Federal appeals court dismisses ex-university worker’s retaliation claim

Friday, February 11, 2000

A former University of Houston research director’s First Amendment retaliation claim was dismissed because her speech was not on a matter of public concern, a federal appeals court has ruled.

Susan Gerhart, director of the University of Houston’s Research Institute for Computing and Information Systems, was fired in 1995 after she complained that not enough funds were allocated to her research program.

Gerhart contended that university officials retained too much of the funding for discretionary use.

Following her termination, she sued several school officials, including Edward Hayes, senior vice president and provost, and James T. Hale, vice-president for administration and finance.

The defendants filed a motion for summary judgment, seeking to dismiss the case. However, U.S. District Judge David Hittner denied the motion, finding that there was a “fact question whether Gerhart’s expression of concern regarding allocation of RICIS funds constitutes protected speech and if so, whether her utterance of this speech was the real reason she was terminated.”

On appeal, a three-judge panel of the 5th U.S. Circuit Court of Appeals reversed Hittner’s decision and granted the defendants summary judgment.

To establish a First Amendment retaliation claim, a public employee must show that:

  • Her speech was on a matter of public concern.

  • Her free-speech interest outweighed the employer’s interest in promoting efficiency in the workplace.

  • Her speech motivated the employer to discharge her.

  • The 5th Circuit wrote in Gerhart v. Hayes that Gerhart’s speech was not a matter of public concern. According to the court, she “sets forth no facts or allegations that she spoke out as a citizen, rather than as an employee.”

    “The only logical inference from the facts presented is that Gerhart was speaking in her role as an employee, and consequently, her expression was not a matter of public concern and was not constitutionally protected speech,” the court wrote in its Feb. 4 opinion.

    David Lopez, Gerhart’s attorney, said he was preparing to petition the three-judge panel to reconsider its decision. “When a public employee speaks out on an issue of how a public agency operates and how that agency uses public funds, that employee is speaking as a citizen and the speech is a matter of public concern,” he said.