### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 13

- 60540

RODRICUS CARLTEZ HURST,

Plaintiff

- Appellant,

v. LEE COUNTY, MISSISSIPPI,

Defendant

- Appellee.

Appeal from the United States District Court for the Northern Distric t of Mississippi

Before STEWART, Chief Judge, and WIENER and COSTA, Circuit Judges

. CARL E. STEWART, Chief Judge: Plaintiff

- Appellant Rodricus Carltez Hurst filed suit in federal district court alleging that Defendant

- Appellee Lee County, Mississippi

– act ing through its S heriff

– terminated Hurst’s employment in violation of his First Amendment right to free speech. The district court granted judgment as a matter of law in favor of Lee County. We affirm.
I. FACTS & PROCEDURAL HISTORY Hurst became employed as a corrections officer with the Lee County Sheriff’s Department (“the Department”) in 2008 under Sheriff Jim H. Johnson, who was fi rst elected in 2003. S pecifically, Hurst worked as a shift sergeant in Lee County Jail (“the Jail”) and supervised eight other correctional officers. The Jail provides jail space for several Lee County law enforcement United States Court of Appeals Fifth Circuit 

### FILED August 21, 2014

Lyle W. Cayce Clerk Case: 13-60540 Document: 00512741969 Page: 1 Date Filed: 08/21/2014No. 13

- 60540 agencies, including b ut not limited to the Tupelo, Mississippi Police Department. At the time, Sheriff Johnson’s media relations policy, which was included in the D epartment’s standard operating procedures , provided that only the Sheriff or his “designee” would be permitted to coordinate wi th the media with re spect to crimes and investigations. Non

- designees were permitted to reveal certain “public information” to the media which included the limited information entered on the D epartment’s docket book and website. According to the record, Hurst had spoken with members of the media numerous times during the course of his employment with the Jail. In 2012 on New Year’s Day, Hurst arrived at the jail to begin his shift and learned that Chad Bumphis, a Mississippi State University football player , had been arrested the night before by the Tupelo Police Department. That day, numerous media representatives telephoned the Jail seeking information about Bumphis’s arrest ; Hurst fielded many of those calls

. At one point during that day, Brad Loc ke, a sports writer for the Northeast Mississippi Daily Journal ( NMDJ ) , travelled to the Jail and questioned Hurst about the incident that happened the night before involving Bumphis. Later that day, Locke published an article in the NMDJ in print and online about the arrest of Bumphis, attributing certain quotes in the article s to Hurst. One article quoted Hurst as saying that “[w]hen the fight broke out , they [ i.e. , the Tupelo Police Department] started taking people to jail.” Sheriff Johnson read the articles and directed that Hurst be interviewed by D epartment personnel with regard to the statements. Hurst acknowledged that he had talked to the report er and wrote out a statement which provided in part : “I told the reporter from what I had heard a group fight had broke out and somehow he [Bumphis] got cut on the neck.” Upon reading Hurst’s written statement, Sheriff Johnson fired Hurst for violating the D epartment’s media relations policy. 2 Case: 13-60540 Document: 00512741969 Page: 2 Date Filed: 08/21/2014No. 13

- 60540 Following his termination, Hurst applied for and was denied unemployment benefits by the M ississippi Department of Employment Security (“MDES”)

. 1 The MDES determined that Hurst was discharged after wrongfully releasing information to the media without authorization from the Sheriff. Hurst appea led and an Administrative Law Judge (“ALJ”) also held that Hurst had wrongfully released information to the media without authorization from t he Sheriff in violation of the D epartment’s media relations policy. Hurst then brought suit in the United States District Court. Lee County filed a motion for summary judgment on the grounds that the findings of the MDES and the ALJ should have a preclusive effect on the district court proceedings. T he district court denied the motion in part and granted the motion in part and held that “[t]he MDES factual determination is entitled to preclusive deference; however, the facts established by the ALJ are not dispositive [of] the question of whether Lee County Sheriff’s Department policy on communication with the media by employees is constitutionally valid under the First Amendment.” The case proceeded to jury trial and , at the close of Hurst’s case in chief, Lee County filed a Rule 50 motion for judgment as a matter of law. FED. R. CIV. P. 50(a). Relying primarily on this c ourt’s holding in Nixon v. City of
Houston , 511 F.3d 494 (5th Cir. 2007), t he district court ruled from the bench and granted the motion in favor of Lee County . The court’s ruling stated that: (1) Hurst spoke to the reporter as an employee of the Sheriff’s D epartment as part of his official job duties; and (2) any part of the speech Hurst engaged in with Mr. Locke that would not be considered part of his official job duties

–

1 Also known as the Mississippi Employment Security Commission. See Miss. Code Ann. § 71

- 5

- 101. 3 Case: 13-60540 Document: 00512741969 Page: 3 Date Filed: 08/21/2014No. 13

- 60540 therefore speech engaged in as a private citizen

– was nevertheless unprotected because it was n ot o f “public concern.” Hurst appeals herein.
II. STANDARD OF REVIEW “We review the district court ’ s grant of judgment as a matter of law de novo, applying the same legal standards as the district court.” Gonzalez v. Fresenius Med. Care N. Am. , 689 F.3d 470, 474 (5th Cir. 2012). J udgment as a matter of law may be granted when “a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.” FED. R. CIV. P. 50(a) (1)

. In reviewing the district court ’ s grant of judgment as a matter of law, we “ consider all of the evidence in the light most favorable to the nonmovant, drawing all factual inferences in favor of the non

- moving party, and leaving credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts to the jury.” Gonzalez , 689 F.3d
at 474

- 75. III. DISCUSSION A. First Amendment Speech Hurst’s first argument on appeal is that the district court erroneously granted Lee County’s Rule 50 motion because Hurst’s speech was not employee speech pursuant to his job duties and should have been considered citizen speech protected by the First Amendment

. We disagre e. While g overnment employees are not stripped of their First Amendment right to freedom of speech by virtue of their employment , this right is not without exception

. Pickering v. Bd. of Educ. of Tp. High Sch. Dist. 205, Will Cnty., Ill. , 391 U. S. 563, 568 (1968). A four

- pronged test is used to determine whether the speech of a public employee is entitled to constitutional protection from employer discipline

. See Juarez v. Aguilar , 666 F.3d 325, 332 (5th Cir. 2011). A plaintiff must establish t hat: (1) he “ suffered an adverse employment
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- 60540
decision ” ; (2) his “ speech involved a matter of public concern ” ; (3) his interest in speaking outweighed the governmental defendant ’ s “ interest in promoting efficiency ” ; and (4) “ the protected speech motivated the defendant’ s conduct. ” Id

. The Supreme Court noted in Garcetti v. Ceballos that , for an employee ’ s speech to qualify for First Amendment protection, he must be speaking “as a citizen on a matter of public concern.” 547 U.S. 410 , 41 8 (2006)

. This c ourt has characterized th at requirement

– that he be speaking as a citizen on a matter of public concern

– as a “threshold layer” to the second prong of the retaliation test. See Davis v. McKinney , 518 F.3d 304, 312 (5th Cir. 2008)

. Garc etti further states that , “ 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 disciplin e

. ” Garcetti , 547 U.S. at 421. In the past, we have a cknowledged that Garcetti does “ not explicate what it m eans to speak ‘pursuant to’ one’ s ‘official duties.’” Williams v. Dallas Indep. Sch. Dist. , 480 F.3d 689, 692 (5th Cir. 2007) (quoting Garcetti , 547 U.S. at 424)

. More recently, however, the Supreme Court expounded upon this issue
in Lane v. Franks , 134 S. Ct. 2369, 2379 (2014). In Lane , the Court reasoned that “ the mere fact that a citizen ’ s speech concerns information acquired by virtue of his p ublic employment does not transform that speech into employee

— rather than citizen

— speech. 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 concerns tho se duties. ” Id

. The Court ultimately held in that case that the First Amendment “protects a public employee who provide[s] truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job responsibilities.” Id . at 2374

- 75.

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When a court determines that an employee is not speaking as an employee, but rather as a citizen on a matter of public concern, “ the possibility of a First Amendment claim arises.” Garcetti , 547 U.S. at 418

. To then determine whether the employee’s speech is entitled to F irst Amendment protect ion, the court proceeds to the Pickering balancing test , which inquires
as to whether the interest of the government employer “ in promoting the efficiency of the public services it performs through its employees” outweigh s the employee ’ s interests, as a citizen, “ in commenting upon matters of public concern.” Pickering , 391 U.S. at 568. In performing this balancing test, the court looks at “ whether the statement 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.” Rankin v. McPherson , 483 U.S. 378, 388 (1987 )

. Here, Hurst was an officer w ho , according to the Department’s media relations policy, could have obtained authorization from his superiors to speak to the media abo ut the event involving Bumphis that took place while Hurst was of f duty t he night before

. 2 He chose , however, to make statements to the media without obtaining that authorization and w as ultimately terminated for doing so

. Hurst argues on appeal that his job duties were limited to supervising his subordinate officers and keep ing the officers and inmates safe. However, Sheriff Johnson’s media relations policy state s that employees like
Hurst w ere authorized to field calls from the media

- such as the numerous

2 We note herein that the fact that Hurst first learned of Bumphis’s arrest upon arriving to begin his shift at the Jail is not dispositive of the question of whether his speech to the reporter about the arrest was employee speech. See Lane v. Franks , 134 S. Ct. 2369 , 2379 (2014) (stating that “ the mere fact that a citizen ’ s spee ch concerns information acquired by virtue of his public employment does not transform that speech into employee

— rather than citizen

— speech

. ”). 6 Case: 13-60540 Document: 00512741969 Page: 6 Date Filed: 08/21/2014No. 13

- 60540
calls Hurst fielded on January 1, 2012

- and to provide certain limited information when doing so . If Hurst was not authorized as a designee to speak on a specific issue about an arrest, he was permitted to provide certain publicly available information to the media such as the name of the arre stee, the charge, the amount of the arrestee’s bond , and whether the D epartment had released the arrestee. Further, the Sheriff at his discretion could have authorized Hurst as his designee to make other statements to the media.
H urst did not obtain that authorization before making the statements at issue to the news reporter. Accordingly, we hold that Hurst’s statements to the news reporter , i.e. , the speech at issue, was “ordinarily within the scope of [Hurst’s] duties” and did not “merely concern those duties

. ” Lane , 134 S. Ct. at 2379

. 3 Thus , Hurst

was not speaking as a citizen for First Amendment purposes, and consequently his communications were not c onstitution ally insulated from employer discipline

. Garcetti , 547 U.S. at 421. Moreover, because we have held Hurst’s speech to be ordinarily within the scope of his duties and th erefore not citizen speech protected by the First Amendment, we do not reach the issue of whether Hurst’s speech involved “a matter of public concern.” G arcetti , 547 U.S. at 418 ; Juarez , 666 F.3d at 332

. B. Duty to Investigate Hurst’ s second argument on appeal is that the Rule 50 motion was

e rroneously granted because the S h eriff violated his duty to conduct a reasonabl e investigat ion to determine whether Hurst had engaged in protected speech when speaking with the news reporter. See Waters v. Churchill , 511

3 In another case involving a law enforcement official making an unauthorized comment to the media, we co nclude d that the statement was “ not protected by the First Amendment because it was made pursuant to his official duties and during the course of performing his job. ” Nixon v. City of Houston , 511 F.3d 494, 498 (5th Cir. 2 007). 7 Case: 13-60540 Document: 00512741969 Page: 7 Date Filed: 08/21/2014No. 13

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U.S. 661 , 677

- 80 (1994). In light of our foregoing conclusion that Hurst’s speech to the new s reporter was not protected First Amendment speech, we

p retermit discussion of Hurst’s argument that Sheriff Johnson violated his duty to conduct a reasonable investigation under Waters prior to terminating Hurst’s employment. See id

. IV. CONCLUSION For the reasons stated herein, we affirm the judgment of the district court granted in favor of Defendant

- Appellee Lee County, Mississippi.

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