Dorsey v. Gray et al

Filing 76

ORDER re 68 Motion for Summary Judgment: The parties are given 14 days from the date of this Order to file simultaneous supplemental briefs addressing only the issues identified in this Order. No additional briefing will be permitted absent further order of the Court. Signed by Chief District Judge Daniel P. Jordan III on November 29, 2017. (SP)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
CAROL DORSEY
V.

PLAINTIFF
CIVIL ACTION NO. 3:15-CV-566-DPJ-FKB

JACKSON PUBLIC SCHOOL DISTRICT

DEFENDANT

ORDER
Plaintiff Carol Dorsey believes that Defendant Jackson Public School District (“JPSD”)
terminated her employment because she engaged in speech protected by the First Amendment to
the United States Constitution. JPSD has moved for summary judgment, arguing that Dorsey did
not speak as a citizen on a matter of public concern. See Def.’s Mem. [69] at 7–9. The Court
needs clarification and therefore requests additional briefing on three issues.1
I.

Background
JPSD employed Dorsey as its Executive Director of Human Resources. In that capacity,

Dorsey received an email directing her to place two hiring recommendations on the school
board’s agenda. Consistent with her job responsibilities, she forwarded the email to her assistant
for posting on the agenda, but Dorsey apparently disagreed with the decision and added the word
“REALLY!!” JPSD eventually backed off the hiring recommendation but terminated Dorsey’s
employment.

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This Order is written for the benefit of the parties and assumes their knowledge of the
underlying facts and legal standards. In addition, the Court has made no holdings at this point
and will not do so before hearing from the parties and completing its research.

II.

Questions
A.

Mixed Speech

The parties now dispute the second element of Dorsey’s First Amendment retaliation
claim—whether she spoke as a citizen on a matter of public concern. JPSD’s core argument for
dismissal is that the email was sent pursuant to Dorsey’s “official duties” because the “speech
was made in the course of performing her employment.” Def.’s Mem. [69] at 8 (brackets
omitted) (citing Anderson v. Valdez, 845 F.3d 580, 595 (5th Cir. 2016))). In other words, any
statements Dorsey made within the email were made pursuant to her duties.
But JPSD needs to explain its argument in light of Fifth Circuit law on mixed speech. In
Davis v. McKinney, the Fifth Circuit considered whether the plaintiff acted as an employee when
she sent an internal complaint letter that contained some statements that related to her job and
some that did not. 518 F.3d 304, 314 (5th Cir. 2008). The Davis court concluded that the letter
constituted mixed speech. Id. at 314–15; see also Gibson v. Kilpatrick, 838 F.3d 476, 485 (5th
Cir. 2016) (holding that “even a mere scintilla of speech regarding a matter of public concern is
sufficient to treat the entire communication as mixed speech”) (citation omitted). The court then
held that it must “consider[ ] separately discrete topics within a single communication for
purposes of applying post-Garcetti First Amendment analysis” regarding employee status. 518
F.3d 304, 315. So based on Davis, it is not apparent that Dorsey’s added comment was made as
an employee just because it occurred while performing a work-related task. If Davis survives
Lane v. Franks, 134 S. Ct. 2369, 2379 (2014), then it seems instead that this Court should
consider separately the statement “REALLY!!”
Assuming Davis applies, other questions also require further attention. Looking
separately at the “REALLY!!” statement, the more precise issue is whether the comment “itself

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ordinarily [falls] within the scope of [Dorsey’s] duties, not whether it merely concerns [read:
relates to] those duties.” Anderson, 845 F.3d at 595–96 (quoting Lane, 134 S. Ct. at 2379). To
answer that question, the Fifth Circuit has looked to factors such as “job descriptions, whether
the employee communicated with coworkers or with supervisors, whether the speech resulted
from special knowledge gained as an employee, and whether the speech was directed internally
or externally.” Howell v. Town of Ball, 827 F.3d 515, 523 (5th Cir. 2016) (quoting Davis, 518
F.3d at 313). The Fifth Circuit also noted in Anderson v. Valdez that “[w]hen an employee was
not actually ‘performing work assigned by the employer,’ he nonetheless might have acted
within the scope of his employment—or pursuant to his official duties—if he was ‘engaging in a
course of conduct subject to the employer’s control.’” 845 F.3d at 596 (quoting Restatement
(Third) of Agency § 7.07).
In this case, the undisputed record evidence is that Dorsey was not consulted on this
specific hiring recommendation but that as the Executive Director of Human Resources, one of
the “essential function[s] of her job was to coordinate the entire personnel process to include . . .
appointment . . . of all personnel employed by the system.” Job Description [73-2] at 1. Given
the fact that hiring decisions fall squarely within Dorsey’s essential functions, it at least appears
that comments she makes to her HR staff, about an HR decision, based on information she
obtains due to her position, and that never leaves the HR department would be subject to her
employer’s control and otherwise fall within her ordinary duties. And these facts may
distinguish Dorsey’s primary authority, Rankin v. McPherson, where two co-workers were fired
for their comments on a political issue that was unrelated to their work. 107 S. Ct. 2891, 379–80
(1987). Having said all that, neither party adequately addresses the mixed-speech issue or the
more precise application of Lane and Anderson to Dorsey’s ordinary duties.

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B.

Waters v. Churchill

The Court likewise has questions about the Waters v. Churchill claim. 511 U.S. 661
(1994). In her Second Amended Complaint (“SAC”), Dorsey avers that JPSD failed to conduct a
reasonable investigation before terminating her employment. See SAC [50] ¶ 19. She appears to
assert that this violated her rights and entitles her to a remedy.
As a threshold issue, the Court requires further briefing on whether Churchill creates a
constitutional right that would allow a cause of action under § 1983. Cases citing Churchill
frequently observe that speech should be viewed in light of what the employer reasonably
believed the employee said. See Salge v. Edna Indep. Sch. Dist., 411 F.3d 178, 185, 192 (5th
Cir. 2005). But that presumption will not apply if the employer fails to conduct a reasonable
investigation. See id. at 192. While cases like Salge generally speak about the right to such an
investigation, the parties need to address whether this is simply an evidentiary issue or a
substantive right that is enforceable on its own under § 1983.
In addition, it is not apparent that JPSD’s citation to Salge supports the argument that
undisputed speech requires no investigation. JPSD says that Churchill “requires an investigation
only where there is a dispute about what the speaker said.” Def.’s Mem. [69] at 11. It then cites
the following language from Salge to support that assertion: “In Churchill, unlike the instant
case, the difference between the two versions of the employee’s speech was determinative, as
one version implicated protected speech and the other did not.” Id. (quoting Salge, 411 F.3d at
185). But that passage addressed the Churchill holding related to the Connick v. Myers inquiry
into whether the speech was on a matter of public concern. See Salge, 411 F.3d at 185 (citing
Connick, 461 U.S. 138 (1983)). The parties should address—with more specific authority—
whether the duty to investigate exists where there is no dispute over what was said.

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C.

Invasion-of-Privacy Claim

Dorsey’s First Amended Complaint did not include an invasion-of-privacy claim. But
her proposed SAC did. See SAC [42-1] ¶ 22. Defendant did not specifically oppose that portion
of the motion to amend. See Def.’s Resp. [43]; Def.’s Mem. [44]. And frankly speaking, the
Court did not initially notice it either. Accordingly, even assuming Defendants are entitled to
summary judgment on the First Amendment claim, judgment would be partial. The parties
should therefore address the status of the invasion-of-privacy claim.
The parties are given 14 days from the date of this Order to file simultaneous
supplemental briefs addressing only the issues identified in this Order. No additional briefing
will be permitted absent further order of the Court.
SO ORDERED AND ADJUDGED this the 29th day of November, 2017.
s/ Daniel P. Jordan III
CHIEF UNITED STATES DISTRICT JUDGE

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