                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
                     UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT                         July 15, 2003

                                                                  Charles R. Fulbruge III
                               No. 01-20366                               Clerk


                          MARILYN MURR DOYLE, MD

                                                     Plaintiff-Appellant,

                                     versus

                              HARRIS COUNTY,

                                                      Defendant-Appellee.


             Appeal from the United States District Court
                  for the Southern District of Texas
                            (H-98-CV-2201)


Before    SMITH   and   BARKSDALE,    Circuit   Judges,   and     DUPLANTIER,

District Judge*.

PER CURIAM:**

     This appeal is from a post-trial judgment as a matter of law,

vacating Dr. Marilyn Murr Doyle’s jury award on her claims under 42

U.S.C. § 1983 (free speech) and the Texas Whistleblower Act, TEX.

GOV’T CODE §§ 554.001-.009.     At issue is whether a reasonable jury

could     have   concluded   that   Dr.   Doyle’s   termination      from     her




     *
      District Judge of the Eastern District of Louisiana, sitting
by designation.
     **
      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this opinion should not be published and is not precedent except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.
governmental position was caused by her comments to a newspaper,

among others.   AFFIRMED.

                                 I.

     Dr. Doyle was an assistant medical examiner, as well as one of

three doctors considered senior pathologists, for the Harris County

Medical Examiner’s Office (HCMEO).     She began with the HCMEO in

1992.

     In 1996, Dr. Joye Carter was employed as HCMEO Chief Medical

Examiner to implement a number of policy changes for the Harris

County Commissioners Court.    These changes included phasing out

doctors’ full-time use of county cars, forbidding doctors from

performing outside autopsies on county time, and creating stricter

attendance and time-scheduling requirements.     These changes were

not welcomed by HCMEO doctors and staff.

     In September 1997, Dr. Carter employed Dr. Delbert Van Dusen

as a pathologist; Dr. Van Dusen did not have a Texas medical

license, although he was licensed elsewhere and was studying for

his Texas license.   The HCMEO staff discovered Dr. Van Dusen did

not have a license because senior pathologists were asked to sign

death certificates for autopsy work he performed.

     Dr. Doyle had disciplinary problems under Dr. Carter.       In

January 1997, approximately a year before the key dates for this

action, Dr. Carter verbally consulted Dr. Doyle concerning a number

of unplanned absences.   Some of these were due to Dr. Doyle’s son’s


                                 2
illness;   nevertheless,      unexplained   absenteeism    continued,     as

covered by a memorandum from Dr. Carter to Dr. Doyle on 15 May

1997.

      Dr. Doyle also had a number of verbal confrontations with

supervisors and colleagues.      On 6 November 1997, Dr. Doyle called

the Deputy Chief Medical Examiner, Dr. Tommy Brown, her direct

supervisor, a liar because she did not believe his response to a

question regarding distribution of undesirable autopsy cases.             As

a result of this confrontation, Dr. Brown recommended Dr. Doyle’s

termination.   Dr. Carter did not then terminate Dr. Doyle.

      Rudy Flores, court coordinator, also reported an incident with

Dr. Doyle on 8 December — Dr. Doyle would not testify at court on

short notice, although the scheduled doctor was sick.            Dr. Doyle

was verbally counseled by Drs. Carter and Brown, and Alex Conforti,

HCMEO chief administrative officer, on 18 December, regarding the

Flores incident, properly using the security card system, and other

issues.

      Around this time, Dr. Doyle attended a medical conference in

Atlanta where she learned Dr. Van Dusen had failed his pathologist

fellowship program; this caused her concern because she was signing

death certificates for Dr. Van Dusen.            Dr. Doyle shared this

information with other HCMEO doctors.

      On 5 January 1998, Drs. Carter and Brown met with Dr. Doyle

and   instructed   her   to   stop   gossiping   about   Dr.   Van   Dusen’s


                                      3
credentials.      Dr. Doyle complained about having to sign Dr. Van

Dusen’s   death    certificates   and,    according   to    her    testimony,

informed Dr. Carter that she believed Dr. Van Dusen’s performance

of autopsies was an illegal practice of medicine.            Dr. Doyle and

Dr. Patricia Moore, an associate medical examiner, testified that

Dr. Carter’s attitude toward Dr. Doyle changed after 5 January.

      On 7 January, Dr. Doyle refused to sign one of Dr. Van Dusen’s

death   certificates    and   autopsy    reports.     Two   days    later   (9

January), Dr. Doyle met with District Attorney Holmes to express

her concerns regarding Dr. Van Dusen. The District Attorney stated

he would maintain Dr. Doyle’s anonymity, unless it was necessary to

reveal her name in the course of prosecution.                   The District

Attorney informed Dr. Doyle that he thought Dr. Van Dusen might be

illegally practicing medicine and assigned Don Stricklin, the

District Attorney’s first assistant, to investigate.

      Stricklin later contacted Rose Garcia, an attorney for HCMEO

on   non-criminal    matters,   to   discuss   the    matter.       Stricklin

testified that, in the first meeting, he never mentioned Dr.

Doyle’s name.     He was not certain when her name first came up; but,

at some point, he did mention Dr. Doyle by name.            Garcia met with

Dr. Carter at least once a week.

      Around that time, Dr. Parungao, another senior pathologist,

also met with various judges and prosecutors regarding his similar

concerns about Dr. Van Dusen.        He told Dr. Brown, however, about



                                     4
those conversations with prosecutors.                     Dr. Brown informed Dr.

Carter of his conversation with Dr. Parungao; Dr. Carter replied

that she did not believe Dr. Van Dusen’s performing autopsies was

a problem because he was supervised.

      On 9 January (the day of Dr. Doyle’s first communication with

the   District    Attorney),         Dr.   Doyle    was    provided    a    follow-up

memorandum concerning her 5 January meeting with Drs. Carter and

Brown. In it, Dr. Carter stated:               “Before you criticize our junior

staff, remember the phrase ‘people in glass houses’”. Dr. Carter

then listed a number of Dr. Doyle’s past problems, including

missing photos from an autopsy report, the exhumation of a body

after    Dr.   Doyle’s   autopsy       left    certain     questions   unanswered,

attendance     problems,       and     verbal      altercations.           Dr.    Doyle

interpreted     the   “glass    houses”        comment     as   retaliatory       and   a

reference to her meeting with the District Attorney.

      The Houston Chronicle ran the first of a series of newspaper

articles on 16 January concerning the investigation of Dr. Van

Dusen.    Two days earlier, Dr. Doyle had granted an interview to a

Houston Chronicle reporter, after he agreed not to publish her

name.    The article quoted her, without attribution, as stating she

was concerned about signing Dr. Van Dusen’s death certificates.

The   article,    however,      attributed       Dr.     Doyle’s   quotes        to   two

pathologists.




                                           5
      Although the Houston Chronicle was delivered daily to Dr.

Carter’s office for the staff to read, Dr. Carter testified she

never read it.       Dr. Brown testified he believed Dr. Parungao had

spoken to the District Attorney and that conversation had caused

the investigation.

      On 12 February, Dr. Doyle again met with the District Attorney

and other county prosecutors.

      On 26 February, Dr. Doyle had another verbal confrontation

with Dr. Brown; she told Dr. Brown she would “write him up”.

Another HCMEO employee witnessed the confrontation.

      During this period, because of concerns with using a new

security card system and attendance, Dr. Carter conducted a number

of   time   sheet    analyses.       On   3   March,   Dr.   Doyle    received   a

memorandum from Conforti indicating she had not followed the

security/time sheet policies.

      On 16 or 17 March, Dr. Carter learned of three more incidents

involving     Dr.    Doyle.        Although    the   facts   are   contested,    a

pathologist assistant reported to Dr. Carter that Dr. Doyle called

the assistant a “tonto” and a “maid”.            Further, Dr. Carter learned

from the Chief Toxicologist that Dr. Doyle continued to disregard

standard operating procedures for testing.               Finally, on 17 March,

Dr. Carter     reviewed       an   autopsy    report   for   the   Smither   case,

prepared earlier by Dr. Doyle.            While performing that autopsy, Dr.

Doyle   had    not    followed      Dr.   Carter’s     instructions    on    which


                                          6
procedures to conduct. Further, the report had not been corrected,

contrary to Dr. Carter’s instructions more than eight months

before.   The report did not properly identify trace hair evidence,

which had confused the homicide investigation.

     On 18 March, with Dr. Brown present, Dr. Carter told Dr. Doyle

she could choose to either resign or be terminated and gave Dr.

Doyle a memorandum listing reasons for her discharge.                 These

included problems with the Smither autopsy, verbal altercations

with Dr. Brown and others, disregard for toxicology procedures,

insults to the pathology assistants, and failure to properly fill

out time-sheets and use the security card system. Also listed was:

“Your activities outside the autopsy suite continue to serve only

to divide the office”.

     Two days after Dr. Doyle was terminated, a newspaper article

revealed she was the whistleblower.       The next month (April 1998),

Dr. Carter   was   contacted   by   a   representative   from   the   Texas

Workforce Commission, concerning a claim filed by Dr. Doyle.

According to the report of that communication, Dr. Carter said:

           When all of these things [problems with
           autopsy,   failure    to   follow   toxicology
           procedures, insults to pathologist assistants]
           were brought to me from the prior week and
           weekend[,] on Tuesday I released the claimant
           [Dr. Doyle].   I knew whatever we did[,] it
           would hang over us like a whistleblower, but
           the letter to her predates any media action as
           do a lot of the general counselings to
           improve.




                                    7
     Dr. Doyle brought this action against Harris County in mid-

1998.   After a 14-day jury trial, in March and April 2000, the

County was found liable for violating Dr. Doyle’s First Amendment

right to free speech and the Texas Whistleblower Act.             Post-trial,

however,   the   district   court   granted     the    County’s   motion   for

judgment as a matter of law, holding the evidence insufficient for

a reasonable juror to find causation.

                                    II.

     A judgment as a mater of law (JMOL) is reviewed de novo.

E.g., Travis v. Bd. of Regents of Univ. of Texas Sys., 122 F.3d

259, 263 (5th Cir. 1997), cert. denied, 522 U.S. 1148 (1998).              If,

after reviewing all the evidence in the light most favorable to the

non-movant and drawing all reasonable inferences in the non-

movant’s favor, the evidence is insufficient for a reasonable jury

to find for the non-movant, we will affirm the JMOL.              E.g., Serna

v. City of San Antonio, 244 F.3d 479, 481 (5th Cir.), cert. denied,

534 U.S. 951 (2001).     In evaluating the evidence, we must review

the record as a whole.      Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133, 150 (2000).       The court should give credence to all

evidence   favoring   the    non-movant   and    all    uncontradicted     and

unimpeached evidence supporting the moving party, at least to the

extent it comes from disinterested witnesses.            Id. at 151.

     Because the standards for recovery for the free speech and

Whistleblower claims are similar, we will address them together.


                                     8
To recover under a First Amendment retaliation claim, brought

through § 1983, a party must:         (1) suffer an adverse employment

action; (2) show that the speech in question was a matter of public

concern; (3) show that the party’s interest in commenting on

matters of public concern outweighs her employer’s interest in

efficiency; and (4) show that the speech motivated the adverse

employment action.    Serna, 244 F.3d at 482.         For the fourth prong

(causation), the employee must show the protected speech was, as

noted, a “motivating” or “substantial” factor in the adverse

employment decision; but, if the employee satisfies this burden,

the employer is entitled to show that he would have made the

employment decision even if the employee had not engaged in the

protected activity.   Mt. Healthy City Sch. Dist. Board of Educ. v.

Doyle, 429 U.S. 274, 287 (1977); Click v. Copeland, 970 F.2d 106,

113 (5th   Cir.   1992)   (applying       standard   to   review   JMOL   after

plaintiff’s evidence).

     Along these lines, the Supreme Court has stated:

           A rule of causation which focuses solely on
           whether protected conduct played a part,
           “substantial” or otherwise, in a decision not
           to rehire, could place an employee in a better
           position as a result of the exercise of
           constitutionally protected conduct than he
           would have occupied had he done nothing....
           The constitutional principle at stake is
           sufficiently vindicated if ... an employee is
           placed in no worse a position than if he had
           not engaged in the conduct. A borderline or
           marginal candidate should not have the
           employment question resolved against him
           because of constitutionally protected conduct.

                                      9
           But that same candidate ought not be able, by
           engaging in such conduct, to prevent his
           employer from assessing his performance record
           and reaching a decision ..., simply because
           the protected conduct makes the employer more
           certain of the correctness of its decision.

Doyle, 429 U.S. at 286.

     To recover under the Texas Whistleblower Act, TEX. GOV’T CODE §§

554.001-.009 (TWA), a party must show:        (1) a good faith report of

a violation of law; (2) the report was made to an appropriate law

enforcement authority; and (3) a suspension or termination of

employment, or other adverse personnel action, as a result of the

report. TEX. GOV’T CODE § 554.002(a); Serna, 244 F.3d 479. “To show

causation, a public employee must demonstrate that ... the employee

suffered discriminatory conduct ... that would not have occurred

when it did if the employee had not reported the illegal conduct.”

City of Fort Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex. 2000).         Along

these lines, in determining this causation standard, the Texas

Supreme Court relied upon Doyle and cited the above-quoted section

of that opinion.   Texas Dep’t of Human Servs. of the State of Texas

v. Hinds, 904 S.W.2d 629, 636 (Tex. 1995).

     Circumstantial evidence may be used to show causation under

the TWA.   Such evidence includes:        (1) knowledge of the report of

illegal conduct; (2) a negative attitude toward the employee’s

report of the conduct; (3) failure to adhere to the employer’s

policies   regarding   employment        decisions;   (4)   discriminatory

treatment in comparison to similarly situated employees; and (5)

                                    10
evidence that the stated reason for the adverse employment action

was false.      Zimlich, 29 S.W.3d at 69 (Tex. 2000).             Causation,

however, cannot be found without some evidence.            Id. at 68.   Under

the TWA, the employee has the burden of proof; but, if the action

is filed within 90 days of termination, there is a rebuttable

presumption that it was caused by the report.               TEX. GOV’T CODE §

544.004(a).

     Generally, Dr. Doyle contends the discharge-reasons given by

Dr. Carter are pretextual.      On appeal, as in its post-trial JMOL

motion, the County contends the evidence was insufficient to

support finding causation.       (For the TWA claims, the County has

presented     evidence   sufficient    to   rebut    the    presumption   of

causation.    See Texas Natural Resources Conservation Commission v.

McDill, 914 S.W.2d 718, 723-24 (Tex. App. - Austin 1996, no writ)

(presumption rebutted when evidence offered showing no causation).)

     Dr.    Doyle   maintains   she   engaged   in   three    instances   of

protected activity:      (1) her report to Dr. Carter at the 5 January

1998 meeting; (2) her reports to the District Attorney, beginning

9 January; and (3) her 14 January interview with the Houston

Chronicle reporter.       Dr. Doyle failed, however, to brief, and

therefore waived, her First Amendment claims for any conduct but

the newspaper interview.




                                      11
                                   A.

     Dr. Doyle has failed to present evidence sufficient to show

Dr. Carter knew Dr. Doyle spoke with the Houston Chronicle.       “It is

axiomatic that a party cannot be ‘substantially motivated’ by a

circumstance of which that party is unaware.”        Tharling v. City of

Port Lavaca, 329 F.3d 422, 428 (5th Cir. 2003).

     As noted, Dr. Carter testified that she never read the 16

January article.       As Dr. Doyle correctly states, the jury is

entitled to disbelieve Dr. Carter.       Nevertheless, Dr. Doyle must

present some evidence that Dr. Carter knew, or believed, Dr. Doyle

was the source for the article.          For this purpose, Dr. Doyle

contends the jury could so infer for the following reasons:           the

District Attorney instructed Stricklin, his first assistant, to

investigate; Stricklin spoke with Garcia, the HCMEO attorney, about

an HCMEO doctor reporting that “she” perceived a problem with Dr.

Van Dusen; the newspaper article quoted two pathologists, one of

whom expressed concern about signing death certificates for Dr. Van

Dusen; and only senior pathologists sign death certificates.

     Combining these facts, Dr. Doyle claims that, because she was

the only female senior pathologist signing Dr. Van Dusen’s reports,

Dr. Carter knew the newspaper article quoted Dr. Doyle.       Dr. Doyle,

however,   has   not   presented   any   evidence,   circumstantial    or

otherwise, regarding the content of any discussions Dr. Carter had

with Garcia. Dr. Doyle’s theory is pure speculation. See Tharling,


                                   12
329   F.3d   at    428    (“notice     that   unnamed   witnesses   had   lodged

complaints ... is not tantamount to notice that [plaintiff] himself

made any allegations”).

      Dr. Doyle also generally claims that a jury could infer Dr.

Carter believed Dr. Doyle was the newspaper’s source because, prior

to the article, Dr. Doyle had stated to Dr. Carter that she (Dr.

Doyle) believed Dr. Van Dusen was illegally practicing medicine.

She supports this claim with the following two pieces of evidence.

      First,      Dr.    Doyle   and   two    colleagues   testified   that   Dr.

Carter’s attitude changed toward her after that 5 January meeting.

Although this change may be attributed to her report to Dr. Carter,

it predates the newspaper article and cannot be used to show Dr.

Doyle was terminated because of her subsequent report to the

newspaper.

      Second, Dr. Doyle contends that, on 16 January, in a staff

meeting, Dr. Carter criticized those who spoke to the media and,

while doing so, stared at Drs. Parungao and Doyle.              This one piece

of evidence does not create a sufficient conflict to present a jury

question.      See Zimlich, 29 S.W.3d at 69 (“[E]vidence that an

adverse employment action was preceded by a superior’s negative

attitude toward an employee’s report of illegal conduct is not

enough, standing alone, to show a causal connection between the two

events”); see also Reeves, 530 U.S. at 148 (discussing sufficient

evidence in a Title VII context: “[A]n employer would be entitled



                                         13
to judgment was a matter of law ... if the plaintiff created only

a weak issue of fact as to whether the employer’s reason was untrue

[i.e.,   pretextual]    and   there   was   abundant   and     uncontroverted

independent evidence that no discrimination had occurred”).

       In any event, as discussed below, faced with the overwhelming,

uncontested evidence of her numerous violations of office policy,

Dr. Doyle has failed to rebut that Dr. Carter would have terminated

her regardless of her report to the newspaper.

                                      B.

       As for the other two claimed instances of protected activity

(reports to Dr. Carter and to the District Attorney), reviewed only

in reference to the TWA, Dr. Doyle contends Dr. Carter knew of her

report to the District Attorney, using reasoning similar to that

above:   the District Attorney instructed Stricklin to investigate;

Stricklin spoke with Garcia; Garcia spoke with Dr. Carter; and,

therefore, it follows that Dr. Carter knew Dr. Doyle reported.

Again, Dr. Doyle has provided no evidence regarding the content of

any of these conversations. Moreover, although Stricklin stated he

mentioned Dr. Doyle’s name at some point, he noted it was not in

his initial discussions with Garcia and could not recall when he

did.

       Further,   Dr.   Doyle    asserts     Dr.   Carter’s     reasons   for

termination   are   pretext     because,    directly   after    meeting   with

Garcia, Dr. Carter ordered the time sheet comparisons.              Dr. Doyle



                                      14
contends this shows Dr. Carter attempted to set-up Dr. Doyle and

create a paper trail.

      First, without any evidence of the content of conversations

between Dr. Carter and Garcia, Dr. Doyle’s contention is mere

speculation.    Second, Dr. Doyle had ongoing problems in using her

security card and properly filling out her time-sheets; the time-

sheet comparison was new, but the motivating problems were not.

Third,   Dr.    Doyle    ignores   undisputed   evidence   that   she   was

terminated directly after Dr. Carter learned about problems with

the   Smither    autopsy,    abuses    of   toxicology   procedures,    and

inconsiderate comments made to Dr. Doyle’s colleagues.            None of

these events relate to the time-sheet comparison.

      In any event, Dr. Doyle also claims Dr. Carter retaliated

against her because Dr. Doyle told Dr. Carter that she believed Dr.

Van Dusen was practicing medicine illegally.        As stated above, she

also claims Dr. Carter could infer from this report that Dr. Doyle

was the source for the subsequent newspaper article.           Again, Dr.

Doyle has failed:       (1) to rebut the County’s uncontested evidence

of her many disciplinary problems; and (2) to show that she would

not have otherwise been terminated.

      First, Dr. Doyle claims the “people in glass houses” comment

in Dr. Carter’s 9 January memorandum referred to her recent meeting

with the District Attorney or Dr. Carter; and Dr. Carter wanted to

retaliate against her.       That statement, however, was followed by

examples of disciplinary problems and mistakes Dr. Doyle had made.

                                      15
It is evident from the context of the statement that Dr. Carter

merely wished to point out that Dr. Doyle should not criticize her

colleagues when she had so many problems herself.                     No other

reasonable inference can be made.

     Further, Dr. Doyle contends that Dr. Carter’s summarized

statement to the Texas Workforce Commission that she knew Dr.

Doyle’s termination would “hang over [us] like a whistleblower”

evinces    Dr.   Carter’s    discriminatory    intent.       As   noted,   this

statement was made after a news article had identified Dr. Doyle as

the whistleblower.        Dr. Carter’s statement shows no more than an

awareness    that   the     termination    could   be   perceived    as    being

motivated by whistle-blowing activities; a reasonable inference

cannot be made that Dr. Carter was motivated to terminate for those

reasons.

     Dr. Doyle also claims that one of the reasons listed in the

termination memorandum — “Your activities outside of the autopsy

suite continue to serve only to divide the office” — references her

report to the District Attorney and Dr. Carter.               In the light of

undisputed evidence of Dr. Carter’s continued discipline of Dr.

Doyle for other activities, there is insufficient evidence for a

reasonable jury to infer that Dr. Doyle’s termination would not

have occurred when it did, if not for reporting to Dr. Carter.

This is especially so considering:            Dr. Doyle was terminated 18

March, directly     after     three   other   events    in   which   Dr.   Doyle

violated HCMEO policy; and         Dr. Parungao, known by Dr. Brown to

                                      16
have possibly reported to the District Attorney, was not terminated

or otherwise disciplined for his report.

     The evidence Dr. Doyle presents does not create a sufficient

conflict,    and    judgment   as   a    matter     of   law   was,   therefore,

appropriate.       As quoted earlier:          “[T]he [marginal or borderline

employee] ought not be able, by engaging in [protected] conduct, to

prevent his employer from assessing his performance record and

reaching a[n adverse] decision ..., simply because the protected

conduct makes the employer more certain of the correctness of its

decision”.    Doyle, 429 U.S. at 286.

                                        III.

     For the foregoing reasons, the judgment is

                                                                  AFFIRMED.




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