Opinion
No. 1:99CV150-S-D
July 25, 2000
OPINION
In this case, plaintiffs — seven current and former employees of the defendant city — allege they were improperly disciplined in violation of the First Amendment and state law. Presently before the court is defendants' motion to dismiss or, alternatively, for summary judgment. Because matters outside the pleadings were "presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. . . ." Fed.R.Civ.P. 12(b).
FACTS
At all relevant times, plaintiffs were employees in the Sanitation Department of the City of Starkville, Mississippi, working as either garbage truck drivers or crew members. Defendant Sharon Boyd was the superintendent of the department and plaintiffs' immediate supervisor. Plaintiffs were required to be at work by 7:00 a.m. and be on the road and off the premises no later than 7:15 a.m. to begin collecting garbage on their respective routes.
On February 27, 1999, Boyd held a meeting in which she orally informed plaintiffs and other sanitation workers of certain new policies and rules. All plaintiffs testified that they attended this meeting. Later, Boyd conducted a second meeting in which she distributed copies of the new policies and rules. Of singular importance to the facts of this case is the rule which rotated drivers and crew members among different trucks and routes, the purpose of which was to familiarize the employees with all of the garbage pick-up routes in the city.
On the first morning the new policies were to take effect, April 23, 1999, at approximately 7:05, plaintiffs informed Boyd that they wanted to talk to someone with more authority than she about the policy change. Though the specifics of plaintiffs' complaints varied, reduced to their core, they were the same: plaintiffs did not want to switch trucks, and they felt slighted because Boyd had not sought their input before implementing the policy. In the face of plaintiffs' request, Boyd informed plaintiffs that if the trucks were not out of the facility by 7:15, they would be reprimanded, and she notified the personnel director, John Young, of the situation. Shortly after 7:15, when plaintiffs did not begin work, they were told by Young to clock out and return on Monday. Boyd assigned alternate drivers and crews to handle plaintiffs' routes.
On Monday morning, plaintiffs were issued employee warning reports for insubordination. Five plaintiffs John Howard Tolliver, Bobby Jorden, Edward G. DeLoach, George A. Miller, Jr., and Willie Turner received three-day suspensions without pay; the remaining two plaintiffs, Effie Hopkins and Bobby Davis, were terminated. Hopkins and Davis received more severe punishments because each had received a prior employee warning report for insubordination within twelve months of this incident. The other plaintiffs either had no warnings for insubordination or such warnings were issued over twelve months before this episode. Each plaintiff was informed of the discipline decision individually, and DeLoach was told by Boyd, "See what you get for hanging with the wrong crowd." Afterward, plaintiffs were advised they could institute grievance proceedings in accordance with the personnel policies manual if they did not agree with defendants' actions, a path no one chose to take, though plaintiffs variously testified that they later unsuccessfully discussed the situation with at least one alderperson, the mayor, and a city judge. The policy changes instituted by Boyd, which remain in effect, have not been the subject of any news coverage or widespread comment or debate by the general public.
DISCUSSION
It is well settled that a public employee may not be fired, disciplined, or otherwise retaliate against for exercising his First Amendment rights. Anderson v. Pasadena Independent School District, 184 F.3d 439, 443 (5th Cir. 1999); Thompson v. City of Starkville, 901 F.2d 456, 460 (5th Cir. 1990). In this case, plaintiffs' First Amendment claims implicate both freedom of speech and freedom of association and, despite plaintiffs' arguments to the contrary, are analyzed under the Connick-Pickering balancing test. Anderson, 184 F.3d at 443. Therefore, in evaluating plaintiffs' claims of violation of the First Amendment, the court, as a matter of law, must first determine whether the employees' speech and association touched on a matter of legitimate public concern. Scott v. Flowers, 910 F.2d 201, 210 (5th Cir. 1990). If the "employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community," Connick v. Myers, 461 U.S. 138, 146 (1983), but rather lies more along the lines of a personal employment dispute, id. at 148 n. 8, then the speech and association are entitled to no constitutional protection. Scott, 910 F.2d at 210.
In this case, plaintiffs seek to cloak their refusal to obey Boyd's directive to begin work with First Amendment implications by arguing they were disciplined for requesting an audience with higher ranking public officials. This argument is specious for several reasons. First, plaintiffs were not denied access to their elected officials; they were simply told to go to work and to attend to their grievances after their job duties for the day were completed. That was not an unreasonable or uncommon demand by the employer. Plaintiffs were hired to perform certain job duties, and their employer has the right to dictate how and when those job duties are to be carried out. The fact that they are public, rather than private, employees does not vest them with greater rights than the public at large. Indeed, plaintiffs, without waiver, testified that they later gained audiences with an alderperson, a judge, and the mayor so that clearly neither defendant prevented them from exercising their rights as citizens to speak to their elected officials.
Second, the substance of plaintiffs' complaints did not touch on matters of public concern, and, consequently, their group resistence to Boyd's directive did not imbue their actions with constitutional protection. Without variance, plaintiffs testified that they resented Boyd's unilateral imposition of the new policies and rules without their input and that they simply did not want to change what they had been doing for several years. There is nothing that plaintiffs can argue to change that testimony. Vague references in the complaint to a disruption in garbage service resulting from Boyd's policy changes are simply insufficient to convert this internal employment dispute into a "matter of general concern." Connick, 461 U.S. at 148 n. 8. Indeed, plaintiffs could point to only one instance which showed that the public was even aware of the policy change, and that involved nothing more than a situation where one of the rotated drivers damaged someone's property in executing an unfamiliar turn. Therefore, because their concerns and their group resistence involved "matters of merely private interest," Scott, 910 F.2d at 211, and not of "`great public concern,'" id. (citation omitted), plaintiffs cannot pass, as a matter of law, the threshold for protection under the First Amendment, and dismissal of their constitutional claims is warranted. See also Warnock v. Pecos County, 116 F.3d 776, 780 (5th Cir. 1997) (while employee's personal concern for "working conditions, job security, and the like" does not touch upon matters of public concern, reporting wrongs and abuses within government does).
Because the court finds no constitutional violation in this case, the question of qualified immunity for Boyd does not arise. Furthermore, since the court is dismissing "all claims over which it has original jurisdiction," 28 U.S.C. § 1367(c)(3), it chooses to exercise its discretion and decline to exercise supplemental jurisdiction over the remaining state law claim.
An appropriate order and final judgment shall issue.