Tompkins v. Vickers

United States Court of Appeals,

Fifth Circuit.

No. 93-7250.

Robert TOMPKINS, Plaintiff-Appellee,

v.

Dr. Nolan VICKERS, Superintendent, et al., Defendants,

Dr. Nolan Vickers, Superintendent, Defendant-Appellant.

July 26, 1994.

Appeal from the United States District Court for the Northern

District of Mississippi.

Before GOLDBERG, DAVIS and DeMOSS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

In this § 1983 action, Nolan Vickers appeals the district

court's order denying his motion for summary judgment based on

qualified immunity. We agree with the district court that issues

of fact are presented with respect to Vickers' motivation for

transferring Tompkins to a less desirable employment position. We

therefore dismiss the appeal.

I.

For approximately twenty-one years, Robert Tompkins taught art

at Greenville High School (Greenville) without controversy. In

August 1988, Tompkins began criticizing school district

Superintendent Nolan Vickers for cancelling the art program at

Coleman Junior High School (Coleman), an "historically black

[junior] high school." Tompkins decried the cancellation because

the same art program was spared at Solomon Junior High, an

"historically white junior high school". When the Vickers

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administration explained that the program was cancelled because

instructors could not be found for Coleman, Tompkins located art

instructors for the school.

Around this same time, the Vickers administration was the

subject of extensive criticism in the community. His management

style was criticized by a large segment of the teachers and staff

of the school district. Criticism of his vindictive and

retaliatory management style was reported in the press and was the

subject of discussion at school board meetings.

In September 1988, Tompkins, on behalf of a local teachers'

organization, presented a letter of "no confidence" to Vickers,

detailing the grievances of employees, staff and teachers.

Tompkins also wrote a letter to the editor of the local newspaper,

further publicizing his criticism of the Vickers administration for

its poor relations with faculty, staff and students. Finally, in

October 1988, Tompkins appeared before the School Board of Trustees

and urged the Board to reinstate the art program at Coleman.

The following April, Charlie Lynch, the Greenville principal,

recommended Tompkins for re-employment as an art instructor at

Greenville.1 However, this recommendation was revoked after a July

1989 meeting between Lynch, Mac Durastanti (the principal of

Coleman) and Sammie Felton (the principal of T.L. Weston). On

Vickers' instruction, the group of principals met for the avowed

purpose of redistributing art instructors throughout the school

1

Under school district policy, each principal made staffing

recommendations for their schools each April for the coming year.

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district; according to Tompkins, a meeting of this kind had never

taken place before. After the meeting, the principals unanimously

recommended that Tompkins be reassigned to Coleman for the upcoming

school year. Vickers accepted this recommendation and ordered

Tompkins' transfer. After being notified of the transfer, Tompkins

requested the Board to reassign him to Greenville, but the Board

denied his request.

Tompkins then filed this suit under 42 U.S.C. § 1983 against

the Greenville Municipal School District, Superintendent Vickers,

several other administrators and the members of the School Board of

Trustees. Tompkins alleged that his reassignment to Coleman was

made in retaliation for the public criticism he had expressed

toward the various defendants, in violation of his First Amendment

rights. Tompkins also complained that his reassignment violated

his Due Process and Equal Protection rights.

All defendants moved for summary judgment on a number of

grounds, including qualified immunity. The district court granted

summary judgment in favor of the defendants on Tompkins' Due

Process and Equal Protection claims, but denied summary judgment on

Tompkins' First Amendment claim, rejecting the defendants' request

for qualified immunity. Only defendant Vickers appeals the

district court's denial of qualified immunity.

II.

A.

We review de novo the denial of a public official's motion

for summary judgment predicated on qualified immunity. Johnston v.

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City of Houston, 14 F.3d 1056, 1059 (5th Cir.1994) (citation

omitted).

Tompkins' First Amendment claim is predicated on his

contention that Vickers reassigned him to Coleman to retaliate

against him for criticizing the Vickers administration on matters

of public concern. Vickers argues that his actions did not violate

Tompkins' clearly established constitutional rights. Vickers

further contends that Tompkins was reassigned solely because of a

personality conflict with Lynch, and that Tompkins has not met his

summary judgment burden of establishing a causal connection between

his transfer and his First Amendment activity.

In reviewing the denial of a summary judgment motion based on

a claim of qualified immunity, the Supreme Court has instructed us

to first consider whether the actions of the plaintiff are entitled

to constitutional protection. Siegert v. Gilley, 500 U.S. 226,

231, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). Even if the

plaintiff's actions are constitutionally protected, public

officials are nonetheless entitled to qualified immunity unless the

constitutional right asserted was clearly established at the time

of their conduct. The law is considered clearly established if the

contours of the right asserted are sufficiently clear that a

reasonable official would understand that what he is doing violates

that right. Texas Faculty Ass'n v. University of Texas at Dallas,

946 F.2d 379, 389 (5th Cir.1991) (quoting Anderson v. Creighton,

483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987)).

The parties do not dispute that the First Amendment prohibits

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a public employer from retaliating against an employee for

exercising his right to speak on a matter of public concern. Nor

do the parties dispute whether the contours of this right were

clearly established at the time of Tompkins' transfer. However,

Vickers contends that it was not clearly established that Tompkins'

speech addressed a matter of public concern because the statements

were arguably motivated by Tompkins' personal interests as an

employee. Whether the speech at issue relates to a matter of

public concern is a question of law to be resolved by the court.

Rankin v. McPherson, 483 U.S. 378, 386 n. 9, 107 S.Ct. 2891, 2898

n. 9, 97 L.Ed.2d 315 (1987).

In Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d

708 (1983), a public employee, disgruntled by an undesirable

transfer, complained that she was terminated because of statements

pertaining to the office transfer policy, the need for a grievance

committee, and the level of confidence in various supervisors. In

distinguishing between speech relating only to the employee's

personal interests and speech relating to a matter of public

concern, Connick instructs us to look to "the content, form, and

context of [the speech at issue], as revealed by the whole record."

Id. at 147-48, 103 S.Ct. 1684, 1690, 75 L.Ed.2d at 720. The

Connick Court interpreted the public employee's statements as "mere

extensions of [her] dispute over her transfer," which were not "of

public import in evaluating the performance of ... an elected

official." Accordingly, the Court declined to afford First

Amendment protection because the employee had spoken "not as a

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citizen upon matters of public concern, but instead as an employee

upon matters only of personal interest." Id.

We are persuaded that Tompkins' complaints about cancelling

the art program at a black junior high school for no apparent

reason while maintaining the art program at a white junior high

school relates to a matter of public concern. This conclusion is

strengthened by the content, form and context of Tompkins'

complaints. See id. Tompkins' complaints were made against a

backdrop of widespread debate in the Greenville community regarding

the art program and other aspects of Vickers' management of the

school system. Thus, Tompkins' complaints can be seen "in the

context of a continuing commentary that had originated in [a]

public forum." See Brawner v. City of Richardson, 855 F.2d 187,

192 (5th Cir.1988). In fact, most of Tompkins' complaints were

made in a public forum. He wrote a letter to the editor of the

local newspaper criticizing the Vickers administration. This

criticism continued at a public meeting of the local School Board,

where Tompkins urged the Board to reinstate the art program at

Coleman. See id. Moreover, Tompkins, on at least one occasion,

spoke not only on his behalf, but as a representative of a local

teachers' organization.

Vickers' only specific argument that Tompkins did not engage

in public speech is that Tompkins spoke out as an employee on a

matter of solely personal interest. Specifically, Vickers contends

that Tompkins stood to benefit personally from the continuation of

the art program at Coleman because his Greenville students would be

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better prepared for high school art classes. Vickers points to no

record support for this argument and we find it unpersuasive. The

district court correctly concluded that Tompkins engaged in

protected public speech.2

B.

Vickers argues next that, even if Tompkins' speech is

constitutionally protected, his claim must still suffer early

dismissal on qualified immunity grounds because Tompkins did not

meet his summary judgment burden of establishing that he was

transferred because of his speech. Vickers contends that Tompkins

has not met his summary judgment burden because he did not produce

specific, direct proof that Vickers had an unconstitutional motive

in transferring Tompkins to Coleman.

Vickers correctly points out that in Harlow v. Fitzgerald,

457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Supreme

Court expressly discarded the subjective component of the qualified

immunity test. The Court held that the public official's state of

mind was generally no longer relevant in deciding a claim of

qualified immunity. By shifting the focus of the qualified

immunity defense to the objective reasonableness of the official's

2

Once a court determines that the employee's speech relates

to a matter of public concern, the court must then weigh the

interests of the employee as a citizen in commenting upon the

matter of public concern against the public employer's interest

in promoting the efficiency of the public services it performs.

See, e.g., Connick, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708.

The district court struck the balance in this case in favor of

the employee, Tompkins, because Vickers had failed to present any

evidence that Tompkins' speech impeded the operation or

effectiveness of his administration. Vickers does not challenge

this conclusion on appeal.

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conduct, the Court balanced the need to provide redress for

constitutional violations with the desire to shield public

officials from undue interference with their duties. The Court

sought to protect public officials from the costs that attend

"[j]udicial inquiry into subjective motivation" by affording not

only immunity from liability, but also immunity from suit. Id. at

817, 102 S.Ct. at 2737. Under Harlow, therefore, the focus of an

inquiry into a defendant's qualified immunity is ordinarily the

"objective reasonableness" of the official's discretionary conduct

as measured by reference to clearly established law. See, e.g.,

Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523

(1987).

But in Harlow, the public official's state of mind was not an

essential element of the underlying constitutional violation.

Every Circuit that has considered the question has concluded that

a public official's motive or intent must be considered in the

qualified immunity analysis where unlawful motivation or intent is

a critical element of the alleged constitutional violation. See,

e.g., Branch v. Tunnell, 937 F.2d 1382 (9th Cir.1991); Siegert v.

Gilley, 895 F.2d 797 (D.C.Cir.1990), aff'd on other grounds, 500

U.S. 226, 235, 111 S.Ct. 1789, 1795, 114 L.Ed.2d 277, 289 (1991);

Pueblo Neighborhood Health Centers v. Losavio, 847 F.2d 642, 648

(10th Cir.1988); Poe v. Haydon, 853 F.2d 418 (6th Cir.1988);

Gutierrez v. Municipal Ct. of Southeast Judicial Dist., 838 F.2d

1031 (9th Cir.1988); Musso v. Hourigan, 836 F.2d 736, 743 (2d

Cir.1988) ("Harlow does not require us ... to ignore the fact that

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intent is an element of the relevant cause of action."); see also

Balcerzak, Qualified Immunity for Government Officials: The

Problem of Unconstitutional Purpose in Civil Rights Litigation, 95

Yale L.J. 126, 127 (1985).

Vickers does not seriously contend that his motive in

transferring Tompkins is irrelevant. He argues, however, that a

public official's burden of defending his subjective motivation in

taking discretionary action should be diminished in light of the

policies underlying qualified immunity. Vickers contends that this

diminished burden would best be achieved by a bright-line rule

requiring Tompkins to present direct evidence, as opposed to

circumstantial evidence, that Vickers was motivated by a desire to

retaliate against Tompkins for his criticism. Additionally,

Vickers advocates a heightened requirement of proof for a plaintiff

seeking to overcome a motion for summary judgment on a cause of

action embodying the public official's state of mind.

We agree that a public official's qualified immunity defense

should not be defeated simply because the plaintiff alleges a claim

that hinges on the requisite state of mind of the public official.

Some protection must be afforded against groundless claims,

otherwise the burden Harlow sought to abate would be inescapable

and qualified immunity rendered a hoax. See Pueblo, 847 F.2d at

648.

But we are convinced that the requirements of Rule 56

accommodate the interests of public officials seeking protection

from groundless claims as well as the interests of plaintiffs

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seeking vindication of constitutional rights. The Supreme Court

has made clear that a party moving for summary judgment has no

burden to disprove unsupported claims of an opponent. Celotex

Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91

L.Ed.2d 265 (1986). Application of this rule is especially

important "when, as in the area of concern in this case, the

reasons for swiftly terminating insubstantial lawsuits are

particularly strong." See Pueblo, 847 F.2d at 649 (quoting Martin

v. D.C. Metropolitan Police Dept., 812 F.2d 1425 (D.C.Cir.1987)

(Ginsburg, J.)). At the summary judgment stage, Tompkins cannot

rely on allegations; he must produce specific support for his

claim of unconstitutional motive. Id.; see also Siegert v.

Gilley, 500 U.S. 226, 235, 111 S.Ct. 1789, 1795, 114 L.Ed.2d 277,

289 (1991) (Kennedy, J., concurring) (the plaintiff must produce

"specific, nonconclusory factual allegations which establish [the

necessary mental state], or face dismissal.")

As the Seventh Circuit recognized in Elliott v. Thomas, 937

F.2d 338, 345 (7th Cir.1991):

[i]f a rule of law crafted to carry out the promise of Harlow

requires the plaintiff to produce some evidence, and the

plaintiff fails to do so, then Rule 56(c) allows the court to

grant the motion for summary judgment without ado.

See also Pueblo, 847 F.2d at 649.

We are not persuaded, however, that this requirement

obligates the plaintiff to come forward with direct, as opposed to

circumstantial, evidence. We are guided in this regard by Justice

Kennedy's concurrence in Siegert, 500 U.S. at 235, 111 S.Ct. at

1795. In Siegert, the Court of Appeals held that where

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illegitimate intent is an element of the underlying constitutional

violation, the plaintiff, to defeat a motion to dismiss on grounds

of qualified immunity, must satisfy a "heightened pleading

standard" by alleging specific, direct evidence of illicit intent.3

Siegert, 895 F.2d 797, 802 (D.C.Cir.1990). The Court of Appeals

concluded that the plaintiff's allegations of improper motive were

insufficient to overcome the defendant public official's assertion

of qualified immunity. Id. at 803-04.

The Supreme Court granted certiorari to "clarify the

analytical structure under which a claim of qualified immunity

should be addressed." Siegert, 500 U.S. at 226, 111 S.Ct. at 1789.

The Majority concluded that the plaintiff's complaint "failed to

satisfy the first inquiry in the examination of ... a [qualified

immunity] claim" because it "failed to allege the violation of a

clearly established constitutional right."

Although the Majority took no occasion to address the Court of

Appeals' direct evidence requirement, Justice Kennedy, concurring,

rejected the notion "that a plaintiff must present direct, as

opposed to circumstantial evidence" of an illegitimate intent in

order to overcome a public official's claim of qualified immunity.

Id. 500 U.S. at 235, 111 S.Ct. at 1795; contra Siegert, 895 F.2d

3

This case has already proceeded to the summary judgment

stage, so we have no occasion to discuss a plaintiff's pleading

requirements where motive or intent is an essential element of

the clearly established right, an issue which we recognize may be

affected by the Supreme Court's recent decision in Leatherman v.

Tarrant County Narcotics Intelligence and Coordination Unit, 507

U.S. ----, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). As Judge

Easterbrook wrote in Elliott, 937 F.2d at 345, "[n]othing we say

here affects what the plaintiff must put in his complaint."

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at 802, aff'd on other grounds, 500 U.S. 226, 111 S.Ct. 1789; Poe,

853 F.2d at 430. Three other members of the Siegert Court also

expressly rejected the District of Columbia Circuit's direct

evidence requirement. Siegert, 500 U.S. at 238, 111 S.Ct. at 1797

(Marshall, Blackmun, and Stevens, J.J., dissenting in part). Since

the Supreme Court's opinion in Siegert, every Circuit that has

considered the question has concluded that a plaintiff is not

required to come forward with direct, as opposed to circumstantial,

evidence under these circumstances. See Branch, 937 F.2d at 1387

("we are unwilling to require a plaintiff to present direct

evidence of [illegitimate] intent in order to avert dismissal);

Elliott, 937 F.2d at 345.

We agree with those Circuits that have rejected the argument

that a plaintiff must produce direct evidence in a case such as

this. Circumstantial evidence is equally as probative as direct

evidence in proving illegitimate intent. Also, direct evidence of

an improper motive is usually difficult, if not impossible, to

obtain. Thus, requiring direct evidence would effectively insulate

from suit public officials who deny an improper motive in cases

such as this. See Siegert, 500 U.S. at 235, 111 S.Ct. at 1795

(Kennedy, J. concurring); Branch, 937 F.2d at 1386-87 (motion to

dismiss); Elliott, 937 F.2d at 345.

C.

In light of these standards, we turn now to the question of

whether Tompkins presented sufficient evidence of an

unconstitutional motive to overcome summary judgment. The district

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court found the uncontroverted circumstances surrounding Tompkins'

transfer sufficient to raise a genuine issue of material fact. We

agree.

The dispute in this case surrounding the cancellation of the

art program at Coleman was widely publicized, as were many other

general complaints against the Vickers administration during the

1989-90 school year. Tompkins openly participated in this protest

by personally delivering the letter of "no confidence" to Vickers,

by penning a letter to the editor of the local newspaper and by

appearing before the Board to air complaints against the Vickers

administration. Prior to these protestations, Tompkins had never

been reprimanded during his 21 years of employment with the school

district. Lynch conceded in his deposition that Tompkins'

personnel file contained no reprimands. Moreover, Tompkins was an

accomplished artist, held in high regard as an art teacher by

faculty and students. Lynch acknowledged that Tompkins' teaching

evaluations were above average and that several of Tompkins' art

students had received outstanding achievement awards.

Vickers counters with evidence that Tompkins' transfer was

prompted by a personality conflict between Lynch and Tompkins;

Vickers also points out that the initial recommendation to transfer

Tompkins resulted from a private meeting between the three

principals—a meeting which Vickers did not attend. But, Tompkins

presented evidence that Lynch had originally recommended Tompkins

for reemployment at Greenville; the reassignment recommendation

came after Vickers took the unprecedented step of requiring the

13

principals to meet to redistribute the art instructors. Moreover,

Vickers was present at a second meeting to discuss the transfer

with Tompkins and the three principals. During this second

meeting, Tompkins alleges that when he objected to the transfer,

Vickers responded: "Well, I thought you'd want to go to Coleman as

much fuss as you kicked up over this." Finally, Lynch conceded

that he knew of no other instances where a teacher had been

transferred to another school because of a personality conflict

with the principal.

We are persuaded that the summary judgment record supports the

district court's conclusion that a genuine factual dispute

surrounds Vickers' motivation for approving Tompkins' transfer.

Thus, we dismiss Vickers' appeal for want of jurisdiction. See

Lion Boulos v. Wilson, 834 F.2d 504, 509 (5th Cir.1987).

APPEAL DISMISSED.

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