Connelly v. Texas Department of Criminal Justice

United States Court of Appeals

Fifth Circuit

F I L E D

IN THE UNITED STATES COURT OF APPEALS

April 10, 2007

FOR THE FIFTH CIRCUIT

Charles R. Fulbruge III

__________________________ Clerk

No. 05-20994

__________________________

KARON K CONNELLY,

Plaintiff-Appellee,

versus

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; ET AL

Defendants

JOHN F FANT

Defendant-Appellant.

___________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

___________________________________________________

Before GARWOOD, WIENER, and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

John Fant, one of the defendants in a retaliatory termination and employment discrimination

action filed by Karon Connelly, appeals the district court’s order denying him qualified immunity. For

the following reasons, we find that we lack jurisdiction to hear his arguments and DISMISS his

appeal.

I. FACTS AND PROCEEDINGS

Connelly worked as an attorney for the Texas Department of Criminal Justice’s (“TDCJ”)

State Counsel for Offenders Division (“SCFO”) from November 1998 until her termination in January

2002. In the summer of 1999, she reported to a supervisor that Fant, then the Director of SCFO

Legal Services, was engaging in the unauthorized practice of law. She repeated these allegations to

various SCFO officials several times over the next two years, but the officials took no action. In

March 2001, Connelly notified the State Bar of Texas and the Walker County District Attorney that

she suspected Fant of practicing law without a license. She also obtained documents demonstrating

that Fant’s license was inactive and provided these to the State Bar of Texas. In April 2001, she

reported Fant’s alleged wrongdoing to a member of the Texas Board of Criminal Justice and its

general counsel. Shortly thereafter, she was ordered to turn over the case files of her clients in

preparation for a transfer. She refused to surrender the files, and instead she filed grievances against

Fant and several other SCFO and TDCJ officials. Connelly’s supervisor, Kenneth Florence, initiated

disciplinary proceedings against her for her refusal to turn over the files, but ultimately she was never

disciplined because the charge against her was not properly served.

During the summer and fall of 2001, Florence filed a series of disciplinary charges against

Connelly, accusing her of falsifying travel records, being insubordinate, and failing to obey an order.

She was found guilty of falsifying travel records and placed on probation; later, she was found guilty

of insubordination and failure to obey an order. Shortly thereafter, she was terminated.

Connelly timely filed suit in May 2003, asserting, inter alia, a claim against Fant alleging

retaliatory termination based on speech protected by the First Amendment. She alleged that Fant

approved her termination as retaliation for her disclosures about his alleged misconduct. Fant moved

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for summary judgment in the district court, (1) asserting a defense of qualified immunity and (2)

arguing that Connelly could not succeed on the merits of her claims. The district court denied

summary judgment on both grounds and Fant now appeals its determination on the question of

qualified immunity.

II. DISCUSSION

A. Jurisdiction for appeals on denial of qualified immunity

Although the appellate courts ordinarily do not have jurisdiction to review a denial of a

motion for summary judgment, a district court’s order denying qualified immunity is immediately

appealable to the extent it turns on an issue of law. Gobert v. Caldwell, 463 F.3d 339, 344 (5th Cir.

2006). If the defendant only argues that, contrary to the district court’s determination, there is

insufficient evidence in the record to support the plaintiff’s version of the facts, we must dismiss the

appeal for lack of jurisdiction. See Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir. 2004) (en banc).

The panel thus only has jurisdiction to determine whether Fant is entitled to qualified immunity as a

matter of law, viewing all facts in the light most favorable to Connelly. Id. at 348. To determine

whether an official is entitled to qualified immunity, the court asks (1) whether the plaintiff has alleged

a violation of a constitutional right, and (2) whether the defendant’s conduct was objectively

reasonable in light of the clearly established law at the time of the incident. McClendon v. City of

Columbia, 305 F.3d 314, 322–23 (5th Cir. 2002). Any arguments not addressed to these questions

may not be considered on interlocutory appeal, and an appeal relying on these improperly raised

arguments should be dismissed.

B. Fant’s arguments on appeal

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On appeal, Fant does not assert that Connelly’s speech was not protected from retaliation by

the First Amendment. Nor does he assert that if he had retaliated against her based on this speech,

such retaliation would have been objectively reasonable under clearly established First Amendment

retaliation jurisprudence. Fant contends that Connelly failed to demonstrate that her speech was a

motivating factor in the decision to terminate her employment. He also asserts that he “satisfied the

objective reasonableness requirement” because he terminated her based on her conduct, not her

speech.

Fant’s first assertion is an attack on the merits of Connelly’s claim. In order to ultimately

succeed on her claim, Connelly must show that the exercise of her speech was a substantial or

motivating factor in the decision to terminate her. See Pierce v. Tex. Dep’t of Criminal Justice, 37

F.3d 1146, 1149 (5th Cir. 1994). Fant contends that Connelly produced insufficient evidence to show

that Fant’s decision to terminate her was motivated by her speech. Fant never made this argument

to the district court in his motion for summary judgment, so it is foreclosed on appeal.1 FDIC v.

Laguarta, 939 F.2d 1231, 1240 (5th Cir. 1991). Further, as an attack on the sufficiency of the

evidence supporting Connelly’s underlying claim, it may not be considered for the purpose of this

interlocutory appeal.

Fant’s second assertion indicates that he misunderstands the nature of the objective

reasonableness inquiry. Objective reasonableness in the qualified immunity context refers to whether

1

As support for both of his arguments, Fant relies heavily on Mt. Healthy City Sch. Dist. Bd.

of Educ. v. Doyle, 429 U.S. 274, 287 (1977), which held that district courts should “determine

whether [a defendant can show] by a preponderance of the evidence that it would have reached the

same decision . . . even in the absence of the protected conduct” if the defendant raises this defense

to the merits of a First Amendment retaliation claim. Fant did not discuss the Mt. Healthy defense

in his brief to the district court; he cited the case for its holding but never asserted that it applied.

Consequently, we will not address it on appeal. FDIC v. Mijalis, 15 F.3d 1314, 1327 (5th Cir. 1994).

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Fant’s alleged behavior was reasonable even if it was unlawful, because clearly established law did

not render it a constitutional violation at the time. Wilson v. Layne, 526 U.S. 603, 614 (1999).

Fant’s argument is that his behavior was objectively reasonable because he could have terminated

Connelly for her repeated misconduct, an assertion Connelly denies, pointing to the fact that the

disciplinary proceedings against her began after she raised her concerns about Fant. To the extent

that Fant attacks the district court’s determination of the genuineness, rather than the materiality, of

any dispute concerning Connelly’s factual assertions, the court may not consider his argument at this

juncture. Fant also failed to frame this argument within the context of First Amendment retaliation

jurisprudence in the district court. Conversely, Connelly, in her response to Fant’s motion, pointed

to law and facts tending to establish her claim that Fant’s decision to terminate her was objectively

unreasonable in light of clearly established law, carrying her burden. 2 Consequently, this second

attack on the district court’s decision is meritless.

III. CONCLUSION

Because Fant’s arguments may not be asserted on interlocutory appeal of a denial of qualified

immunity, the court lacks jurisdiction over the appeal. The appeal is DISMISSED.

2

“When a defendant invokes qualified immunity, the burden is on the plaintiff to demonstrate

the inapplicability of the defense.” McClendon, 305 F.3d at 323.

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