Revised August 21, 2000
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-30277
DONNA KENNEDY,
Plaintiff-Appellant,
v.
TANGIPAHOA PARISH LIBRARY BOARD OF CONTROL;
PAT SLEDGE, Director of the Tangipahoa
Parish Library System,
Defendants-Appellees.
_______________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
_______________________________
August 15, 2000
Before BARKSDALE, BENAVIDES and STEWART, Circuit Judges.
BENAVIDES, Circuit Judge:
Appellant Donna Kennedy (“Kennedy”) appeals from the
district court’s dismissal of her First Amendment cause of action
for failure to state a claim, or, in the alternative, for summary
judgment. Because we find that Kennedy has stated a claim and
created a genuine issue of material fact precluding summary
judgment, we reverse and remand.
I. Factual and Procedural Background
Kennedy began working at the Tangipahoa Parish Library (“the
Library”) on March 21, 1995. By all objective criteria, she
performed her job well. Over the course of two years, she
received five promotions with commensurate pay raises. At the
time the Library terminated her, Kennedy served in two managerial
positions, Automation Coordinator and Technical Services
Supervisor. In Kennedy’s June 1997 evaluation, her last before
being fired, appellee Pat Sledge (“Sledge”), the Library’s
director, rated Kennedy’s performance overall as “excellent.”
The events leading to Kennedy’s termination commenced on
October 15, 1997. On that day, Virginia Patanella (“Patanella”)
and her supervisor, branch manager Sannie Bonfiglio (“Bonfiglio),
were working at the Independence branch of the Library. Around
1:00 pm, Bonfiglio called the Library’s administrative offices to
ask that a replacement worker be sent to the Independence branch;
Bonfiglio was departing work early to prepare for her daughter’s
wedding that evening. The person to whom Bonfiglio spoke in the
administrative offices apparently told Bonfiglio to stay at work
because she only had a few hours left. But at 3:15, Bonfiglio
again called the administrative offices and reported that she was
going home. No one arrived to replace Bonfiglio, so Patanella
continued working alone.
At 4:00 pm, Archie Dean Forsythe (“Forsythe”), an apparently
2
homeless man with a criminal record and a history of mental
illness, entered the Independence branch. Finding no patrons in
the library, Forsythe raped Patanella, threatened to kill her,
and severely beat her about her head, fracturing several bones in
her face. A patron entering the library during the rape summoned
an off-duty police officer, Sergeant R.J. Guarena, Jr. (“Sergeant
Guarena”), who was grocery shopping across the street. Sergeant
Guarena confronted Forsythe while he was pulling up his pants. A
struggle ensued and Guarena succeeded in apprehending Forsythe.
The crime, its brutal nature, the dramatic apprehension of
Forsythe, and the lack of security at any of the Library’s
branches left the community in an uproar. By the appellee’s own
admission, the crime sparked intense media scrutiny and gossip.
Responding to these community pressures, the Tangipahoa Parish
Council (“Council”) sent a letter to Sledge on October 16, 1997,
the day after the crime; the letter requested that Sledge detail
how she planned to prevent such occurrences in the future.
On October 17, 1997, Kennedy visited Patanella in the
hospital. Having been told that Patanella was fine except for
some bruises, Kennedy was unprepared for Patanella’s true
condition.1 Moved, Kennedy spoke to Patanella about the rape,
1
One newspaper described Patanella’s appearance on
Friday, October 17, as follows: “Her face [had] . . . two deep
purple/pink bruises where eyes should be. Her eyes had just
barely slit open a little that morning for the first time since
the attack, she said. She had stitches on the side of her head,
and her hair was stiff with dried blood.” Gloria Lupo, I’m Going
3
and Patanella confessed that her main concern was that others not
suffer the same fate.2
On her way home from the hospital, Kennedy stopped at the
Ponchatoula branch, where, upon her arrival, branch manager
Lenore Johnson (“Johnson”) was hanging up the phone after talking
with Sledge. Johnson confided to Kennedy that Sledge had
requested help with “damage control” regarding Patanella’s rape.
As Sledge was ultimately responsible for maintaining the
employment of both Bonfiglio, the branch manager who left early
in the day with only two hours notice, and the administrative
offices’ employee who failed to dispatch a replacement for
Bonfiglio, Sledge understandably wanted aid in dealing with the
fallout. Moreover, Sledge was hoping that the appellee
Tangipahoa Parish Library Board of Control (“the Board of
Control” or “the Board”) would soon approve spending for a
building to house the Hammond branch of the Library, and the rape
obviously had the potential to jeopardize those plans.3
Kennedy became extremely concerned after speaking with
to Kill You, Says the Attacker, The Amite Tangi Digest, Oct. 22,
1997, at 1.
2
Indeed, Patanella said the same thing in The Amite
Tangi Digest article. Id. at 1 (“I don’t want it to happen to
anyone else. I hope no one will have to be left alone in the
libraries again.”).
3
The Board did in fact approve the resolution to
purchase a building for the Hammond branch on November 7, 1997.
See Sharyn C. Brecheen, Parish Library Wants to Buy Permanent
Home for Hammond Branch, The Amite Tangi Digest, Nov. 12, 1997.
4
Johnson. Kennedy had observed in the past that Sledge had
downplayed any events that cast the library in a negative light,
and Kennedy feared that de-emphasizing Patanella’s rape could
have terrible consequences. On October 18, 1997, Kennedy wrote a
letter. She hoped that this letter would prompt Sledge and the
Board to confront the risks occasioned by the lack of security at
the Library branches. In its salient parts, the letter stated:
I would like to suggest to the Library Board and
Administration a much needed change in the Tangipahoa
Parish Library policy.
Suggested Policy: There will be at least two
library employees present at all times when the Library
is open to the public. No library employee (male or
female) will be in an unlocked library building alone.
Also, two library employees must be present to close
the library after it has been open to the public.
. . . .
I also venture to suggest, that if it is deemed
that there is not enough circulation to support two
employees at the Clark and Loranger branches, that
these branches be closed and the employees transferred
to other branches.
Please note that this is not a knee-jerk reaction
to this hideous crime. Similar changes have been
discussed, that I am aware of, due to the drinking and
drug activities on the corner down from the Loranger
Branch and the distasteful pranks, suspicious
characters, and rude and harassing patrons at the
Kentwood Branch.4
It is my humble opinion that what happened at the
Independence Branch on October 15, 1997 cannot be down
played. This event must be addressed and steps taken
to prevent a similar act. . . .
Now is the time for the Library Board and
Administration to take a firm stand and address the
question: Are we ready to show the Library employees
4
These references relate to an incident in which a
patron sat in the Kentwood branch and stared at the librarians
for hours on end. Shortly thereafter, the librarians found a
dead cat in their drop box.
5
and Tangipahoa Parish residents that we will do
everything possible to protect the safety of our
Library employees and our Library patrons?
Kennedy signed the letter in her capacity as Automation
Coordinator and Technical Services Supervisor and enclosed a copy
of part of the Library’s Safety Program, which sets forth the
Library’s policy for dealing with investigations of accidents.
Included within this section are the directives “ENCOURAGE people
to give their ideas for preventing a similar accident,” and
“FOLLOW UP to make sure conditions are corrected.”
Kennedy mailed the letter to the members of the Board of
Control and the Library branch managers. She hand-delivered a
copy of the letter to Patanella the day she wrote it.
The following Monday, October 20, 1997, Kennedy attended a
meeting called by Sledge at the Amite branch. At the meeting,
Sledge reprimanded those in attendance for personally attacking
her. Specifically, Sledge singled out Anne Ellzey. Sledge then
indicated that she had spoken with Patanella, and that Patanella
primarily desired that the Library employees stop gossiping about
the rape. Remembering Patanella’s plea that no other librarians
work alone, Kennedy ventured a comment that the situation was not
about Sledge, but rather about Patanella and the safety of the
patrons and employees at the Library.
After the meeting, Kennedy asked to speak with Sledge.
Kennedy then showed Sledge the letter. Sledge perused it and
remarked that it was well written. The encounter was
6
unremarkable, and Kennedy departed to complete her work for that
day in the usual manner.
Sledge answered the Council’s request for policy changes on
October 20, 1997 with a 10-step plan designed to heighten
security. Sledge’s proposal included a provision insisting that
two employees be present at any Library branch open to the
public, though the record does not reveal whether Sledge
incorporated Kennedy’s idea or thought of it independently.
Three days later, on October 23, 1997, the Board of Control
held a meeting. Security matters were not on the agenda, but
Board member Howard G. Ridgel (“Ridgel”) broached the topic.
Board chairman Edward B. Dufreche attempted to postpone the
issue, arguing that more time was necessary to examine all the
options. Ridgel urged the Board members to confront the problem
and mentioned that Kennedy’s letter had also encouraged the Board
not to gloss over the rape and the safety concerns it
highlighted. The Board members then voted to address the
security issue and adopted Sledge’s 10-step plan at the meeting.5
That afternoon, Sledge penned a letter demoting Kennedy and
5
A newspaper article detailing the October 23, 1997
Board of Control meeting reports that Ridgel mentioned Kennedy’s
letter. See Sylvia Schon, Libraries Take Safety Measures, Daily
Star, Oct. 24, 1997, at 1. The article also quotes Kennedy
telling the Board of Control, “I appreciate the fact that Buddy
[Ridgel] brought this up. We’re all wondering what’s going to be
happening. It’s good to let the employees and the public know
that you’re talking about this and doing something about it.”
Id.
7
stripping her of all her supervisory duties. Though Sledge and
the Board of Control concede that Sledge demoted Kennedy in
response to her letter, the announcement of this demotion
criticized Kennedy in general terms:
It is with disappointment that I recognize and
accept the fact that you and I no longer share the same
vision of the future for the Tangipahoa Parish Library
System.
It has become apparent that you have assumed far
too much authority for your position as Automation
Coordinator and Technical Services Supervisor. Your
assigned role does not include discussing opening and
closing of library branches, nor does include [sic]
discussing with other employees what I, as the
appointed Director, do correctly or, in you [sic]
opinion, incorrectly.
. . . .
You [sic] job does not include discussion of
personnel, the daily administration of this Library
System nor meeting with business representatives6 that
are not directly concerned with your departments, nor
writing derogative comments about local communities.
Rather than delivering the demotion letter to Kennedy
personally or at work, Sledge mailed the letter by certified mail
to three addresses in Kennedy’s personnel file. On October 30,
1997, fully a week after Sledge composed and sent the demotion
letter, Kennedy’s father called Kennedy at work to tell her that
6
This is apparently a reference to an incident in which
a representative of a security company talked to Kennedy about
where he should place a cable. As the location of cables for the
computer network was within Kennedy’s authority as Technical
Services Supervisor, she was the correct Library representative
to answer the security company representative’s questions.
Kennedy’s conduct in this regard presented no problem to Sledge
until Kennedy mentioned at the October 23, 1997 Board of Control
meeting that she had spoken with a representative of the security
company.
8
he had declined to sign for a certified letter for her from the
Library. On October 31, 1997, Kennedy, who was familiar with the
Library’s protocol of delivering bad news by certified mail,
called Sledge to find out what the letter said. Sledge refused
to speak with Kennedy on the phone, but Sledge allowed that she
would send a copy of the demotion letter to Kennedy at work on
November 3, 1997. Kennedy read the letter on November 3, and
thereby became informed of her demotion, more than 10 days after
its occurrence.
Sledge made an appointment for November 10, 1997 to speak
with Kennedy about her job. Sledge’s stated purposes for the
meeting were to discuss the reasons for Kennedy’s demotion and
her new job responsibilities, to agree upon a lower wage, and to
assess Kennedy’s willingness to continue working at the library
in a non-supervisory capacity. The meeting, however, never
occurred. On November 10, 1997, Kennedy showed up for the
meeting with a tape recorder and her father, whom she wanted
along as a witness. Sledge, meanwhile, had asked Cindy Camp to
join the meeting, unbeknownst to Kennedy. Sledge refused to
permit Kennedy to record the meeting or to have her father
present as a witness. Sledge then fired Kennedy.7
7
The parties dispute the facts surrounding this meeting.
Kennedy claims that Sledge planned to fire her on October 23, the
date of the Board meeting. Kennedy surmises that Sledge demoted
Kennedy because of the letter, waited two weeks as required by
Library policy, and then fired her. Kennedy supports her
inference with the fact that Sledge had prepared Kennedy’s final
9
Kennedy filed a grievance with the personnel committee of
the Library. The Board of Control upheld the personnel
committee’s decision in favor of Sledge on February or March 17,
1997. Kennedy then filed this present action on March 26, 1998.
During a hearing on December 2, 1998, the district court
denied Kennedy’s motion to amend her complaint and granted
Sledge’s motion to dismiss on grounds of qualified immunity.
Ignoring the court’s order, Kennedy filed a first amended
complaint on December 7, 1998. The district court permitted the
clerk of the court to place the first amended complaint in the
record.
Sledge, who apparently was unsure of the significance of the
first amended complaint, and the Board then moved to dismiss the
first amended complaint for failure to state a claim, or, in the
alternative, for summary judgment, which motion the district
court granted, entering its final order on February 23, 1999.8
paycheck prior to the meeting. Sledge, on the other hand, claims
that when Kennedy indicated her desire to record the meeting,
Sledge promptly fired her for insubordination.
8
The record is in an unfortunate state that leaves
unknown the true grounds for the district court’s dismissal.
Appellees styled their motion to dismiss as a motion to dismiss
for failure to state a claim, or in the alternative, for summary
judgment. The district court stated its reasons for the
dismissal from the bench during oral argument, but neither party
requested that a court reporter make a record of oral argument.
Moreover, the district court’s judgment relates the grounds of
dismissal only as being those set forth during oral argument. As
we lack any objective account of the district court’s reasoning
for the dismissal, we must conduct both Rule 12(b)(6) and Rule 56
analyses before we may properly reach our conclusion that the
10
II. Standard of Review
We apply de novo review to dispositive motions, like
dismissals for failure to state a claim and grants of summary
judgment. See Lowrey v. Texas A & M Univ. Sys., 117 F.3d 242,
246 (5th Cir. 1997) (failure to state a claim); Shackelford v.
Deloitte & Touche, LLP, 190 F.3d 398, 403 (5th Cir. 1999)
(summary judgment).
A dismissal for failure to state a claim upon which relief
can be granted is a disfavored means of disposing of a case. See
Shipp v. McMahon, 199 F.3d 256, 260 (5th Cir. 2000) (quoting
Kaiser Aluminum & Chem. Sales v. Avondale Shipyards, 677 F.2d
1045, 1050 (5th Cir. 1982)). District courts should avoid such
dismissals “unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle
him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). To
ascertain whether a complaint states a claim, we must construe
the complaint liberally in the plaintiff’s favor and accept all
factual allegations in the complaint as true. See Shipp, 199
F.3d at 260 (citing Campbell v. Wells Fargo Bank, 781 F.2d 440,
442 (5th Cir. 1986)).
A grant of summary judgment is proper where “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
district court’s dismissal warrants reversal and remand for a
trial on the merits.
11
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Fed. R. Civ.
Proc. 56(c); see also Christopher Village, LP v. Retsinas, 190
F.3d 310, 314 (5th Cir. 1999). “An issue is genuine if the
evidence is sufficient for a reasonable jury to return a verdict
for the nonmoving party.” Owsley v. San Antonio Indep. Sch.
Dist., 187 F.3d 521, 523 (5th Cir. 1999). “Although we consider
the evidence and all reasonable inferences to be drawn therefrom
in the light most favorable to the nonmovant, the nonmoving party
may not rest on the mere allegations or denials of its pleadings,
but must respond by setting forth specific facts indicating a
genuine issue for trial.” Rushing v. Kansas City S. Ry. Co., 185
F.3d 496, 505 (5th Cir. 1999).
III. Failure to State a Claim
Kennedy argues that her amended complaint properly alleges
that she spoke on a matter of public concern, and thus states a
claim for retaliation in violation of the First Amendment. To
the extent that the district court did not consider her amended
complaint because it denied her request to file one, Kennedy
argues that the district court erred in not granting her
permission to amend. The Board counters that, regardless of
whether the district court considered Kennedy’s first amended
complaint, her speech was private and not public, and therefore,
Kennedy cannot state a claim.
12
An employee’s First Amendment retaliation claim has four
elements: (1) an adverse employment action; (2) speech involving
a matter of public concern; (3) the employee’s interest in
speaking outweighs the employer’s interest in efficiency; and (4)
the speech must have precipitated the adverse employment action.
See Teague v. City of Flower Mound, Texas, 179 F.3d 377, 380 (5th
Cir. 1999).
The dispute here centers on the second element, that is,
whether Kennedy’s speech involved a matter of public concern.9
Whether Kennedy spoke on a matter of public concern is a legal
question, see Rankin v. McPherson, 483 U.S. 378, 386 n.9 (1987);
Dodds v. Childers, 933 F.2d 271, 273 (5th Cir. 1991), and it is
therefore suitable for resolution on appeal. We have used two
tests, sometimes in conjunction with one another, to determine
9
With respect to the other elements, Kennedy’s demotion
satisfies the first element because it indisputably constitutes
an adverse employment action. See Harris v. Victoria Indep. Sch.
Dist., 168 F.3d 216, 221 (5th Cir. 1999) (“[W]e have repeatedly
held that . . . demotions constitute adverse employment
decisions.”). The third element, being the factually-sensitive
balancing test that it is, implicates only the summary judgment,
not failure to state a claim, analysis. As for the fourth
element, appellees concede repeatedly throughout their pleadings
that Sledge demoted Kennedy “[i]n response to th[e] letter[.]”
Brief for Appees., at 3.
Appellees do argue that Kennedy’s demotion is irrelevant
because they claim that Sledge ultimately terminated Kennedy for
insubordination, not her speech. But that issue is not relevant
to the failure to state a claim analysis. The pertinent question
for the Rule 12(b)(6) analysis is whether Kennedy has alleged an
adverse employment action motivated by her speech, and the
demotion satisfies that inquiry.
13
whether speech relates to a public concern; both tests derive
from language in Connick v. Myers, 461 U.S. 138 (1983). The
first is the content-form-context test: “[w]hether an employee’s
speech addresses a matter of public concern must be determined by
the content, form, and context of a given statement, as revealed
by the whole court record.” Id. at 147-48; see also Tompkins v.
Vickers, 26 F.3d 603, 606 (5th Cir. 1994).
The second, “shorthand” test is the citizen-employee test:
“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,” the employee’s speech falls outside the
parameters of speech involving matters of public concern.
Connick, 461 U.S. at 147 (emphasis added); see also Schultea v.
Wood, 27 F.3d 1112, 1120 (5th Cir. 1994), superseded on other
grounds by, 47 F.3d 1427 (5th Cir. 1995) (en banc). The citizen-
employee test can yield indeterminate results because “[t]he
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 public concern.” Dodds, 933 F.2d at
273. Thus, “[i]n cases involving mixed speech, we are bound to
consider the Connick factors of content, context, and form, and
determine whether the speech is public or private based on these
factors.” Teague, 179 F.3d at 382.
14
This is a “mixed speech” case.10 Kennedy spoke in her
letter in her capacity as a citizen: a fear that Sledge and the
Board were placing the public and Library employees, other than
herself, in danger by downplaying the seriousness of the rape
prompted her speech. Moreover, she spoke as an informed citizen
on a topic that dominated the local media and against a
background of vigorous public debate. But Kennedy also
undoubtedly spoke as an employee: she signed the letter in her
supervisory capacity, and she believed that speaking out about
employee safety was part of her job as a supervisor and employee.
Mixed speech cases are perhaps the most difficult subset of
employee speech cases to adjudicate. Because the employee
admittedly speaks from multiple motives, determining whether she
speaks as a citizen or employee requires a precise and factually-
sensitive determination. We therefore embark upon an overview of
10
In their supplemental motion on appeal, appellees cite
Gerhart v. Hayes, 201 F.3d 646, 650 (5th Cir. 2000) for the
proposition that "speech made in the role as employee is of
public concern only in limited cases: those involving the report
of corruption or wrongdoing to higher authorities." (emphasis
added). The appellees’ argument must fail. In response to
Gerhart’s motion for panel rehearing, however, the panel deleted
that language and decided instead to base its First Amendment
outcome not upon the public or private nature of Gerhart’s
speech, but rather upon the lack of causation between her speech
and her termination and the fact that she could not prove that
she would not have been terminated anyway, regardless of her
speech. See Gerhart, 201 F.3d 646, rev’d on reh’g, 217 F.3d 320
(5th Cir. 2000).
15
the mixed speech cases11 in this Circuit to aid us in our
application of the content-form-context test. Our first mixed
speech case was Gonzalez v. Benavides, 774 F.2d 1295 (5th Cir.
1985). Gonzalez was the executive director of a community action
agency, which administered federal anti-poverty programs. After
Gonzalez fired a subordinate, the County Commissioners’ Court
reinstated the subordinate, publicly reprimanded Gonzalez, and
instituted an investigation into Gonzalez’s job performance.
Gonzalez responded publicly by declaring any investigation of his
performance to violate the community action agency’s regulations;
privately, he objected that the Commissioner’s Court failed to
appeal first to the Administering Board, as required by the
community action agency’s regulations. He also denied that the
Commissioner’s Court possessed the authority to regulate his job
performance. This latter assertion catalyzed Gonzalez’s
termination.
In evaluating the facts, the Gonzalez court concluded that,
because “[p]ublic employees, by virtue of their public
employment, may make valuable contributions to the public
debate,” id. at 1299, “we do not read Connick . . . to exclude
the possibility that an issue of private concern to the employee
may also be an issue of public concern.” Id. at 1300-01.
11
We include in this overview only those cases that use
the term “mixed speech,” and conduct a mixed speech analysis. We
are cognizant, however, that other cases may exist to which the
term “mixed speech” might arguably be applied.
16
Determining that Gonzalez “raised such a mixed issue,” id. at
1301, the panel held that the speech at issue related to the
public concern for three reasons. First, whether the
Commissioner’s Court complied with agency regulations was, in and
of itself, a matter of public concern. Second, failure to so
comply would lead to a withdrawal of federal funds, which also
was a matter of public concern. Finally, “the uncertain
allocation of authority and responsibility among the County
Court, the . . . Administering Board, the Executive Director, and
the Deputy Director,” id., related to the public concern because
“this uncertainty generated friction and reduced the efficiency
of the agency.” Id. Therefore, Gonzalez spoke on a matter of
public concern.
Subsequent to Gonzalez, we decided Terrell v. University of
Texas Sys. Police, 792 F.2d 1360 (5th Cir. 1986). In that case,
the University of Texas police force initiated an internal
investigation of Terrell, a Captain in the University of Texas
police force. In response, Terrell made remarks critical of his
superior, Chief Price, in a diary. After some pages of the diary
appeared anonymously on Chief Price’s desk, Chief Price fired
Terrell. After quoting Connick’s language regarding speaking
“‘as an employee upon matters only of personal interest,’” id. at
1362 (quoting Connick, 461 U.S. at 147), the Terrell court
restated our task in mixed speech cases as deciding “whether the
speech at issue in a particular case was made primarily in the
17
plaintiff’s role as citizen or primarily in his role as
employee.” Id. While a standard that requires employees to
speak primarily as citizens is obviously far more stringent than
one that asks only that employees speak on matters not solely of
personal interest, Terrell’s formulation has become a benchmark
for mixed speech cases in this Circuit.12 Terrell himself was
unable to show that he spoke primarily as a citizen for three
reasons. First, he neither aired his grievances to the public
nor “would [he] have had any occasion to do so.” Id. at 1363.
Second, the investigation of Terrell was wholly intra-
departmental, “undertaken without any intervention from [the]
outside[.]” Id. And third, because of the intra-departmental
nature of the investigation, and the fact that the investigation
revealed that “Terrell himself was a leading cause of serious
problems in the Houston Department,” id., any criticisms that
Terrell leveled at Chief Price were “‘tied to a personal
employment dispute.’” Id. (quoting Connick, 461 U.S. at 148 n.8).
Three years later, we again addressed mixed speech in Moore
v. City of Kilgore, 877 F.2d 364 (5th Cir. 1989). There, Moore,
12
But see Richard H. Hiers, First Amendment Speech Rights
of Government Employees: Trends and Problems in Supreme Court and
Fifth Circuit Decisions, 45 Sw. L.J. 741, 792 (1991)
(“[Terrell’s] reading of Connick conflicts with other Fifth
Circuit holdings that public employee speech about both matters
of public concern and other matters, in short, a mixed bag of
concerns, would be protected.” (citing Gonzalez, 774 F.2d at
1295, Thompson v. City of Starkville, Mississippi, 901 F.2d 456,
463-64 (5th Cir. 1990), and Brawner v. City of Richardson, 855
F.2d 187, 192 (5th Cir. 1988))).
18
who was president of the Kilgore Professional Firefighters
Association, Local 2996, spoke to the media—against the orders of
his superior, Chief Duckwork—about a tragic accident that left
one firefighter dead and another one injured. In his diatribe
about the accident, Moore blamed the fire department’s lean
staffing policies for the death and injury, capping his remarks
with, “I just want to say, ‘I told you so.’”
The Moore court found Moore’s speech to relate to the public
concern. It first observed, regarding the content of Moore’s
speech, that “[t]he public, naturally, cares deeply about the
ability of its Fire Department to respond quickly and effectively
to a fire.” Id. at 370. The Moore court continued:
While our analysis is grounded in significant part on
the importance to the public of the content of Moore’s
speech, Moore, as a citizen, also has a significant
interest in speaking his mind on matters of public
concern that factors importantly into our analysis.
The First Amendment accords all of us, as participants
in a democratic process, room to speak about public
issues. The operation of the city Fire Department
certainly is a matter that concerns interested
citizens. When Moore spoke about the fire on December
26, 1985, he spoke as an informed citizen regarding a
matter of great public concern.
Id. at 371.
The Moore court then turned to the context analysis. The
district court had declared Moore’s speech private because “the
need for public debate on the staffing issue had passed” and
because “[Moore’s conduct] smacks of a disgruntled employee
attempting to draw public attention to this job-related issue.”
19
Id. The Moore court rejected this assessment, emphasizing that
“[t]he speech in our case is not linked to a personal employment
dispute between Moore and the City,” id. at 370 n.2, and that,
based upon the media questions to which Moore responded, “the
public was receptive and eager to hear about the ability of the
Fire Department to perform its duties.” Id. at 371.
Concluding with the form analysis, the Moore court conceded
that, while Moore’s remarks “do involve a hint of ‘employee’
considerations . . . . mixed motivations are involved in most
actions we perform everyday.” Id. at 371-72. Viewing the speech
as a whole, the panel found Moore’s speech to relate to the
public concern.
Our next foray into the realm of mixed speech was Thompson
v. City of Starkville, Mississippi, 901 F.2d 456 (5th Cir. 1990).
Thompson served as a police officer in Starkville’s police
department for eight years. He claimed that two separate
instances of speech caused his termination. The first occurred
in 1981, when he filed a written grievance protesting the
promotions of certain police officers who had not satisfied
department regulations regarding eligibility for promotion. The
second complaint consisted of oral reports revealing unethical
conduct by police officers who had received promotions. Thompson
also aided his fellow police officers in filing similar
grievances.
The Thompson court concluded that the content of Thompson’s
20
speech was public. Unlike Connick, where “[Myers’]
questionnaire, if released to the public, would convey no
information at all other than the fact that a single employee is
upset with the status quo,” 461 U.S. at 148, Thompson’s
grievances, if revealed to the public, would expose wrongdoing by
members of the Starkville police department. Thompson, 901 F.2d
at 463.
Likewise, the panel found the context and form of Thompson’s
speech to be public. The court deemed the private nature of
Thompson’s communications not dispositive: “This alone, however,
does not necessitate a finding that his alleged speech was not
connected to matters of public concern.” Id. “‘The private
nature of the statement does not . . . vitiate the status of the
statement as addressing a matter of public concern.’” Id. at 467
(quoting Rankin, 483 U.S. at 386-87 n.11). “A holding to the
contrary would mean that loyal employees seeking to rectify
problems would lose constitutional protection for attempting to
correct problems inhouse. Such a punitive result seems illogical
where procedures have been established to encourage internal
remedial actions.” Id.
Moreover, the fact that Thompson felt aggrieved by the
promotions of other, unqualified police officers did not preclude
First Amendment protection: “Circuit courts have also recognized
that an employee’s speech may contain a mixture of public and
personal concerns.” Id. at 464. In this regard, the court
21
observed that “Thompson stood to gain little personally through
his grievance[.]” Id. at 465. “He did not seek back pay or
promotion. Moreover, he aided others in filing similar
complaints; these clearly did not redound to his own benefit.”
Id. at 466. Additionally, the nature of the wrongdoing he
exposed—“which could potentially affect public safety,” id.
(footnote omitted)—distinguished Thompson’s speech from that of
Terrell, which “involve[d] a matter of purely intra-governmental
concern.” Id. Thompson’s speech therefore fell within the scope
of the First Amendment.
Wilson v. UT Health Ctr., 973 F.2d 1263 (5th Cir. 1992), was
this Circuit’s next pronouncement on the issue of mixed speech.
Wilson, a sergeant with the UT Health Center’s police force,
reported a number of instances of sexual harassment–including one
in which she had been the victim–to her supervisor, Chief Moore.
After investigating the incidents, Chief Moore determined that
Wilson had exaggerated or misrepresented the events comprising
her claim of harassment. He therefore demoted, and then
ultimately terminated, Wilson.
The Wilson court found that Wilson’s speech related to the
public concern. Regarding the content of her speech–allegations
of sexual harassment–the court held that such reports, like
accounts of race discrimination, see Givhan v. Western Line
Consolidated Sch. Dist., 439 U.S. 410, 415-16 (1979), were of
public concern and distinguished both Terrell and Connick on the
22
grounds that “the only reason that the public would be concerned
about the speech there at issue was because it involved a public
workplace.” Wilson, 973 F.2d at 1269.
In evaluating context, the Wilson court dismissed the
defendants’ argument that the private forum of Wilson’s complaint
stripped her speech of protection: “Nor did Wilson forfeit her
right to speak by choosing an internal forum to speak as a
citizen about sexual harassment within the UTHC police force.”
Id. at 1270.
The Wilson court likewise rejected the defendants’ assertion
that the form of the speech indicated a private nature because
Wilson acknowledged some duty, as a police officer, to report
sexual harassment. Observing that “practically, such a rule
would permit public employers to remove constitutional protection
from speech on certain subjects by including those subjects
within employees’ reporting duties,” id. at 1269, the Wilson
court mused that “the rule proposed by the defendants could
ironically facilitate the suppression of speech through a
requirement that the speech be made.” Id. Instead, the panel
reiterated Connick’s admonition that courts withhold First
Amendment protection from speech on “matters only of personal
interest,” 461 U.S. at 157, and interpreted this “key statement .
. . [to] mean that the [Supreme] Court removed from First
Amendment protection only that speech that is made only as an
employee, and left intact protection for speech that is made both
23
as an employee and a citizen.” Id.13 Wilson’s speech,
13
In Teague, 179 F.3d 377, a panel of this Circuit
criticized this language in Wilson. To the extent that Wilson
implies that “federal review is proper in all mixed speech
cases,” Teague, 179 F.3d at 382, the Teague court rejected its
import as “unworkable: 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
interests.” Id. Moreover, Teague argued that Wilson’s standard
“would create a split among the circuits.” Id. at 383. Finally,
the Teague court resorted to the “rule of orderliness” to
abrogate Wilson’s implications: “to the extent that Wilson’s
language contradicts the ‘primary role’/balancing test of Terrell
(and Moore), decided years earlier, it is of no effect.” Id.
We perceive reasonable rebuttals to Teague’s criticisms.
First, regardless of Teague’s judgment about the wisdom of
granting federal review to all mixed speech cases, that is what
the plain language of Connick demands: “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,
[no First Amendment protection inheres.]” 461 U.S. at 147
(emphasis added). Teague does not reconcile its criticism with
this language in Connick.
Second, given that the case Teague cites as creating a
circuit split with Wilson, Hartman v. Board of Trustees, 4 F.3d
465 (7th Cir. 1993), was decided after Wilson, it is Hartman, not
Wilson, that creates the circuit split. Even were this not the
case, Hartman also conflicts with law in the Sixth Circuit.
See Chappel v. Montgomery County Fire Protection Dist. No. 1, 131
F.3d 564, 574-76 (6th Cir. 1997). In Chappel, the Sixth Circuit
rejected the defendant’s argument that Chappel’s speech was
private because his “predominant motivat[ion] [was] his self-
interest in obtaining a position as a paramedic with the
ambulance district.” Id. at 574. The Chappel court observed
that the defendant’s argument “is in direct conflict with the
Supreme Court’s holding in Connick.” Id. Moreover, it deemed
“the argument that an individual’s personal motives for speaking
may dispositively determine whether that individual’s speech
addresses a matter of public concern [to be] plainly illogical
and contrary to the broader purposes of the First Amendment.”
Id. Specifically, the Chappel court elucidated, as this Circuit
did in Moore, that speech on matters of public concern deserves
the protection because “the First Amendment is concerned not only
with a speaker’s interest in speaking, but also with the public’s
interest in receiving information.” Id.
Finally, the rule of orderliness has little persuasive force
when the prior panel decision at issue conflicts with a Supreme
24
therefore, like Moore’s, garnered First Amendment protection.
This Circuit again addressed the issue of mixed speech in
Gillum v. City of Kerrville, 3 F.3d 117 (5th Cir. 1993). In that
case, Gillum, a policeman with the Kerrville police department,
investigated allegations that the police chief had smoked dope
with a woman who had a criminal record. Gillum’s supervisors
held a meeting, at which they told Gillum that Internal Affairs
would continue his investigation without his participation.
Fearing that Internal Affairs would not conduct a neutral
inquiry, Gillum surrendered his badge and gun, declaring “I won’t
compromise this badge.” He then departed the station. When
Gillum returned the next day to report for work, his supervisor
told him that he had quit. Unable to obtain reinstatement,
Gillum sued.
Without conducting an explicit content-context-form
analysis, the Gillum court determined that Gillum’s speech did
not relate to the public concern. Citing Terrell, the panel
emphasized that “[we] focus on the hat worn by the employee when
speaking rather than upon the ‘importance’ of the issue [to]
reflect[] the reality that at some level of generality almost all
speech of state employees is of public concern[.]” Gillum, 3
F.3d at 121. Though “corruption in an internal affairs
department is a matter of public concern. . . . Gillum’s focus
Court case to which the subsequent panel decision is faithful.
25
was . . . on the issue only insofar as it impacted his wish to
continue his investigation[.]” Id. Like Terrell, Gillum spoke
“as an employee embroiled in a personal employment dispute.” Id.
Therefore, Gillum’s speech did not warrant First Amendment
protection.
In Benningfield v. City of Houston, 157 F.3d 369 (5th Cir.
1998), our next mixed speech case, Benningfield, Grant, and
Frankhouser, female employees with the Houston Police Department,
complained of sex discrimination and forced the resignation of
their supervisor. Unfortunately for the plaintiffs, their
supervisor’s son took his father’s place and, plaintiffs alleged,
retaliated against the plaintiffs by demoting Benningfield and
constructively discharging Grant and Frankhouser.
Conducting an abbreviated content-context-form analysis, the
Benningfield court first noted that the plaintiffs’ motivations
included personal considerations: “[t]he Plaintiffs thought that
their personal careers were being negatively affected by
mismanagement, gender discrimination, and a hostile work
environment.” Id. at 375. Nevertheless, their speech also
contained matters of public concern: “The Plaintiffs complained
about contamination of criminal histories . . . . result[ing]
from mismanagement and, in some instances, deliberate tampering.”
Id. Therefore, the Benningfield court found the speech related
to the public concern, despite the “fact that Plaintiffs chose to
file internal grievances rather than publicize their
26
complaints[.]” Id. (citing Givhan, 439 U.S. at 414-17).
Finally, we reach 1999, a year in which this Circuit decided
two significant mixed speech cases, Harris v. Victoria Indep.
Sch. Dist., 168 F.3d 216 (5th Cir. 1999) and Teague, 179 F.3d at
377. The facts of Harris involve two teachers, Harris and
Martin, who served on a committee formed to create and implement
an improvement plan for Victoria High School (“VHS”). Harris and
Martin performed this task, which involved criticizing the
principle of VHS, Porche, who, apparently, was resisting the
improvement plan and failing to cooperate with the committee.
Harris and Martin advocated replacing Porche. Their
superintendent, Brezina, who had appointed Harris and Martin to
the committee, then transferred Harris and Martin in response to
their criticisms of Porche.
Acknowledging that “[t]he Plaintiffs’ speech does not fit
neatly within any of the factual scenarios in which we have held
speech involved a matter of public concern,” Harris, 168 F.3d at
222, the Harris court nevertheless found the speech to relate to
the public concern. First, the panel highlighted the context and
form of the speech: Harris and Martin “spoke . . . as elected
representatives of the faculty, and . . . they simply
communicated the views of the faculty to the administration in
compliance with their duties as committee members.” Id. The
court continued: “[Plaintiffs] faced . . . the choice of either
telling the truth and fulfilling their duty as committee members
27
or keeping silent and frustrating their purpose and function on
the committee.” Id. “By protecting Plaintiffs’ speech when the
administration requested them, as committee members, to speak
truthfully on the school’s progress, we are protecting ‘the
integrity of the truth seeking process.’” Id. (quoting Green v.
Philadelphia Hous. Auth., 105 F.3d 882, 886 (3d Cir. 1997)).
The Harris court next examined the content of the
plaintiffs’ speech and identified both personal and public
interests in it: “Plaintiffs certainly had an interest in their
speech as employees, because they could not help but benefit as
teachers from the improvement of the educational environment at
VHS. However, they also had strong interests as committee
members in achieving the goals the committee set for itself and
the school.” Id. The panel then remarked that no evidence
suggested that plaintiffs’ speech was merely an outgrowth of a
personal employment dispute, and that the speech took place
against a backdrop of public discussion of the problems at
Victoria High School. Therefore, Harris and Martin spoke on a
matter of public concern.
In Teague, Teague and Burkett, two police officers with the
Flower Mound police department, investigated a fellow officer,
Jones, whom they suspected of having committed aggravated
perjury. Teague and Burkett’s supervisor, Chief Brungardt,
eventually halted their investigation and hired a private
investigation firm which exonerated Jones. Teague and Burkett
28
believed the exoneration was unwarranted, so they requested a
meeting with Chief Brungardt. Chief Brungardt rebuffed them,
claiming that the district attorney’s office had also examined
the facts and concluded that Jones was innocent of wrongdoing.
Teague called the district attorney’s office and learned that it
had never investigated Jones. At that point, Teague and Burkett
filed a grievance against Chief Brungardt. Chief Brungardt then
transferred Teague and Burkett, initiated an investigation of
them, and ultimately terminated them.
After chronicling Terrell, Moore, Gillum, Wilson, and
Benningfield (but exempting any discussion of Thompson), the
Teague court concluded that Teague and Burkett did not speak on
matters relating to the public concern. Though the court
conceded that the content of their speech was public, it found
the context of their speech to be “a private employee-employer
dispute.” 179 F.3d at 382. Moreover, the court determined the
form to be private, in that Teague and Burkett’s “focus . . . was
primarily on clearing their names—not on rooting out police
corruption per se.” Id. Therefore, Teague and Burkett’s speech
did not relate to the public concern.
Having thus canvassed our mixed speech precedent, we discern
three reliable principles. First, the content of the speech may
relate to the public concern if it does not involve solely
personal matters or strictly a discussion of management policies
that is only interesting to the public by virtue of the manager’s
29
status as an arm of the government. See Wilson, 973 F.2d at
1269; Terrell, 792 F.2d at 1362 n.5. If releasing the speech to
the public would inform the populace of more than the fact of an
employee’s employment grievance, the content of the speech may be
public in nature. See Thompson, 901 F.2d at 463 n.5. Second,
speech need not be made to the public, see Benningfield, 157 F.3d
at 375; Wilson, 973 F.2d at 1270; Thompson, 901 F.2d at 467, but
it may relate to the public concern if it is made against the
backdrop of public debate. See Harris, 168 F.3d at 222; Moore,
877 F.2d at 371. And third, the speech cannot be made in
furtherance of a personal employer-employee dispute if it is to
relate to the public concern. See Teague, 179 F.3d at 383;
Harris, 168 F.3d at 222; Gillum, 3 F.3d at 121; Moore, 877 F.2d
at 370 n.2; Terrell,792 F.2d at 1363. With these distillations
of our case law firmly in mind, we now turn to the facts at hand.
With respect to content, any arguments that Kennedy’s speech
did not involve a matter of public concern are not well taken.14
14
To argue that the content is private, appellees have
improperly lumped this dispute over security at the Library’s
branches into the category of disputes over working conditions,
which, in turn, are private matters not involving the public
concern. Examples of disputes over working conditions, however,
belie their assertion: the category of “working conditions”
encompasses “the length of time on the job, the number of breaks
employees received and so forth.” Piver v. Pender County Bd. of
Educ., 835 F.2d 1076, 1079 (4th Cir. 1987), quoted with approval
in Thompson, 901 F.2d at 467. Speech about policy changes
occasioned by the violent rape of a coworker obviously contains a
gravity and seriousness, and therefore also a claim to the
public’s concern, that gab about “working conditions” lacks.
Appellees do cite one case from this Circuit that they claim
30
Kennedy spoke about how to guard against a recurrence of a
violent crime that had shaken the local community and generated
significant press coverage.15 Speech that potentially affects
public safety relates to the public concern. See Thompson, 901
F.2d at 466; Moore, 877 F.2d at 370; see also Hiers, supra note
12, at 811 (“Public employee speech concerning matters affecting
community safety also generally meets the [public concern] test
[in the Fifth Circuit].” (citing Thompson, 901 F.2d at 466, Moore
v. MVSU, 871 F.2d 545, 551 (5th Cir. 1989), and Moore, 877 F.2d
at 370)). And unlike Terrell and Connick, where “the only reason
that the public would be concerned about the speech there at
issue was because it involved a public workplace,” Wilson, 973
F.2d at 1269, releasing Kennedy’s letter to the public would
reveal information—not about a disgruntled employee’s dispute
with his employer—but about public safety at the Library in which
stands for the proposition that matters of security do not relate
to the public concern. See Robinson v. Boyer, 825 F.2d 64 (5th
Cir. 1987). Appellees, however, are incorrect. The Robinson
court never reached the question of whether Robinson’s speech
related to the public concern. Rather, the panel limited its
First Amendment holding to determining that, on the record,
Robinson had not shown that his speech was the substantial or
motivating factor behind the decision to terminate him. See id.
at 68.
Appellees therefore have failed to advance a meritorious
argument in favor of the proposition that the content of
Kennedy’s speech was private.
15
In the Board’s own words, “news of the brutal attack
was immediately broadcast by the press and was the topic of
constant discussion in the Tangipahoa Parish Community. . . .
[N]ews of the attack was a matter of public concern.” Brief for
Appees., p. 23.
31
the public would be interested. See Thompson, 901 F.2d at 463.
The very fact of newspaper coverage of the October 23, 1997 Board
of Control meeting (and its mention of Kennedy’s letter)
indicates that “the public was receptive and eager to hear about”
the implementation of safety measures at the Library. Moore, 877
F.2d at 371.
Additionally, speech made against the backdrop of ongoing
commentary and debate in the press involves the public concern.
See Harris, 168 F.3d at 222-23; Tompkins, 26 F.3d at 607; Brawner
v. City of Richardson, Texas, 855 F.2d 187, 191 (5th Cir. 1988)
(holding speech to relate to the public concern where “the
statements in the letter must be seen in the context of a
continuing commentary that had originated in the public forum of
the newspaper.”); Moore, 877 F.2d at 371. Moreover, as in
Gonzales, Kennedy’s speech revealed “uncertainty [about safety
that] generated friction and reduced the efficiency of the
[Library].” 774 F.2d at 1301. Kennedy also sought to expose
what she characterized as Sledge and the Board’s misconduct in
making no security provisions for the Library—thereby endangering
both patrons and employees—and for their lax response to
Patanella’s rape. Speech exposing official misconduct involves
the public concern. See Teague, 179 F.3d at 383.16 Finally,
16
While no case in this Circuit specifically defines
“official misconduct” or “wrongdoing,” the term clearly envelopes
conduct exposing the state to mere civil liability. See Connick,
461 U.S. at 148 n.8 (“[The] right to protest racial
32
Kennedy, unlike Terrell, Gillum, Teague, and Burkett, did not
speak about matters solely of personal interest, nor, in the
course of suggesting an amendment to Library policy, did she
criticize the management style or job performance of her direct
superior. See Teague, 179 F.3d at 382; Gillum, 3 F.3d at 121;
Terrell, 792 F.2d at 1363.
The context of the speech was initially private, but became
public. Kennedy distributed her letter on a “need to know” basis
to Patanella, the Library branch managers, Sledge, and the Board
members. She did not release her letter to the press or
otherwise seek to publicize it. Nevertheless, the Daily Star
published a newspaper article mentioning Kennedy’s letter,17 and
the Board claims that, at some point thereafter, members of the
community obtained copies of the letter.
As we have seen in Thompson, Wilson, and Benningfield, by
intending to speak privately, Kennedy did not forfeit her First
Amendment protection. “Neither the [First] Amendment itself nor
our decisions indicate that . . . freedom [of speech] is lost to
the public employee who arranges to communicate privately with
his employer rather than to spread his views before the public.”
Givhan, 439 U.S. at 415-16. “The fact that [plaintiffs] chose
discrimination [is] a matter inherently of public concern[.]”);
Wilson, 973 F.2d at 1269 (holding that reports of alleged sexual
harassment constitute reports of public official wrongdoing).
17
See Schon, supra note 5.
33
[not] to . . . publicize their complaints is not dispositive.”
Benningfield, 157 F.3d at 374; see also Brown v. Texas A & M
Univ., 804 F.2d 327, 337 (5th Cir. 1986) (“The fact that the
speech was delivered privately to [Brown’s] superiors, rather
than to Bob Woodward and Carl Bernstein, does not necessarily
render the speech any less protected.” (footnote omitted)).
“Rather, the publicization of the speech at issue, appropriately
viewed, is simply another factor to be weighed in analyzing
whether [the] alleged speech addressed matters of public
concern.” Thompson, 901 F.2d at 466.
Moreover, unlike Terrell, where Terrell neither publicized
his accusations nor “would [he] have had any occasion to do so,”
792 F.2d at 1363, Kennedy obviously had opportunities to air her
concerns to the public because the newspaper reported on the
existence of her letter, the same article quoted Kennedy’s
approval of the Board of Control’s decision to adopt Sledge’s
safety program, and the appellees concede that the public
obtained copies of Kennedy’s letter. Additionally, whereas the
investigation in Terrell was a wholly intra-departmental affair,
an agency external to the Library, the Council, insisted that
Sledge devise a safety program. Therefore, unlike Terrell, where
Terrell’s speech regarding an intra-departmental investigation
related only to his own job, Kennedy’s speech here referred to
producing a safety plan demanded by the Parish at large to
safeguard patrons and employees alike, and indeed, her own
34
suggestion appeared within the plan itself. Indeed, any hint of
personal gain that Kennedy could have derived from penning her
letter is notably absent from the record. See Thompson, 901 F.2d
at 465. Therefore, the context of Kennedy’s speech posits no
obstacle to according her letter First Amendment protection.
Finally, the form of the speech indicates that it was of a
public nature. Specifically, Kennedy did not write the letter in
the context of an employer-employee dispute. See Connick, 461 U.S.
at 148 (holding that questions functioning “as mere extensions of
Myers’ dispute over her transfer to another section of the criminal
court” did not involve the public concern); Teague, 179 F.3d at
383; Harris, 168 F.3d at 222. Just as in Moore and Harris, nothing
suggests that her working relationship with her superiors was
unpleasant. Indeed, the record reflects that Kennedy had a very
positive relationship with Sledge, who repeatedly gave Kennedy
glowing reviews, recommended raises, and encouraged Kennedy to take
initiative and be a leader.
Moreover, unlike Teague and Gillum, the record does not
intimate that Kennedy’s letter itself sparked an employment
dispute. Upon first reading the letter, Sledge remarked only that
Kennedy had written it well without hinting in the slightest that
Kennedy’s conduct somehow exceeded the bounds of workplace decorum.
Appellees further concede that the letter was “written in a humble
and cordial tone.” See Brief for Appees., p. 24 n.8. And the
contents of the letter were obviously non-controversial: Kennedy’s
35
proposed requirements of at least two employees on duty at all
times and closing library branches when only one employee is
present mirrored (or perhaps were incorporated into) Sledge’s own
security proposal.
Finally, unlike Gonzales–where the speech involved was found
nevertheless to be protected–Kennedy’s proposal did not even impact
her own job. Kennedy did not work in any of the branches that were
short-staffed and never would confront a situation in which she had
to work alone. See Tompkins, 26 F.3d at 605-607 (finding speech to
relate to the public concern where a teacher criticized the
cancellation of an art program at another school).
Weighing these factors—the public nature of the content, the
public-leaning nature of the context, and the public nature of the
form of the speech—yields the conclusion that Kennedy spoke on a
matter of public concern.18 She therefore stated a claim for
18
Teague cites Gillum for the proposition that context
and form weigh more heavily than content in the Fifth Circuit
because “we are chary of an analytical path that takes judges so
uncomfortably close to content based inquiries.” Teague, 179
F.3d at 382 (quoting Gillum, 3 F.3d at 121). But Gillum does not
even apply the content-context-form test, much less expound upon
which factors should weigh more or less heavily than others.
Gillum opts for the citizen-employee test, focusing exclusively
upon “the hat worn by the employee when speaking[.]” 3 F.3d at
121. Moreover, no Supreme Court or Fifth Circuit precedent
provides support for weighing the factors of content, context and
form differently. Indeed, the Supreme Court directs us only to
look to “the content, form, and context of a given statement, as
revealed by the whole court record.” Connick, 461 U.S. at 147-
48. And as our examination of the relevant cases above reveals,
in Fifth Circuit case law prior to Teague, content consistently
played a significant role in determining the nature of the
speech. Finally, though judges are traditionally, and rightly,
36
retaliation in violation of the First Amendment.
Though we are not obligated to apply the citizen-employee test
in mixed speech cases, we observe that it produces an identical
conclusion. Following Connick, we must ascertain whether Kennedy
spoke “not as a citizen upon matters of public concern, but instead
as an employee upon matters only of personal interest.” 461 U.S.
at 147 (emphasis added). Here Kennedy clearly was not speaking
upon matters only of personal interest, and indeed, she spoke
“primarily in [her] role as citizen.” Terrell, 792 F.2d at 1362.
First, the content of her speech involved a matter of public
safety. See Thompson, 901 F.2d at 466. Second, her speech
introduced proposed policy changes that would not impact her own
working situation. See Tompkins, 26 F.3d at 607 (rejecting an
argument that Tompkins spoke on a matter of personal interest where
he criticized the abandonment of an art program at a high school
where he did not teach). Moreover, her proposed amendments did not
entail criticism of her immediate superior’s job performance or
concerned about content-based inquiries, our Circuit’s public
employee speech cases contain explicitly content-based inquiries.
For instance, in a case where an employee conceded that he was
speaking primarily in his capacity as such, and where the speech
was not directed to the public and was part of his employment
duties (as distinguished from speech not directed to the public
that is about the employment, workplace, or employer, though not
part of the performance of job duties), we held the speech to
fall outside the purview of the First Amendment because it did
not expose corruption or wrongdoing. See Wallace v. Texas Tech
Univ., 80 F.3d 1042, 1050-51 (5th Cir. 1996). In essence,
Wallace looked only to content to ascertain the protectability of
the speech, and thus constitutes an explicitly content-based
precedent.
37
management style. See Terrell, 792 F.2d at 363. Third, she spoke
against a backdrop of vigorous public debate, indicating that the
rape and the Library’s security policy was of interest to the
community at large. See Moore, 877 F.2d at 371 (“[T]he public was
receptive and eager to hear about the ability of the Fire
Department to perform its duties.”). Finally, her letter had
nothing to do with an ongoing employment dispute, an element that
usually suggests the speech is made in the capacity of “employee.”
See Teague, 179 F.3d at 383 (“During all relevant events, Teague .
. . [was] acting in [his] capacity as [an] employee[] embroiled in
an employment dispute.”).
Because Kennedy’s complaint reveals that she spoke on a matter
of public concern, we hold that the district court should not have
dismissed her complaint for failure to state a claim.
We must still consider, however, the possibility that the
district court dismissed Kennedy’s claim without considering her
first amended complaint. Though the lower court permitted
Kennedy’s first amended complaint to remain in the record, we have
nothing but appellees’ assurances that the trial court considered
it.
If the district court dismissed Kennedy’s complaint without an
opportunity to amend, it erred. “Ordinarily, when a complaint does
not establish a cause of action in a case raising the issue of
immunity, a district court should provide the plaintiff an
opportunity to satisfy the heightened pleading requirements of
38
these cases.” Jacquez v. R.K. Procunier, 801 F.2d 789, 792 (5th
Cir. 1986); see also Wicks v. Mississippi State Employment Servs.,
41 F.3d 991, 997 (5th Cir. 1995). “Dismissing an action after
giving the plaintiff only one opportunity to state his case is
ordinarily unjustified.” Jacquez, 801 F.2d at 792. However, “if
a complaint alleges the plaintiff’s best case, there is no need to
remand for a further factual statement from the plaintiff.” Jones
v. M.L. Greninger, 188 F.3d 322, 327 (5th Cir. 1999).
Kennedy’s initial complaint unquestionably did not allege her
best case: at 23 paragraphs, it is short on facts and law, but long
on conclusory statements. Kennedy’s first amended complaint
remedies these failings: at 86 paragraphs, it states a claim for a
First Amendment violation, explaining specifically why her speech
is of public concern, and why her interests outweigh those of the
Board. Therefore, the district court should not have denied
Kennedy leave to amend.
We hold that the district court should have permitted Kennedy
to amend her complaint and should have considered the first amended
complaint if it did not. We further conclude that Kennedy alleged,
as a matter of law, that her speech related to the public concern.
We therefore must reverse the district court’s dismissal of
Kennedy’s claim on any of the aforementioned grounds and, subject
to our summary judgment analysis below, remand for a new trial on
the merits.
39
III. Qualified Immunity
The district court granted Sledge’s motion for summary
judgment on grounds of qualified immunity. Kennedy argues that in
so doing, it erred because she has alleged a violation of a clearly
established right and raised a fact issue as to whether Sledge
acted in an objectively reasonable manner in demoting her for
writing the letter. Appellees respond that Kennedy’s right to
speak on security matters was not clearly established at the time
Sledge fired Kennedy.
“[G]overnment officials performing discretionary functions
generally are shielded from liability for civil damages insofar as
their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also
Wilson v. Layne, 119 S. Ct. 1692, 1699 (1999). To ascertain the
availability of this defense, we must first examine whether the
“plaintiff has alleged a violation of a clearly established right.”
Fontenot v. Cormier, 56 F.3d 669, 673 (5th Cir. 1995); see also
Siegert v. Gilley, 500 U.S. 226, 231 (1991). Second, we must ask
whether the defendants’ conduct was objectively reasonable in light
of “clearly established” law at the time of the alleged violation.
Siegert, 500 U.S. at 231-32; see also Kelly v. Foti, 77 F.3d 819,
821 (5th Cir. 1995).
As Kennedy has stated a First Amendment claim, she has alleged
40
a violation of a clearly established right. Since 1983, the year
the Supreme Court decided Connick, government employers have known
that, unless their interest in efficiency at the office outweighs
the employee’s interest in speaking, they cannot fire their
employees for making statements that relate to the public concern.
Though Sledge argues vigorously that the law does not support
Kennedy’s right to speak on security matters, she is defining the
right far too narrowly. See Warnock v. Pecos County, Texas, 116
F.3d 776, 782 (5th Cir. 1997) (holding that, though the contours of
a right must be adequately defined, “‘[t]his is not to say that an
official action is protected by qualified immunity unless the very
action in question has previously been held unlawful.’” (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987))). Kennedy has a
clearly established right to speak on matters of public concern,
see Denton v. Morgan, 136 F.3d 1038, 1042 (5th Cir. 1998), on
matters of public safety, see Thompson, 901 F.2d at 466, and on
matters of official misconduct. See Brawner, 855 F.2d at 192-93
(“At the time . . . Brawner was discharged . . . . [i]t was clearly
established that a public employee’s speech revealing improper
conduct by fellow employees was protected.”). Therefore, Kennedy’s
right to speak as a citizen about Library security issues stemming
from Patanella’s rape was clearly established.
Moreover, Kennedy has presented a fact issue sufficient to
survive summary judgment as to whether Sledge acted in an
objectively reasonable manner in light of Kennedy’s clearly
41
established rights. Government employers undoubtedly have broad
authority and discretion to discipline employees whose speech
impairs the smooth and efficient operation of government offices.
See Connick, 461 U.S. at 151 (“‘[T]he government, as employer, must
have wide discretion and control over the management of its
personnel and internal affairs. This includes the prerogative to
remove employees whose conduct hinders efficient operation and to
do so with dispatch.’” (quoting Arnett v. Kennedy, 416 U.S. 134,
168 (1974) (Powell, J., concurring and dissenting))). But
government employers also know that “public officials must ‘engage
in the McBee-Pickering-Connick balancing before taking disciplinary
action.’” Warnock, 116 F.3d at 782 (quoting Click v. Copeland, 970
F.2d 106, 112 (5th Cir. 1992)). This test “requires full
consideration of the government’s interest in the effective and
efficient fulfillment of its responsibilities to the public,”
Connick, 461 U.S. at 150, but nevertheless remains the minimum a
government employer must do before deciding to discipline an
employee for speaking on a matter of public concern. Sledge admits
that she never gave Kennedy’s First Amendment rights any thought at
all before she demoted her. Thus, unless Kennedy has failed to
present a fact issue as to whether her interests outweigh those of
appellees, this concession is fatal to Sledge’s claim for qualified
immunity.
Applying the McBee-Pickering-Connick balancing test to this
summary judgment record, we find that it favors Kennedy. The
42
balancing test demands that we consider whether Kennedy’s speech
(1) was likely to generate controversy and disruption, (2) impeded
the department’s general performance and operation, and (3)
affected working relationships necessary to the department’s proper
functioning. See Brawner, 855 F.2d at 192.
First, as the letter struck a “humble and cordial” tone and
bolstered the suggestions in Sledge’s own security plan, we
conclude that it was not likely to generate controversy and
disruption. Though the letter did urge Sledge and the Board to
act, and sought to prevent them from de-emphasizing the gravity of
the rape, Sledge did not find these aspects of the letter
disruptive or likely to generate controversy when she first read
the letter, and we may conclude that Kennedy’s tone and her narrow
distribution of the letter allayed the letter’s potential in this
regard.19
19
Sledge avers that Kennedy’s conduct after Sledge
demoted her was disruptive and controversial. Specifically,
Sledge alleges that Kennedy encouraged her coworkers to carry
tape recorders to work, to file grievances, and to request
financial information about the Library. Sledge faces two
problems with this argument. The first is a matter of proof.
Sledge has presented absolutely no evidence showing that Kennedy
encouraged her coworkers to behave insubordinately; Sledge merely
presented evidence of the other employees’ contumacious conduct
and now asks this court to assume that Kennedy instigated it.
This we cannot do on summary judgment.
The second problem is one of relevance. The McBee-
Pickering-Connick test balances the potential of the speech
involved to cause disruption and controversy. And Sledge never
argues that Kennedy’s letter precipitated the problems with
Kennedy’s coworkers. Rather, she concedes that the issue with
Kennedy’s coworkers arose only after Sledge demoted Kennedy—in
response to her letter—without considering her First Amendment
43
Sledge does argue that Kennedy made allegedly derogatory
comments about local communities in the letter, and that, by virtue
of having signed the letter in her official capacity, Kennedy
misled the public into believing that the letter was a statement of
Library policy. This, Sledge asserts, caused disruption and
controversy. Sledge’s argument here must fail. Kennedy only
distributed her letter to Sledge, Patanella, the Library’s branch
managers, and the Board of Control members—a group of individuals
who all knew Kennedy’s position in the Library and were well aware
that her letter did not state Library policy. The record reveals
that the only people who might have been confused learned of the
letter and its contents through an October 24, 1997 news article,
which ran after Sledge demoted Kennedy on October 23, 1997.
Therefore, any confusion that Kennedy’s letter might have generated
could not have been a factor in Kennedy’s demotion because the
confusion would have arisen after Sledge demoted Kennedy.
rights. Therefore, the conduct of Kennedy’s coworkers is not
relevant to the McBee-Pickering-Connick balancing test.
Sledge also points to Kennedy’s propounding of a memorandum
critical of the Board’s proposed budget for the Library as
evidence of her insubordination. Kennedy’s actions in
distributing this memorandum are so analogous to the facts of
Pickering v. Board of Educ. of Township High Sch. Dist. 205, Will
County, Illinois, 391 U.S. 563 (1968), that her speech in the
memorandum would most likely be related to a matter of the public
concern and therefore protected by the First Amendment.
Finally, to the extent that Sledge presents this evidence of
Kennedy’s alleged insubordination subsequent to being demoted to
show that Kennedy caused Sledge to fire her for insubordination
two weeks after her demotion, that argument goes to Kennedy’s
damages, an issue not before us presently.
44
Second, the letter would not have impeded the Library’s
general performance and operation: it did not have any bearing on
the day-to-day business of circulating books within the community.
Cf. Moore, 877 F.2d at 374 (holding that Moore’s insubordinate
statements to the press did not “interfere in any way with the
actual fighting of fires.”). Finally, the letter did not disrupt
any working relationships necessary for the Library’s efficient
functioning. Neither Sledge nor the Board had to interact with
Kennedy on a day-to-day basis. Cf. Pickering v. Board of Educ. of
Township High Sch. Dist. 205, Will County, Illinois, 391 U.S. 563,
569-70 (1968) (“[Pickering’s] statements are in no way directed
towards any person with whom [he] would normally be in contact in
the course of his daily work as a teacher.”). Moreover, Sledge
actually complimented Kennedy on the letter when she saw it, and
any deterioration in Sledge’s relationship with Kennedy may be
fairly traced to Sledge demoting Kennedy. Thus, based solely on
the summary judgment record before us, Kennedy’s interests in
speaking outweigh any minuscule loss in efficiency to the Library
occasioned by her letter.
Viewing these facts, as we must on summary judgment, in the
light most favorable to Kennedy, she has alleged a violation of a
clearly established right and also raised a fact issue as to
whether Sledge acted in an objectively reasonable manner in light
of Kennedy’s clearly established rights.
So as to preempt any confusion about the implications of this
45
holding, we clarify that we express no opinion as to whether Sledge
in fact acted in an objectively reasonable manner or whether she
ultimately will be entitled to qualified immunity. Our only
holding is that we cannot tell, at the summary judgment stage of
the case where we must view the evidence in the light most
favorable to Kennedy, whether Sledge acted in an objectively
reasonable manner. We further caution that our holding today turns
on four critical concessions by appellees: (1) appellees admitted
that Sledge demoted Kennedy in response to the letter; (2) Sledge
confessed that she gave Kennedy’s First Amendment rights no thought
before demoting her; (3) the Board agreed that Patanella’s rape was
a matter of public concern; and (4) appellees characterized the
tone of Kennedy’s letter as “humble and cordial,” not controversial
or disruptive. At trial, however, “a very different picture may
result than the one painted by the summary judgment record because
[Kennedy] must prove the issues that this opinion assumes in [her]
favor, and the jury can choose to credit certain facts over others,
which we cannot do in reviewing a [grant] of summary judgment.”
Gutierrez v. City of San Antonio, Texas, 139 F.3d 441, 451 (5th
Cir. 1998).
Therefore, we hold that the district court erred when it
granted Sledge summary judgment on the issue of qualified immunity.
IV. Conclusion
We hold, as a matter of law, that Kennedy spoke on a matter
46
of public concern, and therefore, that her first amended
complaint states a claim for retaliation in violation of the
First Amendment. We further hold that the district court should
have granted Kennedy leave to amend her complaint and should have
considered her first amended complaint. We are thus constrained
to reverse the district court’s dismissal of the case on these
grounds and remand for a new trial on the merits.
We further hold that Kennedy has alleged a violation of a
clearly established constitutional right and raised a fact issue
as to whether Sledge acted in an objectively reasonable manner in
demoting Kennedy in response to her letter. We therefore reverse
the district court’s grant of summary judgment on this ground and
remand for a trial on the merits.
REVERSED and REMANDED.
47