                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                         April 14, 2005

                        _______________________                   Charles R. Fulbruge III
                                                                          Clerk
                            Summary Calendar
                              No. 04-41101
                        _______________________

                       JOAN CAROL ELLIS ROBERTS,

                                                       Plaintiff-Appellant,

                                   versus

                   TITUS COUNTY MEMORIAL HOSPITAL;
          GEORGE BURNS, Director of Radiology Titus County
              Memorial Hospital; GENE LOTT, Director of
           Human Resources Titus County Memorial Hospital,

                                                    Defendants-Appellees.


            Appeal from the United States District Court
                 for the Eastern District of Texas,
                         Texarkana Division
                        No. 5:03-CV-00021-DF


Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

            Appellant Joan Roberts (“Roberts”) appeals pro se the

district court’s award of summary judgment to Appellees Titus

County   Memorial    Hospital    (“Hospital”)    and    employees       of    the

Hospital, Director of Radiology George Burns, and Director of Human

Resources   Gene    Lott.    The   district   court     wrote    a   thorough,

carefully reasoned opinion and held, inter alia, that Roberts


     *
            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opinion should not be published and is not precedent except under the limited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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failed to raise a material issue of triable fact on her claims of

invasion of her First Amendment and Due Process rights, as well as

Roberts’s allegations of Title VII violations.      We AFFIRM the

district court in all respects.

                            BACKGROUND

          The Hospital employed Roberts as a CAT scan technologist

in the radiology department from 1986 to 2002.   Roberts routinely

received high marks for her technological capabilities, but she had

a mixed record for interpersonal relationships.      Specifically,

Roberts had a documented history of undermining doctors’ orders and

diagnoses of patients, as well as difficulty in arriving to work on

time and in getting along with coworkers.   In light of her inter-

personal problems, and the qualifications of another technologist,

when the Hospital opened a “lead tech” position, which required the

same amount of work and paid the same salary, Roberts did not

receive the position.

          Roberts’s First Amendment claim arises in part out of her

disagreement with the Hospital’s method for purchasing equipment,

and her verbal complaints to two Hospital board members asserting

the Hospital’s violation of unspecified “competitive bidding” laws.

Although the Hospital ultimately purchased the equipment favored by

Roberts (who claims no entitlement to participate in this decision-

making process), Roberts notified Hospital employees she intended

to pursue a whistleblower action against the Hospital.       After



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filing   suit,     Roberts      began      soliciting     Hospital      employees      for

information       concerning      this       action    during    working      hours     in

violation of Hospital policy.                Roberts received written warnings

for soliciting during working hours and for improperly offering

medical advice to patients.                  Failing to heed these warnings,

Roberts was terminated.

               Roberts pursued administrative action with the Equal

Employment Opportunity Commission (EEOC) and ultimately filed the

instant suit, claiming, inter alia, a violation of her First

Amendment rights, her Due Process rights under the Fourteenth

Amendment, as well as violations of Title VII.

                                      DISCUSSION

               This court reviews the grant of summary judgment de novo,

using    the    same     standard     as     the    district    court.        Urbano    v.

Continental Airlines, Inc., 138 F.3d 204, 205 (5th Cir. 1998).

               A property right in maintaining employment may not be

deprived       without    due    process.           Cleveland    Bd.     of   Educ.     v.

Loudermill, 470 U.S. 532, 538, 105 S. Ct. 1487, 1491 (1985).

However, no process is due where no protected property interest

exists. Bd. of Regents v. Roth, 408 U.S. 564, 569, 92 S. Ct. 2701,

2705 (1976).       As the constitution does not itself create property

interests, a plaintiff claiming deprivation of a property right

must clearly establish existence of such a right.                      Bishop v. Wood,

426   U.S.     341,    344-47,   96     S.    Ct.     2074,   2076-79    (1972).       In



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ascertaining the existence of a property interest, we look to state

law.    Id. at 344, 96 S. Ct. at 2077.

            Texas courts strongly adhere to the employment at-will

doctrine.    See, e.g., Sabine Pilot Serv. v. Hauck, 687 S.W.2d 733,

734 (Tex. 1985).      Texas law imposes a strong presumption in favor

of at-will employment. Zenor v. El Paso Healthcare Sys., Ltd., 176

F.3d 847, 862 (5th Cir. 1999); Montgomery County Hosp. Dist. v.

Brown, 965 S.W.2d 501 (Tex. 1998).            Where a plaintiff relies on an

employment policy, as opposed to an employment contract, to rebut

the presumption of at-will employment, the proffered employment

policy must contain explicit contractual terms altering the at-will

relationship in a meaningful way (e.g., through an employment

contract). Id. Texas courts are reluctant to imply deviation from

at-will employment from ambiguous employment policies.                 Id.

            Based on Texas law and the employment policy at issue,

the district court rejected Roberts’s Due Process claims.                Roberts

claims no employment contract.          Instead, Roberts cites the follow-

ing    provision    from   the   Hospital’s      bylaws    as   evidence     of   a

constitutional property interest in her continued employment:

       The Board of Managers shall appoint, under terms
       prescribed by the Board, a general manager to be known as
       the Administrator of the hospital district. . . . He
       shall supervise the work of all employees . . . and also
       may dismiss any employee for good cause and shall
       thereafter make a report to the Board of the dismissal.

This    provision,    however,    has       nothing   to   do   with   Roberts’s

employment.        Instead, it discusses the responsibilities of an


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entirely    different     employee      at    the   Hospital,      the    Hospital

Administrator.         Roberts   was    not   terminated      by   the    Hospital

Administrator, but instead by the Director of Human Resources. The

district court correctly found that Roberts lacked a property

interest    in   her   continued     employment      because    she      failed   to

demonstrate that she was not an employee at-will, and therefore was

not entitled to any process prior to her termination.

            Roberts’s      First     Amendment       claims     are      similarly

unavailing.      She raises two specific claims in this vein: (1) that

the Hospital’s policy prohibiting her from acting as a “patient

advocate”1 was impermissibly vague and impeded her First Amendment

rights;    and   (2)   that   the   Hospital’s      anti-solicitation       policy

violated her First Amendment rights.

            A statute, rule, or policy may be deemed impermissibly

vague for either of two discrete reasons:               It fails to provide

people of ordinary intelligence a reasonable opportunity or fair

notice to understand what conduct it prohibits; or, it authorizes

or    encourages       arbitrary       and    discriminatory        enforcement.

See Chicago v. Morales, 527 U.S. 41, 56-57, 119 S. Ct. 1849, 1859

(1999).

            Roberts contends that Hospital policy preventing her from

interpreting x-rays or CAT scan results — i.e., diagnosing patients

— constituted an impermissibly vague policy.             As a matter of law,


      1
            This title is an invention of Roberts.    No term or condition of her
employment vests her with such a title.

                                         5
as the district court held, this claim is without merit.                        The

Hospital’s policy provides an individual of ordinary intelligence

fair notice that diagnosing patients is the realm of physicians,

and that staff are not to do so.               Roberts, a non-physician,

radiologic technologist, had sufficient notice to conform her

conduct to clear Hospital policy.

           Roberts’s     second   First     Amendment   claim      rests   on    an

individual’s ability to speak on matters of public concern. Speech

addresses a matter of public concern when it is made primarily in

the   speaker’s   role   as   a   citizen    rather   than    as   an   employee

addressing solely matters of personal interest.              Connick v. Myers,

461 U.S. 138, 148, 103 S. Ct. 1684, 1690-91 (1983).             This court has

addressed First Amendment implications of policies similar to the

instant policy.     In Southern Christian Leadership Conference v.

Supreme Court of the State of Louisiana, we held that a state

supreme   court    rule       prohibiting     non-lawyer       students     from

representing certain solicited indigent parties did not prevent

speech of any kind.       252 F.3d 781, 789-90 (5th Cir. 2001).             If a

court finds that the speech touches upon a matter of public

concern, it must balance the plaintiff’s interest in making those

statements against “the interest of the State, as an employer, in

promoting efficiency of public services it performs through its

employees.”   Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.

Ct. 1731, 1734-35 (1968).



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           Roberts’s practice of providing diagnoses to patients

receiving x-rays and CAT scans, as well as giving unsolicited

diagnoses to doctors, did not touch on a matter of public concern.

The policy existed to protect patients from the unauthorized

practice of medicine; to term this a free speech limitation would

be   a dangerous     intrusion   by    the   judiciary   on   the   Hospital’s

prerogative to render medical services.           See Connick, 461 U.S. at

146, 103 S. Ct. at 1690 (“[W]hen employee expression cannot be

fairly considered as relating to any matter of political, social,

or other concern to the community, government officials should

enjoy wide latitude in managing their offices, without intrusive

oversight by the judiciary in the name of the First Amendment.”).

Moreover, we agree with the district court that even if Roberts

could demonstrate her speech touched on a matter of public concern,

the Pickering balancing test requires ruling in the Hospital’s

favor.   The Hospital was constitutionally justified in regulating

the time, place, and manner of Roberts’s speech where Roberts was

in no way qualified to provide diagnoses.

           As to Roberts’s First Amendment claim concerning the

Hospital’s anti-solicitation policy, we agree with the district

court that her speech in this area was arguably a matter of public

concern.   The goal of the Texas Whistleblower Act is to enhance

openness   and    protect   those     informing   officials   of    government

wrongdoing.      See TEX. GOV’T CODE ANN. § 554.002(a) (VERNON SUPP. 2004).

Nevertheless, under the Pickering balancing test, Roberts cannot

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prevail on these claims.          Although Roberts had a right to make

inquiries and statements about possible violations of state law and

policy, the Hospital had a concomitant right to prevent such

solicitations during working hours in the workplace. Roberts could

have done her factfinding outside the Hospital on her own time; the

anti-solicitation policy represents a valid time, place, and manner

restriction.   Cf. Connick, 461 U.S. at 148-53, 103 S. Ct. at 1691-

93 (holding that termination of a public employee who distributed

questionnaire did not violate the First Amendment, as most of the

questions    related    to     inter-office     policies     and     the   conduct

threatened the agency’s institutional efficiency).                     For these

reasons, the district court properly awarded Appellees summary

judgment on all of Roberts’s First Amendment claims.

            In considering a Title VII claim, unless direct evidence

of discrimination exists, a court must utilize the three-step

analysis first enunciated in McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802-05, 93 S. Ct. 1817, 1824-25 (1973).                     Under this

formula, a plaintiff must first establish a prima facie case of

discrimination.    If the plaintiff makes a prima facie case, the

employer can    rebut    the    claim   by    offering   a   legitimate,     non-

discriminatory reason for the employment decision.                 Bodenheimer v.

PPG Industries, Inc., 5 F.3d 955, 957 (5th Cir. 1993).                     If the

defendant succeeds, the court moves to the third step of the

analysis, where the plaintiff bears the burden to prove that the

reasons offered by the defendant are pretextual.               Id.

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           Additionally, a plaintiff may establish a Title VII

violation by demonstrating a hostile work environment.         Harris v.

Forklift Sys., Inc., 510 U.S. 17, 22-23, 114 S. Ct. 367, 371

(1993).   A prima facie case of a hostile work environment is

achieved by producing evidence that (1) she belongs to a protected

group; (2) she experienced unwelcome sexual harassment; (3) the

harassment was based on sex; (4) the harassment affected a “term,

condition or privilege” of employment; and (5) the employer knew or

should have known of the harassment and failed to take prompt

remedial action.     See Shepherd v. Comptroller of Public Accounts

for the State of Texas, 168 F.3d 871, 873 (5th Cir. 1999).

           Because Title VII addresses only “ultimate employment

decisions,”   Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995),

Roberts failed to state a prima facie case because the “lead tech”

job did not constitute a new position — it required identical hours

and received identical pay.    Additionally, even assuming the “lead

tech” job was considered a new position, the Hospital put forward

valid, non-discriminatory reasons (namely, that Roberts was not

suited for the job as she did not get along with others well, and

that the person hired had superior credentials) that Roberts is

unable to rebut with competent summary judgment evidence.

           Similarly, Roberts failed to adduce any material issue of

triable   fact   connecting   her   EEOC   complaint   with   her   valid

termination, so her Title VII retaliation claim also fails under

McDonnell-Douglas.     Based on the numerous valid reasons for her

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termination, and the dearth of evidence demonstrating any sort of

pretext for that termination decision, Roberts fails on this claim

as well.   Cf. Chancy v. New Orleans Public Facility Management,

Inc., 179 F.3d 164, 168 (5th Cir. 1999) (discussing the very high

standard a plaintiff must meet once an employer articulates a

rational justification for the termination).

           The judgment of the district court is AFFIRMED.




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