Bradshaw v. Pittsburg Independent School District

                 UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT



                          No. 99-40792
                        Summary Calendar



                       LANELL W. BRADSHAW,

                                                Plaintiff-Appellee,


                             VERSUS


        PITTSBURG INDEPENDENT SCHOOL DISTRICT, et al.

                                                        Defendants,
        N. EDWARD KENDALL, In his official and individual
       capacities; DR. MARY MCKINNEY, In her official and
 individual capacities; DR. DAN KINCAID, In his official and
individual capacities; DR. TERRY RICHARDSON, In his official
 and individual capacities; JONATHAN FULLER, In his official
   and individual capacities; DON PEEK, In his official and
    individual capacities; RODNEY REED, In his official and
  individual capacities; JOHN NICKERSON, In his official and
                      individual capacities,
                                              Defendants-Appellants.



          Appeal from the United States District Court
                For the Eastern District of Texas
                         April 11, 2000
Before SMITH, BARKSDALE and PARKER, Circuit Judges.
PER CURIAM:

     Defendants appeal the district court's Order Adopting the

Report and Recommendation of the United States Magistrate Judge,

denying their motions for summary judgment.    Because we find that

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the speech at issue does not touch upon a public concern, we

reverse and remand.

                                FACTS

       Plaintiff-Appellee (“Bradshaw”) filed the instant suit,

pursuant to 42 U.S.C. § 1983 (1994), alleging retaliation for the

exercise of her First Amendment Rights and several supplemental

state law claims.    Bradshaw was hired as principal of Pittsburg

High School for the 1995-96 school year.    The next school year,

Bradshaw was employed under a two-year administrator contract

with Pittsburg ISD.

       On February 19, 1997, the Board of Trustees met and

considered the extension of the multiple year contracts of

administrators.    At this meeting, the Board decided to continue

the plaintiff in her capacity as principal through the remainder

of the 1996-97 school year and reassign her the following year in

accordance with the specific provisions of her administrator

contract.    The next day, defendant Superintendent Kendall

informed the plaintiff of the Board's decision.

       On February 24, 1997 plaintiff sent the first of three

memoranda to defendant Kendall,1 suggesting that he request the

Board to release Bradshaw from the remainder of her contract with

pay.    The reference line in the memorandum was titled “Personal

and Professional Concerns, Activity Account Documentation.”      Also



  1
     Copies of the memorandum were sent to the Commissioner on
Education, all Board of Trustees members and the publisher of the
local newspaper.

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included in this memorandum were criticisms of school board

members regarding certain actions they took with regard to the

renewal of Bradshaw's contract, defending Bradshaw against

defamatory allegations and managing the school activity fund.

Bradshaw's comments regarding the activity fund came in response

to accusations that she had misused resources in the fund.

     Plaintiff submitted two more memoranda describing her

efforts in investigating the high school activity fund records

and further complaining that Board members were derelict in their

duty to protect her from defamatory allegations regarding the

fund.   In particular, the second memorandum specifically asked

the Board members to exonerate Bradshaw from issues involving the

high school activity fund, while the third memorandum reiterated

her request that she be released from the remainder of her

contract with pay.

     Following a March 17, 1997, Board of Trustees meeting,

plaintiff was offered a $25,000 buy out of her contract.

Plaintiff rejected the offer.   On March, 19, 1997, Plaintiff was

reassigned from the position of Pittsburg High School principal

to the position of Alternative Education Placement Campus

principal.   Plaintiff filed a formal grievance with the Board

seeking redress for the reassignment.   The Board denied the

request.   On June 17, 1998, 13 days before the expiration of her

contract, plaintiff resigned.

                 FIRST AMENDMENT RETALIATION CLAIM

     A state may not retaliate against an employee for exercising


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her First Amendment right to free speech.      See Anderson v.

Pasadena Indep. Sch. Dist., 184 F.3d 439, 444 (5th Cir. 1999)

(citing Rankin v. McPherson, 483 U.S. 378, 383 (1987)).     A public

employee's right to free speech is limited when it conflicts with

her role as a public employee.     See id.   There are four elements

to an employee's First Amendment Claim against her employer:

     A First Amendment retaliation claim must include facts
     showing that: (1) the employee suffered an adverse
     employment decision; (2) the employee's speech involved
     a matter of public concern; (3) the employee's interest
     in commenting on matters of public concerns outweighs
     the defendants' interest in promoting efficiency; and
     (4) the employee's speech must have motivated the
     defendants' action.

Lukan v. North Forest ISD, 183 F.3d 342, 345 (5th Cir. 1999)

(citing Harris v. Victoria Indep. Sch. Dist., 168 F.3d 216, 220

(5th Cir. 1999)).

     As a threshold requirement to constitutional protection, the

public employee must establish that her speech addressed a matter

of public concern.     See Connick v. Myers, 461 U.S. 138, 146-47

(1983); Kirkland v. Northside Indep. Sch. Dist., 890 F.2d 794,

797 (5th Cir. 1989).    “If the speech does not concern a matter of

public concern, a court will not scrutinize the reasons

motivating a discharge that was allegedly in retaliation for that

speech.”   Dodds v. Childers, 933 F.2d 271, 273 (5th Cir. 1991);

see also Connick, 461 U.S. at 146 (noting that if the speech at

issue “cannot be fairly characterized as constituting speech on a

matter of public concern, it is unnecessary for [courts] to

scrutinize the reasons for [a public employee's] discharge”);

Davis v. Ector County, 40 F.3d 777, 782 (5th Cir. 1994) (Wisdom,

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J.) (“We note that, were we to find that the subject matter of

Davis's letter is not a matter of public concern, our inquiry

would end.”).

                        Standard of Review

     For purposes of appellate review, the “inquiry into the

protected status of speech is one of law, not fact.”    Kirkland,

890 F.2d at 798 (quoting Connick, 461 U.S. at 148 n.7).    “Whether

the speech at issue relates to a matter of public concern is a

question of law to be resolved by the court.”    Tompkins v.

Vickers, 26 F.3d 603, 606 (5th Cir. 1994) (citing Rankin v.

McPherson, 483 U.S. 378, 386 n.9 (1987)).    Therefore, not only is

our jurisdiction appropriate to review this issue,2 but our

review is de novo.   See, e.g., Teague v. City of Flower Mound,

179 F.3d 377, 380 (5th Cir. 1999); Coughlin v. Lee, 946 F.2d

1152, 1156 (5th Cir. 1991).

                      Public Concern Analysis

     Speech rises to the level of public concern when an

individual speaks primarily as a citizen rather than as an

employee.   See Thompson v. City of Starkville, 901 F.2d 456, 461

(5th Cir. 1990).   The analysis takes into consideration the

totality of the circumstances surrounding the speech at issue.

     The 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

     2
        Because the district court's denial of summary judgment
was based on the denial of qualified immunity, this is a
permissible interlocutory appeal. See Mitchell v. Forsyth, 472
U.S. 511, 530 (1985); Jones v. City of Jackson, --- F.3d ---, ---
, No. 98-60013, 2000 WL 156093, at *2 (5th Cir. Feb. 14, 2000).

                                -5-
     public concern. On the other hand, an employee cannot
     transform a personal conflict into an issue of public
     concern simply by arguing that individual concerns
     might have been of interest to the public under
     different circumstances.

Dodds, 933 F.2d at 273 (citations omitted); see also Connick, 461

U.S. at 149-50 (“To presume that all matters which transpire

within a government office are of public concern would mean that

virtually every remark--and certainly every criticism directed at

a public official--would plant the seed of a constitutional

case.”); Terrell v. University of Texas System Police, 792 F.2d

1360, 1362 (5th Cir. 1991) (“[T]he mere fact that the topic of

the employee's speech was one in which the public might or would

have a great interest is of little moment . . . because almost

anything that occurs within a public agency could be of concern

to the public.”).   “Whether an employee's speech addresses a

matter of public concern, rather than a matter of personal

concern, must be determined by the content, form, and context of



a given statement, as revealed by the entire record.”   Denton v.

Morgan, 136 F.3d 1038, 1043 (5th Cir. 1998)

                            DISCUSSION

     Unlike the district court and the magistrate court, we find

the factual record sufficiently developed to make the legal

finding that Bradshaw's speech does not touch a matter of public

concern.

                              Content

     The memos seek a buy-out of Bradshaw's contract.   After


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Kendall refused to buy her out, she wrote the first of the three

memos.   Appellant is correct in categorizing the communications

from Bradshaw as “settlement negotiations seeking paid leave for

the remainder of her contract once the employment dispute began.”

Bradshaw is not entitled to insert a few references to an

activity fund and claim that her speech was primarily that of a

citizen rather than a disgruntled employee.    See, e.g., Teague,

179 F.3d at 382 (“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

matters.”).

     The defensive tone of the initial memorandum sets the stage

for the two that follow.   In the February 24, 1997, Bradshaw

defends herself against allegations that she misused student

activity funds and criticizes the Board's handling of the

allegations.   The second memorandum, drafted February 28, 1997,

echo the sentiments of the first document.    After discussing and

explaining various unreimbursed expenditures from the activity

fund, Bradshaw noted that these “matters” were not “to be

discussed at social gatherings, the coffee shop, or in responding

to questions of P.I.S.D. patrons.”    If the contents of these

memoranda were really “matters of public concern,” as Bradshaw

asserts, then social gatherings and responses to P.I.S.D. patrons

are entirely appropriate forums to discuss such matters.

     In the third and final memorandum, Bradshaw specifically

requests that her “name, personal and professional reputation be


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publically exonerated with respect to” the allegations of her

misuse of the student activity fund.    This is a matter of pure

personal concern.   See, e.g., Teague, 179 F.3d at 383.

     Although partially about the fund, which may be a matter

with some public concern, plaintiff wrote the memoranda,

investigated the fund and chastised Board members in an effort to

protect her name and her job.   The content of the memoranda are

predominately personal communications rather than communications

relating to a matter public concern.

                                Form

     The form of the memoranda provides further support that

Bradshaw drafted the documents in her capacity as a public

employee rather than as a public citizen.    Each of them was

signed by Bradshaw as “High School Principal.”    At least two of

the memoranda were on Pittsburg High School Letterhead.    These

facts heavily favor a conclusion that Bradshaw's speech did not

constitute matters of public concern.

     In addition, Bradshaw did not publicly announce her

“personal and professional concerns” regarding the Board's

handling of the allegations that she mishandled school activity

funds.   The “concerns” delineated in the three memoranda were

made in the form of a response in a employer-employee dispute.

Although the fact that Bradshaw chose to file internal grievances

rather than publicize her complaints is not dispositive, such

evidence weighs in favor of our finding that Bradshaw's speech

was public rather than private in nature.    See Teague, 179 F.3d


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at 383; Moore v. Mississippi Valley State Univ., 871 F.2d 545,

551 (5th Cir. 1989).

                                Context

     According to the record, the memoranda (the speech at issue

in this case) were written after the decision was made (and

conveyed to Bradshaw) to reassign Bradshaw after the 1996-97

school year ended.    In this context, Bradshaw's “speech” is more

akin to a personal grievance rather than a matter of public

concern.   Post hoc metamorphoses fall short of the constitutional

threshold.     See Terrell, 933 F.2d at 274 (“Retrospective

embellishment cannot transform personal grievances into matters

of public concern.”).    In this light, Bradshaw's complaints

cannot be seen “in the context of a continuing commentary that

had originated in a public forum.”        Tompkins, 26 F.3d at 607

(quoting Brawner v. City of Richardson, 855 F.2d 187, 192 (5th

Cir. 1988)).

     This conclusion is consistent with the principle noted by

the Supreme Court in Mt. Healthy City Sch. Dist. v. Doyle, 429

U.S. 274 (1977), that employees already involved in a potentially

adverse employment decision cannot engage in actions usually

protected by the First Amendment in an attempt to frustrate the

employment decision.    Such a rule would place the employee “in a

better position as a result of constitutionally protected conduct

than he would have occupied had he done nothing.”        Mt. Healthy,

429 U.S. at 285.

                              CONCLUSION


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     The content, form and context of the memoranda show that

these were more of an effort by Ms. Bradshaw to clear her name

rather than some contribution to a public dialogue on high school

activity funds as she would have this court believe.    In other

words, they represent speech by Ms. Bradshaw primarily acting as

an employee rather than a citizen.    For the foregoing reasons,

Plaintiff has failed to show that her speech touched on a matter

of public concern.   Therefore, the ruling of the district court



denying summary judgment is reversed.    The case is remanded for

further proceedings consistent with this opinion.

REVERSED and REMANDED




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