Elizondo v. Parks , 254 F. App'x 329 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
))))))))))))))))))))))))))
FILED
No. 06-50092 November 9, 2007
)))))))))))))))))))))))))) Charles R. Fulbruge III
Clerk
ARTHUR ELIZONDO,
Plaintiff-Appellee,
v.
FLETCHER PARKS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
No. 04-CV-1025
Before DAVIS, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
This appeal arises from Plaintiff-Appellee Arthur Elizondo’s
(“Elizondo”) suit alleging that Defendant-Appellant Fletcher Parks
(“Parks”) retaliated against him in violation of the First
Amendment. Elizondo worked as a Business Development Specialist in
the University of Texas at San Antonio’s (“UTSA”) Minority Business
Development Center (“MBDC”) from 1987 until his termination on
November 11, 2002. In the autumn of 2002, the MBDC experienced a
*
Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT RULE
47.5.4.
budget shortfall. Parks, the director of the MBDC and Elizondo’s
supervisor, met with a number of UTSA officials to discuss ways to
resolve the shortfall. One option was to fire two employees. At
the meeting, Judy Ingalls, director of UTSA’s Small Business
Development Center (“SBDC”), devised an alternative plan in which
Parks would temporarily transfer two of his employees--Luke Ortega
(“Ortega”) and Elizondo--to the SBDC. Under the plan, Elizondo and
Ortega would continue to serve their MBDC clients, without charging
the customary fee, and they would assist the SBDC in increasing
minority participation in contracting/procurement and technology.
Ingalls sought and received approval for the plan from the Small
Business Administration (“SBA”).1
On October 18, 2002, Parks met with Elizondo and Ortega and
informed them about the temporary reassignment. Ortega accepted the
reassignment, but Elizondo refused. According to Elizondo’s
affidavit, he “immediately informed Mr. Parks that such a
commingling of funds from two separate federal grants was illegal
and fraudulent.”2 Elizondo believed that the plan was illegal
because it entailed using a SBA grant to pay for his salary and
1
The SBDC is funded in part by a grant from the SBA. A large
percentage of the MBDC’s budget (67% in 2002) comes from a Commerce
Department grant.
2
Parks denies that Elizondo made this statement at the
meeting. Elizondo also contends that he called Raquel Suniga, an
SBA employee, on a Commerce Department hotline concerning the
alleged illegal activity. He further maintains that he contacted
numerous attorneys about how to report the alleged fraud.
2
Ortega’s salary even though they would continue to work on behalf
of the MBDC.
Parks gave Elizondo additional time to change his mind and
accept the reassignment, but Elizondo persisted in refusing the
transfer. In a November 11, 2002 letter, Parks terminated
Elizondo’s employment with the MBDC because of Elizondo’s “failure
to cooperate with [his] supervisor, refusal to follow instructions
and refusal to perform [his] assigned duties.”
Elizondo filed suit against UTSA and Parks on November 10,
2004, alleging First Amendment retaliation, among other claims.3
Parks moved for summary judgment on the First Amendment retaliation
claim on the ground that qualified immunity shielded him from
liability. The district court denied his motion. Parks now appeals
the district court’s denial of his qualified immunity defense.
We have jurisdiction over this appeal because the denial of
qualified immunity is immediately appealable under the collateral
order doctrine. Martinez v. Tex. Dep’t of Criminal Justice, 300
F.3d 567, 576 (5th Cir. 2004). Because this appeal concerns the
district court’s denial of summary judgment based on qualified
immunity, we have jurisdiction “only to the extent that the appeal
concerns the purely legal question whether the defendant is entitled
3
Elizondo also brought claims against both Parks and UTSA
under 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). The district court dismissed all claims against UTSA, and
it dismissed all claims against Parks except for First Amendment
retaliation.
3
to qualified immunity on the facts that the district court found
sufficiently supported in the summary judgment record.” Modica v.
Taylor, 465 F.3d 174, 179 (5th Cir. 2006) (quoting Kinney v. Weaver,
367 F.3d 337, 347 (5th Cir. 2004) (en banc))(alterations omitted).
In other words, “we do not review the district court’s determination
that a genuine factual dispute exists; instead, we ‘consider only
whether the district court erred in assessing the legal significance
of the conduct that the district court deemed sufficiently supported
for purposes of summary judgment.’” Id. (quoting Kinney, 367 F.3d
at 348). “Where factual disputes exist in an interlocutory appeal
asserting qualified immunity, we accept the plaintiffs’ version of
the facts as true.” Kinney, 367 F.3d at 348.
“The doctrine of qualified immunity shields government
officials acting within their discretionary authority from liability
when their conduct does not violate clearly established statutory or
constitutional law of which a reasonable person would have known.”
Wallace v. County of Comal, 400 F.3d 285, 289 (5th Cir. 2005)
(citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Once the
defendant invokes qualified immunity, the plaintiff bears the burden
of demonstrating the inapplicability of the defense. Modica, 465
F.3d at 179. The qualified immunity analysis requires a two-step
inquiry. Id. First, we must determine whether Elizondo’s
allegations, if true, establish a violation of a clearly established
right. Id. Second, if Elizondo has alleged such a violation, we
must then decide whether the conduct was objectively reasonable in
4
light of clearly established law at the time of the incident. Id.“Even if the government official’s conduct violates a clearly
established federal right, the official is nonetheless entitled to
qualified immunity if [his] conduct was objectively reasonable.”
Id.In this case, the district court denied Parks’s claim of
qualified immunity because it determined that Elizondo’s
allegations, if true, established the violation of a constitutional
right and that allegedly terminating Elizondo for complaining about
fraud was not objectively reasonable. The district court noted
that, in order to establish a First Amendment retaliation claim,
Elizondo had to demonstrate that: he suffered an adverse employment
action; his speech involved a matter of public concern; his interest
in commenting on matters of public concern outweighed Parks and the
MBDC’s interest in promoting efficiency; and his speech motivated
the adverse employment action. See, e.g., Beattie v. Madison County
Sch. Dist., 254 F.3d 595, 601 (5th Cir. 2001). At the time that the
district court ruled on Parks’s summary judgment motion, it applied
the correct legal framework for assessing a First Amendment
retaliation claim.
After the district court rendered its decision, the Supreme
Court decided Garcetti v. Ceballos, 126 S. Ct. 1951 (2006). In
Garcetti, a First Amendment retaliation case, the Court held that
“when public employees make statements pursuant to their official
duties, the employees are not speaking as citizens for First
5
Amendment purposes, and the Constitution does not insulate their
communications from employer discipline.” Id. at 1960. Because
Garcetti had not been decided at the time the district court made
its ruling in this case, the district court did not have the
opportunity to decide whether Elizondo was speaking pursuant to his
official duties. We decline to make that determination in the first
instance and therefore vacate the district court’s order denying
qualified immunity and remand this case for reconsideration in light
of Garcetti.4
For the reasons stated above, we VACATE the order of the
district court and REMAND Elizondo’s First Amendment retaliation
claim for reconsideration consistent with Garcetti.
VACATED and REMANDED.
4
We express no opinion on whether Elizondo’s speech was a
matter of public concern.
6