     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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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