Speech made pursuant to an employee's official duties is not protected by the First Amendment even if the speech addresses matters of great social importance.
An athletic director for a school district filed memoranda to his principal and office manager protesting the mismanagement of athletic funds and questioning account balances. He subsequently alleged retaliation after being removed from his position. The court must determine if such speech is protected by the First Amendment. Applying the rule that the First Amendment does not protect expressions made pursuant to a worker's official duties, the court finds that because the memoranda addressed matters necessary for the employee to perform his job functions, the speech was made in the course of performing his employment. Consequently, the speech is not protected.
At page 693 Distinguishing job-required speech from citizen speech48 citing cases“activities undertaken in the course of performing one's job are activities pursuant to official duties.”
- Frank Benes v. City of Dallas, 602 F. App'x 589 (5th Cir. 2015).unpublished (Job-required speech is not protected.)
- Nixon v. City of Houston, 511 F.3d 494 (5th Cir. 2007).published ([W]hen Ceballos articulated his opinion about a case in a memorandum to his supervisor, alleging that the police acted inappropriately in gathering evidence, he did exactly what he was required to do.)
- Harrison v. Texas Alcoholic Beverage Comm'n, No. 1:19-cv-00668 (W.D. Tex. July 23, 2020). (Activities undertaken in the course of performing one’s job are activities pursuant to official duties.)
- Charles Wagner v. Lamar Univ., No. 15-25-00147-CV (Tex. App.—15th Dist. Nov. 10, 2025).published Dist., 480 F.3d 689, 693 (5th Cir. 2007) ...............63 Wilson v. Garcia, 471 U.S. 261, 275-76 (1985) ......................................................60 Wisconsin v. Constantineau, 400 U.S. 433 (1971) .............................…
- Allen v. Boedeker, No. 3:24-cv-02968 (N.D. Tex. July 30, 2025). Dist., 480 F.3d 689, 693 (5th Cir. 2007) (cleaned up). 18 See id. at 694 (finding a school Athletic Director’s memorandum unprotected by the First Amendment when he wrote it from the perspective of his role in the school district rather th…
- Necaise v. Mississippi Dep't of Revenue, No. 3:22-cv-00213 (S.D. Miss. Oct. 31, 2023). Dist., 480 F.3d 689, 693 (5th Cir. 2007).
- Necaise v. Mississippi Dep't of Revenue, No. 3:22-cv-00213 (S.D. Miss. Sept. 27, 2023). Dist., 480 F.3d 689, 693 (5th Cir. 2007).
- Necaise v. May, 700 F. Supp. 3d 469 (S.D. Miss. 2023).published Dist., 480 F.3d 689, 693 (5th Cir. 2007).
- Sherman v. Itawamba Cmty. Coll., No. 1:21-cv-00190 (N.D. Miss. Aug. 4, 2023). Dist., 480 F.3d 689, 693 (5th Cir. 2007).
- Sherman v. Itawamba Cmty. Coll., No. 1:21-cv-00190 (N.D. Miss. Aug. 1, 2023). Dist., 480 F.3d 689, 693 (Sth Cir. 2007).
Show 38 more citing cases
- San Benito Consol. ISD v. Mary Alice Leal, No. 13-20-00569-CV (Tex. App.—Corpus Christi–Edinburg Jan. 27, 2022).publishedDist., 480 F.3d 689, 693 (5th Cir. 2007); Lane v. Franks, 573 U.S. 228 , 240 (2014) (“The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely…
- Samer Shobassy v. City of Port Arthur, No. 09-18-00363-CV (Tex. App.—Beaumont Nov. 19, 2020).publishedDist., 480 F.3d 689, 693 (5th Cir. 2007) (per curiam). 41 See Lane v. Franks, 573 U.S. 228 , 240 (2014). 42 See Davis v. Dall.
- Dixon v. Alcorn Cnty., No. 1:19-cv-00167 (N.D. Miss. Sept. 28, 2020).Dist., 480 F.3d 689, 693 (5th Cir. 2007).
- Frith Malin v. Orleans Par. Comm Dist., No. 17-30490 (5th Cir. Feb. 15, 2018).unpublishedDist., 480 F.3d 689, 693 (5th Cir. 2007) (per curiam) (holding the that a high school athletic director who wrote memoranda to supervisors complaining about the lack of funds for athletics spoke as an employee because such funds were integ…
- Rodriguez v. City of Corpus Christi, 687 F. App'x 386 (5th Cir. 2017).unpublished Dist., 480 F.3d 689, 692-93 (5th Cir. 2007)).
- Bruce Anderson v. State of Texas, 845 F.3d 580 (5th Cir. 2016).unpublished Dist., 480 F.3d 689, 692-93 (5th Cir. 2007) ("Pickering, however, is now inapposite.
- Lumpkin v. Aransas Cnty., 224 F. Supp. 3d 513 (S.D. Tex. 2016).publishedDist., 480 F.3d 689, 692 (5th Cir. 2007).
- Jackie Anderson v. Terry Grier, No. 01-15-00285-CV (Tex. App.—Houston [1st Dist.] Dec. 21, 2015).published Dist., 480 F.3d 689, 692 (5th Cir. 2007)).
- Moore v. Univ. of Kansas, 118 F. Supp. 3d 1242 (D. Kan. 2015).publishedDist., 480 F.3d 689, 693 (5th Cir.2007)) (per curiam).
- Hays v. LaForge, 113 F. Supp. 3d 883 (N.D. Miss. 2015).published Dist., 480 F.3d 689, 693 (5th Cir.2007).
- Tregg Wilson v. Mike Tregre, 787 F.3d 322 (5th Cir. 2015).publishedDist., 480 F.3d 689, 693 (5th Cir.2007) (per curiam) (recognizing that speech required by one’s position as an employee is not protected by the First Amendment).
- Mable Caleb v. Terry Grier, 598 F. App'x 227 (5th Cir. 2015).unpublishedDist., 480 F.3d 689, 693 (5th Cir.2007) ("These cases, when viewed as a whole, distinguish between speech that is `the kind of activity engaged in by citizens who do not work for the government,' and activities undertaken in the course of…
- Wetherbe v. Smith, 593 F. App'x 323 (5th Cir. 2014).unpublishedDist., 480 F.3d 689, 693 (5th Cir.2007).
- Stark v. Univ. of S. Mississippi, 8 F. Supp. 3d 825 (S.D. Miss. 2014).published Dist., 480 F.3d 689, 693-94 (5th Cir.2007).
- Heffernan v. Straub, 612 F. Supp. 2d 313 (S.D.N.Y. 2009).published
- Papagolos v. Lafayette Cnty. Sch. Dist., 972 F. Supp. 2d 912 (N.D. Miss. 2013).published
- Foley v. Town of Randolph, 601 F. Supp. 2d 379 (D. Mass. 2009).published
- Anthony Gibson v. Jeffrey Kilpatrick, 734 F.3d 395 (5th Cir. 2013).published
- Beau David Price v. Texas Alcoholic Beverage Comm'n, No. 01-12-01164-CV, 2014 Tex. App. LEXIS 7495 (Tex. App.—Houston [1st Dist.] July 10, 2014).published
- Watts v. City of Jackson, 827 F. Supp. 2d 724 (S.D. Miss. 2011).published
- Foley v. Town of Randolph, 598 F.3d 1 (1st Cir. 2010).published
- Davis v. McKinney, 518 F.3d 304 (5th Cir. 2008).published
- Williams v. Riley, 275 F. App'x 385 (5th Cir. 2008).unpublished
- Mercado-Berrios v. Cancel-Alegria, 611 F.3d 18 (1st Cir. 2010).published
- Brammer-Hoelter v. Twin Peaks Charter Academy, 492 F.3d 1192 (10th Cir. 2007).published
- Thomas v. City of Blanchard, 548 F.3d 1317 (10th Cir. 2008).published
- Arthur Elizondo v. Fletcher Parks, 431 F. App'x 299 (5th Cir. 2011).unpublished
- Sonya Briscoe v. Jefferson Cnty., 500 F. App'x 274 (5th Cir. 2012).unpublished
- Richard Haverda v. Hays Cnty., 723 F.3d 586 (5th Cir. 2013).published
- Caraccilo v. Vill. of Seneca Falls, NY, 582 F. Supp. 2d 390 (W.D.N.Y. 2008).published
- Isenalumhe v. Mcduffie, 697 F. Supp. 2d 367 (E.D.N.Y. 2010).published
- Garcia v. Montenegro, 547 F. Supp. 2d 738 (W.D. Tex. 2008).published
- Jacobson v. Schwarzenegger, 650 F. Supp. 2d 1032 (C.D. Cal. 2009).published
- Kast v. Greater New Orleans Expressway Comm'n, 719 F. Supp. 2d 662 (E.D. La. 2010).published
- Cruz v. Puerto Rico Power Auth., 878 F. Supp. 2d 316 (D.P.R. 2012).published
- Johnson v. Hurtt, 893 F. Supp. 2d 817 (S.D. Tex. 2012).published
- Brown v. Tucci, 960 F. Supp. 2d 544 (W.D. Pa. 2013).published
- Anderson v. Tupelo Reg'l Airport Auth., 967 F. Supp. 2d 1127 (N.D. Miss. 2013).published
At page 694 Determining if employee speech is within job duties49 citing cases“simply because williams wrote memoranda, which were not demanded of him, does not mean he was not acting within the course of performing his job.”
- Frank Benes v. City of Dallas, 602 F. App'x 589 (5th Cir. 2015).unpublished See Williams, 480 F.3d at 693 (“Job-required speech is not protected.”).
- Harrison v. Texas Alcoholic Beverage Comm'n, No. 1:19-cv-00668 (W.D. Tex. July 23, 2020). Harrison has pleaded herself out of First Amendment protection because her allegations establish that she sent the conflict-of-interest email to Helm and Swedberg “in the course of performing [her] job as [Licensing Director].” Williams, 4…
- Allen v. Boedeker, No. 3:24-cv-02968 (N.D. Tex. July 30, 2025). Dist., 480 F.3d 689, 693 (5th Cir. 2007) (cleaned up). 18 See id. at 694 (finding a school Athletic Director’s memorandum unprotected by the First Amendment when he wrote it from the perspective of his role in the school district rather th…
- Salvana v. New York State Dep't of Corr. & Cmty. Supervision, No. 5:21-cv-00735 (N.D.N.Y. Mar. 6, 2025).Dist., 480 F.3d 689, 694 (5th Cir. 2007)) (finding that the public-school teacher’s concerns about maintaining classroom discipline, an “indispensable prerequisite to effective teaching,” were “part-and-parcel of his concerns” about his ab…
- Necaise v. Mississippi Dep't of Revenue, No. 3:22-cv-00213 (S.D. Miss. Oct. 31, 2023). Dist., 480 F.3d 689, 693 (5th Cir. 2007).
- Necaise v. Mississippi Dep't of Revenue, No. 3:22-cv-00213 (S.D. Miss. Sept. 27, 2023). Dist., 480 F.3d 689, 693 (5th Cir. 2007).
- Necaise v. May, 700 F. Supp. 3d 469 (S.D. Miss. 2023).published Dist., 480 F.3d 689, 693 (5th Cir. 2007).
- Bhattacharya v. Se. Missouri State Univ. Bd. of Regents, No. 1:22-cv-00043, 2022 WL 17844457 (E.D. Mo. Dec. 22, 2022).Dist., 480 F.3d 689, 694 (5th Cir. 2007)).
- Mayfield v. Missouri House of Representatives, No. 2:21-cv-04059 (W.D. Mo. June 21, 2022).Dist., 480 F.3d 689, 694 (5th Cir. 2007)).
- Mayfield v. Missouri House of Representatives, No. 2:21-cv-04059 (W.D. Mo. June 2, 2021).Dist., 480 F.3d 689, 694 (5th Cir. 2007)).
Show 37 more citing cases
- Adams v. Bd. of Educ. Harvey Sch. Dist. 152, No. 1:15-cv-08144 (N.D. Ill. Nov. 14, 2018).(Athletic Director memorandum to Principal regarding misuse of athletic funds not protected by First Amendment as it was part of public duties)
- Adams v. Bd. of Educ. Harvey Sch. Dist. 152, No. 1:15-cv-08144 (N.D. Ill. Nov. 6, 2018).(Athletic Director memorandum to Principal regarding misuse of athletic funds not protected by First Amendment as it was part of public duties)
- Montero v. City of Yonkers, No. 17-76-cv (2d Cir. May 16, 2018).publishedDist., 480 F.3d 689, 694 (5th Cir. 2007)), cert. denied, 562 U.S. 995 12 (2010), he spoke as a private citizen for purposes of his First Amendment right to 13 free speech.
- Henry Lyons v. F. Wayne Vaught, 875 F.3d 1168 (8th Cir. 2017).published Dist., 480 F.3d 689, 694 (5th Cir. 2007); accord Renken v. Gregory, 541 F.3d 769, 774 (7th Cir. 2008).
- Agyeman v. Roosevelt Union Free Sch. Dist., 254 F. Supp. 3d 524 (E.D.N.Y. 2017).publishedDist., 480 F.3d 689, 694 (5th Cir. 2007)).
- Montero v. City of Yonkers, 224 F. Supp. 3d 257 (S.D.N.Y. 2016).publishedDist., 480 F.3d 689, 694 (5th Cir. 2007)), and clarified that an employee’s job description is not dispositive of this question, see id. at 202-03.
- Lee-Walker v. N.Y.C. Dep't of Educ., 220 F. Supp. 3d 484 (S.D.N.Y. 2016).publishedDist., 480 F.3d 689, 694 (5th Cir. 2007)).
- Knisley v. Lake Cnty., 180 F. Supp. 3d 639 (D.S.D. 2016).published(finding that athletic director’s speech was not protected because the report prepared included information about tournaments and payment of entry fees that only principal, office manager, and athletic director would know)
- Langton v. Town of Chester, 168 F. Supp. 3d 597 (S.D.N.Y. 2016).publishedDist., 480 F.3d 689, 694 (5th Cir.2007)).
- Peter Paske, Jr. v. Joel Fitzgerald, 785 F.3d 977 (5th Cir. 2015).publishedDist., 480 F.3d 689, 694 (5th Cir.2007).
- Richard Tucker v. Upshur Cnty. Juv. Prob, 582 F. App'x 363 (5th Cir. 2014).unpublished(Simply because Williams wrote memoranda, which were not demanded of him, does not mean he was not acting within the course of performing his job.)
- Heffernan v. Straub, 612 F. Supp. 2d 313 (S.D.N.Y. 2009).published
- Papagolos v. Lafayette Cnty. Sch. Dist., 972 F. Supp. 2d 912 (N.D. Miss. 2013).published
- Charles v. Grief, 522 F.3d 508 (5th Cir. 2008).published
- Weintraub v. Bd. of Educ. of City of New York, 593 F.3d 196 (2d Cir. 2010).published
- Anthony Gibson v. Jeffrey Kilpatrick, 734 F.3d 395 (5th Cir. 2013).published
- Davis v. McKinney, 518 F.3d 304 (5th Cir. 2008).published
- Sonya Briscoe v. Jefferson Cnty., 500 F. App'x 274 (5th Cir. 2012).unpublished
- Garcia v. Montenegro, 547 F. Supp. 2d 738 (W.D. Tex. 2008).published
- Evans-Marshall v. Bd. of Educ. of the Tipp City Exempted Vill. Sch. Dist., 624 F.3d 332 (6th Cir. 2010).published
- Anemone v. Metro. Transp. Auth., 629 F.3d 97 (2d Cir. 2011).published
- Decotiis v. Whittemore, 635 F.3d 22 (1st Cir. 2011).published
- Nagle v. Marron, 663 F.3d 100 (2d Cir. 2011).published
- Sigsworth, Martin v. City Aurora IL, 487 F.3d 506 (7th Cir. 2007).published
- Angelo Dahlia v. Omar Rodriguez, 735 F.3d 1060 (9th Cir. 2013).published
- Gusler v. City of Long Beach, 823 F. Supp. 2d 98 (E.D.N.Y. 2011).published
- Brady v. Cnty. of Suffolk, 657 F. Supp. 2d 331 (E.D.N.Y. 2009).published
- Carter v. Inc. Vill. of Ocean Beach, 693 F. Supp. 2d 203 (E.D.N.Y. 2010).published
- Frisenda v. Inc. Vill. of Malverne, 775 F. Supp. 2d 486 (E.D.N.Y. 2011).published
- Jackler v. Byrne, 708 F. Supp. 2d 319 (S.D.N.Y. 2010).published
- Weintraub v. Bd. of Educ. of the City Sch. Dist. Of, No. 07-2376-cv (2d Cir. Jan. 27, 2010).published
- Skrutski v. Marut, 288 F. App'x 803 (3d Cir. 2008).unpublished
- Ross v. New York City Dep't of Educ., 935 F. Supp. 2d 508 (E.D.N.Y. 2013).published
- Decotiis v. Whittemore, 680 F. Supp. 2d 263 (D. Me. 2010).published
- Langston v. San Jacinto Junior Coll., 25 F. Supp. 3d 1009 (S.D. Tex. 2014).published
- Harris v. Noxubee Cnty., 350 F. Supp. 3d 592 (S.D. Miss. 2018).published
- Hawkland v. Hall, No. 20-10901 (5th Cir. June 17, 2021).unpublished“This is not a case where [plaintiff] wrote to the local newspaper or school board with his athletic funding concerns.”
At page 692 Shifting focus from speech content to speaker's role38 citing cases“even if the speech is of great social importance, it is not protected by the first amendment so long as it was made pursuant to the worker's official duties.”
- Frank Benes v. City of Dallas, 602 F. App'x 589 (5th Cir. 2015).unpublished See Williams, 480 F.3d at 693 (“Job-required speech is not protected.”).
- Nixon v. City of Houston, 511 F.3d 494 (5th Cir. 2007).published Williams, 480 F.3d at 693 (“[W]hen Ceballos articulated his opinion about a case in a memorandum to his supervisor, alleging that the police acted inappropriately in gathering evidence, he did exactly what he was required to do.”). 7 .
- Harrison v. Texas Alcoholic Beverage Comm'n, No. 1:19-cv-00668 (W.D. Tex. July 23, 2020). Harrison has pleaded herself out of First Amendment protection because her allegations establish that she sent the conflict-of-interest email to Helm and Swedberg “in the course of performing [her] job as [Licensing Director].” Williams, 4…
- Sherman v. Itawamba Cmty. Coll., No. 1:21-cv-00190 (N.D. Miss. Aug. 4, 2023). Dist., 480 F.3d 689, 693 (5th Cir. 2007).
- Sherman v. Itawamba Cmty. Coll., No. 1:21-cv-00190 (N.D. Miss. Aug. 1, 2023). Dist., 480 F.3d 689, 693 (Sth Cir. 2007).
- McGinn v. Exec. Off. of Energy & Env't Affairs, No. 1:19-cv-11551 (D. Mass. Oct. 23, 2020).Dist., 480 F.3d 689, 692 (5th Cir. 2007)); see also Lane v. Franks, 573 U.S. 228 , 240 (2014) (rejecting content-based test in favor of context-based analysis, that is “whether the speech at issue is itself ordinarily within the scope of a…
- Baker v. City of Tupelo, No. 1:18-cv-00018 (N.D. Miss. May 7, 2019).A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity’s operations.” Garcetti, 547 U.S. a…
- Rodriguez v. City of Corpus Christi, 687 F. App'x 386 (5th Cir. 2017).unpublished Dist., 480 F.3d 689, 692-93 (5th Cir. 2007)).
- Samsel v. Desoto Cnty. Sch. Dist., 242 F. Supp. 3d 496 (N.D. Miss. 2017).published Dist., 480 F.3d 689, 692 (5th Cir. 2007)).
- Bruce Anderson v. State of Texas, 845 F.3d 580 (5th Cir. 2016).unpublished Dist., 480 F.3d 689, 692-93 (5th Cir. 2007) ("Pickering, however, is now inapposite.
Show 26 more citing cases
- Lumpkin v. Aransas Cnty., 224 F. Supp. 3d 513 (S.D. Tex. 2016).publishedDist., 480 F.3d 689, 692 (5th Cir. 2007).
- Rayborn v. Bossier Par. Sch. Sys., 198 F. Supp. 3d 747 (W.D. La. 2016).publishedDist., 480 F.3d 689, 692 (5th Cir.2007) (per curiam) (citations and internal quotation marks omitted)).
- Jackie Anderson v. Terry Grier, No. 01-15-00285-CV (Tex. App.—Houston [1st Dist.] Dec. 21, 2015).published Dist., 480 F.3d 689, 692 (5th Cir. 2007)).
- Brown v. Leflore Cnty., 150 F. Supp. 3d 753 (N.D. Miss. 2015).publishedDist., 480 F.3d 689, 692 (5th Cir.2007)).
- McGunigle v. City of Quincy, 132 F. Supp. 3d 155 (D. Mass. 2015).publishedDist., 480 F.3d 689, 692 (5th Cir.2007).
- Howell v. Town of Ball, 90 F. Supp. 3d 629 (W.D. La. 2015).publishedDist., 480 F.3d 689, 692 (5th Cir.2007) (internal citation omitted). .
- Christian Cutler v. Stephen F. Austin State Univ, 767 F.3d 462 (5th Cir. 2014).published Dist., 480 F.3d 689, 692 (5th Cir.2007) (per curiam) (citations and internal quotation marks omitted).
- Papagolos v. Lafayette Cnty. Sch. Dist., 972 F. Supp. 2d 912 (N.D. Miss. 2013).published
- Charles v. Grief, 522 F.3d 508 (5th Cir. 2008).published
- Oscar Renda Contracting v. City of Lubbock, Tex., 577 F.3d 264 (5th Cir. 2009).published
- Comer v. Scott, 610 F.3d 929 (5th Cir. 2010).published
- Huppert v. City of Pittsburg, 574 F.3d 696 (9th Cir. 2009).published
- Weintraub v. Bd. of Educ. of City of New York, 593 F.3d 196 (2d Cir. 2010).published
- Turner v. Perry, 278 S.W.3d 806 (Tex. App.—Houston [14th Dist.] 2009).published
- Winder v. Erste, 511 F. Supp. 2d 160 (D.D.C. 2007).published
- Dorcely v. Wyandanch Union Free Sch. Dist., 665 F. Supp. 2d 178 (E.D.N.Y. 2009).published
- Foley v. Town of Randolph, 601 F. Supp. 2d 379 (D. Mass. 2009).published
- Watts v. City of Jackson, 664 F. Supp. 2d 680 (S.D. Miss. 2009).published
- Bolduc v. Town of Webster, 629 F. Supp. 2d 132 (D. Mass. 2009).published
- Anthony Gibson v. Jeffrey Kilpatrick, 734 F.3d 395 (5th Cir. 2013).published
- Beau David Price v. Texas Alcoholic Beverage Comm'n, No. 01-12-01164-CV, 2014 Tex. App. LEXIS 7495 (Tex. App.—Houston [1st Dist.] July 10, 2014).published
- Kostic v. Texas A & M Univ. at Com., 11 F. Supp. 3d 699 (N.D. Tex. 2014).published
- Watts v. City of Jackson, 827 F. Supp. 2d 724 (S.D. Miss. 2011).published
- Petrie v. City of Grapevine, 904 F. Supp. 2d 569 (N.D. Tex. 2012).published
- Decotiis v. Whittemore, 680 F. Supp. 2d 263 (D. Me. 2010).published
- Langston v. San Jacinto Junior Coll., 25 F. Supp. 3d 1009 (S.D. Tex. 2014).published
At page 691 Retaliation claims following administrative removal7 citing casesunderstanding of what standard operating procedure is at the majority of the high school campuses. Typically, all gate receipts generated for non-district…
- Frank Benes v. City of Dallas, 602 F. App'x 589 (5th Cir. 2015).unpublished See Williams, 480 F.3d at 693 (“Job-required speech is not protected.”).
- Keith Hardesty v. Waterworks Dist. 4 of Ward, 621 F. App'x 771 (5th Cir. 2015).unpublishedDist., 480 F.3d 689, 691-94 (5th Cir.2007)). 9 .
- Charles v. Grief, 522 F.3d 508 (5th Cir. 2008).published
- Sheila Goudeau v. East Baton Rouge Par. Sch Bd, 540 F. App'x 429 (5th Cir. 2013).unpublished
- Duffie v. Wichita Cnty., 990 F. Supp. 2d 695 (N.D. Tex. 2013).published
At page 690 Allegations of interference with athletic materials3 citing cases
- Michael Van Deelen v. James Cain, 628 F. App'x 891 (5th Cir. 2015).unpublishedDist., 480 F.3d 689, 690, 694 (5th Dir.2007) (per curiam) (holding that athletic director’s memorandum to principal explaining how months-long improper admini|stration of athletic funds impaired his ability to perform job-related tasks “wa…
- Heffernan v. Straub, 612 F. Supp. 2d 313 (S.D.N.Y. 2009).published
- Papagolos v. Lafayette Cnty. Sch. Dist., 972 F. Supp. 2d 912 (N.D. Miss. 2013).published
At page 689 Reviewing employee complaints about school fund management1 citing casePER CURIAM: Gregory Williams appeals the district court’s grant of summary judgment in favor of his former employer, Dallas Independent School District…
- Fierro v. City of New York, No. 1:20-cv-09966, 2022 WL 428264 (S.D.N.Y. Feb. 10, 2022).Dist., 480 F.3d at 689, 694 (5th Cir. 2007)).
v.
DALLAS INDEPENDENT SCHOOL DISTRICT, Defendant-Appellee
Gregory Williams appeals the district court’s grant of summary judgment in favor of his former employer, Dallas Independent School District (“DISD”), on his claim that DISD retaliated against him for engaging in speech protected by the First and Fourteenth Amendments. We affirm.
I
Gregory Williams was previously employed as Athletic Director and Head Football Coach at Pinkston High School in the DISD. During the months leading up to the 2003 school year, Williams repeatedly asked the school’s office manager for information concerning the funds appropriated for athletic activities. Despite numerous requests, the office manager did not give Williams specific information on the athletic account. In late September of that year, Williams wrote a memorandum to the office manager (copied to the school principal, J.L. Wright) in which he protested the manager’s “fail[ure] to provide [him] with any information and/or balance pertaining to th[e athletic] account.” Also in this letter, he questioned as “extremely unusual” a previous incident when the office manager casually informed him that the athletic account had a negative balance even though it had been credited with $1,000 for football season, and he had charged only one $165 purchase against that account. Williams concluded his letter to the office manager with, “Your failure to provide me with and [sic] account balance, despite numerous requests, has hurt my ability to provide our student/athletes with critical items and/or materials necessary for competition.”
Almost two months later, Williams wrote a memorandum to principal Wright, expressing further concern regarding the handling of school athletic funds. Williams wrote:
This memorandum is with reference to gate receipts generated through athletic events held here at L.G. Pinkston High School.
As an experienced coach with Dallas Independent School District, I am very familiar with the standard operating procedures utilized at the majority of the high school campuses in this district. I have also gone a step further by communicating with Coach Goree Johnson, Assistant AD DISD, Coach Elsie Moreno, Assistant AD DISD and Coach Calvin Portly, Assistant AD DISD on yesterday, November 19, 2003. These individuals confirmed my original[*691] understanding of what standard operating procedure is at the majority of the high school campuses.
Typically, all gate receipts generated for non-district events held on campus or at one of the field houses are deposited into the “General Athletic Account.” In this instance that would be Account # 101. This general athletic account is then utilized to provide supplemental funding for all sports. Which means these gate revenues should be used to help fund all of our basketball teams, girls and boys. At the present time, our varsity boys have 2 (two) upcoming tournaments, which require entry fees. Our freshmen boys’ basketball team is scheduled to participate in a tournament this weekend, which requires an entry fee be paid immediately. The varsity girl’s basketball team receives the total gate revenues from their scrimmage game held here last week. This was considered a “fund raiser” for the basketball program. The scrimmage game generated over $200.00. The gate revenues from this weeks [sic] games were earmarked for tournament entry fees for our boys teams.
I am attempting to operate the athletic department based on standard operating procedures and norms throughout the State of Texas. However, I have found that there is a network of friends and house rules, which govern practices here at L.G. Pinkston High School. As a result, Coach Calahan was permitted to deposit an additional $200.00 into the girls [sic] account. Therefore, I will advise the other basketball coaches that the athletic account # 101 will not be able to support their entry fees as originally planned.
Four days after receiving the memorandum, principal Wright removed Williams as Athletic Director. Removal as Athletic Director was elevated to emergency removal and administrative leave. In early March, DISD decided not to renew Williams’s contract. Later that month, DISD placed principal Wright and the office manager on administrative leave pending an investigation of matters including “financial accountability.”
Wright sued in the district court under 42 U.S.C. § 1983, alleging that DISD removed him as Athletic Director in retaliation for engaging in speech protected by the First and Fourteenth Amendments. The district court granted summary judgment in favor of DISD, holding that Williams’s memorandum to principal Wright did not “address a matter of public concern” and therefore did not receive First Amendment protection. Williams appeals.
II
We review a grant of summary judgment de novo. Honeywell Int’l, Inc. v. Phillips Petroleum Co., 415 F.3d 429, 434 (5th Cir.2005). We affirm only when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Id. We may affirm a summary judgment on any ground supported by the record, even if it is different from that relied on by the district court. Holtzclaw v. DSC Commc’ns Corp., 255 F.3d 254, 258 (5th Cir.2001) (citing Tex. Refrig. Supply, Inc. v. FDIC, 953 F.2d 975, 980 (5th Cir.1992)).
III
Public employees do not surrender all their free speech rights by reason of their employment. Rather, the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen on matters of public concern. See, e.g., Pickering v. Bd. of Educ., 391[*692] U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); United States v. Nat'l Treasury Employees Union, 513 U.S. 454, 466, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995). At the same time, “[t]his prospect of [First Amendment] protection ... does not invest them with a right to perform their jobs however they see fit.” Garcetti v. Ceballos, — U.S. -, 126 S.Ct. 1951, 1960, 164 L.Ed.2d 689 (2006). The relationship between the speaker’s expressions and employment is a balancing test. A public employee’s speech is protected by the First Amendment when the interests of the worker “as a citizen in commenting upon matters of public concern” outweigh the interests of the state “as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering, 391 U.S. at 568, 88 S.Ct. 1731.
Williams claims that the memoranda he submitted to the office manager and principal are speech protected by the First Amendment. He argues that his memo-randa are identical to that in Pickering v. Board of Education, where a teacher’s letter to the local newspaper protesting the manner in which his school distributed funds between athletic and academic programs was held to be protected speech. Id. Williams views himself as engaging in a similar crusade against misappropriated and discriminatory funding, specifically pointing out that the girls’ basketball team received $200 in special proceeds that should have gone to the general fund and that money was mysteriously missing from the athletic account. Claiming to have written the memoranda as a “taxpayer” and a “father,” Williams notes that his efforts were later vindicated when principal Wright and the office manager were removed from their positions.
Williams’s reliance on Pickering, however, is now inapposite. The Supreme Court’s recent pronouncement in Garcetti v. Ceballos added a threshold layer to the Pickering balancing test. 126 S.Ct. at 1951. Under Garcetti, we must shift our focus from the content of the speech to the role the speaker occupied when he said it. Emphasizing the distinction between a speaker acting in her role as “citizen” and her role as “employee,” Garcetti held that the First Amendment does not protect “expressions made pursuant to their official duties.” Id. at 1960. Even if the speech is of great social importance, it is not protected by the First Amendment so long as it was made pursuant to the worker’s official duties. Id. at 1960.
Garcetti did not explicate what it means to speak “pursuant to” one’s “official duties,” although we do know that a formal job description is not dispositive, id. at 1961, nor is speaking on the subject matter of one’s employment. Id. at 1959. Thus, in order to determine whether Williams wrote these memoranda pursuant to his responsibilities as Athletic Director, we must also look to the facts and rationale underlying Garcetti.
Garcetti involved a claim brought by a deputy district attorney, Richard Ce-ballos, who worked for the Los Angeles County District Attorney’s office. Id. at 1955. When a defense attorney told Ce-ballos that he had found inaccuracies in an affidavit supporting a search warrant, Ce-ballos looked into the matter and concluded that defense counsel was right. Id. at 1956. He communicated his concerns to his supervisors and wrote memoranda, suggesting that the office refrain from prosecuting the crime; however, Cebal-los’s supervisors disagreed and decided to proceed with the prosecution. Id. Cebal-los claimed that, in response to his memo-randa, he was subjected to a series of re[*693] taliatory actions, including reassignment, transfer to another location, and denial of a promotion. Id. The Supreme Court held that Ceballos’s memoranda were not protected speech, reasoning:
The controlling factor in Ceballos’ case is that expressions were made pursuant to his duties as a calendar deputy .... That consideration — the fact that Cebal-los spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case — distinguishes Ceballos’ case from those in which the First Amendment provides protection against discipline. We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.
Id. at 1959-60 (emphasis added).
In Garcetti Ceballos was acting pursuant to his official duties because he was performing activities required to fulfill his duties as a prosecutor and calendar deputy that were not protected by the First Amendment. A prosecutor is hired to assess search warrants and write recommendations on when to exercise prosecutorial discretion. Cf. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Thus, when Ceballos articulated his opinion about a case in a memorandum to his supervisor, alleging that the police acted inappropriately in gathering evidence, he did exactly what he was required to do. The fact that his memorandum implicated contentious political issues important to the public, such as police corruption and prosecutorial misconduct, was irrelevant to the threshold inquiry. Job-required speech is not protected.
In the instant case, DISD concedes that an Athletic Director is not required to write memoranda to his principal regarding athletic accounts. Thus, we must determine the extent to which, under Garcet-ti a public employee is protected by the First Amendment if his speech is not necessarily required by his job duties but nevertheless is related to his job duties.
The Supreme Court’s prior decisions afford some guidance here. Notably, the Court distinguished Ceballos’s speech from that of schoolteachers Marvin Pickering and Bessie Givhan. Pickering engaged in protected speech when he wrote a letter to a local newspaper addressing the funding policies of his school board. Pickering, 391 U.S. at 563, 88 S.Ct. 1731. Givhan could not be fired for complaining to her principal about the school’s discriminatory hiring practices. Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979). In another context, a district attorney’s questionnaire asking her colleagues whether they felt pressure to work on political campaigns was protected speech, while the portions of the questionnaire soliciting her colleague’s views on office morale, the policy of transferring employees, the need for a grievance committee, and the level of confidence in her superiors were not protected. Connick, 461 U.S. at 138, 103 S.Ct. 1684.
These cases, when viewed as a whole, distinguish between speech that is “the kind of activity engaged in by citizens who do not work for the government,” Garcetti, 126 S.Ct. at 1962, and activities undertaken in the course of performing one’s job. Activities undertaken in the course of performing one’s job are activities pursuant to official duties. Id. at 1960. Other circuits have drawn similar conclusions from Gar-cetti and those cases preceding it. See, e.g., Freitag v. Ayers, 468 F.3d 528 (9th Cir.2006) (holding as not protected speech a prison guard’s internal complaints documenting her superior’s failure to respond[*694] to inmates’ sexually explicit behavior toward her); Battle v. Bd. of Regents, 468 F.3d 755, 761 (11th Cir.2006) (construing a university employee’s report which alleged improprieties in her supervisor’s handling and management of federal financial aid funds as “pursuant to her official employment responsibilities” and thus not protected speech); Mills v. City of Evansville, 452 F.3d 646, 648 (7th Cir.2006) (finding unprotected speech when a police officer made negative remarks following an official meeting to discuss plans to reorganize the department because the remarks were made “in her capacity as a public employee contributing to the formation and execution of official policy.”).
We must therefore decide whether Williams wrote his memoranda in the course of performing his job as Athletic Director. Williams’s statements in his memoranda focus on his daily operations. He needed information regarding the athletic account so that he could “operate the athletic department based on standard operating procedures and norms throughout the State of Texas.” He accused the office manager of “hurt[ing his] ability to provide ... student/athletes with critical items and/or materials necessary for competition.” Moreover, Williams was responsible for buying sports equipment and for arranging and paying tournament fees. Because the office manager and principal were in charge of allocating and monitoring the athletic accounts (Williams obviously did not have exclusive control of the accounts), in order for Williams to purchase equipment and enter competitions, he needed to consult with his superior about his budget. [1] We thus find that Williams’s speech was made in the course of performing his employment. [2]
Simply because Williams wrote memo-randa, which were not demanded of him, does not mean he was not acting within the course of performing his job. He needed account information so that he could properly execute his duties as Athletic Director, namely, taking the students to tournaments and paying their entry fees. The memoranda were not written from Williams’s perspective as a “father” and “taxpayer.” Unlike Pickering, whose “position as a teacher in the district did not qualify him to speak with any greater authority than any other taxpayer,” Pickering, 391 U.S. at 1736, Williams had special knowledge that $200 was raised at a basketball tournament. He was also experienced with standard operating procedures for athletic departments. Even his language accusing the principal of engaging in a “network of friends and house rules” was part-and-parcel of his concerns about the program he ran.
We thus hold that Williams’s memoran-da to the office manager and principal Wright were written in the course of performing his job as Athletic Director; thus, the speech contained therein is not protected by the First Amendment.
IV
Accordingly, we AFFIRM the district court’s grant of summary judgment.
. We do not find dispositive the fact that Williams’s statements were made internally. See Garcetti, 126 S.Ct. at 1959; Givhan, 439 U.S. at 410, 99 S.Ct. 693.
. This is not a case where Williams wrote to the local newspaper or school board with his athletic funding concerns. See Garcetti, 126 S.Ct. at 1960 ("Contrast, for example, the expressions made by the speaker in Pickering, whose letter to the newspaper had no official significance and bore similarities to letters submitted by numerous citizens every day.”).