Brown v. Leflore County, Mississippi

Filing 60

Opinion and Order denying 43 Motion for Summary Judgment. Signed by District Judge Debra M. Brown on 12/15/15. (tab)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
TROY D. BROWN

PLAINTIFF

V.

NO. 4:14-CV-00114-DMB-JMV

LEFLORE COUNTY, MISSISSIPPI

DEFENDANT

OPINION AND ORDER DENYING
MOTION FOR SUMMARY JUDGMENT
This is a First Amendment retaliation case in which Plaintiff Troy D. Brown alleges that
he was wrongly discharged from his position as Director of the Greenwood Leflore Emergency
Management Agency because of comments he made in two newspaper publications. Before the
Court is the motion for summary judgment filed by Defendant Leflore County, Mississippi.
Doc. #43. For the reasons below, the motion will be denied.
I
Summary Judgment Standard
When a party moves for summary judgment, the reviewing court shall grant the motion
“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.” Fed .R. Civ. P. 56(a). A dispute about a material fact is
genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts on
questions of fact must be resolved in favor of the party opposing summary judgment. See Evans
v. City of Houston, 246 F.3d 344, 348 (5th Cir. 2001) (citation omitted). “Summary judgment
should be used ‘most sparingly in ... First Amendment case[s] ... involving delicate constitutional
rights, complex fact situations, disputed testimony, and questionable credibilities.’” Benningfield

v. City of Houston, 157 F.3d 369, 377 (5th Cir.1998) (alterations in original) (quoting Porter v.
Califano, 592 F.2d 770, 778 (5th Cir. 1979)).
II
Background
On August 26, 2013, Leflore County, Mississippi (“County”), acting through its Board of
Supervisors (“Board”), hired Troy Brown as the Director of the Greenwood Leflore Emergency
Management Agency (“GLEMA”). Doc. #43-2. The Board is composed of five members:
Robert Collins, Phillip Wolf, Anjuan Brown, Robert Moore, and the current Board President,
Wayne Self. GLEMA is the County department tasked with disaster preparedness and response.
See generally MISS. CODE ANN. § 33-15-1, et seq. As Director, Brown’s job included, among
other tasks, interacting with state and federal emergency management agencies to ensure the
County was prepared for disasters, and coordinating with first responders to ensure their
preparedness to effectively respond to a disaster. Doc. #51-1 at 59:7–18.
When Brown assumed the Director position, one of his first important tasks was to
compile and submit an inventory list of GLEMA’s equipment to the Board. Id.; Doc. #43-5.
Brown had difficulty assembling the list to the satisfaction of the Board, missing at least two
deadlines to submit the completed inventory.1 Doc. #43-7; Doc. #43-15; Doc. #43-24. Brown
attributed the missed deadlines to several causes, including: (1) an outdated list of GLEMA
inventory caused by the failure of his predecessor, T.W. Copper, to complete and sign off on
GLEMA’s inventory list before his June 2013 retirement;2 (2) interference by Sam Abraham, the

1

On November 25, 2013, the Board ordered Brown to “finalize his inventory and present [it] to the Board by
February 1, 2014.” Doc. #43-7. Brown failed to complete the inventory by February 1, 2014, and the Board moved
the deadline to February 10, 2014. Doc. #43-15. Brown submitted his inventory on February 10, 2014, but the
Board found his submission to be incomplete. See Doc. #43-24.
2

Doc. #51-1 at 68:8–69:14.

2

County’s Chancery Clerk and Administrator,3 who Brown claims improperly loaned out
equipment to other County departments without completing the required forms;4 (3) a lack of
cooperation from other County personnel that possessed certain GLEMA equipment;5 and (4) a
lack of cooperation from two of GLEMA’s employees, Bobby Norwood and Dorothy Ivory.6
Throughout his tenure as GLEMA’s director, Brown made these concerns known to his
supervisors.7
Ultimately, on February 16, 2014, Brown published a guest column in the Greenwood
Commonwealth (“Commonwealth”) titled, “Sam Abraham has it out for me,” detailing some of
his concerns about Abraham and public safety.

Doc. #51-39.

Two days later, the

Commonwealth published an editorial titled, “Troy Brown brings lots of drama,” which was very
critical of Brown’s guest column. Doc #51-41. Brown responded to the editorial in a letter to
the Commonwealth’s Editor titled, “This is more than a workplace tiff,” which was published in
the Commonwealth on February 23, 2014. Doc. #51-42.
The day after Brown’s letter to the Editor appeared in the Commonwealth, the Board
voted to terminate Brown. Doc. #51-43. The Board’s minutes do not provide a reason for

3

On December 23, 2013, Abraham wrote a letter to Brown identifying issues that he had with Brown’s job
performance as GLEMA director. Doc. #43-9. In the letter, Abraham complained that Brown was insubordinate for
several reasons, including: (1) he stored a privately owned tractor in a County building; (2) he used a County vehicle
for private purposes; and (3) he refused to have a GPS device installed in his County vehicle. Id. at 1–2. Abraham
also complained that on November 15, 2013, Brown exceeded the speed limit while driving a County vehicle, and
on December 17, 2013, Brown “took off without turning in a leave form.” Id. Brown responded with a point by
point refutation of Abraham's accusations, stating that “I have not violated and have no intent of violating the rules
and regulations of the Leflore County Personnel Policy nor the laws of the State of Mississippi.” Doc. #51-29.
Notably, Abraham was not Brown’s supervisor when he wrote the letter on December 23, 2013. Doc. #51-28 at 5–
6.
4

Doc. #51-26.

5

Doc. #51-1 at 85:8–86:15; Doc. #51-5 at 10:12–24.

6

Doc. #51-1 at 70:4–13, 74:23–77:24.

7

The supervisor to whom Brown reported changed several times—from Abraham to the Board; from the Board
back to Abraham; and finally, from Abraham to the Sheriff’s Department. See Doc. #51-17; Doc. #51-30; Doc. #4313.

3

Brown’s termination. Id. But, in the Executive Session where the Board voted 3–2 to terminate
Brown, Brown’s recent publications in the Commonwealth were a prominent topic in the prevote discussion. See Doc. #51-9 at 35:4–11.
Brown responded to his termination by filing this action on August 13, 2014, alleging
that the County terminated his employment in retaliation for his publications in the
Commonwealth in violation of his First Amendment rights. Doc. #1. The County has filed a
motion for summary judgment, arguing that the evidence does not establish a First Amendment
violation, and that an affirmative defense under Mount Healthy City School District Board of
Education v. Doyle, 429 U.S. 274 (1977), applies to bar Brown’s claims. Doc. #43; Doc. #46.
Brown filed a response in opposition to the motion for summary judgment, and the County filed
a reply. Doc. #50; Doc. #54.
III
Discussion
A “public employee does not relinquish First Amendment rights to comment on matters
of public interest by virtue of government employment.” Connick v. Myers, 461 U.S. 138, 140
(1983) (citing Pickering v. Bd. of Educ., 391 U.S. 563 (1968)).

On the other hand, the

government’s interests in regulating the speech of its employees “differ significantly from those
it possesses in connection with regulation of the speech of the citizenry in general.” Id. (quoting
Pickering, 391 U.S. at 568). To establish a prima facie case for First Amendment retaliation, a
public employee must show that:
(1) He suffered an adverse employment action;
(2) He spoke as a citizen, rather than pursuant to his official job duties;
(3) He spoke on a matter of public concern;
(4) His interest in the speech outweighed the government’s interest in the efficient
provision of public services; and

4

(5) His speech precipitated the adverse employment action.8
Hardesty v. Cochran, No. 14-31114, 2015 WL 4237656, at *3 (5th Cir. July 14, 2015) (footnote
added) (citing Wilson v. Tregre, 787 F.3d 322, 325 (5th Cir. 2015)). If the plaintiff establishes a
prima facie case, the defendant may still prevail if it shows by a preponderance of the evidence
that it would have come to the same conclusion in the absence of the protected conduct. Mt.
Healthy, 429 U.S. at 287.
The County does not dispute that Brown suffered an adverse employment action when he
was terminated.9 The County argues that summary judgment is appropriate though because
Brown failed to present evidence that could satisfy the second, third, fourth and fifth elements of
the prima facie standard. Doc. #46 at 2. The County also argues that summary judgment is
appropriate under Mount Healthy because it would have fired Brown even absent his protected
speech. Id. Elements two through four are questions of law that must be resolved by the Court.
Branton v. City of Dallas, 272 F.3d 730, 739 (5th Cir. 2001) (citing Connick, 461 U.S. at 147–48
n.7); Davis v. McKinney, 518 F.3d 304, 315 (5th Cir. 2008). Element five and the Mount
Healthy affirmative defense are typically questions for the jury. See Brady v. Fort Bend Cty.,
145 F.3d 691, 712 (5th Cir. 1998) (considering both “motivating factor” and “Mt. Healthy
defense” under section analyzing “Jury’s Finding on Causation”).

8

The prima facie First Amendment retaliation case has traditionally been identified as a four-element test. See
Kinney v. Weaver, 367 F.3d 337, 356 (5th Cir. 2004) (“[A] First Amendment retaliation claim in the employment
context has four elements: (1) the plaintiff suffered an adverse employment decision, (2) the plaintiff's speech
involved a matter of public concern, (3) the plaintiff's interest in speaking outweighed the governmental defendant's
interest in promoting efficiency, and (4) the protected speech motivated the defendant's conduct.”). The second
element in the traditional test, “public concern,” has always turned on the consideration of “whether the employee
spoke as a citizen on a matter of public concern.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). The five-element
test employed here separately addresses the citizen-employee inquiry and public concern inquiry. In this regard,
there is no difference between the four-element and five-element tests.
9

See Juarez v. Aguilar, 666 F.3d 325, 332 (5th Cir. 2011) (citation omitted) (termination is considered adverse
employment decision).

5

A
Citizen Speech
The County first argues that in his guest column and letter to the Editor, Brown spoke not
as a private citizen but as the Director of GLEMA. See Doc. #46 at 19–20. The County
contends that two facts support this conclusion: Brown is “complaining about his ‘official
duties,’” and Brown identifies his job title in the guest column. Id. at 20.
“For an employee’s speech to be entitled to First Amendment protection, []he must be
speaking as a citizen on a matter of public concern.” Graziosi v. City of Greenville, Miss., 775
F.3d 731, 736 (5th Cir. 2015) (citing Garcetti, 547 U.S. at 418). When a public employee speaks
pursuant to his official duties, he does not speak as a citizen and his statements are not entitled to
constitutional protection. Garcetti, 547 U.S. at 421. However, “Garcetti did not explicate what
it means to speak ‘pursuant to’ one’s ‘official duties.’” Graziosi, 775 F.3d at 737 (quoting
Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 692 (5th Cir. 2007)). Recently, in Lane v.
Franks, the United States Supreme Court explained that “[t]he critical question under Garcetti is
whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not
whether it merely concerns those duties.” 134 S.Ct. 2369, 2379 (2014).
Here, the County has offered no authority or argument suggesting that the speech at
issue—publications in the local newspaper about the County Administrator’s interference with
Brown’s office—is ordinarily within the scope of Brown’s job duties. Instead, the County
argues that in the publications, Brown complained about his duties as the Director of GLEMA
and submitted his job title in conjunction with his guest column. This type of argument was
squarely rejected in Lane, which held ”the mere fact that a citizen’s speech concerns information
acquired by virtue of his public employment does not transform that speech into employee—
rather than citizen—speech.” Lane, 134 S.Ct. at 2379.
6

Moreover, the County’s argument that Brown submitted his job title along with the guest
column is not factually supported by the record evidence.

Brown offered his own sworn

testimony that the Commonwealth added his job title to the guest column after he submitted it for
publication.10 Defendants have not rebutted this sworn testimony. But even if Brown identified
his job title in the guest column, this alone would not automatically transform his citizen speech
into public employee speech. See Graziosi, 775 F.3d at 737 (“identifying oneself as a public
employee does not forfeit one’s ability to claim First Amendment protections”) (citation
omitted).
Based on the evidence that Brown published his guest column and letter to the Editor in
the Commonwealth, and the arguments before the Court at this summary judgment stage,
Brown’s speech was made as a citizen. See Davis, 518 F.3d at 312 (explaining that “prototypical
protected speech by public employees [includes] making a public statement, discussing politics
with a coworker, writing a letter to newspapers or legislators, or otherwise speaking as a
citizen”) (internal quotation marks and citation omitted). This conclusion is bolstered by the
Fifth Circuit’s observation that when a “public employee takes his job concerns to persons
outside the work place, ... then those external communications are ordinarily not made as an
employee, but as a citizen.” Hardesty, 2015 WL 4237656, at *3 (quoting Davis, 518 F.3d at
313).

10

Brown testified:
Q But in any event, when this article was published in the newspaper, you were identified as the
Director of the Greenwood-Leflore Emergency Management Agency?
A He identified me as that. I didn’t.

Doc. #51-24 at 99:19–23.

7

B
Matter of Public Concern
The County next argues that Brown did not speak on a matter of public concern. If
Brown did not speak on a matter of public concern, his citizen speech will not be entitled to First
Amendment protection. Graziosi, 775 F.3d at 736 (citation omitted).
“Speech involves matters of public concern when it can be fairly considered as relating to
any matter of political, social, or other concern to the community, or when it is a subject of
legitimate news interest; that is, a subject of general interest and of value and concern to the
public.” Lane, 134 S.Ct. at 2380 (internal quotation marks and citation omitted); see also
Connick, 461 U.S. at 146. “An employee’s speech may contain an element of personal interest
and yet still qualify as speech on a matter of public concern.” Harris v. Victoria Ind. Sch. Dist.,
168 F.3d 216, 222 (5th Cir. 1999). “[E]ven a mere scintilla of speech regarding a matter of
public concern is sufficient to treat the entire communication as mixed speech.” Stotter v. Univ.
of Tex. at San Antonio, 508 F.3d 812, 826 (5th Cir. 2007). In mixed speech cases, to determine
whether speech addresses a matter of public concern, a court must evaluate the “content, form,
and context of a given statement, as revealed by the whole record.”11 Connick, 461 U.S. at 147–
48. “In considering content, form, and context, no factor is dispositive.” Bell v. Itawamba Cty.
Sch. Bd., 799 F.3d 379, 407 (5th Cir. 2015). But context and form are weighed more heavily
than content. See Teague v. City of Flower Mound, Tex., 179 F.3d 377, 382 (5th Cir. 1999)
(“[t]aking these three factors together, and weighing the latter two (context and form) more
heavily”).

11

“The three-factor test has been summarized, at times, as a test to determine whether one is speaking as a citizen or
as an employee.” Teague v. City of Flower Mound, Tex., 179 F.3d 377, 382 (5th Cir. 1999).

8

The Fifth Circuit has also recognized “three reliable principles” derived from its case law
regarding whether a public employee’s speech is made as a citizen on a matter of public concern
in mixed speech cases:
The first principle focuses on content, and it proposes “if releasing the speech to
the public would inform the populace of more than the fact of an employee's
employment grievance, the content of the speech may be public in nature.” Salge
[v. Edna Indep. Sch. Dist., 411 F.3d 178, 185 (5th Cir. 2005) (quoting Kennedy v.
Tangipahoa Par. Library Bd. of Control, 224 F.3d 359, 372 (5th Cir. 2000),
abrogated on other grounds, Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007))].
The second principle, addressing context, states that speech on a matter of public
concern “need not be made to the public,” although “it may relate to a matter of
public concern if it is made against the backdrop of public debate.” Id. (quoting
Kennedy, 224 F.3d at 372). The third principle, presumably addressing form,
states that speech “cannot be made in furtherance of a personal employeremployee dispute if it is to relate to the public concern.” Kennedy, 224 F.3d at
372.
Williams v. Dallas Indep. Sch. Dist., No. CIV.A.3:04-CV-1386-L, 2005 WL 2317985, at *7
(N.D. Tex. Sept. 21, 2005), aff'd, 480 F.3d 689 (5th Cir. 2007); see Goudeau v. E. Baton Rouge
Par. Sch. Bd., 540 Fed. App’x 429, 435 (5th Cir. 2013) (“We have established several principles
to consider when deciding whether a speaker's ‘mixed speech’ relates to a matter of public
concern. These principles involve consideration of the content, context, and form of the speech
and evaluate whether the speech: informs the populace of more than the fact of an employee's
employment grievance, is made against the backdrop of public debate, and is not simply made in
furtherance of a personal employer-employee dispute.”) (internal quotation marks, punctuation,
and citations omitted). The Court will discuss each of these considerations in turn.
1
Content
The content of Brown’s speech weighs in favor of a finding that he spoke on a matter of
public concern.

9

a. Brown’s Guest Column
Brown’s guest column titled, “Sam Abraham has it out for me,” generally discusses his
concern that Chancery Clerk and County Administrator Sam Abraham exerts undue influence
over the Board.

See Doc. #51-39 at 1–2.

Brown states in the column that what makes

Abraham’s influence “a tragedy is that people’s lives are at stake.” Id. at 1 (emphasis added).
He expands on this public safety concern, identifying examples of problems purportedly caused
by Abraham’s influence:
When a disaster occurs and we cannot communicate with the Mississippi
Emergency Management Agency because the Internet is inoperable in the
Mobile Command Unit, when our ability to rescue a family is compromised
because we can’t find the four-wheelers that will provide access to them, or
when (as during the recent winter storm) a supervisor requests a four-wheeldrive vehicle to travel ice-covered roads and that truck has mysteriously
“disappeared,” what then?
….
I eagerly embraced the task of reviewing GLEMA’s inventory to assess
whether or not we are prepared to respond to a disaster …. The property
review should have been simple, right? When you factor in the fact that Sam
distributes GLEMA property at will (without consulting me, the person
responsible for the inventory) to whomever he pleases, the fact that some in
possession of inventory refused to present it for evaluation, and the fact that
there is major equipment in disrepair …, a simple task becomes a major issue.
As if the inventory issue were not enough, there is an individual whose salary
is partially funded from my budget and whose pay I am asked to endorse.
However, I can only communicate with that employee through Sam.
Id. at 1–2 (emphases added). Brown also discusses his job performance during a series of winter
storms and his belief that Abraham was “orchestrating [his] removal as GLEMA director.” Id. at
2. He concludes the guest column by writing, “I just hope that what they’re doing does not
jeopardize lives when a real disaster occurs.” Id. (emphasis added).
The County characterizes Brown’s guest column as “a thinly veiled attempt to transform
a personal grievance into a public concern by invoking a supposed popular interest in Brown’s

10

personal grievances with Sam Abraham.” Doc. #46 at 16 (internal quotations marks and citation
omitted); see also Doc. #54 at 5 (“Brown’s ‘speech’ demonstrates one thing: he did not like Sam
Abraham.

However, Brown’s personal feelings towards Abraham are not issues of public

concern.”).
The County is partially correct.

Brown’s guest column contains elements of both

personal and public concern. This is perhaps due in large part to Brown’s particular position
with the County. As the Director of GLEMA, an agency charged with ensuring the County’s
preparedness to deal with natural disasters, Brown’s personal employment interest is inextricably
linked to a matter of great public concern—public safety. In other words, if an obstacle, such as
the acts or omissions of a County official, prevents Brown from effectively carrying out his
duties, the public’s safety may very well hang in the balance. Recognizing this, Brown discussed
the majority of his concerns in the context of public safety, including elected Chancery Clerk and
County Administrator Abraham’s purported mishandling of GLEMA equipment and his undue
influence over members of the Board, who are also elected County officials. In this regard,
Brown’s speech informs the public of considerably more than any personal grievance with
Abraham. See Kennedy, 224 F.3d at 372 (“If releasing the speech to the public would inform the
populace of more than the fact of an employee’s employment grievance, the content of the
speech may be public in nature.”) (citation omitted).
The County also argues that many of Brown’s examples of Abraham’s influence and
conduct are overstated or false. See, e.g., Doc. #46 at 17-18. This argument is unpersuasive
because “[w]hether an employee’s speech is true or false … plays no role in the determination
whether the speech concerned a matter of public interest.” Salge, 411 F.3d at 185.

11

For these reasons, the Court finds that the primary issues addressed in Brown’s guest
column—public safety and Abraham’s purported undue influence over the Board—are matters
that can “fairly considered as relating to [a] matter of political, social, or other concern to the
community.” Connick, 461 U.S. at 146; see also Kennedy, 224 F.3d at 373 (“Speech that
potentially affects public safety relates to the public concern.”) (citations omitted); Graziosi, 775
F.3d at 738 (“It is well established that speech exposing or otherwise addressing malfeasance,
corruption or breach of the public trust, … touches upon matters of public concern.”) (collecting
cases).
The Court also finds that the primary issues raised in Brown’s guest column were the
subject of legitimate news interest because in at least two separate articles published before
Brown’s guest column, the Commonwealth covered the very issues Brown later discussed in his
guest piece.12 See Salge, 411 F.3d at 189 (“[T]he very fact of newspaper coverage [of the issue
discussed by the employee] indicates that the public was receptive and eager to hear about [the
issue].”) (internal quotation marks and citation omitted).
b. Letter to the Editor
As mentioned above, in response to Brown’s guest column, the Commonwealth published
an editorial titled, “Troy Brown brings lots of drama.” Doc. #51-41. The editorial focuses
primarily on Brown and Abraham’s strained working relationship and Abraham’s purported
“power and influence” in the County. Id. at 1. Brown responded to the editorial in a letter to the
Editor of the Commonwealth titled, “This is more than workplace tiff.” Doc. #51-42.
In the letter, Brown acknowledges that his guest column touches on “workplace issues”
and provides additional insight into the influence he believes Abraham exerts over the Board.
12

See, e.g., Doc. #43-14 at 1–3 (discussing Brown’s tenure as GLEMA director, Abraham’s alleged mishandling of
GLEMA property, and Abraham’s influence over Board); Doc. #51-33 at 2 (discussing former-board president’s
belief that Board “is being run by” Abraham).

12

See id. As explained above, any undue influence over the Board by Abraham is a matter that can
be “fairly considered as relating to [a] matter of political, social, or other concern to the
community” and is “a subject of legitimate news interest.” Lane, 134 S.Ct. at 2380 (internal
quotation marks and citations omitted).
In sum, the content of Brown’s guest column and letter to the Editor weighs in favor of a
finding that Brown spoke primarily on a matter of public concern.
2
Form
The form of Brown’s speech—publications in the local newspaper—weighs in favor of a
finding that Brown spoke on a matter of public concern.13 See Montgomery v. Mississippi, 498
F. Supp. 2d 892, 913 (S.D. Miss. 2007) (“As for form, a newspaper is a public forum, and letters
to the editor are traditional means of communicating with the public”) (citation omitted).
3
Context
Finally, the context of Brown’s speech weighs slightly in favor of finding that he spoke
on a matter of public concern.
The County argues that Brown published his column and letter after failing to carry out
his job duties and that his speech was made within the context of a private employee-employer
dispute. See, e.g., Doc. #46 at 16–18; Doc. #54 at 4–6. As explained above, the Court has found
that Brown’s speech partially pertains to personal matters, namely Brown’s personal grievance
with Abraham, which “militates against a finding that [Brown’s] speech was public in nature.”
Graziosi, 775 F.3d at 739 (citation omitted). However, the Court must also consider that
Brown’s column and letter were published after the Commonwealth had already begun to cover

13

The parties do not specifically address the issue of form in their briefs.

13

the same issues about which Brown spoke, and that Brown’s letter to the Editor was a direct
response to an editorial written about him. See Kennedy, 224 F.3d at 373 (“speech made against
the backdrop of ongoing commentary and debate in the press involves the public concern”)
(citations omitted); Brawner v. City of Richardson, Tex., 855 F.2d 187, 191 (5th Cir. 1988)
(“statements in the letter must be seen in the context of a continuing commentary that had
originated in the public forum of the newspaper”).
Weighing the content, form, and context of Brown’s speech together, and giving more
weight to its form and context, the Court finds that Brown’s speech merely touches on an
element of personal concern in the broader context of a matter of public concern. Accordingly,
Brown’s citizen speech is entitled to First Amendment protection. See Graziosi, 775 F.3d at 736
(explaining public employee’s citizen speech on matter of public concern entitled to First
Amendment protection) (citation omitted).
C
Pickering Balancing Test
The County next argues that Brown cannot prevail under the Pickering balancing test.
The Pickering test requires the Court “to arrive at a balance between the interests of the
[employee], as a citizen, in commenting upon matters of public concern and the interest of the
[County], as an employer, in promoting the efficiency of the public services it performs through
its employees.” Pickering, 391 U.S. at 568. The burden “varies depending upon the nature of
the employee’s expression. The more central a matter of public concern the speech at issue, the
stronger the employer’s showing of counterbalancing governmental interest must be.” Jordan v.
Ector Cty., 516 F.3d 290, 299 (5th Cir. 2008) (internal footnote, quotation marks, and
punctuation omitted). The Pickering test is therefore a “sliding scale under which ‘public
concern’ is weighed against disruption: ‘[a] stronger showing of disruption may be necessary if
14

the employee’s speech more substantially involves matters of public concern.’” Matherne v.
Wilson, 851 F.2d 752, 761 (5th Cir. 1988) (internal punctuation omitted) (quoting Gonzalez v.
Benavides, 774 F.2d 1295, 1302 (5th Cir. 1985)). Among the factors to consider are:
(1) the degree to which the employee’s activity involved a matter of public
concern; (2) the time, place, and manner of the employee’s activity; (3) whether
close working relationships are essential to fulfilling the employee’s public
responsibilities and the potential effect of the employee’s activity on those
relationships; (4) whether the employee’s activity may be characterized as hostile,
abusive, or insubordinate; [and] (5) whether the activity impairs discipline by
superiors or harmony among coworkers.
Brady, 145 F.3d at 707 (citing Click v. Copeland, 970 F.2d 106, 112 (5th Cir. 1992)). “The
indispensable predicate to balancing, however, is evidence from the public employer of actual or
incipient disruption to the provision of public services. Without such evidence, there simply is
no countervailing state interest to weigh against the employee’s First Amendment rights.”
Grogan v. Lange, 617 Fed. App’x 288, 292 (5th Cir. 2015) (internal quotation marks and
citations omitted).
In this regard, the County argues:
Plaintiff’s “speech” was potentially insubordinate, potentially detriment[al] to the
working relationships of GLEMA department employees and intradepartmental
employees, and had the potential to do further damage if left unaddressed by the
Board of Supervisors. Brown’s lack of ability to work with others, lack of respect
for authority properly exercised, and insubordination cannot be tolerated if the
goal is to provide comprehensive, efficient emergency services to the community.
….
There can be no serious dispute about the importance of the working relationships
among the GLEMA employees, as well as between the GLEMA director and
employees of the fire and Sheriff’s departments. Given the importance of such
relationships, and the need for these departments to work together in emergency
situations, Plaintiff’s interest in publicly airing his disagreements with Abraham is
outweighed by Leflore County’s interests in providing efficient public services
and promoting an environment of unity amongst county departments.
Doc. #46 at 21. The County does not offer any record evidence to support its claims of
disruption. This is fatal to the County’s argument because in the absence of such evidence,
15

“there simply is no countervailing state interest to weigh against [Brown’s] First Amendment
rights.” Grogan, 617 Fed. App’x at 292 (internal quotation marks and citation omitted).
In contrast to the County’s argument, there is considerable record evidence that Brown’s
speech did not cause any disruptions. The three Board members who voted to fire Brown—
Wolf, Anjuan Brown, and Self—all testified that Brown’s speech did not interfere with the
County’s operations.14 See Doc. #51-6 at 50:6–52:8; Doc. #51-7 at 20:20–24, 22:14–16; Doc.
#51-8 at 22:12–15. Abraham testified similarly. See Doc. #51-28 at 21:16–21, 22:9–14.
For these reasons, the Pickering balancing test must be resolved in Brown’s favor.
D
Speech as Motivating Factor
The County further argues that summary judgment is appropriate because Brown cannot
show that his termination was motivated by his speech. See Doc. #46 at 22–24. “[T]he plaintiff
need only demonstrate that his speech was one factor among others motivating the defendant’s
conduct, and, if such a showing is made, it falls to the latter to demonstrate that it would have
made the same decision even absent retaliation.” Boisseau v. Town of Walls, Miss., No. CIV.A.
3:14CV149, 2015 WL 5883176, at *4 (N.D. Miss. Oct. 8, 2015) (citation omitted).
The County faces a tough task in seeking summary judgment on this “causation” issue
because, unlike the Pickering balancing test which is a legal issue for the Court to decide,
“[w]hether an employee’s protected conduct was a substantial or motivating factor in an
employer’s decision to take action against the employee is a question of fact, ordinarily
rendering summary disposition inappropriate.” Click, 970 F.2d at 113. This task is even more
14

Wolf speculated that Brown’s speech “[m]ight have … interfer[ed] with some inefficiency for morale.” Doc. #516 at 51. However, Wolf testified that no employee had complained of a drop in efficiency or morale. Id. Without a
basis for his belief, Wolf’s speculative testimony regarding the impact of Brown’s speech is inadmissible
Washington v. Dep’t of Transp., 8 F.3d 296, 300 (5th Cir. 1993) (“Under the Federal Rules of Evidence, speculative
opinion testimony by lay witnesses – i.e., testimony not based upon the witness’s perception – is generally
considered inadmissible.”).

16

difficult given the temporal proximity involved in this case and the County’s concession that
Brown’s “‘speech’ was known to the Board before Brown was fired.” Doc. #46 at 24.
The temporal proximity between Brown’s speech and his termination establishes a
genuine and material fact issue on causation. Brown published his guest column on February 16,
2014, and his letter to the Editor on February 23, 2014. Doc. #51-39; Doc. #51-42. The County
terminated Brown on February 24, 2014. “Close timing between an employee’s protected
[speech] and an adverse employment action can be a sufficient basis for a court to find a causal
connection required to make out a prima facie case of retaliation.” Mooney v. Lafayette Cty. Sch.
Dist., 538 Fed. App’x 447, 454 (5th Cir. 2013); see Nagle v. Marron, 663 F.3d 100, 111 (2d Cir.
2011) (holding that six weeks between speech and adverse action was sufficient “showing of
temporal proximity suffices to make out a prima facie claim of retaliation under the First
Amendment”).
But more than mere temporal proximity is the County’s failure to identify any conduct by
Brown between the time of his speech and his termination that led to the termination decision.
“When an employer is trying to establish the lack of a causal connection in a retaliation case in
which there is temporal proximity, it typically points to nonretaliatory conduct occurring before
or after the protected activity.” Smith v. Coll. of the Mainland, 63 F. Supp. 3d 712, 719 (S.D.
Tex. 2014) (Costa, J., circuit judge sitting by designation) (citation omitted). Events occurring
before the protected activity are insufficient to break the causal link established by temporal
proximity. Id. at 719–20 (“[T]he College contends that it fired him … because of the totality of
conduct that predated the lawsuit. Given the lack of an intervening non-protected incident
between the lawsuit and the termination, a jury could conclude that the more recent lawsuit was a

17

motivating factor in the termination.”) (citing Sanders v. Sailormen, Inc., 506 Fed. App’x 303,
304 (5th Cir. 2013)).
The County contends that it terminated Brown because of his pre-speech job
performance. See Doc. #46 at 23–24 (identifying Brown’s write up by Abraham on December
23, 2013, Brown’s failure to complete GLEMA inventory by February 1, 2014, and Brown’s
submission of inadequate GLEMA inventory on February 10, 2014).15 But Brown’s pre-speech
job performance issues do not break the causal link that can be inferred from the temporal
proximity involved in this case; at best, these issues merely create a fact issue. This is so
because the last-occurring job performance issue identified by the County happened on February
10, 2014. Notably, the County submitted a video of the Board meeting held that day. Doc. #4324. In that meeting, the Board gave no indication that it planned to terminate Brown. Indeed, at
the conclusion of Brown’s presentation, Board President Wayne Self stated, “Alright Mr. Brown,
I think we are going to hold everything … hold this … until the next meeting. Once you get
everything situated and together, you know, just bring it back to us and let us see it.” Id. at
0:32:19–0:32:38. This invitation to Brown to attend and present at the next Board meeting
suggests that the Board, as of February 10, 2014, had no intent to terminate Brown. Considering
the lack of an intervening non-protected incident between Brown’s speech and the termination, a
jury could reasonably conclude that Brown’s speech, an intervening protected activity, was a
motivating factor in the termination.

15

The County also argues that Brown: (1) “never satisfactorily performed the duties of his position despite the
Board’s efforts to assist him by placing him under the direction of three different supervisors; (2) “never took the
time to learn the job of Director of GLEMA;” and (3) “did not work well with others who were trying to help him
succeed.” Doc. #46 at 23. Even if negative traits (as opposed to conduct) could be considered intervening, the
County has failed to identify anything in the record which would justify such a conclusion here.

18

Also, there is unchallenged direct evidence16 that Brown’s speech was a motivating factor
in the termination. After Brown’s termination, Board President Self was interviewed by Bryn
Stole, a reporter with the Commonwealth. In the resulting article, Stole wrote:
Self said Brown’s decision to air his complaints in the newspaper factored into his
decision to fire him.
“Running to the paper, that hurt me tremendously,” Self said. “If you’ve got a
problem with one of the county employees, your job is to go to your immediate
supervisor, which is Sheriff (Ricky) Banks. He didn’t go to him.”
Doc. #51-44 at 2. In his deposition, Stole clarified the context in which Self offered the
quoted statements:
I had specifically asked him why the board fired Troy. I don’t know why he
would have brought something that didn’t factor into that decision up in response
to a question about why did you fire Troy.
Doc. #51-31 at 45:1–5. Board member Moore testified that he also heard Self say that
Brown’s speech factored into the termination decision.

Doc. #51-9 at 35:18–36:1.

Moreover, Moore confirmed that Brown’s speech was discussed so heavily in the
Executive Session where the termination vote occurred that he felt compelled “to remind
[the Board] that freedom of speech was not the issue they needed to be dealing with.” Id.
at 35:4–11. The discussion of Brown’s speech in a clearly retaliatory context could lead
a jury to reasonably believe those considerations influenced the Board’s vote.
For these reasons, there is sufficient evidence on this quintessentially fact-based
causation question to allow it to be decided by a jury.

16

Much of this evidence may be classified as hearsay but no evidentiary challenges have been lodged against it. See
BGHA, LLC v. City of Universal City, Tex., 340 F.3d 295, 299 (5th Cir. 2003) (party waived hearsay objection at
summary judgment stage by failing to object to admission).

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E
Mount Healthy Affirmative Defense
The County can still prevail if it establishes that it would have terminated Brown
regardless of his protected speech. Mt. Healthy, 429 U.S. at 287; Brady, 145 F.3d at 712 (“Mt.
Healthy … allows the defendant to avoid liability once the plaintiff has carried his burden of
proving that an improper consideration was a substantial or motivating factor … by proving that
it would have taken the same adverse action even in the absence of the improper consideration.”)
(citations omitted). “Yet because this is another factbound causation issue, … [the County] faces
another uphill climb at the summary judgment stage.

Even more so because this is an

affirmative defense on which it has the burden.” De La Garza v. Brumby, No. 6:11-CV-37, 2013
WL 754260, at *6 (S.D. Tex. Feb. 27, 2013) (citations omitted).
In the attempt to satisfy its burden, the County argues:
All supervisors testified that the failure to complete the inventory was the main
reason Brown was fired although his work habits, and the recommendation of
Sheriff Banks, played a role. Of the three supervisors who voted to fired [sic]
Brown — Wolfe, Brown, and Self — Self is the only supervisor to whom
retaliatory animus may arguably be attributed. According to Supervisors Collins
and Moore — the two supervisors who did not vote to fire Brown — the
newspaper articles were mentioned or discussed during the executive session to
decide whether to fire Brown. Anjuan Brown and Phil Wolfe were aware of
Brown’s “speech” and voted to fire him any way. The two who voted “nay” were
never going to change the votes of the three who voted “yea.” The “nay”
supervisors did not have the votes needed to keep Brown employed. See Ex. 30,
Self Dep.; Ex. 21, Article Feb. 25, 2014. Supervisor Robert Moore admitted that
the vote to fire Brown would have been the same regardless of Plaintiff’s
“speech.” See Ex. 39, Moore Dep. Given the composition of the Board Brown
was going to be fired. Since the purpose underlying Mt. Healthy is that a public
employee should not be placed in a better position than he would have had he
done nothing, Brown should not be rewarded when he was going to be terminated
anyway.
Plaintiff’s conduct, lack of success in his position and failure to adhere to Leflore
County government policies and procedures clearly justified termination,
regardless of any protected speech. Thus, even assuming Brown can prove that
his speech motivated his termination, the record is clear that Brown’s actions, and
20

more importantly his overwhelming lack of action, would have resulted in the
same adverse employment action — his termination.
Doc. #46 at 25. Brown argues in response that the County has failed to carry its burden because
all it “offers is self-serving testimony by the board members that they would have voted to
terminate Brown anyways”; and “[t]he jury is the proper forum to decide whether this selfserving testimony from an interested witness is credible.” Doc. #50 at 32, 33.
While the Court does not question that there were quite possibly a myriad of reasonable
bases for terminating Brown’s employment, the Court first looks to the reasons provided in the
Board minutes. The Board minutes of February 24, 2014, do not expressly identify a single
reason for Brown’s termination; instead, the minutes vaguely state that “the Board discussed
several issues pertaining to Mr. Brown and his work habits” before terminating Brown. See Doc.
#43-20. This vague all-encompassing language could include some of the reasons argued by the
County, but it is insufficient to satisfy the County’s burden. This is so because the issue is not
whether Brown could have been terminated for his pre-speech job performance, but whether he
would have been terminated if he had not engaged in protected speech. See Haverda v. Hays
Cty., 723 F.3d 586, 597 (5th Cir. 2013) (“The issue is not whether Haverda could have been
demoted for [misconduct] but whether he would have been demoted if he had not engaged in
protected speech.”) (emphases added and citations omitted).
Because the vote to terminate Brown was held in a closed-door session, only the Board
members can provide testimony as to whether the Board would have voted to terminate Brown
notwithstanding his protected speech. In this vein, the County argues that “[a]ll supervisors
testified that the failure to complete the inventory was the main reason Brown was fired although
his work habits, and the recommendation of Sheriff Banks, played a role,” and “[t]he two who
voted ‘nay’ were never going to change the votes of the three who voted ‘yea.’” Doc. # 46 at 25.
21

But the County provides no citations to record evidence in support of these propositions. In
other words, the County has offered only unsubstantiated argument. For this reason alone, the
County is not entitled to summary judgment on its Mount Healthy affirmative defense. See 10B
CHARLES ALAN WRIGHT ET AL., FED. PRACTICE AND PROCEDURE § 2734 (3d ed. 2014) (“if all of
the moving party’s defenses … require the adjudication of fact issues, the request for summary
judgment will be denied”).
Even if the County had proffered relevant testimony of the Board members, the Court
would still deny summary judgment. Brown produced record evidence that: (1) his protected
speech was such a prominent topic of discussion during the Board’s Executive Session that one
of the Board members felt compelled to remind the rest of the Board about Brown’s First
Amendment rights;17 (2) the Board knew about his protected speech and considered it in making
the termination decision; and (3) his immediate predecessor also failed to complete the GLEMA
inventory list and was not fired.18 A reasonable jury considering this evidence could find that the
County failed to show that it would have terminated Brown in the absence of the protected
speech. See, e.g., De La Garza, 2013 WL 754260, at *6 (finding fact issue on Mt. Healthy
affirmative defense where Plaintiff demonstrated both direct and inferential evidence of
retaliation); see Jordan, 516 F.3d at 301 (“However plausible, even compelling, the proffered
justifications for firing [the plaintiff] sound in isolation, the evidence that others had engaged in
conduct similar to [the plaintiff’s] without being disciplined is sufficient for a reasonable jury to
conclude that [the employer] would not have taken the same action in the absence of the
protected conduct.”). Moreover, considering that “[s]ummary disposition of the causation issue
in First Amendment retaliation claims is generally inappropriate,” Hardesty, 2015 WL 4237656,
17

Doc. #51-9 at 35:4–11.

18

Doc. #51-1 at 68:8–69:14.

22

at *6; and that it is “[o]ften … for the jury to determine the credibility of … testimony of an
interested witness,” 9B CHARLES ALAN WRIGHT ET AL., FED. PRACTICE AND PROCEDURE § 2527
(3d ed. 2014), such as the County Board members, the Court would deny summary judgment for
these additional reasons.
IV
Conclusion
For the reasons above, the County’s motion [43] for summary judgment is DENIED.
SO ORDERED, this 15th day of December, 2015.
/s/ Debra M. Brown
UNITED STATES DISTRICT JUDGE

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