UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40792
Summary Calendar
LANELL W. BRADSHAW,
Plaintiff-Appellee,
VERSUS
PITTSBURG INDEPENDENT SCHOOL DISTRICT, et al.
Defendants,
N. EDWARD KENDALL, In his official and individual
capacities; DR. MARY MCKINNEY, In her official and
individual capacities; DR. DAN KINCAID, In his official and
individual capacities; DR. TERRY RICHARDSON, In his official
and individual capacities; JONATHAN FULLER, In his official
and individual capacities; DON PEEK, In his official and
individual capacities; RODNEY REED, In his official and
individual capacities; JOHN NICKERSON, In his official and
individual capacities,
Defendants-Appellants.
Appeal from the United States District Court
For the Eastern District of Texas
April 11, 2000
Before SMITH, BARKSDALE and PARKER, Circuit Judges.
PER CURIAM:
Defendants appeal the district court's Order Adopting the
Report and Recommendation of the United States Magistrate Judge,
denying their motions for summary judgment. Because we find that
-1-
the speech at issue does not touch upon a public concern, we
reverse and remand.
FACTS
Plaintiff-Appellee (“Bradshaw”) filed the instant suit,
pursuant to 42 U.S.C. § 1983 (1994), alleging retaliation for the
exercise of her First Amendment Rights and several supplemental
state law claims. Bradshaw was hired as principal of Pittsburg
High School for the 1995-96 school year. The next school year,
Bradshaw was employed under a two-year administrator contract
with Pittsburg ISD.
On February 19, 1997, the Board of Trustees met and
considered the extension of the multiple year contracts of
administrators. At this meeting, the Board decided to continue
the plaintiff in her capacity as principal through the remainder
of the 1996-97 school year and reassign her the following year in
accordance with the specific provisions of her administrator
contract. The next day, defendant Superintendent Kendall
informed the plaintiff of the Board's decision.
On February 24, 1997 plaintiff sent the first of three
memoranda to defendant Kendall,1 suggesting that he request the
Board to release Bradshaw from the remainder of her contract with
pay. The reference line in the memorandum was titled “Personal
and Professional Concerns, Activity Account Documentation.” Also
1
Copies of the memorandum were sent to the Commissioner on
Education, all Board of Trustees members and the publisher of the
local newspaper.
-2-
included in this memorandum were criticisms of school board
members regarding certain actions they took with regard to the
renewal of Bradshaw's contract, defending Bradshaw against
defamatory allegations and managing the school activity fund.
Bradshaw's comments regarding the activity fund came in response
to accusations that she had misused resources in the fund.
Plaintiff submitted two more memoranda describing her
efforts in investigating the high school activity fund records
and further complaining that Board members were derelict in their
duty to protect her from defamatory allegations regarding the
fund. In particular, the second memorandum specifically asked
the Board members to exonerate Bradshaw from issues involving the
high school activity fund, while the third memorandum reiterated
her request that she be released from the remainder of her
contract with pay.
Following a March 17, 1997, Board of Trustees meeting,
plaintiff was offered a $25,000 buy out of her contract.
Plaintiff rejected the offer. On March, 19, 1997, Plaintiff was
reassigned from the position of Pittsburg High School principal
to the position of Alternative Education Placement Campus
principal. Plaintiff filed a formal grievance with the Board
seeking redress for the reassignment. The Board denied the
request. On June 17, 1998, 13 days before the expiration of her
contract, plaintiff resigned.
FIRST AMENDMENT RETALIATION CLAIM
A state may not retaliate against an employee for exercising
-3-
her First Amendment right to free speech. See Anderson v.
Pasadena Indep. Sch. Dist., 184 F.3d 439, 444 (5th Cir. 1999)
(citing Rankin v. McPherson, 483 U.S. 378, 383 (1987)). A public
employee's right to free speech is limited when it conflicts with
her role as a public employee. See id. There are four elements
to an employee's First Amendment Claim against her employer:
A First Amendment retaliation claim must include facts
showing that: (1) the employee suffered an adverse
employment decision; (2) the employee's speech involved
a matter of public concern; (3) the employee's interest
in commenting on matters of public concerns outweighs
the defendants' interest in promoting efficiency; and
(4) the employee's speech must have motivated the
defendants' action.
Lukan v. North Forest ISD, 183 F.3d 342, 345 (5th Cir. 1999)
(citing Harris v. Victoria Indep. Sch. Dist., 168 F.3d 216, 220
(5th Cir. 1999)).
As a threshold requirement to constitutional protection, the
public employee must establish that her speech addressed a matter
of public concern. See Connick v. Myers, 461 U.S. 138, 146-47
(1983); Kirkland v. Northside Indep. Sch. Dist., 890 F.2d 794,
797 (5th Cir. 1989). “If the speech does not concern a matter of
public concern, a court will not scrutinize the reasons
motivating a discharge that was allegedly in retaliation for that
speech.” Dodds v. Childers, 933 F.2d 271, 273 (5th Cir. 1991);
see also Connick, 461 U.S. at 146 (noting that if the speech at
issue “cannot be fairly characterized as constituting speech on a
matter of public concern, it is unnecessary for [courts] to
scrutinize the reasons for [a public employee's] discharge”);
Davis v. Ector County, 40 F.3d 777, 782 (5th Cir. 1994) (Wisdom,
-4-
J.) (“We note that, were we to find that the subject matter of
Davis's letter is not a matter of public concern, our inquiry
would end.”).
Standard of Review
For purposes of appellate review, the “inquiry into the
protected status of speech is one of law, not fact.” Kirkland,
890 F.2d at 798 (quoting Connick, 461 U.S. at 148 n.7). “Whether
the speech at issue relates to a matter of public concern is a
question of law to be resolved by the court.” Tompkins v.
Vickers, 26 F.3d 603, 606 (5th Cir. 1994) (citing Rankin v.
McPherson, 483 U.S. 378, 386 n.9 (1987)). Therefore, not only is
our jurisdiction appropriate to review this issue,2 but our
review is de novo. See, e.g., Teague v. City of Flower Mound,
179 F.3d 377, 380 (5th Cir. 1999); Coughlin v. Lee, 946 F.2d
1152, 1156 (5th Cir. 1991).
Public Concern Analysis
Speech rises to the level of public concern when an
individual speaks primarily as a citizen rather than as an
employee. See Thompson v. City of Starkville, 901 F.2d 456, 461
(5th Cir. 1990). The analysis takes into consideration the
totality of the circumstances surrounding the speech at issue.
The existence of an element of personal interest on the
part of an employee in the speech does not prevent
finding that the speech as a whole raises issues of
2
Because the district court's denial of summary judgment
was based on the denial of qualified immunity, this is a
permissible interlocutory appeal. See Mitchell v. Forsyth, 472
U.S. 511, 530 (1985); Jones v. City of Jackson, --- F.3d ---, ---
, No. 98-60013, 2000 WL 156093, at *2 (5th Cir. Feb. 14, 2000).
-5-
public concern. On the other hand, an employee cannot
transform a personal conflict into an issue of public
concern simply by arguing that individual concerns
might have been of interest to the public under
different circumstances.
Dodds, 933 F.2d at 273 (citations omitted); see also Connick, 461
U.S. at 149-50 (“To presume that all matters which transpire
within a government office are of public concern would mean that
virtually every remark--and certainly every criticism directed at
a public official--would plant the seed of a constitutional
case.”); Terrell v. University of Texas System Police, 792 F.2d
1360, 1362 (5th Cir. 1991) (“[T]he mere fact that the topic of
the employee's speech was one in which the public might or would
have a great interest is of little moment . . . because almost
anything that occurs within a public agency could be of concern
to the public.”). “Whether an employee's speech addresses a
matter of public concern, rather than a matter of personal
concern, must be determined by the content, form, and context of
a given statement, as revealed by the entire record.” Denton v.
Morgan, 136 F.3d 1038, 1043 (5th Cir. 1998)
DISCUSSION
Unlike the district court and the magistrate court, we find
the factual record sufficiently developed to make the legal
finding that Bradshaw's speech does not touch a matter of public
concern.
Content
The memos seek a buy-out of Bradshaw's contract. After
-6-
Kendall refused to buy her out, she wrote the first of the three
memos. Appellant is correct in categorizing the communications
from Bradshaw as “settlement negotiations seeking paid leave for
the remainder of her contract once the employment dispute began.”
Bradshaw is not entitled to insert a few references to an
activity fund and claim that her speech was primarily that of a
citizen rather than a disgruntled employee. See, e.g., Teague,
179 F.3d at 382 (“The mere insertion of a scintilla of speech
regarding a matter of public concern would make a federal case
out of a wholly private matter fueled by private, non-public
matters.”).
The defensive tone of the initial memorandum sets the stage
for the two that follow. In the February 24, 1997, Bradshaw
defends herself against allegations that she misused student
activity funds and criticizes the Board's handling of the
allegations. The second memorandum, drafted February 28, 1997,
echo the sentiments of the first document. After discussing and
explaining various unreimbursed expenditures from the activity
fund, Bradshaw noted that these “matters” were not “to be
discussed at social gatherings, the coffee shop, or in responding
to questions of P.I.S.D. patrons.” If the contents of these
memoranda were really “matters of public concern,” as Bradshaw
asserts, then social gatherings and responses to P.I.S.D. patrons
are entirely appropriate forums to discuss such matters.
In the third and final memorandum, Bradshaw specifically
requests that her “name, personal and professional reputation be
-7-
publically exonerated with respect to” the allegations of her
misuse of the student activity fund. This is a matter of pure
personal concern. See, e.g., Teague, 179 F.3d at 383.
Although partially about the fund, which may be a matter
with some public concern, plaintiff wrote the memoranda,
investigated the fund and chastised Board members in an effort to
protect her name and her job. The content of the memoranda are
predominately personal communications rather than communications
relating to a matter public concern.
Form
The form of the memoranda provides further support that
Bradshaw drafted the documents in her capacity as a public
employee rather than as a public citizen. Each of them was
signed by Bradshaw as “High School Principal.” At least two of
the memoranda were on Pittsburg High School Letterhead. These
facts heavily favor a conclusion that Bradshaw's speech did not
constitute matters of public concern.
In addition, Bradshaw did not publicly announce her
“personal and professional concerns” regarding the Board's
handling of the allegations that she mishandled school activity
funds. The “concerns” delineated in the three memoranda were
made in the form of a response in a employer-employee dispute.
Although the fact that Bradshaw chose to file internal grievances
rather than publicize her complaints is not dispositive, such
evidence weighs in favor of our finding that Bradshaw's speech
was public rather than private in nature. See Teague, 179 F.3d
-8-
at 383; Moore v. Mississippi Valley State Univ., 871 F.2d 545,
551 (5th Cir. 1989).
Context
According to the record, the memoranda (the speech at issue
in this case) were written after the decision was made (and
conveyed to Bradshaw) to reassign Bradshaw after the 1996-97
school year ended. In this context, Bradshaw's “speech” is more
akin to a personal grievance rather than a matter of public
concern. Post hoc metamorphoses fall short of the constitutional
threshold. See Terrell, 933 F.2d at 274 (“Retrospective
embellishment cannot transform personal grievances into matters
of public concern.”). In this light, Bradshaw's complaints
cannot be seen “in the context of a continuing commentary that
had originated in a public forum.” Tompkins, 26 F.3d at 607
(quoting Brawner v. City of Richardson, 855 F.2d 187, 192 (5th
Cir. 1988)).
This conclusion is consistent with the principle noted by
the Supreme Court in Mt. Healthy City Sch. Dist. v. Doyle, 429
U.S. 274 (1977), that employees already involved in a potentially
adverse employment decision cannot engage in actions usually
protected by the First Amendment in an attempt to frustrate the
employment decision. Such a rule would place the employee “in a
better position as a result of constitutionally protected conduct
than he would have occupied had he done nothing.” Mt. Healthy,
429 U.S. at 285.
CONCLUSION
-9-
The content, form and context of the memoranda show that
these were more of an effort by Ms. Bradshaw to clear her name
rather than some contribution to a public dialogue on high school
activity funds as she would have this court believe. In other
words, they represent speech by Ms. Bradshaw primarily acting as
an employee rather than a citizen. For the foregoing reasons,
Plaintiff has failed to show that her speech touched on a matter
of public concern. Therefore, the ruling of the district court
denying summary judgment is reversed. The case is remanded for
further proceedings consistent with this opinion.
REVERSED and REMANDED
-10-