1 29 U.S.C. § 626 et seq. United States Court of Appeals

Fifth Circuit



## FILED

May 27, 2005

Charles R. Fulbruge III

Clerk REVISED JUNE 13, 2005

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-40844

CHARLENE SALGE,

Plaintiff - Appellee

versus

EDNA INDEPENDENT SCHOOL DISTRICT

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

Before WIENER, BARKSDALE, AND DENNIS, Circuit Judges.

WIENER, Circuit Judge:

Defendant-Appellant Edna Independent School District (“EISD”)

appeals the district court’s grant of summary judgment in favor of

former employee Charlene Salge on her First Amendment retaliation

claim. We affirm.

I. FACTS & PROCEEDINGS

After she was fired from her longtime job of secretary at the

local high school, Plaintiff-Appellee Charlene Salge brought

actions against her former employer, EISD, for violations of (1)

the Age Discrimination in Employment Act (“ADEA”) 1 and (2) the2

First Amendment, the latter via 42 U.S.C. § 1983. Salge claimed

that EISD Superintendent Bob Wells fired her either because of her

age or because of her responses to questions posed by a local

journalist about the resignation of Kenneth Airheart, the principal

of the high school and Salge’s direct supervisor. The district

court dism issed Salge’s ADEA claim but granted her motion for

summary judgment on her First Amendment claim, which ruling EISD

appeals.

In February 2002, Wells met wit h Airheart to discuss the

latter’s annual evaluation. Wells criticized Airheart’s

performance, including Wells’s perception that Airheart did not

adequ ately supervise his employees as Wells had expressed to

Airheart on prior occasions that Salge’s performance was deficient

and had asked Airheart to fire her. Wells informed Airheart that

he intended to recommend to the EISD School Board that Airheart’s

current employment contract not be extended. After hearing this

evaluation, Airheart held a meeting with approximately forty

employees of the high school, one of whom was Salge. He announced

to the group that he had received the second worst performance

evaluation of his life, that his contract had not been extended,

and that he intended to resign because he did not wish to stay

where he was not wanted.

T wo days later, the local newspaper, the J ackson County

Herald-Tribune

, reported that Airheart was retiring. Some time

during the weeks that followed, Cynthia Roberso n, a reporter for3

the newspaper, called the high school for information about another

e mployee’s resignation; Salge answered the phone when Roberson

rang. Roberson stated in her deposition that she had called the

high school because of the unusually large number of high-level

school officials that were leaving at the same time, and that

Airheart’s retirement had quickly become the main subject of this

conversation. Exactly what Salge said to Roberson is disputed.

In March, the newspaper published a second article about

Airheart’s departure, stating that his contract had not been

“renewed.” Salge denied telling Roberson that Airheart’s contract

was not being renewed

, insisting instead that she had told Roberson

that the cont ract was not being e xtended

. Roberson corroborated

Salge’s version in her deposition and stated that she had used the

wrong word in the article. Roberson admitted when questioned by

opposing counsel, however, that she could not really recall whether

Salge had said “renewed” or “extended.”

Most EISD employees have two-year contracts, which are renewed

every yea r. An EISD contract that is not r enewed after reaching

its end is effectively a termination of employment. A two-year

contract that the school board declines to renew at the end of its

first year, is referred to as a “non-extension.” A non-extension

of a contract does not necessarily result in termination of

employment; rather it serves as a warning to the employee that, at

the end of the second year, his contract might not be renewed. As

a result, his employm ent will then terminate at the end of its4

second year. Airheart’s contract had not been e xtended

, thus he

had received a “warning”; but the second newspape r article

erroneously stated that his contract ha d not been r enewed

,

incorrectly implying that he had been fired contemporaneously.

When Airheart, other EISD employees, and EISD parents read the

article, they bec ame alarmed and expressed concern to Wells that

personnel information had been released to the media. Airheart’s

concern was with the fact that the info rmation was erroneous,

whereas others expressed concern that confidential personnel

information had been released.

Wells contacted Roberson, who told him that she had obtained

her informati on regarding Airheart’s contract status from Salge.

The newspaper ran a correction approximately one we ek later,

clarifying that Airheart’s contract had not been extended and that

he could have elected to stay in his current position, but that he

chose to resign. W ells never discussed any of the ar ticles with

Salge

.

Appro ximately two months later, Wells discharged Salge for

releasing confidential info rmation to the media in violation of

school district policies that prohibit employees from discussing

confidential personnel matters and from contacting the media about

school district news. Wells testified in his deposition that Salge

was terminated for violating both of these policies.

Salge filed suit alleging that she was fired either because of

her age in violation of the ADEA, or because of her responses to2 Salge also asserts on appeal that EISD’s media policy,

prohibiting its employees from directly contacting the press,

violates the First Amendment. This issue was not properly

presented to the district court, however, as Salge did not allege

it in her complaint and did not provide the district court with a

copy of the policy. To be preserved for appeal, an issue must

have been raised in the trial court to the extent necessary to

allow that court to rule on it. Vogel v. Veneman , 276 F.3d 729,

733 (5th Cir. 2002)(citing In re Fairchild Aircraft Corp. , 6 F.3d

1119, 1128 (5th Cir. 1993)). We therefore decline to address

this contention.

3 MacLachlan v. ExxonMobil Corp. , 350 F.3d 472, 478 (5th

Cir. 2003).

5 Roberson’s questions, in violation of her First Amendment right of

free speech. She filed a motion for partial summary judgment on

her First Amendment claim, to which EISD responded and filed a

cross-motion for summary judgment on the same issue, subsequently

filing a motion for summary judgment on Salge’s ADEA claim. The

district court granted EISD’s motion for summary judgment on

Salge’s age discrimination claim but held in Salge’s favor on the

First Amendment claim, awarding her backpay, frontpay, damages for

mental anguish, attorney fees, and costs. That ruling is the

subject of this appeal. 2

II. ANALYSIS

A. Standard of Review

We review grants or denials of motions for summary judgment de

novo

. 3 Summary judgment is proper if there is no genuine issue of

material fact and the mo ving party is entitled to judgment as a4 Id.

5 Webb v. Cardiothoracic Surgery Assocs. , 139 F.3d 532, 536

(5th Cir. 1998).

6 Anderson v. Liberty Lobby , 477 U.S. 242, 250 (1986).

7 Denton v. Morgan , 136 F.3d 1038, 1042-43 (5th Cir. 1998).

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

9 See Kinney v. Weaver , 367 F.3d 337, 363 (5th Cir. 2004).

6 matter of law. 4 “[T]he nonmoving party must come forward with

specific facts showing that th ere is a genuine issue for trial.” 5

We consider the evidence in the light most favorable to the

nonmovant. 6

De novo is also our standard for reviewing district court

rulings that concern First Amendment issues

, in which instances we

examine the whole record. 7 Whether the speech at issue is on a

matter of public concern is a question of law t h at must be

determined by the court. 8 And, our review of the district court’s

Pickering balancing analysis is, in the absence of any di sputed,

material facts, also de novo

. 9

B. First Amendment Retaliation

To prevail on a First Amendment employment retaliation claim,

an employee must establish four eleme nts: (1) he suffered an

adverse employment action; (2) his speech involved a matter of

public concern; (3) his interest in commenting on matters of public

concern outweighs the employer’s interest in promoting efficiency;

and (4) his speech moti vated the employer’s adverse employment10 Harris v. Victoria Indep. Sch. Dist. , 168 F.3d 216, 220

(5th Cir. 1999).

11 EISD does not dispute that Wells is a final decisionmaker and therefore EISD may be held liable under § 1983 for his

decision to terminate Salge. See Johnson v. Louisiana , 369 F.3d

826, 831 (5th Cir. 2004)(“[O]nly final decision-makers may be

held liable for First Amendment retaliation employment

discrimination under § 1983.”).

7 action. 10 None disputes that Salge has satisfied the first element,

as she was fired, or the fourth element, as her speech motivated

Wells to fire her: Wells readily acknowledges that he fired Salge

because of h er statement to the press. Thus, the elements that

remain to be examined are (1) whether Salge’s speech involved a

matter of public concern, and (2) if so, whether her First

Amendment interest in her speech outweighs EISD’s interest in

promoting efficiency. 11

1. Speech on a Matter of Public Concern

a. Content: What Salge Actually Said

The parties dispute the content of Salge’s speech,

specifi cally, whether Salge stated to Roberson that Airheart’s

contract was not renewed or that it was not extended

. They also

argue about which version we should consider in our determination

whether Salge’s speech is on a matter of public c oncern. The

district court concluded that this argument was a red herring, as

both versions of the statement address a matter of public concern.

It is true that the Supreme Court’s Churchill v.12 511 U.S. 661 (1994)(plurality opinion).

13 461 U.S. 138 (1983).

14 Johnson , 369 F.3d at 832 (internal citation omitted).

8 Waters 12 decision h eld that, when a plaintiff-employee’s First

Amendment retaliation claim rests on a disputed version of his

speech, a court applying the Supreme Court’s Connick v. Myers 13 test

to determine whether the speech was on a matter of public concern

must examine the speech as the defendant-em ployer reasonably

believed it to be

. 14 EISD argues that Wells reasonably believed

that Salge had violated the school’ s confidentiality and media

policies and had provided false information to the newspaper; this

reasonable beli ef justified Wells’s decision to terminate Salge,

EISD argues, because (1) if Salge used the term “renewed,” then her

speech was false and therefore unprotected and (2) whether true or

false, she had violated school district policies against divulging

confidential personnel information and speaking to the media. We

evaluate these arguments, however, as part of our

Pickering b alancing test to determine whether EISD’s interest in

efficiency outweighs any interest Salge has in making her speech.

Whether the speech in question violates an employer’s policy has no

r elevance to whether the subject matter of the speech is on a

matter of public concern. Whether an employee’s speech is true or

false also plays no role in the determination whether the speech15 Denton v. Morgan , 136 F.3d 1038, 1043 (5th Cir. 1998).

16 511 U.S. at 665-66.

17 Id.

9 concerned a matter of public interest. 15

In Churchill

, unlike the instant case, the difference between

the two versions of the employee’s speech was determinative, as one

version implicated protected speech and the other did not. The

C hurchill employer understood the employee’s comments to be

personal criticism of her supervisor, which was not First Amendment

protected speech. 16 The employee insisted that she criticized the

employer’s cross-training policy, which would have been protected

speech. 17

In contrast, the parties in this case dispute whether Salge

said that Airheart’s contract had not been extended or had not been

renewed

. Salge’s speech indisputably concerned the high school

principal’s resignation, so whether she used the word “renewed” or

“ extended,” is immaterial: Her point was that Airheart resigned

grudgingly, as a result of the non-extension of his contract and

his own feeling that he was unwanted and unappreciated. We are

satisfied that, under either version, Salge’s speech concerned the

high school principal’s employment status and his reasons for

resigning before the end of the term of his employm ent. This is

the speech we evaluate in our determination whether Salge spoke on

a matter of public concern, and this evaluation does not implicate18 Connick , 461 U.S. at 147-48 (emphasis added).

19 Kennedy v. Tangipahoa Parish Library Bd. of Control , 224

F.3d 359, 366 (5th Cir. 2000)(citing Connick , 461 U.S. at 147).

20 Id. at 365.

21 Id.

10 Churchill

.

b. Public Concern

“Whether 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 record.” 18 When a public

employee speaks in his capaci ty as an employee and addresses

personal matters such as personnel and employment disputes, rather

than in his capacity as a citizen on a matter of public interest,

his speech falls outside the protection of the First Amen dment. 1 9

When the speech in question merely touches on an element of

personal concern in the broader context of a matter of public

concern, however, a court is not precluded from concluding that an

employee’s speech as a whole addresses a matter of public concern. 20

I n Kennedy v. Tangipahoa Parish Library Board of Control

, w e

reviewed many of our First Amendment retaliation opinions. 2 1 In

Kennedy

, we gleaned principles from these prev ious decisions that

are useful in determining whether in a “mixed speech” case, i.e., a

cas e in which an employee’s speech contains elements of both

personal and public concern, the subject speech n evertheless22 Id. at 366, 372.

23 See Teague v. City of Flower Mound , 179 F.3d 377, 381

(5th Cir. 1999) (“[S]peech concerning the conditions of one’s

employment is a private matter.”); Moore v. City of Kilgore , 877

F.2d 364, 371-72 (5th Cir. 1989)(stating that employee’s speech

concerning local fire department’s staffing shortage, while a

matter of public concern because it involved the department’s

ability to effectively fight fires, also included an element of

personal concern as the employee was criticizing his employer’s

policy).

24 Kennedy , 244 F.3d at 366-67.

25 Id. (citing Wilson v. Univ. of Tex. Health Ctr. , 973 F.2d

1263 (5th Cir. 1992)).

11 addresses public concern. 22 Salge’s speech undoubtedly included an

element of personal concern, as she was speaking about the

employment status of her direct supervisor, which in turn affected

the condi tions of Salge’s employment. 2 3 Still, in such cases, we

found that asking only whether an employee spoke in his capacity as

a concerned citizen or an employee yields uncertain results, as the

presence of some personal interest does not necessarily preclude a

holding that the speech at issue is on a matter of public concern as

well. Thus, in mixed speech cases we proceed to analyze the form,

content, and context of the employee’s speech. 24

The first principle identified in Kennedy is that a matter of

public concern 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 status as an arm of the

government.” 25 That opinion goes on to clarify that “[i]f releasing

the speech to the public would inform the populace of more than the26 Id.

27 Kennedy , 224 F.3d at 372. See also Harris v. Victoria

Indep. Sch. Dist. , 168 F.3d 216, 222 (5th Cir. 1999).

28 Kennedy , 224 F.3d at 372; Harris , 168 F.3d at 222.

29 Bradshaw v. Pittsburg Indep. Sch. Dist. , 207 F.3d 814,

817 (5th Cir. 2000)(per curiam)(stating that the fact that an

employee chose to file internal grievances rather than publicize

her complaints weighed in favor of finding that the employee’s

speech was private rather than public); Victor v. McElveen , 150

F.3d 451, 456 (5th Cir. 1998)(noting that the plaintiff’s

awareness of a journalist’s presence while engaging in the

disputed speech supported a finding that he spoke on a matter of

public concern); Kirkland v. Northside Indep. Sch. Dist. , 890

F.2d 794, 800 (5th Cir. 1989)(noting the fact that the plaintiff

never spoke publicly, to colleagues, supervisors, or the public,

12 fact of an employee’s employment grievance, the content of the

speech may be public in nature.” 26

The second Kenn edy principle (one that is relevant to the

“context” factor), teaches that speech on a matter of public concern

need not be made before a public audience, although “it may relate

to the public concern if it is made against the backdrop of public

debate.” 27 By way of example , we cited H arris

, in which we had held

that there was an ongoing public debate c oncerning the subject

matter of the plain tiff’s speech, namely, problems with the local

high school’s academic performance. In H arris

, faculty members and

parents p honed school board members to discuss the school’s

problems, citizens stopped one board member in a grocery store and

at church to discuss the situation, and the local new spaper ran a

story about the high school’s low performance rating. 28 The audience

before whom the employee speaks 29 and whether the employee speaks inabout the matter at issue in support of a holding that the

plaintiff spoke on a matter of private concern); Terrell v. Univ.

of Tex. System Police , 792 F.2d 1360, 1362 (5th Cir. 1986)

(holding that, as the plaintiff never made an effort to

communicate speech in his diary to the public, he did not speak

on a matter of public concern). But see Givhan v. W. Line

Consol. Sch. Dist. , 439 U.S. 410, 413 (1979)(holding a teacher’s

private communication with principal concerning alleged racially

discriminatory policies to be protected by the First Amendment).

30 See Harris , 168 F.3d at 222.

31 224 F.3d at 372. See also Connick v. Myers , 461 U.S.

138, 148 (1983)(holding that questions posed by plaintiff’s

survey to other employees “reflect[ed] one employee’s

dissatisfaction with a transfer and an attempt to turn that

displeasure into a cause célèbre” and were therefore not matters

of public concern); Bradshaw , 207 F.3d at 817 (holding that a

high school principal’s private memos to the Board concerning her

unfavorable performance evaluations were not a matter of public

concern); Harris , 168 F.3d at 222 (pointing out, when evaluating

the extent of employee’s personal interest in their speech, that

“[t]here is no evidence that the [p]laintiffs’ speech merely

concerned an employment related squabble with their

supervisor.”); Victor , 150 F.3d at 456 (“Victor spoke as a

citizen on a matter of public concern, not as an employee upon

matters only of personal interest. At the time of his remarks,

Victor was well pleased with his position as a courtroom bailiff;

there was no evidence that he was a disgruntled employee or had

any personal reason to protest what he perceived to be the

potential racially discriminatory effects of the sheriff’s

approach to the new program.”); Kirkland , 890 F.2d at 799 (“If

the nature of the speech is purely private, such as a dispute

over one employee’s job performance. . .”); Terrell , 792 F.2d at

1363(“Terrell was not terminated for speaking ‘as a citizen upon

matters of public concern. . .’ or for ‘speak[ing] out as a

citizen on a matter of general concern, not tied to a personal

employment dispute . . .”)(citing Connick , 461 U.S. at 148

13 respons e to an invitation 3 0 may also be relevant to an analysis of

the context in which an employee’s speech is offered.

Finally, we declared in Kennedy that speech is not on a matter

of public concern if it is made solely in “furtherance of a personal

employer-employee dispute.” 3 1 Typically, an employee speaks inn.8)(emphasis in original).

32 Kirkland , 890 F.2d at 798 n.10.

33 See Kinney v. Weaver , 367 F.3d 337, 361 (5th Cir.

2004)( en banc )(holding that, as individuals placed in law

enforcement such as police academy instructors “are often in the

best position to know” about issues of public concern related to

law enforcement, these individuals should be able to speak out

freely).

34 Kennedy , 224 F.3d at 372 (“[Speech] may relate to a

matter of public concern if it is made against the backdrop of

public debate.”).

14 furtherance of his personal employer-employee disput e when he

discusses personnel matters directly impacting his job or criticizes

other employees or supervisors’ job performance. 32

i. Context

The context factor weighs in Salge’s favor, because of (1) her

position as the high schoo l secretary, (2) her responsibility for

maintaining good co mmunications between the school and the

community, (3) her thirty-three years of ex perience in the school

system, and (4) Airheart’s prominent position in the community. We

concur with the district court’s determination that, for these

reasons, Salge’s speech was of interest to community members and of

greater importance because of her familiarity with the issues faced

by the school district. 33

Salge’s comments were also made against a background of

existing community debate. 34 The record before us confirms beyond

cavil that, at all times pertinent to this case, administration of

the Edna high school w as an item of considerable interest in that35 168 F.3d at 222-23.

15

small community —— in fact, EISD admits as much in its brief. The

newspaper published several articles about Airh eart’s resignation,

one before Salge spoke; the reporter initiated the contact with

Salge, not vice versa; citizens calle d the school regarding the

issue; and members of the community approached Wells in the grocery

store

—— an overall situation closely analogous to that detailed by

the Harris court in support of its conclusion that the cont ext

e lement weighed in favor of holding that the employee spoke on a

matter of public concern. 35

Salge also introduced more than fifty articles from newspapers

in the Edna area addressing school district personnel matters,

including the hiring, removal, or departure of school principals and

officials. EISD argues that the focus of community debate shifted

from Airheart’s resignation to EISD’s termination of Airheart after

the appearance of the second article; however, we agree with the

district court that the topic of the debate was the cessation of

Airheart’s and other EISD emp loyees’ statuses at EISD, and that

whether Airheart felt compelled to resign or did so voluntarily was

an issue that could be interw oven within the broader community

debate.

EISD next counters that public interest in Airheart’s departure

from EISD should not render Salge’s statement protected. For this

propo sition, EISD cites T errell v. University of Texas System36 792 F.2d 1360 (5th Cir. 1986).

37 Id. at 1362 (emphasis in original).

38 Id. at 1363.

39 Kennedy v. Tangipahoa Parish Library Bd. of Control , 224

F.3d 359, 373 (5th Cir. 2000) (citing Moore v. City of Kilgore

,

16 Police

. 36 In T errell

, it is true that we focused on whether the

plaintiff spoke as a citizen or an employee, not on whether members

of the public had an interest in the matter discussed by the

employee. We did so because “almost anything that occurs within a

public agency cou ld be of concern to the public.” 37 We held in

Terrell that the plaintiff’s speech was not protected because,

although it concerned police corruption, a matter of inherent public

interest, the speech was made only in a private diary which the

plaintiff never intended to make public and therefore could not have

been intended to speak on a matter of public interest. 38

Our Terrell holding, however, is more accurately characterized

as one in which we complete ly discounted the c ontent of an

employee’s speech because the c ontext element weighed so heavily

against a holding of protec ted speech. The interpretation of

Terrell advanced by EISD in urging th at we disregard whether the

content of an employee’s speech actually inter ests the public, is

contradicted by other precedent. In K en nedy , for example, we

expressly stated that “[t]he very fact of newspaper coverage [of the

matter discus sed by the employee] indicates that ‘the public was

receptive and eager to hear about’ [the matter].” 39 We conclude that877 F.2d 364, 371 (5th Cir. 1989)(noting that the fact that the

media approached the employee-speaker and printed his responses

to their questions demonstrated public interest and concern in

the employee’s statements and supported a holding that the

employee’s speech involved a matter of public concern)).

40 168 F.3d at 222.

41 Id.

17 the context element weighs solidly in Salge’s favor.

ii. Form

As for the formof her speech, Salge was responding to an

unsolicit ed inquiry from a member of the community who was also a

member of the press. The fact that an employee responds to an

invitation to speak rather than i nitiating the speech weighed

heavily in favor of finding speech on a matter of public concern in

Harris

, in which teachers had been invited to join a school

committee investigating the high school’s performance and were

subsequently invited to report findings on ways in which the school

could be improved. 40

EISD argues that, in Harris and other invited speech cases, the

employee responded to an invitation to speak issued by the employer

itself, and that these cases stand for the proposition that it is

not fair to ask an employee her opinion and then punish her when she

responds truthfully. 41 We also emphasized in Harris that another

important reason for this consideration is that, when employees have

been aske d to speak by a truth-finding body, to punish them for42 Id.

18

responding inhibits the truth-seeking process. 42 Even though

fairness and protecting the truth-seeking process are important

reasons to protect employees who respond to invitations to speak, an

invitatio n to speak that has issued from the public, particularly

from the press, demonstrates the public’s interest in the matter and

therefore weighs in favor of holding an employee’s speech protected.

EISD disputes this characterization of the form of Salge’s

speech. It argues that Salge’s affidavit and deposition contradict

each other and that Salge’s deposition testimony, which indicated

that she was responding only to a question posed by Roberson rather

than engaging in a conversation about the large numbers of officials

leaving the school district’s employ, supports a holding that Salge

was merely engaged in gossip about personnel matters with a friend

rather than responding to an invitation to speak from a reporter.

In her affidavit, Salge said that Roberson asked her why the school

district could not keep good people and that s he replied with the

information about Airheart’s resignation. In her deposition, Salge

said that she did not discuss personnel matters in general but that

the conv ersation focused specifically on Airheart. These two

statements are not necessarily contradictory, however, as Salge’s

affidavit st ates that she responded to a question, not that she

herself discussed per sonnel matters. Importantly, Roberson’s

statemen ts corroborate Salge: Roberson stated that she called the43 We also note that, if we were to find any contradiction

between Salge’s affidavit and deposition testimony, it would not

create a disputed issue of material fact that would prevent a

grant of summary judgment, as the essential facts of what Salge

said and the fact that Roberson called her and posed the

question, are undisputed.

19 high school because it was unusual for so many school officials to

leave the school district’s employ at about the same time.

Moreover, even if we were to view Salge’s a ffidavit and

deposition testimony as inconsistent, this would not change our

characterization of the form of her speech. 43 It is undisputed that

Salge responded to a question posed by a reporter who had called the

school to inquire about why personnel we re leaving. Also

uncontradicted is Salge ’s response about Airheart’s leaving,

answering, in essence, that he did not want to stay where he was not

wanted but that she wished that Airheart would not retire because he

was good for the school and the community. Even if Salge’s

testimony as to precisely h ow Roberson posed her question is

disregarded, there is ample evidence —— including Roberson’s

testimony, the previous newspaper article, and Wells’s own testimony

that members of the community were talking about Airheart’s

resignation

——that Airheart’s leaving the school district was a

matter of public knowledge and public concern by the time Roberson

called th e school and talked to Salge. Irrespective of whether

Salge actually participated in a discussion with Roberson about the

school districts’ employment woes, merely responded to a question,

or was talking only about Airheart’s departure from the high school,44 See Kennedy , 224 F.3d at 372 (stating that speech is not

on a matter of public concern if it is made in “furtherance of a

personal employer-employee dispute.”).

20 t h ere is no question that she responded to a question from a

reporter and was talking about the school’s loss of its principal.

We conclude that the form of Salg e’s speech also supports holding

that she spoke on a matter of public concern.

iii. Content

The content of Salge’s speech also weighs in favor of holding

that she spoke on a matter of public concern. The undisputed

summary judgment eviden ce shows that Salge and Roberson were

discussing Airheart’s retirement, and that Salge was not embroiled

in a dispute with E ISD over her employment status or her own job

performance

. 44 Her speech did not relate to her own employment at

all, but to the impending departure of a high-profile individual

within the system who just happened to be her supervisor. Although

EISD urges that Salge had a personal interest in her speech because

Wells had wanted Airheart to fire her for some time, it produced no

evidence that, at the time that Salge spoke with Roberson, she had

any idea that Wells wanted her fired. The record evidence shows

that Salge received uniformly posit ive work evaluations and that

there were no written complaints with respect to her work before her

termination.

EISD argues that Salg e answered the phone in her capacity as

secretary, as it was her duty to do, and therefore spok e in her45 See Wilson v. Univ. of Tex. Health Ctr. , 973 F.2d 1263,

1269 (5th Cir. 1992)(holding that the fact that the plaintiff had

a duty to report sexual harassment did not render her speech

about her own harassment unprotected, as “such a rule would

permit public employers to remove constitutional protection from

speech on certain subjects by including those subjects within

employees’ reporting duties.”).

21 capacity of employee, not citizen. Although EISD does not express

this argument in terms of the content, context, or form of Salge’s

speech, it may be fairly characterized as a statement that, because

it was Salge’s job to answer the phone, anything she may have said

to a reporter, irrespective of the subject, could not have been on

a matter of public concern. Even if the fact that Salge was

performing her job duties when she answered the phone does insert a

personal concern into the mix, it does not necessarily render her

speech unprotected per se ; rather it is but one factor that we

consider. We note, nonetheless, that if EISD’s argument were

accepted it would undermine First Amendment protection for employees

who speak at work while working: Any speech made by an employee

whose job it is to answer the phone would be rendered unprotected,

i f the speech occurred during a telephone conversation. 45 We also

conclude that, even though this presents a closer question than the

context or form of Salge’s speech, the content factor, too, weighs

in Salge’s favor.

Rel evant to all three factors discussed above, EISD tries to

liken this case to Bradshaw v. Pittsburg Independent School

District , in which we held that a disgruntled high school46 207 F.3d at 817.

47 See Johnson v. Louisiana , 369 F.3d 826, 830-31 (5th Cir.

2004)(“Reporting sexual harassment is speech of ‘great public

concern.’”)(quoting Wilson , 973 F.2d at 1269); Kennedy , 224 F.3d

at 373 n.14 (contrasting unprotected speech about working

conditions, such as length of time on the job and the number of

breaks employees receive, with protected speech about “policy

changes occasioned by the violent rape of a coworker”); Harris v.

Victoria Indep. Sch. Dist. , 168 F.3d 216, 222-23 (5th Cir.

1999)(holding criticism of school principal for not properly

implementing a plan to improve the high school to be speech on a

matter of public concern); Victor v. McElveen , 150 F.3d 451, 456

(5th Cir. 1998)(“The content of Victor’s speech was inherently of

public concern because it was a protest against racial

discrimination.”); Moore v. City of Kilgore , 877 F.2d 364, 370

(5th Cir. 1989)(holding that staffing shortages at the Fire

Department, which might threaten the ability of the Department to

perform its duties, to be matters of public concern).

22 principal’s intr a-office memos complaining about non-extension of

her contract did not constitute speech on a mat ter of public

concern. 46 B radshaw is easily distinguishable. First, the principal

was complaining only about her own contractual status, not

discussing the employment of someone else, much less general public

employment matters. Second, there was no demonstrated public

interest in her employment, as there was with Airheart’s and other

school employees in this case. Finally, unlike Salge, the school

principal in Bradsh aw never communicated her concerns to a public

audience, writing only in intra-office memos.

Although Salge’s speech does not reveal o fficial corruption,

discrimination, or other such “hot butt on” policy issues that we

have held to be indisputa bly matters of public concern, 4 7 the form

and context of her speech —— responding to a reporter against a48 Rankin v. McPherson , 483 U.S. 378, 388 (1987); Pickering

v. Bd. of Educ. , 391 U.S. 563, 568 (1968).

23 backdrop of high interest and wide discussion on this topic within

the community

—— mandate the conclusion that, as a matter of law,

Salge spoke on an issue of public concern. The summary judgment

evidence demonstrates that this topic was a very high-profile issue

in the community at the time, differentiating Salg e’s speech from

unprotected gossip by an employee about disputed personnel matters.

Even if Salge’s speech contained an element of personal concern to

the extent it related to the departure of her boss or even personnel

disputes within the EISD, her central point

—— that Airheart was not

leaving voluntarily

—— goes to the heart of the public conversation

about why so many EISD personnel were leaving. We hold that Salge

has demonstrated that her speech was on a matter of public concern.

2. P ickering Balancing: Employee Free Speech versus

Employer’s Interest in Efficiency

In balancing the relative importance of Salge’s First Amendment

rights against EISD’s interest in the efficient furnishing of public

services, we must consider whether Salge’s “stat ement impairs

discipline by superiors or harmony among co-workers, has a

detrimental impact on close working relationships for which personal

loyalty and confidence are necessary, or impedes the performance of

the speaker’s duties or interferes with the regular operation of the

enterprise.” 48 When we do so, however, we must remain mindful that

“[c]reating room for free speech in a hierarc hical organization49 Moore , 877 F.2d at 375.

50 511 U.S. 661 (1994).

51 Id. at 678.

24 necessarily involves inconveniencing the employer to some degree.” 49

EISD continues to urge, again citing Waters v. Churchill

, 50 that

we should evaluate the inefficien cies caused by Salge’s speech in

the framework of what W ells reasonably believed that Salge said.

EISD contends that Wells reasonably believed that Salge’s speech had

breached sc hool district policy against dissemination of

confidential personnel information, and that Wells discharged Salge

based on his concern th at she had or would cause significant

disruptio n by revealing such information. EISD insists that

Churchill permits an employer to take action to prevent the

disruption that it reasonably believes will result from an

employee’s speech.

EISD’s interpreta tion of C hurchill is correct as far as it

goes. The aspect of C hurchill that EISD fails to address, however,

is the truism that, before an employer may justifiably discharge an

employee on a belief that the employee’s speech has caused or will

cause significant disruption to the workplace, the employ er must

undertake a reasonable investigation of the facts to determine what

the employee actually said. 51 This indispensable prerequisite does

n ot impose an onerous burden on the employer, yet Wel ls never

bothered to satisfy the requirement of conducting a reasonable52 See id. (“[An investigation] need not be [conducted with]

the care with which trials, with their rules of evidence and

procedure, are conducted. It should, however, be the care that a

reasonable manager would use before making an employment decision

—— discharge, suspension, reprimand, or whatever else —— of the

sort involved in the particular case.”).

53 511 U.S. 661, 666 (1994)(plurality opinion).

25 in vestigation into Salge’s speech before he terminated her

employment. 52 In fact, W ells never asked Roberson what Salge said

——

he only asked Roberson “where she got the information.” And,

Robe rson’s only reply was that she had spoken to Salge, n ot that

Salge had said that Airheart’s contract was “not extended.” Without

ever addressing the content of Salge’s conversation with Roberson,

much less specifically discussing the nuances of “extended” vis-àv is “renewed,” Wells —— by his own admission —— merely replied,

“Okay. That’s all I needed to know.” Moreover, both Salge and

Wells confirmed that they never discussed the speech for which Salge

was fired.

Generally, without at least asking an employee what she said,

an employer’s indispensable investigation into whether an employee’s

speech was protected will not be reasonable. In C hurchill

, the

investigation approved by the Supreme Court comprised the employer

(1) thrice interviewing the employee who originally complained about

Churchill’s speech, (2) questioning another employee who had

witnes sed the conversation for corroboration, and (3) most

significantly, conversing with th e employee whose speech was at

issue. 53 Although the Court noted that the employer had not54 Id. at 680.

55 Id.

56 Id.

26 interviewed the plaintiff before telling her that she was fired, it

relied on the fact that, after her discharge, the plaintiff filed an

internal grievance and was afforded a meeting with the hospital

president to tell her side of the story. 54 And, even then, before

making the plaintiff’s employme nt termination final, the hospital

conducted yet another interview with the employee who had originally

complained about the plaintiff’s speech and sought assurances of all

employees’ credibility from supervisors. 55 The Court summarized the

evidence before the employer as follows:

By the end of the termination process, Hopper, who made

the final decision, had the word of two trusted

employees, the endorsement of those employees’

reliability by three hospital managers, and the benefit

of a face-to-face meeting with the employee he fired.

W i th that in hand, a reasonable manager could have

concluded that no further time needed to be taken. 56

Wells’s investigation also fell far short of any investigation

that we have ever held to be reasonable. In J ohnson v. Louisiana

,

for example, we upheld as reasonable an employer’s investigation of

an employee’s speech after (1) it rece ived statements from three

employees, (2) it obtained a supervisor’s re port stating that the

supervisor believed that the plaintiff was lying, and (3) the

plaintiff “fail[ed] to present any evidence in his own support even57 Johnson v. Louisiana , 369 F.3d 826, 832 (5th Cir.

2004)(emphasis in original). See also Gonzales v. Dallas County

, 249 F.3d 406, 412 (5th Cir. 2001)(holding an investigation in

which the employer interviewed numerous witnesses to incident

involving employee, including employee himself, to be

reasonable).

58 See Churchill , 511 U.S. at 677 (“If an employment action

is based on what an employee supposedly said, and a reasonable

supervisor would recognize that there is a substantial likelihood

that what was actually said was protected, the manager must tread

with a certain amount of care.”).

27 when explicitly invited to do so.” 57

These investigations obviously differ dramatically from the de

minimis one conducted by Wells in this case, i.e., doing absolutely

nothing but to ask Roberson where she got her informati on. Wells

essentially conducted no investigation, despit e the fact that he

knew about the previous newspaper article, the community’s interest

in Airheart’s resignation, and the 40-person meeting at which

Airheart had announced his resignation, all before Salge spoke with

Roberson. And, Wells must be deemed to have been on notice that

Salge’s First Amendment rights could be affected. 58

EISD relies primarily on the role of Wells’s “reasonable”

belief that Salge had disclosed confidential in formation in his

decision to terminate her to show that Salge’s speech caused or had

the potential to cause serious disruption to the school district’s

functioning. Had Wells conducted a reasonable investigation of what

Salge actually said, he wou ld have known immediately that she did

not divulge confidential information: Airheart had effectively

waived any confidentiality rights by reveali ng the information in59 511 U.S. at 677.

28

the 40-person m eeting that he convened and conducted —— he also

stated in his deposition that he did not consider this information

confidential.

EISD argues additionally on appeal that Wells also “believed”

that Salge had formerly made inappropriate remarks about

confidential matters at school, and that this belief supported his

deduction that she ha d divulged confidential information to the

newspaper. Even assuming a rguendo that this were true, we would

still hold that Wells’s failure at least to ask Salge what she said

to the reporter bars a c onclusion that his investigation of her

speech was a reasonable one.

EISD also po ints out that, when Airheart called Wells to

complain about the release of inaccurate information to the press,

Airheart did not volunteer the fact that he had revealed his

contractual status to a great many EISD employees at a meeting, and

that this also justifies Wells’s belief that Airheart’s contractual

status was confidential. We emphasize, however, that

Churchill requires that employers make a reasonable investigation of

an employee’s speech before taking adverse employm ent action.

Relying on other employees and third parties to c ome forward sua

sponte with exculpatory information does not qualify as an

investigation at all, much less a reasonable one. 59 We therefore do

not weigh in EISD’s favor the putative disruption that Salge’s60 See id. at 680 (holding that the court should consider

the potential disruption resulting from the speech that the

employer reasonably believed had been made).

61 It is possible that, if Wells had asked Salge about her

speech, been told that she used the word “extended,” and then

asked Roberson for confirmation, Roberson might have contradicted

Salge’s statement, and Wells could have reasonably believed that

Salge mis-spoke. See Churchill , 511 U.S. at 678 (“Of course,

there will often be situations in which reasonable employers

would disagree about who is to be believed. . .”).

29 speech might conceivably have caused had she actually divulged

confidential information, as

—— absent a real investigation —— it

w as not reasonable for Wells to believe that she had divulged

anything confidential. 60

It might have been reasonable for Wells to believe, even after

asking Salge about her conversation with Roberson and gathering any

other appropriate inf ormation, that Salge gave i naccurate

information to the newspaper. 61 Again, without asking Salge what she

said to the reporter or asking the reporter if Salge actually spoke

the word “renewed,” Wells was not entitled to make and rely on his

“quantum leap of logic” that the inaccurate statement in the paper

came from Salge rather than being the result of a misunderstanding

or mis-printing by the paper.

EISD also argues that Wells did not think it necessary to

inquire further after Roberson told him that the in formation came

from Salge, as he assumed that the inaccuracy was Salge’s statement;

it also points out that neither Roberson nor Salge ever told Wells

that the inaccuracy in the paper was not a result of Salge’s speech.62 511 U.S. at 677-78.

30

T his contention gets EISD nowhere. First, the one and only

inaccuracy in the newspaper article wa s its use of a single word,

“ renewed,” as opposed to “extended.” Had the paper printed a

lengthy report about Airheart, full of distortions, lies, mistakes,

and innuendo; and ha d Roberson told Wells that all of such

information came from Salge, Wells might have been justified in his

belief that Salge had furnished inaccurate information to the

newspaper. In this case, when but one word separates false from

accu rate information, we conclude that it is not reasonable to

assume, as Wells did, that t he inaccuracy resulted from an

e mployee’s speech without at least asking the employee o r the

journalist exactly what the employee said. We further note, as

indicated above, that it is not the responsibility of employees and

third parties to volunteer all relevant information to employers as

part of an employer’s “reasonable” investigation under Churchill

. 62

We the refore proceed to balance the value of Salge’s nonconfidential, accurate speech, against EISD’s interest in efficiency

for purposes of our Pickering analysis.

EISD offers four examples of how Salge’s speech purportedly

disrupted its operations: (1) Her speech affected the working

relationship b etween Wells and Airheart; (2) it upset EISD board

members and members of the community; (3) it caused Wells to spend

valuable time correcting the erroneous statement in public; and (4)63 Although EISD states that Salge violated its policy

against contacting the media, it did not provide the court with a

copy of this policy or cite this policy in support of its

interest in efficiency under Pickering

.

64 See Moore v. City of Kilgore , 877 F.2d 364, 375 (5th Cir.

1989)( holding that, as the employee firefighter’s speech did not

hinder the ability of his employer, the Fire Department, to

31 it cast the school district in a negative public light. 63 EISD also

contends that the value of Salge’s speech was very low, as it

amounted to li ttle more than gossip in the workplace about a

personnel matter, and should accordingly count for little in

opposition to the inefficiency experienced by EISD.

First, although the working relationship between Wells and

Ai rheart was undoubtedly strained, this strain was certainly the

result, in principal part, of Well’s unfavorable evaluation of

Airheart’s work and his non-extension of the principal’s contract.

The very fact that, prior to Salge’s speech, Airheart assembled and

told a meeting of forty employees that he had received the secondworst evaluation of his life and would not stay where he was not

wanted, nullifies the contention t hat Salge’s speech produced the

strained relationship between Wells and Airheart.

S econd, many members of the community had already expressed

concern regarding Airheart’s resignat ion before the newspaper

published Roberson’s article grounded in part on Salge’s responses

to that reporter’s questions. EISD produced no evidence that the

community’s concern created such turmoil a fter the publication of

the article that it impaired the school’s operations. 64 Wells statedperform its primary task of fighting fires, as opposed to causing

a general burden on the efficient operation of the city as an

organization, the employer’s interest in efficiency was entitled

to little weight as opposed to the employee’s speech). See

also Pickering v. Bd. of Educ. , 391 U.S. 563, 572

(1968)(emphasizing that plaintiff teacher’s speech did not

disrupt the operation of the schools); Kennedy v. Tangipahoa

Parish Library Bd. of Control , 224 F.3d 359, 378 (5th Cir.

2000)(“[The plaintiff’s] 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.”) These cases illustrate that, when we evaluate

the impact of a plaintiff’s speech on a defendant employer’s

operations, we inquire whether the speech impacted the actual

operations of the employer in providing its day-to-day services,

such as the circulating of books at the library or the

continuation of classes at school, as opposed to creating a

bureaucratic hassle.

32 that, after Airheart held the meeting at which he announced the nonextension of his contract an d his intention to resign, Wells

received a number of phone calls from high school staff members,

students were upset that Airheart was leaving, and memb ers of the

community approached Wells to discuss the situation.

Wells could not recall whether individuals outside the school

system actually called him to discuss the matter before the

appearance of the articl e, or only afterwards. Wells did confirm

that members of the community approached him to discuss Airheart’s

resignation while he was in the grocery or otherwise out in the

community, although he may not have received phone calls until after

publication of the second article. Wells also testified in his

deposi t ion, conclusionally, that, after the article was published,

these disruptions “escalated,” yet he did not describe what effect

these disruptions had on EISD’s operations or how the disruption65 Moore , 877 F.2d at 375 (noting that the defendant

employer presented no evidence, other than the testimony of one

supervisor, that the plaintiff’s speech actually created any

disruption to the employer’s work).

66 See id. (“Creating room for free speech in a hierarchical

organization necessarily involves inconveniencing the employer to

some degree. Speech concerning public affairs usually creates

attendant inefficiencies in the running of the public entity.”).

33 became more severe. Moreover, EISD produced no evidence from anyone

other than Wells that Salge’s speech caused any disruption at all. 65

Any additional disruption arising out of Salge’s alleged divulgence

of confidential or inaccurate information cannot, as we explained

abo ve, be attributed to Salge for purposes of our P ickering

balancing.

As for the waste of Wells’s time, EISD produced no evidence

that the amount of time that Wells devoted was any greater than it

would have been if caused by an employee’s protected, if somewhat

controversial, speech. 66 Wells did not state, nor did EISD produce

any other evidenc e to show, that he spent an inordinate amount of

time putting out brush fires in the community after the appearance

of the inaccurate article. In fact, no summary judgment evidence

indicates how much time Wells spent deal ing with the alleged

disruption in the school district, much less that h e spent enough

time to disrupt operations of the district.

F inally, even though EISD has an interest in its reputatio n

,

Salge’s speech concerning Airheart’s employment status could not be

said to have cast the district in a “negative public light.”34

Indeed, Salge said nothing about the district at all, and the

disput ed newspaper article did not even identify its source of

information as an employee of the district. As EISD does not

elaborate further on this argu ment, we shall not engage in

conjecture as to how Salge’s comment might have negatively portrayed

the school district.

EISD has failed to demonstrate any disruption to its working

envi ronment or the running of the schools that is not easily

outweighed by speech of even moderate First Amendment value. We do

not suggest that, if an employer were to undertake a reasonable

investigation of an em ployee’s speech and determine that the

employee inappropria tely divulged confidential information, this

fact would not weigh heavily in favor of an employer’s interest in

efficiency in the P ickering balancing test. Rather, we emphasize

that such is not the case before us, and that we di scount Wells’s

be lief that Salge revealed confidential information because he

failed to conduct any kind of reasonable investigation into the

substa nce of her speech. If he had conducted a meaningful

investigation and then mistakenly determined that her spee ch did

include confidential information, his belief on this matter would

have weighed in favor of EISD; but, again, that is not w hat the

record reveals here.

The di sruption alleged by EISD does not outweigh Salge’s

interest in speaking on a matter of confirmed public interest in her

commun ity, especially when analyzed as to context, form, and35

content. Although it is unfortunate that Salge either misspoke or

Roberson misquoted Salge in the paper, there is no evidence that

Salge’s speech caused such an uproar

—— or, to be more precise,

elevated an existing uproar

—— as to impair the functioning of the

school district even temporarily. We conclude that

Pickering ’s balance beam tips solidly in favor of Salge.

III. CONCLUSION

Salge spoke on a matter of public concern and, given the dearth

of evidence produced by EISD to show that her speech either actually

or potentially interfered with or disrupted the functioning of the

school district, we conclude that she was fired in violation of her

First Amendment righ ts. We therefore affirm in all respects the

district court’s grant of summary judgment in favor of Salge on her

First Amendment retaliation claim.

AFFIRMED.