     Case: 16-60021      Document: 00513604461         Page: 1    Date Filed: 07/22/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 16-60021                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                            July 22, 2016
LINDALEE SLEGELMILCH,                                                      Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

PEARL RIVER COUNTY HOSPITAL AND NURSING HOME; STEVE
VAUGHAN, in his individual capacity and in his official capacity as Chief
Executive Officer; SHERRY GRADY, in her official capacity as Human
Resources Director,

              Defendants - Appellees




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:14-CV-409


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant Lindalee Slegelmilch appeals the district court’s
grant of summary judgment to Defendants–Appellees on two claims brought
under 42 U.S.C. § 1983—a First Amendment retaliation claim and a due



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                       No. 16-60021
process claim. As to her First Amendment retaliation claim, we agree with the
district court that the actions taken by Defendants would not chill a person of
ordinary firmness. As to Slegelmilch’s due process claim that Defendants
failed to provide her with a name-clearing hearing, we agree with the district
court that Slegelmilch failed to introduce any evidence with respect to a
necessary element of that claim, namely that the charges against her were
made public. Accordingly, we AFFIRM the judgment of the district court.
             I. FACTUAL AND PROCEDURAL BACKGROUND
       Plaintiff–Appellant Lindalee Slegelmilch was formerly employed as a
therapist by Defendant–Appellee Pearl River County Hospital and Nursing
Home (the Hospital). At all relevant times, Defendant–Appellee Steve Vaughn
was the chief executive officer and administrator of the Hospital, and
Defendant–Appellee Sherry Grady was the human resources director of the
Hospital. The Hospital terminated Slegelmilch’s employment on October 29,
2013. 1 As its reason for termination, the Hospital stated that Slegelmilch’s
work performance had “not met expectations” because she had not entered
original signatures in individual patient charts consistent with Medicare
policies and procedures. On October 29, 2013, Slegelmilch sent a letter to
Grady requesting a meeting with Vaughn. Following Slegelmilch’s meeting
with Vaughn in the following month, she sent a letter on December 17, 2013,
to the President of the Board of Directors of the Hospital requesting a meeting
with the Hospital’s board.          On December 23, 2013, Vaughn sent a letter
informing Slegelmilch that he was upholding the decision to terminate her
employment. 2


       1  Slegelmilch claims that she was not notified of her termination at that time and that
she believed she had been placed on administrative leave.
        2 Slegelmilch claimed she never received this letter. She further asserted in the

district court, and continues to assert on appeal, that she did not learn of her termination
until January 2014.
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       On January 27, 2014, Slegelmilch sent a letter to Carrie Rowden, the
Executive Director of the Mississippi State Board of Nursing Home
Administrators (BONHA), alleging that Grady, Vaughn, and two other
Hospital employees engaged in “unethical behavior” and “unethical conduct.”
Vaughn subsequently sent a complaint letter to the Mississippi Board of
Examiners for Social Workers and Marriage and Family Therapists (the
Board). As the district court noted, Vaughn alleged, inter alia, the following in
the complaint letter:
       (1) that [Slegelmilch] “falsified Medicare documentation by using
           a template with a copied signature on the progress notes
           instead of signing with an original or electronic signature as
           required by CMS rules.”
       (2) that [Slegelmilch] violated Board rules 2.1(A)3.g “Conduct
           involving dishonesty, fraud, or attempted deception[”]; and
           3.1(b)(2) “Engaging in dishonorable, unethical,                or
           unprofessional conduct of a character likely to deceive, defraud,
           or harm the public in the course of professional services or
           activities.[”]
       (3) that [Slegelmilch] was “involved in conduct involving
           dishonesty, fraud, or attempted deception by her actions” and
           was terminated “after a thorough investigation of the
           allegation regarding fraudulent violation of signature
           requirements.” 3
       Slegelmilch filed the instant suit on October 24, 2014, asserting two
causes of action under 42 U.S.C. § 1983. Specifically, she alleged that Vaughn
filed his complaint with the Board in retaliation for her statements to the
BONHA about Vaughn (and others) in violation of her First Amendment
rights. She further alleged that Defendants violated her due process rights by
failing to provide her with a name-clearing hearing as to her termination.


       3 In response to these allegations, the Board sent Vaughn a letter on November 20,
2015, stating that Slegelmilch “failed to meet organizational policy” and that the Board had
“conclude[d] its investigation of th[e] complaint with a letter of advisement to the licensee
pursuant to Section 73-53-23-6 of the MS Code.”
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      The district court granted summary judgment to Defendants on
December 14, 2015.         The court rejected Slegelmilch’s First Amendment
retaliation claim, explaining that “[t]he crux of Plaintiff’s claim is that the fact
alone of a complaint including allegedly false accusations damaged her, which
is not enough” to make out “an actionable First Amendment claim pursuant to
§ 1983.” The court also rejected Slegelmilch’s due process claim. The court
noted that, to succeed on such a claim, a plaintiff must show that the charges
against her were made public and held that Slegelmilch had introduced “no
admissible evidence [showing] that the Hospital made public any of the
charges against [her].” 4      Slegelmilch timely appealed the district court’s
judgment on January 11, 2016.
                           II. STANDARD OF REVIEW
      This court “review[s] a district court’s grant of summary judgment de
novo, applying the same standard on appeal as that applied below.” Rogers v.
Bromac Title Servs., L.L.C., 755 F.3d 347, 350 (5th Cir. 2014). Summary
judgment is proper “if the movant shows 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). “A genuine dispute as to a material fact exists ‘if the
evidence is such that a reasonable jury could return a verdict for the
nonmoving party.’”      Rogers, 755 F.3d at 350 (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). “[T]his court construes ‘all facts and
inferences in the light most favorable to the nonmoving party.’” McFaul v.
Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012) (quoting Dillon v. Rogers, 596
F.3d 260, 266 (5th Cir. 2010)). However, a plaintiff’s “burden is not satisfied
with ‘some metaphysical doubt as to the material facts,’ by ‘conclusory


      4  Slegelmilch also brought two state law claims, and the district court declined to
exercise supplemental jurisdiction over those claims after dismissing the § 1983 claims.
Those state law claims are not at issue in this appeal
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                                   No. 16-60021
allegations,’ by ‘unsubstantiated assertions,’ or by only a ‘scintilla’ of evidence.”
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (internal citations
omitted) (per curiam). “Conclusional allegations and denials, speculation, and
unsupported assertions are insufficient to avoid summary judgment.” Sanches
v. Carrollton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156, 165 (5th Cir.
2011).
                         III. SECTION 1983 CLAIMS
      Slegelmilch argues on appeal that the district court improperly granted
summary judgment to Defendants on the two claims she asserted under
42 U.S.C. § 1983.     We address her First Amendment retaliation and due
process claims in turn. On both claims, we conclude that the district court
committed no error in granting summary judgment to Defendants.
A. First Amendment Retaliation Claim
      Slegelmilch claimed that Vaughn retaliated against her in violation of
her First Amendment rights by filing a complaint against her with the Board
in response to her complaint against Vaughn (and others) to the BONHA.
Slegelmilch conceded in the district court and concedes on appeal that she
cannot state a First Amendment retaliation claim based on her public
employment, as she was not an employee of the Hospital at the time she filed
her complaint with the BONHA. Accordingly, we evaluate her claim under the
requirements applicable to private citizens.        To succeed on such a First
Amendment retaliation claim, a plaintiff must establish that
      (1) [she] [was] engaged in constitutionally protected activity,
      (2) the defendants’ actions caused [her] to suffer an injury that
      would chill a person of ordinary firmness from continuing to
      engage in that activity, and (3) the defendants’ adverse actions
      were substantially motivated against the plaintiff[’s] exercise of
      constitutionally protected conduct.
Culbertson v. Lykos, 790 F.3d 608, 618 (5th Cir. 2015) (quoting Keenan v.
Tejeda, 290 F.3d 252, 258 (5th Cir. 2002)). Assuming, as did the district court,
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that Slegelmilch was engaged in a constitutionally protected activity when she
made her statements to the BONHA, we agree with the district court that,
under Fifth Circuit precedent, the actions taken by Defendants would not chill
a person of ordinary firmness. Therefore, the district court properly granted
summary judgment to Defendants on Slegelmilch’s First Amendment
retaliation claim.
      This court has previously stated that “criticism, an investigation (or an
attempt to start one), and false accusations [are] all harms that, while they
may chill speech, are not actionable under our First Amendment retaliation
jurisprudence.”      Colson v. Grohman, 174 F.3d 498, 512 (5th Cir. 1999).
Applying Colson to a private citizen retaliation claim under the First
Amendment, this court explained “that retaliatory criticisms, investigations,
and false accusations that do not lead to some more tangible adverse action are
not actionable under § 1983.” Matherne v. Larpenter, No. 99-30746, 2000 WL
729066, at *3 (5th Cir. May 8, 2000) (quoting Colson, 174 F.3d at 513). In an
effort to show that she suffered “more tangible adverse action,” Slegelmilch
alleged that, because of Vaughn’s retaliatory statements, she (1) was subjected
to an investigation, (2) was forced to defend herself in this investigation, (3)
has suffered “substantial stress and anxiety,” (4) “has been unable to find new
employment,” and (5) has had her “lifelong career . . . tainted and destroyed.”
The district court correctly rejected each of these allegations, holding that
Slegelmilch failed to show anything sufficiently tangible to support a First
Amendment retaliation claim.
      As to the first two alleged adverse actions, the district court was correct
that criticisms, investigations, and false accusations are not enough to support
a First Amendment retaliation claim, as this court has previously recognized
in Colson and Matherne.       Slegelmilch urges us to disregard Colson and
Matherne as inapposite.         For example, she argues that Colson is
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distinguishable because, in that case, individuals attempted to recall a city
councilman but were unsuccessful in “instigat[ing] a recall election.” 174 F.3d
at 500. Slegelmilch argues that, instead of Colson, this court should look to
Smith v. Winter, 782 F.2d 508 (5th Cir. 1986), in which a recall election was
successfully initiated.       However, the fact that the attempt to hold a recall
election failed does not render Colson inapposite to the instant case, and we
decline to hold, as Slegelmilch apparently urges, that recall elections and
investigations are equivalent. Indeed, the reason Colson controls our decision
here is not because a recall election failed or succeeded but because the plaintiff
in Colson was investigated by an assistant district attorney following
allegations of criminal conduct. 5 174 F.3d at 500. The investigation in Colson
was at least as intrusive as the one conducted by the Board here. Accordingly,
we decline Slegelmilch’s invitation to disregard Colson and Matherne and,
instead, agree with the district court that the investigation conducted by the
Board into Slegelmilch’s alleged wrongdoing is insufficient to support a First
Amendment retaliation claim. 6
       With respect to her allegations of stress and anxiety, the district court
correctly noted that, under Slegelmilch’s theory, anyone who suffers stress as
a result of government conduct could state a constitutional violation. However,
because the “Constitution does not provide an independent right to be free from



       5  For the first time in her reply brief, Slegelmilch raises the argument that Colson is
distinguishable from the instant case because she was forced to hire legal counsel to defend
herself. This argument, however, is waived, as Slegelmilch failed to raise it in her opening
brief. Tradewinds Envtl. Restoration, Inc. v. St. Tammany Park, LLC, 578 F.3d 255, 260 (5th
Cir. 2009).
        6 We similarly find that Slegelmilch cannot rely on Bantam Books, Inc. v. Sullivan,

372 U.S. 58 (1963), to show that the investigation in connection with Vaughn’s complaint was
sufficient to support a First Amendment retaliation claim. In Bantam, a public commission
without authority to impose punishment on its own sent numerous notices to stop the sale of
certain publications, which were followed by police visits and threats of criminal prosecution.
Id. at 68. There is no evidence that any such conduct occurred here.
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emotional distress,” Slegelmilch cannot rely on her stress to support her First
Amendment retaliation claim. Flores v. City of Palacios, 381 F.3d 391, 401 n.8
(5th Cir. 2004). Finally, Slegelmilch offers only conclusory allegations, with no
supporting evidence, that Vaughn’s filing of a complaint with the Board
harmed her employment prospects or “tainted” her career. As discussed in
greater detail in connection with her alleged due process violation below, there
is no evidence that the Board ever publicized the complaint filed against
Slegelmilch. Thus, she has failed to introduce any evidence that the alleged
violation of her First Amendment rights caused harm to her career or
employment prospects. Because Slegelmilch has not shown a genuine dispute
of material fact as to whether “the defendants’ actions caused [her] to suffer an
injury that would chill a person of ordinary firmness from continuing to engage
in [constitutionally protected] activity,” the district court committed no error
in granting summary judgment to Defendants on Slegelmilch’s First
Amendment retaliation claim. Culbertson, 790 F.3d at 618 (quoting Keenan,
290 F.3d at 258). 7
B. Due Process Claim
       Slegelmilch also claims that her due process rights were violated when
Defendants failed to provide her with a name-clearing hearing in connection
with her termination.         “[A] constitutionally protected liberty interest is
implicated only if an employee is discharged in a manner that creates a false
and defamatory impression about him and thus stigmatizes him and forecloses
him from other employment opportunities.” Hughes v. City of Garland, 204
F.3d 223, 226 (5th Cir. 2000) (quoting White v. Thomas, 660 F.2d 680, 684 (5th


       7 Because we agree with the district court that Slegelmilch created no genuine dispute
of material fact as to whether Defendants’ actions chilled her from engaging in protected
activity, we need not and do not consider whether “the defendants’ adverse actions were
substantially motivated against the plaintiff[’s] exercise of constitutionally protected
conduct.” Culbertson, 790 F.3d at 618 (quoting Keenan, 290 F.3d at 258).
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Cir. 1981)). To prevail on her § 1983 claim that the Hospital “infringed upon a
cognizable liberty interest by denying” her a hearing to clear her name,
Slegelmilch must show
      (1) that she was discharged; (2) that stigmatizing charges were
      made against her in connection with the discharge; (3) that the
      charges were false; (4) that she was not provided notice or an
      opportunity to be heard prior to her discharge; (5) that the charges
      were made public; (6) that she requested a hearing to clear her
      name; and (7) that the employer refused her request for a hearing.
Id. at 226. There is no dispute that Slegelmilch was discharged, that the
charges made against her concerned the same conduct that was the basis of
her discharge, or that she was not provided with a name-clearing hearing.
However, even maintaining the district court’s assumption that the allegations
in the complaint to the Board were false, we find that the district court
correctly concluded that “there is . . . no admissible evidence that the Hospital
made public any of the charges against” Slegelmilch.
      Slegelmilch argues that the act of submitting a complaint to the Board
itself constitutes public disclosure. In support of this argument, Slegelmilch
points to Mississippi law, which provides that “[i]t is the policy of this state
that public records shall be available for inspection by any person unless
otherwise provided by this chapter.” Miss. Code Ann. § 25-61-2; see also Miss.
Code Ann. § 25-61-5 (providing members of the public a right to inspect public
records). She further argues that complaints filed with the Board do not fall
within the limited exceptions to this policy.       While these provisions of
Mississippi law may support Slegelmilch’s argument that there was a public
disclosure here, she is not relieved of her burden to produce more than
“conclusory allegations” and “unsubstantiated assertions” in order to
withstand a motion for summary judgment. Little, 37 F.3d at 1075.
      As the district court noted, “there is no evidence that the Board has taken
any action against her license or that it has ever disclosed the Board Complaint
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to potential employers or to anyone else for that matter.” The district court
held, based on this lack of evidence, that Slegelmilch’s “unsupported assertion
that she lost job opportunities as a result of the Board Complaint . . . is
insufficient to meet the public disclosure prong.” We agree. As we have held
before, “[c]onclusional allegations and denials, speculation, and unsupported
assertions are insufficient to avoid summary judgment.” Sanches, 647 F.3d at
165. Accordingly, we find no error in the district court’s grant of summary
judgment to Defendants on Slegelmilch’s due process claim. 8
                                   IV. CONCLUSION
       For the foregoing reasons, we AFFIRM the judgment of the district court.




       8 Although not explicitly challenged by the parties, we note that we find no error in
the district court’s decision to decline to exercise supplemental jurisdiction over Slegelmilch’s
state law claims.
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