IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

____________________

No. 99-20111 Summary Calendar ____________________

B DELL FELDER, PhD,

Plaintiff-Appellant,

v.

WILLIAM P HOBBY,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (H-98-CV-17) _________________________________________________________________

October 20, 1999

Before KING, Chief Judge, and POLITZ and DENNIS, Circuit Judges.

PER CURIAM:*

Plaintiff-appellant B. Dell Felder appeals the district

court’s award of summary judgment based on qualified immunity to

defendant-appellee William P. Hobby in this suit alleging civil

rights violations under § 1983. We affirm.

I.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

1 Plaintiff-appellant B. Dell Felder (“Felder”), a tenured faculty

member of the University of Houston, served as Vice-Chancellor

for the University of Houston System (the “System”) from 1990

until January 1996. As Vice-Chancellor, Felder oversaw the

System’s public television station. She was a strong advocate

for a multi-million dollar expansion of the station’s facilities

to be used for distance learning, a program that the majority of

the University of Houston faculty members vehemently opposed.

Defendant-appellee William P. Hobby (“Hobby”) became the System’s

Chancellor on September 1, 1995. On January 5, 1996, Hobby

removed Felder from the Vice-Chancellor position. Felder alleges

that Hobby, responding to pressure from the faculty, justified

her discharge by falsely accusing her of withholding information

from him regarding a 1991 Attorney General Opinion. That opinion

held that state funds could not be used for the proposed

expansion of the television facilities. Felder alleges further

that Hobby relayed this accusation to members of the System’s

Board of Regents, the University community, and the media. An

article appearing in the Houston Press stated, “Felder had not

made the regents aware of [the Attorney General’s] opinion or the

fact that UH campus presidents had been pressured by Felder into

supporting the allocation.”

Felder submitted her letter of resignation, effective January 31,

1997, from the University of Houston faculty.

Felder filed this § 1983 action alleging that Hobby had removed her

from the vice-chancellor position in retaliation for her exercise

2 of First Amendment rights, in deprivation of her “liberty

interest” in her reputation without due process and in

deprivation of her property interests in both her administrative

and faculty positions without due process. Hobby filed motions

for a Rule 7 Reply (“Reply”) to his affirmative defense of

qualified immunity and for a stay of discovery pending a decision

on that defense. Both were granted. After receiving Felder’s

Reply, Hobby filed a motion for summary judgment on the basis of

qualified immunity. The district court granted the motion,

concluding that Hobby had not violated clearly established

constitutional rights when he removed Felder and that his conduct

was not objectively unreasonable. Felder’s motion for

reconsideration was denied, and she timely filed this appeal.

II.

We review a district court’s grant of a motion for summary

judgment de novo, applying the same standards as the district

court. See Ellison v. Connor,

(5th Cir. 1998);

Norman v. Apache Corp.,

(5th Cir. 1994).

After consulting applicable law to ascertain the material factual

issues, we consider evidence bearing on those issues, viewing the

facts and inferences therefrom in the light most favorable to the

nonmovant. See King v. Chide,

(5th Cir. 1992).

We resolve factual controversies in favor of the nonmoving party,

but only when an actual controversy exists, that is, when both

parties have submitted evidence of contrary facts. See McCallum

Highlands, Ltd. v. Washington Capital Dus, Inc.,

, 92

3 (5th Cir. 1995). Conclusory allegations, speculation, and

unsubstantiated assertions are not evidence. See Douglass v.

United States Auto. Ass’n,

(5th Cir. 1996).

Summary judgment is properly granted if “the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” FED. R. CIV. P.

56(c).

We review a district court’s ruling on a Rule 59 or Rule 60

motion for reconsideration for abuse of discretion. See Jones v.

Central Bank,

(5th Cir. 1998); Samaras v.

America’s Favorite Chicken Co., (In re Al Copeland Enters.,

Inc.),

(5th Cir. 1998), cert. denied,

(1999).

III.

An official is entitled to qualified immunity “‘unless it is shown that,

at the time of the incident, he violated a clearly established

constitutional right.’” Mangieri v. Clifton,

(5th Cir. 1994) (quoting Spann v. Rainey,

(5th

Cir. 1993)); see Siegert v. Gilley,

(1991).

The plaintiff bears the burden of negating the defendant’s claim

of qualified immunity. See Foster v. City of Lake Jackson,

(5th Cir. 1994).

Determining entitlement to qualified immunity is a two-part inquiry.

First, we must assess whether the plaintiff has alleged a

4 violation of a “clearly established constitutional right.”

Siegert,

; see Fontenot v. Cormier,

(5th Cir. 1995). The contours of the right allegedly

violated “must be sufficiently clear that a reasonable official

would understand that what he is doing violates the right.”

Meadowbriar Home for Children, Inc. v. Gunn,

(5th Cir. 1996).

If the plaintiff has alleged a violation of a clearly established

constitutional right, we then consider whether the official’s

actions were objectively reasonable. See Mangieri,

; Spann,

. “Objective reasonableness is

assessed in light of legal rules clearly established at the time

of the incident.” Mangieri,

; see Spann,

. The individual defendant is entitled to qualified

immunity if reasonable public officials could differ on the

lawfulness of his actions. See Malley v. Briggs,

(1986). The subjective belief of the plaintiff as to the

reasonableness of the defendant’s actions is irrelevant to the

qualified immunity issue. See Pfannstiel v. City of Marion,

(5th Cir. 1990). Similarly, “even an officer who

subjectively intends to act unreasonably is entitled to immunity

if his actions are objectively reasonable.”

.

A. First Amendment Claim

Felder alleged that she was terminated from her

administrative position in retaliation for her controversial

advocacy of distance learning. As a public employee, Felder must

5 establish a claim of retaliation for the exercise of First

Amendment rights by alleging facts that meet a three-part test:

(1) her speech involved a matter of public concern, (2) her

interest in commenting on matters of public concern outweighed

Hobby’s interest in promoting efficiency, and (3) her speech

motivated the decision to terminate her. See Wallace v. Texas

Tech Univ.,

(5th Cir. 1996); Coughlin v. Lee,

(5th Cir. 1991).

A court determines whether a public employee’s speech

addresses a matter of public concern by examining the content,

form, and context of a given statement, as revealed by the whole

record. See Connick v. Myers,

(1983);

Wallace,

. “Because almost anything that occurs

within a public agency could be of concern to the public, we do

not focus on the inherent interest or importance of” the

employee’s speech. Terrell v. University of Texas Sys. Police,

(1986), cert. denied,

(1987).

Rather, the speech at issue is protected as a matter of public

concern if the employee is speaking primarily in her role as

citizen rather than in her role as employee. See Connick,

; Wallace,

. We have said that a

public employee’s speech “made in the role as employee is of

public concern only in limited cases: those involving the report

of corruption or wrongdoing to higher authorities.” Wallace,

.

6 Felder’s advocacy of the distance learning program was made

in her role as Vice-Chancellor rather than as a private citizen.

Indeed, her complaint acknowledges that she, “in the proper

discharge of her duties, was a strong advocate” of the program.

According to Wallace, though, this speech does not constitute a

matter of public concern because Felder did not allege that her

statements involved “the report of corruption or wrongdoing.”

Id.; see also Warnock v. Pecos County,

(1997)(citing Wallace for proposition that plaintiff’s speech as

employee was matter of public concern because she was reporting

wrongdoing). When an employee’s speech does not address a matter

of public concern, our inquiry ends. See Connick,

(establishing that if public employee’s speech does not touch

upon matter of public concern, the First Amendment does not

prevent termination); Wallace,

; Coughlin v. Lee,

(5th Cir. 1991).

On appeal, Felder contends that Wallace does not define

every circumstance in which statements made in the role of

employee are protected by the First Amendment as a matter of

public concern. Even if Felder is correct (and she may well be

correct) and we conclude that the facts she alleged arguably

satisfied the first prong of our inquiry, the evidence she

produced would nevertheless be subjected to the second prong’s

balancing test.

7 The second prong requires a balancing of Felder’s interest

in advocating the distance learning program against Hobby’s

interest in maintaining harmony and efficiency at the University

of Houston. See Connick,

; Warnock,

. The district court correctly noted that an employer has

greater discretion to penalize an employee for her official

speech when the employee holds a high-level policy-making

position. See Rash-Aldridge v. Ramirez,

(5th

Cir. 1996); Kinsey v. Salado Indep. School Dist.,

(5th Cir. 1992)(en banc), cert. denied,

,

(1992); Gonzalez v. Benavides,

(5th

Cir. 1983). Felder was a high-level policy-maker who, by her own

admission, was advocating an “almost unanimous[ly]” opposed

policy. Hobby was her employer with an “interest in having the

employee contribute to the smooth operation of the workplace.”

Warnock,

.

On appeal, Felder contends that the district court erred by

going beyond the qualified immunity inquiry and deciding the

balancing test on the merits. Whatever the result of that

balance, however, the district court properly noted that the

results of individual balancing tests can rarely define a

“clearly established” constitutional right for qualified immunity

purposes. See Pierce v. Smith,

, 883 n.21 (5th Cir.

1997) (citations omitted). As such, the district court properly

8 found that Hobby’s decision to remove Felder from the Vice-

Chancellor position was objectively reasonable in light of

clearly established First Amendment law. We agree that Hobby is

entitled to qualified immunity on this claim.

B. “Liberty interest” claim

To establish a deprivation of her liberty interest in her

reputation without due process of law, Felder must first allege

facts establishing that her liberty interest was

implicated—namely, that she was terminated based on charges that

were (1) false, (2) publicized, and (3) stigmatizing to either

her standing or reputation in her professional community or her

ability to find other employment. See Board of Regents of State

Colleges v. Roth,

(1972); Cabrol v. Town of

Youngsville,

(5th Cir. 1997); Moore v.

Mississippi Valley State Univ.,

(5th Cir.

1989).

According to Felder’s Reply, Hobby stated in a conversation

with Felder that “he would take the position that plaintiff had

not informed Defendant Hobby” of the Attorney General’s opinion.

Felder alleged that Hobby communicated this false assertion “to

members of the Board of Regents, to individuals within the

University community, and to media representatives.” To support

this claim, she quoted an article in the Houston Press written

one month after her removal. In it, the reporter discussed the

potential for allocation of state funds for the station and

9 stated that “the official in charge of the effort, senior vice

chancellor Dell Felder, had not made the regents aware of [the

Attorney General’s] opinion.”

The district court concluded that the statement was

insufficiently stigmatizing to implicate a protected liberty

interest. “A moral stigma such as immorality or dishonesty is

required to show a deprivation of liberty.” Ludwig v. Board of

Trustees of Ferris State Univ.,

(6th Cir.

1997)(citing Roth,

). In contrast, charges of

inadequacy, inefficiency, or incompetence do not carry with them

the sort of opprobrium necessary to constitute a deprivation of

liberty. See id.; Cabrol,

. The district court

found that Hobby’s statement was an accusation of Felder’s

neglect of her duties, rather than one of her dishonesty, and

thus Felder had failed to allege facts establishing a deprivation

of her liberty interest.

On appeal, Felder contends that the district court

misunderstood its duty at summary judgment and failed to construe

the facts in her favor. She claims that Hobby’s statement was an

actionable accusation of her dishonesty, rather than an

insufficient implication of neglect, and the district court erred

in finding otherwise. We disagree.

First, whether or not a fact (here, Hobby’s statement)

satisfies an element of a claim is a question of law. The

district court was not bound by the conclusions of Felder or her

counsel.

10 Second, Hobby’s statement did not rise to the level of an

actionable imposition of “moral stigma.” Such stigma usually

derives from serious, specific charges and implies an inherent,

or at least persistent, personal condition which both potential

employers and one’s peers would want to avoid. For example,

dismissals for dishonesty, see White v. Thomas,

(5th Cir. 1981), cert. denied,

(1982)(lying

on job application); Robinson v. Wichita Falls & North Texas

Community Action Corp.,

(5th Cir. 1975)(falsifying

travel vouchers), for having committed a serious felony, see

United States v. Briggs,

(5th Cir. 1975), for

manifest racism, see Wellner v. Minnesota State Junior College,

(8th Cir. 1973), for serious mental illness, see

Lombard v. Board of Education,

(2d Cir. 1974) cert.

denied,

(1975), and for lack of “intellectual

ability, as distinguished from his performance...,” see Greenhill

v. Bailey,

(8th Cir. 1975), have been held to

implicate a protected liberty interest.

The statement that Felder “had not informed” or “had not

made the regents aware” merely suggests inadequate job

performance, a situational difficulty rather a “‘badge of

infamy,’ public scorn, or the like.” Ball v. Board of Trustees

of Kerrville Indep. Sch. Dist.,

(5th Cir.

1978), cert. denied,

(1979); see also Wells v. Hico

Indep. Sch. Dist.,

, 256 & n.16 (5th Cir.

1984)(noting that “for a charge to be stigmatizing, it must be

11 worse than merely adverse”). As such, its publication did not

deprive Felder of her liberty interest in her reputation. See,

e.g., Vander Zee v. Reno,

(5th Cir.

1996)(accusation of exercising “poor judgment” not sufficiently

stigmatizing to implicate liberty interest); Blackburn v. City of

Marshall,

(5th Cir. 1995)(newspaper article

containing adverse comments on plaintiff’s qualifications and

attitude insufficient); O’Neill v. City of Auburn,

,

691 (2nd Cir. 1995)(charge of “incompetence” and sloppy work

insufficient); Connolly v. Comptroller of the Currency,

(5th Cir. 1989)(public statement that plaintiff lacked

qualifications insufficient); Huffstutler v. Bergland,

(5th Cir. 1979)(rating of honesty as "unsatisfactory"

insufficient); Stretten v. Wadsworth Veterans Hospital,

(9th Cir. 1976)(incompetence, inability and unwillingness to

deal with co-workers in a professional manner insufficient).

C. Due Process Claim—Administrative Position

Procedural due process requires notice and an opportunity to

be heard before one can be deprived of a protected property

interest. See Cleveland Bd. of Educ. v. Loudermill,

(1985). Felder alleged that a “consistent policy of not

summarily dismissing senior administrators, but of providing

transitional periods of compensated leave, return to tenured

positions and other benefits” gave her a clearly established

property interest in her Vice-Chancellor position. Therefore,

she was entitled to due process before being removed. The

12 district court found that the “consistent policy” did not create

a property interest under Texas law. We agree.

To create a property interest in employment, an employee

must have a legitimate claim of entitlement created and defined

“by existing rules or understandings that stem from an

independent source such as state law....” Roth,

.

Under Texas law, employment is at-will unless the employer

“unequivocally indicate[s] a definite intent to be bound not to

terminate the employee except under clearly specified

circumstances.” Montgomery County Hospital Dist. v. Brown,

(Tex. 1998).

We agree with the district court that, absent an express

agreement, the System’s “consistent policy” with respect to

senior administrators does not create a property interest in

Felder’s administrative employment under Texas law. Felder

insists, however, that the district court erred because the

reasoning in Perry v. Sindermann,

(1972), gives her

a property interest in her administrative position based on this

“consistent policy.” In Perry, an untenured instructor whose

contract was not renewed relied on de facto tenure provisions in

an official Faculty Guide to raise a genuine issue as to his

property interest in employment. The provisions in Perry related

directly to expectations in continued employment. Here, Felder

relies on a policy that indicates how administrators are usually

13 terminated. It is well-settled that the existence of termination

procedures does not create a property interest in one’s

employment. See Loudermill,

; Evans v. City of

Dallas,

(5th Cir. 1988); Cote v. Rivera,

(Tex. 1995). The district court, therefore,

properly granted summary judgment on this issue.

D. Due Process Claim—Tenured Position

As a tenured professor, Felder had a constitutionally

protected property interest in her faculty position. See Roth,

. She alleged she was deprived of this interest

without due process because “[i]n order to protect her interests,

[she] was required to submit her letter of resignation from her

tenured faculty position....” The district court found that

Felder voluntarily resigned her position, she was not removed;

even if she had believed her “required” resignation improper, she

failed to invoke her procedural protections by requesting a

hearing; and Hobby’s failure to provide a hearing that was not

requested was not objectively unreasonable.

Felder argues on appeal that the district court erred in

denying her motion for reconsideration with respect to this

claim. In her motion, she requested the opportunity to replead

and conduct limited discovery because she had new information,

“of which she was previously not aware because of the stay of

discovery, which would establish a fraudulent scheme to deprive

Felder of her faculty tenure rights.” She claimed that, as part

14 of this scheme, Hobby had made “specific promises” in order to

induce her to forego her rights to a hearing, and she had relied

on these promises “until so much time had passed that further

delay was intolerable and [she] was constructively

discharged....”

The defense of qualified immunity protects officials from

not only the costs of trial but also the burdens of discovery.

See Harlow v. Fitzgerald,

(1982); Jacquez v.

Procunier,

(5th Cir. 1986). Before the

question of immunity is resolved, a plaintiff is entitled to

discovery only if she has supported a claim with sufficient

specificity to raise a factual issue as to the legality of

defendant’s conduct. See Schultea v. Wood,

(5th Cir. 1995); Lion Boulos,

(5th Cir.

1987). The district court did not abuse its discretion in

concluding that Felder failed to meet this standard.

Although Felder based her request for discovery on “new”

information, the information involved allegations identical to

those already asserted in her Reply–Hobby’s broken promises and

undue delays, intimations of fraud, and involuntary resignation.1

Her motion for reconsideration differed from her Reply only in

1 Specifically, she alleged in her Reply that Hobby “suggest[ed] that plaintiff accept certain benefits in exchange for the voluntary waiver of tenure,” (¶4.5) and “investigat[ed] other means of depriving plaintiff of her tenure” (¶4.6); that Hobby “indicated at various times a willingness to provide the required corrective action,” (¶4.9) but that he “unduly delayed and caused tentative agreements reached to be abrogated” (¶4.10); and that, as a result, she was “required” ro resign. (¶4.11).

15 that she described these same circumstances as part of a

“fraudulent scheme” and labeled her “required” resignation a

“constructive discharge.” The district court, however, had

already concluded that, even if these allegations were true,

Felder could not defeat Hobby’s qualified immunity defense.

Fatal to her procedural due process claim was her failure to

request a hearing. This failure would remain detrimental to her

due process claim even if discovery revealed that Hobby had

plotted a fraudulent scheme. See Rathjen v. Litchfield,

(5th Cir. 1989)(plaintiff who failed to take

advantage of available procedural safeguards was neither denied

due process nor constructively discharged, notwithstanding jury

finding that plaintiff was fraudulently induced to forego

hearing). Thus, it was not an abuse of discretion to deny the

discovery and repleading of irrelevant information.

IV.

For the foregoing reasons, we AFFIRM the judgment of the

district court, which granted summary judgment to defendant-

appellee Hobby, and AFFIRM the district court’s denial of

plaintiff-appellant Felder’s motion for reconsideration to allow

repleading and discovery.

16