Boyce v. Andrew

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
______________________ ELEVENTH CIRCUIT
DECEMBER 21, 2007
No. 06-11967 THOMAS K. KAHN
______________________ CLERK

D.C. Docket No. 04-02028-CV-CC-1

CLARINDA BOYCE,
KATINA ROBINSON,

Plaintiffs-Appellees,

versus

GWENDOLYN ANDREW,
KATHERINE HERREN,
GLENDA MCMILLAN,

Defendants-Appellants.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________

(December 21, 2007)

Before BIRCH and PRYOR, Circuit Judges, and NANGLE,* District Judge.

*
Honorable John F. Nangle, United States District Judge for the Eastern District of
Missouri, sitting by designation.
PER CURIAM:

This interlocutory appeal from the denial of qualified immunity to

supervisors in a county Department of Family and Children Services (“DFCS”)

requires us to determine if internal complaints about caseloads are constitutionally

protected public speech that shield the employees from termination or transfer.

The district judge determined that case managers who complained regarding their

caseloads had raised a public concern encompassed by the First Amendment. We

REVERSE and REMAND.

I. BACKGROUND

Dekalb County DFCS (“Dekalb DFCS”), a component of the Georgia

Department of Human Resources (“DHR”) Division of Family and Children

Services, is responsible for investigating and supervising cases involving child

welfare and abuse in Dekalb County. Plaintiffs-appellees, Clarinda Boyce and

Katina Robinson, were Social Services Case Managers, or case workers, in the

Child Protective Services (“CPS”) Investigations Unit of Dekalb DFCS. Boyce

was employed from December 2002 until April 9, 2004, when she was terminated

for performance deficiencies. Robinson, hired in May 2003, remains employed at

Dekalb DFCS, but she was transferred on March 1, 2005, from the CPS

Investigations Unit to the Telephone Intake Unit because of her deficient

2
performance.

Defendants-appellants were in management/supervisory positions at Dekalb

County DFCS during the relevant time. Defendant-appellant Gwendolyn Andrew,

formerly a case manager, was promoted to Social Services Supervisor for CPS

investigations on December 1, 2003. She supervised Boyce for approximately four

months and Robinson for approximately fifteen months. Andrew assigned cases as

well as monitored and supervised investigations for CPS. Defendant-appellant

Katherine Herren, an employee of DHR, was assigned to Dekalb DFCS as Acting

Social Services Director. She was responsible for administering the child welfare

programs, identifying problems, and making needed changes. Defendant-appellant

Glenda McMillan was employed at Dekalb DFCS as the Social Services

Administrator, but she has not been employed by Dekalb DFCS since June 30,

2004. Walker Solomon, II, was the Director of Dekalb DFCS.

CPS is the unit of DFCS that is responsible for making the initial contact and

investigation of allegations of child abuse or neglect. Case managers are required

to respond to such allegations within twenty-four hours or five days, depending on

the nature of the allegation. Thereafter, the CPS investigations case manager

assesses the environment and submits the case for closure within thirty days. In

addition to the initial contact with the family and child, the investigation includes

3
additional necessary contacts, and submission of required forms. A case is

considered closed or terminated when all necessary contacts have been completed

and all required forms submitted. If contact needed to be maintained or DFCS

needed to monitor the situation, the case was referred to the Ongoing Services Unit

of CPS, a different unit of DFCS. During 2003 and 2004, supervisors expected

case managers to close at least four cases a week.

For the period 2002-2004, DFCS experienced difficulties in maintaining

caseloads of all of its case managers because of extremely high caseloads and

turnover in employees.1 To address the high caseloads, DFCS case managers used

several methods. Case managers were allowed to “come off rotation,” which

meant that the case manager was skipped for a new assignment in the rotation

1
In his order, the district judge described this situation at Dekalb DFCS, while Boyce and
Robinson were case managers:

Multiple problems existed in CPS Investigation during
Boyce and Robinson’s tenure. The unit was understaffed.
Attrition was high. Management was in flux and temporary
employees handled much of the work. Child Welfare League of
America guidelines recommend that a case manager carry between
12 and 15 cases at one time. In October of 2003, Dekalb DFCS
case managers had an average of 30 to 35 cases. In December of
2004, the average case manager had 35 to 40 cases. Three children
in DFCS died in 2002. Three more died in 2003. In October of
2003, DHR sent a team of three management level employees to
Dekalb DFCS, instructing them to identify and address existing
problems.

R2-29 at 3.

4
wheel so that the case manager would have additional time to close his or her

existing caseload before the assignment of new cases. Additionally, case managers

were given overtime to complete additional work outside normal working hours;

temporary employees were hired and assigned to assist case managers; various

dictation systems were employed to assist in finalizing reports; and employees

were assigned to the Dekalb office from the state DFCS office to monitor

caseloads.

Boyce and Robinson complained to their supervisors about the size of their

caseloads. Primarily, these complaints were electronic mails sent to their

supervisors. Boyce and Robinson also used an “Assignment Despite Objection” or

“ADO” form provided by their union to advise an employer without being

insubordinate of the amount of work that had been assigned and to notify the

employer that it was too much to handle.

During 2003 and 2004, Boyce complained to her supervisors, management,

and her union that her caseload of more than fifty cases was too high. She gave

three ADO forms to Herren and McMillan. From September 2003 until January

2004, Boyce was asked to come off rotation so that she could devote more time to

investigating and closing cases. Management also reassigned some of her cases.

During this time, however, Boyce closed no cases, which she represents was

5
because she had to spend more time in court on other assignments.

From the outset of her four months of supervision, Andrew had difficulty

with Boyce’s not being able to close cases. On March 4, 2004, Andrew assigned

her four new cases. Boyce returned the case files to Andrew and told her that she

would not take any new cases. Andrew complained to DeKalb DFCS

management, and Boyce received a reprimand letter from Solomon, to which she

responded by a letter characterizing her exchange with Andrew as a “frustrated

outburst.” Boyce Dep. at 109. In describing her stress and frustration with her

high caseload, Boyce said: “Just really overwhelming feeling that you’re going to

wake up and a child’s going to be injured or dead as a result of you not being able

to help that family, help that child.”2 Id. at 84.

McMillan placed Boyce on a work performance plan with deadlines for

closing out fifty-one cases that were at least ninety days overdue.3 Because Boyce

2
Andrew, Boyce’s direct supervisor, did not recall that Boyce expressed any concern for
the welfare of the children for whom she was responsible. Andrew Dep. at 28. Similarly,
McMillan, the supervisor for the investigations unit and Boyce’s intermediate supervisor,
testified that Boyce “never verbalized” to her that children were at risk because case managers
were not given sufficient time to investigate cases. McMillan Dep. at 24. When Herren, the
Acting Social Services Director at Dekalb DFCS, was asked if Boyce discussed with her
concerns about children’s lives being put in danger because of the caseload management, she
responded: “She did not discuss with me any concerns about child safety.” Herren Dep. at 54
(emphasis added).
3
Andrew testified that Boyce “just basically was not producing,” Andrew Dep. at 23,
“[a]pproximately 80 percent” of her cases “were not being submitted timely,” id. at 26.
McMillan testified that Boyce was “delayed in producing the work,” and “there was missing
documentation from the record to indicate what work was done.” McMillan Dep. at 19. Herren

6
failed to meet the deadlines of her performance plan, Andrew and McMillan

recommended to Solomon that she be terminated.4 They were advised that her

termination had been approved by the state office on April 7, 2004.

The same day, Dr. Janet Olivia, Director of DFCS, visited Dekalb DFCS.5

During the meeting with Dr. Olivia and the entire staff, Boyce asked whether the

state had developed a system to alert DHR when a case manager had been assigned

too many cases; whether the Governor’s office had instituted certification

requirements for case mangers; and whether there were any checks and balances in

place as to the assignment of cases before a crisis occurred, such as the death of a

child. She also stated that lack of communication and low morale contributed to

the deaths of children in DFCS care, that generally case managers were not getting

help, and that Dekalb DFCS appeared to be ineffective.

After the meeting, Boyce was notified of her dismissal. Defendants-

testified that Boyce’s work was not satisfactory, and, as an example, explained that she had
disagreed with Boyce’s recommendation to continue a case for longer than 30 days. Herren
Dep. at 46-47. Herren’s concerns with Boyce’s work as to her caseload, which was consistent
with other case managers, was her case management generally and her inability to meet
deadlines and close cases. Id. at 49-50.
4
The recommendation for Boyce’s termination occurred after she had been placed on a
work plan with “a number of discussions about [her] progress before there was a decision made
about termination.” McMillan Dep. at 22. “Her performance on her work plan is what led to her
termination.” Id. at 26.
5
Dr. Olivia additionally served in the capacity of special advocate to the Commissioner.
Andrew Dep. at 38. Andrew testified that the open meeting with Dr. Olivia included “practically
everybody in child welfare.” Id.

7
appellants maintain that her termination had nothing to do with her outspokenness

at the meeting, because Andrew and McMillan had presented Boyce’s lack of

productivity to personnel before Dr. Olivia’s meeting with the Dekalb DFCS staff,

and her termination had been approved prior to the meeting. The undisputed

evidence shows that Herren was not involved in the decision to terminate Boyce.

Robinson complained to her supervisors verbally and by electronic mail

concerning her burdensome caseload, mismanagement, and child safety. She

submitted at least seven ADOs in which she objected to her high caseload and

requested help.6 Generally, Robinson’s work-related complaints were that she was

6
In six of her ADOs, Robinson’s handwritten explanation is identically worded with the
only distinctions being the number of cases that she was handling contrasted with the
recommended standard of 15 by the Child Welfare League of America and the number of cases
in which she had been unable to contact the child:

I am currently at a dangerously high caseload. I have repeatedly requested help
with this situation; however I have not been given enough time to process and
investigate the cases on my enormously high caseload. I am once again making
the agency aware of this situation. There are 20 cases that I have not been able to
make any type of contact with the child.

Robinson Dep. Exh. 7, Mar. 2, 2004 ADO (74 cases); Feb. 23, 2004 ADO (66 cases, 11 cases
with no child contact); Feb. 23, 2004 (65 cases, 10 cases with no child contact); February 20,
2004 (64 cases, 9 cases with no child contact); Feb. 19, 2004 (63 cases, 9 cases with no child
contact).
Robinson’s sixth ADO in the record has the following handwritten explanation
concerning her 63 pending cases:

On February 10, 2004 I sent correspondence to my supervisor Gwen Andrews and
social services administrator Glenda McMillan alerting them that my case load is
currently extremely high and I have not been able to make contact with 19
Families. I have now a total of 13 cases including the one that was assigned to
me today that have not been responded to. I am requesting more time off of

8
continuously receiving new cases without processing the old cases that she had;

she was not able to meet response times because of the caseload; and, because she

was in court on cases, she was not adequately supervised; she had been subjected

to supervisors with inconsistent management styles; and she did not want to

receive new cases because she was uncomfortable with not being able to process

the cases that she already had been assigned. Robinson also complained to

McMillan that her caseload was high and that all of her caseload was not

accurately reflected on case management lists, although she did not know why they

were not listed. Generally, she contended that her high caseload impacted

negatively on the safety of children in care of Dekalb DFCS.

Robinson argues that she was subjected to retaliation by her supervisors at

Dekalb DFCS because of reporting her high caseload and mismanagement. When

Andrew met with Robinson to discuss her cases, they met one on one, whereas

Robinson states that Andrew met with other case managers as a group. Robinson

further contends that Andrew gave her inconsistent instructions concerning

meeting with families. Robinson additionally believed that the delay in assistance

rotation to attend to this issue and to work the other 50 cases and bring some type
of closure to these cases that date back to October 2003.
I was off rotation Feb 10, 2004-Feb 13; however that is not enough time to attend
to the families that I have not seen and continue to work on all other cases on my
case load. I am once again requesting help with this situation.

Id. Feb. 17, 2004 ADO.

9
that she received on her caseload was because of her conversation with McMillan.

Robinson also received a reprimand from Mildred Hart, the Social Services

Administrator, which Solomon, as Director of Dekalb DFCS, later rescinded.

Robinson’s October 2004 performance evaluation stated that she did not meet

expectations in one category. While the evaluation was changed subsequently to

show that she met expectations, Robinson objected to the use of whiteout to make

the correction; Robinson ultimately received an evaluation of meeting expectations

for the period covered by the evaluation. Robinson initially was denied her request

for eighty hours of sick leave, which later was approved after she provided medical

documentation of her need for gallstone surgery.

On October 21, 2004, and November 23, 2004, Robinson requested that she

be transferred to another unit because of her difficulties in dealing with Andrew.7

7
Robinson’s November 23, 2004, electronic mail to Herren states:

Due to ongoing disturbances and abuse by Ms. Andrew, I am
requesting to be transferred to another unit or department. I am
requesting that the agency accommodate my request.

R1-18 at Robinson Dep. Exh. 9. Herren forwarded Robinson’s electronic mail to Hart, who
responded to Robinson:

I received a[n] email from you on 10/21/04 with the same request.
I advised you at that time to present documenting of the
disturbances and abuse cause[d] by Ms. Andrew. To date I have
not received anything from you regarding Ms. Andrew. I am more
than willing to address any issue you are having with your
supervisor. However, you must provide me with the
documentation.

10
On February 15, 2005, Solomon notified Robinson that she was approved to

transfer to the Telephone Intake Unit effective March 1, 2004, although her

requested transfer resulted in a five percent reduction of her monthly salary

because of losing the county supplement paid to employees of CPS. The record

does not show that either Andrew or Herren was involved directly in the decision

to transfer Robinson, and her transfer occurred after McMillan had left the

employment of Dekalb DFCS.8

Boyce and Robinson filed a 42 U.S.C. § 1983 action against their DFCS

supervisors, Andrew, McMillan, Herren, and Solomon,9 and alleged that Boyce’s

Id.
8
The district judge also described the supervisor defendants-appellants’ view of
Robinson’s work and complaints:

Defendants maintain that Robinson was unproductive,
failed to return telephone calls, and failed to appear for
appointments. Defendants further contend that clients complained
that Robinson threatened to eliminate their food stamp allotments
and in certain situations, to call police. Defendants state that they
provided Robinson with resources, time off rotation, the chance to
work over-time for pay, and assisted with time and caseload
management. Defendants also removed 80 cases from Robinson’s
caseload when Robinson returned from sick leave.

R2-29 at 13.
9
Solomon was a defendant in the district court. The district judge granted him summary
judgment because suit against him in his official capacity is a suit against the local government
entity, or Dekalb DFCS. Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 361 (1991); Vineyard v.
County of Murray, Ga., 990 F.2d 1207, 1210 n.3 (11th Cir. 1993) (per curiam). Therefore,
Solomon is no longer a party in this case.

11
termination and Robinson’s transfer were retaliation for their protected First

Amendment speech. In analyzing defendants’ summary judgment motion, the

district judge determined that Boyce and Robinson’s concerns over child safety

being sacrificed because of their high caseloads and mismanagement problems at

Dekalb DFCS were matters of public concern.10 He also concluded that Boyce and

Robinson were subjected to adverse employment actions because they spoke out

on these matters of public concern.11 The district judge concluded that Boyce and

Robinson were whistleblowers and that defendants had fair warning that their

actions could subject them to liability for alleged violation of a First Amendment

right. Accordingly, he denied defendants qualified immunity, which they

10
In determining that Boyce and Robinson had spoken concerning issues of public
concern, the district judge concluded that “the public has a strong interest in knowing that
children caught within the Dekalb DFCS system are not necessarily safe. The public also has an
interest in knowing that government officials are trying to make it appear that services at Dekalb
DFCS are improving, when they are not.” R2-29 at 20.
11
As a result of Boyce and Robinson’s alleged public-interest speech, the district judge
determined that their supervisors retaliated against them:

Boyce and Robinson were struggling with very large caseloads.
Both plaintiffs told their supervisors and others that they could not
adequately serve each family in their caseload because they had
too many cases. Subsequent to and concurrent with those
statements, Boyce and Robinson were subject to what they allege
to be management’s harassing, intimidating, and retaliatory
actions. Management’s most salient actions against Robinson and
Boyce are the reprimand and termination of Boyce and the
reprimand and transfer of Robinson.

R2-29 at 17.

12
challenge on interlocutory appeal.

II. DISCUSSION

A. Qualified Immunity Analysis

“Qualified immunity allows government employees to carry out their

discretionary duties without fear of litigation, ‘protecting from suit all but the

plainly incompetent or one who is knowingly violating the federal law.’” Mercado

v. City of Orlando, 407 F.3d 1152, 1156 (11 th Cir. 2005) (citation omitted). A

government employee acted within his or her discretionary authority if objective

circumstances show that the challenged actions occurred in the performance of the

employee’s duties “and within the scope of this authority.” Hill v. Dekalb Reg’l

Youth Det. Ctr., 40 F.3d 1176, 1185 n.17 (11 th Cir. 1994). In analyzing the

affirmative defense of qualified immunity, we use a two-part inquiry: (1) do the

alleged facts show that the government actor violated a constitutional right? and (2)

was that constitutional right clearly established? Saucier v. Katz, 533 U.S. 194,

201, 121 S.Ct. 2151, 2156 (2001). “The relevant, dispositive inquiry” for

determining clearly established law is whether a reasonable government

employee’s conduct was clearly unlawful in the situation confronted. Id. While

“[t]he law is clearly established that an employer may not demote or discharge a

public employee for engaging in protected speech,” Travers v. Jones, 323 F.3d

13
1294, 1295 (11 th Cir. 2003) (per curiam) (citing Rankin v. McPherson, 483 U.S.

378, 383, 107 S.Ct. 2891 (1987)), the threshold inquiry for deciding if qualified

immunity is appropriate is determining under First Amendment, government-

speech law whether there has been a constitutional violation by the government

employer.

B. First Amendment Inquiry

Government regulation of employees’ speech differs from its regulation of

the speech of its citizenry. Connick v. Myers, 461 U.S. 138, 140, 103 S.Ct. 1684,

1686 (1983); Pickering v. Board of Educ. of Twp. High Sch. Dist. 205, 391 U.S.

563, 568, 88 S.Ct. 1731, 1734 (1968). Acting as an employer, the government is

afforded broad discretion in its employment decisions. Johnson v. Clifton, 74

F.3d 1087, 1092 (11 th Cir. 1996). For a government employee’s speech to have

First Amendment protection, it was well settled by the Supreme Court in Connick

and Pickering that the employee must have (1) spoken as a citizen and (2)

addressed matters of public concern. Following this “directive,” we have

recognized that we must determine “whether the speech at issue was made

primarily in the employee’s role as citizen, or primarily in the role of employee.”

Kurtz v. Vickrey, 855 F.2d 723, 727 (11 th Cir. 1988). The Supreme Court has

clarified and simplified this inquiry by holding that “when public employees make

14
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.” Garcetti v. Ceballos, __ U.S.

__, __, 126 S.Ct. 1951, 1960 (2006).

In Garcetti, a Los Angeles County deputy district attorney wrote two

disposition memoranda recommending dismissal of the charges in a case, in which

his research revealed that a search warrant affidavit contained misrepresentations.

A meeting involving the deputy district attorney, his supervisors, and employees

of the Los Angeles County Sheriff’s Department, which allegedly became heated,

was conducted to discuss the search warrant affidavit. Despite the concerns

expressed by the deputy district attorney, the decision was made to proceed with

the prosecution. He was called by the defense regarding the alleged

misrepresentations at a hearing, but the trial judge rejected the challenge to the

search warrant. The deputy district attorney subsequently was transferred from

his calendar deputy position to a trial deputy position at another courthouse. He

sued under § 1983 and alleged that his change in job and location were retaliation

for his speech; the Ninth Circuit agreed, and the Supreme Court reversed.

Garcetti instructs that “[t]he proper inquiry is a practical one.” Id. at __,

126 S.Ct. at 1961. Focusing on the “citizen” aspect of the First Amendment

15
analysis, the Court determined that the research and memoranda were part of the

deputy district attorney’s official duties. Since his findings and recommendation

were “pursuant to” his official duties, he was not speaking as a citizen under the

First Amendment. Id. at __, 126 S.Ct. at 1960. The Court determined that

“[r]estricting speech that owes its existence to a public employee’s professional

responsibilities does not infringe any liberties the employee might have enjoyed as

a private citizen. It simply reflects the exercise of employer control over what the

employer itself has commissioned or created.” Id.

Following Garcetti, our circuit has modified the analysis of the first step of

the Pickering test for analyzing alleged government employer retaliation to

determine if an employee’s speech has constitutional protection by deciding at the

outset (1) if the government employee spoke as an employee or citizen and (2) if

the speech addressed an issue relating to the mission of the government employer

or a matter of public concern. D’Angelo v. School Bd. of Polk County, Fla., 497

F.3d 1203, 1209 (11 th Cir. 2007).12 To qualify as constitutionally protected speech

12
Following Pickering, our analysis of retaliation against an employee by a government
employer for alleged constitutionally protected speech has been comprised of four parts:

To prevail under this analysis, an employee must show
that: (1) the speech involved a matter of public concern; (2) the
employee’s free speech interests outweighed the employer’s
interest in effective and efficient fulfillment of its responsibilities;
and (3) the speech played a substantial part in the adverse
employment action. If an employee satisfies her burden on the

16
in the First Amendment, government employment retaliation context that warrants

the Pickering analysis, as Garcetti has specified, the speech must be made by a

government employee speaking as a citizen and be on a subject of public concern.

See Phillips v. City of Dawsonville, 499 F.3d 1239, 1242 (11 th Cir. 2007) (per

curiam) (concluding in a First Amendment, retaliation case following Garcetti that

the government employee “was speaking in accord with her duty as the City Clerk

and not as a private citizen”); Vila v. Padrón, 484 F.3d 1334, 1339 (11 th Cir. 2007)

(acknowledging after Garcetti that, to analyze a First Amendment, retaliation

claim for speech by a government employee, “[t]he threshold question is whether

[the government employee] spoke as a citizen on a matter of public concern”);

Mills v. City of Evansville, Ind., 452 F.3d 646, 647-48 (7 th Cir. 2006) (recognizing

that “[o]nly when a government employer penalizes speech that a plaintiff utters

‘as a citizen’ must the court consider” the Pickering analysis). If the government

employee, however, was speaking as an employee, then there can be no First

Amendment issue, and the constitutional inquiry ends with no consideration of the

Pickering test. See Mills, 452 F.3d at 647 (“Garcetti . . . holds that before asking

first three steps, [(4)] the burden then shifts to the employer to
show by a preponderance of the evidence that it would have made
the same decision even in the absence of the protected speech.

Cook v. Gwinnett County Sch. Dist., 414 F.3d 1313, 1318 (11th Cir. 2005). The first two parts
are questions of law, and the last two parts are questions of fact. Id.

17
whether the subject-matter of particular speech is a topic of public concern, the

court must decide whether the plaintiff was speaking ‘as a citizen’ or as part of her

public job.” (emphasis added)). Therefore, “[t]he Pickering balance is not

triggered unless it is first determined that the employee’s speech is

constitutionally protected.” Ferrara v. Mills, 781 F.2d 1508, 1513-14 (11 th Cir.

1986).

“A court must therefore discern the purpose of the employee’s

speech—that is, whether she spoke on behalf of the public as a citizen, or whether

the employee spoke for herself as an employee.” Morgan v. Ford, 6 F.3d 750, 754

(11 th Cir. 1993) (per curiam). Importantly, “the interests of the [government

employee], as a citizen, in commenting upon matters of public concern” must be

balanced with “the interest of the State, as an employer, in promoting the

efficiency of the public services it performs through its employees.” Pickering,

391 U.S. at 568, 88 S.Ct. at 1734-35. Therefore, “in the First Amendment

context, courts review restrictions on employees’ speech with greater deference in

order to balance the government employer’s legitimate interests in its mission.”

Engquist v. Oregon Dep’t of Agric., 478 F.3d 985, 995 (9 th Cir. 2007) (citing

Garcetti, __ U.S. at __, 126 S.Ct. at 1960). Accordingly, we initially must decide

whether Boyce and Robinson spoke as government employees or as citizens.

18
Deciding whether a government employee’s speech relates to his or her job as

opposed to an issue of public concern “must be determined by the content, form,

and context of a given statement, as revealed by the whole record.” Connick, 161

U.S. at 147-48, 103 S.Ct. at 1690.

As case managers for Dekalb DFCS, Boyce and Robinson’s job was to

investigate the cases of children allegedly at risk and to make recommendations to

their supervisors. Both failed to meet their case quotas. In their respective

electronic mails to supervisors and union ADOs, each claimed to be overworked

and commented that children could be mistreated or could die because Boyce and

Robinson were unable to handle all the cases assigned to them. Other than

mentioning the six children that had died previously, and who are not at issue in

this case, neither specifically identifies a single child who was in danger.

The form and context in which the complaints by Boyd and Robinson were

made are indicative of the fact that they intended to address only matters

connected with their jobs at Dekalb DFCS. Verbal, electronic mail, and ADO

complaints by Boyd and Robinson to their supervisors focus on their respective

views that their caseloads were too high, which caused each not to meet expected

deadlines, and their consequent need for assistance. Robinson’s complaints,

although more often in a written format as a letter or memorandum to a

19
supervisor, were not sent to an outside entity, like the teacher’s letter to a

newspaper in Pickering, and did not address any subject not personal to her

working conditions at Dekalb DFCS; she reiterated her same personal issues about

which she complains in her electronic mail communications with her supervisors.

We have determined that a police report generated in the “normal course of

[the plaintiff’s] duties” was not speech on a matter of public concern, although it

contained information unfavorable to the police department. Morris v. Crow, 142

F.3d 1379, 1382 (11 th Cir. 1998) (per curiam). “The fact that such information

may be of general interest to the public, however, does not alone make it of

‘public concern’ for First Amendment purposes.” Id. at 1381. “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.” Connick, 461

U.S. at 149, 103 S.Ct. at 1691.

Boyce additionally relies on statements that she made at the April 7, 2004,

staff meeting attended by Dekalb DFCS employees and a state supervisor.

Specifically, she asked whether there was any system in place to alert the state

office that a case manager had been assigned too many cases; whether the

Governor’s office was going to require that DFCS case workers be certified;

20
whether there were checks and balances in place regarding assignment of cases

before a crisis occurred, such as the death of a child; and generally complained

that no one was helping case managers with their cases. These questions asked in

an open staff meeting, like her other communications with her immediate

supervisors, concern her personal working conditions without reference to any

particular family, child, or case. Significantly, this speech by Boyce occurred

after she had been reprimanded and placed on a performance plan because of

performance issues raised by Andrew, McMillan, and Solomon and after her

dismissal had been recommended by Andrew and McMillan, and approved by

Solomon. Therefore, her remarks at the meeting could not have been an

instigating factor in the employment decisions of any of her defendant

supervisors. Additionally, the undisputed evidence in the record is that Herren

was not involved in Boyce’s dismissal.

A “public employee may not transform a personal grievance into a matter of

public concern by invoking a supposed popular interest in the way public

institutions are run.” Ferrara, 781 F.2d at 1516. “[T]he relevant inquiry is not

whether the public would be interested in the topic of the speech at issue but

rather is ‘whether the purpose of the [the plaintiff’s] speech was to raise issues of

public concern.’” Maggio v. Sipple, 211 F.3d 1346, 1353 (11 th Cir. 2000) (quoting

21
Morgan, 6 F.3d at 754) (alteration in original); see Renfroe v. Kirkpatrick, 722

F.2d 714, 715 (11 th Cir. 1984) (per curiam) (“[P]laintiff’s reference to the

students’ welfare during her oral presentation to the Board is not sufficient to

bring her grievance within the rubric of matters of ‘public concern.’”). The safety

of children under DeKalb DFCS care is the issue of paramount importance to the

purpose of the agency; it is intertwined with each act of a case manager and

impacts every aspect of the performance of a case manager’s job. The record in

this case reveals that the speech of Boyce and Robinson, while ostensibly

intermingled with issues of child safety and Dekalb DFCS mismanagement, was

not intended to address matters of public concern from the perspective of a citizen.

See White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1059 (2d Cir. 1993)

(recognizing that “[e]ven as to an issue that could arguably be viewed as a matter

of public concern, if the employee has raised the issue solely in order to further his

own employment interest, his First Amendment rights to comment on that issue is

entitled to little weight” (citing Connick, 461 U.S. at 154, 103 S.Ct. at 1694)).

Boyce and Robinson’s speech addressed personal grievances and

frustrations with their jobs as case managers at Dekalb DFCS, which they viewed

to be the result of mismanagement of internal administrative affairs generally with

no specific incidents of alleged false reporting or documentation. “When a public

22
employee speaks pursuant to employment responsibilities, . . . there is no relevant

analogue to speech by citizens who are not government employees.” Garcetti, __

U.S. at __, 126 S.Ct. at 1961. “Our responsibility is to ensure that citizens are not

deprived of fundamental rights by virtue of working for the government; this does

not require a grant of immunity for employee grievances not afforded by the First

Amendment to those who do not work for the State.” Connick, 461 U.S. at 147,

103 S.Ct. at 1690.

Importantly, as the Court held in Connick, “when a public employee speaks

not as a citizen upon matters of public concern, but instead as an employee upon

matters only of personal interest, absent the most unusual circumstances, a federal

court is not the appropriate forum in which to review the wisdom of a personnel

decision taken by a public agency allegedly in reaction to the employee’s

behavior.” 461 U.S. at 147, 103 S.Ct. at 1690 (emphasis added); see Vila, 484

F.3d at 1339 (“When a public employee speaks as an employee on matters of

personal interest and not as a citizen upon matters of public concern, the First

Amendment is not implicated.”). Government employers have “heightened

interests in controlling speech made by an employee in his or her professional

capacity,” because they “must ensure that their employees’ official

communications are accurate, demonstrate sound judgment, and promote the

23
employer’s mission.” Garcetti, __ U.S. at __, 126 S.Ct. at 1960. In this case,

Boyce and Robinson’s complaints and excuses about their workloads were

concerning and disruptive for their supervisors because the mission of Dekalb

DFCS, to investigate and make recommendations concerning children reportedly

in danger, was not being accomplished.

Boyce and Robinson’s supervisors had made some adjustments in their

respective workloads, but those measures did not resolve the problem. When it

became apparent to Robinson that she still could not meet her case review quota,

she requested a transfer, which was granted by her supervisors. Boyce’s written

and verbal complaints about her workload and the lack of help, as well as her

remarks expressed in an open staff meeting, were in stark contrast to the mission

of the Dekalb DFCS office and confirmed that her termination was the correct

decision. See Connick, 461 U.S. at 153, 103 S.Ct. at 1693 (“‘When a government

employee personally confronts his immediate superior, the employing agency’s

institutional efficiency may be threatened not only by the content of the

employee’s message but also by the manner, time, and place in which it is

delivered.’” (citation omitted)). “[T]he First Amendment does not prohibit

managerial discipline based on an employee’s expressions made pursuant to

official responsibilities.” Garcetti, __ U.S. at __, 126 S.Ct. at 1961. The Supreme

24
Court’s decisions in the First Amendment speech/government employment area

reflect “the common-sense realization that government offices could not function

if every employment decision became a constitutional matter.” Connick, 461 U.S.

at 143, 103 S.Ct. at 1688. Consequently, “government officials should enjoy wide

latitude in managing their offices, without intrusive oversight by the judiciary in

the name of the First Amendment.” Id. at 146, 103 S.Ct. at 1690.

Significantly, Boyce and Robinson were complaining to their superiors as

employees about their workloads for a work reason: they wanted to have their

caseloads reduced or to receive help with their work. The purpose of their

grievances clearly was not to raise public awareness about children within the care

of Dekalb DFCS. If that had been their intention, then they would have identified

the children who were in danger. Other Dekalb DFCS case managers supervised

by the same superiors during the relevant time did not join in Boyce and

Robinson’s § 1983 action.13 The record shows that this was an internal employee

matter and that Boyce’s termination and Robinson’s transfer were internal

decisions by their supervisors to accomplish the work of Dekalb DFCS.14 “[T]he

13
During the relevant time, Dekalb DFCS was experiencing difficulties in handling its
ongoing caseload for various reasons. Dedicated government employees generally work with
their supervisors to get through such times and to maintain the work rather than working against
them.
14
The amount of time and effort that Boyce and Robinson spent complaining and
registering their personal work grievances would have been better spent doing their case

25
First Amendment does not require a public office to be run as a roundtable for

employment complaints over internal office affairs.” Connick, 461 U.S. at 149,

103 S.Ct. at 1691.

Based upon review of the entire record, Boyce and Robinson “primarily

spoke” as employees “to improve [their] work environment”; they represent that

they were overworked and overwhelmed. Morgan, 6 F.3d at 755. As in Garcetti,

the “controlling factor” was that their expressions were made pursuant to official

duties, id. at __, 126 S.Ct. at 1959, and “the main thrust of [their] speech took the

form of a private employee grievance,” Morgan, 6 F.3d at 755. Moreover, Boyd

and Robinson’s cases necessarily were reassigned to others; Boyce was

terminated, and Robinson was transferred to another Dekalb DFCS unit,

Telephone Intake, at her request. Therefore, other Dekalb DFCS employees

assumed their responsibilities.

Because Boyce and Robinson spoke as government employees about their

jobs and not as citizens, they have “no First Amendment cause of action based on

[their] employer’s reaction to the speech,” and there is no need to engage in the

investigation jobs, which would have reduced the large caseload handled by the Dekalb DFCS
office. Essentially, if they were not performing their jobs, then their supervisors, whose focus is
on accomplishing the work of the office, needed to make necessary changes to achieve the
mission of Dekalb DFCS.

26
Pickering balancing analysis.15 Garcetti, __ U.S. at __, 126 S.Ct. at 1958. With

no constitutional right upon which to base Boyce and Robinson’s § 1983 case,

their Dekalb DFCS supervisors, Andrew, McMillan, and Herren, are entitled to

qualified immunity. See Anderson v. Burke County, 239 F.3d 1216, 1221 (11 th

Cir. 2001) (per curiam) (granting qualified immunity to employer where

employees asserted issues of understaffing and policies that affected the operation

of county 911 system). Because Boyce and Robinson have not shown a First

Amendment, retaliation cause of action concerning their supervisors for these

employees’ speech regarding their jobs, we reverse the denial of qualified

15
To the extent that Boyce and Robinson characterize themselves as whistleblowers, a
“‘core concern’ of the First Amendment” for those “who report government wrongdoing,” our
First Amendment analysis shows that this theory of relief is unavailing. Akins v. Fulton County,
Ga., 420 F.3d 1293, 1304 (11th Cir. 2005) (quoting Bryson v. City of Waycross, 888 F.2d 1562,
1566 (11th Cir. 1989)). In criticizing their superiors’ management of the important work of
Dekalb DFCS, Boyce and Robinson have made allegations regarding only Andrew, McMillan,
and Herren’s acting as supervisors in managing the case work during the relevant time, but they
have not demonstrated wrongdoing or corruption by these supervisors. In similar situations
following Garcetti of government employees’ challenging their terminations because they
reported alleged wrongdoing in government offices, our court determined that commentary by
government employees concerning alleged wrongdoing in a government office was related to the
government employees’ jobs and, therefore, they were not speaking as private citizens for the
purpose of First Amendment, retaliation claims. See Phillips, 499 F.3d at 1241-43 (upholding
summary judgment for the city defendants against First Amendment, retaliation allegations by
deciding that the City Clerk, whose position gave her control and accountability for city funds,
was acting within the scope of her duties when she reported that the mayor was improperly
charging the city for his personal expenses, and the City Clerk subsequently was not reappointed
by the City Council); Vila, 484 F.3d at 1339 (affirming judgment as a matter of law for college
president over First Amendment, retaliation charges by Vice President of External Affairs,
whose employment contract was not renewed following her reports of illegal and unethical
conduct by college president because her allegations “fall squarely within her official job duties
and are not protected by the First Amendment” (citing Garcetti, __ U.S. __, 126 S.Ct. at 1960)).

27
immunity to Andrew, McMillan, and Herren.

III. CONCLUSION

In this interlocutory appeal, government supervisor defendants-appellants

Andrew, Herren, and McMillan have challenged their being denied qualified

immunity for the respective termination and transfer of plaintiffs-appellees Boyce

and Robinson, both of whom formerly were case managers at Dekalb DFCS. The

district judge denied qualified immunity to the supervisors because he determined

that Boyce and Robinson’s complaining about their caseloads was a matter of

public concern, which afforded them First Amendment protection and that

Boyce’s termination and Robinson’s transfer were retaliation by defendants-

appellants. As we have explained, the First Amendment does not protect

government employees when they speak as employees as opposed to citizens.

Because the matters discussed by Boyce and Robinson were internal government

work matters at Dekalb DFCS, Andrew, Herren, and McMillan are entitled to

qualified immunity. We REVERSE the denial of qualified immunity by the

district judge and REMAND for the district judge to grant Andrew, Herren, and

McMillan qualified immunity and to dismiss this case against them.

28
BIRCH, Circuit Judge, concurring specially:

While I agree with the result in this case, pursuant to Garcetti v. Ceballos,

__ U.S. __, 126 S.Ct. 1951 (2006), I would implement a five-part

Garcetti/Pickering 1 analysis in First Amendment, retaliation cases in our circuit.

Garcetti neither overruled Pickering nor is it a “stand alone” decision. Evidenced

by the use of Pickering and its successors throughout the Garcetti analysis, the

Court augmented and clarified step one of the Pickering constitutional analysis.

Garcetti, __ U.S. at __-__, 126 S.Ct. at 1955-62. That is, in Garcetti, the Court

has instructed lower federal courts first to classify or categorize the government

speaker as an employee or a private citizen. If the government employee is

speaking as an employee, then there is no need to engage in the Pickering

constitutional analysis of deciding whether the government employee has spoken

as a citizen on a matter of public concern. Consequently, Garcetti has given lower

federal courts a distinction in analysis that expedites review of First Amendment,

retaliation cases involving government employees.

Following Garcetti, other circuits have transformed their Pickering four-part

test for determining whether a government employer has retaliated against an

employee for constitutionally protected speech into a five-part test or a Pickering

1
Pickering v. Board of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 88
S.Ct. 1731 (1968).

29
step one with two subparts, which expedites the analysis by determining at the

outset whether the plaintiff is speaking as a government employee or as a private

citizen. The Tenth Circuit has transitioned from the four-part Pickering test to the

five-part “Garcetti/Pickering” test. Brammer-Hoelter v. Twin Peaks Charter

Acad., 492 F.3d 1192, 1202-03 & n.4 (10 th Cir. 2007). Under the

Garcetti/Pickering test, the first step is judicial determination of “whether the

employee speaks ‘pursuant to [his] official duties.’” Id. at 1202 (quoting Garcetti,

__ U.S. at __, 126 S.Ct. at 1960). “If the employee speaks pursuant to his official

duties, then there is no constitutional protection because the restriction on speech

‘simply reflects the exercise of employer control over what the employer itself has

commissioned or created.’” Id. (quoting Garcetti, __ U.S. at __, 126 S.Ct. at

1960); see Reuland v. Hynes, 460 F.3d 409, 415 n.5 (2d Cir. 2006) (following

Garcetti, “before an employee’s speech is entitled to First Amendment protection,

we must also determine that he was not speaking pursuant to his duties as an

employee”) (emphasis added)), cert. denied, __ U.S. __, 128 S.Ct. 119 (2007). If

the employee did not speak relative to his official duties but as a citizen, then the

second part of the Garcetti/Pickering test requires judicial determination of

“whether the subject of the speech is a matter of public concern.” Brammer-

Hoelter, 492 F.3d at 1202. “If the speech is not a matter of public concern, then

30
the speech is unprotected and the inquiry ends.” Id. at 1203.

Our sister circuits concluded that, in Garcetti, the Court delineated the

analysis of the first part of a First Amendment, retaliation case under the four-part

test by dividing it into two parts. Instead of Pickering step one, which was the

determination of whether the government employee’s speech was a matter of

public concern, under the Garcetti/Pickering test, the first judicial determination is

the classification or category of the government speaker: employee or citizen.

Deciding if the government employee spoke as an employee necessarily involves

determining the job responsibilities of the employee which then permits

correlating the speech to the employee’s job requirements. This determination is

separate from progressing to Pickering step one: a determination of whether the

speech concerns a matter of public interest. Therefore, the Pickering step one is

not a unitary determination that incorporates the more definitive Garcetti analysis

of first correlating a government employee's classification with his or her job

responsibilities. Only if the government speaker is speaking as a citizen does the

analysis progress to a judicial determination of whether the subject is a matter of

public concern. If the government employee, however, was speaking as an

employee, then there is no First Amendment issue, and the constitutional inquiry

ends. See Ferrara v. Mills, 781 F.2d 1508, 1513-14 (11 th Cir. 1986) (recognizing

31
that the Pickering balance is unnecessary unless a judicial determination has been

made that the employee’s speech has constitutional protection).

Judge Easterbrook has commented on the logic of this rationale for the

adjustment in analysis for First Amendment, retaliation cases by government

employees:

Garcetti . . . holds that before asking whether the subject-
matter of particular speech is a topic of public concern, the court
must decide whether the plaintiff was speaking “as a citizen” or as
part of her public job. Only when government penalizes speech that
a plaintiff utters “as a citizen” must the court consider the balance of
public and private interests, along with other questions posed by
Pickering and its successors . . . .

Mills v. City of Evansville, Ind., 452 F.3d 646, 647-48 (7 th Cir. 2006) (citing

Waters v. Churchill, 511 U.S. 661, 114 S.Ct. 1878 (1994); Connick v. Myers, 461

U.S. 138, 103 S.Ct. 1684 (1983); Givhan v. Wester Line Consol. Sch. Dist., 439

U.S. 410, 99 S.Ct. 693 (1979)) (emphasis added). The efficiency for judicial

analysis is that only when a government employer penalizes speech that a

employee “utters ‘as a citizen’ must the court consider the balance of public and

private interests”— the Pickering analysis. Mills, 452 F.3d at 648. Indeed, we

have recognized the changed analysis implemented by other circuits and “refined

our analysis of the first step of the Pickering test.” D’Angelo v. School Bd. of

Polk County, Fla., 497 F.3d 1203, 1209 (11 th Cir. 2007). Consequently, circuits,

32
like ours, that have not definitively changed to a five-step Garcetti/Pickering test

following Garcetti nonetheless actually engage in this five-step analysis, because

we divide the first step of the Pickering test into two subparts. Id.

In Garcetti, the Court has built upon Pickering and succeeding cases to give

lower federal courts a distinction in analysis that expedites review of First

Amendment, retaliation cases involving government employees by first examining

the employee's classification. This expedited analysis has been recognized at least

by three circuits post-Garcetti. See Brammer-Hoelter , 492 F.3d at 1202-03

(Tenth Circuit); Reuland, 460 F.3d at 415 n.5 (Second Circuit); Mills, 452 F.3d at

647-48 (Seventh Circuit). Our circuit is using the expedited analysis following

Garcetti without citing Pickering as if Garcetti is an independent decision in First

Amendment, retaliation cases involving government employees. See Phillips v.

City of Dawsonville, 499 F.3d 1239, 1242 (11 th Cir. 2007) (per curiam)

(concluding in a First Amendment, retaliation case following Garcetti that the

government employee “was speaking in accord with her duty as the City Clerk

and not as a private citizen” without citing Pickering or using its analysis); Vila v.

Padrón, 484 F.3d 1334, 1339 (11 th Cir. 2007) (acknowledging after Garcetti that,

to analyze a First Amendment, retaliation claim for speech by a government

employee, “[t]he threshold question is whether [the government employee] spoke

33
as a citizen on a matter of public concern” without engaging in the Pickering

analysis or citing the case). This is not the Court's reasoning or instruction in

Garcetti.

The utility of the Garcetti/Pickering analysis is evident in our cases since

Garcetti, which, like this case, show the prevalence of First Amendment,

retaliation cases involving govenment employees speaking as employees as

opposed to citizens speaking on issues of public interest. See, e.g., Phillips, 499

F.3d 1239; D’Angelo, 497 F.3d 1203; Vila, 484 F.3d 1334. Because the Supreme

Court has given us an expedited analysis in Garcetti for these cases that other

circuits have adopted and we are using without acknowledging, I would

implement the five-part Garcetti/Pickering analysis in our circuit.

34