FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS July 24, 2018 Elisabeth A. Shumaker FOR THE TENTH CIRCUIT Clerk of Court _________________________________
CHESTER L. BAILEY, JR.,
Plaintiff - Appellant,
v. No. 17-6110
INDEPENDENT SCHOOL DISTRICT NO. 69 OF CANADIAN COUNTY OKLAHOMA, a/k/a Mustang School District; SEAN MCDANIEL, in his individual capacity,
Defendants - Appellees. _________________________________
Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:16-CV-01055-HE) _________________________________
Barrett T. Bowers, Ward & Glass LLP, Norman, Oklahoma (Stanley M. Ward and Woodrow K. Glass, Ward & Glass LLP, Norman, Oklahoma, with him on the briefs) for Plaintiff-Appellant.
J. Douglas Mann, Rosenstein, Fist & Ringold, Tulsa, Oklahoma (Jerry A. Richardson, Rosenstein, Fist, & Ringold, Tulsa, Oklahoma, with him on briefs) for Defendants- Appellees. _________________________________
Before LUCERO, McKAY, and McHUGH, Circuit Judges. _________________________________
LUCERO, Circuit Judge. _________________________________ We are presented in this appeal with the following question: is a letter written
by a public employee, seeking a reduced sentence for his relative, speech on a matter
of public concern for the purposes of a First Amendment Garcetti/Pickering inquiry.
See Garcetti v. Ceballos, 547 U.S. 410 (2006); Pickering v. Bd. of Educ., 391 U.S.
563 (1968). We conclude that it is. Accordingly we reverse the district court’s grant
of summary judgement favoring Independent School District No. 69 of Canadian
County Oklahoma (“the School District”). Nonetheless, we affirm the district court’s
grant of qualified immunity to school superintendent Sean McDaniel because the law
was not previously clearly established on this issue. Exercising jurisdiction under 28
U.S.C. § 1291, we reverse in part, affirm in part, and remand for further proceedings.
I
Chester Bailey Jr. was employed by the School District as Director of
Athletics from 2009 to 2016. His excellent performance in this position is not
disputed. Throughout his career, Bailey received positive evaluations, indicating that
he “exhibited strong leadership abilities,” “demonstrat[ed] a high degree of
integrity,” and was “an asset to the district.”
Dustin Graham is Bailey’s nephew. In 2014, Graham pled guilty to various
state charges largely stemming from video recordings he made of women in the
bathroom of his apartment without their consent. Graham also pled guilty to a single
count of manufacturing child pornography based on a video he recorded of a minor.
There was considerable media coverage of Graham’s arrest, trial, and sentencing.
2 During Graham’s sentencing proceedings in 2014, Bailey wrote a letter to the
sentencing judge on Graham’s behalf. The School District does not issue its
employees official letterhead but it was common practice for individuals to produce
their own letterhead using the school logo and their titles. Bailey had created such a
letterhead and used a sheet to write to Graham’s sentencing judge. The letter’s
header contained the logo for the school district, and gave the address of the
Department of Athletics and Bailey’s job title.
In the body of the letter, Bailey noted his position as “the Director of Athletics
at Mustang Public Schools” and described his background working with young
people. Bailey asked the sentencing judge to consider Graham’s previous good
character and his efforts at rehabilitation. Bailey also noted that Graham
acknowledged the wrongfulness of his actions, which in Bailey’s experience, was a
characteristic of young people who did not repeat their poor decisions.
In 2015, Graham moved the state court for review and reduction of his
sentence. More than thirty individuals wrote letters to the sentencing judge on
Graham’s behalf, including his local state representative. Bailey wrote a second
letter to the judge conducting the review, on the same letterhead previously used.
The second letter said that Bailey was writing in support of Graham, that he had
visited Graham in prison, and that if Graham were released Bailey would be “a
positive role model” for him. Graham was released early, only to receive further
news coverage when he became embroiled in a dispute with his homeowners’
association.
3 McDaniel, Superintendent of Schools for the School District, received a
package in July 2016. It contained documents describing Graham’s offenses, a copy
of Bailey’s 2015 letter to Graham’s sentencing judge, and a handwritten note. The
package was sent by a former in-law of Bailey’s who was angry about Graham’s
early release and other family issues. McDaniel met with Bailey on several
occasions to discuss the letter, expressing concern that Bailey used district letterhead
to advocate for early release of an individual convicted of a child pornography
offense. Bailey stated that nothing in the letter indicated that the School District
supported Graham’s release, and he pointed to other occasions in which other
employees used similar letterhead without incurring adverse consequences. Bailey
also told McDaniel about the other letter he wrote to Graham’s sentencing judge in
2014. McDaniel later retrieved that letter from Graham’s case file.
After the meetings, McDaniel decided to recommend Bailey’s termination. He
sent Bailey a letter informing him of this decision. The letter cited McDaniel’s loss
of trust in Bailey’s judgment, based on his use of school letterhead to request
leniency for a child pornographer and his subsequent refusal to admit fault. A due
process hearing before the Board of Education followed. The Board terminated
Bailey’s employment with the School District, in accordance with McDaniel’s
recommendation.
Bailey filed suit under 42 U.S.C. § 1983 in the United States District Court for
the Western District of Oklahoma, against the School District and McDaniel in his
individual capacity. He alleged wrongful termination in retaliation for speech
4 protected by the First Amendment. Defendants filed a motion to dismiss under Fed.
R. Civ. P. 12(b)(6). Both parties attached materials outside the pleadings to their
respective filings, and thus the district court applied the summary judgment standard
under Fed. R. Civ. P. 56. See Fed. R. Civ. P. 12(d). Concluding that Bailey’s speech
did not relate to a matter of public concern, the district court granted summary
judgment in favor of the School District and McDaniel. Bailey timely appealed.
II
We review a district court’s grant of summary judgment de novo. Hobbs ex
rel. Hobbs v. Zenderman, 579 F.3d 1171, 1179 (10th Cir. 2009). Summary judgment
is appropriate only if, viewing the evidence in the light most favorable to the non-
moving party, we conclude that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law. Rohrbough v. Univ. of
Colo. Hosp. Auth., 596 F.3d 741, 745 (10th Cir. 2010). If a case involves the First
Amendment, “we have an obligation to make an independent examination of the
whole record in order to make sure that the judgment does not constitute a forbidden
intrusion on the field of free expression.” Id.
Bailey alleges that he was wrongfully terminated for writing letters to
Graham’s sentencing judge, in violation of his First Amendment right to freedom of
expression. “Public employees do not surrender their First Amendment rights by
virtue of their employment with the government.” Martin v. City of Del City, 179
F.3d 882, 886 (10th Cir. 1999). A “government employer cannot condition public
employment on a basis that infringes the employee’s constitutionally protected
5 interest in freedom of expression.” Burns v. Bd. of Cnty. Comm’rs, 330 F.3d 1275,
1285 (10th Cir. 2003) (quotations omitted). “[B]ecause the government has
important interests in maintaining an efficient workplace and promoting the services
that it renders, the government has an increased degree of discretion in regulating a
public employee’s speech.” Martin, 179 F.3d at 886.
To achieve the required balance between the interests of public employees in
commenting on matters of public concern and the interests of government employers
in performing services efficiently, we apply the five-part Garcetti/Pickering test. See
Leverington v. City of Colo. Springs, 643 F.3d 719, 723-24 (10th Cir.
2011)(quotations omitted). That test asks:
(1) whether the speech was made pursuant to an employee’s official duties; (2) whether the speech was on a matter of public concern; (3) whether the government’s interests, as employer, in promoting the efficiency of the public service are sufficient to outweigh the plaintiff’s free speech interests; (4) whether the protected speech was a motivating factor in the adverse employment action; and (5) whether the defendant would have reached the same employment decision in the absence of the protected conduct.
Dixon v. Kirkpatrick, 553 F.3d 1294, 1302 (10th Cir. 2009). In general, the first
three prongs are legal issues to be decided by the court and the last two prongs are
factual issues left to the factfinder. Id.
A
The district court resolved Bailey’s retaliation claim on the second prong,
holding that his speech did not relate to a matter of public concern. We disagree.
Matters of public concern are issues “of interest to the community, whether for
6 social, political, or other reasons.” Lighton v. Univ. of Utah, 209 F.3d 1213, 1224
(10th Cir. 2000). 1 In assessing whether speech pertains to a matter of public concern,
we must consider “the content, form, and context of a given statement, as revealed by
the whole record.” Myers, 461 U.S. at 147-48. We may consider “the motive of the
speaker, and whether the speech . . . merely deals with personal disputes and
grievances unrelated to the public’s interest.” Lighton, 209 F.3d at 1224.
We have never squarely addressed whether a sentencing proceeding is a matter
of public concern. Upon analysis, we concur with the Eighth Circuit’s conclusion
that “[t]he proper sentencing of convicted criminals is clearly a matter of public
concern.” Buzek v. Cty of Sanders, 972 F.2d 992, 995 (8th Cir. 1992). Sentencing
proceedings are funded by the public, and take place, at least theoretically, within the
public eye as matters of public record. 2 The government files suit in the name of the
people. These proceedings also implicate public safety, an issue of vital importance
to most communities, as well as questions regarding rehabilitation, deterrence, and
reintegration of people who have committed criminal acts. See Cox Broad. Corp. v.
1 Bailey argues that the public concern test should not apply to this case, relying on Flanagan v. Munger, 890 F.2d 1557, 1561 (10th Cir. 1989). There, we held that it is “nearly impossible to logically apply the public concern test to” a case involving a public employee who “engages in nonverbal protected expression neither at work nor about work.” Id. at 1562. Bailey’s written letter plainly qualifies as verbal. See Connick v. Myers, 461 U.S. 138, 146 (1983) (applying public concern test to written questionnaire). 2 Graham’s sentencing proceeding took place under at least some non- hypothetical public scrutiny. Media coverage does not by itself render an issue a matter of public concern. Arndt v. Koby, 309 F.3d 1247, 1254 (10th Cir. 2002). However, media coverage may serve as indicator of genuine public concern. Id. 7 Cohn, 420 U.S. 469, 492 (1975) (“[C]ommission of crime, prosecutions resulting
from it, and judicial proceedings arising from the prosecutions, . . . are without
question events of legitimate concern to the public . . . .”). In short, sentencing
proceedings are at the core of the public administration of justice, and are therefore
quintessentially matters of public concern.
The content of Bailey’s letters also weighs against finding them to be purely
private. They concerned the very factors a sentencing judge examines in determining
whether to release a prisoner into society: Graham’s behavior while incarcerated, his
personal characteristics, and his level of community support. The public is
necessarily intimately concerned with sentencing decisions, and Bailey’s letters
provided information key to those decisions.
Bailey certainly had a personal interest in the outcome of his nephew’s
sentencing proceedings. Merely because speech concerns an issue of personal
importance does not preclude its treatment as a public matter. Other cases similarly
involving issues of personal importance have not precluded the consideration of those
issues as public matters. In Deutsch v. Jordan, 618 F.3d 1093 (10th Cir. 2010), we
considered a First Amendment claim by a city employee publicly accused of
misappropriation of city funds. Id. at 1096. The employee testified in a defamation
suit he brought against his accuser, and was later fired. Id. We concluded that,
although the employee testified because he wished to clear his name, “clearing his
name and responding to a charge of public corruption amounted to the same thing,”
and therefore his testimony was a matter of public concern. Id. at 1101. Bailey’s
8 desire to have his nephew’s sentence modified was obviously a factor in his decision
to write the letters at issue. However, as in Deutsch, Bailey’s comments on a matter
of personal concern amounted to a statement on a matter of public concern.
Bailey’s opinion regarding the correct outcome of Graham’s sentencing cannot
render a sentencing any less a public matter, however misguided or distasteful the
School District may have found that opinion. We affirm once again that speech, even
“upsetting” speech or that which “arouses contempt,” is broadly protected by the
First Amendment. Snyder v. Phelps, 562 U.S. 443, 458 (2011).
B
In the alternative, defendants urge us to affirm on the first, third, and fourth
prongs of the Garcetti/Pickering test. We may affirm the district court’s decision on
“any ground supported by the record” provided the litigants have had a fair
opportunity to address that ground. Schanzenbach v. Town of Opal, 706 F.3d 1269,
1272 (10th Cir. 2013) (quotations omitted). Because Bailey has presented a genuine
issue of material fact as to the three alternative Garcetti/Pickering prongs raised on
appeal, we cannot affirm on these grounds.
As to the first prong, defendants argue that Bailey spoke pursuant to his
official duties when he wrote the sentencing letters. Speech is made pursuant to an
employee’s “official duties if it is generally consistent with the type of activities the
employee was paid to do.” Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d
1192, 1203 (10th Cir. 2007) (quotation and alteration omitted). This inquiry requires
a practical and holistic view of the relationship between the speaker’s employment
9 and the speech at issue. Chavez-Rodriguez v. City of Santa Fe, 596 F.3d 708, 713
(10th Cir. 2010). No single factor is dispositive. Id.
Defendants’ argument is based in large measure on the fact that Bailey used
letterhead with the School District’s name and logo on it and included his job title
and address. Although use of an employer’s letterhead may support a finding that an
employee spoke pursuant to his official duties, the record in this case contains
substantial evidence suggesting the opposite. McDaniel testified that Bailey’s
conduct was improper because the letters were for personal purposes. He explained
that “Mustang Public Schools is a combination of families and students and staff and
business partners” and that Bailey’s “nephew has nothing to do with that.” McDaniel
further averred that writing letters of support was not a requirement of Bailey’s job.
Viewing this evidence in the light most favorable to Bailey, we conclude the record
does not establish that he was acting as an employee when he wrote the letters.
The third prong of the Garcetti/Pickering test requires us to weigh the
employee’s interest in speaking against the government employer’s interest in
promoting the efficiency of public service. Brammer-Hoelter, 492 F.3d at 1203. In
performing this analysis, we must consider “the manner, time, and place of the
speech, as well as the context in which the dispute arose.” Weaver v. Chavez, 458
F.3d 1096, 1100 (10th Cir. 2006). The employer bears the burden of showing that
restricting the employee’s speech was necessary to prevent disruption and provide
efficient public service. Cragg v. City of Osawatomie, 143 F.3d 1343, 1346 (10th
Cir. 1998). “Vigilance is necessary to ensure that public employers do not use
10 authority over employees to silence discourse, not because it hampers public
functions but simply because superiors disagree with the content of employees’
speech.” Rankin v. McPherson, 483 U.S. 378, 384 (1987).
We look to whether the speech at issue “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.” Id.
at 388. Courts may also consider the potential for disruption of particular speech; we
do not require a government employer to allow the disruption to manifest before
acting. Weaver, 458 F.3d 1100. However, an employer may not rely on a predicted
disruption long after the speech at issue occurred. As we explained in Kent v.
Martin, 252 F.3d 1141 (10th Cir. 2001), “[i]f there has been no actual disruption
justifying termination during the six months following an employee’s protected
speech, it is nonsensical to rely ex post facto on a ‘prediction’ of disruption to tip the
balance in favor of an employer’s interest in an efficient workplace.” Id. at 1146.
The School District argues that it is entitled to summary judgment because the
disruption that could have been caused by the implication the School District
supported the early release of a child pornographer outweighs Bailey’s interest in
commenting on the factors relevant to Graham’s imprisonment. But, more than two
years after the first letter, and more than one year after the second letter, no
disruption had materialized. See id. at 1145-46. If not for the School’s District’s
decision to resurrect the matter, it appears the School District’s operations would
11 have continued undisturbed. And, as described in Section II.A, supra, both Bailey
and the public at large have a strong interest in a sentencing judge receiving
information pertinent to his or her sentencing determination.
Defendants also contend that Bailey demonstrated poor judgment by misusing
district letterhead, which caused McDaniel to lose confidence in him. They further
aver that the district’s interest in controlling the use of its logo and official message
must be respected. We have no quibble with the latter proposition. See Deschenie v.
Bd. of Educ., 473 F.3d 1271 (10th Cir. 2007) (“When a government employee
purports to speak on behalf of the government employer, the employer has a strong
interest in controlling the speech.”). But in arguing that these interests outweigh
Bailey’s right to free speech, defendants presuppose that Bailey was fired for using
letterhead rather than for the content of his letters. McDaniel testified at the due
process hearing that he was concerned about Bailey’s use of district letterhead, and
Bailey’s response to McDaniel’s inquiry, rather than the content of the letters. But
he also conceded that employees of the School District write recommendation letters
on district letterhead, and he would not object to a teacher writing such a letter for
their own child. Bailey submitted an affidavit indicating that McDaniel allowed him
to send letters on district letterhead “for private purposes such as letters of
recommendation” on other occasions. Because the summary judgment record is
unclear, we must conduct our analysis by assuming that Bailey’s termination was
actually motivated by the letters’ content.
12 For the same reason, we cannot affirm based on the fourth prong of the
Garcetti/Pickering test. See Dixon, 553 F.3d at 1302 (considering “whether the
protected speech was a motivating factor in the adverse employment action”).
Defendants contend that Bailey was not fired for his speech but for his misuse of
letterhead. But as described above, the record fairly supports an inference that Bailey
was fired for the views expressed in his letters.
III
The district court concluded that McDaniel was entitled to qualified immunity
because Bailey’s letters did not address a matter of public concern, and therefore
Bailey had not adequately stated a violation of his First Amendment rights. As
discussed above, we disagree with that conclusion. However, to defeat qualified
immunity, Bailey must do more than establish that McDaniel violated his
constitutional rights. Estate of Redd ex rel. Redd v. Love, 848 F.3d 899, 906 (10th
Cir. 2017). He must also show that the constitutional right at issue was clearly
established at the time of the violation. Id. 3
“Ordinarily, in order for the law to be clearly established, there must be a
Supreme Court or Tenth Circuit decision on point, or the clearly established weight
of authority from other courts must have found the law to be as the plaintiff
maintains.” Zia Trust Co. ex rel. Causey v. Montoya, 597 F.3d 1150, 1155 (10th Cir.
2010) (quotation omitted). Although there need not be a case with identical facts, the
3 Only McDaniel, and not the School District, has argued for qualified immunity. 13 constitutional issue must be placed beyond debate by previous jurisprudence.
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam). And the jurisprudence a
plaintiff relies on must be “particularized to the facts of the case.” White v. Pauly,
137 S. Ct. 548, 552 (2017) (quotation omitted). A general test defining the elements
of a constitutional violation, such as the Garcetti/Pickering test, will not provide
clearly established law in anything but “an obvious case.” Id. (quotation omitted).
As described above, we hold that a sentencing decision is a matter of public
concern for the purposes of the First Amendment. But this proposition was not
clearly established in our circuit at the time McDaniel acted. Bailey has cited the
Garcetti/Pickering test and an Eighth Circuit case with facts similar to this one. See
Buzek, 972 F.2d at 994-95. He also relies on the Supreme Court’s decision in Cox
Broad. Corp., which concerned whether a state may sanction the truthful publication
of judicial records. See 420 U.S. at 491-92. These cases are insufficient to
demonstrate the existence of clearly established law. In other words, they would not
give a reasonable official in McDaniel’s position particularized notice that his
termination of Bailey for writing letters to a sentencing judge would violate Bailey’s
First Amendment rights. Therefore, McDaniel is protected by qualified immunity.
For the foregoing reasons, we REVERSE the district court’s grant of summary
judgment as to the School District, and REMAND for further proceedings as to the
District. We AFFIRM the district court’s conclusion that McDaniel is entitled to
14 qualified immunity, on the alternative ground that the law at issue was not clearly
established at the time he violated it.