IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

GWENDOLYN PROPER,

Plaintiff,

vs. CASE NO. 5:10-cv-287-RS-EMT

SCHOOL BOARD OF

CALHOUN COUNTY FLORIDA,

And LADONA KELLEY, individually,

Defendants.

_________________________________________/

ORDER

Before me is Defendant‟s motion for summary judgment (Doc. 41). 

I. STANDARD OF REVIEW

The basic issue before the court on a motion for summary judgment is 

“whether the evidence presents a sufficient disagreement to require submission to a 

jury or whether it is so one-sided that one party must prevail as a matter of law.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S. Ct. 2505, 2512 (1986). 

The moving party has the burden of showing the absence of a genuine issue as to 

any material fact, and in deciding whether the movant has met this burden, the 

court must view the movant‟s evidence and all factual inferences arising from it in 

the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 

U.S. 144 (1970); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). 

Case 5:10-cv-00287-RS-EMT Document 59 Filed 08/12/11 Page 1 of 10
Thus, if reasonable minds could differ on the inferences arising from undisputed 

facts, then a court should deny summary judgment. Miranda v. B & B Cash 

Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank 

& Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)). However, 

a mere „scintilla‟ of evidence supporting the nonmoving party's position will not 

suffice; there must be enough of a showing that the jury could reasonably find for 

that party. Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing

Anderson, 477 U.S. at 251). 

II. BACKGROUND

I accept the facts in the light most favorable to Plaintiff. See Galvez v. 

Bruce, 552 F.3d 1238, 1239 (11th Cir. 2008) (citing Vinyard v. Wilson, 311 F.3d 

1340, 1343 n.1 (11th Cir. 2002)). “„All reasonable doubts about the facts should 

be resolved in favor of the non-movant.‟” Id. (quoting Burton v. City of Belle 

Glade, 178 F.3d 1175, 1187 (11th Cir. 1999); Clemons v. Dougherty County, 684 

F.2d 1365, 1368-69 (11th Cir. 1982). 

Plaintiff Gwendolyn Proper was hired by Defendant School Board of 

Calhoun County in the spring of 2006 as a paraprofessional at Altha Public 

Schools. During this year, Proper worked one-on-one with a student known as 

R.M. While working with R.M., Proper alleges that she witnessed an incident of 

Case 5:10-cv-00287-RS-EMT Document 59 Filed 08/12/11 Page 2 of 10
child abuse when a general education teacher placed R.M.‟s desk in the doorway of 

a closet. Proper did not report the alleged abuse.

In July 2006, the School Board hired Proper as a full-time teacher under an 

annual contract at Blountstown High School. In 2007, the School Board

reappointed Proper under a second annual contract and transferred her to Altha 

Public Schools (“Altha”). At the time of the transfer, Defendant Ladona Kelley

was Vice Principal of Altha. In 2008, the School Board again reappointed Proper 

under a third annual contract at Altha. During the summer of 2008, Proper was 

subpoenaed to give deposition testimony in a case involving the abuse incident. 

Proper‟s testimony was not favorable to the School Board. The next school year, 

2009-2010, Kelley assumed the position of Principal at Altha, and Proper was 

reappointed under a fourth annual contract.

During the 2009-2010 academic year, Proper was a co-teacher with Clint 

Fussell for approximately thirteen students. Fussell worked as the general 

education teacher while Proper served as the special education teacher. Three fulltime paraprofessionals also worked in the classroom with Proper and Fussell. 

There were multiple complaints throughout the year from the paraprofessionals 

regarding the negative atmosphere and Proper‟s lack of instruction, guidance, and 

consistency in the classroom.

Case 5:10-cv-00287-RS-EMT Document 59 Filed 08/12/11 Page 3 of 10
At the end of the 2009-2010 academic year, Kelley met with Proper to 

discuss her year-end performance evaluation and to inform Proper of the decision 

not to recommend her contract for renewal. At this meeting, Kelley did not give 

Proper a specific reason for her decision and only said that her decision was in the 

best interest of the school. Proper refused to leave the meeting without feedback, 

and Kelley told Proper that she was unable to talk about the situation at the 

meeting. Kelley then said, “I don‟t know if there is a statute of limitations where 

[we] could have a conversation.” (Doc. 41). Proper believed Kelley‟s statement 

regarding the “statute of limitations” referred to Proper‟s testimony in 2008. 

Proper now brings this suit against the School Board and Kelley for First 

Amendment retaliation under 42. U.S.C. § 1983. Defendants have moved for 

summary judgment.

III. ANALYSIS

First Amendment Retaliation

To establish a First Amendment retaliation claim, Proper must demonstrate 

that: (1) her speech was constitutionally protected, (2) she suffered some adverse 

employment action, and (3) that there is a causal relationship between the adverse 

action and the protected speech. Castle v. Appalachian Technical Coll., 631 F.3d 

1194, 1197 (11th Cir. 2011)(citing Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th 

Cir. 2005)). “To establish causation, the plaintiff must show that the defendant 

Case 5:10-cv-00287-RS-EMT Document 59 Filed 08/12/11 Page 4 of 10
was „subjectively motivated to discipline‟ the plaintiff for exercising his First 

Amendment rights.” Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 

2011)(quoting Smith v. Mosley, 532 F.3d 1270, 1278 (11th Cir.2008)). If the 

plaintiff establishes causation, then the burden of production shifts to the 

defendant, and if the defendant can show that he would have taken the same action 

regardless of the protected activity, then summary judgment for the defendant is 

still proper. Id. at 1341-42.

This Court must address the first issue—whether Proper‟s speech was 

constitutionally protected. Proper was a public employee. “The Court has made 

clear that public employees do not surrender all their First Amendment rights by 

reason of their employment.” Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). The 

Supreme Court in Connick and Pickering has established that public employees‟ 

speech will have First Amendment protection when the employee speaks as a 

citizen about matters of public concern. Connick v. Myers, 461 U.S. 138, 140

(1983); Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968). “The Supreme Court 

has clarified and simplified this inquiry by holding 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.‟ ” Boyce v. Andrew, 510 F.3d 1333, 

1342 (11th Cir. 2007)(quoting Garcetti, 547 U.S. at 421). Therefore, this Court 

Case 5:10-cv-00287-RS-EMT Document 59 Filed 08/12/11 Page 5 of 10
must first determine whether Proper‟s statements were made pursuant to an official 

duty.

Florida Statute § 39.201 (2010) imposes a duty upon all citizens to report 

suspected child abuse, abandonment, or neglect to the Department of Children and 

Families. Besides this general duty imposed on all of society to report child abuse,

which the School Board reiterates in its official policies, the School Board also 

made it mandatory for “all employees, agents, and volunteers” of the district “to 

report all actual and suspected cases of child abuse, abandonment or neglect.” 

(Exhibit 1-I). In addition, the School Board also has a more general provision 

requiring employees to report any misconduct “that affects the health, safety or 

welfare of a student” to the Superintendent. (Exhibit 1-I). Proper‟s argument that 

“it was not specifically within the province of [her] job . . . to report this type of 

activity” fails. (Doc. 51). The policies established by the School Board clearly 

apply to all employees, including Proper.

The fact that Proper made no report of the alleged abuse and only testified 

during a deposition does not make Proper‟s speech constitutionally protected. In 

the Eleventh Circuit case Morris v. Crow, a police officer wrote a report 

implicating another officer as the cause of an accident. 142 F.3d 1379, 1381 (11th 

Cir. 1998). Morris, the police offer, had a duty to file this report. Id. Later, 

Morris was deposed and reiterated the information in his report, and following his 

Case 5:10-cv-00287-RS-EMT Document 59 Filed 08/12/11 Page 6 of 10
deposition, Morris was suspended and eventually terminated. Id. Morris brought a 

claim for First Amendment retaliation, and the court determined that his speech 

was not protected because it was made pursuant to an official duty. Id. at 1383. If 

Proper had properly reported the child abuse, then her case would be identical to 

Morris. Proper‟s failure to make the initial report, although she was mandated to

do so, should not entitle her to First Amendment protection. 

Proper also argues that her compliance with a subpoena to be deposed was 

not pursuant to any official duty she had while working at Altha, and therefore, the 

deposition testimony should be protected. This argument also fails. In Morris, the 

Eleventh Circuit held that “[t]he mere fact that Morris‟s statements were made in 

the context of a civil deposition cannot transform them into constitutionally 

protected speech.” Id. The same principle can be applied in this case, making 

Proper‟s testimony is unprotected speech. Because Proper‟s speech is not 

protected under the First Amendment, the analysis could stop here; however, for 

argument‟s sake, the causation prong of the retaliation analysis will also be 

addressed. It is undisputed that Proper suffered an adverse employment action by 

being terminated, so the second prong need not be analyzed. 

Even if Proper‟s speech is protected by the First Amendment, Proper failed 

to show a causal relationship between the adverse employment action and the 

protected speech. Vicarious liability is not recognized in § 1983 actions. Goebert 

Case 5:10-cv-00287-RS-EMT Document 59 Filed 08/12/11 Page 7 of 10
v. Lee Cnty., 510 F.3d 1312, 1331 (11th Cir. 2007). Instead, “a plaintiff must show 

that the defendant instituted a custom or policy [that] result[s] in deliberate 

indifference to constitutional rights or ... directed [his] subordinates to act 

unlawfully or knew that the subordinates would act unlawfully and failed to stop 

them from doing so.” Id. (quoting West v. Tillman, 496 F.3d 1321, 1328-29 (11th 

Cir. 2007) (internal quotations omitted)). 

Proper argues that the School Board delegated its policymaking authority to 

Kelley, who in turn retaliated against Proper because of her testimony. This 

argument fails. There is no evidence that the School Board delegated its 

policymaking authority. The Eleventh Circuit has concluded that “[t]he mere 

delegation of authority to a subordinate to exercise discretion is not sufficient to 

give the subordinate policymaking authority. Rather, the delegation must be such 

that the subordinate‟s discretionary decisions are not constrained by official 

policies and are not subject to review.” Mandel v. Doe, 888 F.2d 783, 792 (11th 

Cir.1989)(citing City of St. Louis v. Praprotnik, 485 U.S. 112, 125-28 (1988)). In 

Florida, the School Board is the policymaking authority of the school district. 

K.M. v. Sch. Bd. of Lee Cnty. Fla., 150 F.App‟x 953, 957 (11th Cir. 2005). In this 

case, the School Board reviewed Kelley‟s decision and voted to terminate Proper at 

a public meeting, which shows that no delegation of policymaking authority 

occurred because Kelley‟s recommendation was subject to review.

Case 5:10-cv-00287-RS-EMT Document 59 Filed 08/12/11 Page 8 of 10
The School Board could still be liable for a decision if it ratified the decision 

of a subordinate who did not have final policymaking authority. Garvie v. City of 

Fort Walton Beach, 366 F.3d 1186, 1189 (11th Cir. 2004). To establish 

“ratification,” Proper must show that the School Board had an opportunity to 

review Kelley‟s decision and agreed with both the decision and the basis for it. Id. 

The School Board did have the opportunity to review the decision before the 

meeting, but there is no evidence that Kelley retaliated against Proper. Proper 

failed to produce any evidence that Kelley knew the contents of her deposition 

testimony or that Kelley‟s statement about the “statute of limitations” was directed 

at Proper‟s deposition testimony. The School Board certainly cannot agree with 

the basis for the decision that cannot be shown to exist in the first place. 

Therefore, the School Board neither delegated its policymaking authority nor 

ratified Kelley‟s alleged retaliatory basis for her decision. Without showing either 

of these, the School Board cannot be held liable.

Qualified Immunity

“Qualified immunity allows government employees to carry out their 

discretionary duties without fear of litigation, „protecting from suit all but the 

plainly incompetent or one who is knowingly violating the federal law.‟ ” Boyce v. 

Andrew, 510 F.3d 1333, 1341 (11th Cir. 2007) (quoting Mercado v. City of 

Orlando, 407 F.3d 1152, 1156 (11th Cir.2005) (citation omitted)). In analyzing the 

Case 5:10-cv-00287-RS-EMT Document 59 Filed 08/12/11 Page 9 of 10
affirmative defense of qualified immunity, a two part inquiry is used: “(1) do the 

alleged facts show that the government actor violated a constitutional right? and 

(2) was that constitutional right clearly established?” Id. (citing Saucier v. Katz, 

533 U.S. 194, 201 (2001)). The law is clearly established that an employer may 

not demote or discharge a public employee for engaging in protected speech. Id.

(citing Travers v. Jones, 323 F.3d 1294, 1295 (11th Cir. 2003)). It is well settled 

by the Supreme Court that for a government employee‟s speech to have First 

Amendment protection, the employee must have (1) spoken as a citizen and (2) 

addressed matters of public concern. Id. 

As explained above, Proper‟s speech was not protected under the First 

Amendment. Therefore, Defendants are entitled to qualified immunity. 

IV. CONCLUSION

Summary judgment is granted for Defendant against Plaintiff.

ORDERED on August 12, 2011.

/s/ Richard Smoak 

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE

Case 5:10-cv-00287-RS-EMT Document 59 Filed 08/12/11 Page 10 of 10