Cottrell et al v. Chickasaw City Schools Board of Education et al
ORDER, GRANTING Defendant's 40 Motion for Summary Judgment. Signed by Senior Judge Callie V. S. Granade on 02/07/2018. (mab)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
RONALD COTTRELL, et al.,
CHICKASAW CITY SCHOOLS
BOARD OF EDUCATION,
) CIVIL ACTION NO. 16-0503-CG-N
MEMORANDUM OPINION AND ORDER
This lawsuit is the result of Plaintiffs’ employment being terminated by
Defendant. Specifically before the court is Defendant, Chickasaw City Board of
Education’s (the “Board”), Motion for Summary Judgment (Doc. 40) and brief in
support thereof (Doc. 41), Plaintiffs’ Response in opposition (Doc. 44) with materials
in support (Doc. 43), and Defendant’s Reply (Doc. 45). For the reasons explained
below, the Court finds that Defendant’s motion for summary judgment should be
Plaintiffs, Ronald Cottrell (“Cottrell”), James Rigdon (“J. Rigdon”), and
Stacey Rigdon (“S. Rigdon”) were each employees of the Chickasaw City School
System for the 2014-15 school year. (Doc. 1 at 2). Cottrell and J. Rigdon were both
employed as teachers and coaches while S. Rigdon was employed as a
paraprofessional. (Id.) J. Rigdon and S. Rigdon are also husband and wife and
their son, Chandler Rigdon was a senior student at Chickasaw City School during
the 2014-15 school year. (Id.) On September 21, 20141, Chandler Rigdon was
involved in an incident (the “incident”) wherein the principal of Chickasaw City
High School, Brent Ward, struck him on the head/neck between one and three times
in front of three other teachers, Stephanie Serra (“Serra”), Ricky Ruffin (“Ruffin”),
and Ronald Cottrell. (Id. at 3).
Brent Ward ultimately resigned from his position
based on another incident unrelated to this lawsuit. However, the facts
surrounding the investigation of Mr. Ward’s behavior are disputed by the parties
and are pertinent to this motion.
Plaintiffs assert that following the incident with Chandler Rigdon and
Principal Ward, Ruffin took Chandler outside of the school building and instructed
him not to tell his father, J. Rigdon, what had occurred. Ruffin then approached J.
Rigdon in his classroom and informed him of the incident and told him that he,
Ruffin, had taken care of it. (Id. at 3). At the end of the school day Serra informed
the Rigdons of the incident and apologized that it had occurred. (Id.) Cottrell was
approached by the assistant principal, Willie Lewis “(Lewis”) after the school day
ended and told that he needed to calm J. Rigdon down and that the Rigdons did not
need to press charges. Cottrell replied that Ward should not have hit a student. (Id.)
The same afternoon, after football practice, Lewis approached J. Rigdon and stated
Defendant disputes the date Plaintiffs contend this incident occurred and assert
the correct date is between August 18 and 22, 2014. (Doc. 41 at 3; Doc. 41-15).
However, the exact date of the incident is not material to the issues addressed
“Word for the wise, if you want to stay, you need to let it go.” (Id. at 4). The day
after the incident, Cottrell met with Ward and suggested that Ward apologize for
the incident, to which he refused. (Id.) Days after the incident occurred, J. Rigdon
requested video surveillance of the incident and that video was provided to him in
Ward’s office where J. Rigdon, Ruffin, and Ward watched the video. (Id.)
Following the incident, Cottrell and J. Rigdon reported the incident to Robert
McFall (“McFall”), president of the Chickasaw School Board of Education and Kyle
Kallhoff (“Kallhoff”), the superintendent. (Id.) Kallhoff instructed J. Rigdon to
report the incident to Ward in accordance with the school’s chain of command.2 (Id.)
Kallhoff also called Cottrell to determine the veracity of the incident and Cottrell
confirmed that he witnessed the incident occur. (Id.) Kallhoff responded that he
was not going to investigate because Ward was doing a good job. (Id.) S. Rigdon
then reported the incident to the Superintendent of the Alabama State Department
of Education and a week later, Kallhoff requested a meeting with Mr. and Mrs.
Rigdon which occurred in the presence of the attorneys for the Board and the school
system. (Id.) Plaintiffs contend that following the meeting, no investigation was
The remaining events relevant to this action are listed below in chronological
It is unclear whether J. Rigdon actually spoke with Kallhoff before being told to
follow the proper chain of command relating to the reporting of the incident.
Rather, the Complaint indicates J. Rigdon “called” Kallhoff (not “spoke with”) (Doc.
1 at 4.) and Plaintiff’s Response indicates “Kallhoff’s office” – not Kallhoff“instructed James Rigdon to talk to the Principal, Brent Ward (Doc. 44 at 9).
On September 25, 2014, Lewis sent J. Rigdon an email regarding problems
observed in his classroom and J. Rigdon responded the same day. (Doc. 41-17 at 1213). J. Rigdon’s response brings up the incident.
On October 8, 2014, a co-employee sent an email to Lewis and Ward
regarding J. Rigdon’s behavior relating to his son receiving a uniform violation. J.
Rigdon responded to that email and brought up the incident. (Id. at 14-15).
On October 27, 2014, Cottrell completed a witness statement relating to the
incident. (Id. at 60).
On October 27, 2014, Ward was reprimanded for the incident involving
Chandler. (Doc. 41-17 at 36).
On October 29, 2014, as a result of another incident, Ward was placed on
administrative leave. (Id. at 58). Lewis was named interim principal upon Ward’s
exit. (Doc. 1 at 5). Shortly thereafter, Ward resigned in response to the other
unrelated incident. (Id.)
On October 31, 2014, interim principal Lewis observed J. Rigdon’s classroom
to be disorderly and questioned him about the state of the class. (Doc. 41-17 at 16).
On November 3, 2014, Lewis issued a written reprimand to J. Rigdon for his
behavior during their previous encounter on October 31, 2014. (Doc. 41 at 6; Doc.
41-17 at 16).
On November 3, 2014, Chandler Rigdon filed a police report with the
Chickasaw Police Department against Brent Ward for the incident. Ward was
charged with harassment and prosecuted in Chickasaw Municipal Court. (Doc. 41
The Board accepted Ward’s resignation on November 13, 2014. (Doc. 41 at 4).
On December 19, 2014, Lewis wrote a letter to J. Rigdon regarding a conflict
of interest for conducting personal business with school. (Doc. 41-17 at 17).
On December 20, 2014, Lewis wrote a letter to J. Rigdon regarding a personal
conflict involving a student that was negatively impacting positive work
environment. (Id. at 20).
On December 22, 2014, S. Rigdon sent an email to Lewis requesting that he
stop harassing her and her family. (Id. at 26-27).
On February 26, 2015, Cottrell was reprimanded by Kathy Odom for meeting
with recruiters during instructional time. (Id. at 3).
On March 10, 2015, Cottrell was given a letter from Lewis explaining items
that needed Cottrell’s attention (relating to sports). (Id. at 4).
On March 18, Cottrell was reprimanded for making purchases without
following proper accounting procedures. (Id. at 5).
On March 18, 2015, S. Rigdon sent an email to Lewis that mentions the
incident. (Id. at 28-29).
On April 21, 2015, Cottrell was given Letter of Reprimand for unprofessional
conduct and insubordination. (Id. at 8-9).
On May 6, 2015, S. Rigdon sent an email to Lewis that again demanded that
Lewis stop harassing her and her family. (Id. at 31)
On May 6, 2015, James and Stacey Rigdon were placed on administrative
leave. (Id. at 68).
On June 11, 20153, Kallhoff recommended that each of the Plaintiffs be nonrenewed and the Board approved the recommendations resulting in the termination
of Plaintiffs. (Doc. 1 at 6).
On August 4, 2015, Cottrell testified in Municipal Court resulting in Ward
being found guilty, a result that Ward appealed to Circuit Court. (Doc. 41-11 at 1011).
On January 11, 2016, Cottrell testified in Circuit Court resulting in Ward
being found not guilty. (Id. at 11).
A. Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) provides that summary judgment shall
be granted: “if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” The trial court’s
Defendants dispute the date the recommendation was made and contend the
correct date was May 21, 2015. (Doc. 41 at 2-3; Doc. 41-17 at 50-57). The exact
date is immaterial to the issues addresses herein below.
function is not “to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986). “The mere existence of some evidence to support the
non-moving party is not sufficient for denial of summary judgment; there must be
‘sufficient evidence favoring the nonmoving party for a jury to return a verdict for
that party.’” Bailey v. Allgas, Inc., 284 F.3d 1237, 1243 (11th Cir. 2002) (quoting
Anderson, 477 U.S. at 249). "If the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted." Anderson, at 249-250.
(internal citations omitted).
The basic issue before the court on a motion for summary judgment is
“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.”
See Anderson, 477 U.S. at 251-252. The moving party bears the burden of proving
that no genuine issue of material fact exists. O'Ferrell v. United States, 253 F.3d
1257, 1265 (11th Cir. 2001). In evaluating the argument of the moving party, the
court must view all evidence in the light most favorable to the non-moving party,
and resolve all reasonable doubts about the facts in its favor. Burton v. City of Belle
Glade, 178 F.3d 1175, 1187 (11th Cir. 1999). “If reasonable minds could differ on
the inferences arising from undisputed facts, then a court should deny summary
judgment.” Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th
Cir. 1992) (citing Mercantile Bank & Trust v. Fidelity & Deposit Co., 750 F.2d 838,
841 (11th Cir. 1985)).
Once the movant satisfies his initial burden under Rule 56(c), the non-moving
party "must make a sufficient showing to establish the existence of each essential
element to that party's case, and on which that party will bear the burden of proof
at trial." Howard v. BP Oil Company, 32 F.3d 520, 524 (11th Cir. 1994)(citing
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Otherwise stated, the nonmovant must “demonstrate that there is indeed a material issue of fact that
precludes summary judgment.” See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608
(11th Cir. 1991). The non-moving party “may not rely merely on allegations or
denials in its own pleading; rather, its response .... must be by affidavits or as
otherwise provided in this rule be set out specific facts showing a genuine issue for
trial.” Vega v. Invsco Group, Ltd., 2011 WL 2533755, *2 (11th Cir. 2011). “A mere
‘scintilla’ of evidence supporting the [non-moving] party’s position will not suffice;
there must be enough of a showing that the jury could reasonably find for that
party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citation omitted).
“[T]he nonmoving party may avail itself of all facts and justifiable inferences in the
record taken as a whole.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th
Cir. 1992). “Where the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party, there is no genuine issue for trial.” Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 at 587 (1986) (internal
quotation and citation omitted).
Count One: SEPA Claim
Defendant asserts that summary judgment is due to be granted as to Count
One of the Complaint stating a cause of action pursuant to the State Employees
Protection Act because Plaintiffs were not state employees. (Doc. 41 at 11). In
response, Plaintiffs stated: “Defendant is entitled to summary judgment on
Plaintiffs’ Count One State Employees Protection Act Claim. Plaintiffs hereby
concede and withdraw their claim contained in Count One of their Complaint with
regards to the State Employees Protection Act.” (Doc. 44 at 5). As such, summary
judgment is granted as to Count One.
Count Two: Violation of First Amendment Right to Freedom of
Plaintiffs contend that the Board and the Superintendent retaliated against
them in that
they terminated their employment for participating and
testifying in the criminal prosecution of another school employee.
Alternatively, and/or additionally, Plaintiffs James Rigdon and Stacey
Rigdon were terminated due to their association with their son and
their son’s filing of charges against another employee of the Board.
Further, for the same reasons, Plaintiffs were retaliated against by
being treated differently, by being observed more strenuously, and by
losing the support of the Board and the Superintendent in their
coaching of System’s athletic teams.
(Doc. 1 at 7-8).
In support of their position, Plaintiffs have pointed to a number of encounters
between themselves and other school administrators, mainly Lewis and Kallhoff,
which occurred either following the incident or following Chandler’s filing of a police
report. Defendant contends that Plaintiffs’ First Amendment claims are due to be
denied as a matter of law because their actions did not constitute free speech. (Doc.
41 at 14). More specifically, Defendant argues that Plaintiffs’ statements relating
to the Ward incident were made in their official capacities and were not on a matter
of public concern, such that the statements and actions of Plaintiffs are not
protected. (Id. at 13-23).
Although the law is well-established that the state may not demote or
discharge a public employee in retaliation for speech protected under the First
Amendment, a public employee's right to freedom of speech is not absolute. Bryson
v. City of Waycross, 888 F.2d. 1562, 1565 (11th Cir. 2017) citing Rankin v.
McPherson, 483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987). Rather, the First
Amendment protection of a public employee's speech depends on a careful balance
“between the interests of the [employee], as a citizen, in commenting upon matters
of public concern and the interest of the State, as an employer, in promoting the
efficiency of the public services it performs through its employees.” Pickering v.
Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563, 568, 88
S.Ct. 1731, 20 L.Ed.2d 811 (1968). To strike this balance, courts employ a fourfactor analysis in assessing First Amendment retaliation claims. Moss v. City of
Pembroke Pines, 782 F.3d 613, 617 (11th Cir. 2015).
At the first stage, the court determines the threshold issue
raised in Pickering, whether the employee's speech may be “fairly
characterized as constituting speech on a matter of public concern.”
Rankin, 483 U.S. at 384, 107 S.Ct. at 2896–97 (quoting Connick v.
Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983)).
The court examines the content, form, and context of the employee's
speech to determine whether it addresses a matter of public concern.
Rankin, 483 U.S. at 384–85, 107 S.Ct. at 2897. Second, if the speech
addresses a matter of public concern, the court then applies the second
prong of Pickering, the balancing test, weighing the employee's first
amendment interests against “the interest of the state, as an employer,
in promoting the efficiency of the public services it performs through
its employees.” Pickering, 391 U.S. at 568, 88 S.Ct. 1731. Again, the
context and circumstances of the employee's speech must be
considered. Rankin, 483 U.S. at 388, 107 S.Ct. 2898. If the public
employee prevails on the balancing test, the fact-finder determines
whether the employee's speech played a “substantial part” in the
government's decision to demote or discharge the employee. Mt.
Healthy City School District Board of Education v. Doyle, 429 U.S. 274,
97 S.Ct. 568, 50 L.Ed.2d 471 (1977). Fourth, if the employee prevails
by showing that the speech was a substantial motivating factor in the
state's employment decision, the state must prove by a preponderance
of the evidence that “it would have reached the same decision ... even
in the absence of the protected conduct.” Mt. Healthy, 429 U.S. at 286,
97 S.Ct. at 576. This fourth stage has been referred to as a “but for”
test; the employer must show that “its legitimate reason, standing
alone, would have induced it to make the same decision.” Price
Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 1791, 104
L.Ed.2d 268 (1989).
Bryson, 888 F.2d. at 1565. The first two elements are questions of law designed to
determine whether the First Amendment protects the employee's speech. The third
element and affirmative defense are questions of fact designed to determine
whether the adverse employment action was in retaliation for the protected speech.
Battle v. Board of Regents for Georgia, 468 F.3d 755, 760 (11th Cir. 2006) (citation
This Court will analyze each of the first two Pickering factors with regard to
the allegedly protected statements of the Rigdons and Cottrell separately.
1) Ronald Cottrell
Cottrell contends that the facts, taken in a light most favorable to him, show
that he witnessed Ward assault Chandler, that he thought Ward’s behavior was
inappropriate, and that he spoke out about the incident by way of an investigatory
statement, a verbal report to the President of the School Board, and testimony in
Court. (Doc. 44 at 20). Defendant concedes and there is no legal debate that
Cottrell’s court testimony is speech as a citizen on a matter of public concern. (See
Lane v. Franks, ––– U.S. ––––, 134 S.Ct. 2369, 2379, 189 L.Ed.2d 312 (2014); Doc.
41 at 22). Whether Cottrell’s pre-testimony speech is protected, however, is
disputed among the parties and requires analysis. As to those statements,
Defendant argues that Cottrell was speaking in his official capacity and not as a
citizen on an issue of public concern. Plaintiffs argue that Defendant’s
characterization of Cottrell’s statements as being made in his official capacity are
misguided and, therefore, they assert that Cottrell’s speech is protected by the First
Amendment. (Doc. 44 at 20-21).
In order to determine whether Cottrell’s speech is protected, this Court must
discern the purpose of the Cottrell’s speech—that is, whether [he] spoke on behalf of
the public as a citizen, or whether the employee spoke for [him]self as an employee.
Connick, 461 U.S. at 146. The Supreme Court, in Garcetti v. Ceballos, 547 U.S. 410,
126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), declined to provide a “comprehensive
framework” for deciding this question, but did provide some general guidance.4 The
Court defined speech made pursuant to an employee's job duties as “speech that
owes its existence to a public employee's professional responsibilities,” id. at 421,
126 S.Ct. at 1960, and a product that “the employer itself has commissioned or
created,” id. at 422, 126 S.Ct. at 1960. Factors such as the employee's job
description, whether the speech occurred at the workplace, and whether the speech
concerns the subject matter of the employee's job may be relevant, but are not
dispositive. Id. at 420–21, 424, 126 S.Ct. 1951. Garcetti instructed that “[t]he proper
inquiry is a practical one.” Id. at 424, 126 S.Ct. 1951.
To fall within the realm of the “public concern,” an employee's
speech must “relat[e] to a[ ] matter of political, social, or other concern
to the community.” Connick v. Meyers, 461 U.S. 138, 146, 103 S.Ct.
1684, 1690, 75 L.Ed.2d 708 (1983). To determine whether speech is a
matter of public concern, a court considers “the content, form and
context of a given statement, as revealed by the whole record.” Deremo
v. Watkins, 939 F.2d 908, 910 (11th Cir.1991) (citing Connick, 461 U.S.
at 147–48, 103 S.Ct. at 1690). A court may consider the employee's
attempts to make the concerns public, along with “the employee's
motivation in speaking.” Id. at 911 (citations omitted). “ ‘[T]he mere
fact that the topic of the employee's speech was one in which the public
might or would have had a great interest is of little moment.’ ” Kurtz,
855 F.2d at 727 (quoting Terrell v. University of Tex. Sys. Police, 792
F.2d 1360, 1362 (5th Cir.1986), cert. denied, 479 U.S. 1064, 107 S.Ct.
948, 93 L.Ed.2d 997 (1987)). Rather, it must be determined whether
the purpose of the speech was to raise issues of public concern, on the
one hand, or to further private interest, on the other. See Deremo, 939
F.2d at 912 (employees' request for compensation for remaining silent
about sexual harassment did not constitute a matter of public concern).
Morgan v. Ford, 6 f.3d 750, 754 (11th Cir. 1993).
Unlike in this action, the plaintiff in Garcetti admitted that he spoke pursuant to
his official duties. Garcetti, 547 U.S. at 424, 126 S.Ct. 1951.
The total content of the written statement dated October 27, 2014, given to
Kallhoff, states as follows: “Brent Ward hit Chandler Rigdon three times[.] First on
top of his head, second in the back of his head and third on his cheek with his
forearm.” (Doc. 41-17 at 60). The content of the written statement offers some
insight as to its purpose because it describes Cottrell’s observation of a specific
incident and does not mention any other opinions or concerns. It was also given to
Kallhoff privately and Cottrell made no attempt to bring it to the attention of the
public. The date of the written statement also offers some insight as it was provided
approximately two months after the incident occurred, an amount of time that does
not support a desire to bring the event to the attention of the general public out of
concern for Ward’s misconduct. Lastly, it is undisputed that Cottrell provided the
written statement to Kallhoff, his superior, upon his request and it was not written
by Cottrell on his own initiative. (Doc. 43-12). Considering the content, form, and
context of the written statement it is clear that the same was made as part of
Cottrell’s official duties as part of an investigation of a private matter by the
school’s administration that Cottrell’s statement was not made as a citizen on a
matter of public concern. As such Cottrell’s written statement is not protected.
With regard to his verbal reporting of the incident to Kallhoff, McFall, and
Ham, Cottrell has not provided any facts to establish that the speech was by a
citizen on a matter of public concern. The only facts provided by Cottrell relate to
his meeting with McFall. In that regard, the record indicates that Cottrell drove to
McFall’s house at some point after the incident occurred and only after Cottrell was
unable to speak with Kallhoff and that Cottrell spoke with McFall about the
incident in McFall’s kitchen. (Doc. 43-1 at 46-49). While at McFall’s house, Cottrell
“told him what happened.” (Id. at 48). The only stated reason for Cottrell’s
conversation with McFall was because he had previously been unable to talk with
Kallhoff, he didn’t want to talk to Ward since the incident involved him, and
because Cottrell respected McFall. (Id. at 46-49). As such, the record reflects that
Cottrell sought to have a private conversation with the single member of the Board
whom he most respected about the subject incident that he witnessed. Cottrell has
not presented any facts that his conversation with McFall was initiated in his
capacity as a private citizen in an attempt to discuss a matter of public concern
versus in his capacity as a teacher to a person up the hierarchal chain of command.
The timing, circumstance, content, or arena in which the statements with
Kallhoff and Ham were made is not a part of the record. As such, it cannot be
determined whether Cottrell was speaking as either an employee or a citizen.
Plaintiffs argue that Defendants have not established that Cottrell was acting in
accordance with his official duties because they have not provided any job
description showing his job duties; however, such a standard is not required. See
Garcetti 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.”). Rather, the initial burden is upon Plaintiff to establish that he
engaged in protected speech and for purposes of summary judgment, Defendant
need only establish that Plaintiffs have not met that burden or that the facts taken
in a light most favorable to Cottrell could in no way result in a jury finding that
Cottrell was speaking as a citizen on a matter of public concern. See Howard, 32
F.3d at 524 (Once the movant satisfies his initial burden under Rule 56(c), the nonmoving party “must make a sufficient showing to establish the existence of each
essential element to that party’s case, and on which that party will bear the burden
of proof at trial”).
In effort to establish that he engaged in protected speech, Cottrell, in
response to the subject motion for summary judgment, submitted an affidavit which
stated, “I reported Brent Ward hitting Chandler Rigdon because, I like any other
member of the community, know that it is wrong for an adult to hit a student.”
(Doc. 43-12 at 3). Even assuming his statements were made as a citizen, however,
Plaintiff must still present facts that the statements were on a matter of public
concern. Plaintiffs make the blanket assertion that “the subject matter - physical
abuse of a student by a public school principal- is a matter of public concern. (Doc.
44 at 20). In support of this position, Cottrell points to several non-binding cases
from outside of the Eleventh Circuit. 5 However, after reviewing each of the cases
Specifically, Plaintiffs cite Cioffi v. Averill Park, 444 F.3d 158, 164 (2nd Cir. 2005);
Voigt v. Savell, 70 F.3d 1552, 1562 (9th Cir. 1995); Schultea v. Wood, 27 F.3d 1112,
1119 (5th Circuit 1994); and Meenan v. Harrison, 264 Fed. Appx. 146, 150 (3rd Cir.
cited to by Plaintiffs, this Court reaches two conclusions (1) none of the cases are
factually similar to the case at hand and (2) the conclusions implying that physical
abuse of student is a matter of public concern were reached not solely by the subject
matter alone, but by the proper analysis of the content, form, and context of the fact
specific circumstances in those cases. As a result, this Court does not find Plaintiffs’
argument compelling. While the subject matter of the speech in this action may be a
matter of public concern the Pickering test requires an analysis of the true purpose
of the speech. In the instant action, even assuming Cottrell was speaking as a
citizen, there are no facts to suggest that Cottrell’s purpose in making these reports
was to raise an issue of public concern as the reports were made verbally to single
individuals (superiors) with no obvious expectation of bringing the matter to public
light. Accordingly, considering the record as a whole in a practical way, Cottrell’s
pre-testimony statements, verbal or written, were not made by a citizen on a matter
of public concern and, therefore, not protected. Cottrell’s court testimony will be
further analyzed herein below.
2) James and Stacey Rigdon
The record reflects that J. Rigdon reported the incident between Ward and
Chandler to Superintendent Kallhoff, Board Members McFall and Ham, and Office
Administrator Jodie McPherson (Doc. 1 at 4; Doc 43-1; Doc. 43-11 at 4). The record
does not contain the details of these reportings. It is also evident that J. Rigdon
brought up the incident to Lewis on September 25, 2014 following Lewis’s
reprimanding J. Rigdon for the state of his classroom. (Doc. 41-17 at 12-13) (“I
understand you [W]ard work off intimidation and my son has [a]lready been
slapped and since then you 2 have came by my room so much students have asked
why you guys drop by so much but let me make it clear you guys do not intimidate
me and never will.”) J. Rigdon additionally brought up the incident in an email with
another teacher, Grace Whit, (with Lewis and Ward copied) on October 8, 2015 in
response to that teacher’s email to Lewis regarding a uniform violation given to
Chandler Rigdon. (Doc. 41-17 at 15)(“ Let me also add for the record that YOU were
the main person telling me that I should go to the cops on Brett [sic] [W]ard for
what happened with chandler. Your exact words were if you don’t he will go after
you and chandler, funny how I did not listen and you are the one who are trying to
do what you can do to go after chandler and I.”) The evidence before this Court
indicates that Stacey Rigdon reported the incident to the Alabama State
Department of Education. (Doc. 1 at 4). No details relating to that reporting are a
part of the record. A week after she reported the incident to the Department of
Education, Ms. Rigdon also participated in a meeting with J. Rigdon, Kallhoff, and
the attorneys for the School Board. (Doc. 1 at 4). The record does not contain the
details of that meeting. Subsequently, S. Rigdon also brought up the incident in
emails to Lewis on December 23, 2014, wherein the main topic was her son’s
suspension by Lewis (“I understand you are upset because Chandler took out a
police report on your friend Brent Ward but I’m gonna ask you to stop bullying and
harassing my child and family.”), and on March 18, 2015, wherein the main topic
was Lewis’s refusal to allow the Rigdons to sell pizza from their pizza business on
school grounds (“yet you promote you[r] friend Brent Ward’s family business. Your
excuse to my husband is ‘he doesn’t work at Chickasaw,’ Are you serious, We know
he does not work in Chickasaw because he couldn’t keep his hands off of children
and keep from harassing a teacher, but you already know this. So you hurt my
family while you promote Brent Ward’s family’s business. This is ABSOLUTELY
astonishing, yet at the same time after you hid the fact that you knew Chandler was
slapped by Mr. Ward it should not be too surprising.”), and on May 6, 2015 where
the main topic was a threatening letter written by a student (“Please STOP
HARRASSING ME and MY FAMILY!!!!!!”) (Doc. 1 at 6; Doc. 41-17 at 26, 28-29, 31).
There is also mention on the record of the possibility that one or both of the Rigdons
may have discussed the incident with a local newspaper, Call News, although the
details of those discussions or the time period in which they were made are not
Plaintiffs unequivocally state that “the Rigdon’s regularly discussed their son
being hit by Brent Ward and supported their son filing his police report” and that
“their speech was on a matter of public concern” because physical abuse of a student
by a public school principal is a matter of public concern. (Doc. 44 at 20, 22). Like
Cottrell, the Rigdons do not address in detail whether or not they were speaking as
citizens, but cite several non-binding cases which tend to support their contention
that the subject of the statements were a matter of public concern.6 To support that
their speech was not privately motivated, J. Rigdon and S. Rigdon have also each
submitted an affidavit that states that they were not speaking out about the
incident to improve their own self-interest. (Doc. 43-10, Affidavit of S. Rigdon: “…I
did not instruct him [Chandler] to file it to gain any leverage related to my
employment”; Doc. 43-11, Aff. of J. Rigdon: same.) Defendant asserts summary
judgment is due to be granted because the Rigdons’ speech did not address a matter
of public concern and it is therefore, not protected.
Again, in order to determine whether the Rigdons’ speech was protected, this
Court must discern the purpose of the speech—that is, whether [they] spoke on
behalf of the public as a citizen, or whether the employee spoke for [his/her]self as
an employee. Connick, 461 U.S. at 146. To determine whether speech is a matter of
public concern, a court considers “the content, form and context of a given
statement, as revealed by the whole record.” Deremo v. Watkins, 939 F.2d 908, 910
(11th Cir.1991) (citing Connick, 461 U.S. at 147–48, 103 S.Ct. at 1690). A court may
consider the employee's attempts to make the concerns public, along with “the
employee's motivation in speaking.” Id. at 911 (citations omitted). “ ‘[T]he mere fact
that the topic of the employee's speech was one in which the public might or would
have had a great interest is of little moment.’ ” Kurtz, 855 F.2d at 727 (quoting
See FN 5.
Terrell v. University of Tex. Sys. Police, 792 F.2d 1360, 1362 (5th Cir.1986), cert.
denied, 479 U.S. 1064, 107 S.Ct. 948, 93 L.Ed.2d 997 (1987)). Rather, it must be
determined whether the purpose of the speech was to raise issues of public concern,
on the one hand, or to further private interest, on the other. See Deremo, 939 F.2d
Plaintiffs’ argument that “Plaintiffs exercised their right to free speech by
talking publicly about the assault on their child” (Doc. 44 at 22) tends to suggest
that any speech made by a citizen related to any matter that may potentially be a
concern of the public is protected. Such a contention is misguided and the correct
analysis requires a review of the purpose for which the speech was made. As to the
verbal statements made by S. Rigdon, i.e. reporting the incident to the Alabama
Department of Education, discussing the incident during a meeting, and generally
discussing the incident with unidentified people, there are no facts from which it
could be determined that her speech was protected because there are no facts in the
record providing details as to the content or context of these statements. At best,
the known facts suggest that S. Rigdon may have been acting as a citizen, but even
so, there is no indication that these statements were made in a public forum, for
non-personal reasons, or with the intent to raise public awareness. As discussed
herein above, once Defendants have shown a lack of material fact, it is Plaintiff’s
burden to establish that she engaged in protected speech. See Howard, 32 F.3d at
524. In that regard, S. Rigdon has urged that the subject matter of her son’s
incident - physical abuse of a student by a teacher- is carte blanche a matter of
public concern and has filed an affidavit which indicates her motive was not to
further her own interest. (Doc. 43-10). Such a blanket denial without supporting
evidence does not overcome the lack of factual support that her speech was
protected based on its content, form, and context.
With regard to the statements made by S. Rigdon in her emails to Lewis, the
content, form, and context of those statements do not support that they were made
by a citizen on a matter of public concern. Rather, the emails are clearly written to
one individual, her superior, in a private manner and in response to other workrelated incidents involving her or her husband. (Doc. 41-17 at 26-27,28-29, 31). The
comments were also made after Ward was placed on administrative leave and had
resigned and, therefore, when Ward was no longer on campus or having any contact
with students. Further, while personal motive may not be wholly dispositive of
determining the purpose of speech, a plain reading of the emails show that S.
Rigdon was motivated, at least in part, because the child involved was her son.
Lastly, the emails address multiple school-related issues for which S. Rigdon would
not be involved or have knowledge of but for her position as an employee and only
mention the incident as an aside to other matters. For all off these reasons, taken
as a whole the facts taken in a light most favorable to her, do not show that S.
Rigdon’s speech was protected.
J. Rigdon’s speech suffers the same shortcomings as S. Rigdon’s speech.
Again, in response to Defendant’s assertion that there is no dispute of material fact
that J. Rigdon’s speech was protected, J. Rigdon has failed to provide any facts
which would establish otherwise. Like, S. Rigdon’s verbal statements, the content
and context of J. Rigdon’s verbal statements are wholly unknown. The record
provides no details as to on what dates the statements were made or the content of
the statements from which the proper analysis would result in a conclusion that
those statements, together or separate, are protected as a matter of law. Further,
those statements which have been memorialized in emails between J. Rigdon and
Lewis/Kallhoff show that the incident was brought up not as a topic issue, but as an
aside to other matters being discussed based on J. Rigdon’s role as a teacher,
specifically in response to his being reprimanded by an administrator or having a
conflict with another co-worker. (See Docs. 41-17 at 12, 15, and 16). Those
statements were also made to only one individual, a superior, in private emails and
some after Ward had been placed on administrative leave and was no longer on the
school’s premises. As such, the statements are not indicative of those made by a
citizen, rather than a public employee, or for the purpose of raising public
awareness, rather than to express a personal grievance. For these reasons, the
record as a whole does not support that J. Rigdon’s speech was protected as a
matter of law.
a. The Second Pickering Factor
There being no dispute that Cottrell’s court testimony was protected and
even assuming arguendo that the Rigdons’ speech was protected, the Pickering
balance requires determining whether the public employee's interest in exercising a
constitutional right outweighs the employer's interest in efficiency and the effective
functioning of the office. Pickering, 391 U.S. at 568, 88 S.Ct. at 1734–35; Rankin,
483 U.S. at 388, 107 S.Ct. at 2899. The Supreme Court has identified a number of
factors for courts to consider when performing the balance: (1) whether the
employee's exercising rights “impairs discipline by superiors or harmony among coworkers”; (2) whether the employee's exercising rights “has a detrimental impact on
close working relationships for which personal loyalty and confidence are
necessary”; and (3) whether the employee's exercising rights “impedes the
performance of the [employee's] duties or interferes with the regular operation of
the enterprise.” Rankin, 483 U.S. at 388, 107 S.Ct. at 2899 (citation omitted).
Defendant contends that both Cottrell’s and the Rigdons’ speech was
disruptive to the efficient functioning of the school and therefore, even if it was
protected, their claims should fail as a matter of law because the Board’s interest in
operating the school efficiently outweighs Plaintiffs’ First Amendment rights. (Doc.
41 at 24-28). In support of its position, Defendant cites numerous occasions in
which Cottrell, J. Rigdon, and S. Rigdon, individually interrupted the efficient
functioning of the school by their rhetoric or behavior.7 (Id.) In response, Plaintiffs
Most of the instances have been included in the “Facts” section herein at pp. 3-5.
There are however, instances that are not described in the “Facts” section of this
opinion because they are not related to the incident and are only relevant to the
argue that the Board has intertwined the third and fourth factors of the Pickering
analysis with the second factor. (Doc. 44 at 22). In that regard, Plaintiffs point out
that “[t]he Board is not actually claiming that there is something sufficiently
disruptive about the actual speech in question such that the Board would be
justified in firing Plaintiffs for it.” (Id.) For the most part, this Court agrees with
Plaintiffs. Of the numerous instances brought forth by the Board showing the
disruptive nature of the Rigdon’s behavior, the only instances wherein Plaintiffs
potentially engaged in protected speech are those occasions where the incident was
mentioned in email correspondences (discussed previously herein). Thus, those are
the only instances in which the second Pickering analysis should be applied. While
the other examples of the Rigdons’ behavior may be indicative of the Board’s reason
for non-renewing Plaintiffs, they offer no insight as to whether the Board’s interest
in maintaining an efficient workplace outweigh Plaintiffs’ interest in the protected
With regard to Cottrell, none of the disruptive instances referred to by
Defendant relate to the incident or the protected court testimony, a point Defendant
acknowledges. (Doc. 45 at 11). Accordingly, the interests of the Board in regulating
Cottrell’s speech does not outweigh Cottrell’s First Amendment Rights. With regard
to the conduct wherein the Rigdons’ discussed the incident, they assert that “with
the facts taken in a light most favorable to them, the worst that could be said is that
fourth Pickering factor, which this Court does not need to address.
they were frustrated both by the initial incident and by their supervisors’ seeming
desire to pretend that it never happened. Whether their frustration in that regard
was expressed in ways that were actually disruptive justifying termination is, at
most a question requiring resolution of disputed facts.”8 (Doc. 44 at 23). Plaintiffs’
argument is not compelling. The second Pickering analysis is a question of law to
be decided by this Court and of the instances involving the allegedly protected
speech by Plaintiffs, Defendant has sufficiently established that the Rigdons’ speech
was disruptive to the efficient functioning of the school. Specifically, the email
correspondences wherein J. Rigdon mentions the incident (discussed herein above)
show a pattern of hostility, insubordination, and lack of professionalism all of which
would have affected his ability to perform his duties as an employee. The same is
apparent from the email correspondences from S. Rigdon (discussed herein above)
wherein her rhetoric was accusatory and insubordinate with her superior. The
emails additionally raised conflict with other staff members. (Doc. 41-17 at 14-15).
Notably, the Rigdons have not responded or addressed in any manner the Board’s
position as to the second Pickering factor as it relates to the speech which the
Rigdons allege was protected. Nevertheless, the record is clear that the Rigdons’
speech relating to the incident was, in fact, disruptive to the functioning of the
school because it interfered with the relationships with their co-workers and
The question is not whether the speech justified termination. Rather, the question
is whether the Plaintiff’s interest in speaking outweighs the Board’s interest in
promoting the services it performs.
superiors and hindered the administration’s ability to trust them as employees. As
a result, this Court finds that even if the Rigdons’ speech was protected –which it is
not- their interest in said speech is outweighed by the Board’s interest.
Accordingly, for the reasons stated herein above, Defendant’s motion for
Summary Judgment as to James and Stacey Rigdons’ freedom of speech claim is
granted. The analysis will continue with regard to Cottrell.
b. The Third Pickering Factor
As for Cottrell’s protected speech, his trial testimony, the third Pickering
factor requires this Court to determine whether Cottrell has presented evidence of a
material dispute of fact that the protected speech was a motivating factor in
Cottrell’s non-renewal such that summary judgement would not be appropriate.
The Eleventh Circuit has stated that “[i]t is neither possible nor desirable to fashion
a single standard for determining when an employee has met her initial burden of
demonstrating that a retaliatory intent was a ‘substantial’ or ‘motivating factor’
behind a government employment decision.” Beckwith v. City of Daytona Beach
Shores, 58 F.3d 1554, 1564 (11th Cir.1995). “Rather, we examine the record as a
whole to ascertain whether [Plaintiff] presented sufficient evidence for a reasonable
jury to conclude that his protected speech was a ‘substantial’ motivating factor in
the decision to terminate him.” Stanley v. City of Dalton, Ga,. 219 F.3d 1280, 1291
(11th Cir. 2000) citing to Beckwith, 58 F.3d at 1564. The Eleventh Circuit, however,
has also “identified several factors that are relevant in determining whether
protected speech was a “substantial” motivating factor in an adverse employment
decision: (1) whether temporal proximity exists between the employment action and
the protected activity; (2) whether any reasons for the employment action are
pretextual; (3) whether any comments made, or actions taken, by the employer
indicate that the employment action was related to the protected speech; (4)
whether the asserted reasons for the action vary; and (5) any circumstantial
evidence of causation.” Potter v. City of Miami, 2015 WL 11233079 *5 (S.D. Florida
June 5, 2015) (citing to Stanley, 219 F.3d at 1291 n.20 (11th Cir. 2000) (quotation
Cottrell asserts that his speech was a motivating factor in his termination.
In support of his position, Cottrell points out that (1) the majority of the Board was
aware of the incident because they had heard of it either from the press, the
community, or directly from Kallhoff, (2) the incident was widely talked about, (3)
Kallhoff did not want bad “PR” for the school system and wanted to control any
mention of the school system in the press because bad press reflected badly on him
and the Board, and (4) Kallhoff and other administrators worked to minimize any
negative impact the incident had on the school system and acted to keep Cottrell
from testifying as a witness and that once charges were filed and Ward resigned,
Kallhoff, Ruffin, and Lewis continued to harass Plaintiffs making it clear they
wanted them “gone from Chickasaw” until their eventual recommendations for
termination from Kallhoff to the Board. (Doc. 44 at 23) (internal citations omitted).
Despite Plaintiff’s burden being low at this stage, Cottrell has not presented
any evidence that would create an issue of material fact that his protected speech
was a substantial factor in his ultimate termination. Even considering the speech
which this Court has previously found to be unprotected, i.e. the verbal and written
statement prior to Cottrell’s testimony, Plaintiff has not presented facts that the
speech and the non-renewal are causally linked. Specifically, Cottrell has not
pointed to any comments made by the Board or Kallhoff that suggest his speech was
a factor, much less a substantial one, in his termination. There is no evidence that
the reasons for his non-renewal varied. Moreover, it is undisputed that the
protected trial testimony had not yet occurred when Cottrell was non-renewed by
the Board and the record is devoid of any comments suggesting Cottrell should not
testify or may be looked on with disfavor if he testified in the future. Further,
during his deposition testimony in this action, Cottrell indicated that (1) he did not
know of any instance when a Board member influenced the alleged harassment or
disparate treatment, (2) he had no knowledge of a Board member ever telling an
employee to discriminate or harass him for any reason, and (3) he had no knowledge
of a Board member ever saying that he would be fired for testifying in the Brent
Ward case. (Doc. 41-10 at 6). Cottrell has identified a number of encounters with
Kallhoff and/or Lewis which he believes were pretextual in nature (Doc. 44 at 24).
Namely, in an effort to create a question of fact, Cottrell disputes a number of
allegedly unprofessional instances that were on a list drafted by Kallhoff entitled
“Unprofessional Behavior”. (Doc. 41-17 at 10). However, while Cottrell disputes
whether the actions listed were unprofessional, he does not provide any facts that
they did not occur. For example, Cottrell states one listed item was an unsanctioned
football practice witnessed but not stopped by Lewis and Athletic Director Ruffin.
(Doc. 44 at 24). While Cottrell disputes whether the incident was worthy of
reprimand, he does not dispute that there was, in fact, an unsanctioned football
practice. Another noted incident involved Cottrell having helmets reconditioned
and Cottrell disputes it was unprofessional because he is required as a coach to
have the helmets reconditioned. (Doc. 44 at 17-18). However, he does not dispute
that he had to follow proper accounting procedures to have them reconditioned, the
reason that he was reprimanded on that occasion. (Doc. 41-17 at 5). While Cottrell
states that “all of the allegations in Kallhoff’s document are disputed” he has not
shown that they were pretextual based on his protected court testimony which had
not yet occurred. As a result, Cottrell has not presented evidence of a disputed
material fact to show that his protected speech was a substantial motivating factor
in his non-renewal and summary judgement is due to be granted9.
D. Count Two: Violation of First Amendment Right to Freedom of
Plaintiffs additionally assert they Cottrell need not establish retaliatory
motivation on the part of the Board because entity liability in this action is
established by the retaliatory actions of the superintendent, Kallhoff. Because this
argument pertains to all Plaintiffs equally, this Court will address this argument
herein below as to all Plaintiffs at pp. 35-39.
The Rigdons alternatively argue that they need not establish that their
speech was protected because they have asserted a freedom of association claim and
“freedom of association claims do not require a showing of public concern.” (Doc. 44
at 23 citing to Bouldin v. Troy City Board of Ed., No. 2:13-cv-898-JA-GMB, Doc. 70,
P.19 (M.D. Ala. July 19, 2016)(“In the Eleventh Circuit, ‘public concern’ is not part
of the analysis of a freedom of association claim, regardless of whether that claim is
an expressive association claim or an intimate association claim”). Defendant
contends that a freedom of association claim fails for the same reasons that
Plaintiffs’ freedom of speech claim fails because Garcetti still applies to freedom of
association claims and therefore, it still requires analysis pursuant to Pickering.
(Doc. 45 at 2). Neither party is wrong.
A right of free association is implicit in the First Amendment. Roberts v. U.S.
Jaycees, 468 U.S. 609, 622 (1984). There are two types of protected association:
association involving “intimate human relationships” and association to engage “in
those activities protected by the First Amendment.” Id. at 617–18. Intimate
association concerns those relationships inherent to a family structure. See McCabe
v. Sharrett, 12 F.3d 1558, 1563 (11th Cir.1994) (stating that “[a]t a minimum, the
right of intimate association encompasses the personal relationships that attend the
creation and sustenance of a family.”). Expressive association, on the other hand,
relates to protected rights such as “speech, assembly, petition for redress of
grievances, and the exercise of religion.” Id.
James and Stacey Rigdon have argued they have both an intimate and
expressive association claim. The former being based on their relationship with
their son and the latter being based on the support of their son in pursuing charges
against Ward. (Doc. 44 at 23). In support of their position, Plaintiffs rely solely on
Bouldin wherein the Middle District of Alabama found that freedom of association
claims do not require a showing of public concern and state “[t]he Board has made
no argument to show that termination because of their association would be
constitutionally permissible.” (Doc. 44 at 23). Defendants correctly point out,
however, that in reaching its conclusion the District Court in Bouldin cited
D’Angelo v. School Bd. Of Polk County, FL, 497 F.3d 1203, 1212 (11th Circuit 2007).
The pertinent language in D’Angelo states as follows:
We have long held that, unlike speech or petitions by public employees,
associational activity by public employees need not be on matters of
public concern to be protected under the First Amendment. See, e.g.,
Hatcher v. Bd. of Pub. Educ. & Orphanage, 809 F.2d 1546, 1558 (11th
Cir. 1987); Cook v. Gwinnett County Sch. Dist., 414 F.3d 1313, 1320
(11th Cir. 2005) (citing Hatcher). But see, e.g., Cobb v. Pozzi, 363 F.3d
89, 102 (2d Cir. 2004) (associational conduct by public employee must
touch on matter of public concern); Klug v. Chi. Sch. Reform Bd. of
Trs., 197 F.3d 853, 857 (7th Cir.1999) (same); Boals v. Gray, 775 F.2d
686, 692 (6th Cir. 1985) (same). We explained in Hatcher that
“application of a requirement that associational activity relate to a
matter of public concern in order to be constitutionally protected would
overturn Supreme Court and Eleventh Circuit jurisprudence,” such as
NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488
(1958). Hatcher, 809 F.2d at 1558.
The question is whether the holding in Garcetti
nevertheless applies to public employees who argue that they
were terminated for exercise of their right to free association
and requires those public employees to have engaged in
associational activity as citizens to be protected under the
First Amendment. We conclude that it does.
D’Angelo, 497 F.3d at 1212 (emphasis added). Accordingly, Plaintiffs are correct
that [t]he Eleventh Circuit does not require Plaintiffs to demonstrate that their
claimed freedom of association pertains to matters of public concern.” Thomas v.
McKee, 205 F.supp.2d 1275, 1284 (M.D. Alabama February 11, 2002) citing to
Hatcher, supra at 1558.
However, the inquiry does not simply end. Defendant is
also correct that the freedom of association claim must still be analyzed under the
proper test and this Court agrees that based on the factual assertions in this case,
the Pickering analysis is the proper test. See Cook v. Gwinnett, 414 F.3d 1313, 1318
(11th Cir. 2005)(“[i]n analyzing free association claims in this context, we do not
apply the public concern portion of the Pickering analysis. (citation omitted). We do,
however, apply the Pickering balancing test. (citation omitted); See also Shahar v.
Bowers, 114 F.3d 1097, 1103 (11th Cir. 1997) (en banc) (applying Pickering in the
intimate-association context); Starling v. Bd. of Cnty. Comm'rs, 602 F.3d 1257, 1260
(11th Cir. 2010) (applying the Pickering balance to a claim that intimate association
right was burdened). Therefore, in analyzing whether a government employee's
freedom of association rights have been infringed involves a three-part test.10 Green
Defendant’s argument that the application of the Pickering analysis defeats the
Rigdons’ freedom of association claim misses the mark in part because Defendant
still focuses on whether the associative action was on a matter of public concern, a
factor which is not required in freedom of associations claims. While Defendant
argues that the Rigdons’ freedom of association claim still fails because they were
not acting as citizens the Court did not determine that none of the Rigdons’
statements were made in their capacity as citizens because it was clear that even if
v. City of Montgomery, 792 F.Supp. 1238, 1252 (M.D. Ala. 1992). The first step is for
the court to balance an employer's interest in maintaining an efficient workplace
against the weight accorded to the employee's First Amendment rights. Pickering
391 U.S. at 568. If the First Amendment interest is of sufficient importance,
Plaintiffs then have the burden of showing that the protected activity “was a
substantial motivating factor in the” decision not to promote them. Morgan v. Ford,
6 F.3d 750, 754 (11th Cir. 1993) (internal quotations omitted). If Plaintiffs
demonstrate this, the burden shifts to Defendants to prove by a preponderance of
the evidence that they would not have promoted Plaintiffs, even in the absence of
the protected conduct.” Mt. Healthy, 429 U.S. at 287. In the instant action, there is
no dispute that James and Stacey Rigdon are the parents of Chandler Rigdon or
that a parent-child relationship is intimate association. There is also no dispute
that Chandler Rigdon filed a police report against Ward and that the Rigdons were
both ultimately non-renewed by the Board. There is no argument that the state’s
interest in maintaining an efficient workplace outweighs the constitutional right of
a parent to associate with their child. Therefore, the only question is whether
Plaintiffs have established a question of material fact exists that their association
with their son was a “substantial motivating factor” in the decision to non-renew
they were acting as citizens they were not speaking on a matter of public concern.
Thus, the Court’s conclusion in Section C(2), does not automatically foreclose the
Rigdons’ freedom of association claim and the Court will continue with the relevant
Pickering analysis on this claim.
Defendant argues that in the instant case the evidence is undisputed that the
both the Rigdons’ speech11 and their association was not a substantial motivating
factor in their non-renewal. Defendant makes this argument because Plaintiffs did
not file this lawsuit against any of the individuals who Plaintiffs have alleged
harassed or retaliated against them, namely Lewis, Kallhoff, or Ruffin. Rather,
Defendant posits that Plaintiffs have sued only the Board and there is no evidence
whatsoever that the Board based its decision to non-renew the Rigdons on
Plaintiffs do not dispute that the Board is the only defendant or that there is
no evidence of a policy or custom at issue in this action. There is, likewise, no
evidence that the Board, itself, acted with retaliatory motivation. In fact, all three
board members who voted in favor of non-renewal have been deposed and testified
as to their reasons for voting the way they did after the Rigdons were recommended
for non-renewal by Kallhoff, none of those reasons included retaliatory motivation.
(See Doc. 41-6 at 51-58; Doc. 41-7 at 52-54; Doc. 41-8 at 45, 47-48, 51-52). Lastly,
the Rigdons’ discovery responses do not offer any evidence that the Board acted
This Court has already determined that the Rigdon’s speech is not protected and
that their interest in the relevant speech does not outweigh that of the interests of
the Board. Nevertheless, if this Court had concluded that their speech was
protected, this third Pickering analysis would apply both to the Rigdons’ freedom of
speech and freedom of association claims under the First Amendment.
12 The fact that the superintendent is not named as a party in his official capacity is
not determinative of whether the Board can be held liable for his actions. In fact,
this action was previously dismissed against a different superintendent in her
official capacity because such an action was redundant of an action against the
Board. (See Doc. 19 at 15).
with retaliatory motivation. (Doc. 41-12 at 4-8; Doc. 41-13 at 3-7). Nevertheless,
Plaintiffs argue that it is not necessary for the Board or its members to exercise
retaliatory motivation because “the Superintendent is enough to create liability on
the facts of this case”. (Doc. 44 at 18).13 More specifically, Plaintiffs assert that
entity liability can arise from those who have the authority to make final policy on
behalf of the entity. (Doc. 44at24). In that regard, Plaintiffs posit that the
superintendent and the Board are “co-equal” in terms of authority because the
Board cannot act without the recommendation of the superintendent and therefore,
“neither can create a policy without the other’s approval.” (Id.) Plaintiffs further
argue that “entity liability can arise, as well, from even a single action by an officer
with final policy making authority over the type of decision in question.” (Id. citing
to Pembaur v. Cincinnati, 475 U.S. 469, 480-82 (1986).) Plaintiffs then argue that
because terminating a school board employee requires both a recommendation by
the superintendent and a vote by the Board, therefore, making the superintendent a
final policymaker that could bind liability. (Doc. 44 at 24).
Liability can attach to the Board only if the alleged retaliation by its
employee was caused by an “official policy” or “custom” of the Board. See Monell v.
Dep't of Social Serv., 436 U.S. 658, 690-92 (1978). Otherwise, “[m]unicipal liability
attaches only where the decisionmaker possesses final authority to establish
Plaintiffs assert this position with regard to both the Rigdons and Cottrell.
Therefore, despite this Court’s analysis in Section C(1)(b), this analysis will also be
considered with regard to Cottrell.
municipal policy with respect to the action ordered. Pembaur v. City of Cincinnati,
475 U.S. 469, 481, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (majority opinion)
(footnote omitted). The Eleventh Circuit “has interpreted Monell 's policy or custom
requirement to preclude § 1983 municipal liability for a subordinate official's
decisions when the final policymaker delegates decisionmaking discretion to the
subordinate, but retains the power to review the exercise of that discretion.” Scala
v. City of Winter Park, 116 F.3d 1396, 1399 (11th Cir. 1997). Thus, “[f]inal
policymaking authority over a particular subject area does not vest in an official
whose decisions in the area are subject to meaningful administrative review.” Id. at
Plaintiffs have not shown that final policy making authority vest in the
superintendent with regard to terminations of board employees because it is
apparent that the superintendent’s recommendation, as the decisionmaker, is
subject to meaningful administrative review. See Ala. Code. § 16-24C.
Plaintiffs alternatively contend that because three of the five board members
did not question the superintendent’s recommendations to non-renew Plaintiffs,
that the Board essentially rubber-stamped Kallhoff’s recommendation which
effectively made him the final policymaker. In support of their position, the
Rigdons point to the deposition testimony of Broadhead, Grizzle, and McFall, the
three board members who voted in support of non-renewal, to show that they did
not question Kallhoff’s motive for his recommendation in any way because they
believed it was the job of the superintendent to run the school, not the Board. (See
Doc. 44 at 26). For legal support, Plaintiffs rely heavily on Maschmeier v. Scott, 269
Fed. Appx. 941 (11th Cir. 2008), which Plaintiffs parenthetically describe as
“discussing the possibility of establishing entity liability under § 1983 by proving
that governing body merely rubber-stamps the employment decisions of another
official”. (Doc. 44 at 25). Relying on Maschmeier, Plaintiffs assert that “[a] finder of
fact could therefore conclude that a majority of this Board, as a matter of
philosophy, custom, and practice, engaged in no meaningful review [… and] [a]
finder of fact could readily find that this amount[s] to a delegation of final authority,
to a lack of meaningful review, and to a rubber-stamping process that yields entity
liability based on the acts and motivation of the Superintendent.” (Doc. 44 at 26).
The entire text referred to by Plaintiffs in Maschmeier states as follows:
A municipal official is not a final policymaker when his or her decisions
are subject to meaningful administrative review. Scala, 116 F.3d at
1401. Automatic review of the official's decisions is not required for the
review to be meaningful; an opportunity for meaningful review is
sufficient. Id. at 1402. When a council or board has the power to review
and reverse a municipal official's decision, final policymaking authority
does not vest in the official. See Id. (holding that a city manager and
his subordinate were not final policymakers in regard to plaintiff's
termination because a civil service board had the authority to review
the termination); Quinn v. Monroe County, 330 F.3d 1320, 1326 (11th
Cir.2003) (finding that the career services council's power to review the
county administrator's termination decision deprives the county
administrator of final policymaking authority); Manor Healthcare
Corp. v. Lomelo, 929 F.2d 633, 637 (11th Cir.1991) (holding that the
city council's ability to override the mayor's veto in regard to zoning
issues meant that the mayor was not the final policymaker for zoning
decisions). The plaintiff can try to demonstrate that the board's review
is not meaningful, such that the official should be considered the final
policymaker. See Quinn, 330 F.3d at 1326; Scala, 116 F.3d at 1402. To
succeed in such an argument, the plaintiff would need to show
that the board has defective procedures, merely “rubber
stamps” the official's decisions, or ratified the official's
decision and improper motive. See Quinn, 330 F.3d at 1326;
Scala, 116 F.3d at 1402. However, the existence of a reviewing
board has generally been sufficient to find that the official in
question did not have final policymaking authority. See, e.g.,
Quinn, 330 F.3d at 1326; Morro, 117 F.3d at 514; Scala, 116 F.3d at
Maschmeier at 944 (emphasis added). Plaintiffs have not shown that the
superintendent was the final policymaker in the instant action because it is
undisputed that the recommendation of the superintendent must be approved via a
majority vote of the Board before becoming final. Moreover, there are no facts to
suggest that the Board terminated Plaintiffs without review or that the review was
somehow deficient or only a matter or “rubber-stamping” by the Board. Rather, the
record reflects that the recommendations of Kallhoff with regard to Plaintiffs were
narrowly approved by the Board in a three to two vote. As such, Plaintiffs’
argument that there was no meaningful review is not compelling. While Plaintiffs
argue that every single one of the board members did not review Kallhoff’s
recommendation in this case, it is clear that they had an opportunity to review the
recommendations and, in fact, two of the members both reviewed and rejected
Kallhoff’s recommendation. As a result, in this action, Plaintiffs have not shown
that Kallhoff was a final policy maker by way of the Board simply rubber-stamping
his recommendations, such that liability exists without evidence of retaliatory
motivation caused by an “official policy” or “custom” of the Board.
Because Plaintiffs’ effort to impose liability on the Board by way of Kallhoff’s
actions is not compelling, there remains no evidence from which it could be
determined that Plaintiffs’ speech or association was a substantial factor in their
being non-renewed. Accordingly, the Rigdons’ freedom of association claim fails.
Further because this Court has determined that all of Plaintiffs’ claims fail
based on the analysis set forth herein above, it is unnecessary for the Court to
determine whether a question of material fact exists on Defendant’s position that it
would have terminated Plaintiffs despite their allegedly protected behavior, step
four of the Pickering analysis.
For the reasons stated above, Defendant’s motion for summary judgment is
DONE and ORDERED this 7th day of February 2018.
/s/ Callie V. S. Granade
SENIOR UNITED STATES DISTRICT JUDGE
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