Bitsoff v. City of Dallas ( 1999 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________
No. 99-10437
Summary Calendar
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MICHAEL BITSOFF,
Plaintiff-Appellant,
versus
CITY OF DALLAS,
Defendant-Appellee.
_____________________________________________________________
Appeal from the United States District Court
for the Northen District of Texas
(3-98-CV-1262-BD-R)
_________________________________________________________________
October 19, 1999
Before DAVIS, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
For this challenge to a summary judgment, at issue are whether
the government employee’s complaints about his supervisor’s
management style and conduct in office are protected by the First
Amendment; and whether the claimed retaliation for exercising First
Amendment rights is a deprivation of a property interest under the
Fourteenth Amendment.
Michael Bitsoff was employed by a public service radio station
owned by the City Of Dallas. His immediate supervisor was
supervised by Greg Davis. In June 1997, the relationship between
Bitsoff and Davis began to sour. Bitsoff made complaints to a City
*
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this opinion should not be published and is not precedent except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.
Human Resources Analyst and to Davis’ Supervisor, that Davis’
management style was verbally abusive, physically intimidating and
creating a hostile work environment. Bitsoff also complained that
Davis 1) demanded special services from vendors and clients; 2)
negotiated deals that violated pre-existing contracts or benefitted
Davis personally; and 3) ordered Bitsoff to falsify a mileage
report (collectively malfeasance in office).
Following these complaints, Bitsoff claims that Davis
retaliated against him, eventually leading to his resignation,
which he equates to a constructive discharge. Bitsoff filed suit
claiming retaliation for exercising his First Amendment rights and
a Substantive Due Process claim regarding his property interest in
his job.
The district court granted summary judgment for the City,
holding that 1) the complaints about Davis’ management style were
not protected speech; 2) the reports of mismanagement and
malfeasance in office were of public concern; but, that 3)Bitsoff
had not presented any evidence linking these reports to an adverse
employment action against him; and 4) that the deprivation of a
property right in the job fell with the First Amendment claim,
because it was based on the same underlying facts.
No authority need be cited for the rules that a summary
judgment is reviewed de novo; and that such judgment is proper if
there is no material fact issue, and the movant is entitled to
judgment as a matter of law.
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The three part test developed by this circuit for First
Amendment retaliation cases is: 1) the speech involves a matter of
public concern; 2) the employee’s interest in commenting on the
matter outweighs the employer’s interest in promoting efficiency;
and 3) the exercise of free speech was a substantial motivating
factor in the adverse employment action. E.g., Denton v. Morgan,
136 F.3d 1038, 1042 n.2 (5th Cir.1998). Essentially for the
reasons stated by the district court, the summary judgment was
proper. See Connick v. Myers, 461 U.S. 138, 146 (1983); Fowler v.
Smith 68 F.3d 124, 128 (5th Cir. 1995).
AFFIRMED
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