United States Court of Appeals,
Eleventh Circuit.
No. 95-6432.
Patrice D. WILLIAMS, Plaintiff-Appellee,
v.
ALABAMA STATE UNIVERSITY, Board of Trustees of Alabama State
University, Defendants,
T. Clifford Bibb, individually and in his official capacity,
Roosevelt Steptoe, Dr., individually and in his official capacity,
Alma S. Freeman, Dr., individually and in her official capacity,
Defendants-Appellants.
Jan. 6, 1997.
Appeal from the United States District Court for the Middle
District of Alabama. (No. CV-94-A-434-N), W. Harold Albritton, III,
Judge.
Before ANDERSON and COX, Circuit Judges, and RONEY, Senior Circuit
Judge.
PER CURIAM:
The individual defendants in this 42 U.S.C. § 1983 action
appeal the district court's order denying their motion to dismiss
the claims against them in their individual capacities on grounds
of qualified immunity.1 The district court held that the complaint
alleges a violation of a clearly established constitutional right.
We reverse.
BACKGROUND2
Patrice Williams was employed as an English instructor at
1
The district court dismissed claims against these
defendants in their official capacities on Eleventh Amendment
grounds except to the extent that Williams sought prospective
injunctive relief. Williams also named Alabama State University
and the Board of Trustees as defendants, and all claims against
them were dismissed on Eleventh Amendment grounds.
2
The background facts are taken from the amended complaint.
Alabama State University ("ASU") from 1980 to 1986, and again from
1988 to 1993. In 1990, Williams's request for a promotion was
denied. In 1991, Williams's application for tenure was denied, but
she was granted a promotion to Assistant Professor. Pursuant to
ASU's "up or out" tenure policy, Williams worked her final year at
ASU under a temporary contract and received a termination letter in
May 1993.
Following her termination, Williams sued Dr. T. Clifford Bibb,
Dr. Alma S. Freeman, and Dr. Roosevelt Steptoe in both their
individual and official capacities. Williams alleges that the
defendants, who hold various administrative positions at ASU,
reduced her hours, denied her tenure, and terminated her in
retaliation for her constitutionally protected speech.
Specifically, Williams contends that the defendants retaliated
against her because she criticized a grammar textbook written by
Bibb and other faculty members.
The defendants moved to dismiss Williams's complaint on the
grounds that they were entitled to qualified immunity and that
Williams failed to meet the heightened pleading standard applicable
in § 1983 actions against individuals. The district court
concluded that Williams's complaint failed to meet the heightened
pleading standard, but granted her leave to amend. Williams filed
an amended complaint, in which she alleges that (1) she
"criticized" the textbook because it contained "numerous
substantive grammatical mistakes," (2) she "spoke out against" and
"instigated debate" about the use of the textbook, (3) she voiced
these concerns to defendant Bibb, the other authors of the book,
and other faculty members, (4) her 1990 request for a promotion was
denied by the defendants, (5) Bibb chaired the 1991 tenure
committee, and his influence over the committees resulted in the
denial of her tenure application, (6) defendant Steptoe signed the
letter informing her that her tenure application was denied, and
(7) defendants Bibb, Steptoe, and Freeman "approved and authorized"
the denial of her tenure application. (R.10 at 3-6). The
defendants moved to dismiss the amended complaint, again asserting
that they were entitled to qualified immunity and that the amended
complaint failed to meet the heightened pleading standard. The
district court denied the motion, holding that the amended
complaint adequately alleged a violation of Williams's right to
free speech, and that further factual development was required
before the qualified immunity issue could be resolved. The
defendants appeal the district court's denial of their motion to
dismiss the claims against them in their individual capacities.
ISSUE ON APPEAL AND STANDARD OF REVIEW
The defendants assert the defense of qualified immunity in a
Rule 12(b)(6) motion to dismiss, and they are entitled to qualified
immunity at this stage in the proceedings if Williams's amended
complaint fails to allege the violation of a clearly established
constitutional right.3 See Mitchell v. Forsyth, 472 U.S. 511, 526,
105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985); Siegert v. Gilley,
3
Because we conclude that defendants are entitled to
qualified immunity, we need not address defendants' contention
that Williams's amended complaint fails to meet the heightened
pleading standard. We are, however, aided by the greater
specificity of Williams's amended complaint in determining
whether she alleges the violation of a clearly established right.
500 U.S. 226, 232-33, 111 S.Ct. 1789, 1793-94, 114 L.Ed.2d 277
(1991). Whether the amended complaint alleges a violation of a
clearly established right is a question of law, Ansley v. Heinrich,
925 F.2d 1339, 1348 (11th Cir.1991);4 thus, we review de novo the
district court's order denying the defendants' motion to dismiss.
Executive 100, Inc. v. Martin County, 922 F.2d 1536, 1539 (11th
Cir.), cert. denied, 502 U.S. 810, 112 S.Ct. 55, 116 L.Ed.2d 32
(1991).
In deciding whether the complaint states a claim, we accept
all well-pleaded facts in the complaint as true and draw all
inferences in the plaintiff's favor. Oladeinde v. City of
Birmingham, 963 F.2d 1481, 1485 (11th Cir.1992), cert. denied, 507
U.S. 987, 113 S.Ct. 1586, 123 L.Ed.2d 153 (1993).
DISCUSSION
Qualified immunity shields government officials sued in their
individual capacities who act pursuant to discretionary authority
"insofar as their conduct does not violate clearly established ...
constitutional rights of which a reasonable person would have
4
Williams filed a motion to dismiss this appeal for lack of
jurisdiction, arguing that the district court's denial of the
defendants' motion was not an appealable final decision under
Johnson v. Jones, --- U.S. ----, 115 S.Ct. 2151, 132 L.Ed.2d 238
(1995). In Johnson, the Supreme Court held that a district
court's summary judgment order in a qualified immunity case based
on a question of "evidence sufficiency" is not an appealable
order. Id. at ----, 115 S.Ct. at 2156. The purely legal issue
raised by defendants on this appeal is part of the core qualified
immunity analysis. See Johnson v. Clifton, 74 F.3d 1087, 1091
(11th Cir.1996) (distinguishing core qualified immunity issue
from evidence sufficiency issue); see also Siegert v. Gilley,
500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991)
(whether violation of clearly established right is alleged is
purely legal question). Thus, we have jurisdiction to hear this
appeal and Williams's motion to dismiss this appeal is denied.
known." Harlow v. Fitzgerald, 457 U.S. 800, 817-18, 102 S.Ct.
2727, 2738, 73 L.Ed.2d 396 (1982). The question of qualified
immunity should be resolved in the defendant's favor on a motion to
dismiss if the plaintiff fails to allege the violation of a clearly
established constitutional right. Siegert, 500 U.S. at 232-33, 111
S.Ct. at 1793-94. For a constitutional right to be clearly
established so that qualified immunity does not apply, "[t]he
contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that
right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034,
3039, 97 L.Ed.2d 523 (1987).
In determining whether Williams has alleged a violation of a
clearly established right, we look to the prevailing First
Amendment law at the time of the defendants' alleged conduct.
Under that law, a state employer could not retaliate against a
state employee for engaging in constitutionally protected speech.
Rankin v. McPherson, 483 U.S. 378, 383, 107 S.Ct. 2891, 2896, 97
L.Ed.2d 315 (1987); Bryson v. City of Waycross, 888 F.2d 1562,
1565 (11th Cir.1989). For a public employee's speech to be
constitutionally protected, the employee's interest in commenting
on matters of public concern must outweigh the employer's interest
in promoting efficiency by suppressing the speech. Pickering v.
Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20
L.Ed.2d 811 (1968). Because the law in this area employs a
balancing test rather than a bright-line rule to determine when a
public employee's right to free speech is violated, "the employer
is entitled to immunity except in the extraordinary case where
Pickering balancing would lead to the inevitable conclusion that
the discharge of the employee was unlawful." Dartland v.
Metropolitan Dade County, 866 F.2d 1321, 1323 (11th Cir.1989).
In performing the Pickering balancing test, a threshold
question is whether the employee's speech involves a matter of
public concern. Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct.
1684, 1690, 75 L.Ed.2d 708 (1983). The district court erred in
holding that, under clearly established law, Williams's alleged
speech involves a matter of public concern, thereby triggering
First Amendment protection. We have not been provided nor has our
research revealed any case holding that a professor's in-house
criticism of a particular text is constitutionally protected
speech. Decisions addressing analogous issues suggest the law to
be otherwise. A professor's criticism of a required course
syllabus was held not to be a matter of public concern in Ballard
v. Blount, 581 F.Supp. 160 (N.D.Ga.1983), aff'd, 734 F.2d 1480
(11th Cir.), cert. denied, 469 U.S. 1086, 105 S.Ct. 590, 83 L.Ed.2d
700 (1984):
The plaintiff claims that this speech was related to a matter
of public concern, since the decision regarding the syllabus
would have an eventual, derivative effect on the freshman
English students. Taken to its logical conclusion, the
plaintiff's argument means that any time a person's speech
will have an effect on the public, regardless of how small or
unlikely that effect may be, that speech relates to a matter
of public concern. This was a specific concern of the Connick
Court, and the Court wisely rejected this identical argument.
581 F.Supp. at 164 (citing Connick v. Myers, 461 U.S. 138, 103
S.Ct. 1684, 75 L.Ed.2d 708 (1983)). In addition, in Feldman v.
Bahn, a complaint against university officials who allegedly
discharged a professor in retaliation for his accusing a colleague
of plagiarism was dismissed on qualified immunity grounds. 12 F.3d
730 (7th Cir.1993), cert. denied, --- U.S. ----, 115 S.Ct. 571, 130
L.Ed.2d 489 (1994).
Maples v. Martin, 858 F.2d 1546 (11th Cir.1988), upon which
the plaintiff relies, does not clearly establish that plaintiff's
speech activities here were of public concern. In Maples, we found
that plaintiffs' speech involved matters of public concern. But
that speech involved much more than just criticism of the
curriculum. 858 F.2d at 1553. Plaintiffs also spoke out about
inadequate facilities, low faculty to student ratio, poor
performance of graduates on a licensing exam, the ability of his
department to prepare students for professional careers, and the
status of accreditation. Id. Unlike the plaintiffs' speech
activities in Maples, the plaintiff's activities in the present
case, as specifically set forth in her amended complaint, do not
"directly affect[ ] the public's perception of the quality of
education in a given academic system." Id. at 1553. Plaintiff's
activities more closely "concern[ ] internal administration of the
educational system and personal grievances." Id. at 1552.
Therefore, we hold that whether Williams's activities involved a
matter of public concern is not "sufficiently clear that a
reasonable official would understand that what he is doing
violates" the First Amendment. Anderson, 483 U.S. at 640, 107
S.Ct. at 3039.
Moreover, defendants are entitled to qualified immunity
because the Pickering balancing test does not inevitably weigh in
Williams's favor. Under Dartland v. Metropolitan Dade County, "the
employer is entitled to immunity except in the extraordinary case
where Pickering balancing would lead to the inevitable conclusion
that the discharge of the employee was unlawful." 866 F.2d at
1323. In applying Pickering, we must look to whether the
employee's interest in commenting on the matters at issue outweigh
the employer's interest in promoting efficiency by suppressing the
speech. 391 U.S. at 568, 88 S.Ct. at 1734-35. Williams clearly
had some interest in speaking about the fitness of the text she was
using to teach her students. But, just as clearly, the university
had an interest in making efficient academic and administrative
decisions. See Connick, 461 U.S. at 151, 103 S.Ct. at 1692 ("[T]he
Government, as an 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. Prolonged
retention of a disruptive or otherwise unsatisfactory employee can
adversely affect discipline and morale in the work place, foster
disharmony, and ultimately impair the efficiency of an office or
agency.") (quoting Arnett v. Kennedy, 416 U.S. 134, 168, 94 S.Ct.
1633, 1651, 40 L.Ed.2d 15 (1974) (Powell, J., concurring in part)).
Given these competing interests, we cannot say that the Pickering
balancing test inevitably weighs in Williams's favor. Dartland,
866 F.2d 1321.
For these reasons, we conclude that defendants in their
individual capacities are entitled to qualified immunity. The
order of the district court denying qualified immunity to the
defendants is reversed, and this case is remanded to the district
court with instructions to enter judgment for defendants on the §
1983 damage claims against them in their individual capacities.
REVERSED and REMANDED.