Bohannon v. Morton et al

Filing 52

MEMORANDUM OPINION AND ORDER directing that the Defendants' 23 Motion for Summary Judgment is GRANTED, as further set out. Signed by Honorable William Keith Watkins on 12/27/10. (scn, )

Bohannon v. Morton et al

Doc. 52

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION A N N E T T E BOHANNON, P la in tif f , v. JOSEPH MORTON, et al., D e f e n d a n ts. ) ) ) ) ) ) ) ) )

C A S E NO. 2:09-CV-701-WKW [WO]

M E M O R A N D U M OPINION AND ORDER P la in tif f Annette Bohannon brings this action against Defendants Joseph Morton, D e a n n Stone, and Sallye Longshore (collectively, "Defendants"), as individuals and in their o f f ic ia l capacities with the Alabama Department of Education, under 42 U.S.C. § 1983, a lle g in g violations of her First Amendment right to free speech. This cause is before the c o u rt on Defendants' Motion for Summary Judgment (Doc. # 23), which has been fully b rie f e d and is ready for disposition. Upon careful consideration of counsels' briefs, the re le v a n t law, and the record as a whole, the court finds that Defendants' motion is due to be g ra n te d . I. JURISDICTION AND VENUE S u b je c t matter jurisdiction is exercised pursuant to 28 U.S.C. §§ 1331 and 1343. The p a rtie s do not contest personal jurisdiction or venue, and the court finds adequate allegations in support of both.

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II. STANDARD OF REVIEW " S u m m a ry judgment is appropriate `if the pleadings, depositions, answers to in te rro g a to rie s , and admissions on file, together with the affidavits, if any, show there is no g e n u in e issue as to any material fact and that the moving party is entitled to judgment as a m a tte r of law.'" Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2 0 0 7 ) (per curiam); Fed. R. Civ. P. 56(c). The party moving for summary judgment "always b e a rs the initial responsibility of informing the district court of the basis for its motion, and id e n tif yin g those portions of [the record, including pleadings, discovery materials and a f f id a v its ], which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant may meet this burden by p re s e n tin g evidence indicating there is no dispute of material fact or by showing that the n o n m o v in g party has failed to present evidence in support of some element of its case on w h ic h it bears the ultimate burden of proof. Id. at 322-24. If the movant meets its evidentiary burden, the burden shifts to the nonmoving party to establish, with evidence beyond the pleadings, that a genuine issue material to each of its c la im s for relief exists. Fed. R. Civ. P. 56(e)(2); Celotex Corp., 477 U.S. at 324; Clark v. C o a ts & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). What is material is determined by th e substantive law applicable to the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 2 4 8 (1986). "The mere existence of some factual dispute will not defeat summary judgment u n le s s that factual dispute is material to an issue affecting the outcome of the case."

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McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003) (per curiam) (in te rn a l quotation marks and citation omitted). A genuine issue of material fact exists when the nonmoving party produces evidence th a t would allow a reasonable fact-finder to return a verdict in its favor. Greenberg, 498 F .3 d at 1263; Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001). However, if the evidence on which the nonmoving party relies "is merely colorable, or is not s ig n if ic a n tly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (c ita tio n s omitted). "A mere `scintilla' of evidence supporting the [nonmovant's] position w ill not suffice; there must be enough of a showing that the [trier of fact] could reasonably f in d for that party," Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990), and the n o n m o v in g party "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1 9 8 6 ). Conclusory allegations based on subjective beliefs are likewise insufficient to create a genuine issue of material fact and do not suffice to oppose a motion for summary judgment. Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997) (per curiam). Hence, when a p la in tif f fails to set forth specific facts supported by appropriate evidence sufficient to e s ta b lis h the existence of an element essential to his case and on which the plaintiff will bear th e burden of proof at trial, summary judgment is due to be granted in favor of the moving p a rty. Celotex Corp., 477 U.S. at 323.

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On summary judgment, the facts must be viewed in the light most favorable to the n o n m o v a n t. See Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002). Hence, "`facts, as a c c e p te d at the summary judgment stage of the proceedings, may not be the actual facts of th e case.'" Id. (quoting Priester v. City of Riviera Beach, 208 F.3d 919, 925 n.3 (11th Cir. 2 0 0 0 )). III. FACTUAL AND PROCEDURAL BACKGROUND T h is case arises out of the Alabama Department of Education's ("DOE") decision not to extend Dr. Bohannon's probationary employment as Director of the 21st Century C o m m u n ity Learning Center ("CCLC") grant program beyond June 30, 2009. (Doc. # 31, a t 3.) Dr. Bohannon claims that she was terminated as a result of exercising her right to free s p e e c h about alleged improprieties in the administration and awarding of CCLC grants by D e f e n d a n ts and other members of the DOE. The facts, construed in the light most favorable to Dr. Bohannon, follow. A. Dr. Bohannon's Employment with the DOE D r. Bohannon was employed with the DOE as an Education Specialist in the Federal P ro g ra m s section from June 16, 2008, until June 30, 2009. (Bohannon Dep. 11, 141.) Her c h a i n of command at the DOE is pertinent background information to the issues at hand. Defendant Longshore was Dr. Bohannon's direct supervisor, and had been employed with th e DOE as an Education Administrator since February 1, 2008. (Longshore Dep. 13, 23.) Ms. Longshore reported to Defendant Stone, who has served with the DOE since 1999 and

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been the Director of Federal Programs since June 2007. (Stone Dep. 10-11; Bice Dep. 11.) Dr. Stone reported to Mr. Feagin Johnson, who is a DOE Assistant Superintendent and is not a party to this litigation. (Bice Dep. 11.) Mr. Johnson reported to Dr. Bice, who is a DOE D e p u ty Superintendent, responsible for supervision of a myriad of DOE activities including f e d e ra l programs, which includes the CCLC grants. (Bice Dep. 10.) Dr. Bice is also not a p a rty to this litigation; however, his actions as Deputy Superintendent are material to this c a s e . As one of two DOE Deputy Superintendents, Dr. Bice reported directly to Defendant M o rto n , the State Superintendent of Education. (Morton Dep. 8-9; Bice Dep. 11.) Dr. Bohannon's employment during the initial one-year period was probationary. (Bohannon Dep. 11.) On January 5, 2009, in a meeting with Ms. Longshore and Dr. Stone, D r. Stone told Dr. Bohannon that she "had until June 30th to find another job." (Bohannon D e p . 140-41.) According to the DOE's Notice of Claim and Request for Separation In f o rm a tio n , "Employee was not granted permanent status at the end of her one-year p ro b a tio n a ry period (standard period for the classification of Education Specialist). She did n o t meet standards and also had one `unsatisfactory' work habit." (Morton Dep. Ex. 6.) On J a n u a ry 21, 2009, Dr. Morton sent Dr. Bohannon a letter stating that she was to be separated f ro m employment prior to the completion of the probationary period because her work was " n o t meeting the standards of the job." (Bohannon Dep. Ex.17, at 3.) The letter further p ro v id e d , "You received a rating of Partially Meets Standards on your final probationary

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report."1 (Bohannon Dep. Ex.17, at 3.) In the letter, Dr. Morton also explained that he had re c e iv e d "a recommendation from Dr. Deann Stone, Director of Federal Programs, that your e m p lo ym e n t as an Educational Specialist with the State [DOE] be terminated . . . ." (Bohannon Dep. Ex.17, at 3.) B. D r . Bohannon's Alleged Instances of Protected Speech D r. Bohannon's First Amendment claim arises from her speech raising concerns about th e administration of the CCLC grants and Defendants' alleged retaliation for that speech by n o t renewing her employment beyond the probationary period. (Compl. ¶¶ 20-23.) All facts s u rro u n d in g the incidents of speech in question are construed in the light most favorable to D r. Bohannon. 1. F ir st Instance of Alleged Protected Speech

O n August 14, 2008, Dr. Bohannon was called to a meeting with Ms. Longshore and D r. Stone, her supervisors, to discuss the application of Better Basics, Incorporated ("Better B a sic s " ) for a CCLC grant. (Bohannon Dep. 35-36.) Ms. Longshore called the meeting by a n e-mail message that morning, stating "[w]e need to make a determination about [the Better B a sic s ] grant - Board and Supt pressure! I will meet you in Commons area." (Stone Dep. E x . 10, at 2.) Dr. Bohannon had concerns about the Better Basics application because it s c o re d a 69 in the review process conducted by the CCLC grant readers. (Bohannon Dep.

Defendant Morton contends that he did not sign the letter and that Dr. Bohannon was not terminated, but rather that she was a probationary employee who was not extended permanent status. (Morton Dep. 90-93.) Because the parties use the terms interchangeably and the effect of a termination or decision not to retain is the same at this stage, the court will cite the parties' use of both terms.

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27, 29.) In general, the cutoff score for funding CCLC applications was 90, and DOE f u n d in g of applications below that level was an exception.2 (Bohannon Dep. 27.) D u rin g the meeting about the Better Basics grant in the common area, Dr. Stone and M s . Longshore "were questioning and looking at Better Basics' application, [and] they were d is c u s sin g the particulars of the application." (Bohannon Dep. 35.) Dr. Bohannon explained h e r thoughts about the meeting: "I didn't know why we were at the table, because we had a lre a d y looked at [the Better Basics'] score and [it] did not qualify." (Bohannon Dep. 35.) Ms. Longshore, however, said that the Better Basics grant was "going to be funded," and " D r. [Eddie] Johnson and the state board member, Dr. Ethel Hall, wanted it funded and that th e y were powerful people."3 (Bohannon Dep. 35-36.) Dr. Bohannon replied "[t]hat it w a s n 't right. [S]ome other grantee that qualified would be bumped and lose their grant. It w a s unethical and unfair." (Bohannon Dep. 36.) In response, either Dr. Stone or Ms. L o n g s h o re told Dr. Bohannon that "it didn't matter what [her] opinion was, that it was [her] jo b ," and Dr. Bohannon was "also reminded that [she] was on probation . . . ." (Bohannon

Dr. Bohannon does not point to a written policy concerning this cutoff number, but did produce evidence that Dr. Stone spoke of this number as a cutoff and that it was an exception for a program to receive funding after scoring below this level. (Bohannon Dep. 30-32.) According to Judy Manning, an Educational Consultant in the Federal Programs department of the DOE, the state had "never skipped grants before [to fund a grant below 90]," and to fund a score of 69 was "going to cause somebody a lot of problems unless there [was] a valid reason for this." (Manning Dep. 33-35.) Dr. Eddie Johnson is the DOE's other Deputy Superintendent, not to be confused with Mr. Feagin Johnson, DOE Assistant Superintendent, mentioned supra. Dr. Eddie Johnson is not a party to this litigation.
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Dep. 36.) Finally, Dr. Bohannon asked multiple times "if [she] could be excused from o v e rs e e in g the process for that particular grant." (Bohannon Dep. 36.) In explaining her motivation for asking to be excused from the grant, Dr. Bohannon s a id : my primary concern was that someone was denied their money. It's public m o n e y, and they did not receive it. And I felt like I took a great risk in s p e a k in g out, but I also believe that it was my responsibility to do that. I'm a ta x p a ye r just like everybody else, and this is taxpayer's dollars. And nothing w a s ever said to lead me to believe that this was not a ­ pressure decision to s c o re a disqualified ­ I mean, a grantee that didn't qualify based on the scoring c r ite r ia . (B o h a n n o n Dep. 94.) Dr. Bohannon testified at her deposition that "[she] had professional c o n c e rn s , but [she] also had personal concerns, which is why [she] spoke out." (Bohannon D e p . 93.) In addition, Better Basics' grant application did not comply with the DOE's p ro c e d u re s requiring inclusion of a budget with the application.4 (Doc. # 31, at 13.) N o tw ith s ta n d in g Dr. Bohannon's complaints and her request to be excused from overseeing th e Better Basics application, the Better Basics grant was funded by the DOE. (Bohannon D e p . 41.) 2. S e c o n d Instance of Alleged Protected Speech

A f te r the August 14, 2008 meeting with Ms. Longshore and Dr. Stone, Dr. Bohannon s p o k e with Edmund Moore about the Better Basics grant. (Bohannon Dep. 37.) Edmund M o o re is an Education Administrator in the Federal Programs section of the DOE, on the
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Whether the Better Basics grant actually complied with DOE funding policy and procedures is not at issue in this motion for summary judgment.

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same level as Ms. Longshore, but outside of Dr. Bohannon's chain of command regarding CCLC grants. (Bohannon Dep. 56.) Mr. Moore is not a party to this lawsuit. Following her m e e tin g with Ms. Longshore and Dr. Stone, Dr. Bohannon encountered Mr. Moore in their w o rk area and told him, "I was upset about Better Basics being funded. . . . I told him about m y ethical concerns. I told him that I asked to be excused. I asked him could he help me." (Bohannon Dep. 37.) In response, Mr. Moore told Dr. Bohannon "that if Dr. Johnson and D r. Hall and other state board members were going to tell us who to give the money to, then w e shouldn't have competitive grants. . . . And he advised [Dr. Bohannon] that it was p ro b a b ly best for [her] just to not say anything else about it." (Bohannon Dep. 37.) Dr. B o h a n n o n conceded in her deposition, however, that her allegedly protected speech to Mr. M o o re did not play a role in the DOE's decision not to retain her beyond her probationary p e rio d . (Bohannon Dep. 220-22.) 3. T h ir d Instance of Alleged Protected Speech

In either August or September 2008, Dr. Bohannon also spoke to Mr. Moore and Beth T h o m p s o n , during a working lunch, about her concerns with the awarding of a CCLC grant to Better Basics. (Bohannon Dep. 38.) Ms. Thompson is an Education Specialist in the A la b a m a DOE and oversees the Homeless Education competitive grant program. (Thompson D e p . 11.) Ms. Thompson was a co-worker of Dr. Bohannon, but was not in her chain of c o m m a n d , nor is she a party in this lawsuit. (Thompson Dep. 13.) At the working lunch, Dr. B o h a n n o n expressed her concerns about the Better Basics grant and sought "guidance from

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Edmund [Moore] and ask[ed] Beth [Thompson] her opinion on how [she] should handle it." (Bohannon Dep. 43.) During that lunch, Ms. Thompson recalled that Mr. Moore made the c o m m e n t, "[I]f Dr. Johnson and State Board members were going to make the decision as t o these competitive grants, then we should not call them competitive grants, and just let th e m decide who is going to get them." (Thompson Dep. 68.) In addition, Ms. Thompson re p lie d , "[T]hat would make [Dr. Bohannon's] job a whole lot easier if someone else decided th a t." (Thompson Dep. 68.) Dr. Bohannon conceded in her deposition, however, that her a lle g e d ly protected speech to Mr. Moore and Ms. Thompson played no role in the DOE's d e c is io n not to retain her past her probationary period. (Bohannon Dep. 221.) 4. F o u r th Instance of Alleged Protected Speech

In February and March 2009, Dr. Bohannon also voiced her concerns about the a d m in is tra tio n of the CCLC grant program to Dr. Bice, one of two DOE Deputy S u p e rin te n d e n ts . (Bohannon Dep. 38-39; Bice Dep. 9-10.) In one of those meetings, Dr. B o h a n n o n laid out her concerns to Dr. Bice: I told him about the scoring, about the meeting and my speaking about that, a n d the response to my speaking out about it and shared with him what the in d ic a tio n was, that it was pressure from a superintendent, state s u p e rin te n d e n t, and a state board member, and there were never any reasons g iv e n other than that, and that it was evidence that Sallye [Longshore] and D e a n n [Stone] were upset. And I told him I also talked to Edmund [Moore] a n d Edmund advised me it was best just not to say anything else. And I told h im Beth Thompson knew about it and Sherry Coleman knew about it. I told h im that the Better Basics was allowed to fax their budget to Dr. Johnson's o f f ic e . And Dr. Bice asked me who was involved, and I told him that. (Bohannon Dep. 39.) Dr. Bice responded to her concerns by saying that "he was going to go 10

back to Dr. Morton." (Bohannon Dep. 39.) Dr. Bohannon's complaint to Dr. Bice came at le a s t a month after she was informed that she would not be granted merit status. (Bohannon D e p . 149.) Dr. Bohannon concedes that she did not discuss her concerns about Better Basics w ith Dr. Bice or Dr. Morton prior to January 5, 2009. (Bohannon Dep. 149.) Dr. Bice had n o knowledge of the dispute concerning the Better Basics grant prior to the non-continuation o f Dr. Bohannon's employment in January 2009. (Bice Dep. 78.) Finally, Dr. Bohannon c o n c e d e d in her deposition that her allegedly protected speech to Dr. Bice played no role in th e DOE's decision, made prior to this alleged speech, not to retain her past her probationary p e rio d . (Bohannon Dep. 149, 222.) 5. F ifth Instance of Alleged Protected Speech

Dr. Bohannon's final instance of alleged protected speech involved her misgivings a b o u t Dr. Stone's changing of the Marion County CCLC grant score sheet on October 3, 2 0 0 8 . (Bohannon Dep. 222.) Dr. Stone called Dr. Bohannon into her office, told her to bring b a c k a blank score sheet, and told her to sit down. (Bohannon Dep. 43-44.) Dr. Bohannon th e n watched as "[Dr. Stone] changed the scores, the individual scores, to where they would ta lly a 90, and she tallied the score sheet to indicate a 90." (Bohannon Dep. 43-46.) In re s p o n s e to Dr. Stone's act of changing the Marion County score sheet, Dr. Bohannon "asked n o t to be involved in the Marion County" CCLC grant. (Bohannon Dep. 222.) Dr.

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Bohannon also spoke to Beth Thompson and Sherry Coleman concerning the changed score s h e e t.5 (Bohannon Dep. 48.) D r. Bohannon called Beth Thompson, her friend and co-worker, on her cell phone w h ile driving home from work on the evening of October 3, 2008. (Bohannon Dep. 48-49; T h o m p s o n Dep. 107.) Dr. Bohannon was in tears, and Ms. Thompson asked, "[T]hey c h a n g e d a score sheet didn't they?" (Bohannon Dep. 49.) Dr. Bohannon told Ms. Thompson th a t she "was afraid to answer the question because I didn't want to get her involved," but th e n she "told her what happened." (Bohannon Dep. 49.) At her deposition, Dr. Bohannon e x p la in e d her motivation for calling Ms. Thompson: "I thought that Beth [Thompson] might h a v e some insight as to why they did what they did. And I did ask Beth [Thompson] her o p i n i o n on how to handle the situation, because I was more scared then than I was in

During Dr. Bohannon's deposition on October 28, 2009, Defendants' counsel asked Dr. Bohannon, "[S]o you spoke to Beth Thompson and Sherry Coleman. Is there anyone else you claim to have spoken to about the Marion County score sheet?" (Bohannon Dep. 48.) Dr. Bohannon replied, "No." (Bohannon Dep. 48.) Dr. Bohannon was again asked toward the close of her deposition if there were any other instances, besides the August 14, 2008 speech and the October 3, 2008 speech that led to her retaliation, to which she replied, "Not that I recall." (Bohannon Dep. 222.) In response to Defendants' motion for summary judgment filed on July 15, 2010, however, Dr. Bohannon's counsel included a new affidavit from Dr. Bohannon, dated July 14, 2010, claiming that she had also spoken to three other individuals about her concerns (Doc. # 31 Ex. 3, ¶ 9). As to the contradiction between her deposition and her new affidavit, she explained, "[W]hen I was asked during my deposition who I spoke out to on these issues, I thought the attorney meant simply in and around the office." (Doc. # 31 Ex. 3, ¶ 8.) The court need not decide the sham affidavit issue raised by Defendants, however, because Dr. Bohannon's affidavit was filed out-of-time, nearly two months after the May 28, 2010 discovery deadline. (Doc. # 14, ¶ 7.) "Absent an affirmative showing by the non-moving party of excusable neglect according to Fed. R. Civ. P. 6(b), a court does not abuse its discretion in refusing to accept outof-time affidavits." Clinkscales v. Chevron U.S.A., Inc., 831 F.2d 1565, 1568 (11th Cir. 1987) (internal citations omitted). Dr. Bohannon did not file a Rule 6(b) motion to extend time to file the out-of-time affidavit, and there has been no showing of excusable neglect. The July 14, 2010 affidavit will not be considered in ruling on Defendants' motion for summary judgment.

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August." (Bohannon Dep. 51.) D r. Bohannon also spoke with her co-worker, Ms. Coleman, about the alteration of th e Marion County score sheet. (Bohannon Dep. 50.) After Ms. Coleman asked about the O c to b e r 3, 2008 meeting with Dr. Stone, Dr. Bohannon explained, "I just said that Dr. Stone w a s looking at readers' comments and responding to one of the superintendents. I didn't e x p la in any detail to her." (Bohannon Dep. 50.) Dr. Bohannon was "very vague" with Ms. C o le m a n and did not explain the situation to her "because Sallye Longshore had informed [ D r. Bohannon] early in [her] employment that Sherry [Coleman] documents everybody and e v e ryth in g , to be very cautious of Sherry." (Bohannon Dep. 47-48.) F in a lly, Dr. Bohannon mentioned to Dr. Bice that there "was another situation" b e yo n d the issues surrounding the Better Basics grant, but that Dr. Bice respected "[her] re q u e s t not to go into that because he felt like Better Basics was [the] one thing he wanted to deal with at [that] time." (Bohannon Dep. 50.) Therefore, Dr. Bohannon did not directly d is c u s s the Marion County score sheet issue with Dr. Bice. (Bohannon Dep. 50.) Like the B e tte r Basics grant issue mentioned above, the conversation with Dr. Bice tangentially to u c h in g on the Marion County score sheet did not take place until February 2009, after Dr. B o h a n n o n had already been denied merit status. (Bohannon Dep. 38, 50.) C. S c o p e of Dr. Bohannon's Employment Duties O n November 13, 2008, Dr. Bohannon signed her pre-appraisal form, which listed the

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following employment responsibilities that are pertinent to this case.6 1. C o m p o s e s letters, memos, proposals, applications, contracts, and formal re p o rts so that accurate information is provided in accordance with federal and s ta te policies in a timely manner with no valid complaint about accuracy. P ro v id e s guidance and technical assistance and monitoring with LEAs [local e d u c a tio n agencies] to ensure LEAs are in compliance with federal and state g u id e lin e s in accordance with established criteria as evidenced by feedback, d e s k reviews, quarterly technical assistance meetings, and observation of s u p e rv is o r. P ro v id e s technical assistance to LEAs which supports instructional im p ro v e m e n ts so that areas of need are identified and requests for assistance a n d information are met as evidenced by tracking systems, notes, feedback and o b s e rv a tio n of supervisor. R e v ie w s material and documents so that designated documents are determined a c c u ra te and in compliance according to federal and state policies with no v a lid complaint and as evidence by reviews, feedback, and observation of s u p e rv is o r. P la n s , coordinates, and/or conducts workshops and meetings so that attendees re c e iv e current, comprehensive information regarding federal programs with n o valid complaint about lack of information. U se s information acquired during workshops, inservice training, and meetings s o that the services provided by the Federal Programs Section are accurate, c u rre n t and comprehensive. U tiliz e s office software programs in order to increase efficiency in c o rresp o n d ence, communication, and meeting deadlines so that department and d iv is io n /se c tio n goals are met as observed by the supervisor. P ro v id e s leadership in the coordination of the 21st Century Learning C o m m u n ity program and Dependent Care Development Grant programs and w o rk s to provide on-going assistance to the sub-grantees.

2.

3.

4.

5.

6.

7.

8.

(B o h a n n o n Dep. Ex. 16, at 1.) Dr. Bohannon said that this list was not accurate, because
The pre-appraisal form is the DOE's employment review tool used by supervisors for appraising employee performance. (Bohannon Dep. Ex. 7, at 16-17.) The DOE Policy Manual for Employees notes that "[i]f the employee disagrees with a matter reflected in the performance appraisal, the employee may attach comments regarding the portion of the appraisal with which the employee disagrees. All comments must be provided to the rating supervisor and the SDE Personnel Manager within five business days from the date of the discussion of the performance appraisal and signature thereof." (Bohannon Dep. Ex. 7, at 17.) There is no evidence that Dr. Bohannon filed any comments to the pre-appraisal form.
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"these are not all of the things that I did, nor did I do all of the things that are on here as a re q u ire m e n t of my job." (Bohannon Dep. 16.) With the exception of conversations with Dr. B ic e in February and March 2009, Dr. Bohannon's alleged instances of protected speech o c c u rre d before she was given her pre-appraisal form and list of roles and responsibilities on N o v e m b e r 13, 2008. Though the pre-appraisal form, with roles and responsibilities, was provided to Dr. B o h a n n o n on November 13, 2008, Dr. Bohannon actually began her employment with the D O E on July 16, 2008. (Bohannon Dep. Ex. 16; Bohannon Dep. Ex 17.) From July 16, 2 0 0 8 , until November 13, 2008, Dr. Bohannon did not discuss her roles and responsibilities w ith her supervisors in her work with the DOE. (Bohannon Dep. 19.) Because Dr. B o h a n n o n had not yet received formal acknowledgment of her roles and responsibilities, the c o u r t draws the facts surrounding Dr. Bohannon's official duties from her admissions re la tin g to this period. D u rin g her deposition, Dr. Bohannon acknowledged that she understood that her roles a n d responsibilities concerning the CCLC grants were "to work with [Dr.] Stone to review th e applications . . . [for] new grantees as well as renewals," to "work[] on the Better Basics i s su e ," to send out letters to the new grantees, and to transition the CCLC from the paper a p p l i c a tio n to the electronic grants application process. (Bohannon Dep. 21-24.) Dr.

B o h a n n o n also acknowledged that her duties included providing technical assistance to g ra n te e s and assisting Dr. Stone in rank-ordering the grantees, but did not include scoring the

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CCLC grant applications. (Bohannon Dep. 24-25.) By asking to be removed from managing t h e CCLC grants on August 14, 2008, Dr. Bohannon also admitted that her job duties in c lu d e d managing and overseeing those grants. (Bohannon Dep. 36.) Dr. Bohannon s p e c if ic a lly asked her supervisors, Dr. Stone and Ms. Longshore, on August 14, 2008, "to b e excused from participating in the activity of managing the [Better Basics] grant" and also " if [she] could be excused from overseeing the process for [the Better Basics] grant." (Bohannon Dep. 36.) Furthermore, in response to a question from Defendants' counsel about th e decision to fund the Better Basics project in August 2008, Dr. Bohannon admitted that e n s u rin g compliance with applicable rules and regulations for the CCLC grants was also a p a rt of her job duties. (Bohannon Dep. 41.) Finally, she admitted that it was her

re s p o n s ib ility as a professional to do what she could to ensure the integrity of the program. (Bohannon Dep. 62.) D. D e fe n d a n ts ' Decision to Terminate Dr. Bohannon In her "Statement of Disputed Facts," Dr. Bohannon draws two conclusions c o n c e rn in g her termination: (1) "Dr. Bohannon's Appraisal Process was a Concocted Paper T ra il," and (2) "Conspiracy to Terminate Came from Defendants Morton, Stone and L o n g s h o re ." (Doc. # 31, at 21-25.)7
Facts, not Dr. Bohannon's conclusory arguments and subjective beliefs, have been drawn in the light most favorable to Dr. Bohannon. Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997) (per curiam) (Conclusory allegations based on subjective beliefs are likewise insufficient to create a genuine issue of material fact and do not suffice to oppose a motion for summary judgment). In her opposition brief, Dr. Bohannon says she disputes many of the facts concerning her termination, but does not cite contrary evidence for these disputes. (Doc. # 31, at 21-25.) (See Doc # 31, at ¶ 103: "Dr. Bohannon disputes that Dr. Bice gave a directive to Defendant Stone not to retain Dr. Bohannon," ¶ 104: "[Dr.]
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The events and timeline leading up to the DOE's decision not to renew Dr. B o h a n n o n 's employment beyond the probationary period are material to Dr. Bohannon's a lle g a tio n s of retaliation. Dr. Bohannon's employment during the initial one-year period was p ro b a tio n a ry. (Bohannon Dep. 11; Bohannon Dep. Ex. 7, at 16.) On July 16, 2008, Dr. B o h a n n o n began work with the DOE. (Bohannon Dep. 11.) Dr. Bohannon first noticed that th e re were concerns about her work performance when she received her pre-appraisal e m p lo ym e n t review by Ms. Longshore on November 13, 2008. (Longshore Dep. 26; Doc. # 31, ¶ 95.) The pre-appraisal employment review occurred in the fourth month of her e m p lo ym en t with the DOE, not "immediately upon the beginning of the employee's appraisal c yc le ," as directed by the State of Alabama Performance Appraisal Manual. (Longshore D e p . 23, Pl. Ex. 17, at 21.) At the pre-appraisal employment review, Ms. Longshore advised D r. Bohannon about her concerns with Dr. Bohannon's work and "[her] attitude and [her] p ro f e ss io n a l behavior." (Bohannon Dep. 138.) Specifically, Dr. Bohannon said that Ms. L o n g s h o re advised her that these concerns had arisen because she "aired too much dirty la u n d ry about the list [of CCLC grantees that was published in September 2008]" during her tra in in g session with the independent grant consultants on October 3, 2008. (Bohannon Dep. 1 3 8 .) Dr. Bohannon did not recall any discussion of the Better Basics grant or the alteration

Bohannon disputes that Dr. Bice made the decision to terminate her," ¶ 113: "[Dr.]Bohannon disputes that Dr. Morton's approval [of her termination] was perfunctory," ¶ 114 "[Dr.] Bohannon disputes that Dr. Bice directed Defendant Stone not to retain Dr. Bohannon," ¶ 115 "[Dr.] Bohannon disputes that Dr. Bice did not know about the Better Basics issue before the decision to terminate Dr. Bohannon was decided," and ¶ 119 "[Dr.] Bohannon disputes that Dr. Bice made the decision not to retain her past probationary status.")

17

of the Marion County score sheet during the consultant training in which she aired "dirty la u n d ry." (Bohannon Dep. 181-82.) In between Dr. Bohannon's pre-appraisal review and her January 5, 2009 mida p p ra isa l review, Dr. Bohannon's work performance came to the attention of Dr. Morton. (Morton Dep. 33-34.) The chain of events leading to Dr. Morton's attention on her work p e rf o rm a n c e are as follows. In late October, Dr. Bohannon conducted a training session on u s in g the "e-Gap" computer system for recipients of the new CCLC grants in Columbiana, A la b a m a . (Bohannon Dep. 152-54.) During that session, Dr. Bohannon had technical d if f ic u ltie s accessing the e-Gap system online, and ultimately had to use the Elba City c o o rd in a to r's log-in to access a different version of the e-Gap system. (Bohannon Dep. 154.) Dr. Bohannon was never able to log on to the e-Gap system that she was assigned to teach th e attendees. (Bohannon Dep. 155.) Dr. Bohannon described her presentation that day: " [ T ]h e re were some technical difficulties with my presentation because I had only been told I needed to use the test website address and was not told until I arrived in Tuscaloosa that I h a d to be on the VPN. And I made multiple attempts to access e-Gap. We found additional g litc h e s ." (Bohannon Dep. 153-54.) Additionally, Dr. Bohannon explained that "Sallye

[ L o n g s h o re ] was not there. She was only there on Monday. She had already gone to T u sc a lo o s a , and . . . Sherry [Coleman] was not there. There was no one there at the training s ite to assist with what was going on." (Bohannon Dep. 154-55.)

18

In early November 2008, Dr. Bohannon received a letter from Dr. Morton stating " G re a t Work!" (Morton Dep. Ex. 4, at 1.) Dr. Morton's note cited a November 4, 2008

le tte r from Hal R. Horton, the Principal of Highland Park Elementary School, who had a tte n d e d the Columbiana training session and who "was very impressed with the leadership, e s p e c ia lly that of Annette Bohannon who did a wonderful job keeping things going even th ro u g h technical difficulties." (Morton Dep. Ex. 4, at 1-2.) M r. Horton's praise, however, was not the only feedback that Dr. Morton received a b o u t the Columbiana training session. Sometime between the Columbiana training session a n d mid-November 2008, Dr. Morton's wife shared with her husband concerns that she had re c e iv e d about Dr. Bohannon's conduct at the Columbiana training session. (Morton Dep. 3 5 ; Bice Dep. 18.) Dr. Morton's wife is a director of a non-profit organization in Sylacauga, A la b a m a , and some of her employees attended the Columbiana training session. (Morton D e p . 35.) These employees mentioned to Dr. Morton's wife that "it was not a good meeting, th a t it appeared that [Dr.] Bohannon was ill prepared and [that she] did not deliver good s e rv ic e ." (Morton Dep. 36.) In response to Dr. Morton's wife's complaint, in midN o v e m b e r, Dr. Morton asked Dr. Bice to "look into it" and "asked [him] to inquire about [ D r.] Bohannon and her status with the department to check just to see, if [the meeting] did g o poorly[;] we don't need to have an [extension] of employment offered to people [who] d o a poor job." (Bice Dep. 18; Morton Dep. 34, 39.) Ultimately, Dr. Morton does not re m e m b e r the sequence in which he received the positive feedback from Mr. Horton and the

19

negative feedback from his wife about Dr. Bohannon's conduct at the Columbiana training s e s s io n . (Morton Dep. 42.) D r. Bice remembered meeting with Dr. Morton about the complaint concerning Dr. B o h a n n o n . (Bice Dep. 18.) Dr. Morton told Dr. Bice that "there had been lack of clarity, la c k of successfully communicating the message in a meeting out in the state for which [Dr.] B o h a n n o n was responsible." (Bice Dep. 18.) Dr. Morton did not tell Dr. Bice that the c o m p la in t had come from his wife, or his wife's employees. (Bice Dep. 19, 118.) Dr. Bice a c k n o w le d g e d that Dr. Morton was the sole source of his directive to investigate Dr. B o h a n n o n , and that he did not discuss the Columbiana training session with Dr. Stone and M s . Longshore, or any other attendees at the training session. (Bice Dep. 21.) His only other f e e d b a c k on the Columbiana training session came from "information from the field in d ic a tin g that . . . the feedback was less than positive." (Bice Dep. 22.) Dr. Bice concluded that Dr. Bohannon "was not a good fit for the Department," b e c a u s e of her "inability to communicate the message at the Columbiana meeting e f f e c t i v e l y. " (Bice Dep. 51.) Dr. Bice also considered "prior knowledge of [Dr.

B o h a n n o n 's ] work behavior" that he had gathered from others in the profession during her e a rlie r application for employment with the Alexander City school system while he was its s u p e rin te n d e n t. (Bice Dep. 52.) Dr. Bice described this "knowledge" as "[j]ust generalities o f not being necessarily a committed employee." (Bice Dep. 52-53.) In reference to his d is c u s sio n with Dr. Morton about Dr. Bohannon, Dr. Bice said that "it was [his] decision,

20

not [Dr. Morton's] decision," to terminate Dr. Bohannon. (Bice Dep. 125.) Dr. Bice told Dr. Stone and Ms. Longshore not to grant merit status to Dr. Bohannon. (Bice Dep. 119; Stone Dep. 112-13; Longshore Dep. 111.) Dr. Bice said he made the d e c is io n himself and did not terminate her on the advice or recommendation of anybody else. (Bice Dep. 110, 116.) In deciding to terminate Dr. Bohannon rather than to implement a f o rm of progressive discipline, Dr. Bice said, "In my tenure, I've made [the decision to te rm in a te ,] a choice that I made, not only her case, but others, that as a spokesman for the D e p a rtm e n t, I can't afford a second mistake." (Bice Dep. 117.) To carry out his directive to terminate Dr. Bohannon, Dr. Bice went to Dr. Stone's office on December 16, 2008, and to ld her "that he had received negative comments about Dr. Bohannon, and to not . . . extend h e r merit status." (Stone Dep. 114.) Dr. Stone asked Dr. Bice from whom he had received n e g a tiv e comments, to which Dr. Bice responded, "That's not important." (Stone Dep. 114.) After Dr. Bice's directive, Ms. Longshore and Dr. Stone reduced to writing their c o n c e rn s about Dr. Bohannon's work performance in Dr. Bohannon's employee performance m id -a p p ra is a l on January 5, 2009. (Longshore Dep. 98, Bohannon Dep. Ex. 16, at 2.) It was a t this employee performance mid-appraisal on January 5, 2009, that Ms. Longshore "read to [Dr. Bohannon] the items on the list, [and] told [Dr. Bohannon] that [she] was not a good f it." (Bohannon Dep. 140.) Those items indicated that Dr. Bohannon needed to "improve d o c u m e n ta tio n and ongoing supervision of contractual employees; improve on providing tim e ly communication with supervisor regarding specific tasks; be[] more attentive to

21

providing support to systems assigned in her region; and ensur[e] timely review and approval o f [] CCLC grants." (Longshore Dep. 98-102; Bohannon Dep. Ex. 16, at 2). Dr. Stone then in f o rm e d Dr. Bohannon "that she had until June 30th to find another job." (Bohannon Dep. 1 4 1 .) On January 9, 2009, Dr. Stone submitted a memorandum to Gail Blankenship, DOE p e rs o n n e l director, and Dr. Morton and Dr. Bice, among others, stating, "Please be advised th a t Dr. Annette P. Bohannon will be separated from the [DOE] at the end of her P ro b a tio n a ry period effective June 30, 2009." The memorandum stated: The reasons for separation include, but are not limited to: · im p ro p e r documentation and on-going supervision of contractual e m p l o ye e s ; · u n tim e ly communication with supervisor regarding specific tasks; · la c k of support and timely provision of technical support to systems in a s sig n e d regions; · in a tte n tio n to timely approval of [CCLC] grants; and · n o t being sufficiently prepared for training sessions and meetings with g ra n te e s and district personnel. (M o rto n Dep. Ex. 6, at 4.) O n January 16, 2009, Dr. Bohannon signed her final appraisal form in Ms. L o n g s h o re 's presence. (Bohannon Dep. 141; Bohannon Dep. Ex. 17, at 5.) The final a p p ra isa l form described her performance as "Partially Meets Standard," and Ms. Longshore a w a rd e d her a responsibility score of 16.25 out of a total possible 40 points on her duties and re s p o n s ib ilitie s with the DOE. (Bohannon Dep. Ex. 17, at 5-6.) The form was signed by Dr. S to n e on January 20, 2009, and by Dr. Morton on January 22, 2009.

22

On January 21, 2009, the DOE mailed a letter to Dr. Bohannon, signed by Dr. Morton, s ta tin g that she would be terminated at the end of the probationary period on June 30, 2009, b e c a u s e her work was "not meeting the standards of the job."8 (Bohannon Dep. Ex. 17, at 3 .) In the letter, Dr. Morton explained that he had received "a recommendation from Dr. D e a n n Stone, Director of Federal Programs, that [her] employment as an Educational S p e c ia lis t with the State [DOE] be terminated . . . ."9 (Bohannon Dep. Ex.17, at 3.) The le tte r came from Dr. Morton's office, because as the DOE Superintendent, "he is the only p e rs o n who can terminate an employee." (Bice Dep. 119.) Neither Dr. Stone's January 9, 2 0 0 9 memorandum to Dr. Morton, nor Dr. Morton's January 21, 2009 termination letter m e n tio n e d Dr. Bice's directive to Dr. Stone to terminate Dr. Bohannon. (Morton Dep. Ex. 6 , at 3-4.) Dr. Bohannon relies on Dr. Morton's January, 21, 2009 letter, that letter's re f e re n c e to Dr. Stone's recommendation, and the lack of mention of Dr. Bice in the a f o re m e n tio n e d documents as evidence that the decision to terminate her was made by D e f e n d a n ts collectively and not by Dr. Bice individually. (Doc. # 31, ¶¶ 95-131.) The court a s s u m e s , without deciding, that the decision to terminate Dr. Bohannon was in fact c o lle c tiv e ly made by Ms. Longshore, Dr. Stone, and Dr. Morton, and not solely by Dr. Bice. For purposes of this opinion, that fact is construed in Dr. Bohannon's favor.10
8

Dr. Morton contends that he did not sign the letter. (Morton Dep. 92.)

Ultimately, Dr. Bohannon did not receive this letter because the mailing address was wrong. (Bohannon Dep. 145.) Both parties focus extensively on the issue of who terminated Dr. Bohannon. Ultimately, determination of this issue is not necessary to resolution of the case.
10

9

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On January 30, 2009, Dr. Bohannon submitted a rebuttal to Dr. Morton and Dr. Bice e x p la in in g her concerns with her January 5, 2009 mid-appraisal and her January 16, 2009 f in a l appraisal, as well as the circumstances surrounding her performance. (Bohannon Dep. E x . 18.) Dr. Bohannon submitted this rebuttal on the advice of Dr. Bice. (Bohannon Dep. 1 4 7 -4 8 .) Dr. Bohannon's rebuttal made no mention of her instances of alleged protected s p e e c h . (Bohannon Dep. Ex. 18.) Dr. Bice received the rebuttal, and met with Dr. Bohannon m u ltip le times in February and March 2009, to discuss her options and a possible transfer w ith in Dr. Bice's department. (Bohannon Dep. 148; Bice Dep. 107-08.) Despite these m e e tin g s , Dr. Bohannon was not offered a transfer, and her employment with the DOE ended o n June 30, 2009. (Bohannon Dep. Ex. 17, at 1.) I V . DISCUSSION D e f e n d a n ts contend that summary judgment is proper because Dr. Bohannon, a public e m p lo ye e , cannot establish a prima facie First Amendment retaliation claim.1 1 Specifically, D e f e n d a n ts contend that as a matter of law, Dr. Bohannon did not speak as a citizen on a m a tte r of public concern, and that there is no genuine issue of material fact that Dr. B o h a n n o n 's speech did not play a substantial or motivating role in Defendants' decision to

Dr. Bohannon has waived her Fourteenth Amendment due process claim (Compl. 4-5), by failing to preserve the claim in the pretrial order. (Doc. # 51.) Fed. R. Civ. P. 16(e). See Morro v. City of Birmingham, 117 F.3d 508, 515 (11th Cir. 1997) ("We have not hesitated to back up district courts when they put steel behind the terms of pretrial orders and hold parties to them. We held in Hodges v. United States, 597 F.3d 1014, 1017 (5th Cir. 1979), that a defendant can waive a potential defense by failing to ensure that the issue is clearly preserved in the pretrial order."). Dr. Bohannon did not request the Fourteenth Amendment claim be included in the pretrial order. (Doc. # 51, at 2-5.) In fact, other than a brief mention of the Fourteenth Amendment claim in the complaint, it has not been cited, discussed, or argued at any other time in these proceedings.

11

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terminate her employment. For the following reasons, Defendants' arguments are persuasive. A public employee's claim that she was discharged in alleged retaliation for exercise o f her First Amendment rights is analyzed under a four element inquiry adopted from P ic k e r in g v. Board of Education. D'Angelo v. Sch. Bd. of Polk Cnty., Fla., 497 F.3d 1203, 1 2 0 8 (11th Cir. 2007) (citing Pickering, 391 U.S. 563, 568 (1968)). The public employee b e a rs the burden on elements (1) - (3) of the inquiry. Cook v. Gwinnett Cnty. Sch. Dist., 414 F .3 d 1313, 1318 (11th Cir. 2005). To prevail, the employee must show that (1) she "spoke a s a citizen on a matter of public concern," D'Angelo, 497 F.3d at 1209 (citing Garcetti v. C e b a llo s ; 547 U.S. 410, 418 (2006)); "(2) the employee's free speech interest outweighed th e employer's interest in effective and efficient fulfillment of its responsibilities; and (3) the s p e e c h played a substantial part in the adverse employment action." Cook, 414 F.3d at 1318. If a public employee satisfies elements (1) - (3), under element (4), the burden shifts to the e m p lo ye r "to show by a preponderance of the evidence that it would have made the same d e c is io n even in the absence of the protected speech." Id. Elements (1) - (2) are questions o f law concerning whether the First Amendment protects the employee's speech. Id. Elements (3) - (4) are "questions of fact designed to determine whether the alleged adverse e m p lo ym e n t action was in retaliation for the protected speech." Id. (internal quotations o m itte d ). Defendants contend that under element (1), Dr. Bohannon did not speak as a citizen o n a matter of public concern. (Doc. # 24, at 23.) Additionally, Defendants contend that

25

under element (3), because Dr. Bice made the decision not to retain Dr. Bohannon, and was n o t aware of Dr. Bohannon's speech, that speech could not have played a substantial or m o tiv a tin g role in the decision to terminate her employment.1 2 (Doc. # 24, at 20.) Dr. B o h a n n o n contends that she produced sufficient evidence to establish a prima facie case and ra ise a genuine issue of material fact on the elements in question, and therefore summary ju d g m e n t should be denied. (Doc. # 31, at 26.) A. D r. Bohannon's Second, Third, Fourth, and Part of Her Fifth Instance of Alleged P r o te c te d Speech Did Not Play a Substantial or Motivating Role in the Decision to Terminate Her Employment U n d e r element (3) of the Pickering framework, the causation element, Dr. Bohannon b e a rs the burden of showing that "the speech played a substantial or motivating role in the a d v e rs e employment action." Akins v. Fulton Cnty., 420 F.3d 1293, 1303 (11th Cir. 2005). Defendants have shown that there is no genuine issue of material fact that these alleged in s ta n c e s of speech did not play a substantial or motivating role in the decision to terminate h e r employment, and Dr. Bohannon has failed to produce evidence to rebut that showing. Because there is no issue of material fact on causation regarding these claims, it is not n e c e s s a ry to decide whether these instances of speech made to co-workers are c o n s titu tio n a lly protected under elements (1) and (2) of the Pickering and Garcetti analysis. See Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 445-46 (1988) ("A
12

In their brief, Defendants do not address element (2) of the Pickering inquiry, and, thus, the court will not address this element.

26

fundamental and longstanding principle of judicial restraint requires that courts avoid re a c h in g constitutional questions in advance of the necessity of deciding them. . . . If no a d d itio n a l relief would have been warranted, a constitutional decision would have been u n n e c e s s a ry and therefore inappropriate."). At her deposition, Dr. Bohannon was asked by opposing counsel about which in s ta n c e s of her speech led to her not being retained. (Bohannon Dep. 220-22.) In response, D r. Bohannon specifically cited her first instance of alleged protected speech with Ms. L o n g s h o re and Dr. Stone regarding the Better Basics grant on August 14, 2008, and the p o rtio n of her fifth instance of alleged protected speech made to Dr. Stone regarding the M a rio n County score sheet on October 3, 2008. (Bohannon Dep. 222.) She responded that s h e did not recall any other instances of her speaking out that led to her retaliation. (Bohannon Dep. 222.) 1. D r. Bohannon Conceded that Her Third and Fourth Instances of Alleged P r o te c te d Speech Were Not a Cause of Her Termination D r . Bohannon conceded that her third instance of alleged protected speech to Mr. M o o re and Ms. Thompson was not a cause of her termination. (Bohannon Dep. 221.) She a ls o conceded that her fourth instance of alleged protected speech was made to Dr. Bice in F e b ru a ry and March 2009, after the decision to terminate her had already been made and c o m m u n ic a te d to her. (Bohannon Dep. 149, 222; Bice Dep. 78.) See Mize v. Jefferson City B d . of Ed., 93 F.3d 739, 741 & 745 (11th Cir. 1996) (affirming summary judgment as

27

appropriate in a First Amendment retaliation case where defendants' testimony showed that th e decision to terminate the plaintiff was made earlier that day, before the allegedly p ro te c te d speech, and therefore defendants had no reason to retaliate against plaintiff at the tim e the termination decision was made). 2. D r. Bohannon Failed to Present Evidence that Her Second and Fifth I n s ta n c e s of Alleged Protected Speech Directed to Her Co-Workers Were a C a u s e of Her Termination D r . Bohannon has failed to produce any evidence regarding a nexus between the s e c o n d instance of alleged protected speech and the decision to terminate her employment. Dr. Bohannon has not produced any evidence that Defendants knew about her speech to Mr. M o o re on August 14, 2008. In fact, Dr. Bohannon does not once mention her second in s ta n c e of alleged protected speech in the section of her response brief entitled, "The V o ic in g of Plaintiff's Personal Indignation Played a Substantial and Motivating Role in Her T e rm in a tio n ." (Doc. # 31, at 41-46.) D r. Bohannon also has failed to produce any evidence showing a nexus between the p o rtio n of her fifth instance of alleged protected speech directed to her co-workers Beth T h o m p s o n and Sherry Coleman and the decision to terminate her employment. She has not p ro d u c e d evidence Defendants knew about her October 3, 2008 speech to Ms. Thompson or M s . Coleman prior to the decision to terminate her. Again, Dr. Bohannon does not mention th is speech in the section of her response brief entitled, "The Voicing of Plaintiff's Personal

28

Indignation Played a Substantial and Motivating Role in Her Termination." (Doc. # 31, at 4 1 -4 6 .) In that section, Dr. Bohannon's theory of the case on the element of causation is that " [ i]t is reasonable to infer that because Dr. Bohannon expressed her dissent on an issue in v o lv in g high-level political influence to Defendants Stone and Longshore, the Defendants in turn, reported her discontent to their superiors." (Doc. # 31, at 42 (emphasis added).) Nowhere does Dr. Bohannon produce evidence, direct or circumstantial, that her speech to M s . Thompson or Ms. Coleman concerning the Marion County score sheet played any role in the decision to terminate her.1 3 Therefore, Defendants are entitled to summary judgment o n this portion of the fifth instance of alleged protected speech and the second instance of a lle g e d protected speech. B. W i t h Respect to Her Remaining Instances of Alleged Protected Speech, Dr. Bohannon Did Not Speak as a Citizen T o proceed with a First Amendment retaliation claim, Dr. Bohannon must, as a matter o f law, show that she "spoke as a citizen on a matter of public concern." Abdur-Rahman v.

Dr. Bohannon claims in her "Statement of Disputed Facts" that Dr. Stone admitted that "Dr. Bohannon was speaking out `to everyone but me.'" (Doc. # 31, at 9 (citing Stone Dep. 75).) This is the only evidence the court can discern of a nexus between Dr. Bohannon's speech to parties other than Defendants and the decision to terminate her. Examining Dr. Stone's deposition in context shows that Dr. Stone did not admit knowledge of Dr. Bohannon's speech to other individuals. Dr. Stone's deposition transcript reads "Q: And you [Dr. Stone] knew she [Dr. Bohannon] was raising questions about the whole Better Basics system, didn't you? A: I did not. Q: How could you not know? I mean, she was talking about it all over the place. A: To everyone but not me." Quoting "to everyone but not me" out of context, Dr. Bohannon fails to explain how a witness can testify that she had no knowledge of Dr. Bohannon's speech, then respond to the next question claiming that she knew that Dr. Bohannon was in fact speaking "to everyone but not me." Even viewing such evidence in the light most favorable to Dr. Bohannon, the quotation does not advance her claim.

13

29

Walker, 567 F.3d 1278, 1281-82 (11th Cir. 2009) (internal citations omitted). The Supreme C o u rt has acknowledged that this initial inquiry is necessary because "[t]he First Amendment lim its the ability of a public employer to leverage the employment relationship to restrict, in c id e n ta lly or intentionally, the liberties employees enjoy in their capacities as private c itiz e n s ." Garcetti, 547 U.S. at 419 (citing Perry v. Sindermann, 408 U.S. 593, 597 (1972)). To that end, "[s]o long as employees are speaking as citizens about matters of public concern, th e y must face only those speech restrictions that are necessary for their employers to operate e f f ic ie n tly and effectively." Id. As the Eleventh Circuit explained in Abdur-Rahman, "Garcetti controls our analysis o f whether the [plaintiff] spoke as [a] citizen[]." 567 F.3d at 1282. As a result, a discussion o f Garcetti is necessary to the determination that Dr. Bohannon did not speak as a citizen. In Garcetti, the Supreme Court held that a deputy district attorney, Ceballos, did not s p e a k as a citizen "by writing a memo that addressed the proper disposition of a pending c rim in a l case. When he went to work and performed the tasks he was paid to perform, [he] a c te d as a government employee. The fact that his duties sometime required him to speak o r write does not mean his supervisors were prohibited from evaluating his performance." Garcetti, 547 U.S. at 422. The Supreme Court held "that when public employees make statements pursuant to th e ir official duties, the employees are not speaking as citizens for First Amendment p u rp o s e s , and the Constitution does not insulate their communications from employer

30

discipline." Garcetti, 547 U.S. at 421. The controlling inquiry is whether the speech was m a d e pursuant to the public employee's official duties. Id. The location and subject matter o f the speech are not individually dispositive. Id. at 420-21. In Garcetti, Ceballos spoke as a n employee because "the memo was written pursuant to Ceballos' official duties." Id. at 421. Articulating the policy behind its new bright-line rule, the Supreme Court in Garcetti s ta te d that "[r]estricting speech that owes its existence to a public employee's professional re s p o n s ib ilitie s does not infringe any liberties the employee might have enjoyed as a private c itiz e n [ ; i]t simply reflects the exercise of employer control over what the employer itself has c o m m iss io n e d or created." Id. at 421-22. To determine the scope of an employee's official duties, the Supreme Court instructed th a t "[t]he proper inquiry is a practical one." Id. at 424. A practical inquiry is necessary because, [ f ]o rm a l job descriptions often bear little resemblance to the duties an e m p lo ye e is actually expected to perform, and the listing of a given task in an e m p l o ye e 's written job description is neither necessary nor sufficient to d e m o n s tra te that conducting the task is within the scope of the employee's p ro f e s sio n a l duties for First Amendment purposes. I d . at 424-25. Rather, the court must "`look to the content, form, and context of a given s ta te m e n t, as revealed by the whole record.'" Abdur-Rahman, 567 F.3d at 1283 (quoting Vila v . Pardon, 484 F.3d 1334, 1340 (11th Cir. 2007)). 1. D r. Bohannon's First Instance of Speech Was Made as an Employee

31

Dr. Bohannon's speech to her supervisors, Ms. Longshore and Dr. Stone on August 1 4 , 2008, concerning the funding of the Better Basics grant, was made as an employee of the D O E , not as a citizen. Expressing her concerns with the funding of the Better Basics grant, d e s p ite a score below the cut-off, Dr. Bohannon said "[t]hat it wasn't right. . . . [S]ome other g ra n te e that qualified would be bumped and lose their grant. It was unethical and unfair." (Bohannon Dep. 36.) Dr. Bohannon then asked multiple times "if [she] could be excused f ro m overseeing the process for that particular grant." (Bohannon Dep. 36.) The content and form of Dr. Bohannon's speech show that she spoke as the DOE m a n a g e r of the CCLC grants. By requesting to be excused from managing the CCLC grants, D r. Bohannon spoke in a way that no ordinary citizen could possibly speak; she asked to be e x c u s e d from her duty as the employee managing that particular grant. (See also Compl. 2 (a d m it t i n g that "[a] large part of [Dr. Bohannon's] work involved her management and a d m in is tra tio n of these competitive grants")). "Speech that owes its existence to the official d u t i e s of public employees is not citizen speech even if those duties can be described so n a rro w ly as not to mandate the act of speaking." Abdur-Rahman, 567 F.3d at 1285. "In that c o n te x t, `[t]here is no relevant analogue to speech by citizens who are not government e m p lo ye e s ,' and the speech is unprotected." Id. at 1285-86 (quoting Garcetti, 547 U.S. at 4 2 4 ). In addition, the context of the meeting confirms that she spoke as an employee. Dr. B o h a n n o n 's speech was made in response to an e-mail solely from Ms. Longshore to Dr.

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Bohannon that read, "[W]e need to make a determination about [Better Basic's] grant B o a rd and Supt pressure! I will meet you in Commons area." (Stone Dep. Ex. 10, at 2 (e m p h a s is added).) The meeting was then held in the commons area of their workplace, and w a s attended by Dr. Bohannon and her two supervisors, Ms. Longshore and Dr. Stone. (Bohannon Dep. 35-36.) Dr. Bohannon's speech was made directly to her two supervisors c o n c e rn in g funding of a CCLC grant that she felt was "unethical" and "unfair," "because we h a d already looked at [Better Basics's] score and it did not qualify. . . . [S]ome other grantee th a t qualified would be bumped and lose its grant." (Bohannon Dep. 35-36 (emphasis a d d e d ) .) D r. Bohannon argues that Abdur-Rahman does not apply because "[s]urely, had nong o v e rn m e n t employees learned of the political arm-twisting that funneled money to improper a w a rd e e s such as Better Basics, they, too, would have spoken out on the subject, just as P la in tif f did." (Doc # 31, at 31.) Dr. Bohannon's hypothetical ignores the content, form, and c o n te x t of her speech, as well as the whole record. Abdur-Rahman, 567 F.3d at 1286. Dr. B o h a n n o n 's speech owed its existence to her employment duties. Her speech included a re q u e s t to be excused from her own employment duties, employment duties she admitted in c l u d e d ensuring that the CCLC grants were in compliance with applicable rules and re g u la tio n s and ensuring the integrity of the program. (Bohannon Dep. 41, 62.) It was also m a d e directly to her supervisors, in response to a meeting about the very grants she managed. Simply put, Dr. Bohannon's speech could never have been made by an ordinary citizen;

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therefore, her speech as an employee does not warrant First Amendment protection. In addition, Dr. Bohannon argues that "she was not the proper employee to address f ra u d ," and "once she reported the grant application inconsistences, Dr. Bohannon's jobre la te d speech ended, because it was not her duty to determine which grant applications were d e e m e d valid recipients." (Doc. # 31, at 33.) Therefore Dr. Bohannon "had reached the limit o f her possible involvement in an official capacity," and she could not have spoken as an e m p lo ye e . (Doc. # 31, at 33.) Dr. Bohannon's argument is based on Battle v. Board of R e g e n ts for the State of Ga., 468 F.3d 755, 761 (11th Cir. 2006). Unlike the plaintiff in that c a s e who "admitted her comments fell within her required duties," Dr. Bohannon contends th a t she "has made no such admissions." (Doc. # 31, at 32-33.) For the following reasons, D r. Bohannon's arguments fail. In Battle, a university work study supervisor spoke out to her supervisor, the director o f the Federal Work Study Program, about fraud in student files that the plaintiff discovered h e r supervisor had committed. 468 F.3d at 757-58. The plaintiff also took these complaints t o the University's director of financial aid and the vice president of student affairs. Id. After voicing those complaints, the plaintiff was told that her employment contract would n o t be renewed. Id. at 758-59. After notice of her non-renewal, the plaintiff met with the G e o rg ia DOE and "provided sixty-one pages of documents showing potential fraud and a th irty-tw o page analysis of student files." Id. at 759. Following audits and plaintiff's report, in v e s tig a to rs discovered "serious noncompliance with federal regulations and risk factors for

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fraud," resulting in a "$2,167,941 settlement with the DOE to settle questioned costs." Id. Despite discovery of actual improprieties and the resignation of the plaintiff's supervisor, the E le v e n th Circuit affirmed summary judgment for the work-study supervisor, the university's d ire c to r of financial aid, and the university's vice president of student affairs on the p la in tif f 's First Amendment retaliation claims Id. at 759 & 761-62. In Battle, the court held that "Plaintiff's speech to [university] officials about in a c c u ra c ie s and signs of fraud in student files was made pursuant to her official employment d u tie s [as a work study supervisor in the Federal Work Study Program]." Id. at 761-62. The p la in tif f in that case admitted that "she had a clear employment duty to ensure the accuracy a n d completeness of student files as well as to report any mismanagement or fraud she e n c o u n te re d in the student financial aid files." Id. at 761. After the Supreme Court decided G a r c e tti, the plaintiff in Battle "attempt[ed] to limit the scope of her admission by claiming h e r only employment duties related to her control and oversight of financial aid information p ro v id e d by certain students, and not to the discovery of fraud by her supervisor." Id. at 761 n .6 . The court in Battle rejected such an attempt to limit the scope of her admission because s h e had an official duty to report such fraud under DOE guidelines. Id. Because Dr. B o h a n n o n claims she did not make an admission like that of the plaintiff in Battle, the court w ill also examine the result of Abdur-Rahman. In Abdur-Rahman, the court addressed a First Amendment retaliation claim where the p la in tif f s did not admit that they spoke pursuant to their official duties. 567 F.3d at 1283.

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In that case, the plaintiffs were sewer compliance inspectors who expressed concerns to their s u p e rv is o rs about sanitary sewer overflows. Id. at 1279. During at least a portion of their e m p lo ym e n t, the plaintiffs' specific job duties did not include the task of investigating s a n ita ry sewer overflows.1 4 Id. at 1280. Rather, the sewer compliance inspectors "were in s tru c te d . . . to write ordinances for the county about the disposal of fat, oil, and grease. Although this responsibility did not require the inspectors to review data about sanitary sewer o v e rf lo w s , the inspectors wanted to inspect that data as part of their work." Id. Their s u p e rv is o rs resisted their requests for such data, and told the inspectors that "they were ru f f lin g too many feathers." Id. Ultimately, the court held that the plaintiffs did not speak a s private citizens because