Kennedy v. Tangipahoa Parish Library Board of Control

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.

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 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

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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

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 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.

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