Revised July 8, 1999
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 98-40230
_______________
TOM TEAGUE
and
DAVID BURKETT,
Plaintiffs-Appellants,
VERSUS
THE CITY OF FLOWER MOUND, TEXAS; DAVE BRUNGARDT;
WESS JONES; PARKER-JONES, INC.; TERRY WELCH;
BILL PARKER; and BOBBY JONES,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________
July 6, 1999
Before SMITH, DeMOSS, and STEWART, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Plaintiffs Tom Teague and David Burkett appeal a summary judg-
ment entered in their retaliation case, asserting that they were
reprimanded and ultimately discharged for exercising their First
Amendment right to free speech. Concluding that the speech in
question does not primarily address a matter of public concern, we
affirm.
I.
Teague and Burkett were long-time police officers employed by
the Flower Mound Police Department who had exemplary performance
records and had been recognized as “Officers of the Year.” Teague
was the department's designated internal affairs officer, and
Teague and Burkett served in a supervisory capacity in the Criminal
Investigation Division (“CID”).
In December 1995, they became aware of possible wrongdoing by
fellow officer Wess Jones; specifically, they suspected him of
aggravated perjury. Pursuant to his internal affairs role, Teague
placed Jones on administrative leave and, beginning December 10,
1995, undertook an investigation. Because of the criminal nature
of Jones’s suspected wrongdoing, Burkett began a parallel criminal
investigation into Jones’s conduct.
When Chief of Police Dave Brungardt learned of the inves-
tigations, he requested that Teague and Burkett keep him apprised
of their progress. On December 20, after learning from the Town
Attorney that Burkett was going to present a case against Jones to
a grand jury, Brungardt put a stop to the investigations but hired
the outside private investigating firm Parker-Jones, Inc. (Parker-
Jones”), to look into Jones’s potential wrongdoing. Parker-Jones
cleared Jones of all wrongdoing, after which Jones was returned to
regular duty.
2
Upset with Jones’s vindication, in light of what they felt was
(as stated in Teague's affidavit) “substantive and uncontroverted
evidence that there was probable cause to believe that Wess Jones
had violated several sections of the Texas Penal Code, and internal
Flower Mound personnel rules,” Teague, Burkett, and other officers
requested a meeting with Brungardt. Brungardt refused, explaining
that the district attorney’s office had investigated the matter and
had also cleared Jones of any wrongdoing. On hearing this, Teague
called assistant district attorney Kevin Henry, who informed him
that the district attorney had not looked into the Jones matter at
all. This led Teague and Burkett to believe that Brungardt was
covering up for JonesSSa suspicion bolstered by the fact that Brun-
gardt had developed a close relationship with Jones since Jones had
become president of the police union.
Pursuant to city rules, Teague, Burkett and another supervisor
filed a grievance against Brungardt, which was presented to him on
January 27, 1996. These officers also requested that Brungardt
permit them to meet with Town Manager Ron Ragland regarding these
issues. Permission was initially granted, but withdrawn only three
days later.
In the meantime, on January 15 Brungardt transferred Teague
and Burkett out of CID, at their request. Burkett’s
replacementSSRon NottinghamSSinformed Brungardt that the CID had an
enormous backlog of cases in the wake of Teague's and Burkett's
supervisory tenure. This prompted Brungardt to launch an
3
investigation into Burkett and Teague, which was commenced by
Parker-Jones on January 31, on which date Brungardt gave Teague and
Burkett administrative warnings and placed them on administrative
leave. Additionally, every other officer who had signed the
January 27 grievance petition was in some way reprimanded on either
January 30 or 31.
In May 1996, the Parker-Jones investigation into Teague’s and
Burkett’s supervision of the CID concluded that they had been
derelict in their duty. In June 1996, Brungardt fired them, where-
upon they appealed their terminations to Ragland, who sustained
Brungardt’s decision on July 22, 1996.
II.
Teague and Burkett sued the city, Brungardt, and Parker-Jones
and its principals, claiming a trio of constitutional violations:
retaliation in violation of the First Amendment; denial of their
right to assemble and to petition the government under the First
Amendment; and denial of due process under the Fifth Amendment.
Defendants denied any constitutional violations and invoked quali-
fied immunity.
The court granted summary judgment for defendants on all
claims, finding an absence of any constitutional deprivation.
Teague and Burkett appeal only on the retaliation claim, thereby
abandoning their other constitutional claims. See Yohey v. Col-
4
lins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Regarding retaliation, the court found that Teague’s and Bur-
kett’s speech was not a matter of public concern and therefore did
not qualify for First Amendment protection. A fortiori, Brungardt
was afforded qualified immunity, and the city was held not liable.
III.
There are four elements to an employee’s First Amendment
retaliation claim against his employer:
First, the Plaintiffs must suffer an adverse
employment decision. See Harrington v.
Harris, 118 F.3d 359, 365 (5th Cir.1997).
Second, the Plaintiffs' speech must involve a
matter of public concern. See Thompson v.
City of Starkville, 901 F.2d 456, 460 (5th
Cir.1990) (citing Connick v. Myers, 461 U.S.
138, 147 . . .(1983)). Third, the Plaintiffs'
interest in commenting on matters of public
concern must outweigh the Defendants' interest
in promoting efficiency. Id. (citing Picker-
ing v. Board of Education, 391 U.S. 563, 568
. . . (1968)). Fourth, the Plaintiffs' speech
must have motivated the Defendants' action.
Id. (citing Mt. Healthy City School Dist. v.
Doyle, 429 U.S. 274, 287 . . . (1977)).
Harris v. Victoria Indep. Sch. Dist., 168 F.3d 216, 220 (5th Cir.
1999). The focal point of the instant dispute is whether the
second of these elements has been established: whether plaintiffs
Teague and Burkett have alleged facts sufficient to show that their
speech addressed a matter of public concern. See Connick v. Myers,
461 U.S. 138, 147 (1983). This determination is a question of law,
5
see Coughlin v. Lee, 946 F.2d 1152, 1156 (5th Cir. 1991), so we
decide it de novo. Id.
Building on the seminal employee speech case of Pickering v.
Board of Educ., 391 U.S. 563 (1969), the Connick Court explained
that “[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.” Connick,
461 U.S. at 147-48. In language particularly relevant here,
Connick elaborated on its general rule:
We hold only that 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.
Id. at 147.
Since Connick was decided in 1983, our circuit and others have
grappled with defining the contours of its test and its holding, as
we applied it to a variety of settings.1 The instant case involves
1
See, e.g., Wilson v. UT Health Ctr., 973 F.2d 1263, 1269-70 (5th Cir. 1992)
(employee’s reports of sexual harassment perpetrated against her and others deemed
a matter of public concern); Urofsky v. Gilmore, 167 F.3d 191, 195-96 (4th Cir.
1999) (law “restricting state employees from accessing sexually explicit material
on computers that are owned or leased by the Commonwealth unless given permission
to do so . . . regulates the speech of individuals speaking in their capacity as
Commonwealth employees, not as citizens, and thus . . . does not touch upon a matter
of public concern”); Tang v. Rhode Island, 163 F.3d 7, 10-13 (1st Cir. 1998)
(stating that state employee’s allegations of workplace harassment did not
constitute a matter of public concern); Gardetto v. Mason, 100 F.3d 803, 812-14
(10th Cir. 1996) (reasoning that plaintiff’s “advocacy to obtain a vote of ‘no
confidence’” in a “highly visible public official” was a matter of public concern);
Swineford v. Snyder County Pa., 15 F.3d 1258, 1270-72 (3d Cir. 1994) (plaintiff’s
complaint against county commissioner’s office regarding election improprieties
(continued...)
6
speech that is of both public and private concern. We know that it
involves a matter of public concern, because our circuit's caselaw
has established that speech regarding police misconduct constitutes
a matter of public concern.2 We recognize, however, that the
speech involves a matter of private concern as well, as in the past
we have held that speech concerning the conditions of one’s employ-
ment is a private matter. See Gillum v. City of Kerrville, 3 F.3d
117, 120-21 (5th Cir. 1993). Thus, we are faced with the challenge
of applying Connick to a “mixed speech” situation.
Our first foray into the realm of mixed speech cases in the
wake of Connick was Terrell v. University of Tex. Sys. Police,
792 F.2d 1360 (5th Cir. 1986), in which we concluded that our obli-
gation in mixed speech cases is “to decide whether the speech at
issue . . . was made primarily in the plaintiff’s role as citizen
or primarily in his role as employee.” Terrell, id. at 1362 (em-
phasis added). Unfortunately, the facts of Terrell are a bit pecu-
liar, so its holding is not squarely on point: It concerned the
plight of a public employee who “was fired when his secret diary,
which was critical of his supervisor, fell into the supervisor’s
hands.” Id. at 1361. Because of these unique circumstances, we
1
(...continued)
deemed a matter of public concern); Havekost v. United States Dep’t of the Navy, 925
F.2d 316, (9th Cir. 1991) (plaintiff’s complaints about Navy commissary supervisor,
which led to his discharge, not a matter of public concern).
2
See Forsyth v. City of Dallas, 91 F.3d 769, 773-74 (5th Cir. 1996); Brawner
v. City of Richardson, 855 F.2d 187, 192 (5th Cir. 1988).
7
were able to find that the plaintiff “made no effort to communicate
the contents of [his diary] to the public, and the evidence does
not suggest that he would have had any occasion to do so.” Id.
at 1362-63. This finding belied plaintiff’s assertion that his was
a matter of public concern, and enabled us to hold that his was a
matter of “wholly intragovernmental concern.” Id. at 1363.
Three years later, we revisited the issue of mixed speech in
Moore v. City of Kilgore, 877 F.2d 364 (5th Cir. 1989), in which
we reiterated that whether speech should be characterized as a mat-
ter of public concern depends on its “content, context and form.”
Moore, 877 F.2d at 369-70. These factors “must be considered as a
whole package, and [their] significance . . . will differ depending
on the circumstances of the particular situation.” Id. at 370. In
applying that standard, we looked carefully at each of the
factorsSScontent, context, and form. Id. at 370-72. No single one
was presented as dispositive. Id. Fortunately, the facts of Moore
are more prosaic, and their examination sheds some light on the
case before us.
The plaintiff in Moore was a fireman who challenged his
suspension following statements he made critical of the fire de-
partment. Id. at 367-68. These statements occurred during a press
conference following the tragic death of a fireman on the day after
Christmas. Id. In sum, the plaintiff blamed the fireman’s
deathSSin partSSon layoffs. Id. This drew the wrath of plaintiff’s
8
superiors, and he was reprimanded and suspended. Id.
We found that the content was of public concern (insofar as
the public “cares deeply about the ability of its Fire Department
to respond quickly and effectively to a fire,” id. at 370), and the
context of the speech suggested a matter of public concern (in that
the statements were made during a press conference, see id.
at 371). In examining the “form” of the speech, however, we noted
that plaintiff’s comments “do involve a hint of personal 'employee'
considerations.” Id. Evidence for this came from the fact that
plaintiff had complained about the layoffs from their beginning,
causing him to remark “I told you so” to his superiors following
the tragedy. Id. Nevertheless, his “speech as a whole . . .
considering content, context, and form together . . . involve[d] a
matter of public concern.” Id.
Thus, Terrell established, and Moore squarely applied, a bal-
ancing test approach to the treatment of mixed speech cases in this
circuit. In 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.3
The three-factor test has been summarized, at times, as a test
to determine whether one is speaking as a citizen or as an em-
3
See, e.g., Thompson v. City of Starkville, 901 F.2d 456, 463-65 (5th Cir.
1990) (applying three-factor balancing test).
9
ployee.4 The seeds of this summary version of the three-factor
test were planted, of course, in Terrell, in which we said that
“our task is to decide whether the speech at issue in a particular
case was made primarily in the plaintiff’s role as citizen or pri-
marily in his role as employee.” Terrell, 792 F.2d at 1363. The
utility of this shorthand approach is limited somewhat by the fact
that it may be inappropriate in particular factual situationsSSsuch
as when the employee in question is a public ombudsman. Cf.
Warnock v. Pecos County, 116 F.3d 776, 780 (5th Cir. 1997). Never-
theless, more often than not the “citizen versus employee” test
will point us in the right direction, and so we consider it here,
in conjunction with the more lengthy three-factor balancing test we
have described.
That test was developed further in Gillum v. City of Kerr-
ville, 3 F.3d 117, 121 (5th Cir. 1993), in which we indicated our
desire to elevate the roles of context and form over content:
“[The] focus [is] on the hat worn by the employee when speaking
rather than upon the 'importance' of the issue.” Such an approach
is preferable to a raw content or heavily content-based analysis,
because “we are chary of an analytical path that takes judges so
uncomfortably close to content based inquiries.” Id.
4
See, e.g. Dodds v. Childers, 933 F.2d 271, 273 (5th Cir. 1991) (stating that
“issues rise to the level of public concern if an individual speaks primarily as a
citizen rather than as an employee”); Ayoub v. Texas A & M Univ., 927 F.2d 834, 837
(5th Cir. 1991) (holding that plaintiff’s pay discrimination complaint did not
constitute a matter of public concern, because he “consistently spoke not as a
citizen . . . but rather as an employee”).
10
Unfortunately, cutting against our established precedent is
some broad language in Wilson v. UT Health Ctr., 973 F.2d 1263,
1269 (5th Cir. 1992), that has led the instant plaintiffs to be-
lieve that public employee speech falls outside of First Amendment
protection only if it “consist[s] exclusively” of employee-employer
concerns. Wilson, 973 F.2d at 1269. Similarly, plaintiffs read
Benningfield v. City of Houston, 157 F.3d 369, 374 (5th Cir. 1998),
in which we stated that “review by a federal court is improper
where the speech involves matters of solely personal interest,” as
implying that federal review is proper in all mixed speech cases.
We do not read Wilson and Benningfield as do the plaintiffs.
For one thing, their results would be unworkable: The mere inser-
tion 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. Not surprisingly, therefore, plain-
tiffs have not produced a single case in which such a lax standard
has actually governed; that is, we have seen no case in which mixed
speech of a predominantly private character has been afforded con-
stitutional protection. In fact, such a reading of Wilson and Ben-
ningfield would create a split among the circuits.5 Moreover, the
rule of orderliness forbids one of our panels from overruling a
5
See, e.g., Hartman v. Board of Trustees, 4 F.3d 465, 471-72 (7th Cir. 1993)
(“When the speaker’s motives are mixed, as often they are, the speech will not be
found to raise a matter of public concern if 'the overriding reason for the speech,'
as determined by its content, form and context, appears to have been related to the
speaker’s personal interests as an employee.”).
11
prior panel; 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. See Lowrey v. Texas A & M Univ. Sys.,
117 F.3d 242, 247 (5th Cir. 1997).6
We affirm on the basis of these tests. In terms of content,
we acknowledge that the speech in question was predominantly pub-
lic. Speech concerning police misconduct is public in content.
Forsyth, 91 F.3d at 773-74. In terms of context, however, Teague’s
grievance is more appropriately characterized as private: It was
made in the setting of a private employee-employer dispute. Al-
though “[t]he fact that the Plaintiffs chose to file internal
grievances rather than publicize their complaints is not disposi-
tive,” Benningfield, 157 F.3d at 375, this evidence does most cer-
tainly suggest that the speech was private in context, rather than
public.7
Finally, the speech in question is undeniably private in
form. Teague’s grievance letter opens with “I was removed from the
position of Internal Affairs Investigator with a phone call at
10:00 o’clock at night with no explanation.” It ends with
“I believe I have exhausted all reasonable means to clear myself
6
Benningfield does not even mention Terrell or Moore, and Wilson cites
only Terrell.
7
We are, of course, aware of the fact that plaintiffs did attempt to take
their grievance to the town manager (Ragland). This was not, however, an attempt
to make the matter public, but rather simply an effort to go over Brungardt’s
head by appealing to someone with supervisory authority over him.
12
from those allegations which caused my removal from an otherwise
routine internal affairs investigation.” The grievance submitted
by Teague and Burkett to Ragland contained more of the same, ex-
pressing “the need to be given a fair hearing concerning our hand-
ling of [the Jones] investigation.”
Taking these three factors together, and weighing the latter
two (context and form) more heavily as required by Gillum, we
conclude that the speech is not entitled to First Amendment protec-
tion. When taken as a whole, the statements of Teague and Burkett
were primary of private concern.
Utilizing the simpler “citizen versus employer” approach pro-
duces to the same result. During all relevant events, Teague and
Burkett were acting in their capacity as employees embroiled in an
employment dispute. Their focus (following their reprimands) was
primarily on clearing their namesSSnot on rooting out police cor-
ruption per se. Closely on point and arguably controlling is Gil-
lum, 3 F.3d at 120-21, in which we held that a plaintiff who was
fired after “speaking to his superior officers about police corrup-
tion” did not state a federal claim, because he spoke primarily in
his role as an employee and not as a citizen. As we explained, “To
be sure, corruption in an internal affairs department is a matter
of public concern. [Plaintiff’s] focus was, however, on the issue
insofar as it impacted his wish to continue his investigation.”
Id. at 120.
13
Thus, under either the three-factor balancing test of Terrell
or the summary “citizen versus employee” dichotomy applied in Gil-
lum, Teague and Burkett do not enjoy the First Amendment protec-
tions of citizens speaking to a matter of public concern. Although
interspersed with apparently genuine concerns regarding police
wrongdoing, Teague’s and Burkett’s grievances were primarily
motivated by, and primarily addressed, concerns particular to their
private interests. For this reason, the district court correctly
dismissed their retaliation claims, and we need not reach the issue
of qualified immunity or municipal liability.
AFFIRMED.
14