                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                               F I L E D
                                                               May 21, 2004
                       In the
                                                         Charles R. Fulbruge III
  United States Court of Appeals                                 Clerk
             for the Fifth Circuit
                 _______________

                   m 03-51243
                 Summary Calendar
                 _______________




JOSE AGUINAGA; LUCILA JAIME; BERTHA URGARTE,

                                      Plaintiffs-Appellants,

                      VERSUS

 TEXAS ALCOHOL AND BEVERAGE COMMISSION;
             DOYNE BAILEY,
    INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY;
                  BUCK FULLER,
    INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY;
                  JEANNENE FOX,
    INDIVIDUALLY AND IN HER OFFICIAL CAPACITY;
                 HERB MURILLO,
            IN HIS INDIVIDUAL CAPACITY,


                                      Defendants-Appellees.


           _________________________

     Appeal from the United States District Court
          for the Western District of Texas
               m EP-02-CV-167-PRM
           _________________________
Before SMITH, DEMOSS, and STEWART,                        quiry, Murillo circulated a memo to TCO’s to
  Circuit Judges.                                         remind them to stay on post for the whole of
                                                          their work hours, absent permission otherwise.
JERRY E. SMITH, Circuit Judge:*                           Nonetheless, Murillo discovered that five of
                                                          the TCO’s, including plaintiffs, persisted in
   Plaintiffs Jose Aguinaga, Lucila Jaime, and            leaving early and without permission, claiming
Berta Ugarte appeal a summary judgment.                   on their time sheets to have worked full days.
Finding no error, we affirm.                              Murillo also found that two of the employees,
                                                          Jaime and Ugarte, had falsified Tax Stamp
                      I.                                  Sales records that misrepresented the time
   Plaintiffs were employees of the Ports of              spent at their posts.
Entry Section (“POE”) of the Licencing and
Compliance Division of the Texas Alcoholic                    Fuller brought the five before him to hear
Beverage Commission.1 They were known as                  their explanations. They claimed that they had
Taxpayer Compliance Officers (“TCO’s”) and                left early based on a purported misunderstand-
were responsible for collecting taxes owed as             ing of a “clean-up day” policy that allowed for
alcohol is imported into Texas. Herb Murillo              early departure with the express permission of
was their supervisor.                                     Murillo, if an employee had previously devot-
                                                          ed time to the upkeep of his duty station. Ful-
   Murillo received complaints from two TCO               ler was unsympathetic to the excuses and, after
employees under his supervision that some                 advice from Fox, terminated the five with
evening shift TCO’s were leaving their work-              approval from TABC Administrator Doyne
place early without permission. Murillo re-               Bailey.
ported the information to Santos Saldana, the
Program Administrator for the POE, who                                              II.
relayed the same to Buck Fuller, TABC’s Dir-                  Plaintiffs sued, alleging unlawful discrimina-
ector of Compliance. With the approval of                 tory firing and First Amendment retaliation,
Jeannene Fox, the Director of TABC’s Regu-                among other theories, seeking monetary dam-
latory Division, Fuller and Saldana instituted            ages, injunctive relief, attorney’s fees, and re-
an investigation pursuant to which Murillo be-            instatement with back pay. For purposes of
gan covertly monitoring when TCO’s left their             the Eleventh Amendment, they sought injunc-
posts.                                                    tive relief against defendants in their personal
                                                          capacities and damages in their official capaci-
   Near the beginning of the two-month in-                ties. The district court granted defendants’
                                                          motion for summary judgment, concluding,
                                                          especially, that the title VII claim was without
   *
                                                          merit and that the First Amendment retaliation
    Pursuant to 5TH CIR. R. 47.5, the court has de-
                                                          claim against defendants in their individual ca-
termined that this opinion should not be published
                                                          pacities was blocked by qualified immunity.
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.
                                                             We review a summary judgment de novo,
   1
    Plaintiffs sued the Texas Alcoholic Beverage          applying the standard required by Federal Rule
Commission (“TABC”) under the inaccurate name             of Civil Procedure 56(c). Norman v. Apache
“Texas Alcohol and Beverage Commission.”

                                                      2
Corp., 19 F.3d 1017, 1021 (5th Cir. 1994).               tiff must show a violation of a clearly estab-
We view evidence in the light most favorable             lished constitutional right: (1) that plaintiff suf-
to plaintiffs, the non-moving parties, and draw          fered an adverse employment decision; (2) that
all reasonable inferences in their favor. Reeves         his speech involved a matter of public concern;
v. Sanderson Plumbing Prods., Inc., 530 U.S.             (3) that his commenting on such matters out-
133, 134 (2000). Summary judgment is                     weighed the employer’s interest in promoting
proper if there is no genuine issue of material          efficiency; and (4) that the exercise of free
fact and defendants are entitled to judgment as          speech motivated the adverse employment
a matter of law.                                         action. Lukan v. N. Forest Indep. Sch. Dist.,
                                                         183 F.3d 342, 346 (5th Cir. 1999). If plaintiff
                       III.                              makes a showing of a plain violation of a con-
    Plaintiffs argue that defendants violated            stitution right, he further must prove that the
their First Amendment rights by terminating              violation was objectively unreasonable.
them on account of protected speech. A pub-
lic employee may not be discharged for exer-                 Plaintiffs say that they were fired not for
cising his right to free speech. Thompson v.             failing to stay on post for their whole work
City of Starkville, 901 F.2d 456, 460 (5th Cir.          period, but because of various complaints they
1990). The district court concluded that de-             had voiced concerning their treatment and the
fendants are protected by qualified immunity             quality of their work conditions. Though they
under the Eleventh Amendment.                            show that they suffered an adverse employ-
                                                         ment action by virtue of their termination, they
   The Eleventh Amendment prohibits federal              fail to satisfy other elements of a showing of
courts from exercising jurisdiction over suits           the violation of a clearly established constitu-
against non-consenting states. Seminole Tribe            tional right.
v. Florida, 517 U.S. 44, 72-73 (1996). For
Eleventh Amendment purposes, a suit against                  Plaintiffs repeat now that the matters they
a state agency such as the TABC is a suit                complained of largely concerned such things
against the state. See Pennhurst State School            as the delapidated conditions of their work
& Hosp. v. Halderman, 465 U.S. 98, 100                   areas, lack of computer training, and unfavor-
(1984). Nonetheless, a plaintiff may sue in-             able work schedules. They also made clear at
dividual state officials via 42 U.S.C. § 1983.           numerous times their distaste for the allegedly
Burns-Toole v. Byrne, 11 F.3d 1270, 1273 n.3             drunken and surly Murillo. These, however,
(5th Cir. 1994).                                         are not complaints made by plaintiffs in their
                                                         capacity as citizens, but are merely complaints
    Section 1983 actions against state officials         in their capacity as employees. See Connick v.
in their individual capacities are limited by the        Myers, 461 U.S. 138, 147-48 (1983).
doctrine of qualified immunity, id., which al-
lows government officials to exercise their of-              Public employees may not rely on the Con-
ficial duties with independence and without              stitution to redress personal grievances; suc-
fear of liability, so long as they do not act with       cessful First Amendment retaliation claims
plain incompetence or disregard of the law.              must be based on repression of speech made
See Malley v. Briggs, 475 U.S. 335, 341                  by employees speaking as in their role as a cit-
(1986). To defeat qualified immunity, a plain-           izen, rather than only as an employee. Id.


                                                     3
Matters of public concern include misuse of              ceived better treatment. The treatment of
public money or other corruption but generally           those employees, however, is not under “near-
do not encompass complaints about churlish               ly identical” circumstances, given their differ-
or incompetent management. See Marohnic v.               ent job descriptions, disciplinary rules, and in-
Walker, 800 F.2d 613, 616 (6th Cir. 1988).               dividual supervisors. See Okoye v. Univ. of
                                                         Tex. Health Sci. Ctr., 245 F.3d 507, 514 (5th
   As the district court observed, Jaime’s               Cir. 2001). And, as the district court ob-
complaints concerning improper tax stamp                 served, even had the plaintiffs shown a prima
procedures might be deemed to be relating to             facie case, they failed to provide evidence, in
public concerns of administrative efficiency             the form of affidavits, statistical data, or other-
and propriety, but Fox, who fired Jaime, was             wise, that the reason defendants offered for
unaware of those complaints, which thus can-             their termination was pretextual. Employees’
not be said to have motivated the termination.           subjective feelings and conclusional allegations
Likewise, Ugarte’s complaints to the Health              of bias cannot alone suffice to prove discrimi-
Department, inasmuch as they involved issues             natory intent.
relating to public matters of concern, were
equally unknown to Fox or anyone else in-                   AFFIRMED.
volved in his termination.

                       IV.
    Plaintiffs contend they were fired because
of their Mexican-American origins, in violation
of title VII. Under McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973), we
employ a three-part test to gauge whether a
plaintiff has successfully shown intentional dis-
crimination. First, he must establish a prima
facie case of discrimination. Second, the
employer may defeat a presumption of dis-
criminatory conduct by articulating a legiti-
mate and nondiscriminatory reason for its ac-
tion. Third, if the employer has articulated a
nondiscriminatory reason, the plaintiff may
show, by a preponderance of evidence, that the
suggested reason was a mere pretext for
discrimination.

    As the district court noted, plaintiffs’ prima
facie case fails because that they show no sim-
ilarly situated employees of other national ori-
gin who received better treat ment than did
they. Nonetheless, they allege that caucasian
members of other divisions of the TABC re-


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