NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 18a0048n.06
Case No. 17-5615 FILED
Jan 24, 2018
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
RACHEL JONES, )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE MIDDLE DISTRICT OF
WILSON COUNTY, TENNESSEE, et al., ) TENNESSEE
)
Defendants-Appellees. )
)
)
BEFORE: MERRITT, GRIFFIN and DONALD, Circuit Judges.
BERNICE BOUIE DONALD, Circuit Judge. Plaintiff-Appellant Rachel Jones
appeals the district court’s grant of summary judgment in favor of Defendants-Appellees Wilson
County, Tennessee (the “County”) and Terry Duncan on her First Amendment and state law
claims. Jones also appeals the district court’s exercise of supplemental jurisdiction over her state
law claim. The district court was correct, however, in finding that Jones’ First Amendment
claim failed because she was speaking as a public employee, rather than a private citizen.
Likewise, the district court properly held that Jones failed to state a claim under the state law.
Finally, the district court did not abuse its discretion when it exercised supplemental jurisdiction
over her state law claim. We AFFIRM the judgment of the district court.
Case No. 17-5615
Jones v. Wilson County, Tennessee, et al.
I
Jones was a probation officer for Wilson County, Tennessee. As part of her job duties,
Jones reported to the County General Sessions Court, where she was required to answer
questions about probationers. She had a duty to provide truthful statements. On September 5,
2014, Jones was terminated for allegedly failing to do that part of her job. On that date, Terry
Duncan, Jones’ supervisor, notified her via letter that she was being terminated because she
made allegedly false statements during a court hearing. Specifically, Defendants alleged that
Jones was asked whether a criminal defendant could attend a drug and alcohol counseling class
provided by a counselor, Chris Buchanan. Defendants further allege that Jones responded
falsely, answering that Buchanan had said the defendant could not attend. Buchanan advised the
defendant’s lawyer that this was not true, who then informed Duncan about Jones’ alleged false
testimony. Upon learning that Jones had provided untrue statements related to her job duties,
Duncan terminated her.
Jones filed a complaint in court in the Middle District of Tennessee on August 26, 2015,
alleging claims under 42 U.S.C. § 1983 for a violation of her First Amendment right to freedom
of speech and under the Tennessee Public Employee Political Freedom Act (“PEPFA”). On
September 20, 2016, Defendants filed a Motion for Summary Judgment. On April 26, 2017, the
district court granted Defendants’ motion, finding that Jones’ claims failed under both the First
Amendment and PEPFA. The district court found that Jones was speaking as a public employee
pursuant to her official duties, rather than as a citizen for First Amendment purposes, thus
extinguishing her claim. As to Jones’ PEPFA claim, the district court concluded that the statute
did not apply, and even if it did, Jones was terminated for permissible reasons. Jones now
appeals.
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II
We review a district court’s grant of summary judgment de novo. Jackson v. VHS
Detroit Receiving Hosp., Inc., 814 F.3d 769, 775 (6th Cir. 2016). Summary judgment is
appropriate “if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is “genuine”
“if the evidence is such that a reasonable jury could return a verdict for the non-moving party.”
Ford v. Gen. Motors Corp., 305 F.3d 545, 551 (6th Cir. 2002) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). The moving party bears the initial burden of
establishing that there are no genuine issues of material fact, which it may accomplish “by
demonstrating that the nonmoving party lacks evidence to support an essential element of its
case.” Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986)). In response, the
nonmoving party must present “significant probative evidence” that will reveal that there is more
than “some metaphysical doubt as to the material facts.” Moore v. Philip Morris Cos., Inc.,
8 F.3d 335, 340 (6th Cir. 1993). The mere existence of a scintilla of evidence in support of the
nonmovant’s position will not suffice to avoid summary judgment. Anderson, 477 U.S. at 252.
III
A. First Amendment Claim
A public employee’s First Amendment right to freedom of speech is subject to limitations
when her speech is made pursuant to her official duties. Garcetti v. Ceballos, 547 U.S. 410, 418
(2006). Though her employment does not require her to completely surrender her First
Amendment rights, the government “need[s] a significant degree of control over [her] words and
actions.” Id. Accordingly, the government has discretion in how it restricts an employee’s
speech. Id. Neither party disputes that Jones was working in her capacity as a probation officer
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and was required to answer questions in open court regarding probationers as part of her official
duties. As the district court noted, Jones conceded as much in her affidavit, stating that it was
“part of [her] duties” to respond to a judge’s questions about her probationers.
Jones first disputes that the alleged false testimony took place at all. She also suggests
that she may have been fired for another reason altogether, owing to an adverse relationship with
the public defender who reported her alleged false statements to her supervisor.1 But this is
wholly unrelated to Jones’ § 1983 claim—that she was entitled to First Amendment protection
for the alleged false statements she made in court, which served as the basis for her termination.
We therefore move to her next argument, that the alleged false statements were entitled to
protection.
To determine if a public employee’s speech is entitled to protection, courts engage in a
two-step inquiry:
The first requires determining whether the employee spoke as a citizen on a matter of
public concern. If the answer is no, the employee has no First Amendment cause of
action based on his or her employer’s reaction to the speech. If the answer is yes, then the
possibility of a First Amendment claim arises. The question becomes whether the
relevant government entity had an adequate justification for treating the employee
differently from any other member of the general public.
Lane v. Franks, 134 S. Ct. 2369, 2378 (2014) (quoting Garcetti, 547 U.S. at 418). The Garcetti
Court elaborated on the first step by distinguishing employee speech from citizen speech, stating
that public employees who make statements pursuant to their official duties are “not speaking as
citizens for First Amendment purposes.” Id. (citing Garcetti, 547 U.S. at 421). We find that
Jones does not satisfy the first step and thus her First Amendment claim fails.
1
We also note that in another section in her brief, Jones states that it is “undisputed” that Duncan fired her for
testifying in open court. Jones’ arguments are incompatible and inconsistent.
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To satisfy the first step, Jones argues that testimony in open court is “always a matter of
public concern.” This is plainly wrong. In Lane, the Supreme Court analyzed whether the
plaintiff’s sworn testimony outside the scope of his ordinary job duties was speech as a citizen
for First Amendment purposes. 134 S. Ct. at 2378. If testimony in open court was “always a
matter of public concern,” as Jones claims, the Lane Court would have so indicated and would
not have investigated the contours of First Amendment protections as applied to an employee
who gives testimony related to his employment but outside the scope of that employment. 134
S. Ct. at 2378-79. The Court simply would have stated that sworn testimony satisfies the first
step of the inquiry. Instead, Lane distinguished the speech at issue in that case, testimony related
to a public corruption scandal, from the speech in Garcetti, an internal memorandum made
pursuant to that employee’s official duties, and emphasized that the “critical question” is whether
the speech is ordinarily within the scope of the employee’s duties. Id. at 2379-80.
We have noted that determining if an employee is speaking as a private citizen “can be
challenging.” Mayhew v. Town of Smyrna, Tennessee, 856 F.3d 456, 464 (6th Cir. 2017). But
the facts here are straightforward: Jones, a public employee, stated that testifying in court was
part of her official job duties. As instructed by Lane and Garcetti, we focus on Jones’ “ordinary
job responsibilities” and look practically at her job duties. Id. at 465. As her alleged false
statements were undoubtedly made pursuant to her employment, she fails the first step of the
inquiry. Accordingly, Jones’ First Amendment claim fails.
B. PEPFA Claim
Jones appeals the district court’s grant of summary judgment on her state law claim under
PEPFA, arguing that 1) summary judgment was inappropriate, and, in the alternative, 2) the
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district court should have declined to exercise supplemental jurisdiction over her state law claim
and dismissed it without prejudice. For the reasons below, we reject Jones’ arguments.
PEPFA provides that a public employer cannot “discipline, threaten to discipline or
otherwise discriminate against an employee because such employee exercised that employee’s
right to communicate with an elected public official.” Tenn. Code Ann. § 8-50-603(a). Jones
argues that it is “undisputed” that she was terminated for communicating in open court with the
judge, an elected public official. The County argues that the district court correctly found that
Jones was terminated not for communicating with the judge in that case, but for allegedly
providing false testimony, rendering PEPFA inapplicable. The Tennessee Court of Appeals has
stated that the purpose of PEPFA is “to facilitate free and open communication between public
employees and elected officials by deterring the public employer from taking discriminatory
actions against an employee because of such communication.” Pewitt v. Buford, No. 01A01-
9501-CV-00025, 1995 WL 614327, at *5 (Tenn. Ct. App. Oct. 20, 1995). The purpose alone
suggests that Jones’ claim is not the type that spurred PEPFA’s enactment.
A review of case law on this point is instructive. In Pewitt, a county trustee’s office
employee brought suit under PEPFA for discriminatory conduct against her by her employers
after she communicated allegations of criminal misconduct at the trustee’s office to a county
commissioner. Id. at *1-2. In another case, a police officer brought a PEPFA claim for
termination following his discussion with an investigator about officer wrongdoing. Guthoerl v.
City of Mount Juliet, Tennessee, No. 3:05-0131, 2006 WL 1454736, at *3, 7 (M.D. Tenn. May
22, 2006). Here, Jones’ testimony was not a volitional attempt to inform the judge of
institutional misconduct or wrongdoing unrelated to her ordinary job duties—it was simply the
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fulfillment of one of those duties. It is hard to imagine that PEPFA was designed to reach this
type of communication.
The County has not argued that Jones was terminated because of her communication with
the judge. Rather, Jones was terminated for failure to perform one of her job duties—to testify
truthfully in open court. To argue that Jones was fired for simply answering the judge’s
questions would beg the question why Jones, or any other probation officer, had not been
terminated previously when performing an ordinary job duty. Accordingly, we find that Jones
was terminated for reasons other than exercising her right to communicate with a public official.
As such, Jones has failed to state a claim under PEPFA.
Finally, we address Jones’ argument on supplemental jurisdiction. “We review the
district court’s decision to exercise supplemental jurisdiction for abuse of discretion.” Kuivila v.
City of Conneaut, 430 F. App’x 402, 404 (6th Cir. 2011) (citing Harper v. AutoAlliance Int’l.,
Inc., 392 F.3d 195, 209 (6th Cir. 2004)). “An abuse of discretion exists only when we are left
with the definite and firm conviction that the district court made a clear error of judgment in its
conclusion upon weighing relevant factors.” Hucul Advert., LLC v. Charter Twp. of Gaines,
748 F.3d 273, 275 (6th Cir. 2014) (citing Veneklase v. Bridgewater Condos, L.C., 670 F.3d 705,
709 (6th Cir. 2012)).
Jones argues that the district court should have declined supplemental jurisdiction over
her state law claim. The appeal on the PEPFA claim involves the same facts as the First
Amendment claim, and Jones does not dispute that the two claims formed part of the same case
or controversy. See id. at 281. Under 28 U.S.C. § 1367(c), the district court could have declined
to exercise supplemental jurisdiction in one of four circumstances: 1) the State law claim raised a
novel or complex issue of State law; 2) the State law claim predominated over the federal claim;
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3) the district court dismissed the federal claim; or 4) this case was an exceptional circumstance
in which compelling reasons existed for declining jurisdiction. If any of these circumstances was
present, we would review for abuse of discretion. See Hucul Advert., LLC, 748 F.3d at 281.
“But in the absence of any such circumstance, it does not appear that a court would be
authorized—let alone required—to decline to exercise jurisdiction.” Id.
Such is the case here. Jones does not assert the presence of any of the above
circumstances. She does not argue that the PEPFA claim raised a novel or complex issue of law
or that the PEPFA claim predominates over her federal claim under the First Amendment. The
district court did not dismiss Jones’ federal claim, but rather resolved it on the merits. Lastly,
Jones does not argue that compelling reasons existed for the district court to decline
supplemental jurisdiction. As no exception applies, the district court did not, and could not,
abuse its discretion in exercising supplemental jurisdiction over Jones’ PEPFA claim. See id.
Finally, Jones urges, without any support or argumentation, that her PEPFA claim should
have been dismissed without prejudice. In her reply brief, Jones makes an argument that the
district court abused its discretion when it dismissed her claims with prejudice. But as she only
makes this argument in her reply, the argument is waived. See United States v. Abboud, 438
F.3d 554, 589 (6th Cir. 2006) (“An argument first presented to the Court in a reply brief is
waived.”).
IV
For the foregoing reasons, we AFFIRM the decision of the district court.
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