FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

June 26, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-16561

Non-Argument Calendar

________________________

D. C. Docket No. 04-00825-CV-T-N

ANGELA R. GILDER-LUCAS, 

Plaintiff-Appellant, 

versus 

ELMORE COUNTY BOARD OF EDUCATION, 

ELMORE COUNTY SCHOOL BOARD, 

BRUCE FULMER, in his individual 

and official capacity as 

Superintendent of Education, 

CAROL MCGALLIARD, in her individual 

and official capacity as Assistant 

Superintendent of Education, 

JAMES MYERS, in his individual and 

official capacity as Assistant 

Superintendent of Education, et al., 

Defendants-Appellees. 

________________________

Appeal from the United States District Court

for the Middle District of Alabama

_________________________

(June 26, 2006)
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Before MARCUS, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

Angela Gilder-Lucas appeals the grant of summary judgment against her

claims under the First and Fourteenth Amendments of the United States

Constitution. Gilder-Lucas was a nontenured public high school science teacher

and junior varsity cheerleader sponsor who alleges that her contract was not

renewed because she raised concerns about the fairness of cheerleader tryouts in

response to an inquiry by the principal at the school. We apply Garcetti v.

Ceballos, No. 04-473 (U.S. May 30, 2006), and conclude that Gilder-Lucas’s

speech was not protected by the First Amendment because she spoke “pursuant to

[her] official duties,” id. at 9. We also conclude that Gilder-Lucas had no

protectable property interest under the Fourteenth Amendment because she was not

entitled to re-employment under state law. We affirm.

I. BACKGROUND

The Elmore County Board of Education hired Angela Gilder-Lucas as a

nontenured science teacher at Stanhope Elmore High School in January 2003. 

Gilder-Lucas also was a junior varsity cheerleading sponsor. Two parents

complained about unfairness in the cheerleader tryouts that were held in March

2004. The school principal, Louie Fryer, conducted an investigation into those
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complaints and asked Gilder-Lucas to complete a questionnaire that included

several questions about the tryouts. On April 19, 2004, Gilder-Lucas responded to

the questionnaire and raised several concerns about the tryouts. On May 12, 2004,

Fryer told Gilder-Lucas he would not renew her contract. Fryer offered to permit

Gilder-Lucas to resign, but Gilder-Lucas did not resign and her contract was not

renewed. 

Gilder-Lucas filed a complaint that alleged she was fired because she

expressed concerns about the cheerleader tryouts. The district court granted

summary judgment against Gilder-Lucas’s claims under the First and Fourteenth

Amendments because it concluded that Gilder-Lucas’s “response to Fryer’s

[questionnaire] did not address issues of public concern” and “is rightly considered

speech made primarily in her role as an employee that does not trigger First

Amendment protection.” The district court also concluded that Gilder-Lucas did

not have a cognizable property interest because nontenured teachers are not

entitled to re-employment under the laws of Alabama. 

II. STANDARD OF REVIEW

“This court reviews the district court’s grant of summary judgment de novo,

applying the same legal standard that the district court employed in the first

instance.” Yang v. Gov’t Employees Ins. Co., 146 F.3d 1320, 1322 (11th Cir.
4

1998). “[A] moving party is entitled to summary judgment ‘if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of law.’” Fitzpatrick v.

City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993) (quoting Fed. R. Civ. P. 56(c)). 

“When reviewing a grant of summary judgment, the court of appeals may affirm if

there exists any adequate ground for doing so, regardless of whether it is the one

on which the district court relied.” Id. at 1117. 

III. DISCUSSION

Gilder-Lucas argues that her speech was protected under the First

Amendment because it concerned the educational quality of the school and did not

further her private interests. Gilder-Lucas also argues that she was denied her right

of free speech without due process and had a property interest in re-employment. 

We discuss each issue in turn. 

First, Gilder-Lucas’s response to Fryer’s questionnaire is not protected by

the First Amendment. “A state may not demote or discharge a public employee in

retaliation for [] speech” protected by the First Amendment, Morgan v. Ford, 6

F.3d 750, 754 (11th Cir. 1993), but the Supreme Court has explained that a public

employee who does not speak as a citizen on a matter of public concern “has no
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First Amendment cause of action based on his or her employer’s reaction to the

speech,” Ceballos, No. 04-473, slip op. 1, at 6. “[W]hen 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 9. Because the record reveals

no genuine question about whether Gilder-Lucas responded to Fryer’s

questionnaire pursuant to her duty as a junior varsity cheerleader sponsor rather

than as a citizen, the district court correctly granted summary judgment against

Gilder-Lucas’s claim under the First Amendment. 

Second, the school board did not violate Gilder-Lucas’s right of due process

when it did not renew her contract. “The Fourteenth Amendment protects against

the government’s deprivation of liberty or property without procedural due

process.” Warren v. Crawford, 927 F.2d 559, 562 (11th Cir. 1991). “State law

determines whether a public employee has a property interest in his or her job.” Id. 

“Under Alabama law . . . [,] a nontenured teacher has no right, statutory or

otherwise, to be re-employed.” Foster v. Blount County Bd. of Educ., 340 So. 2d

751, 752 (Ala. 1976). Because Gilder-Lucas was a nontenured teacher and the

record reveals no other basis of entitlement to re-employment, e.g., Perry v.

Sindermann, 408 U.S. 593, 601, 92 S. Ct. 2694, 2699 (1972) (stating that
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“mutually explicit understandings” can “support [a] claim of entitlement to the

benefit” for the purpose of due process), the district court correctly granted

summary judgment against Gilder-Lucas’s claims under the Fourteenth

Amendment. 

IV. CONCLUSION

Gilder-Lucas’s arguments fail.

AFFIRMED.