Mary White v. School Board Hillsborough County

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 27, 2009
• Docket: 08-10922
• Status: Unpublished

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT JANUARY 27, 2009 No. 08-10922 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________

D. C. Docket No. 06-01626-CV-T-27-MAP

MARY WHITE,

Plaintiff-Appellant,

versus

SCHOOL BOARD HILLSBOROUGH COUNTY, FLORIDA,

Defendant-Appellee.

________________________

Appeal from the United States District Court for the Middle District of Florida _________________________

Before MARCUS, WILSON and FAY, Circuit Judges.

PER CURIAM:

Mary White, proceeding pro se and in forma pauperis, appeals the district

court’s final order granting the School Board of Hillsborough County, Florida’s

(the “School Board”) motion for summary judgment on White’s 42 U.S.C. § 1983

First Amendment retaliation and state law defamation claims. On appeal, White argues that the district court erred in granting summary judgment in favor of the

School Board because: (1) there were multiple procedural errors committed by the

School Board and the district court during the summary judgment stage of the case;

(2) there were conflicting facts as to whether White was an independent contractor

for purposes of determining whether White engaged in protected speech, an

element of her First Amendment retaliation claim; and (3) the district court

erroneously found that the statements at issue were subject to a qualified privilege,

a defense to her defamation claim. After thorough review, we affirm.1

We review an order granting summary judgment de novo, viewing all the

facts in the record in the light most favorable to the non-moving party. Brooks v.

County Comm’n of Jefferson County, Ala., 446 F.3d 1160, 1161-62 (11th Cir.

2006). Moreover, “pro se pleadings are held to a less strict standard than pleadings

filed by lawyers and thus are construed liberally.” Alba v. Montford, 517 F.3d

1249, 1252 (11th Cir.), cert. denied, (U.S. Dec. 1, 2008) (No. 08-6426).

The relevant facts are these. White was the founder and director of

Wilbesan Charter School, and in April 2003, signed the charter contract with the

School Board on behalf of the school. Almost immediately after Wilbesan opened,

problems began. In August 2003, the School Board denied a request by White for

1 In addition, White’s motion to file a reply brief out of time is GRANTED.

2 a waiver of the teacher certification requirements for a vocational teacher, on the

ground that the teacher in question did not meet the requirements for any course

taught in Wilbesan’s curriculum. In January 2004, School Board employees

conducted a review of Wilbesan’s operations, and after an audit by an outside

accounting firm, asked Wilbesan to prepare a corrective action plan to address its

deficit. In February 2004, a social worker working with the school wrote a

memorandum to the School Board, and expressed concerns over her safety and that

of her fellow employees, noting that White “has demonstrated a history of being

mentally unstable as observed by other charter office staff.” Sometime later, White

wrote a letter to the School Board alleging that a fire safety inspection report on the

school was false because the school had changed locations. A subsequent county

fire inspection of the new facility found significant deficiencies and ordered the

school not to open until they were corrected. The school opened the following day,

and the county fire marshal issued a cease and desist order to the school. The

School Board superintendent notified White that the school was closed effective

immediately following the issuance of the cease and desist order, and that the

superintendent was recommending that the charter be terminated based on

concerns for the health and safety of the students and the school’s “disregard for

the School Board’s directives and applicable state law.”

3 White thereafter filed this lawsuit against the School Board, asserting, inter

alia, First Amendment retaliation and state law defamation claims. The district

court dismissed several of White’s claims, and ultimately granted summary

judgment to the School Board on White’s remaining claims. This appeal follows.

First, we are unpersuaded by White’s claim that the School Board’s motion

for summary judgment failed to comply with the requirements of Federal Rule of

Civil Procedure 56 and that the district court erred in ordering the School Board to

amend its motion to correct record cites and in ordering both parties to file

supplemental briefs. “[S]ummary judgment is appropriate ‘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.’” Brooks, 446

F.3d at 1162 (quoting Fed. R. Civ. P. 56(c)). “A supporting or opposing affidavit

must be made on personal knowledge, set out facts that would be admissible in

evidence, and show that the affiant is competent to testify on the matters stated.”

Fed. R. Civ. P. 56(e). The Supreme Court has held that Rule 56 does not require

“that the moving party support its motion with affidavits or other similar materials

negating the opponent’s claim.” Celotex Corp v. Catrett, 477 U.S. 317, 323 (1986)

(emphasis in original). “[R]egardless of whether the moving party accompanies its

4 summary judgment motion with affidavits, the motion may, and should, be granted

so long as whatever is before the district court demonstrates that the standard for

the entry of summary judgment, as set forth in Rule 56(c), is satisfied.” Id.

The record here shows that the School Board’s brief complied with the

requirements of Rule 56(c). Moreover, the district court committed no error in

ordering the School Board to correct its record citations, and the School Board’s

amended brief was otherwise identical to its original one. In addition, the court

ordered both parties to file supplemental briefs addressing the applicability of the

law governing the speech of public employees, and White in fact filed a

supplemental brief on this very issue. The district court thus did not commit any

procedural errors in ruling on summary judgment.

Next, we reject White’s claim that the district court erred in granting

summary judgment on her First Amendment retaliation claim. To state a First

Amendment retaliation claim, a plaintiff must first establish that she engaged in

constitutionally protected speech. See Bennett v. Hendrix, 423 F.3d 1247, 1250

(11th Cir. 2005). However, the government is afforded broader discretion in

regulating the speech of public employees than that of its citizenry. Boyce v.

Andrew, 510 F.3d 1333, 1341 (11th Cir. 2007). So, “for a government employee’s

speech to have First Amendment protection, the employee must have (1) spoken as

5 a citizen and (2) addressed matters of public concern.” Id. “[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.” Garcetti v. Ceballos,

547 U.S. 410, 421 (2006).

Moreover, the Supreme Court has held that government contractors are

protected under the First Amendment from retaliatory government action to the

same extent as government employees. Bd. of County Com’rs, Wabaunsee

County, Kan. v. Umbehr, 518 U.S. 668 (1996). In Umbehr, the plaintiff contracted

with a county board of commissioners to haul trash for cities within the county,

and alleged that his contract was terminated in retaliation for his public criticism of

the board. Id. at 671-72. The Court held that an independent contractor’s speech is

protected subject to the same restrictions on the speech of public employees,

because the government has similar interests in both contexts of being “free to

terminate both employees and contractors for poor performance, to improve the

efficiency, efficacy, and responsiveness of service to the public, and to prevent the

appearance of corruption.” Id. at 674. Accordingly, the government contractor,

like the government employee, “must show that the termination of [her] contract

was motivated by [her] speech on a matter of public concern[.]” Id. at 685.

6 As applied here, the district court did not err in determining that Umbehr

applied to White’s retaliation claim, as it was based solely on the termination of a

contract -- the charter -- with the government. Id. Moreover, under Florida law a

charter school is a public school and is subject to significant oversight by the

sponsoring school district. See Fla. Stat. § 1002.33. Thus, the School Board, in

exercising its contractual power and promoting the public service thereby

provided, had at least the same interests as the commissioners in Umbehr that

warrant deference to its decision to terminate the charter contract. See 518 U.S. at

678; see also Mangieri v. DCH Healthcare Authority, 304 F.3d 1072, 1074-76

(11th Cir. 2002) (applying Umbehr to a § 1983 claim by a physician against a state

agency, where the physician alleged that the agency refused to renew the his

contract to provide anesthesia services at a state hospital in retaliation for his

speaking out about matters of public concern). Because Umbehr applies to

White’s retaliation claim, the statements for which she was allegedly retaliated

against are subject to the restrictions applicable to the speech of public employees.

Applying these restrictions, we must determine whether White’s statements

were made in the course of her duties as director of the school or “as a citizen on a

matter of public concern”; if the former, her speech is not protected by the First

Amendment. Garcetti, 547 U.S. at 418, 421. On this record, there is no genuine

7 dispute that White’s two statements -- (1) her letter requesting that the School

Board waive certification requirements for a vocational teacher; and (2) her letter

alleging that the fire safety inspector filed an “absolutely false” report on the

school -- were made in the course of her duties as director of the school. This is

true even if White had no formal duty to write the letters. Id. at 425 (“[T]he listing

of a given task in an employee’s written job description is neither necessary nor

sufficient to demonstrate that conducting the task is within the scope of the

employee’s professional duties for First Amendment purposes.”); see also

D’Angelo v. School Bd. of Polk County, Fla., 497 F.3d 1203, 1210 (11th Cir.

2007) (holding that principal allegedly terminated in retaliation for efforts to

convert his school to a charter school made statements, in pursuit of the charter, in

his capacity as principal and not as a citizen, even if he “was not expressly

assigned the duty to pursue charter conversion”); Phillips v. City of Dawsonville,

499 F.3d 1239, 1242 (11th Cir. 2007) (holding that “a public employee’s duties are

not limited only to those tasks that are specifically designated”). This is also true

even if she was making allegations of official misconduct. See Phillips, 499 F.3d at

1242-43 (holding that city clerk/treasurer’s disclosures about the mayor’s misuse

of city resources were made pursuant to her official duties and not protected); see

also Morris v. Crow, 142 F.3d 1379, 1381 (11th Cir. 1998) (“The fact that such

8 information may be of general interest to the public, however, does not alone make

it of ‘public concern’ for First Amendment purposes.”). We therefore affirm the

grant of summary judgment on White’s retaliation claim.

We likewise reject White’s argument that the district court erred in granting

summary judgment on her state law defamation claim. “To state a cause of action

for defamation, in Florida, a plaintiff must allege that (1) the defendant published a

false statement (2) about the plaintiff (3) to a third party and (4) that the falsity of

the statement caused injury to the plaintiff.” Valencia v. Citibank Int’l, 728 So. 2d

330 (Fla. Dist. Ct. App. 1999); see Rubin v. U.S. News & World Report, Inc., 271

F.3d 1305, 1306 (11th Cir. 2001). However, Florida law recognizes a qualified

privilege for statements that meet the following requirements: “(1) good faith; (2)

an interest in the subject by the speaker or a subject in which the speaker has a duty

to speak; (3) a corresponding interest or duty in the listener or reader; (4) a proper

occasion; and (5) publication in a proper manner.” Thomas v. Tampa Bay Downs,

Inc. 761 So. 2d 401, 404 (Fla. Dist. Ct. App. 2000). “The publication may be

qualifiedly privileged even if it is untrue.” Demby v. English, 667 So. 2d 350, 353

(Fla. Dist. Ct. App. 1995). If the defendant establishes the existence of a qualified

privilege, the plaintiff must demonstrate express malice, which requires a showing

that “the primary motive for the statement [was] . . . an intention to injure the

9 plaintiff.” Nodar v. Galbreath, 462 So. 2d 803, 806 (Fla. Dist. Ct. App. 1984).

As the record shows, the School Board asserted as an affirmative defense

that the allegedly defamatory statements by the social worker were privileged as a

matter of law, and articulated this argument in its motion for summary judgment.

Yet White raised no argument in response to the School Board’s qualified privilege

claim, nor did she present any evidence to create a genuine issue as to whether the

social worker’s statements were made with express malice. Thus, the district court

did not err in finding that the statements at issue were subject to a qualified

privilege under Florida law, and that White had not demonstrated express malice to

overcome the privilege. We therefore affirm the grant of summary judgment on

White’s defamation claim.2

AFFIRMED.

2 White also alleged that she was defamed by a School Board director’s statements regarding poor fiscal management at the school, but since she raised no argument to this effect on appeal, she has abandoned it. See Horsley v. Feldt, 304 F.3d 1125, 1131 n.1 (11th Cir. 2002).