                       IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE FIFTH CIRCUIT


                                           No. 01-30935
                                         consolidated with
                                           No. 01-31405


TERRY ZAFFUTO; SUSAN ZAFFUTO,

                                                             Plaintiffs - Appellees-Cross-Appellants

                                               versus

CITY OF HAMMOND; ET AL,


Defendants

CITY OF HAMMOND,

                                                          Defendants - Appellants-Cross-Appellees;
KENNY CORKERN,

                                                                                Defendant-Appellant.


                          Appeals from the United States District Court
                              for the Eastern District of Louisiana

                                         October 16, 2002


Before REAVLEY, BARKSDALE, and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

   Appellants, a police supervisor and his municipal employer, challenge a jury’s verdict that secretly

recording and disclosing a personal phone call from appellee police officer to his wife violated the



                                                  1
constitutional right to privacy and constituted an invasion-of-privacy tort under Louisiana law. On

cross-appeal, the officer and his wife challenge the district court’s adverse summary judgment ruling

on their Title VII retaliation claim. We agree with the district court’s disposition of the Title VII

claim. However, because one of the two possible theories under the constitutional right to privacy

was improperly submitted to the jury, and because the state invasion-of-privacy tort can only support

the compensatory damages portion of the judgment, a new trial on punitive damages must be ordered.

We affirm in part, and reverse and remand in part.

                                 I. FACTS AND PROCEEDINGS

   All calls on certain phone lines in the Hammond, Louisiana police department are automatically

recorded onto a central taping system, for various law-enforcement purposes.1 To record a particular

conversation, an officer must locate the conversation from the master tape and then manually record

the conversation by placing a hand-held tape recorder next to the speaker.

   Sometime in 1997, then-sergeant Terry Zaffuto placed a call from his private office to his wife

Susan, expressing his approval of a controversial department re-structuring that would adversely

affect some of his superiors. Susan remarked, in substance, that “those SOBs will finally get what

they deserve.” Two police officers, Dennis Pevey and Paul Wade Miller, testified at trial that

Assistant Police Chief Kenneth Corkern played them a tape recording of officer Zaffuto’s call to his

wife. Corkern denied ever hearing or playing the tape.

   In September 1999, Zaffuto learned from Miller that his conversation had been recorded, and that

Corkern had played the tape for Miller and Pevey. Around the same time, Zaffuto was listed as a



       1
        For instance, the taping system allows the department to investigate internal wrongdoing,
and to evaluate charges that the department does not promptly respond to citizen complaints.

                                                 2
witness on behalf of a co-worker’s sex discrimination lawsuit against the department, though he never

actually testified. The next month, Zaffuto was suspended 240 hours for allegedly failing to accurately

report that another officer had assaulted a pre-trial detainee. Zaffuto says the suspension was

retaliation for his testimony in the sex discrimination case.

   Zaffuto has since been promoted to lieutenant and given a pay raise.

   Zaffuto and his wife filed a complaint March 27, 2000 against Corkern, Po lice Chief Roddy

Devall,2 and the City of Hammond, alleging that defendants: (1) unlawfully retaliated against him, in

violation of Title VII, for agreeing to testify on behalf of a co-worker’s sex discrimination lawsuit

against the police department; (2) unlawfully disclosed one of Zaffuto’s private telephone

conversations in violation of the constitutional right to privacy; (3) committed an invasion-of-privacy

tort under Louisiana law in connection with the disclosed phone call; and (4) caused Susan Zaffuto

to suffer a loss of consortium.

   On April 3, 2001, the district court granted defendants’ motion for summary judgment on

plaintiffs’ Title VII claim because the alleged retaliation Zaffuto suffered, a 240-hour suspension, did

not amount to an “ultimate employment decision” under Mattern v. Eastman Kodak Co., 104 F.3d

702 (5th Cir. 1997). The district court denied defendants’ motion for summary judgment on plaintiffs’

constitutional right to privacy claim.

   After hearing all the testimony April 9, 2001, a jury returned a verdict April 10 finding that

Corkern violated the Zaffutos’ constitutional rights, without those rights being specified, and that

Corkern was not entitled to qualified immunity. The jury also found Corkern liable to the Zaffutos’


       2
        At the close of plaintiffs’ case, they conceded to defendants’ motion that Devall be
granted a judgment as a matter of law. See FED. R. CIV. P. 50(a). Devall is no longer part of this
lawsuit or appeal.

                                                   3
for a state law invasion-of-privacy tort. The jury awarded the Zaffutos $2 in compensatory damages

($1 each), and $10,000 in punitive damages, but did not allocate those damages between the federal

or state claims. The jury found the City not liable for violating the Zaffutos’ constitutional right to

privacy because the City did not have a custom or policy of unlawfully taping and disseminating

officer phone calls.

   On July 25, 2001 the district court granted the Zaffutos’ unopposed motion to alter the judgment

to find the City liable for the state invasion-of-privacy tort, under a respondeat superior theory, for

the $2 in compensatory damages. In the same memorandum, the district court denied defendants’

renewed motion for a judgment as a matter of law because the evidence was sufficient to support the

verdict, and because the constitutional rights Corkern violated were clearly established at the time of

the violation, precluding his qualified immunity defense.

                                          II. DISCUSSION

A. Sufficiency of the evidence and the constitutional right to privacy

   Corkern asserts that he could not, as a matter of law, have violated the Zaffutos’ constitutional

privacy rights. When a district court denies a motion for a post-verdict judgment as a matter of law,

we review its determinations of law de novo. See Heller Financial, Inc. v. Grammco Computer Sales,

Inc., 71 F.3d 518, 523 (5th Cir. 1996). For factual findings, “[t]his Court grants great deference to

a jury’s verdict and will reverse only if, when viewing the evidence in the light most favorable to the

verdict, the evidence points so strongly and overwhelmingly in favor of one party that the court

believes that reasonable jurors could not arrive at any contrary conclusion.” Dahlen v. Gulf Crews,

Inc., 281 F.3d 487, 497 (5th Cir. 2002) (citation omitted).

   Section 1983 allows a citizen to sue anyone who, “under color of” state law or custom, violates


                                                  4
the citizen’s federal rights. 42 U.S.C. § 1983.

1. The Fourth Amendment and wire communications

    The first of two constitutional privacy rights at issue is the Fourth Amendment’s protection of

privacy in wire communications. See Berger v. New York, 388 U.S. 41 (1967); Katz v. United States,

389 U.S. 347 (1967). The Supreme Court held in Katz that the government cannot record private

conversat ions without a valid warrant or proper authorization when the speaker has a reasonable

expectation of privacy. 389 U.S. at 351-52. To establish a Fourth Amendment privacy claim, a

plaintiff

    must demonstrate both that [he] had an actual expectation of privacy, based on a showing that
    [he] sought to preserve something as private (which is called a subjective expectation of
    privacy), and that [his] expectation of privacy is one that society recognizes as reasonable
    (which we call an objective expectation of privacy).

See Kee v. City of Rowlett, 247 F.3d 206, 212 (5th Cir. 2001). In Kee, this Court held that

conversations taking place near a murder victim’s gravesite, where police had placed a secret listening

device, were not protected. Id. at 217-18.

     Corkern argues that he cannot be liable under the Fourth Amendment because there was

insufficient evidence that he seized the recording. “The Fourth Amendment governs not only the

seizure of tangible items, but extends as well to the recording of oral statements overheard without

any technical trespass under local property law.” Katz, 389 U.S. at 353 (citation and internal

quotations omitted).

    We conclude that the jury had sufficient testimony to infer that Corkern recorded the Zaffutos’

conversation in violation of the Fourth Amendment. Nobody testified to actually “pulling” the

Zaffuto conversation from the master tape, but two officers testified that Corkern played the tape for



                                                  5
them. The jury could reasonably infer from that testimony that Corkern either pulled it himself, or

ordered that it be pulled from the master tape.

   Corkern also argues that the existence of Louisiana’s public records law and a department policy

that calls would be taped suggests that it would not be objectively reasonable for Zaffuto to expect

privacy in making a perso nal phone call from work. “[T]he question whether an employee has a

reasonable expectation of privacy must be addressed on a case-by-case basis.” See O’Connor v.

Ortega, 480 U.S. 709, 718 (1987) (plurality).

   Officers Zaffuto, Peavy and Miller testified at trial that, in 1997, they understood the policy to

mean that only calls coming into the communications room (where outside citizens would call) were

being recorded, not calls from private offices. A reasonable juror could conclude, on this evidence,

that Zaffuto expected that his call to his wife would be private, and that that expectation was

objectively reasonable.3

2. The Fourteenth Amendment and confidentiality

   The second constitutional right at issue is the Fourteenth Amendment’s protection of the

“individual interest in avoiding disclosure of personal matters,” see Whalen v. Roe, 429 U.S. 589, 599

(1977), also known as the “confidentiality branch” of substantive due process privacy rights.4 The


       3
       Because the right to privacy in personal phone calls has long been established, see Katz,
389 U.S. at 354-360, Corkern is not entitled to qualified immunity.
       4
         The other branch, the autonomy branch, involves the “interest in independence in making
certain kinds of important decisions[,]” such as those relating to marriage, procreation, and
education. Whalen, 429 U.S. at 599-600.
         Corkern correctly points out that nothing in the plaintiffs’ filings makes clear that they
intended to pursue a separate claim under the Fourteenth Amendment confidentiality branch, in
addition to their Fourth Amendment claim. The complaint speaks broadly of the constitutional
right to privacy, without mentioning a specific amendment. The Zaffutos’ memorandum in
opposition to summary judgment only mentions the Fourth Amendment, and their proposed jury

                                                  6
following two cases are illustrative.

   In Fadjo v. Coon, plaintiff Fadjo alleged that the state of Florida, as part of an investigation into

the mysterious disappearance of one Kenneth Rawdin, used its subpoena power to gather information

“concerning ‘the most private details of [Fadjo’s] life.’” 633 F.2d 1172, 1174 (5th Cir. Unit B Jan.

1981). Fadjo was the beneficiary of a life insurance policy on Rawdin, and Florida officials allegedly

disclosed the private information to his insurance companies. Id. This Court held that Fadjo’s

complaint stated a federal cause of action for an unconstitutional invasion of privacy. Id. at 1176-77.

   In American Civil Liberties Union v. Mississippi, this Court held that, in dismantling the

controversial Mississippi State Sovereignty Commission, the state of Mississippi could not publicly

disseminate the Commission’s files: “[C]omplete and unfettered disclosure of the files does not give

appropriate protection to the constitutional privacy interests of various persons in not having

government-gathered sensitive personal information about them released.” 911 F.2d 1066, 1069 (5th

Cir. 1990).

   There is no Fifth Circuit authority on what types of disclosures are personal enough to trigger the

protection of the confidentiality branch, and, as t he Third Circuit notes,“the contours of the

confidentiality branch are murky.” See Scheetz v. The Morning Call, Inc., 946 F.2d 202, 206 (3d Cir.



instructions do not include anything relating to the Fourteenth Amendment confidentiality branch
issue. The prohibition against government dissemination of private information, once thought to
reside in the “shadows cast by various provisions,” is found in the “Fourteenth Amendment’s
concept of personal liberty.” See Whalen, 429 U.S. at 598 n.23. And, as explained above, there is
separate Fourth Amendment jurisprudence relating to intercepting wire communications.
        Nevertheless, we conclude that the Fourteenth Amendment issue is properly before us
because the Zaffutos’ complaint reads broadly enough to cover both theories (neither amendment
is mentioned by name). The jury was instructed on both the Fourth and the Fourteenth
Amendment theories, and there is no evidence in the record that Corkern objected to those
instructions.

                                                  7
1991).

    Corkern argues that the Zaffutos’ conversation about a controversial re-structuring in the police

department was not a discussion of “personal matters,” Whalen 429 U.S. at 599, sufficient to trigger

the privacy protections of the confidentiality branch. He distinguishes this case from other controlling

confidentiality cases, which involved much more private facts. See, e.g., Whalen, 429 U.S. at 600

(medical records); ACLU, 911 F.2d at 1070 (“instances of (often unsubstantiated) allegations of

homosexuality, child molestation, illegitimate births, and sexual promiscuity as well as reports of

financial improprieties, drug abuse, and extreme political and religious views”); Fadjo, 622 F.2d at

1174 (“the most private details of [Fadjo’s] life” (internal quotations omitted)); Plante v. Gonzalez,

575 F.2d 1119, 1121 (5th Cir. 1978) (detailed personal financial information).

    Although this Court has never explicitly determined what types of disclosures are “personal”

enough to create a constitutional cause of action, other courts have clearly been limiting the scope

of confidentiality branch actions. In Davis III v. Bucher, a corrections officer showed nude photos

of an inmate’s wife to at least two other inmates, but the Ninth Circuit held that “[t]he mere fact that

[the officer] was clothed in official garb cannot transform his act into one of constitutional

significance.” 823 F.2d 718, 720 (9th Cir. 1988). The court said that the case presented “two isolated

instances of poor judgment,” and that “elevating them to constitutional dimension would tend to

trivialize the Fourt eenth Amendment by making it a magnet for all claims involving personal

information, state officers, and unfortunate indignities.” Id. at 720-21. The court distinguished Fadjo

because, in that case, “the state’s investigator flagrantly breached a pledge of confidentiality, which

had been instrumental in obtaining the personal information.” Id. at 721.

    In Alexander v. Peffer, a city official disclosed on a talk show that appellant had unsuccessfully


                                                   8
applied for a position as a police officer, but the Eighth Circuit held that the information was not

personal enough, nor did it involve “the type of governmental abuse,” to “demand[] a constitutional

response.” 993 F.2d 1348, 1350-51 (8th Cir. 1993). The court, following signals from the Supreme

Court, was reluctant to expand substantive due process rights “because guideposts for responsible

decisionmaking in this unchartered area are scarce and open-ended.” Id. at 1350 (quoting Collins v.

Harker Heights, 503 U.S. 115, 125 (1992)); see also Wade v. Goodwin, 843 F.2d 1150, 1153 (8th

Cir. 1988) (“The constitutional right to privacy is generally limited to only the most intimate aspects

of human affairs.”).

    The disclosure in t his case, though deliberate, did not reveal the type of intimate facts to

constitute a constitutional violation. The substance of the conversation revealed only that Zaffuto

disliked some of his bosses. We agree with the cases from other courts of appeals which hold that de

minimis disclosures cannot be the basis of liability under the Fourteenth Amendment’s confidentiality

branch and § 1983.

B. Invasion-of-privacy tort

    Federal cases limiting the scope of the confidentiality branch suggest that the proper remedy for

less serious privacy violations is state tort law. See Alexander, 993 F.2d at 1350 (describing cause

of action as “a possible state tort”); Davis III, 853 F.2d at 721 (“[Plaintiffs’] remedy, if any, lies in

the state courts.”); Scheetz, 946 F.2d at 206 (“[T]he question of whether a federal constitutional right

to privacy has been violated is a distinct question from whether... a state common law right to privacy

has been violated.”).

    Louisiana law recognizes a cause of action for unreasonable disclosure of embarrassing private

facts where “defendant’s conduct is unreasonable and seriously interferes with the plaintiff’s privacy


                                                   9
interest.” See Daly v. Reed, 669 So.2d 1293, 1294 (La. App. 4th Cir. 1996). “To be actionable, it

is not necessary that there be malicious intent on the part of the defendant; rather the reasonableness

of the defendant’s conduct in a breach of privacy action is determined by balancing the plaintiff’s

interest in protecting his privacy from serious invasions with the defendant’s interest in pursuing his

course of conduct.” Id.

   Considering that Corkern had no legitimate interest in recording and disseminating the private

conversation— his only interest was apparently to embarrass Zaffuto and curry favor with Miller and

Pevey— it was not unreasonable for the jury to have found Corkern liable.

C. The new trial

   The jury’s verdict form (1) finds that Corkern violated the Zaffutos’ “constitutional rights,”

without specifying which of the two theories prevailed; (2) finds Corkern liable for an invasion-of-

privacy tort; and (3) awards damages without reference to any particular theory.

   We affirm only the award of $2 in compensatory damages. We need not remand for a new trial

on compensatory damages because the measure of compensatory damages under all theories arises

from the same injuries, and because the properly-submitted state claim forms an independent basis

to support that award.5

   However, the jury’s finding on the state law claim cannot support the punitive damages portion

of the judgment because punitive damages are not allowed under Louisiana law in absence of a

specific statutory provision. See Fowler v. Western Union Telegraph Co., 357 So.2d 1305, 1309 (La.



       5
        On appeal, the City argues for the first time that they are not liable for the compensatory
damages under Louisiana’s vicarious liability doctrine. Significantly, the City offers no reason why
they never made those arguments to the district court. The issue has been forfeited and will not be
considered on appeal. See Brown v. Kinney Shoe Corp., 237 F.3d 556, 561-62 (5th Cir. 2001)

                                                  10
App. 3d Cir. 1978). The jury was instructed that they could only award punitive damages on the

federal constitutional claim.

   Because we cannot know whether the erroneously-submitted Fourteenth Amendment claim or

the properly-submitted Fourth Amendment claim formed the basis for the jury’s punitive damages

award, a new trial is required on punitive damages. See Crist v. Dickson Welding, 957 F.2d 1281,

1286 (5th Cir. 1992) (“When two or more claims are submitted to a jury in a single interrogatory, a

new trial may be required if one of the claims was submitted erroneously, because ‘there is no way

to know that the invalid claim ... was not the sole basis for the verdict.’ “ (internal quotation and

citation omitted)).

D. Title VII retaliation claim

   We review the district court’s summary judgment determination de novo, applying the same

standard as the district court. See Medine v. Ramsey Steel Co., Inc., 238 F.3d 674, 680 (5th Cir.

2001). Summary judgment is appropriate when there is no genuine issue as to any material fact and

the moving party is entitled to a judgment as a matter of law. See FED. R. CIV. P. 56(c). We must

view all evidence and all factual inferences in the light most favorable to the Zaffutos, the parties

opposing the motion. See Price v. Federal Exp. Corp., 283 F.3d 715, 719 (5th Cir. 2002). If the party

opposing the motion is unable to prove that there is at least a genuine issue with respect to a material

fact which he would have to prove at trial to prevail or that the movant is not entitled to a judgment

as a matter of law, t he motion must be granted. See Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986).

   Plaintiff in a Title VII retaliation claim6 must prove “(1) that he engaged in activity protected by


          6
           See 42 U.S.C. § 2000e-3(a).

                                                  11
Title VII, (2) that an adverse employment action occurred, and (3) that a causal link existed between

the protected activity and the adverse employment action.” Fierros v. Texas Dep’t of Health, 274

F.3d 187, 191 (5th Cir. 2001) (quoting Evans v. City of Houston, 246 F.3d 344, 352 (5th Cir. 2001)).

The district court granted defendants summary judgment on the narrow ground that the alleged

retaliation did not amount to an “adverse employment action.”

   The Fifth Circuit requires that an “adverse employment action” be an “ultimate employment

decision[]... such as hiring, granting leave, discharging, promoting, [or] compensating.” See Mattern

v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997) (quoting Dollis v. Rubin, 77 F.3d 777, 781

(5th Cir. 1995)) (alteration added). In Mattern, the Court held that “[h]ostility from fellow

employees, having tools stolen and resulting anxiety, without more, do not constitute ultimate

employment decisions.” Id. The Court noted that it would be “unwarranted” to expand Title VII’s

retaliation prohibition to “events such as disciplinary filings, supervisor’s reprimands and even poor

performance by the employee— anything which might jeopardize employment in the future.” Id. at

708.

   The courts of appeal are split on this issue. The Fifth Circuit and the Eighth Circuit have adopted

the “ultimate employment decision” standard. See Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th

Cir. 1997).7 Every other circuit to address the issue has held that employment decisions falling short

of ultimate employment decisions may suffice. See Von Gunten v. Maryland, 243 F.3d 858, 866 n.4

(4th Cir. 2001) (collecting cases); Wideman v. Wal-Mart Stores, 141 F.3d 1453, 1456 (11th Cir.


       7
        A Fourth Circuit panel noted “that while the Eight Circuit has ostensibly adopted the
‘ultimate employment decision’ standard, it has consistently applied a broader standard.” Von
Gunten v. Maryland, 243 F.3d 858, 864 (4th Cir. 2001) (citing Manning v. Metropolitan Life Ins.
Co., 127 F.3d 686, 692 (8th Cir. 1997) and Kim v. Nash Finch Co., 123 F.3d 1046, 1060 (8th
Cir. 1997)).

                                                 12
1998) (same).

    Post-Mattern cases in this circuit provide only data points, from which it is difficult to discern a

more specific conception of “ultimate employment action.” For instance, In Mota v. Univ. of Texas

Houston Health Science, this Court held that four actions, each taken alone, constituted adverse

employment action: (1) discontinuing an employee’s annual $2500 stipend; (2) denying his request

for paid leave; (3) denying his request to extend unpaid leave; and (4) t ermination. 261 F.3d 512,

521-23 (5th Cir. 2001). In Fierros, this Court held that denial of a pay raise may constitute an adverse

employment action. 274 F.3d at 193.

    Zaffuto argues that he suffered retaliation because he was suspended for 240 hours for failing to

report an incident in which another officer assaulted a pre-trial detainee (Zaffuto says this explanation

is pretext).8 Zaffuto emphasizes that the suspension directly affected his compensation, and he relies

upon the following language from a post-Mattern Supreme Court sexual harassment case:

    A tangible employment action constitutes a significant change in employment status, such as
    hiring, firing, failing to promote, reassignment with significantly different responsibilities, or
    a decision causing a significant change in benefits.... A tangible employment action in most
    cases inflicts direct economic harm.

Burlington Industries v. Ellerth, 524 U.S. 742, 761-62 (1998) (emphasis added). In Burlington, the

Supreme Court held that an employer may be vicariously liable for an employee’s sexual harassment

claim, even where a “tangible employment action” did not occur. Id. at 765-66. The Fifth Circuit has

expressly declined to decide whether the sexual harassment “tangible employment action” standard

lowers the bar on what is an “ultimate employment action” for retaliation purposes. See Fierros, 274



        8
        Zaffuto also claims he was denied the opportunity to be the acting shift lieutenant while
his supervisor was on vacation. That denial is far too minor to constitute an ultimate employment
action.

                                                   13
F.3d at 193 n.3. We need not decide that issue for the present case.

    Zaffuto’s suspension clearly affected the terms of his employment during the suspension, and it

is arguably more severe than denying an employee paid leave, or an extension in unpaid leave, as in

Mota. 261 F.3d at 521. On the other hand, the plaintiff in Mota was denied six months of leave, and

ultimately fired, id., whereas Zaffuto was ultimately promoted to lieutenant and given a raise.

    We decline to decide whether a 240-hour suspension is an adverse employment decision because

the record, more straightforwardly, fails to support another crucial element of Zaffuto’s claim: that

there is a causal relation between the protected activity and the alleged retaliation. The district court

did not decide the issue, but because summary judgment requires de novo review, this Court may

affirm on an alternate ground that was properly raised in the district court.

    The record contains nothing connecting the allegedly protected activity9 and the alleged

retaliation, save for the fact that they both occurred in the fall of 1999. In fact, the record shows that

the events giving rise to Zaffuto’s suspension, and the investigative fact finding, occurred before he

was identified as a witness in the sexual harassment case. Zaffuto admitted in his deposition that he

could not say whether t he suspension was connected to his testimony. In absence of any evidence

connecting Zaffuto’s being identified as a witness and his suspension, we conclude that Zaffuto has

failed to raise a genuine issue of material fact as to the issue of causation.

                                          III. CONCLUSION

    In sum, we affirm the district court’s order with respect to compensatory damages, and affirm the

district court’s rejection of appellants’ Title VII claim. We vacate the punitive damages award and



        9
         We also need not decide whether being identified as a witness in a sexual discrimination
lawsuit, without actually testifying, constitutes protected activity.

                                                   14
remand for a new trial on whether officer Corkern is liable for punitive damages for violating

appellants’ Fourth Amendment rights.




                                             15
