[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 06-15104 ELEVENTH CIRCUIT
MARCH 14, 2007
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D.C. Docket No. 04-00014-CV-MHS-1
SHIRLIE D. GREEN,
Plaintiff-Appellee,
versus
SHERIFF JACQUELYN H. BARRETT,
individually and in her official capacity,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(March 14, 2007)
Before TJOFLAT, HULL and COX, Circuit Judges.
PER CURIAM:
In this appeal, we consider whether an employer is entitled to qualified
immunity for firing a public employee as a result of testimony the employee gave
pursuant to her official duties. We reverse the district court’s denial of qualified
immunity to the employer.
I. FACTS AND PROCEDURAL HISTORY
On March 26, 2003, Shirlie D. Green, then Chief Jailer at the Fulton County
Jail, testified at an emergency hearing in Fulton County Superior Court. The hearing
had been called at the request of Fulton County Sheriff Jacquelyn Barrett to consider
whether Jamil Abdullah Al-Amin, convicted murderer of a Fulton County deputy
sheriff, should be transferred from the Fulton County Jail to a maximum security state
prison. A week earlier, Al-Amin had attempted to escape from the Fulton County
Jail. Before he was apprehended, security cameras showed Al-Amin opening his jail
cell and moving freely about the jail.
Green testified at the hearing that “many of the cell door locks were either
broken or could be easily jammed by prisoners, including locks in the area of the jail
used to house high-security prisoners such as Al-Amin,” and that “prisoners regularly
let themselves out of the cells at night.” (R.1-12 ¶¶ 25, 26.) Green also testified that
she thought the jail was “unsafe . . . insofar as housing inmates like Al-Amin [was]
concerned.” (R.1-12 ¶ 28.)
The next day, Barrett fired Green. Green’s termination letter gave no reason
for the firing, but Green alleges that Barrett told Green she was being fired because
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of her testimony. (R.1-12 ¶ 33.) In a story published in the Atlanta Journal-
Constitution the day after the firing, Barrett is quoted as saying, “I was so concerned
about that testimony that the chief gave that she was terminated today.” (R.1-12 ¶
35.)
Green sued Barrett, individually and in her official capacity, and Fulton
County, pursuant to 42 U.S.C. § 1983 and Article I, Section I, Paragraph V of the
Georgia Constitution. The amended complaint alleges that Barrett violated Green’s
free speech rights as protected by the First Amendment to the United States
Constitution and the above cited provision of the Georgia Constitution.
Fulton County and Barrett moved for summary judgment. On July 26, 2005,
the district court granted Fulton County’s motion. In the same order, the district court
denied Barrett’s motion, finding that she was not entitled to qualified immunity or
official immunity. Barrett filed a notice of appeal in this court, but her appeal was
dismissed for failure to prosecute.
When the case proceeded in the district court, Barrett renewed her motion for
summary judgment on qualified immunity grounds in light of the newly published
opinion in Garcetti v. Ceballos, ___ U.S. __, 126 S. Ct. 1951 (2006). On September
6, 2006, the district court denied Barrett’s renewed motion, finding that Garcetti did
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not change its conclusion that Barrett was not entitled to qualified immunity. Barrett
appeals the September 6, 2006 order.
II. ISSUE ON APPEAL & STANDARD OF REVIEW
In this interlocutory appeal, we consider whether the district court erred in
denying Barrett qualified immunity on Green’s section 1983 claim. Green argues that
this court does not have jurisdiction to consider the appeal because the parties dispute
questions of fact. However, when considering the merits of the appeal, we may
“accept as true all facts the district court assumed when it denied summary judgment
on qualified immunity grounds.” See Badia v. City of Miami, 133 F.3d 1443, 1445
(11th Cir. 1998) (citations omitted). The district court found that Green’s testimony
“played a substantial role in [Barrett’s] decision to fire” Green. (R.3-97 at 14.)
Accepting that fact, what remains is a purely legal question – whether Barrett is
entitled to qualified immunity for firing Green because of her testimony – that we
have jurisdiction to consider de novo. See Mitchell v. Forsyth, 472 U.S. 511, 530,
105 S. Ct. 2806, 2817 (1985) (“[A] district court’s denial of a claim of qualified
immunity, to the extent that it turns on an issue of law, is an appealable ‘final
decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a
final judgment.”); Cagle v. Sutherland, 334 F.3d 980, 985 (11th Cir. 2003) (“A
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defendant's entitlement to qualified immunity is a question of law to be reviewed de
novo.”).
Though Barrett’s appellate brief raises the question, we do not consider
whether the district court erred in denying her official immunity on Green’s state law
claims. That question is not properly part of this appeal. It was not addressed in the
district court’s September 6, 2006 order, and appeal of the July 28, 2005 order is
untimely.
Neither do we address the question of whether Green’s claims against Barrett,
in her official capacity, are properly a part of the lawsuit. Barrett’s Notice of Appeal
states that she appeals the district court’s order in both her official and individual
capacities. The district court held that this a suit against Barrett in her official
capacity is a suit against the State of Georgia. Because Barrett makes no arguments
on behalf of the state in her briefs and the scope of our review is limited to the
qualified immunity question, we do not discuss this issue.
III. DISCUSSION
We apply a two-step analysis to determine when an official acting within her
discretionary authority1 is eligible for qualified immunity. Saucier v. Katz, 533 U.S.
1
The parties do not dispute that Barrett was acting within her discretionary authority when
she fired Green.
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194, 201, 121 S. Ct. 2151, 2156 (2001). First, we ask whether the facts, taken in the
light most favorable to the party asserting the injury, show that the conduct violated
a constitutional right. Id. Second, if a constitutional right was violated under the
plaintiff's version of the facts, we must then determine “whether the right was clearly
established.” Id.
To determine whether Barrett violated Green’s First Amendment right to free
speech, we first determine whether Green’s testimony constitutes speech protected
by the First Amendment. To be protected speech, Green’s testimony must be “fairly
characterized as constituting speech on a matter of public concern.” Connick v.
Myers, 461 U.S. 138, 146, 103 S. Ct. 1684, 1690 (1983). The district court found that
Green’s testimony was speech on a matter of public concern because it pertained to
matters of public safety. (R.3-97 at 12.) We disagree.
Our precedent clearly holds that “[t]he fact that [the communicated]
information may be of general interest to the public . . . does not alone make it of
‘public concern’ for First Amendment purposes.” Morris v. Crow, 142 F.3d 1379,
1381 (11th Cir. 1998) (citing Connick, 461 U.S. at 148 n.8, 103 S. Ct. at 1691 n.8).
The key consideration is the purpose of the communication. Id. at 1381, 1382. If a
public employee plaintiff speaks as a citizen with the purpose of raising a matter of
public concern, then the speech is generally protected, subject to some narrow
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exceptions. Garcetti, 26 S. Ct. at 1958; Morris, 142 F.3d at 1382. However, if a
plaintiff speaks as part of her duties as a public employee, the speech is not protected
by the First Amendment. Garcetti, 126 S. Ct. at 1959-1960; Morris, 142 F.3d at
1382. This distinction is not affected by the fact that the plaintiff made the statements
in testimony. Morris, 142 F.3d at 1383 (“The mere fact that Morris’s statements were
made in the context of a civil deposition cannot transform them into constitutionally
protected speech.”); see also Garcetti, 126 S. Ct. at 1960 (holding broadly “that when
public employees make statements pursuant to their official duties, the employees are
not speaking as citizens for First Amendment purposes, and the Constitution does not
insulate their communications from employer discipline.”).
Green does not dispute that she testified at the hearing because she was the
Chief Jailer, the public employee responsible for the conditions at the jail. Nor does
she contend that the purpose of her statements was to communicate to the public her
concerns about the general safety of the Fulton County Jail or the necessity for
change in the conditions of the jail. Rather, her statements were made in a hearing
conducted for the specific purpose of assessing whether the jail was a safe place for
inmate Al-Amin to be housed.
On these facts, Green’s testimony was given pursuant to her official duties as
Chief Jailer. Therefore, it is not protected by the United States Constitution.
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Barrett’s firing of Green did not violate Green’s First Amendment right to free
speech.
Additionally, even assuming Green’s testimony were considered speech on a
matter of public concern, this was not clearly established by Supreme Court or
Eleventh Circuit precedent at the time Barrett fired Green. Indeed, while there is
Eleventh Circuit precedent supporting the proposition that a public employee may
have a First Amendment interest in testimonial communications made in the context
of investigative proceedings, see Martinez v. City of Opa-Locka, 971 F.2d 708 (11th
Cir. 1992), there is also (as is discussed above) long-standing circuit precedent that
not all communications on matters of general interest to the public enjoy First
Amendment protection, even if those communications are made in the course of
subpoenaed testimony. See Morris, 142 F.3d 1379.
When Green gave her testimony, she was not, as a matter of law, exercising a
clearly established First Amendment right. Therefore, Barrett, in her individual
capacity, is entitled to qualified immunity on Green’s section 1983 claim.
IV. CONCLUSION
For the foregoing reasons, the district court’s order denying Barrett qualified
immunity individually is REVERSED, and the action is REMANDED to the district
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court with instruction to enter judgment in favor of Barrett individually on Green’s
section 1983 claim.
REVERSED AND REMANDED.
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