 496, 505 (5th Cir. 1999).

“Qualified immunity shields federal and state officials from money

damages unless a plaintiff pleads facts showing (1) that the official violated a

statutory or constitutional right, and (2) that the right was ‘clearly established’

at the time of the challenged conduct.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080

(2011) (internal citation omitted). Courts have discretion to decide which of the

two prongs of qualified immunity to tackle first. Pearson v. Callahan, 129 S. Ct.

808, 818 (2009). Therefore, qualified immunity protects government officials

performing discretionary functions from individual liability for civil damages but

only “insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982); Thompson v. Upshur Cnty., 245 F.3d 447,

456 (5th Cir. 2001). We find that Garcetti precludes Elizondo’s claim and

therefore Parks is entitled to qualified immunity because there was no violation

of a statutory or constitutional right.

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III.

To establish a First Amendment retaliation claim, the plaintiff must prove

four elements: (1) that he suffered an adverse employment action; (2) that he

spoke as a citizen on a matter of public concern; (3) that the plaintiff’s interest

in the speech outweighed the government’s interest in the efficient provision of

public services; and (4) that the speech precipitated the adverse employment

action. Modica v. Taylor, 465 F.3d 174, 179-80 (5th Cir. 2006). “Whether [the

plaintiff] engaged in protected speech is a purely legal question . . . .” Charles

v. Grief, 522 F.3d 508, 512 (5th Cir. 2008).

The Supreme Court’s decision in Garcetti added a threshold layer to the

analysis of whether a public employee spoke as a citizen on a matter of public

concern—namely a determination of whether the plaintiff spoke pursuant to his

or her official duties. 547 U.S. at 421. The Garcetti Court held that “when

public employees make statements pursuant to their official duties, the

employees are not speaking as citizens for First Amendment purposes, and the

Constitution does not insulate their communications from employer discipline.”

Id. The rationale behind the rule was that “[r]estricting speech that owes its

existence to a public employee’s professional responsibilities does not infringe

any liberties the employee might have enjoyed as a private citizen. It simply

reflects the exercise of employer control over what the employer itself has

commissioned or created.” Id. at 421-22. Thus, “before asking whether the

subject-matter of particular speech is a topic of public concern, the court must

decide whether the plaintiff was speaking ‘as a citizen’ or as part of her public

job.” Davis v. McKinney, 518 F.3d 304, 312 (5th Cir. 2008) (quoting Mills v. City

of Evansville, 452 F.3d 646, 647 (7th Cir. 2006)). The court’s focus is not on the

speech’s content, but rather “the role the speaker occupied when he said it.” Id.

Several non-dispositive factors aid in an analysis of the speaker’s role,

including the internal versus external nature of the speech and whether the

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subject matter concerned the speaker’s employment. Garcetti, 547 U.S. at 420-

21. Formal job descriptions, although relevant, are not dispositive, as they

“often bear little resemblance to the duties an employee actually is expected to

perform, and the listing of a given task in an employee’s written job description

is neither necessary nor sufficient to demonstrate that conducting the task is

within the scope of the employee’s professional duties for First Amendment

purposes.” Id. at 424-25. Rather, the inquiry is a “practical one,” and the

controlling factor is whether the plaintiff’s expressions were made pursuant to

one of the numerous duties for which the plaintiff was employed. See id. at 421,

424.

This court has already interpreted the “pursuant to” language in Garcetti.

In Williams v. Dallas Independent School District, this court held that

“[a]ctivities undertaken in the course of performing one’s job are activities

pursuant to official duties.” 480 F.3d 689, 693 (5th Cir. 2007) (per curiam).

Williams concerned an athletic director’s memoranda to school officials in which

he requested account information concerning the fulfillment of the director’s

daily job duties, namely budgeting for athletic department expenses. Id. at 694.

The court found the director’s speech unprotected because, although the

director’s duties did not specifically require him to write the memoranda, he

performed this activity in the course of carrying out his official duties. Id.; see

also Davis, 518 F.3d at 315 (holding that audit manager’s letter discussing

concerns about the inadequate response of her employer to her internal

investigation was not protected speech under Garcetti); Nixon v. City of Houston,

511 F.3d 494, 498-99 (5th Cir. 2007) (holding that a police officer’s comments at

a crime scene to the media were made during the “course of performing his job”

and were not protected). Thus, since Garcetti, this court has repeatedly held

that statements made in the course of performing one’s job are not protected.

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Here, all of the speech at issue occurred in response to Parks’s letters or

during meetings that Parks initiated to discuss the budget shortfall and

Elizondo’s temporary reassignment. Elizondo’s comments related to his job and

how the reassignment would impact his workload, salary, and reporting duties.

Further, Elizondo made all of his comments internally, directly to a supervisor,

during work hours, and the subject matter of the speech concerned the manner

of his continued employment. While those facts are not dispositive, they weigh

in favor of finding that Elizondo was speaking pursuant to his job duties. See

Garcetti, 547 U.S. at 420-21; see also Grief, 522 F.3d at 514 (emphasizing that

the plaintiff voiced his concerns externally, a significant distinction from the

speech at issue in Garcetti.). Elizondo’s statements that he needed time to

consider whether he could accept Parks’s reassignment and consult with legal

because there may be some fraud or illegal conduct at issue were directly related

to Elizondo’s concerns about his job. Simply put, his statements were about

whether he would continue his employment. Statements about whether one will

do one’s job are necessarily made pursuant to one’s job duties. Therefore, we

hold that the district court correctly determined that Elizondo’s statements at

issue here are not protected by the First Amendment under Garcetti.

AFFIRMED.

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