Opinion
No. 1:01-CV-1.
December 17, 2001
MEMORANDUM AND ORDER
Plaintiff Barbara McReynolds brings this action pursuant to 42 U.S.C. § 1983. She contends that defendant William C. Wade retaliated against her for exercising her right to free speech guaranteed by the First Amendment to the United States Constitution. Presently before the Court is defendant's motion for summary judgment. (Court File No. 21). For the following reasons, this motion shall be DENIED.
I. Standard of Review
FED. R. CIV. P. 56(c) provides that summary judgment will be rendered if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The burden is on the moving party to conclusively show that no genuine issue of material fact exists, and the Court must view the facts and all inferences to be drawn therefrom in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Morris v. Crete Carrier Corp., 105 F.3d 279, 280-81 (6th Cir. 1997); White v. Turfway Park Racing Ass'n, Inc., 909 F.2d 941, 943 (6th Cir. 1990); 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987).
Once the moving party presents evidence sufficient to support a motion under Rule 56, the nonmoving party is not entitled to a trial merely on the basis of allegations. The nonmoving party is required to come forward with some significant probative evidence which makes it necessary to resolve the factual dispute at trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); White, 909 F.2d at 943-44; 60 Ivy Street, 822 F.2d at 1435. The moving party is entitled to summary judgment if the nonmoving party fails to make a sufficient showing on an essential element of the nonmoving party's case with respect to which the nonmoving party has the burden of proof. Celotex, 477 U.S. at 323; Collyer v. Darling, 98 F.3d 211, 220 (6th Cir. 1996).
The judge's function at the point of summary judgment is limited to determining whether sufficient evidence has been presented to make the issue of fact a proper jury question, and not to weigh the evidence, judge the credibility of witnesses, and determine the truth of the matter. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); 60 Ivy Street, 822 F.2d at 1435-36. The standard for summary judgment mirrors the standard for directed verdict. The Court must determine "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, 477 U.S. at 251-52; see also Lapeer County, Mich. v. Montgomery County, Ohio, 108 F.3d 74, 78 (6th Cir. 1997). There must be some probative evidence from which the jury could reasonably find for the nonmoving party. Anderson, 477 U.S. at 252; Bailey v. Floyd County Bd. of Educ., 106 F.3d 135, 140 (6th Cir. 1997). If the Court concludes that a fair-minded jury could not return a verdict in favor of the nonmoving party based on the evidence presented, it may enter a summary judgment. Anderson, 477 U.S. at 251-52; University of Cincinnati v. Arkwright Mut. Ins. Co., 51 F.3d 1277, 1280 (6th Cir. 1995); LaPointe v. UAW, Local 600, 8 F.3d 376, 378 (6th Cir. 1993).
II. Facts
Barbara Reynolds, a teacher, commenced employment with the Polk County School System in 1985. She was awarded permanent tenure status in the spring of that year. Since that time, she has actively promoted and sought to improve the school system through her membership with the Polk County Education Association ("PCEA"). Reynolds served as president of the PCEA from May 2000 through May 2001. The PCEA, a professional employees organization, is duly recognized under the Education Professionals Negotiations Act, T.C.A. §§ 49-5-601 — 49-5-613. It is one of two rival teachers' unions in Polk County, the other being the Professional Educators of Polk County ("PEPC").
During McReynolds' tenure as president of the PCEA, the practice of having teachers conduct classes during their planning periods without additional compensation was a hot topic. The PCEA took the position that this practice violated the terms of the negotiated contract between the PCEA and the Polk County Board of Education, while Dewey Esquinance, the president of the PEPC, favored teachers working during their planning periods. McReynolds and Esquinance wrote various letters to the Polk County News regarding their positions on this issue.
Defendant William Wade, the Director of the Polk County School System, did not become concerned about the public expression of McReynolds' and Esquinance's disagreement until students became involved by writing a letter to the editor. After a student defaced a recruitment poster for the PCEA, Wade instructed Frank Hammons, a Polk County principal, to help McReynolds and Esquinance negotiate a truce. Wade wanted peaceful co-operation among his staff. He was also concerned that the disagreement would harm the students' learning environment. Hammons made these concerns known to McReynolds and Esquinance.
Sometime thereafter, McReynolds filed a formal complaint opposing the practice of having teachers work during their planning periods. Wade, who considered the complaint, agreed that the PCEA's position had merit and consented to terminate the practice at the end of the 2000-2001 school year. The PCEA and Board of Education held a negotiation session on November 2, 2000, to arrange for the payment of additional compensation to teachers who agreed to teach during their planning periods after the 2000-2001 school year. McReynolds and Wade both attended that meeting.
To avoid the need of having teachers give up their planning periods, the PCEA suggested that additional teachers be hired. Board Member Gary Silvers explained that this idea was not viable because the schools lacked additional classrooms in which to house additional teachers. In response, McReynolds suggested that the Board consider adding portable classrooms, as had been done in the past.
On the following day, November 3, 2000, Ingrid Buehler from the Polk County News contacted McReynolds. Buehler had attended the negotiation session on November 2, and she wished to confirm McReynolds' statement regarding the lack of space to accommodate additional teachers. Approximately one week later, on November 8, 2000, the Polk County News published Buehler's story on the November 2 negotiations. The story, entitled Teacher Planning Time is an Issue Again, cited plaintiff as stating that "[w]e need more teachers and more portables."
On November 9, 2000, Wade received a "blistering" telephone call from a "prominent" board member. The board member was concerned about the statement made by McReynolds. He or she interpreted the comment as indicating that the Polk County schools were overcrowded. In addition, Wade interpreted this comment as being disparaging to Esquinance, who was rumored to have been acting improperly with funds from the store he operated in a vacant portable classroom.
On November 10, 2000, at Wade's direction, Frank Hammons, a Polk County school principal, notified McReynolds that Wade wished to meet with her. Upon arriving at Wade's office, McReynolds was met by Wade, Hammons, and Deborah Williams, the liaison between the PCEA and Polk County School Board. Wade asked McReynolds if she had seen Buehler's article. McReynolds reminded Wade that her comment was made in response to Silvers' assertion that the schools did not have enough room to accommodate additional teachers.
Wade informed McReynolds that he was holding her accountable as a representative of the PCEA. He then issued McReynolds a verbal reprimand for "misstatements to the press." McReynolds requested that this reprimand be documented in accordance with the contract between the PCEA and School Board. In a letter dated November 27, 2000, Wade memorialized the verbal reprimand for "[p]roviding incorrect information to local newspaper . . ." The letter also stated that if "this type of action should occur again, a written reprimand will be issued which could lead to the termination of your employment with the Polk County Board of Education."
III. Analysis
A. First Amendment Retaliation
The Sixth Circuit has adopted a three-part test to determine whether a plaintiff has been retaliated against for exercising her right to free speech: the plaintiff must demonstrate that (1) the speech is protected; (2) she suffered an adverse action likely to chill an ordinary person from continuing to engage in that activity; and (3) the speech was the motivating factor for the adverse employment action. Cockrel v. Shelby County Sch. Dist., ___ F.3d ___, No. 00-5259, slip op. at 14 (6th Cir. Nov. 9, 2001); Brandenburg v. Housing Auth. of Irvine, 253 F.3d 891, 897 (6th Cir. 2001); see also Mt. Healthy City Sch. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). Wade contends that McReynolds cannot establish that any of these factors exist.
The Court finds that McReynolds has sustained her burden of demonstrating that her speech was protected. To determine if a statement made by a public employee is protected by the First Amendment, the Court must evaluate (1) whether the speech addressed a matter of public concern; and (2) whether "the interest of the employee as a citizen, in commenting on matters of public concern, outweighs the employer's interest in promoting the efficiency of the public services it performs through its employees. Cockrel, No. 00-5259, slip. op. at 15; Brandenburg, 253 F.3d at 898-99. McReynolds has presented proof sufficient to establish all three elements of her First Amendment retaliation claim.
McReynolds' speech, which addressed the issue of adding portable classrooms to house additional teachers who could be hired to relieve current teachers of working during their planning periods, touchs on a matter of concern to the public. Speech implicates a matter of public concern when it involves "issues about which information is needed or appropriate to enable the members of society to make informed decisions . . ." Brandenburg v. Housing Auth. of Irvine, 253 F.3d 891, 898 (6th Cir. 2001); see also Connick v. Myers, 461 U.S. 138, 146 (1983) (speech relating to matter of political, social, other concern to community is matter of public concern). Wade's argument that her comment was merely an implicit attack on Esquinance is unsupported by any evidence other than Wade's belief.
Furthermore, as president of the PCEA, McReynolds had a strong interest in commenting on the matter of accommodating teachers. Wade has not demonstrated that her comment did or would negatively affect the learning environment to the extent that the Polk County School Systems' interest in preventing this speech outweighed McReynolds' interest in commenting on the matter. The mere facts that students wrote a letter to the editor commenting on the differences in opinions of McReynolds and Esquinance and that one student "defaced" a PCEA poster, does not demonstrate that Wade's concern about school environment outweighed McReynolds' interest in her speech. Despite language in defendant's reply brief, the record evidence does not show that the situation was "bleeding over into the classrooms." (Court File No. 32, p. 5).
The Court also finds that McReynolds has presented proof that she sustained an adverse action. McReynolds was given a verbal warning, which indicated that a further warning could result in her termination. Courts have consistently found that formal reprimands can constitute adverse actions intended to chill speech. Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999); Benningfield v. City of Houston, 157 F.3d 369, 376 (5th Cir. 1998); Rogers v. Miller, 57 F.3d 986, 992 (11th Cir. 1995); see also Thomsen v. Romeis, 198 F.3d 1022, 1027-28 (7th Cir. 2000) (reprimands that do not leave employee worse off not adverse actions). In the present case, McReynolds' reprimand came with the warning that engaging in further, similar conduct could result in her termination. This reprimand could "chill a person of ordinary firmness from continuing to engage in that activity." Cockrel, No. 00-5259, slip. op. at 27.
Finally, McReynolds has also presented proof that Wade's reprimand was motivated by her protected activity. In fact, Wade does not contend that anything other than McReynolds' speech provoked his reprimand. He argues only that McReynolds cannot demonstrate this element of her case because her speech is not protected by the First Amendment. (Court File No. 25, p. 15). The Court has already determined that McReynolds' speech, viewed in the light most favorable to her, and on its face, is protected. Moreover, the characterization of the speech related to the first element of a First Amendment retaliation claim, not to the causal element of her claim. McReynolds has sustained her summary judgment burden.
B. Qualified Immunity
In the alternative, Wade argues that McReynolds' claim must be dismissed because he is entitled to qualified immunity. The Supreme Court has explained, "governmental officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Atwater v. City of Lago Vista, 532 U.S. 318, 121 U.S. 1536, 1564 (2001) (quoting Harlow). When a defendant raises the issue of qualified immunity, the Court must make two determinations: (1) whether the plaintiff has alleged the violation of an actual constitutional right; and (2) whether that right was clearly established at the time of the violation. Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 2156-57 (2001); Conn v. Gabbert, 526 U.S. 286, 290 (1999). Under Sixth Circuit precedent, the Court must also determine whether the defendant's actions were objectively unreasonable in light of the clearly established constitutional right. Williams v. Mehra, 186 F.3d 685, 691 (6th Cir. 1999); Dickerson v. McClellan, 101 F.3d 1151, 1157-58 (6th Cir. 1996).
In this case, Wade cannot shield himself from liability with the doctrine of qualified immunity. The right of a public employee to speak out on matters of public concern is a clearly established constitutional right. See Cockrel v. Shelby County Sch. Dist., ___ F.3d ___, No. 00-5259, slip op. at 15 (6th Cir. Nov. 9, 2001); Brandenburg v. Housing Auth. of Irvine, 253 F.3d 891, 898-99 (6th Cir. 2001). The right was clearly established at the time Wade reprimanded McReynolds for speaking to the press about school district matters. Finally, in submitting proof regarding the elements of her retaliation claim, McReynolds has alleged facts sufficient to indicate that Wade's actions were objectively unreasonable in light of the clearly established constitutional right. Plaintiff's claim shall not be dismissed.