Conway v. Biloxi Public School District et al
ORDER denying 85 Motion for Partial Summary Judgment Signed by District Judge Louis Guirola, Jr on 08/02/2022 (Guirola, Louis)
Case 1:20-cv-00107-LG-MTP Document 93 Filed 08/02/22 Page 1 of 12
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
CAUSE NO. 1:20-cv-107-LG-MTP
BILOXI PUBLIC SCHOOL DISTRICT,
SHANE SWITZER, ARTHUR
MCMILLAN, and DIXIE
MEMORANDUM OPINION AND ORDER DENYING
MOTION FOR PARTIAL SUMMARY JUDGMENT
BEFORE THE COURT is the  Motion for Partial Summary Judgment
filed by Defendant Biloxi Public School District. After due consideration of the
parties’ submissions, the record in this matter, and the applicable law, the Court
finds that the Motion should be denied.
In this case, Plaintiff Victoria Conway claims that the Biloxi Public School
District (“BPSD” or “the School District”) violated her federal and state rights when
it allegedly terminated or failed to renew her employment following her reports of
illegal financial activity within the organization. (Pl.’s 2d Am. Compl., ECF No. 60).
Plaintiff also sues three individual defendants under theories of malicious
interference with employment and civil conspiracy.1 (Id.).
A fourth individual defendant, Jim Wallis, was named in the original Complaint
but removed in the First Amended Complaint. (Compl., ECF No. 1; Pl.’s 1st Am.
Compl., ECF No. 3).
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Plaintiff alleges that she was an administrative assistant in the School
District’s Child Nutrition Department for ten years. (Id. ¶ 4). Defendant McMillan
was the Superintendent of the School District, and Defendant Switzer was
employed as an administrative and financial officer. (Id. ¶¶ 6-7). Plaintiff alleges
that she learned of various financial improprieties and misappropriations in the
School District during her employment, which she reported to her mother, also a
School District employee. (Id. ¶ 6). Specifically, she believed School District assets
had been used privately for the wedding of McMillan’s daughter. (Id.). The
complaint was related to a School Board member, who transferred it to the School
District. (Id. ¶¶ 6-7). Plaintiff and her mother also reported the allegations to the
Mississippi Office of the State Auditor, resulting in an investigation. (Id. ¶ 8).
Thereafter, Plaintiff alleges that Defendants McMillan and Switzer retaliated
by “caus[ing]” her immediate supervisor, Defendant Eleuterius, to begin a pattern
of harassment, which included refusing to speak to her, slamming doors, tossing
paperwork, and shutting her out of offices. (Id. ¶ 9). This behavior allegedly
compelled Plaintiff to undergo psychological treatment. (Id.). In November 2018,
Plaintiff penned a letter to the School Board complaining of the mistreatment,
which resulted in media coverage. (Id. ¶ 10).
Plaintiff alleges that in July 2019 she learned through her health care
insurer that her at-will employment had been terminated.2 (Id. ¶ 12). She
Plaintiff previously alleged that her employment was terminated through
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maintains that the School District made this decision due to her reporting of illegal
activity and letter. (Id.). Against the School District, Plaintiff asserts (1)
retaliation against Plaintiff for exercise of her First Amendment rights, (2) a
violation of the McArn doctrine, and (3) a violation of the Mississippi whistleblower
statute and its own school policy. (Id. ¶ 14). Plaintiff also blames the individual
Defendants, against whom she asserts causes of action for malicious interference
with employment and civil conspiracy. (Id. ¶¶ 15-16.).
On March 22, 2022, Defendant Biloxi Public School District filed a 
Motion for Partial Summary Judgment, which essentially advances a legal
argument that Plaintiff’s First Amendment retaliation claim should be dismissed
because her speech was not a matter of public concern. Plaintiff  responded,
and Defendant  replied. The issues have been fully briefed and are now ripe for
disposition by the Court.
MOTION FOR SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56(a) provides that summary judgment is
appropriate “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). “When the moving party has carried its burden under Rule 56(c), its
nonrenewal of her school contract, but it appears she changed this allegation in
response to other Defendants’ attacks. (1st Am. Compl., ¶ 12, ECF No. 3; 2d Am.
Compl., ¶ 12, ECF No. 60).
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opponent must do more than simply show that there is some metaphysical doubt as
to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986). “[T]he nonmovant must go beyond the pleadings and designate
specific facts showing that there is a genuine issue for trial.” Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).
“A genuine dispute of material fact means that ‘evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’” Royal v. CCC & R
Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). If the evidence presented by the nonmovant
“‘is merely colorable, or is not significantly probative,’ summary judgment is
appropriate.” Cutting Underwater Techs. USA, Inc. v. ENI U.S. Operating Co., 671
F.3d 512, 516 (5th Cir. 2012) (quoting Anderson, 477 U.S. at 249). In deciding
whether summary judgment is appropriate, the Court views the evidence and
inferences in the light most favorable to the nonmoving party. RSR Corp. v. Int’l
Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010).
BILOXI PUBLIC SCHOOL DISTRICT’S MOTION
Plaintiff alleges that the School District is liable “for retaliating against
Plaintiff for exercise of her rights protected by the First Amendment.”3 (Pl.’s 2d
Am. Compl. ¶ 14, ECF No. 60). To succeed on her First Amendment retaliation
Plaintiff also alleges wrongful discharge under Mississippi state law in violation of
the McArn doctrine, Miss. Code Ann. § 25-9-173, and the School District’s
Whistleblower Protection Policy. (Pl.’s 2d Am. Compl., ¶¶ 14, 17, ECF No. 60).
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claim, Plaintiff must show that “(1) [s]he suffered an adverse employment action; (2)
[s]he spoke as a citizen on a matter of public concern; (3) [her] interest in the speech
outweighs the government’s interest in the efficient provision of public services; and
(4) the speech precipitated the adverse employment action.” Jones v. Hosemann,
812 F. App’x 235, 239 (5th Cir. 2020). The School District argues that Plaintiff was
not engaged in constitutionally protected speech. (Mem. L. Supp. Mot. Part. Summ.
J., 1-4, ECF No. 85).
Constitutionally Protected Speech
“Whether speech is protected by the First Amendment is a question of law to
be determined by the court,” and “[a] public employee’s speech is entitled to judicial
protection under the First Amendment only if it addresses a matter of ‘public
concern.’” Dodds v. Childers, 933 F.2d 271, 273 (5th Cir. 1991) (citations omitted).
“Matters of public concern are those which can be fairly considered as relating to
any matter of political, social, or other concern to the community.” Alexander v.
Eeds, 392 F.3d 138, 142 (5th Cir. 2004) (quoting Branton v. City of Dallas, 272 F.3d
730, 739 (5th Cir. 2001) (internal quotations omitted)).
The capacity in which the plaintiff spoke is also relevant; the Fifth Circuit
distinguishes between “speech that is ‘the kind of activity engaged in by citizens
who do not work for the government,’ . . . and activities undertaken in the course of
performing one’s job.” Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 693 (5th
Cir. 2007). “To rise to the level of public concern, the speech must have been made
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primarily as a citizen rather than as an employee.” Dodds v. Childers, 933 F.2d
271, 273 (5th Cir. 1991) (citing Thompson v. City of Starkville, 901 F.2d 456, 465
(5th Cir. 1990)). Further, it is possible to have a case of “mixed speech.” Such is “a
case in which an employee’s speech contains elements of both personal and public
concern.” Salge v. Edna Indep. Sch. Dist., 411 F.3d 178, 186 (5th Cir. 2005). “All
speech arising from ‘mixed motives,’ however, is not automatically protected; the
speaker must have spoken predominantly ‘as a citizen’ to trigger First Amendment
protection.” Dodds, 933 F.2d at 274. Moreover, “[t]he existence of an element of
personal interest on the part of an employee in the speech does not prevent finding
that the speech as a whole raises issues of public concern.” Id. (citing Thompson,
901 F.2d at 463-64).
“There is perhaps no subset of ‘matters of public concern’ more important
than bringing official misconduct to light.” Davis v. Ector Cty., Tex., 40 F.3d 777,
782 (5th Cir. 1994). Particularly, “‘[p]ublic interest is near its zenith when ensuring
that public organizations are being operated in accordance with the law, and seeing
that public funds are not purloined.’” Modica v. Taylor, 465 F.3d 174, 181 (5th Cir.
2006) (quoting Marohnic v. Walker, 800 F.2d 613, 616 (6th Cir. 1986)). The
Supreme Court has considered a teacher’s criticism of the allocation of school board
funds between academic and athletic departments a matter of public concern.
Pickering v. Bd. of Ed. of Tp. High Sch. Dist. 205, Will Cty., Ill., 391 U.S. 563, 57172 (1968).
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For speech to involve a matter of public concern, a court generally must
evaluate the content, form and context of a given statement. See Stotter v. Univ. of
Tex., 508 F.3d 812, 825 (5th Cir. 2007). The Court shall now apply these standards
to the speech at issue in this case.
The evidence on this  Motion for Partial Summary Judgment essentially
consists of a letter written by Plaintiff to the Biloxi School Board. Plaintiff has
alleged in this lawsuit that she was “the administrative assistant in the Child
Nutrition Department” of the School District. (2d Am. Compl., ¶ 4, ECF No. 60).
She claims that she reported financial misappropriations both “to her mother . . .
and to a trusted member of the School Board.” (Id. ¶ 6). Plaintiff claims that she
assisted her mother in notifying the State Auditor. (Id. ¶ 8). Finally, Plaintiff
claims that she “wrote a letter of complaint on November 13, 2018, describing the
harassment she was suffering because of her reporting of illegal activity.” (Id. ¶
10). Writing the letter, she alleges, was “not part of her ordinary job activities.”
(Id. ¶ 11). The letter is attached to the Complaint and is directed to the Biloxi
School Board. (See Letter, ECF No. 60-3).
Defendant focuses on Plaintiff’s letter to the Biloxi School Board and in doing
so denies that the letter relates to a matter of public concern. (See id.). In the
letter, Plaintiff describes herself as “a whistleblower” and claims that she saw
“things that set off alarms that were not only unethical but illegal.” (Id.). The
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majority of the letter describes what she perceives as retaliatory harassment from
her supervisors in response to her letter or report to the State Auditor of
misappropriations of school funds. (Id.).
With respect to the content of the letter, the reports of retaliatory conduct
largely involve Plaintiff’s private employment. But the subject of misappropriation
of school-related funds is clearly within the realm of public concern; indeed, the
subject is at its “zenith.” See Modica, 465 F.3d at 181; see also Salge, 411 F.3d at
186 (“‘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.’”) (quoting Kennedy v. Tangipahoa Par. Library Bd. of Control, 224
F.3d 359, 366 (5th Cir. 2000), abrogated on other grounds as stated in Cuvillier v.
Taylor, 503 F.3d 397, 401 n.4 (5th Cir. 2007)). The Court cannot say that the letter
is wholly outside public concern. See Dodds, 933 F.2d at 273 (“The existence of an
element of personal interest on the part of an employee in the speech does not
prevent finding that the speech as a whole raises issues of public concern.”).
Further, regarding whether Plaintiff spoke as an employee or a citizen, there
is no evidence that writing such letters is part of Plaintiff’s ordinary, official job
duties. It is true that Plaintiff learned of the alleged misappropriation through her
employment. However, that she learned of the relevant conduct through her
administrative duties does not transform her speech into an official job-related
activity. The Supreme Court has stated: “the mere fact that a citizen’s speech
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concerns information acquired by virtue of his public employment does not
transform that speech into employee—rather than citizen—speech.” Lane v.
Franks, 573 U.S. 228, 240 (2014). “It bears emphasis that our precedents dating
back to Pickering have recognized that speech by public employees on subject
matter related to their employment holds special value precisely because those
employees gain knowledge of matters of public concern through their employment.”
Id. At most, the inclusion of both private matters and public matters renders
Plaintiff’s letter “mixed speech.” “Mixed speech cases are perhaps the most difficult
subset of employee speech cases to adjudicate. Because the employee admittedly
speaks from multiple motives, determining whether she speaks as a citizen or
employee requires a precise and factually-sensitive determination.” Kennedy, 224
F.3d at 367. The Court will therefore assess the form and context of the letter to
determine its nature as a matter of private or public concern.
Formally, Plaintiff’s speech is contained in a letter to the school board.
Where a plaintiff wrote an internal memorandum criticizing school funding of his
athletic department, his speech was rendered pursuant to his official duties and
thereby unprotected. Williams, 480 F.3d at 693-94. That case noted specifically
that the plaintiff “needed to consult with his superior about his budget” and that he
did not “wr[i]te to the local newspaper or school board with his athletic funding
concerns.” Id.; see also Bradshaw v. Pittsburg Indep. Sch. Dist., 207 F.3d 814, 817
(5th Cir. 2000) (holding that internal memoranda authored by the plaintiff to
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exonerate herself of charges that she misused a student activity fund for personal
benefit was “a matter of pure personal concern”). In Garcetti v. Ceballos, 547 U.S.
410, 422 (2006), the Supreme Court made a similar distinction, noting an earlier
case where a “letter to the newspaper had no official significance and bore
similarities to letters submitted by numerous citizens every day.” Id. (citing
Pickering v. Bd. of Ed. of Township High Sch. Dist. 205, Will Cty., Ill., 391 U.S. 563
(1968)); see also Modica, 465 F.3d at 181 (“The form of Modica’s speech, a letter to a
state representative, also militates in favor of protection.”). Hence, Plaintiff’s
position is bolstered by the fact that she addressed the school board in the letter
rather than her supervisors, superiors or more proximate authorities.
Contextually, Plaintiff’s letter to the School Board either ignited or fueled a
public controversy regarding the alleged misallocation of funds, and her letter was
reproduced in the media coverage of the incident. (See WLOX News Article, ECF
No. 60-4). “[S]peech made against the backdrop of ongoing commentary and debate
in the press involves the public concern.” Kennedy, 224 F.3d at 373 (citing Brawner
v. City of Richardson, Tex., 855 F.2d 187, 191 (5th Cir. 1988) (holding speech to
relate to the public concern where “the statements in the letter must be seen in the
context of a continuing commentary that had originated in the public forum of the
newspaper.”)); Moore v. City of Kilgore, Tex., 877 F.2d 364, 371 (5th Cir. 1989) (“The
media in this case approached Moore, asked him for his comments, and printed his
responses. The caldron was still simmering concerning the issue. . . . Thus, our
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analysis of the context in which Moore’s speech was uttered also leads us to
conclude that his speech involves a matter of public concern.”). Although Plaintiff
did not directly submit her letter to the press, that her letter was nevertheless
subject to media coverage supports her position that it relates to matters of public
concern. See Kennedy, 224 F.3d at 374. Hence the content, form and context of the
letter at the least create a genuine issue of material fact as to whether it involves
the public concern.
Moreover, Plaintiff responds that her speech is not limited to the letter to the
school board, but also includes her speech to the State Auditor regarding the alleged
misappropriation of funds. Defendant argues that Plaintiff “did not actually author
the letter/report to the State Auditor; her mother (Lee Ann Dubaz and fellow School
District employee) did.” (Def.’s Reply Pl.’s Resp. Opp. Def.’s Mot. Part. Summ. J., at
3, ECF No. 91). However, the Court does not have requisite summary judgment
evidence to determine the authorship of the document. In an affidavit, Plaintiff
states that she “assisted” her mother in preparing the letter or report to the State
Auditor, and there is no evidence to contradict this attestation. (Pl.’s Aff. ¶ 4, ECF
No. 89-1). Plaintiff’s letter briefly seems to describe her mother as the primary
author of the letter or report to the State Auditor (see Letter, ECF No. 60-3), but
this is, in the light most favorable to Plaintiff, an ambiguity which does not
contradict the possibility that she coauthored the letter or report. Moreover, the
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parties have not submitted this report to the Court. Hence, the Court cannot grant
summary judgment to Defendant on such limited evidence.
IT IS THEREFORE ORDERED AND ADJUDGED that the  Motion
for Partial Summary Judgment, filed by Defendant, Biloxi Public School District, is
SO ORDERED AND ADJUDGED this the 2nd day of August, 2022.
Louis Guirola, Jr.
LOUIS GUIROLA, JR.
UNITED STATES DISTRICT JUDGE
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