[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
_____________________________U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEPTEMBER 11, 2007
No. 06-16031
_____________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 05-00064-CV-WCO-2
DEBORAH PHILLIPS,
Plaintiff-Appellant,
versus
CITY OF DAWSONVILLE, a municipal corporation,
JOE LANE COX,
MIKE SOSEBEE,
MIKE WILSON,
TIM WIMPEY, et al.,
Individually and in their Official Capacities,
Defendants-Appellees.
_________________________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________________________
(September 11, 2007)
Before EDMONDSON, Chief Judge, CARNES and FAY, Circuit Judges.
PER CURIAM:
Plaintiff Deborah Phillips (“Plaintiff”) appeals the district court’s grant of
summary judgment to the City of Dawsonville, its former and current mayors, and
four city councilmen (“Defendants”) against Plaintiff’s section 1983 claim of
retaliatory discharge in violation of Plaintiff’s First Amendment right to free
speech. No First Amendment cause of action has been presented. We affirm the
judgment.
I. Background
Plaintiff served as City Clerk of Dawsonville from September 2000 until the
City Council unanimously voted not to reappoint her in January 2004. The City
Clerk’s term of office is one year. Plaintiff had been reappointed in February 2002
and January 2003.
While City Clerk, Plaintiff became aware of several instances of what she
believed to be inappropriate conduct on the part of then Mayor Gilleland. Plaintiff
discovered that Gilleland had charged the city for a car battery purchased for his
personal car and for lumber purchased for his personal use. Plaintiff discussed the
car-battery issue with a Councilman, the city attorney, the city’s water and sewer
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superintendent, and the city’s assistant clerk. The Councilman confronted
Gilleland about the car battery; and Gilleland agreed to pay the invoice. In late
2002, Plaintiff confronted then Mayor Gilleland about his lumber purchase. As
before, Gilleland paid the invoice. Plaintiff discussed this issue with the city
attorney.
Plaintiff also came to believe that then Mayor Gilleland was improperly
using city-owned property. Plaintiff discussed her suspicions with a Councilman,
an employee in the city’s water and sewer department, and the city attorney.
Plaintiff also reported concerns about the storage of a city-owned truck on
Gilleland’s property to a Councilman, the city’s auditor, and the city attorney.
Plaintiff spoke with the city attorney and a member of City Council about
then Mayor Gilleland’s seemingly taking for his own benefit the labor of a city
employee and of a county prisoner on loan to the City. Also, Plaintiff became
aware of claims made by the assistant city clerk that Gilleland had sexually
harassed her. Nothing indicates that Plaintiff ever communicated her concerns
about the then Mayor’s conduct to anyone outside of the city’s employment.
In June or July 2003, two Councilmen met with then Mayor Gilleland,
Plaintiff, as well as the city attorney and a special legal counsel for Dawsonville to
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discuss the allegations about Gilleland’s conduct. Gilleland resigned shortly
thereafter.
In November 2003, Joe Lane Cox was elected Mayor of Dawsonville.
Before his election, Mayor Cox told Jonathan Cox (a City Council member) that
Mayor Cox intended to replace the existing city staff with people of his own
choosing, just as he had done when he had been elected probate judge and county
commissioner. After he was elected, Mayor Cox met with the members of the City
Council—Jonathan Cox, Tim Wimpey, Mike Wilson and Mike Sosebee—to seek
their support in replacing the city’s staff, including Plaintiff.
In January 2004, the City Council unanimously voted not to reappoint
Plaintiff as City Clerk. Mayor Cox did not vote. Each member of the City Council
indicated in his testimony that his vote not to reappoint Plaintiff was based upon a
desire to allow Mayor Cox to hire his own staff.
In 2005, Plaintiff initiated this suit against the 2004 City Council members,
Mayor Cox, former Mayor Gilleland, and the City of Dawsonville. She contends
that her non-appointment constitutes an unlawful retaliation.
Defendants moved for summary judgment. The district court granted
summary judgment to Defendants on the basis that Plaintiff was not speaking as a
citizen on a matter of public concern and so was entitled to no First Amendment
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protection. The district court also concluded that Plaintiff failed to offer evidence
showing that her speech was a substantial factor in the decision not to reappoint
her and concluded that Defendants established the City Council had a legitimate
and independent basis not to reappoint Plaintiff. Plaintiff appeals the district
court’s decision.
II. Discussion
We review a district court order granting summary judgment de novo,
viewing the evidence and all reasonable inferences drawn from it in the light most
favorable to the nonmoving party. Sierra Club, Inc. v. Leavitt, 488 F.3d 904, 911
(11th Cir. 2007). Summary judgment is appropriate when no genuine issue of
material fact exists and the moving party is entitled to judgment as a matter of law.
Id.
For a public employee to sustain a retaliation claim for speech protected
under the First Amendment, the employee must establish, among other things, that
the employee spoke as a citizen on a matter of public concern. Battle v. Bd. of
Regents, 468 F.3d 755, 759–60 (11th Cir. 2006) (citing Anderson v. Burke
County, 239 F.3d 1216, 1219 (11th Cir. 2001)). The Supreme Court in Garcetti v.
Ceballos, 126 S. Ct. 1951, 1960 (2006), established “that when public employees
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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.”
Here, Plaintiff served as the City Clerk and City Treasurer. City Charter,
City of Dawsonville, HB 1887, 1995-1996 Sess. § 3.13 (Ga. 1996) (“The council
may appoint a city clerk, who shall also serve as the city treasurer.”). The position
of City Clerk is created by law and is mentioned, in the City of Dawsonville
Charter, alongside the City Manager and City Attorney. City Charter, City of
Dawsonville, HB 1887, 1995-1996 Sess. § 3.1 (Ga. 1996) . Plaintiff was
supervised by and reported directly to the Mayor.
As detailed in the city clerk job description, Plaintiff was responsible for
“the collection, custody, accounting and disbursement of [all City] funds.”
Plaintiff acknowledges that her duties also included keeping the Mayor and the
Council informed of the financial condition of the city. “Considerable knowledge
of municipal laws, policies, codes, [and] regulations” is listed in the job
description as necessary to the position of City Clerk. Plaintiff further admitted
that her duties included, but were not limited to, “serving as ‘City election
superintendent’”; “supervising ‘accounting and clerical staff’”; “assisting in
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‘preparation of budget estimates’”, and “performing ‘other duties [] as requested
by Mayor and Council or required by law, City ordinance or resolution.’”
Plaintiff claims retaliation based upon her disclosures about former Mayor
Gilleland’s conduct while in office. These allegations relate to the use of City
funds to purchase a car battery and lumber; to the storage of City property at his
home; to the use of city and county labor (on loan to the City) for the Mayor’s
private benefit; and to the sexual harassment of an employee who was Plaintiff’s
assistant and under Plaintiff’s general supervision.
All these allegations touch on a misuse of City resources—money, services,
or property—for the Mayor’s private gain or on potential city liability or both.1
Although her enumerated duties did not specify reporting misconduct by the
Mayor, it was within her official duties to inquire about and make statements on
the potentially inappropriate use of the City resources. Plaintiff’s reports to other
persons associated with the City government about Mayor Gilleland’s breach of
his own fiduciary duty to the City were pursuant to her official duties, given her
1
Plaintiff’s statements about the assistant city clerk’s allegations of sexual harassment touched
on a potential liability for the City and involved Plaintiff’s duties as a supervisor of “accounting and
clerical staff.”
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position as both City Clerk and City Treasurer.2 Litigation involving the Mayor
might have a significant impact on City funds.
Plaintiff contends that reporting her concerns about Gilleland’s behavior is
protected by the First Amendment; she stresses that her speech—reporting the
then Mayor’s seeming misconduct—fell outside the scope of her official
enumerated duties. But we conclude she was speaking in accord with her duty as
the City Clerk and not as a private citizen. The Court in Garcetti wrote that a
public employee’s duties are not limited only to those tasks that are specifically
designated. 126 S. Ct. at 1962 (“[T]he listing of a given task in an employee’s
written job description is neither necessary nor sufficient to demonstrate that
conducting the task is within the scope of the employee’s professional duties for
First Amendment purposes.”). The appropriate inquiry, the Court directed, is a
pragmatic one. Id. at 1961; see also D’Angelo v. Sch. Bd. of Polk County, Fla., –
F.3d – (11th Cir. 2007) (affirming judgment as a matter of law in favor of
defendant school board where a principal alleged retaliation for his efforts to
2
This Court does not decide today whether, as suggested by the District Court, all city employees
owe a duty of loyalty to the city as a matter of Georgia state law. Plaintiff’s position as City Clerk
distinguishes her from city employees with more narrow duties; we only address the circumstances
before us now.
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convert his school into a charter school even though there was no assigned duty to
pursue charter conversion).
Plaintiff’s appointed position as City Clerk gave her some control over and
accountability for City funds and placed her in a supervisory role over some staff.
We conclude that the reporting here of the improper use of city resources and of
behavior that might well result in expense and even liability for the City was
speech pursuant to Plaintiff’s official duties. She is, therefore, entitled to no First
Amendment protection for this speech.
We conclude that, because the First Amendment does not protect a
government employee fulfilling official responsibilities, Plaintiff’s retaliation
claim must fail. See Garcetti, 126 S. Ct. at 1961; Battle v. Bd. of Regents, 468
F.3d 755, 761-62 (11th Cir. 2006).3
AFFIRMED.
3
We conclude that Plaintiff has not been deprived of her First Amendment right to free speech.
Under the circumstances, we also conclude that the preexisting law at the time of the pertinent
reappointment decision was unclear on whether the First Amendment would be violated if Plaintiff
were not reappointed. Qualified immunity would protect the individual defendants if they were
otherwise liable.
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