Aguinaga, et al v. TX Alcohol Bvrg Cmsn, et al

United States Court of Appeals
Fifth Circuit
F I L E D
May 21, 2004
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 03-51243
Summary Calendar
_______________
JOSE AGUINAGA; LUCILA JAIME; BERTHA URGARTE,
Plaintiffs-Appellants,
VERSUS
TEXAS ALCOHOL AND BEVERAGE COMMISSION;
DOYNE BAILEY,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY;
BUCK FULLER,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY;
JEANNENE FOX,
INDIVIDUALLY AND IN HER OFFICIAL CAPACITY;
HERB MURILLO,
IN HIS INDIVIDUAL CAPACITY,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Western District of Texas
m EP-02-CV-167-PRM
_________________________

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

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

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Matters of public concern include misuse of
public money or other corruption but generally
do not encompass complaints about churlish
or incompetent management. See Marohnic v.
Walker, 800 F.2d 613, 616 (6th Cir. 1988).
As the district court observed, Jaime’s
complaints concerning improper tax stamp
procedures might be deemed to be relating to
public concerns of administrative efficiency
and propriety, but Fox, who fired Jaime, was
unaware of those complaints, which thus can-
not be said to have motivated the termination.
Likewise, Ugarte’s complaints to the Health
Department, inasmuch as they involved issues
relating to public matters of concern, were
equally unknown to Fox or anyone else in-
volved in his termination.
IV.
Plaintiffs contend they were fired because
of their Mexican-American origins, in violation
of title VII. Under McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973), we
employ a three-part test to gauge whether a
plaintiff has successfully shown intentional dis-
crimination. First, he must establish a prima
facie case of discrimination. Second, the
employer may defeat a presumption of dis-
criminatory conduct by articulating a legiti-
mate and nondiscriminatory reason for its ac-
tion. Third, if the employer has articulated a
nondiscriminatory reason, the plaintiff may
show, by a preponderance of evidence, that the
suggested reason was a mere pretext for
discrimination.
As the district court noted, plaintiffs’ prima
facie case fails because that they show no sim-
ilarly situated employees of other national ori-
gin who received better treatment than did
they. Nonetheless, they allege that caucasian
members of other divisions of the TABC re-
ceived better treatment. The treatment of
those employees, however, is not under “near-
ly identical” circumstances, given their differ-
ent job descriptions, disciplinary rules, and in-
dividual supervisors. See Okoye v. Univ. of
Tex. Health Sci. Ctr., 245 F.3d 507, 514 (5th
Cir. 2001). And, as the district court ob-
served, even had the plaintiffs shown a prima
facie case, they failed to provide evidence, in
the form of affidavits, statistical data, or other-
wise, that the reason defendants offered for
their termination was pretextual. Employees’
subjective feelings and conclusional allegations
of bias cannot alone suffice to prove discrimi-
natory intent.
AFFIRMED.

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