Case: 12-31018 Document: 00512399235 Page: 1 Date Filed: 10/07/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 7, 2013
No. 12-31018 Lyle W. Cayce
Clerk
SHEILA GOUDEAU,
Plaintiff - Appellee
v.
EAST BATON ROUGE PARISH SCHOOL BOARD; SHILONDA SHAMLIN,
Individually and in her official capacity as Principal; JOHN DILWORTH, In
his official capacity as Superintendent; CHARLOTTE PLACIDE, Individually
and in her official capacity,
Defendants - Appellants
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:10-CV-303
Before SMITH, HAYNES, and GRAVES, Circuit Judges.
HAYNES, Circuit Judge:*
Sheila Goudeau, an elementary school teacher employed by the East Baton
Rouge Parish School Board (“the School Board”), sued the School Board, her
former principal, and two superintendents for retaliation in violation of the First
Amendment. The School Board, Shilonda Shamlin, and Charlotte Placide
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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(collectively, “the Defendants”) moved for summary judgment.1 The district
court denied Shamlin and Placide qualified immunity and concluded that the
School Board could be liable under a theory of municipal liability.2 We AFFIRM
the denial of qualified immunity for Shamlin, but REVERSE the court’s denial
of summary judgment for Placide and the School Board and RENDER judgment
in those defendants’ favor.
I. FACTUAL & PROCEDURAL HISTORY
Goudeau taught at Riveroaks Elementary School from 2001 to 2009.3 For
the 2008-2009 school year, Shilonda Shamlin—principal of Riveroaks since
2006—assigned Goudeau to teach fourth grade. Their good working relationship
became strained after Shamlin instructed Goudeau, verbally and in writing, to
artificially inflate students’ grades.
During meetings Goudeau attended with other fourth-grade teachers,
Shamlin announced that no student was to receive a grade of less than 60—a
“high F”; Shamlin also directed Goudeau to change some grades from “F” to “D.”
Shamlin’s “Monday Morning Memos” reinforced that policy, with which Goudeau
and her colleagues disagreed.
Most of the teachers followed the grading mandate to avoid repercussions
from Shamlin. Goudeau, however, tried to give her students the grades they
deserved regardless of whether they were below 60. Those attempts were
1
John Dilworth also moved for summary judgment, but he was sued only in his official
capacity and, therefore, did not seek qualified immunity.
2
The district court dismissed Goudeau’s state-law and substantive-due-process claims,
which are not at issue.
3
Because this is an interlocutory appeal from a denial of qualified immunity, all facts
are presented as alleged by Goudeau. See Good v. Curtis, 601 F.3d 393, 397 (5th Cir. 2010)
(“The limitation of our interlocutory appellate jurisdiction to questions of law prohibits our
consideration of the correctness of the plaintiff’s version of the facts.” (alterations omitted)
(citation and internal quotation marks omitted)).
2
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opposed by Shamlin and were often thwarted by office staff, who changed grades
in accordance with Shamlin’s wishes.
Shamlin threatened to discipline and transfer Goudeau if she did not
comply with Shamlin’s grading policy. As a result of the pressure resulting from
the policy and the harassment she incurred for complaining about it, Goudeau
alleges that she began suffering from stress, anxiety, and crying spells.
Eventually, Shamlin threatened to have Goudeau fired if she did not agree to a
transfer to Villa del Rey, which Goudeau alleges is a less prestigious school and
viewed as retribution.
Goudeau acquiesced to the transfer but reported Shamlin’s grading policy
to an assistant superintendent, Paula Johnson, whose administrative domain
included Riveroaks. Johnson characterized the complaints from teachers about
Shamlin’s Monday Morning Memos as “personal” issues. Johnson also concluded
that Shamlin’s instructions did not encompass changing grades insofar as they
only required adjusting a “low F” to a “high F.”
Goudeau filed an “Official Complaint Against Employee Form,” which
prompted a “Level I” meeting with Shamlin that ended abruptly when Goudeau
refused to sign a letter drafted by Shamlin. The complaint was escalated to
“Level II.” In preparation for the “Level II” hearing, the school system’s general
counsel, Domoine Rutledge, admonished Shamlin that Louisiana state law
prohibited principals from “exercising any influence whatsoever regarding the
assignment of grades.”4 Rutledge also determined that setting the minimum
grade at 60 violated the district’s Pupil Progression Plan.
4
Specifically, Louisiana law provides that “[n]o school board member, school
superintendent, . . . [or] principal . . . shall attempt, directly or indirectly, to influence, alter,
or otherwise affect the grade received by a student from his teacher except as otherwise
specifically permitted by this Section.” LA. REV. STAT. ANN. § 17:414.2 (West 2013).
3
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At a “Level III” hearing, Interim Chief Academic Officer Herman Brister
concluded that Shamlin had “failed to adhere to the [School] Board approved
grading scale outlined in the Pupil Progression Plan for the 2008-2009 school
year.” Brister later stated that altering a numerical grade upward would violate
the plan even if the associated letter remained an “F.” Defendant John
Dilworth, who succeeded Charlotte Placide as superintendent, agreed that
Shamlin had failed to follow the grading plan, but no action was taken against
Shamlin based on Goudeau’s complaint. Goudeau alleges that Shamlin then
transferred her to a less desirable school in retaliation for her comments.
Goudeau sued under 42 U.S.C. § 1983, alleging that the Defendants had
violated her First Amendment rights. The Defendants moved for summary
judgment arguing that Shamlin and Placide were entitled to qualified immunity
and the School Board could not be liable under a theory of municipal liability.
The district court denied the Defendants relief on these issues. See Goudeau v.
E. Baton Rouge Parish Sch. Bd., No. 10-303-FJP-SCR, 2012 WL 8466124, at *11
(M.D. La. July 31, 2012). The Defendants appealed.
II. STANDARD OF REVIEW
“[I]n an interlocutory appeal we lack the power to review the district
court’s decision that a genuine factual dispute exists. Therefore, we . . . consider
only whether the district court erred in assessing the legal significance of the
conduct that [it] deemed sufficiently supported for purposes of summary
judgment.” Kinney v. Weaver, 367 F.3d 337, 348, 375-76 (5th Cir. 2004) (en banc)
(“Our standard of review for qualified immunity interlocutory appeals requires
us to accept the facts in the light most favorable to [p]laintiffs.” (emphasis
removed)). “[T]he district court’s finding that a genuine factual dispute exists
is a factual determination that this court is prohibited from reviewing in this
interlocutory appeal. . . . But the district court’s determination that a particular
dispute is material is a reviewable legal determination.” Good, 601 F.3d at 397
4
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(citation omitted). In exercising that limited jurisdiction, we review de novo the
denial of summary judgment. Id. at 398.
III. DISCUSSION
A. Qualified Immunity: Shamlin
Qualified immunity shields government officials from liability “when their
actions could reasonably have been believed to be legal.” Morgan v. Swanson,
659 F.3d 359, 370 (5th Cir. 2011) (en banc). “The entitlement is an immunity
from suit . . . [that] is effectively lost if a case is erroneously permitted to go to
trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis removed). The
qualified immunity doctrine recognizes that government officials can perform
their duties effectively “only if they reasonably can anticipate when their
conduct may give rise to liability . . . and only if unjustified lawsuits are quickly
terminated.” Davis v. Scherer, 468 U.S. 183, 195 (1984).
“The basic steps of our qualified-immunity inquiry are well-known: a
plaintiff seeking to defeat qualified immunity must show: (1) that the official
violated a statutory or constitutional right, and (2) that the right was clearly
established at the time of the challenged conduct.” Morgan, 659 F.3d at 371
(citation and internal quotation marks omitted). Only the first of those
determinations is at issue.5
Goudeau bases her § 1983 claim for employment retaliation on the
Defendants’ alleged violation of her First Amendment free speech rights.
5
The Defendants did not argue before the district court or on appeal that the right
asserted by Goudeau was not clearly established at the time of the alleged violation.
Accordingly, in light of our limited scope of review in this interlocutory appeal, we decline to
address the district court’s conclusion that the right at issue was clearly established. See Ass’n
of Am. Physicians & Surgeons, Inc. v. Tex. Med. Bd., 627 F.3d 547, 551 n.2 (5th Cir. 2010) (a
party which “neither briefed nor argued” an issue had abandoned it); Shanks v. AlliedSignal,
Inc., 169 F.3d 988, 993 n.6 (5th Cir. 1999) (observing in the context of an interlocutory appeal
that we will not consider issues that were not first presented to the district court); United
States v. Jenkins, 974 F.2d 32, 34 (5th Cir. 1992) (“[C]ourts of appeals should conduct only a
limited review in interlocutory appeals.”).
5
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Importantly, “[p]ublic employees do not surrender all their free speech rights by
reason of their employment. Rather, the First Amendment protects a public
employee’s right, in certain circumstances, to speak as a citizen on matters of
public concern.” Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 691 (5th Cir.
2007). Nevertheless, establishing a § 1983 claim for employment retaliation
based on having engaged in protected speech requires a public employee to
establish that
(1) [s]he suffered an adverse employment action . . . ; (2) [s]he spoke
as a citizen on a matter of public concern . . . ; (3) h[er] interest in
the speech outweighs the government’s interest in the efficient
provision of public services . . . ; and (4) the speech precipitated the
adverse employment action.
Nixon v. City of Houston, 511 F.3d 494, 497 (5th Cir. 2007) (citations and
internal quotation marks omitted).
1. Adverse Employment Action
Shamlin contends that Goudeau did not suffer an adverse employment
action because there is no evidence that the school to which she transferred is
inferior to Riveroaks. She also relies on Louisiana state law for the proposition
that a transfer is not necessarily a demotion. Under the law of this circuit,
however, “[i]t is . . . well established that, for the purposes of a § 1983 retaliation
claim, an adverse employment action can include a transfer . . . .” Sharp v. City
of Houston, 164 F.3d 923, 933 (5th Cir. 1999). Whether Villa del Ray is in fact
less prestigious than Riveroaks is not at issue in this interlocutory appeal; it will
be a matter for determination in further proceedings in the district court. See
Good, 601 F.3d at 397. Relying as we must at this stage on Goudeau’s version
of events, her transfer is cognizable as an adverse employment action under
Sharp.
6
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2. Public Concern
Shamlin also maintains that Goudeau’s speech is not protected because
she failed to establish that she spoke on a matter of public concern. “Whether an
employee’s speech addresses a matter of public concern must be determined by
the content, form, and context of a given statement.” Charles v. Grief, 522 F.3d
508, 514 (5th Cir. 2008) (citation and quotation marks omitted). It is well
established that speech concerning official misconduct involves a matter of
public concern. See, e.g., Modica v. Taylor, 465 F.3d 174, 180-81 (5th Cir. 2006)
(holding that misuse of public funds and official malfeasance are matters of
public concern); Wallace v. County of Comal, 400 F.3d 284, 289-91 (5th Cir. 2005)
(“[T]here is perhaps no subset of matters of public concern more important than
bringing official misconduct to light.” (citation and quotation marks omitted));
Kinney, 367 F.3d at 369 (“[I]t is well-established in the jurisprudence of both the
Supreme Court and this court that official misconduct is of great First
Amendment significance . . . .”); Branton v. City of Dallas, 272 F.3d 730, 745 (5th
Cir. 2001) (“We have held that public employees’ speech reporting official
misconduct, wrongdoing, or malfeasance on the part of public employees involves
matters of public concern.”).
According to the district court, there is at least a genuine dispute that
Goudeau’s speech contained the allegation that “a school employee with
supervisory powers [was] requiring teachers to follow her rule that a teacher
must change students’ grades in violation of established Louisiana law and
school board policy.” Goudeau, 2012 WL 8466124, at *6. Goudeau’s allegation
against Shamlin did not concern an isolated incident with a single student, but
instead involved an ongoing practice in which a principal instructs her teachers
to change their students’ grades in violation of the law. This allegation of official
misconduct in violation of state law makes Goudeau’s speech a matter of public
concern.
7
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The Defendants’ argument that Goudeau’s speech is not of public concern
because it only related to a personal dispute with Shamlin is unavailing. First,
the district court determined that there was at least a genuine dispute that
Goudeau’s speech went beyond personal employment issues and concerned a
school official instructing teachers to change students’ grades in violation of
Louisiana law and school board policy. Goudeau, 2012 WL 8466124, at *6.
Second, even if Goudeau’s speech included what the district court described as
a “squabble over teaching practices and job performance,” id., the inclusion of
issues of private concern in speech does not render it unprotected, but instead
merely renders it “mixed speech,” see Salge v. Edna Indep. Sch. Dist., 411 F.3d
178, 186 (5th Cir. 2005). We have established several principles to consider
when deciding whether a speaker’s “mixed speech” relates to a matter of public
concern. These principles involve consideration of the content, context, and form
of the speech and evaluate whether the speech: “inform[s] the populace of more
than the fact of an employee’s employment grievance,” is “made against the
backdrop of public debate,” and is not simply made “in furtherance of a personal
employer-employee dispute.” Id. at 187-88 (citations and quotation marks
omitted); see also Kennedy v. Tangipahoa Parish Library Bd. of Control, 224
F.3d 359, 372 (5th Cir. 2000), abrogated on other grounds by Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007).
Here, Goudeau’s allegations concerning the grading policy go beyond her
personal employment grievance and were not simply made in furtherance of an
employment dispute. As the district court observed, she argues that she spoke
out about the grading policy because she sought to address “the public school
system’s implement[ation of] an illegal act and its resulting effect on the public
(i.e., children’s education), [and] the students who were supposed to be
educated.” See Goudeau, 2012 WL 8466124, at *6. Considering the evidence as
presented by Goudeau, see Good, 601 F.3d at 397, the district court did not err
8
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in its legal conclusion that Goudeau’s allegations involved an issue of public
concern when she spoke about the modification of students’ grades in violation
of the law.
This prong also involves consideration of whether Goudeau’s speech was
uttered as a private citizen or as an employee. See Garcetti v. Ceballos, 547 U.S.
410, 418 (2006);6 Nixon, 511 F.3d at 497 (citing Garcetti, 547 U.S. at 418).
However, none of the Defendants argued to the district court or in their briefing
on appeal that Goudeau’s speech is not protected based on Garcetti’s
requirement that she speak as a private citizen. As a result, Shamlin has
waived any argument on this issue in this interlocutory appeal, and we do not
reach this question.7 See Gen. Universal Sys. v. HAL Inc., 500 F.3d 444, 454 (5th
6
Both before and after Garcetti, our precedents have examined whether the public
employee’s speech were on a matter of public concern. See, e.g., Nixon, 511 F.3d at 497;
Branton, 272 F.3d at 745. Garcetti did not overrule our precedents regarding this point;
indeed, Garcetti requires such a consideration. See 547 U.S. at 418 (explaining that courts
must consider whether the individual’s speech related to “a matter of public concern”).
Therefore, although the dissenting opinion suggests otherwise, Garcetti confirms our prior
precedent recognizing the importance of analyzing the subject matter of an individual’s speech
in this context to ensure that it relates to a matter of public concern.
7
Contrary to the dissenting opinion’s suggestion, we do not decline to address whether
Goudeau spoke as a private citizen or employee because the parties “misstated the law” or
failed to cite the appropriate precedent. The failure to cite Garcetti is not the problem; the
failure to present any argument or analysis of this issue is. Thus, we decline to raise and
determine the “private citizen” issue (particularly at an interlocutory appeal stage) because
Shamlin did not raise it, brief it, or point to any facts supporting or opposing a conclusion that
Goudeau was or was not acting as a private citizen in this regard. See Douglas W. ex rel.
Jason D.W. v. Hous. Indep. Sch. Dist., 158 F.3d 205, 210 n.4 (5th Cir. 1998) (“[F]ailure to
provide any legal or factual analysis of an issue on appeal waives that issue.”); see also United
States v. Griffith, 522 F.3d 607, 610 (5th Cir. 2008) (“It is a well worn principle that the failure
to raise an issue on appeal constitutes waiver of that argument.”); Jenkins, 974 F.2d at 34
(“[C]ourts of appeals should conduct only a limited review in interlocutory appeals.”). There
is nothing unusual about our approach. Indeed, in many different types of cases, we have
repeatedly declined to consider issues (finding them waived or abandoned) that were not
adequately briefed or argued by the parties on appeal. See, e.g., United States v. Bolar, 483
F. App’x 876, 883 n.3 (5th Cir. 2012) (unpublished), cert. denied, 133 S. Ct. 900 (2013)
(explaining that although a “[r]eview of the [Sentencing Guidelines] calculation does reveal
an error in the extortion value used to determine the guidelines range,” the issue is waived
because the defendant did not raise it on appeal); In re Katrina Canal Breaches Litig., 620
9
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Cir. 2007) (observing that even when an issue is mentioned in passing in a brief,
the party waives the issue when it fails to present sufficient argument in support
of its position in the body of the brief); see also United States v. Charles, 469 F.3d
402, 408 (5th Cir. 2006) (“Inadequately briefed issues are deemed abandoned.”);
Shanks, 169 F.3d at 993 n.6 (observing in the context of an interlocutory appeal
that we will not consider arguments not presented to the district court).8 We
thus affirm the district court’s denial of qualified immunity for Shamlin.9
B. Qualified Immunity: Placide
However, we conclude that the district court erred when it denied Placide’s
request for immunity. The record is devoid of any evidence suggesting that
Placide was aware of or participated in the events precipitating the alleged
violation of Goudeau’s First Amendment rights. Indeed, apart from alleging that
Placide “did nothing to prevent or stop” Shamlin’s conduct, the complaint does
not contain any specific allegation of wrongdoing on the part of Placide.
F.3d 455, 459 n.3 (5th Cir. 2010) (holding that the appellant’s argument that the
government-contractor immunity defense does not apply based on Boyle v. United Technologies
Corp., 487 U.S. 500 (1988), was waived because it was not raised in the appellant’s opening
brief); Douglas, 158 F.3d at 210 n.4 (holding that review of a district court’s potential error in
striking several post-trial exhibits was waived when the plaintiff failed to provide any
“argument or authority in support of his position”). Therefore, unlike our decisions in Davis
v. McKinney, 518 F.3d 304, 312 (5th Cir. 2008), and Williams, 480 F.3d at 692, we have no
occasion to consider whether Goudeau spoke as a private citizen or employee.
8
Similarly, given the limited scope of our review on interlocutory appeal, we decline
to address the final two elements of the protected speech analysis—namely, whether
Goudeau’s interest in the speech outweighs the government’s interest in the efficient provision
of public services and whether the speech precipitated the adverse employment
action—because the Defendants did not address them before the district court or on appeal.
See Tex. Med. Bd., 627 F.3d at 551; Shanks, 169 F.3d at 993 n.6; Jenkins, 974 F.2d at 34.
9
Importantly, our holding today does not automatically equate allegations of official
malfeasance with speech of public concern. Instead, our analysis centers on the subject matter
of Goudeau’s speech because it was the focus of the parties’ arguments. Had the parties
presented argument concerning the role in which Goudeau spoke—i.e., whether she spoke as
a private citizen or employee—our analysis would necessarily have included a consideration
of this issue. See, e.g., Davis, 518 F.3d at 312; Williams, 480 F.3d at 692.
10
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Moreover, Goudeau’s response to the Defendants’ motion for summary judgment
and her briefing on appeal are similarly devoid of any discussion relating to
Placide’s involvement in this matter.
When asked during oral argument, Goudeau’s attorney suggested that
Placide violated Goudeau’s constitutional rights because she had constructive
knowledge of the grade-changing policy. Such an argument is unavailing,
however, because regardless of whether Placide had constructive or actual
knowledge of the grading policy, the potential constitutional violation alleged by
Goudeau is not the implementation of the grading policy per se, but the
infringement on her First Amendment rights in the form of employment
retaliation for her exercise of those rights. Because Goudeau has not alleged or
presented any evidence that Placide participated in the purported adverse
employment decision, we must conclude that the district court erred in denying
Placide qualified immunity. See Hampton v. Oktibbeha Cnty. Sheriff Dep’t, 480
F.3d 358, 365 (5th Cir. 2007) (holding that certain defendants were entitled to
qualified immunity when the facts as presented by the plaintiff failed to
establish the defendants’ involvement in the alleged constitutional violation).
C. Municipal Liability: The School Board
The School Board argues that the district court erred by denying summary
judgment relief to it.10 “Under § 1983, a municipality or local governmental
entity such as an independent school district may be held liable only for acts for
10
While government entities, such as the School Board, generally cannot raise
immunity defenses on interlocutory appeal, see Roberts v. City of Shreveport, 397 F.3d 287, 291
(5th Cir. 2005), the district court certified its decision for interlocutory review, and we granted
the Defendants’ motion for leave to appeal the denial of summary judgment pursuant to our
authority under 28 U.S.C. § 1292(b). As a result, we have jurisdiction to consider the School
Board’s argument. See Tanks v. Lockheed Martin Corp., 417 F.3d 456, 461 (5th Cir. 2005); see
also Save the Bay, Inc. v. U.S. Army, 639 F.2d 1100, 1102 (5th Cir. Feb. 1981) (“Because [this
court] may not proceed without requisite jurisdiction, it is incumbent upon federal courts trial
and appellate to constantly examine the basis of jurisdiction, doing so on [their] own motion
if necessary.”).
11
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which it is actually responsible.” Doe ex rel. Doe v. Dallas Indep. Sch. Dist., 153
F.3d 211, 215 (5th Cir. 1998) (noting that a municipality cannot be held liable
under § 1983 on a respondeat superior theory); see also Monell v. Dep’t of Soc.
Servs. of City of N.Y., 436 U.S. 658, 691 (1978) (“Congress did not intend
municipalities to be held liable [for purposes of § 1983] unless action pursuant
to official municipal policy of some nature caused a constitutional tort.”).
Consequently, “[t]o establish municipal liability under § 1983, a plaintiff must
show the deprivation of a federally protected right caused by action taken
pursuant to an official municipal policy.” Valle v. City of Houston, 613 F.3d 536,
541-42 (5th Cir. 2010) (citation and internal quotation marks omitted). To this
end, “[a] plaintiff must identify: (1) an official policy (or custom), of which (2) a
policymaker can be charged with actual or constructive knowledge, and (3) a
constitutional violation whose ‘moving force’ is that policy or custom.” Id. at
541-42 (citation and internal quotation marks omitted). The plaintiff must also
“demonstrate that the municipal action was taken with ‘deliberate indifference’
as to its known or obvious consequences.” Bd. of County Comm’rs of Bryan
County, Okl. v. Brown, 520 U.S. 397, 407 (1997).
Goudeau’s complaint alleges that the School Board
“knew . . . Shamlin . . . was forcing [Goudeau] to alter the grades of [her]
students . . . [and] did nothing to prevent or stop it.” The district court
determined that there were genuine issues of material fact concerning whether
the School Board had an official policy of influencing the grades that teachers
provided their students. See Goudeau, 2012 WL 8466124, at *9. Goudeau’s
complaint and the district court’s conclusion, however, misapprehend the nature
of the official policy or custom that Goudeau was required to allege. In order to
establish the School Board’s liability based on an adverse employment decision
in response to her protected speech, Goudeau needed to demonstrate a policy or
custom targeting the right that was violated (i.e., the right to engage in
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protected speech free from retaliation), rather than a policy concerning conduct
about which she spoke (i.e., the changing of students’ grades). See, e.g., Wallace
v. Dallas Indep. Sch. Dist., No. 3:97-CV-2820-L, 2000 WL 575219, at *1 (N.D.
Tex. May 11, 2000) (dismissing a plaintiff’s claim for municipal liability for
employment retaliation based on speech when the plaintiffs “failed to allege that
[the school district] ha[d] an official policy or custom of retaliating against
employees who exercise their First Amendment rights”); Hill v. Silsbee Indep.
Sch. Dist., 933 F.Supp. 616, 623 (E.D. Tex. 1996) (dismissing § 1983 claim for
want of “official policy or custom of retaliating against its employees for
exercising their First Amendment freedom of speech rights”). Goudeau’s
allegations against the School Board, however, merely relate to her claims that
it did nothing to stop Shamlin from influencing the assignment of students’
grades in violation of Louisiana law and school board policy. Indeed, the record
is devoid of any evidence or allegations that the School Board had any policy or
custom directed at curtailing the First Amendment rights of public employees.11
Therefore, the district court’s denial of summary judgment as it relates to the
School Board must be reversed.
CONCLUSION
Accordingly, the district court’s decision is AFFIRMED as to the denial
of qualified immunity to Shamlin, and REVERSED as to the other two
defendants. Judgment is RENDERED in favor of Placide and the School Board.
11
Goudeau argued in her memorandum in opposition to summary judgment and in her
brief on appeal that the School Board interfered with her First Amendment right to assign
grades to her students. See Parate v. Isibor, 868 F.2d 821, 827 (6th Cir. 1989) (“[T]he
assignment of a letter grade is symbolic communication intended to send a specific message
to the student [and, therefore,] is entitled to some measure of First Amendment protection.”).
We decline to consider whether the assignment of grades implicates First Amendment
concerns because Goudeau’s complaint does not seek relief for this alleged violation. Instead,
her § 1983 claim is based on employment retaliation for speaking out about the grading policy
and, therefore, any argument concerning a teacher’s First Amendment right to assign grades
is irrelevant to the present matter.
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JERRY E. SMITH, Circuit Judge, dissenting:
Because Sheila Goudeau has not alleged facts sufficient to show that she
spoke as a private citizen on a matter of public concern, I respectfully dissent
from the majority’s decision to deny qualified immunity.
I.
The majority elects to address whether Goudeau’s speech was on a “matter
of public concern” but refuses to consider whether it was “uttered as a private
citizen or as an employee” as required by Garcetti v. Ceballos, 547 U.S. 410, 418
(2006), and its Fifth Circuit progeny. The majority does so on the ground that
“none of the Defendants argued to the district court or in their briefing on appeal
that Goudeau’s speech is not protected based on Garcetti’s requirement that she
speak as a private citizen,” and as a result, “Shamlin has waived any argument
on this issue.” There is, however, no waiver.
Whether the speech is on a matter of public concern is intimately con-
nected to whether Goudeau was speaking as a private citizen or as an employee.
As the majority acknowledges, this prong of the employee speech test is whether
Goudeau spoke “as a citizen on a matter of public concern” (emphasis added).
The majority adds that “[t]his prong also involves consideration of whether Gou-
deau’s speech was uttered as a private citizen or as an employee” (citing, inter
alia, Garcetti, id.). That, of course, is consistent with the Supreme Court’s lead-
ing decisions, including the one the majority declines to apply, Garcetti, id.
(“Pickering and the cases decided in its wake identify two inquiries to guide
interpretation of the constitutional protections accorded to public employee
speech. The first requires determining whether the employee spoke as a citizen
on a matter of public concern . . . . Ceballos did not act as a citizen when he went
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about conducting his daily professional activities . . . .” (emphasis added)).1
Neither party waived the argument regarding public concern, and the
majority focuses precisely on that issue. That the parties misstated the law with
respect to that prong of our employee speech cases—by overlooking the
requirement that the speech be made as a private citizen rather than as an
employee—is no justification for this court’s accepting the law as the parties
have described it.2
It may be that the parties did not specifically cite this circuit’s cases elab-
orating on the private-citizen requirement of the public-concern test (though the
district court at one point did mention Garcetti). But neither did the parties
mention any of the cases that the majority cites as justification for the conclusion
that Goudeau’s speech was on a matter of public concern.
The key to today’s holding is the set of cases suggesting that reporting
official misconduct, such as the misuse of public funds, is a matter of public con-
cern.3 Yet the only one of those cases cited by either party is Kinney, and for a
completely different proposition. Perhaps more remarkably, all of these cases
predate Garcetti and this court’s Garcetti progeny. If the majority is willing to
delve into outdated caselaw cited by neither party to flesh out the requirements
1
See Pickering v. Bd. of Ed. of Twp. High Sch., 391 U.S. 563, 568 (1968) (“The problem
in any case is to arrive at a balance between the interests of the teacher, as a citizen, in com-
menting upon matters of public concern and the interest of the State, as an employer, in pro-
moting the efficiency of the public services it performs through its employees” (emphasis
added).).
2
Cf. Davis v. McKinney, 518 F.3d 304, 315 (5th Cir. 2008) (“The district court did not
discuss the individual components of Davis’ speech listed above or consider whether each cate-
gory of speech was related to plaintiff’s job duties. Instead, it treated the Complaint Letter
and other communications as a whole. However, because the question of whether a communi-
cation is made as an employee or as a citizen is a question of law, we proceed with the analysis
[of the individual components].”).
3
See Modica v. Taylor, 465 F.3d 174 (5th Cir. 2006); Wallace v. Cnty. of Comal, 400
F.3d 284 (5th Cir. 2005); Kinney v. Weaver, 367 F.3d 337 (5th Cir. 2004) (en banc); Branton v.
City of Dall., 272 F.3d 730 (5th Cir. 2001).
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of the public-concern test, then it should be willing to address this circuit’s more
recent and apposite cases elaborating on the private-citizen component of that
test. When that test is applied, Goudeau does not state a constitutional claim.
II.
By finding that Goudeau’s speech was a matter of public concern—and by
ignoring that she was not speaking as a private citizen—the majority disregards
Williams v. Dallas Independent School District, 480 F.3d 689 (5th Cir. 2007) (per
curiam), and Davis. Those decisions require that our first task be “to determine
whether [Goudeau’s] speech was part of her official duties, that is whether she
spoke as a citizen or as part of her public job.” Davis, 518 F.3d at 312. Inter-
preting the most recent Supreme Court case on public-employee speech, this
court in Williams explained that “we must shift our focus from the content of the
speech to the role the speaker occupied when he said it.” Williams, 480 F.3d at
692 (citing Garcetti, 547 U.S. at 421–22). “Even if [] speech is of great social
importance, it is not protected by the First Amendment so long as it was made
pursuant to [a] worker’s official duties.” Id.
Goudeau alleges that she voiced displeasure with the grade-inflation policy
to its progenitor, Shamlin, who subsequently harassed and threatened her and
eventually transferred her to a less prestigious school. Goudeau then com-
plained to Johnson, and after Johnson took no action, Goudeau filed a grievance
that made its way up Shamlin’s chain of command through three levels of adjud-
ication. As Goudeau’s attorney admitted at oral argument, there is no evidence
that Goudeau ever complained to anyone at any entity outside the school board’s
purview.
These facts fall squarely within our caselaw holding that an employee’s
grievances brought up the chain of command are not protected speech. Although
“it is not dispositive that a public employee’s statements are made internally. . .
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the caselaw is unanimous in holding that [an] employee’s communications that
relate to his own job function up the chain of command, at least within his own
department or division, fall within his official duties and are not entitled to First
Amendment protection.” Davis, 518 F.3d at 313 n.3 (citation omitted). Like the
statements of the plaintiffs in Williams and Garcetti, Goudeau’s speech was
made internally, was routed through her chain of command, and focused on her
own job function. See Garcetti, 547 U.S. at 414; Williams, 480 F.3d at 692–94.
Goudeau was not required to complain about Shamlin’s grade-changing
policy, but that fact “does not mean [she] was not acting within the course of per-
forming [her] job.” Williams, 480 F.3d at 694. Unlike the plaintiffs in Davis and
Charles v. Grief, 522 F.3d 508 (5th Cir. 2008), Goudeau did not contact any gov-
ernmental stakeholders outside the school system, such as state legislators or
federal agencies. See Charles, 522 F.3d at 510; Davis, 518 F.3d at 314.
The majority’s citation of cases saying that speech on the misuse of public
funds, illegal activity, or other official malfeasance is automatically of public con-
cern also ignores Williams and Davis. In Williams, an athletic director wrote his
superiors complaining precisely about the misuse of athletic funds, yet that was
not sufficient to state a First Amendment claim, because his “speech was made
in the course of performing his employment.” Williams, 480 F.3d at 694.
In Davis, part of the complaint was that hospital physicians were viewing
child pornography on work computers and that an investigation into the illegal
activity was thwarted by administrative officials. Yet this court held that even
those allegations of illegalitySSbecause they were made within the university
hospital systemSSwere “clearly made [by Davis] as an employee.” Only those
allegations made to the FBI and the EEOC “were not made [by Davis] as an
employee.” Davis, 518 F.3d at 315–16.
When she complained about Shamlin’s grade-altering policy to Shamlin’s
supervisors, Goudeau was speaking pursuant to her official duties, not as a citi-
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zen. As a result, defendants’ alleged violation of school-board policy and state
law neither implicates the First Amendment nor violates § 1983. Because Gou-
deau’s claim does not pass the test established by Garcetti, the case ought to be
at an end: Goudeau has failed to plead a constitutional violation, and all defen-
dants are entitled to qualified immunity.4 I respectfully dissent.
4
Further, it is hardly evident that Goudeau’s and the public’s interest in the speech
would outweigh the normal governmental interest that schools could assert in promoting uni-
formity of classroom policies. We need not reach that argument, however, because this prong
of the Pickering test was actually waived.
18