Jackson v. The Board of Commissioners of the Housing Authority of The City of Prichard et al
Filing
55
ORDER granting 49 Motion for Summary Judgment; finding as moot 53 Motion to Strike. There being no other remaining claims or causes of action pursued by plaintiff, this action is dismissed with prejudice. Signed by District Judge William H. Steele on 8/2/2018. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DONALD JACKSON,
Plaintiff,
v.
THE BOARD OF COMMISSIONERS
OF THE HOUSING AUTHORITY OF
THE CITY OF PRICHARD, et al.,
Defendants.
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CIVIL ACTION 17-0149-WS-M
ORDER
This matter comes before the Court on defendants’ Motion for Summary Judgment (doc.
49). Also pending is defendants’ Motion to Strike Affidavit of Felicia A. Jackson (doc. 53).
These motions have been briefed and are ripe for disposition.1
I.
Nature of the Case.
Plaintiff, Donald Jackson, brought this action against his former employer, the Housing
Authority of the City of Prichard (the “Housing Authority”), as well as certain related
defendants, including the Board of Commissioners of the Housing Authority (the “Board”),
Reginald Crenshaw (a Board member), Felicia Snow (the Housing Authority’s Executive
Director), Charles Pharr (former Executive Director for the Housing Authority), and Greg Harris
(counsel for the Housing Authority). Jackson’s Second Amended Complaint purported to assert
multiple civil-rights and constitutional claims against defendants relating to the Housing
Authority’s termination of his employment in February 2016.2 In summary judgment briefing,
1
Plaintiff has filed a document styled “Plaintiff’s Motion in Opposition to
Defendant’s Motion for Summary Judgment” (doc. 52). This filing is simply plaintiff’s
opposition to defendants’ summary judgment motion. It is not a separate motion, was not
docketed as a motion, and will not be adjudicated as a motion.
2
One such cause of action was Count One, a claim for relief under Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. On August 21, 2017, the
(Continued)
however, Jackson has markedly narrowed his theory of recovery. Indeed, plaintiff now indicates
in unequivocal terms that his sole claim is that defendants violated his First Amendment right to
free speech by retaliating against him, and wrongfully terminating him, for speaking with the
Office of Inspector General, all in violation of 42 U.S.C. § 1983.3 Accordingly, this Order will
not address any other claims enumerated in the Second Amended Complaint (such as the due
process / equal protection claims embedded in Count Three), because Jackson has disclaimed
any intent to pursue any cause of action other than a § 1983 claim of retaliatory discharge for
engaging in protected speech under the First Amendment.4
II.
Relevant Background.5
undersigned entered an Order (doc. 33) dismissing Count One as time-barred on its face, such
that Jackson failed to state a Title VII claim upon which relief can be granted.
3
In the “Introduction” section of his summary judgment memorandum, Jackson
writes, “The plaintiff has filed this suit against [defendants] for alleged violation of First
Amendment free speech for speaking to the office of Inspector General during the OIG
investigation into misuse of federal funds ….” (Doc. 52-1, at 1-2.) Elsewhere in the
memorandum, plaintiff reiterates that “Jackson files this suit against the defendants herein
alleging a violation of his First amendment [sic] by firing him in retaliation for his speaking to
the OIG.” (Id. at 10.)
See generally Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th
Cir. 1995) (“the onus is upon the parties to formulate arguments; grounds alleged in the
complaint but not relied upon in summary judgment are deemed abandoned”); Case v. Eslinger,
555 F.3d 1317, 1329 (11th Cir. 2009) (“A party cannot readily complain about the entry of a
summary judgment order that did not consider an argument they chose not to develop for the
district court at the time of the summary judgment motions.”) (citation and internal quotation
marks omitted). Of course, the Court is well aware of the line of authorities emphasizing that
“the district court cannot base the entry of summary judgment on the mere fact that the motion
was unopposed, but, rather, must consider the merits of the motion.” United States v. One Piece
of Real Property Located at 5800 SW 74th Ave., Miami, Fla., 363 F.3d 1099, 1101 (11th Cir.
2004); see also Branch Banking and Trust Co. v. Trammel, 2016 WL 7031299, *3 (S.D. Ala.
Dec. 1, 2016) (“[s]ummary judgment is not automatically granted by virtue of a non-movant’s
silence”) (citation omitted). Those cases are distinguishable because what we have here is not
mere silence by a non-movant; rather, Jackson has represented to the Court that his only cause of
action is a § 1983 claim of retaliation for exercising First Amendment rights in talking to the
Office of Inspector General. In so stating, Jackson has abandoned his other claims.
4
5
The Court is mindful of its obligation under Rule 56 to construe the record,
including all evidence and factual inferences, in the light most favorable to the nonmoving party.
(Continued)
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A.
The Biloxi Automobile Accident.
Jackson began working for the Housing Authority in 2007, and served in the capacity of
Director of Housing Management beginning in 2008. (Jackson Dep. (doc. 49, Exh. A), at 24.)
In that position, Jackson had access to a Housing Authority vehicle, which he was allowed to use
for non-business travel. (Id. at 59.) On the evening of Friday, June 6, 2014, Jackson was
involved in an automobile accident in Biloxi, Mississippi, while driving the company car. (Id. at
55.)6 This incident actually marked Jackson’s second accident in a Housing Authority vehicle;
indeed, he had previously had a car wreck in a company vehicle for which he received no
discipline or reprimand. (Id. at 159.)
The following Monday, June 9, 2014, Jackson notified the Housing Authority’s thenExecutive Director, Charles Pharr, that he had been involved in a “fender bender” in Biloxi. (Id.
at 71-72.) Jackson gave Pharr the telephone number of the attorney who was representing
Jackson in Mississippi proceedings relating to that accident. (Id. at 207-08.) It is not clear from
the record precisely what Jackson told Pharr about the Biloxi accident during that June 9
conversation. Plaintiff’s evidence, however, is that Jackson did not notify Pharr that he had been
charged with DUI and possession of marijuana following the June 6 accident. (Id. at 207-08.)
Based on their discussion and the information conveyed about the incident, Pharr took the
See Smith v. LePage, 834 F.3d 1285, 1296 (11th Cir. 2016) (“It is not this Court’s function to
weigh the facts and decide the truth of the matter at summary judgment. … Instead, where there
are varying accounts of what happened, the proper standard requires us to adopt the account most
favorable to the non-movants.”) (citations and internal quotation marks omitted). Thus,
plaintiff’s evidence is taken as true and all justifiable inferences are drawn in his favor. Also,
federal courts cannot weigh credibility at the summary judgment stage. See Feliciano v. City of
Miami Beach, 707 F.3d 1244, 1252 (11th Cir. 2013) (“Even if a district court believes that the
evidence presented by one side is of doubtful veracity, it is not proper to grant summary
judgment on the basis of credibility choices.”). Therefore, the Court will “make no credibility
determinations or choose between conflicting testimony, but instead accept[s] Plaintiff’s version
of the facts drawing all justifiable inferences in Plaintiff’s favor.” Burnette v. Taylor, 533 F.3d
1325, 1330 (11th Cir. 2008).
6
The accident resulted in only minor damage to both vehicles. Specifically, the
front bumper of Jackson’s vehicle was scratched and punctured, and the other vehicle’s rear
bumper was scraped. (Id. at 64-65.) There was no indication of physical injury to the occupants
of either vehicle, or anyone else.
-3-
following disciplinary action against Jackson: four weeks of suspension without pay, travel
restrictions, automobile restrictions, and deferral of pay raise. (Id. at 98-99.) Jackson’s
testimony, which is accepted as true for summary judgment purposes, is that Pharr assured him
at the time that “this was not a fireable offense” and that “[i]t could have happened to anyone.”
(Id. at 170.) Nonetheless, Pharr testified that he kept Jackson’s case open and instructed him to
keep Pharr posted on the progress of his Mississippi case; however, Jackson “never did provide
[him] with the information to close the case.” (Pharr Dep. (doc. 49, Exh. C), at 27-28.)
B.
The Brookins Termination and OIG Investigation.
In addition to the Biloxi automobile accident, a second storyline is integral to the claims
for relief that Jackson is pursuing here. Among Jackson’s subordinates at the Housing Authority
was a property manager named Sherry Brookins. (Jackson Dep., at 104.) Jackson believed that
then-Executive Director Pharr had a personal friendship with Brookins, such that “she was
treated more as a favored employee that was given benefits and perks that other managers did not
receive.” (Id. at 143.)7
When defendant Felicia Snow became Executive Director of the Housing Authority in
January 2015, she ordered a reconciliation of the agency’s bank statements. (Id. at 109.) In
performing that reconciliation, the Housing Authority’s finance department discovered certain
discrepancies and passed that information on to Jackson. When Jackson investigated, he
concluded that Brookins had “stolen money from the agency.” (Id.) As her supervisor, Jackson
recommended that Brookins’ employment be terminated. (Id.) At a meeting involving Jackson,
Snow and the Housing Authority’s counsel, defendant Greg Harris, all three of them jointly
made the determination that Brookins’ employment would be terminated. (Id. at 109-10.)8
Based on that decision, Jackson mailed a letter to Brookins dated February 6, 2015, informing
7
At some point, Brookins was involved in a car wreck in a company-owned
vehicle, for which the Housing Authority did not discipline or reprimand her. (Id. at 158-59,
163.) During his deposition, Jackson acknowledged that he did not have evidence that Brookins
was under the influence of alcohol or that she possessed marijuana in the company vehicle at the
time of that accident. (Id. at 314.)
8
Jackson testified that he had previously recommended the termination of another
employee, Georgette Nicholson, in 2009 for stealing funds in the same fashion as Brookins.
That recommendation had been adopted and the employee had been fired. Jackson handled both
the Nicholson situation and the Brookins situation the same way. (Id. at 111.)
-4-
her that her employment at the Housing Authority had been terminated based on the discovery of
discrepancies in several financial reports and her subsequent admission that she had been “taking
money orders … and cashing them for [her] personal use.” (Jackson Dep., Exh. 15.) The
Brookins termination letter was signed by Jackson in his capacity as Director of Housing
Management, with a copy sent to Felicia Snow. (Id.)
Immediately after the Brookins termination letter was drafted, defendants Harris and
Pharr pressured Jackson to change his mind. Harris told Jackson, “you need to think about what
you’re doing because your situation could have been handled differently,” referring to the Biloxi
accident, and asked if Brookins could be re-assigned to a position that did not involve handling
funds. (Jackson Dep., at 113-14.) Pharr was even more direct, telling Jackson “[y]ou can’t
terminate her,” urging him to investigate the matter further, and inquiring if she could be
reassigned elsewhere. (Id. at 115-16.) Jackson interpreted these comments as threats,
intimidation and harassment. However, Jackson declined to waver from the termination
decision. Jackson proceeded with Brookins’ dismissal because Brookins had admitted to
stealing federal funds, he had previously recommended termination for similarly situated
employees, and his job duties included ferreting out and removing employees who were stealing.
(Id. at 171-72.) Jackson reasoned that if he had “yielded to that kind of pressure, not do the right
thing, … [n]ot to do what the agency has done historically when it came to matters of
embezzlement and theft of federal funds, that [he] would be on the line with the OIG and HUD
for not taking the appropriate action.” (Id. at 175.) Plaintiff’s evidence is that because he stood
his ground as to the Brookins termination, several individual defendants began encouraging
Snow to take adverse action against Jackson based on the Biloxi accident. (Id. at 167.)
In October 2015, eight months after Brookins’ firing, the Office of Inspector General
(“OIG”) visited the Housing Authority to investigate an anonymous complaint. (Doc. 49, Exh.
E, ¶ 21.) As part of that investigation, the OIG interviewed Jackson. (Id.) During the course of
that interview, Jackson spoke with the OIG about “a number of issues,” including topics relating
to Sherry Brookins. (Jackson Dep., at 222.) Jackson openly and honestly answered all of the
OIG’s questions, both as to Brookins and as to other unspecified matters. (Id. at 225-26.)
Jackson confirmed that he spoke with the OIG in his capacity, and pursuant to his official job
duties, as the Housing Authority’s Director of Housing Management. (Id. at 222-23, 225.)
Jackson’s interview with the OIG was conducted in the Housing Authority’s boardroom with
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two agents present. (Id. at 234-36.) There was no court reporter and the interview was not open
to the general public. (Id.) All of Jackson’s speech to the OIG agents was within the scope of
his duties as Director of Housing Management. (Id. at 237.) Jackson testified that after he
interviewed with the OIG in October 2015, defendants Pharr, Harris and Crenshaw resumed their
previous campaign to convince Snow to take adverse action against him. (Id. at 220.) For her
part, Snow was aware that Jackson had been interviewed by OIG agents, but she did not know
any particulars of what was discussed during that interview. (Doc. 49, Exh. E, ¶ 21.)
C.
The Termination of Jackson’s Employment.
The two disparate storylines outlined above (namely, Jackson’s automobile accident in
Biloxi in June 2014, and Brookins’ termination in February 2015) merge into one as possible
causes for the termination of Jackson’s employment in February 2016.
Defendant Charles Pharr ceased being Executive Director of the Housing Authority in
December 2014, and was succeeded by defendant Felicia Snow in January 2015. (Snow Dep.
(doc. 49, Exh. B), at 31.) Snow became aware of Jackson’s accident in Biloxi during her
transition to Executive Director. (Id. at 15.) According to Snow, because Pharr had left the
disciplinary matter against Jackson open pending the outcome of Jackson’s legal proceedings in
Mississippi, she was not comfortable taking further action as to Jackson until additional
information about the matter was received. (Id. at 38-40.)
On or about April 1, 2015, a lawyer representing Jackson in the Mississippi proceedings
sent a letter to Snow. The letter included the following language: “Please be advised that Mr.
Jackson’s DUI case in Biloxi, Mississippi will be resolved in June 2015. Mr. Jackson’s charges
will be non-adjudicated and expunged.” (Jackson Dep., at 90 & Exh. 6.) On April 21, 2015,
Snow followed up with an email to Jackson requesting certain additional information about the
Biloxi accident. (Snow Dep., at 63.) Specifically, she requested that he immediately provide
“[a]ny and all information related to [his] current driving restrictions,” and that by the following
day, he furnish both a “[w]ritten statement about the incident” and the “[i]mposed
punishment/restrictions by [the Housing Authority].” (Id. at Exh. 1.) Jackson submitted such a
written statement to Snow, in which he described the accident as a “fender bender” that occurred
when the car in front of him abruptly braked, such that the other vehicle’s “[r]ear right side
passenger bumper encountered the front passenger bumper of the [Housing Authority] vehicle.”
(Jackson Dep., at 127-28.) Jackson’s written statement of April 2015 omitted any mention of
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pending DUI or marijuana charges as a result of the accident. (Id. at 103-04.) Jackson’s
statement to Snow also failed to identify any driving restrictions, including the interlock device
that he was required to place on his personal vehicle. (Doc. 49, Exh. E, ¶¶ 6, 8, 9.)
In late 2015, Jackson furnished to Snow a copy of a court order from Biloxi Municipal
Court dated September 10, 2015. (Doc. 49, Exh. E, ¶ 10.) That order, styled “Order to
Expunge,” directed that all records relating to Jackson’s “arrest, trial and dismissal on the
charges of … DUI … should be immediately expunged,” on the grounds that such charges had
been “nolle prossed, dismissed, passed to the inactive files or otherwise not prosecuted.”
(Jackson Dep., Exh. 11.) According to the Order, Jackson “shall not hereafter be found under
any provisions of any law, to be guilty of perjury or otherwise giving a false statement by reason
of failure to acknowledge such arrest, trial, and disposition of said charges to any inquiry made
of said defendant for any purpose.” (Id.)9
In December 2015, Snow received a copy of the Biloxi Police Department Offense /
Incident Report dated June 6, 2014. (Snow Dep., at 65; doc. 49, Exh. E, ¶ 11.) The
circumstances under which this Report was furnished to Snow (and the reasons for the belated
timing of such disclosure) are unclear; however, the record reflects that Jackson’s attorney from
the Mississippi proceedings was the source of the document. (Exh. E, ¶ 11.) Prior to December
2015, Snow was unaware of the existence or contents of that Offense/Incident Report. (Id.) The
Report contained troubling details about Jackson’s condition and possessions at the time of the
“fender bender,” including the following: (i) after the accident, Biloxi police officers observed
Jackson to have slurred speech, glassy and bloodshot eyes, and unstable balance; (ii) Jackson
failed a field sobriety test and was arrested for DUI; (iii) the ensuing inventory search of the
vehicle (which, again, was owned by the Housing Authority) revealed the presence of an open
bottle of vodka and drug paraphernalia containing marijuana residue; (iv) Jackson refused to
submit to a breathalyzer test; and (v) Jackson was charged with driving under the influence and
possession of drug paraphernalia. (Jackson Dep., at Exh. 5.) Jackson had disclosed none of
9
Nothing in that Order to Expunge would prohibit or restrict Jackson’s employer
from taking adverse employment action against him on the basis of its understanding of the
events that took place in Biloxi on June 6, 2014. Plaintiff does not maintain otherwise.
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these details to Snow when she previously requested information about the Biloxi incident.
(Doc. 49, Exh. E, ¶ 11.)
Upon learning these details, Snow became concerned that entrusting a Housing Authority
executive with a company vehicle in light of these events “would be a problem as it relates to
liability and also future reprimands and disciplinary actions on staff.” (Snow Dep., at 66.)10 On
that basis, according to Snow’s testimony, she decided in December 2015 to terminate Jackson’s
employment at the Housing Authority. (Id. at 31.) Snow testified that she decided to terminate
Jackson’s employment “[f]or driving under the influence in a housing authority vehicle in Biloxi
with … various counts of marijuana charges.” (Id. at 67.) Snow was the only decision maker for
Jackson’s termination. (Doc. 49, Exh. E, ¶ 18.) Although she made the decision in December
2015, it was not implemented until February 2016 because Jackson had been on sick leave
during the interim. (Id., ¶ 13.)
On February 12, 2016, Snow hand-delivered a termination letter to Jackson. (Id., ¶ 12.)
That letter notified Jackson that his employment with the Housing Authority was terminated,
effective immediately. (Snow Dep., Exh. 4.) The February 12 letter identified multiple sections
of the Housing Authority’s Personnel Policy that were considered in the termination decision,
including provisions addressing (i) abuse or misuse of Housing Authority property or vehicles;
(ii) violations of departmental rules; (iii) consumption of alcoholic beverages during off-duty
hours in a manner that adversely affects work performance; (iv) acts outside of duty hours that
are incompatible with public service; (v) acts that endanger the safety or health of others, or that
discredit the Housing Authority; and (vi) use of Housing Authority property without proper
authority. (Id.)
III.
Summary Judgment Standard.
Summary judgment should be granted only “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.” Rule
56(a), Fed.R.Civ.P. The party seeking summary judgment bears “the initial burden to show the
10
Snow elaborated that it was an obvious concern for a Housing Authority
employee driving a Housing Authority vehicle to be “endangering the health and safety of
others,” from the standpoint of both potential liability to the Housing Authority and “the bad
precedential effect that would be set for similar actions if appropriate action was not taken with
Jackson.” (Doc. 49, Exh. E, at ¶ 14.)
-8-
district court, by reference to materials on file, that there are no genuine issues of material fact
that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).
Once the moving party has satisfied its responsibility, the burden shifts to the non-movant to
show the existence of a genuine issue of material fact. Id. “If the nonmoving party fails to make
'a sufficient showing on an essential element of her case with respect to which she has the burden
of proof,' the moving party is entitled to summary judgment.” Id. (quoting Celotex Corp. v.
Catrett, 477 U.S. 317 (1986)) (footnote omitted). “In reviewing whether the nonmoving party
has met its burden, the court must stop short of weighing the evidence and making credibility
determinations of the truth of the matter. Instead, the evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Tipton v. Bergrohr GMBHSiegen, 965 F.2d 994, 999 (11th Cir. 1992) (internal citations and quotations omitted).
“Summary judgment is justified only for those cases devoid of any need for factual
determinations.” Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1016 (11th Cir. 1987)
(citation omitted).
IV.
Analysis.
As noted above, notwithstanding the multiple causes of action pleaded in the Second
Amended Complaint, the sole claim that Jackson now pursues against defendants is one for First
Amendment retaliation. Both Jackson and his counsel confirmed during the Jackson deposition
that his claims are asserted exclusively under the First Amendment.11 Moreover, Jackson
repeatedly, unambiguously testified that the nature of his First Amendment claims under § 1983
is that defendants violated his rights by terminating his employment in retaliation for having
given true and honest testimony to the OIG.12 In his summary judgment brief, plaintiff
11
In response to defense counsel’s comment as to the form and nature of Jackson’s
claims that “it’s really all part of the First Amendment,” plaintiff’s counsel stated, “It sure is.”
(Jackson Dep., at 282.) Defense counsel followed up by asking, “[W]hat I’m trying to figure out
is other than the First Amendment claims, is there some other violation of your constitutional
rights?” (Id. at 286.) Both Jackson and his lawyer answered in the negative. (Id.) When
Jackson identified his claims and defense counsel asked, “those all come back to being First
Amendment?” Jackson answered, “Okay. Yes.” (Id. at 287.)
12
See Jackson Dep., at 219 (“my First Amendment rights were violated because I
was actually speaking to the OIG”), 233 (“when we’re talking about First Amendment rights,
I’m saying that my First Amendment rights were violated as a result of me having spoken to the
OIG and giving true and honest testimony”), 240 (in response to question as to whether he says
(Continued)
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succinctly summarized his theory as follows: “In the case before the court, Jackson was fired in
retaliation for giving truthful testimony during the OIG’s investigation regarding corruption and
misuse of federal funds.” (Doc. 52-1, at 9.) Plaintiff’s position could not be clearer that, in his
view, “Jackson was fired for speaking to the OIG,” thereby violating his First Amendment rights.
(Id. at 10.) Jackson has abandoned all other claims and theories of liability. Therefore, it is to
that claim alone that the summary judgment analysis will be directed.
The legal test for First Amendment retaliation claims by public employees such as
Jackson for disciplinary action by a government employer is well-settled. In particular, the
Eleventh Circuit has adopted a four-stage analysis “[i]n cases where the state denies discharging
the employee because of speech.” Carter v. City of Melbourne, Fla., 731 F.3d 1161, 1168 (11th
Cir. 2013) (citation omitted). “First, we consider whether Plaintiff’s speech was made as a
citizen and whether it implicated a matter of public concern.” Moss v. City of Pembroke Pines,
782 F.3d 613, 617 (11th Cir. 2015) (citations and internal quotation marks omitted); see also
Carter, 731 F.3d at 1168. If so, then the court weighs the plaintiff’s First Amendment interests
against the government employer’s interest “in regulating his speech to promote the efficiency of
the public services it performs through its employees.” Moss, 782 F.3d at 618 (citations and
internal quotation marks omitted); see also Carter, 731 F.3d at 1168. Both of these prongs
constitute questions of law decided by the court to determine whether the plaintiff’s speech is
subject to First Amendment protection. See Moss, 782 F.3d at 618. If the court concludes that
the plaintiff’s speech is so protected, then “the third stage of the analysis requires Plaintiff to
show that it was a substantial motivating factor in his termination.” Id.; see also Carter, 731
F.3d at 1168. If so, then the fourth stage is for the government employer to show that it would
have terminated the plaintiff’s employment even in the absence of such protected speech. Moss,
782 F.3d at 618; see also Carter, 731 F.3d at 1168. Because the third and fourth stages
addressing “the causal link between Plaintiff’s speech and his termination[] are questions of fact,
his First Amendment rights were violated in any other way, “I’m not sure I know exactly”), 245
(agreeing with defense counsel that his claim is that he was being punished for exercising his
right to free speech when he “opened [his] mouth to speak about Sherry Brookins to the
defendants and to the OIG,” and that “[o]ther than with the OIG,” he was not making any other
or different free speech claims).
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a jury resolves them unless the evidence is undisputed.” Moss, 782 F.3d at 618. Defendants’
Motion for Summary Judgment focuses on the first and third prongs of the four-stage analysis.
A.
First Stage: Speech as a Citizen on a Matter of Public Concern.
The first stage of the analysis turns on whether the plaintiff’s speech was made as a
“citizen” and whether it implicated a matter of “public concern.” Moss, 782 F.3d at 617. The
Supreme Court has explained that “employee speech is largely unprotected if it is part of what
the employee is paid to do … or if it involved a matter of only private concern.” Janus v.
American Federation of State, County, and Mun. Employees, Council 31, 138 S.Ct. 2448, 2471
(2018). “On the other hand, when a public employee speaks as a citizen on a matter of public
concern, the employee’s speech is protected unless” the Pickering balancing test shows that the
state’s interest outweighs the employee’s interest. Id. Thus, a plaintiff cannot satisfy this first
stage without a showing that both (i) the speech was made as a citizen, rather than as an
employee, and (ii) the speech involved a matter of public concern, rather than private concern.
See, e.g., Alves v. Board of Regents of the University System of Georgia, 804 F.3d 1149, 1160
(11th Cir. 2015) (“For her speech to be constitutionally protected, an employee must have spoken
(1) as a citizen and (2) on a matter of public concern.”). Defendants argue that neither
prerequisite for First Amendment protection is satisfied here.
To resolve the legal question of whether a plaintiff’s speech is made as a citizen or as an
employee, “[t]he central inquiry is whether the speech at issue owes its existence to the
employee’s professional responsibilities.” Moss, 782 F.3d at 618 (citation and internal quotation
marks omitted); see also Alves, 804 F.3d at 1160 (“when public employees make statements
pursuant to their official duties, the employees are not speaking as citizens”) (citation omitted).
“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.” Moss, 782 F.3d at 618 (citation omitted). Indeed, for an employee to be
speaking as an employee (rather than a citizen), the speech must be “made in accordance with or
in furtherance of the ordinary responsibilities of her employment, not merely speech that
concerns the ordinary responsibilities of her employment.” Alves, 804 F.3d at 1162. “Whether a
public employee spoke as a citizen is a question of law for the court to resolve.” Carollo v.
Boria, 833 F.3d 1322, 1329 (11th Cir. 2016) (citation and internal marks omitted).
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When Jackson spoke with the OIG investigators in October 2015, he did so as an
employee, not as a citizen. How do we know? For starters, Jackson repeatedly acknowledged as
much in his deposition. Specifically, Jackson admitted that all of his speech to the OIG was
within his duties as Director of Housing Management, that it was part of his job to tell the OIG
these things, and that when he was speaking to OIG, he did so in his capacity as Director of
Housing Management and as part of his job duties. (Jackson Dep., at 222, 223, 237, 246.)13
Moreover, Jackson was interviewed by OIG agents in the workplace (i.e., the Housing
Authority’s boardroom) about matters that Jackson had observed or experienced in the
workplace as Director of Housing Management. All information before this Court is that
Jackson spoke to the OIG in accordance with his job duties as Director of Housing Management
about the subject matter of his job, in a workplace interview setting. These facts and
circumstances favor a conclusion that, as a matter of law, Jackson’s speech to the OIG was made
as an employee, not as a citizen, because such speech was in accordance with, and in furtherance
of, the ordinary responsibilities of Jackson’s job. As such, this speech was outside the scope of
First Amendment protection. See generally Alves, 804 F.3d at 1164-65 (concluding that
plaintiffs spoke as employees, not as citizens, where they raised concerns about director of
counseling’s poor leadership and mismanagement “in furtherance of their ability to fulfill their
duties with the goal of correcting Dr. Lee-Barber’s alleged mismanagement, which interfered
with Appellants’ ability to perform”); Phillips v. City of Dawsonville, 499 F.3d 1239, 1242-43
(11th Cir. 2007) (“Plaintiff’s appointed position as City Clerk gave her some control over and
accountability for City funds …. We conclude that the reporting here of the improper use of city
resources and of behavior that might well result in expense and even liability for the City was
speech pursuant to Plaintiff’s official duties.”).
13
In his summary judgment brief, plaintiff takes defendants to task for failing to
“submit any evidence out lining [sic] the duties require [sic] of Jackson’s position.” (Doc. 52-1,
at 12.) Under the circumstances, however, it was unnecessary for defendants to present a formal
job description or other comprehensive exposition of the job duties of the Director of Housing
Management. After all, Jackson repeatedly, unequivocally testified that his interview with the
OIG agents was given as part of his official job duties; therefore, we know that the ordinary
responsibilities of Director of Housing Management included cooperating with OIG inquiries
and submitting to OIG interviews.
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Jackson’s argument that he spoke as a citizen rests entirely on application of the Supreme
Court’s decision in Lane v. Franks, 134 S.Ct. 2369 (2014). Lane terminated the employment of
one of his subordinates (Schmitz) in the course of his ordinary job duties. When Schmitz was
later indicted for fraud and theft of federal funds, Lane was subpoenaed to testify at her trial
about events leading to the termination decision, which he did. Lane was subsequently fired,
after which he filed a civil suit alleging that the employer “had violated the First Amendment by
firing him in retaliation for his testimony against Schmitz.” Id. at 2376. The employer argued
that Lane’s speech was as an employee, not as a citizen, because he was acting in accordance
with his official duties when he investigated and terminated Schultz. The Supreme Court
rejected this contention, concluding that Lane had spoken as a citizen. In so doing, the Lane
Court reasoned that “[s]worn testimony in judicial proceedings is a quintessential example of
speech as a citizen for a simple reason: Anyone who testifies in court bears an obligation, to the
court and society at large, to tell the truth. … That independent obligation renders sworn
testimony speech as a citizen and sets it apart from speech made purely in the capacity of an
employee.” Id. at 2379. In opposing defendants’ Rule 56 Motion, Jackson would seek to align
this case with the facts and rationale of Lane.14
Plaintiff’s reliance on Lane cannot withstand scrutiny. After all, the Eleventh Circuit has
explained that “[t]he Court’s holding in Lane is a narrow one,” one that “relied specifically on
the nature of compelled testimony.” Alves, 804 F.3d at 1163. This insight underscores the
14
Perhaps the clearest exposition of Jackson’s argument is as follows: “The Court
held that because lane [sic] did not testify to fulfill a work responsibility he spoke as a citizen,
not as an employee. Clearly, Jackson also did not testify to fulfill a work responsibility he spoke
as a citizen, not as an employee.” (Doc. 52-1, at 12.) Plaintiff’s characterization of Jackson’s
“work responsibilities” cannot be reconciled with Jackson’s own deposition testimony. In his
deposition, Jackson acknowledged that he spoke with the OIG as the Director of Housing
Management, within the scope of his duties in that position. (Jackson Dep., at 222-23.) Jackson
answered affirmatively when asked if his speech to the OIG was given in his capacity as Director
of Housing Management. (Id. at 225.) He answered affirmatively when asked if he was
discharging his official duties by giving that speech. (Id.) He answered affirmatively when
asked if “all of that speech was within [his] duties as the director of housing management.” (Id.
at 237.) And he answered affirmatively when asked, “So it’s part of your job to tell them those
things, correct?” (Id.) Given the unambiguous record evidence on this point, the Court cannot
accept plaintiff’s counsel’s unsupported representation that “Jackson also did not testify to fulfill
a work responsibility,” because that statement is directly contradicted by plaintiff’s own clear
deposition testimony in this matter.
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critical infirmity in plaintiff’s argument. Unlike the plaintiff in Lane, Jackson did not provide
sworn testimony in judicial proceedings. There is no evidence was that his participation was
compelled via subpoena. He did not appear in court. No court reporter was present. There is no
indication that OIG agents placed him under oath. Instead, the uncontroverted record evidence is
that OIG agents simply interviewed Jackson about Sherry Brookins and other matters
(apparently, Jackson’s own private dissatisfactions and grievances against the Housing
Authority) in a conference room at the Housing Authority. Unlike Lane, the facts of this case
have nothing to do with compelled testimony. Unlike Lane, Jackson spoke with the OIG agents
strictly in his capacity as Director of Housing Management, in fulfillment of the duties of that
position. Unlike Lane, Jackson was not laboring under an independent obligation “to the court
and society at large, to tell the truth.” For all of these reasons, the narrow holding of Lane v.
Franks is inapplicable here, and cannot support classification of Jackson’s speech as citizen
speech for purposes of a First Amendment retaliation analysis. Rather, all evidence in the
summary judgment record is that Jackson’s speech to the OIG agents was made in accordance
with or in furtherance of the ordinary responsibilities of his employment, thereby constituting
“employee” speech beyond the purview of First Amendment protection.
Even if Jackson’s speech were made as a citizen rather than employee, it would remain
excluded from First Amendment protection because the summary judgment record does not
show that it implicated a matter of public concern. “For an employee’s speech to rise to the level
of public concern, it must relate to a matter of political, social, or other concern to the
community.” Watkins v. Bowden, 105 F.3d 1344, 1353 (11th Cir. 1997). “[T]he relevant inquiry
is not whether the public would be interested in the topic of the speech at issue but rather is
whether the purpose of the plaintiff’s speech was to raise issues of public concern.” Boyce v.
Andrew, 510 F.3d 1333, 1344 (11th Cir. 2006) (citations and internal marks omitted). To
determine whether the purpose of the speech was to raise issues of public concern or to further
the employee’s own private interest, courts “consider the content, form, and context of the
employee’s statements, the employee’s attempts to make the concerns public, and the
employee’s motivation in speaking.” Id. Because “an employee’s speech will rarely be entirely
private or entirely public, … [w]e ask whether the main thrust of the speech in question is
essentially public in nature or private. … If the main thrust of a public employee’s speech is on a
matter of public concern, the speech is protected.” Alves, 804 F.3d at 1162 (citations omitted).
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Defendants argue that, on this record, no reasonable finder of fact could conclude that
Jackson’s speech to the OIG agents implicated a matter of public concern. Jackson’s deposition
testimony was exceedingly vague as to the contents of his speech to the OIG. His summary of
the OIG interview was, “It was more than Sherry Brookins when I met with the OIG. There was
a number of issues that came up.” (Jackson Dep., at 222.) Later in his deposition, Jackson
elaborated that the OIG asked questions “[a]bout the agency. Sherry Brookins was only one
aspect of what they were questioning me about.” (Id. at 226.) The summary judgment record
thus reflects only that Jackson spoke to the OIG agents about Sherry Brookins (a former
employee whose employment at the Housing Authority had been terminated eight months
earlier) and “about the agency.” No reasonable finder of fact could conclude on this evidence
that the purpose of Jackson’s speech to the OIG was to raise issues of public concern. There
simply are no record facts that might support a finding. On summary judgment, plaintiff has not
meaningfully addressed defendants’ argument that the “matter of public concern” element is not
satisfied.15 Accordingly, even if genuine issues of material fact remained as to whether Jackson
was speaking as an employee or a citizen, his First Amendment claim would nonetheless fail as a
matter of law for want of evidence that his speech related to a matter of public concern.
B.
Third Stage: Speech as Substantial Motivating Factor in Termination.
Even if Jackson had made a sufficient showing of genuine issues of material fact as to
whether his speech to the OIG was made as an employee on a matter of public concern, so as to
implicate First Amendment protection, defendants would remain entitled to summary judgment.
As noted, “the third stage of the analysis requires Plaintiff to show that [the protected speech]
15
At best, plaintiff responds in his summary judgment brief by arguing that he gave
testimony to the OIG “investigating a complaint file [sic] against the Prichard Housing Authority
regarding corruption in a public program and misuse of federal funds. … As a result, he was
speaking as a citizen on a matter of public concern.” (Doc. 52-1, at 14.) The trouble is that
plaintiff does not point to any record evidence that would support a finding that his OIG
interview was focused on “corruption in a public program and misuse of federal funds.” On
summary judgment, the Court cannot accept plaintiff’s counsel’s unsupported ipse dixit from a
brief. See, e.g., Ely v. Mobile Housing Bd., 13 F. Supp.3d 1216, 1218 n.1 (S.D. Ala. 2014)
(“This Court cannot and will not simply take counsel’s word for it that particular unsupported
facts are correct.”); Kirksey v. Schindler Elevator Corp., 2016 WL 3189242, *8 n.17 (S.D. Ala.
June 7, 2016) (“Of course, a court on summary judgment cannot accept counsel’s ipse dixit for a
particular fact.”).
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was a substantial motivating factor in his termination.” Moss, 782 F.3d at 618. For purposes of
this analysis, “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) (citation omitted).
The most glaring causation problem confronting Jackson is that uncontroverted record
evidence confirms that the person who terminated his employment at the Housing Authority was
unaware of his protected speech. It is, of course, black-letter law in all manner of employment
retaliation claims that “[t]o establish a causal connection, a plaintiff must show that the relevant
decisionmaker was aware of the protected conduct.” Kidd v. Mando American Corp., 731 F.3d
1196, 1211 (11th Cir. 2013) (citation and internal question marks omitted); see also Jones v. Gulf
Coast Health Care of Delaware, LLC, 854 F.3d 1261, 1271 (11th Cir. 2017) (“Generally, a
plaintiff can show the two events are not wholly unrelated if the plaintiff shows that the decision
maker was aware of the protected conduct at the time of the adverse employment action.”)
(citation omitted); Willis v. Publix Super Markets, Inc., 619 Fed.Appx. 960, 962 (11th Cir. Sept.
25, 2015) (affirming dismissal of retaliation claims where plaintiff “failed to establish a causal
connection between the protected activity and his termination because he did not show that any
of the decision-makers were aware of the protected conduct at the time of his termination”). As
a matter of common sense, “[a] decision maker cannot have been motivated to retaliate by
something unknown to him.” Brungart v. BellSouth Telecommunications, Inc., 231 F.3d 791,
799 (11th Cir. 2000). Stated differently, a plaintiff’s protected speech under the First
Amendment cannot have been a substantial motivating factor in the decision to terminate him if
the decision maker who fired him did not know of the protected speech.
Here, the summary judgment record unequivocally shows that Felicia Snow, who was the
Executive Director of the Housing Authority at the time, was the sole decision maker involved in
the termination of Jackson’s employment. (Doc. 49, Exh. E, ¶ 18.) The record further shows
that, while Snow was aware that the OIG had interviewed Jackson, she did not know “what was
discussed during that interview.” (Id., ¶ 21.) Plaintiff has offered no facts or argument that
might give rise to genuine issues of fact on this point. As such, it is uncontroverted that Snow
had no knowledge, and no reason to know, that Jackson had engaged in protected speech with
OIG officials when she made the decision to terminate his employment at the Housing Authority.
-16-
For that reason, it is common sense that any protected speech by Jackson to the OIG agents could
not have been a substantial motivating factor in Snow’s decision to fire him. Not only has
plaintiff failed to present evidence raising genuine issues of material fact as to causation and
decision maker knowledge of protected speech, but also Jackson has failed to address this
argument in any meaningful way in his summary judgment submissions.
The Court recognizes, of course, that the question of causation in a First Amendment
retaliation case is typically one of fact for the jury to decide. But where, as here, the undisputed
evidence shows that no reasonable jury could find the requisite causal relationship, summary
judgment is appropriate. See Moss, 782 F.3d at 618 (because causal link between plaintiff’s
speech and termination is a question of fact, jury must resolve it “unless the evidence is
undisputed”); see also VanDeWalle v. Leon County Florida, 661 Fed.Appx. 581, 587 (11th Cir.
Sept. 9, 2016) (summary judgment for defendant on First Amendment retaliation claim is
appropriate where, “even assuming [plaintiff] engaged in speech protected by the First
Amendment, no reasonable jury could conclude that the speech and her termination were
causally related”). Such is the case on this record; therefore, the Court concludes that defendants
would be entitled to summary judgment on Jackson’s First Amendment retaliation claim for
failure to establish the third prong (the “substantial motivating factor” prong), even assuming
that Jackson’s speech implicated the First Amendment as a threshold matter.
V.
Conclusion.
For all of the foregoing reasons, it is ordered as follows:
1.
Defendants’ Motion to Strike the Affidavit of Felicia A. Jackson (doc. 53) is
moot because the Court need not reach it to decide the pending summary
judgment motion in its entirety;
2.
Defendants’ Motion for Summary Judgment (doc. 49) is granted, because
plaintiff’s sole claim is one of First Amendment retaliation, but the record
unambiguously shows that (i) the purportedly protected speech was made as an
employee and did not involve a matter of public concern, such that it was outside
First Amendment protection; and (ii) no genuine issue of material fact concerning
causation exists because undisputed record evidence shows that the decision
maker who terminated Jackson’s employment was unaware of the purportedly
protected speech at the time the decision was made; and
-17-
3.
There being no other remaining claims or causes of action pursued by plaintiff,
this action is dismissed with prejudice; and
4.
A separate Judgment will enter.
DONE and ORDERED this 2nd day of August, 2018.
s/ WILLIAM H. STEELE
UNITED STATES DISTRICT JUDGE
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