           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         October 16, 2007

                                       No. 06-31112                   Charles R. Fulbruge III
                                                                              Clerk




LARRY W. DENDY, SR.,

                                                  Plaintiff-Appellant,
v.

HARRY LEE, Sheriff;
JAMES MILLER, Deputy Chief,
Individually and in Their Official Capacities,

                                                  Defendants-Appellees.




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                                No. 2:05-CV-1329




Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       Larry Dendy was fired from his position as a maintenance sergeant at the


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                   No. 06-31112

Jefferson Parish Correctional Center. Alleging that he was dismissed as retalia-
tion for his constitutionally protected speech, he sued Harry Lee, Sheriff of Jef-
ferson Parish, and James Miller, Deputy Chief of the Internal Affairs Division
(“IAD”) of the sheriff’s office, in their individual and official capacities, pursuant
to 28 U.S.C. § 1981. Lee and Miller moved for summary judgment, and Dendy
filed a Federal Rule of Civil Procedure 56(f) request for discovery.
      The district court denied Dendy’s request and granted summary judgment.
Because Dendy cannot show a causal connection between his allegedly protected
speech and the adverse employment decision, or that the district court abused
its discretion in denying the rule 56(f) request, we affirm.


                                          I.
      Dendy was a maintenance sergeant at the correctional center. He was
repeatedly questioned by the Federal Bureau of Investigation (“FBI”) and IAD
concerning intimate details of his lifeSSincluding why his home had been
searched for child pornography, whether he lived with his wife or his mistress,
whether a stash of illegal drugs belonged to him or his daughter (or his daugh-
ter’s boyfriend), and why he had admitted he had lied to the FBI. One particular
topic, however, concerned the public interest: allegedly corrupt bail bond practic-
es at the jail where Dendy worked (and the possibility that he surreptitiously
had slipped a bail bondsmen a key to the jail).
      The questioning began in December 2003 when a pair of FBI agents in-
terviewed Dendy, informing him that they had received information that he
would have details about the jail’s bail bond corruption. Dendy denied having
any such knowledge, then reported the questioning to the jail’s warden.
      On January 8, 2004, three agents questioned Dendy outside a grand jury




                                          2
                                        No. 06-31112

hearing at which he was scheduled to testify.1 They explained that they had
been advised that Dendy had given a jail key to a bail bondsman. Dendy stated
that that did not happen. Dendy again reported the questioning to the warden,
who referred Dendy to IAD. On January 9, Miller questioned Dendy, who again
denied giving a bondsman a key. Dendy passed a polygraph examination.
       On January 22, pursuant to a warrant, FBI agents searched Dendy’s
house for child pornography. The agents found pornographic images on Dendy’s
computer2 but determined that they had been inadvertently downloaded by his
daughter. During the search, the agents discovered marihuana (and Dendy’s
daughter’s boyfriend hiding beneath a bed). Dendy claimed the drugs were his
and that he had found them outside the jail and took them home. The agents in-
dicated that because it was not a large stash, if Dendy would give them informa-
tion about the bail bond investigation, the drug possession would not be pursued.
Dendy again denied he had any information about illegal bail bond practices.
       Later that day, the FBI told the sheriff’s office of the search. Miller ques-
tioned Dendy about it and asked for a list of what had been seized. Dendy at
first only produced a copy of the search warrant affidavit, not the search warrant
return, but, after being pressed, he produced a copy of the return. Miller saw
that marihuana was listed; Dendy admitted that the FBI had seized the drugs
and that he had told the agents the drugs were his.
       Dendy then told a different story to Miller: that he had lied to the FBI be-
cause he wanted to protect his daughter. According to Dendy, Miller and Lee ac-
cepted the revised version to be accurate and said that if he would tell the FBI
the truth, there would be “no consequences” for his employment.
       In that interview, according to Dendy, Miller also asked Dendy about the


       1
           Dendy, however, did not testify.
       2
        It is hard to tell from the record whether the images were child pornography; Dendy’s
wife appears to have informed the sheriff’s office that they were not.

                                              3
                                       No. 06-31112

bail bond investigation. Dendy stated that Miller “angrily demanded” to know
why he had told the FBI that IAD had questioned him about the key. Dendy had
not yet shared with the FBI that IAD had asked about the FBI’s questions.
       On January 23, Dendy went to the FBI and recanted his original story.
During that interview, Dendy claimed that the FBI agents, without prompting,
“angrily told him that it would have been better if he had not mentioned the FBI
interest in the jail key to Miller.” Dendy responded that he could not keep sec-
rets from his supervisors.
       On February 3, IAD gave Dendy another polygraph examination. The
examiner determined that Dendy was truthful in denying that he had supplied
a jail key to a bail bondsman but that his denial of prior knowledge of the mari-
huana was deceptive. Dendy could not explain why the examiner reached that
conclusion.3
       The next day, Dendy was given a third polygraph examination, concerning
whether he had either taken contraband, including marihuana, into the jail or
had brought contraband home from the jail. He failed the third exam: The ex-
aminer determined that he was again being deceptive. The examiner suggested,
however, that the result of the third exam was less reliable because Dendy may
have been “sensitized” by the results of the previous ones.
       After the third exam, Dendy admitted to IAD that he had stayed at his
house in Marrero with his wife and daughter only two or three nights a week
and that he actually lived in Hammond, Louisiana, with his girlfriend. He had
never updated his personnel file to reflect that fact.
       Dendy’s wife was also apparently questioned on February 4. She informed
IAD that Dendy’s daughter had confided to her that some drugs in the house be-
longed to the daughter and the daughter’s boyfriend but that the daughter did


       3
       Dendy says that he advised IAD that if he could rest, he would be able to pass the test.
IAD declined to re-administer the test.

                                              4
                                       No. 06-31112

not admit that all the drugs belonged to her. Dendy’s wife also confirmed that
Dendy spent most nights away from the Marrero house.
       On March 10, the FBI delivered a report to IAD detailing the search of
Dendy’s Marrero house. The report reaffirmed the FBI’s determination that the
pornography was downloaded inadvertently and that Dendy stayed at his Mar-
rero house only “sparingly.” The report also summarized the FBI’s interviews
with Dendy’s family regarding the drugs, noting that Dendy’s wife said that
Dendy used to smoke marihuana and that his daughter had stated that she
found drugs in Dendy’s shaving kit the previous year.4 The daughter’s boyfriend
reportedly stated that he also had seen marihuana in the shaving kit, which
Dendy usually took with him to work.
       Likewise, the report summarized what Dendy told the agents on the day
of the search: (1) that the “weed” on the premises was his; (2) that “he smoked
it to calm his nerves;” (3) that he found it outside the jail the previous year; and
(4) how much marihuana the agents would find. The FBI report also said that
when Dendy returned to the FBI to recant his statement that he owned the
drugs, he said the drugs’ real owner was his daughter’s boyfriend.5
       The FBI report also reflected that Dendy had spoken with IAD about the
key and the FBI investigation before January 22. When the FBI agents deliv-
ered the report to IAD on March 10, IAD asked the agents whether the FBI had


       4
        Dendy argues that his daughter’s statement should not be believed because she was
attempting to put all the blame on him, but that she admitted to her mother that at least some
drugs belonged to her.
       5
         There is a dispute whether Dendy told Miller on January 22 that he had lied to the
FBI because he wanted to protect his daughter but the drugs really belonged to his daughter’s
boyfriend, or whether Dendy told Miller the drugs belonged to his daughter. IAD’s case report
indicated that Dendy had said that the drugs were his daughter’s, but Dendy says he consis-
tently told IAD that the drugs were the boyfriend’s. In Dendy’s original brief to this court, he
states that Miller and Lee “accepted his [i.e. Dendy’s] explanation that his daughter owned”
the drugs, but in his reply brief he says that he never told IAD that the drugs were his daugh-
ter’s.

                                               5
                                    No. 06-31112

expressed dissatisfaction with Dendy concerning IAD’s questioning of Dendy.
The agents ignored the question.
      On March 11, Miller and Dendy met again; it is uncertain what exactly
was said. According to a report prepared by Miller dated April 1, “a 47-page
statement was obtained from” Dendy at that meeting. Miller stated in that re-
port regarding the meeting that “Dendy is still untruthful with his answers as
it relates to the marijuana.” Miller’s report also states that during that meeting,
Dendy “correct[ed] the comments in the FBI [report] that Deputy Chief Miller
or Lieutenant A. Ulmer had not spoken with or interviewed Sergeant Dendy
prior to 1/22/04 or had any idea that Sergeant Dendy was of interest in a federal
investigation.”
      On March 23, a case report was submitted by Lieutenant Ulmer of the
sheriff’s office to IAD detailing the information then known about Dendy. Ulmer
recommended that Dendy be found to have violated three provisions of the Sher-
iff’s Office’s Code of Conduct: (1) Article 29, “Truthfulness,” for lying to investiga-
tors; (2) Article 74, “Residence, Telephone, and Reporting Change” for failing to
report his change of address; and (3) Article 27, “Adherence to Law,” for drug
possession. Those recommendations were approved by the relevant actors in the
sheriff’s office, with Miller’s approval coming last, on March 29.
      On March 30, Ulmer supplemented the case report, noting that the United
States Attorney’s Office (“USAO”) had contacted the sheriff’s office to say that
the Department of Justice would not prosecute Dendy for marihuana possession
if IAD terminated Dendy’s employment. The date on which the USAO contacted
the sheriff’s office is uncertain, but an IAD document prepared by Miller stated
that the contact was after March 10.
      On April 1, Miller submitted a report concurring in Ulmer’s recommenda-
tion. Miller noted that “Dendy was interviewed five . . . times and has continu-
ously lied in each statement regarding the marijuana seized . . . .” Miller stated


                                          6
                                    No. 06-31112

that the information IAD had compiled “clearly show[ed] that Sergeant Dendy
was deceptive . . . .” Miller’s report also noted that Dendy’s family told the
agents that the marihuana was Dendy’s. Relying primarily on Dendy’s drugs
and liesSSand not on the failure to report his address changeSSMiller’s report
recommended that Dendy’s employment end immediately.
      In Miller’s report, however, there was again a brief mention of the FBI’s
questioning of Dendy about the key. Miller noted that “if the key is real, the FBI
should have given that information to [the sheriff’s office] so the integrity of the
security system is not breached” and that the FBI agents who turned over the
report about Dendy ignored IAD’s questions. No other part of Miller’s report
mentions the key or the bail bond investigation.
      On April 30, Lee sent a letter terminating Dendy’s employment. The ter-
mination letter listed the three violations of the Code of Conduct as grounds for
Dendy’s dismissal. Later, at Dendy’s hearing for unemployment benefits, Miller
stated that Dendy had been fired for “playing both ends against the middle.”
      Dendy sued, alleging that the Code of Conduct was just a pretext and that
he was really fired in retaliation for speech protected by the First Amendment.6
Lee and Miller moved for summary judgment. In response, Dendy filed a rule
56(f) request, contending that he needed certain discovery before he could appro-
priately respond to the motion for summary judgment. The district court denied
the request and granted summary judgment.


                                          II.
      We review a summary judgment de novo, applying the same standard as
did the district court. See, e.g., TIG Ins. Co. v. Sedgwick James, 276 F.3d 754,
759 (5th Cir. 2002). A summary judgment will be affirmed “only if ‘the plead-


      6
         Dendy also claimed that he was terminated without due process, but he abandoned
that claim before the district court ruled on the summary judgment motion.

                                           7
                                  No. 06-31112

ings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any,’ when viewed in the light most favorable to the non-
movant, ‘show that there is no genuine issue of material fact.’” Id. (quoting An-
derson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). Although the “court
must draw all justifiable inferences in favor of the non-moving party,” a genuine
dispute about a material fact exists only “if the evidence is such that a reason-
able jury could return a verdict for the non-moving party.” Id.
      “[A] complete failure of proof concerning an essential element of the non-
moving party’s case necessarily renders all other facts immaterial” and “man-
dates the entry of summary judgment” for the moving party. Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). “Once the moving party has initially shown
‘that there is an absence of evidence to support the non-moving party’s cause,’
the non-movant must come forward with ‘specific facts’ showing a genuine issue
of material fact for trial.” TIG, 276 F.3d at 759 (quoting Celotex, 477 U.S. at
325). “Conclusional allegations and denials, speculation, improbable inferences,
unsubstantiated assertions, and legalistic argumentation do not adequately sub-
stitute for specific facts showing a genuine issue for trial.” Id. We review the de-
nial of a rule 56(f) request for abuse of discretion. See, e.g., Adams v. Travelers
Indem. Co., 465 F.3d 156, 161 (5th Cir. 2006).


                                        III.
      To establish First Amendment retaliation, Dendy must show that (1) he
suffered an “adverse employment decision;” (2) his speech involved “a matter of
public concern;” (3) his “interest in commenting on matters of public concern . . .
outweigh[s] the Defendant’s interest in promoting efficiency;” and (4) his “speech
motivated the adverse employment decision.” Beattie v. Madison County Sch.
Dist., 254 F.3d 595, 601 (5th Cir. 2001). If these four elements are met, “the bur-
den shifts to defendants to show by a preponderance of the evidence that they

                                         8
                                        No. 06-31112

would have come to the same conclusion in the absence of the protected conduct.”
Id. (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287
(1977)).
       The district court concludedSSand the parties do not disputeSSthat Dendy
suffered an adverse employment action. The district court likewise decided that
the bail bond issue was a matter of public concern potentially protected by the
First Amendment.7 The court found it unnecessary to balance Dendy’s interest
against that of the sheriff’s office, because the court ruled there was no genuine
issue of material fact as to whether Dendy’s speech motivated or caused the
adverse employment decision. Dendy argues that that ruling on the causation
element was error.
       Other than the time line presented above8 and a few instances in which
the FBI and IAD allegedly expressed irritation regarding Dendy’s communica-
tions with investigators about the respective investigationsSSwhich evidence is
not enough to withstand summary judgment9SSDendy proffers two pieces of evi-
dence to demonstrate that his disclosures to the FBI and IAD about the bail
bond investigations motivated the termination of his employment.10 First, he


       7
         Whether this holding is correct in light of Garcetti v. Ceballos, 126 S. Ct. 1951 (2006),
is not before us, and we express no opinion.
       8
          That evidence, as a matter of law, is insufficient standing alone to support Dendy's
claim. Beattie, 254 F.3d at 605 (“Timing alone does not create an inference that termination
is retaliatory.”).
       9
          Although occasional bureaucratic infighting may have occurred, Dendy has failed to
produce any specific evidence from which a reasonable jury could find that any infighting led
to his termination. Any connection between the inter-agency irritation and Dendy’s firing is
far too speculative, especially given that each instance of inter-agency tension occurred in situ-
ations specifically focusing on Dendy’s guilt of serious offenses, with the inter-agency feuding
emergingSSat mostSSas a side-topic.
       10
         Dendy’s brief is not pellucid as to the reasons IAD and the FBI would want to retali-
ate against him for his speech. Dendy argues that Miller “had ample reason to retaliate be-
cause Dendy had blown the whistle on [Miller’s] premature interest in the bail bond investiga-
                                                                                 (continued...)

                                                9
                                        No. 06-31112

argues that Miller’s phrase during Dendy’s unemployment-benefits hear-
ingSSthat Dendy was fired for “playing both ends against the middle”SSmeans
that the real reason he was dismissed was his respective disclosures to the FBI
and IAD about bail-bond practices. Dendy goes so far as characterize Miller’s
statement as an admission of causation.
       Second, Dendy relies on the statement of the USAO that the drug charges
would be dropped if Dendy were fired. From this, Dendy contends the federal
government wanted to retaliate against him and convinced the sheriff’s office to
comply with the government’s wishes.
       Regarding Dendy’s first proferred evidence, no reasonable jury could con-
clude, from Miller’s statement that Dendy was fired for “playing both ends
against the middle,” that he was dismissed for making disclosures to the FBI

       10
            (...continued)
tion . . . well before Miller . . . had an independent interest in any investigation into Dendy on
January 22.” Dendy also avers that “Miller did not re-opened [sic] the marijuana investigation
until March 10, when the FBI delivered its . . . report in which Miller learned for the first time
that Dendy had spoken to the FBI about Miller’s bail bond/key questions before January 22
. . . . It was that bald statement that apparently jumped started the investigation . . . .”

          Dendy contends that “Miller [was] very concerned that he [i.e. Miller] not be identified
. . . as having spoken to Dendy about the bail bond investigation or known that he was of inter-
est in connection with that investigation prior to January 22.” The only reason Dendy offers
for why Miller was concerned that the FBI knew that Miller was interested in Dendy’s involve-
ment in potential corruption was that “Dendy had blown the whistle on [Miller’s] contacting
a potential grand jury witness,” presumably that potential witness being Dendy.

       This scanty explanation, however, is significantly more substantial than is the reason
Dendy offers for why the FBI would want to retaliate against him: Dendy’s brief explains the
FBI’s motive as simply “frustration.” Dendy argued that the FBI was upset that perhaps he
was “leaking” information to potential defendants within the sheriff’s office and that Miller
“perhaps in a little hot water with ‘the feds’, was only too happy to give [Dendy] up.”

        In his briefs to this court, Dendy’s explanation for why the USAO wanted to retaliate
was that it was “payback time” because Dendy “had both appeared not to cooperate by provid-
ing information . . . and had disclosed the FBI interviews . . . .” We are tempted to say that
no reasonable jury could find that the causation element of Dendy’s First Amendment claim
has been met because Dendy has failed to explain the alleged retaliatory animus in more than
a conclusional manner. Given, however, that Dendy cannot satisfy the causation element for
other reasons, we need not address this matter.

                                               10
                                       No. 06-31112

and IAD about the bail bond investigation. Indeed, Dendy offers no support for
his idiosyncratic interpretation of Miller’s remark: He merely states in conclu-
sional terms that the remark must refer to the bail bond issue. But this single
statement is light years from being sufficient evidence to convince a reasonable
jury that Dendy was fired for comments relating to jail corruption. Given the
overwhelming evidence that Dendy was telling the FBI one thing regarding the
drugs and IAD another, the only reasonable way to interpret Miller’s statement
is to construe it to mean that Dendy’s story changed depending on who was ask-
ing the questions.
          Dendy’s second argument fares no better. He contends that because the
FBI was upset at him for sharing the fact that the FBI had questioned him with
IAD, the USAO contacted the sheriff’s department to say that no charges would
be filed against Dendy if he were fired. Dendy, however, has produced no evi-
dence that the USAO had any knowledge whatsoever of his communications to
the FBI or IAD about the two respective investigations. Without at least some
minimal additional evidence connecting the USAO with Dendy’s allegedly pro-
tected speech, no reasonable jury could conclude that he has established retalia-
tion.11
          Because no reasonable jury could find, on the basis of the evidence to
which Dendy points, that his speech motivated the decision to terminate his em-
ployment, summary judgment is proper, and we need not consider whetherSSif
Dendy could have shown causationSSLee and Miller produced sufficient indepen-
dent evidence to support Dendy’s dismissal.


          11
         Because Dendy has failed to connect the statement from the USAO with his allegedly
protected speech, we need not address whether a reasonable jury could conclude that the FBI’s
alleged retaliatory animus can be imputed to Miller and Lee, who received the USAO’s recom-
mendation but ultimately were responsible for the decision to terminate. See Beattie, 254 F.3d
at 600 (“To prevail on her First Amendment retaliation claim, Beattie must show either that
the school board acted in retaliation or that the improper motives of another actor can be im-
puted to it.”).

                                             11
                                        No. 06-31112

                                              IV.
       The district court did not abuse its discretion in denying Dendy’s rule 56(f)
request for additional discovery. The rule provides that “[s]hould it appear from
the affidavits of a party opposing the motion [for summary judgment] that the
party cannot . . . present by affidavit facts essential to justify the party’s opposi-
tion, the court may refuse the application for judgment or may order a continu-
ance . . . as is just.” In short, “Rule 56(f) allows for further discovery to safe-
guard non-moving parties from summary judgment motions that they cannot ad-
equately oppose.” Culwell v. City of Fort Worth, 468 F.3d 868, 871 (5th Cir.
2006). “To obtain a continuance of a motion for summary judgment, a party
must ‘specifically explain both why it is currently unable to present evidence
creating a genuine issue of fact and how a continuance would enable the party
to present such evidence.’” Access Telecom, Inc. v. MCI Telecomms. Corp., 197
F.3d 694, 719 (5th Cir. 1999) (quoting Liquid Drill, Inc. v. Turnkey Exploration,
Inc., 48 F.3d 927, 930 (5th Cir. 1995)).
       Dendy argues that the district court erred in denying him the production
of certain documents from the FBI, a deposition of the Assistant United States
Attorney who contacted the sheriff’s department about not pressing drug charges
if Dendy were fired, the polygraph results, a tape recording of his unemployment
benefits hearing, and other like evidence. But nowhere does Dendy explain why
the denial of the rule 56(f) request was an abuse of discretion. We have exam-
ined Dendy’s request to the district court, and at no point did he explain specifi-
cally why he had been unable to obtain the materials during the time set for dis-
covery.12 Given the inadequacy of the rule 56(f) request, the denial was not an


       12
           It also does not appear that Dendy attached an affidavit to his request. We held in
Access Telecom that, consistent with the rule’s explicit language, “[u]nder [rule] 56(f), the ap-
propriate way to raise the issue is for the party opposing the motion for summary judgment
to file a motion for a continuance with an attached affidavit stating why the party cannot pre-
                                                                                  (continued...)

                                              12
                                        No. 06-31112

abuse of discretion.13
       For the foregoing reasons, the judgment is AFFIRMED.




       12
         (...continued)
sent by affidavit facts essential to justify the party’s opposition.” Access Telecom, 197 F.3d at
719.
       13
         We recognize that the district court relied on a different reason to deny the rule 56(f)
request, but we may affirm on any basis supported by the record. See, e.g., LLEH, Inc. v. Wich-
ita County, 289 F.3d 358, 364 (5th Cir. 2002).

                                               13
