Matory et al v. Mason et al
Memorandum Opinion and Order: Defendant Mason's 8 motion for judgment on the pleadings as to Matory's First Amendment retaliation claim is granted. Defendant's 15 motion to strike is granted. Finally, it is ordered that plaintiff s 17 rule 7 reply/motion to file second amendedcomplaint outside of time is granted to the extent that the courtconsidered plaintiffs untimely rule 7 reply and denied to theextent that plaintiffs seek leave to file an amended complaint. Signed by District Judge Tom S. Lee on 6/19/17 (LWE)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
CHERYL MATORY AND
CIVIL ACTION NO. 3:16CV989TSL-RHW
HINDS COUNTY SHERIFF VICTOR MASON,
IN HIS INDIVIDUAL CAPACITY, AND HINDS
MEMORANDUM OPINION AND ORDER
Defendant Sheriff Victor Mason has moved for judgment on the
pleadings pursuant to Federal Rule of Civil Procedure 12(c) as to
the First Amendment retaliation claim asserted against him in this
cause by plaintiffs Cheryl Matory and Tomeca Barnes.
having considered the motion, along with plaintiffs’ purported
“Rule 7 Reply”, concludes that Mason’s motion is well taken and
should be granted.
Mason filed his motion for judgment on the pleadings on April
11, 2017 raising a qualified immunity defense as to plaintiffs’
First Amendment retaliation claim.
Plaintiffs did not respond to
On May 2, 2017, this court entered an order directing
plaintiffs to file a Rule 7 reply in accordance with Shultea v.
Wood, 47 F.3d 1427 (5th Cir. 1995).
Plaintiffs did not file a Rule
Instead, they filed a “Memorandum in Support of
Plaintiff’s Opposition to Victor Mason’s Motion for Judgment on
the Pleadings,” notwithstanding that the court specifically stated
in its order that, having failed to timely respond to the motion
for judgment on the pleadings, plaintiffs would not be given an
opportunity to file a late response to that motion.
promptly moved to strike plaintiffs’ response, as it was both
untimely and in violation of the court’s order.
not respond to the motion to strike.
Instead, nearly a week after
that response was due, plaintiffs presented to the court a “Rule 7
Reply/Motion to File Second Amended Complaint Outside of Time”,
asking for permission to file their “Rule 7 Reply/Second Amended
Complaint” out of time to address the deficiencies raised by Mason
in his motion for judgment on the pleadings.1
The court would be
Plaintiffs assert in their “Rule 7 Reply/Motion to File
Second Amended Complaint Out of Time” that plaintiffs’ counsel did
not respond to Mason’s motion for judgment on the pleadings
because she “believed the allegations in her First Amended
Complaint were sufficient to overcome Mason’s request for
qualified immunity.” If that were the case, then counsel was
required by this court’s uniform local rules to notify the court
of plaintiffs’ intent not to respond. See L.U.Civ.R. 7(b)(3)(A)
(“Within the time allowed for response, the opposing party must
either respond to the motion or notify the court of its intent not
to respond.”). Had they done this, as the rule requires, the
court would have known that plaintiffs believed they had already
stated their best case, making a Rule 7 reply unnecessary.
Plaintiffs admit, though, that once ordered by the court to file a
Rule 7 reply, they should have done so and have no excuse for
their failure in this regard.
Plaintiffs further argue in their “Rule 7 Reply/Motion to
File Second Amended Complaint” that since they have already filed
a memorandum in opposition to Mason’s motion for judgment on the
pleadings, then the court should give Mason time to challenge the
sufficiency of their Second Amended Complaint. However,
warranted in refusing to accept this submission as a Rule 7 reply,
since the court directed that plaintiffs’ Rule 7 reply be filed by
May 12 and this was not done.
Ultimately, though, it makes no
difference whether or not the court accepts plaintiffs’ Rule 7
reply out of time since plaintiffs’ submission adds nothing of
material substance to the allegations of the complaint.2
Therefore, the court will allow plaintiffs to file their Rule 7
reply out of time.3
However, the court will deny plaintiffs’
motion to file this as an amended complaint since their proposed
amendment clearly does not state a cognizable First Amendment
See Horton Archery, LLC v. Farris Bros., No.
plaintiffs’ memorandum response to Mason’s motion is subject to a
motion to strike; and while plaintiffs have docketed their “Rule 7
Reply/Motion to Amend” as a response to the motion to strike,
plaintiffs’ “Rule 7 Reply/Motion to Amend” is not a response to
the motion to strike. Rather, it addresses plaintiffs’ failure to
file a Rule 7 reply and in substance, offers no reason why this
court should not strike plaintiffs’ response to Mason’s motion,
which was filed out of time and in violation of the court’s May 2
order. Under the circumstances, the court finds that the motion
to strike should be granted.
This submission contains no new factual allegations and,
with the exception of two sentences that appear in paragraph 50,
is identical to plaintiffs’ original complaint. The two sentences
plaintiffs have added (1) identify the specific alleged speech on
which Matory’s First Amendment retaliation claim is based;
(2) aver that this speech was on a matter of public concern; and
(3) recite that Matory’s interest in speaking out on these matters
outweighed the efficiency of the Sheriff’s Department.
Obviously, it is not necessary for Mason to respond to
the Rule 7 reply in any manner of, for that matter, to respond to
plaintiff’s various recent submissions.
2:13-CV-260-KS-MTP, 2014 WL 1239382, at *1 (S.D. Miss. Mar. 26,
2014) (an amendment “may be denied ‘where the proposed amendment
would be futile because it could not survive a motion to
dismiss.’”) (quoting Rio Grande Royalty Co ., Inc. v. Energy
Transfer Partners, L.P., 620 F.3d 465, 468 (5th Cir. 2010)).
According to the allegations of the complaint, in 2015, in
anticipation of being elected sheriff of Hinds County, defendant
Mason asked Matory, then a corporal and crime scene investigator
with the Jackson Police Department (JPD), to help him recruit
employees for the Sheriff’s Department; he said he would hire her
as his undersheriff if he was elected.
Mason was particularly
interested in hiring Tomeca Barnes, and told Matory to ask Barnes,
also a corporal with JPD, to help with his election campaign.
promised Barnes he would name her head supervisor of the Internal
Affairs Division (IAD) if he was elected.
Matory alleges that throughout the election campaign, Mason
repeatedly texted her about Tomeca Barnes, asking where Barnes was
and whether Matory had talked with her.
On one occasion, he
texted Matory a photo of Barnes in her honor guard uniform.
texting about Barnes continued after Mason was elected sheriff in
Mason sent Matory texts asking where Barnes was,
stating he was thinking about Barnes, and at times he just texted
Barnes’ name or her initials.
In September 2015, shortly after
the election, Mason asked Matory, “Will she (Barnes) give me
When Matory responded, “I don’t know.
What Doing?” he
responded, “If she doesn’t you won’t get hired.
Take a guess.”
Matory replied, “Well that’s not my fault can’t tell grown folks
what to do with personal life.”
In November 2015, prior to being sworn in as sheriff, Mason
asked Barnes for her number and began texting her directly and
often, sometimes just saying hello, or encouraging her to “call me
or text me anytime you feel you need to.”
On one occasion, he
sent her a photo of a Hinds County Sheriff’s Department badge to
show what her badge would look like.
On another, he told her that
her monthly salary would be $4720.15 but asked, “Would it bother
you if I moved you up?”
When she asked why he would do that, he
responded, “Why shouldn’t I. ...
I have my reasons.”
In January 2016, after he was sworn in as sheriff, Mason
hired Matory as undersheriff and Barnes as head supervisor of the
Mason began asking Matory to have Barnes come
to his office; after Barnes would arrive, he would direct Matory
to leave and close the door.
As Barnes would make her reports to
Mason, she would notice him just staring at her, which made her
When she was away on military drills, he asked for
pictures of her in her military gear, which she provided.
response to one, he wrote, “Nice!!!!!” and “Oh wow look at you.
According to the complaint, Barnes began to spurn Mason’s
unwanted advances toward her.
alone with him.
She was uncomfortable being left
She told Matory she was uncomfortable with him
and asked Mason if Matory could remain in his office when she
When Mason told Matory that she better make sure
that Barnes came to his office “or else”, Matory asked what he
meant by “or else”.
He told her, “you think I’m playing. I’ll
Matory responded that she was not going to arrange for
him to have sex with Barnes.
Mason became angry and began to
distance himself from Matory and Barnes.
The complaint recites
that before he distanced himself from Matory, Mason asked her what
would she do if she came to his office and it smelled like “ass.”
Matory responded, saying “Are we still dealing with that, we have
work to do.”
Matory asked Mason not to involve her in his plans
for Barnes and to stop directing her to tell Barnes that he was
interested in having sex with her.
Matory also alleges that in the spring of 2016, Mason kept
telling her he was going to make her kiss an employee nicknamed
And he began saying, “Everyone loves dick.”
asked him why he was using derogatory language, he said he was
referring to Captain Richard Brown.
When Matory asked him to
stop, Mason told her it was not unprofessional and it was true
that “Everybody loves dick.”
Plaintiffs allege that soon after Barnes distanced herself
from Mason, he demoted both of them.
He replaced Mason with Pete
Luke, a white male, and he replaced Barnes with Keith Barnett, a
Several months later – and apparently after Matory
filed a charge of discrimination with the EEOC and received a
notice of right to sue - Matory was terminated.
Barnes continues to be employed by the Sheriff’s Department, she
claims she is treated less favorably than other employees.
Based on these allegations, plaintiffs have brought the
present action against Hinds County and Sheriff Mason,
individually, alleging claims of sex discrimination/harassment,
race discrimination and retaliation under Title VII of the Civil
Rights Act, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981 and
Mason, asserting qualified immunity, has moved for
judgment on the pleadings as to plaintiffs’ First Amendment
retaliation claims under § 1983, contending they have failed to
plead facts which identify what “speech” they contend resulted in
Sheriff Mason’s retaliating against them, or to provide any
substantive allegations sufficient to establish that such speech
involved a matter of public concern and/or that it outweighed
Sheriff Mason’s interest in promoting efficiency of the Sheriff’s
The doctrine of qualified immunity shields state officials
from suit “insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.”
Harlow v. Fitzgerald, 457
U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)).
determination whether an official is entitled to qualified
immunity involves two questions:
(1) Did the official violate a
statutory or constitutional right? (2) Was that right clearly
established at the time of the challenged conduct?
al-Kidd, 563 U.S. 731, 735, 131 S. Ct. 2074, 2080, 179 L. Ed. 2d
The court has discretion in deciding which of these
two issues should be addressed first in light of circumstances in
the particular case at hand.
Pearson v. Callahan, 555 U.S. 223,
235, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009).
In some cases, the
better course is to consider first whether the federal rights
alleged to have been violated were clearly established and perhaps
thereby avoid needlessly deciding constitutional questions.
Al-Kidd, 563 U.S. at 735 (observing in context of deciding which
issue to tackle first that “[c]ourts should think carefully before
expending scarce judicial resources to resolve difficult and novel
questions of constitutional or statutory interpretation that will
have no effect on the outcome of the case.”) (internal quotation
marks and citation omitted).
Qualified immunity does not merely offer immunity from
liability, but provides immunity from suit.
Foster v. City of
Lake Jackson, 28 F.3d 425, 428 (5th Cir. 1994).
a defendant seeks dismissal based on qualified immunity, the
complaint is subject to a heightened pleading requirement,
Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995): the
plaintiff must plead sufficient facts to disprove the defendant’s
qualified immunity defense and must do so “‘with factual detail
and particularity, not mere conclusionary allegations.’”
Newkirk-Turner, No. 3:13CV733-DPJ-FKB, 2014 WL 5392960, at *3
(S.D. Miss. Oct. 22, 2014) (quoting Anderson v. Pasadena Indep.
Sch. Dist., 184 F.3d 439, 443 (5th Cir. 1999)).
In the qualified immunity analysis, the question whether the
facts establish a violation of a constitutional right is
determined with reference to current law.
Atteberry v. Nocona
Gen. Hosp., 430 F.3d 245, 253 (5th Cir. 2005).
overcome a defendant’s qualified immunity, the plaintiff must also
prove that the right allegedly violated was “clearly established”
at the time of the defendant’s alleged misconduct.
conduct violates clearly established law when, at the time of the
challenged conduct, “the law so clearly and unambiguously
prohibited his conduct” that “every ‘reasonable official would
have understood that what he is doing violates [the law].’”
al-Kidd, 563 U.S. at 741, 131 S. Ct. at 2083 (quoting Anderson v.
Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L. Ed. 2d 523
To answer that question in the affirmative, [the court]
must be able to point to controlling authority – or a
“robust ‘consensus of persuasive authority’” that
defines the contours of the right in question with a
high degree of particularity. Where no controlling
authority specifically prohibits a defendant's conduct,
and when the federal circuit courts are split on the
issue, the law cannot be said to be clearly established.
Morgan v. Swanson, 659 F.3d 359, 371-72 (5th Cir. 2011).
Moreover, as the court suggested in Morgan, courts must not
“define clearly established law at a high level of generality,”
al-Kidd, 563 U.S. at 742, 131 S. Ct. at 2084, e.g., a First
Amendment right to freedom of speech.
The proper inquiry,
instead, is “whether the violative nature of particular conduct is
clearly established,” id., 131 S. Ct. at 2084.
This inquiry “must
be undertaken in light of the specific context of the case, not as
a broad general proposition.”
Brosseau v. Haugen, 543 U.S. 194,
198, 125 S. Ct. 596, 599, 160 L. Ed. 2d 583 (2004) (per curiam)
(internal quotation marks and citation omitted).
While not entirely clear from the original complaint, it is
evident from plaintiffs’ Rule 7 reply that only Matory has
asserted a First Amendment retaliation claim in this case; Barnes
has not asserted a First Amendment claim.
Matory’s claim is
grounded on her assertion, set forth in her Rule 7 reply, that
[Matory] spoke as a citizen when she told Mason after he
became sheriff that she would not assist him in his
efforts to have sex with Barnes, when she asked Mason
not to direct her to tell Barnes that he was sexually
attracted to Barnes and when she spoke out against
Mason’s sexually derogatory’s [sic] comment in the work
place during the winter of 2016.4
For the reasons that follow, the court concludes that Mason
is entitled to qualified immunity as to Matory’s First Amendment
retaliation claim because the right to free speech in this context
was not clearly established.
More to the point, it was not
clearly established at the time Matory was terminated that the
speech in question was uttered as a private citizen or that it
addressed a matter of public concern.
Accordingly, Mason’s motion
for judgment on the pleadings will be granted.
“[P]ublic employees do not surrender all their First
Amendment rights by reason of their employment,” Jordan v. Ector
Cnty., 516 F.3d 290, 294-95 (5th Cir. 2008) (citation omitted),
and public employees may not be retaliated against for exercising
their right to free speech, Thompson v. City of Starkville, 901
F.2d 456, 460 (5th Cir. 1990).
See also Davis v. McKinney, 518
Plaintiffs’ complaint alleges Mason began saying
“everyone loves dick” in the spring – not winter – of 2016. The
complaint does not plainly identify any other “sexually derogatory
F.3d 304, 312 (5th Cir. 2008) (“The First Amendment protects a
public employee's right, in certain circumstances, to speak as a
citizen on matters of public concern.”) (citing Pickering v. Board
of Educ., 391 U.S. 563, 568, 88 S. Ct. 1731, 20 L. Ed. 2d 811
To establish a First Amendment retaliation claim, a
public employee must allege and prove that (1) she suffered an
adverse employment action; (2) her conduct was protected by the
First Amendment, that is, she spoke as a private citizen on a
matter of public concern; (3) her interest in commenting on the
matters of public concern outweighs the public employer's interest
in the efficient provision of public services; and (4) her
protected speech precipitated the challenged adverse employment
Nixon v. City of Houston, 511 F.3d 494, 497 (5th Cir.
2007); Connick v. Myers, 461 U.S. 138, 146, 103 S. Ct. 1684, 75 L.
Ed. 2d 708 (1983).
The second element sets forth “two predicates
for public-employee speech to receive First Amendment protection;
the speech must be made as a citizen and on a matter of public
Gibson v. Kilpatrick, 773 F.3d 661, 667 (5th Cir. 2014)
Both of these are questions of law to be
resolved by the court.
Graziosi v. City of Greenville Miss., 775
F.3d 731, 736 (5th Cir. 2015).
Accordingly, the court’s analysis
proceeds as follows:
First it must be determined whether the employee's
speech is pursuant to his or her official duties. If it
is, then the speech is not protected by the First
Amendment. Second, if the speech is not pursuant to
official duties, then it must be determined whether the
speech is on a matter of public concern. Third, if the
speech is on a matter of public concern, the Pickering
test must be applied to balance the employee's interest
in expressing such a concern with the employer's
interest in promoting the efficiency of the public
services it performs through its employees. (Footnotes
and citations omitted).
Davis, 518 F.3d at 312 (quoting Ronna Greff Schneider, 1 Education
Law: First Amendment, Due Process and Discrimination Litigation §
2:20 (West 2007)).
The Supreme Court made clear in Garcetti v. Ceballos, 547
U.S. 410, 126 S. Ct. 1951, 164 L. Ed. 2d 689 (2006), that “the ‘as
a citizen’ requirement draws a distinction between when public
employees speak in their private capacities and when they speak
‘pursuant to their official duties.’”
Gibson v. Kilpatrick, 773
F.3d 661, 667 (5th Cir. 2014) (citing Garcetti, 547 U.S. at 421,
126 S. Ct. 1951).
“When public employees speak ‘pursuant to their
official duties, the employees are not speaking as citizens for
First Amendment purposes, and the Constitution does not insulate
their communications from employer discipline.’”
Garcetti, 547 U.S. at 421, 126 S. Ct. 1951).
See Garcetti, 547
U.S. at 421, 126 S. Ct. 1951 (reasoning that “[r]estricting speech
that owes its existence to a public employee's professional
responsibilities does not infringe any liberties the employee
might have enjoyed as a private citizen”).
“The critical question
under Garcetti is whether the speech at issue is itself ordinarily
within the scope of an employee's duties....”
Lane v. Franks, —
U.S. —, 134 S. Ct. 2369, 2379, 189 L. Ed. 2d 312 (2014).
is made pursuant to official duties if it is required by one's
position or undertaken in the course of performing one's job.
Haverda v. Hays Cnty., 723 F.3d 586, 598 (5th Cir. 2013) (citing
Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 693 (5th Cir.
Relevant considerations in making this determination
include “the employee's job description, whether the employee
spoke on the subject matter of his employment, whether the speech
stemmed from special knowledge gained as an employee, and whether
the communication was internal or external in nature.”
Wells, No. 2:15-CV-00083-J, 2015 WL 4191751, at *9-10 (N.D. Tex.
July 10, 2015) (citing Charles v. Grief, 522 F.3d 508, 513-14 (5th
Cir. 2008), and Davis, 518 F.3d at 313).
The Fifth Circuit has observed that “when a public employee
raises complaints or concerns up the chain of command at his
workplace about his job duties, that speech is undertaken in the
course of performing his job.”
Davis, 518 F.3d at 313.
however a public employee takes his job concerns to persons
outside the work place in addition to raising them up the chain of
command at his workplace, then those external communications are
ordinarily not made as an employee, but as a citizen.”
for example, in Frietag v. Ayers, 468 F.3d 528 (9th Cir. 2006),
cited with approval in Davis, the court found that a corrections
officer’s internal complaints up the chain of command about inmate
exhibitionist behavior directed at female officers were made
pursuant to her official duties, whereas her external reports of
that same conduct were made as a private citizen.
Id. at 532-545.
Matory alleges that in refusing to participate in Mason’s
attempts to have sex with Barnes and objecting to his sexually
derogatory comments, she spoke as a private citizen.
typically found that employee reports of sexual harassment up the
chain of command are made in the course of performing one’s job.
See, e.g., Condiff v. Hart Cty. Sch. Dist., 770 F. Supp. 2d 876,
889 (W.D. Ky. 2011) (where school district employee had obligation
under district’s sexual harassment policy to report instances of
sexual harassment to school officials, teacher’s report of sexual
harassment of student was made pursuant to her official duty as a
teacher and not in her capacity as a citizen); Kagarise v.
Christie, No. CIV. A. 09-0402, 2013 WL 6191556, at *6 (M.D. Pa.
Nov. 26, 2013) (where the plaintiff's law enforcement job duties
included reporting sexual harassment in the workplace, report of
sexual harassment to supervisor was not protected); Ezuma v. City
Univ. of N.Y., 665 F. Supp. 2d 116, 129 (E.D.N.Y. 2009), aff'd,
367 F. App'x 178 (2d Cir. 2010) (employee’s internal report of
sexual harassment allegation was part of employee’s job duties
where policy imposed obligation on employee to report sexual
harassment); Harrison v. Oakland Cnty., 612 F. Supp. 2d 848, 867
(E.D. Mich. 2009) (employee was not speaking “as a citizen” when
he complained to his superiors about co-worker's sexually
inappropriate conduct); Dane v. Bd. of Sup'rs of La. State Univ.,
Civ. A. No. 07–138–RET–SCR, 2010 WL 3717242 (M.D. La. June 15,
2010) (plaintiff's reports of sexual harassment were made in the
course of performing his job and pursuant to his official duties);
cf. Parker v. Illinois Human Rights Comm'n, No. 12 C 8275, 2013 WL
5799125, at *5 (N.D. Ill. Oct. 25, 2013) (denying Rule 12(b)(6)
motion where employee, agency’s general counsel, argued that she
was voicing her personal outrage and that reporting discriminatory
conduct within the agency was not part of her job description and
not work product of the general counsel).
In contrast to all these cases, the speech at issue here –
Matory’s refusal to assist Mason in his efforts to engage in a
sexual relationship with Barnes or to tell Barnes that Mason was
interested in having sex with her, and her objection to Mason
regarding his alleged sexually derogatory comments (i.e.,
“everyone loves dick”) – was directed to Sheriff Mason and no one
Matory did not report Mason’s alleged misconduct to anyone,
internally or externally.
Instead, she objected to Mason about
his own alleged misconduct.
Her actions arguably are more like
those of the employee in Richardson-Holness v. Alexander, who the
court suggested was acting as a private citizen in rejecting her
supervisor’s sexual advances.
161 F. Supp. 3d 170, 178 (E.D.N.Y.
There, the court observed in dictum that the plaintiff’s
actions “may have been in the best interests of her institution,
as the complaint suggests ... [b]ut it does not follow, even
remotely, that plaintiff's actions owed their existence to her
Plaintiff was employed to teach, not
to deflect unwelcome sexual misconduct.”).
However, it was not
“clearly established” at the time of the alleged constitutional
violation that an employee’s actions in deflecting – but not
reporting alleged sexual harassment – would be as a private
Cf. Howell v. Town of Ball, 827 F.3d 515, 520 (5th Cir.
2016) (noting that “the clearly established ‘right’ at issue must
be defined within the contours of the specific controversy” and
finding that “[t]he lack of the application of Garcetti to similar
facts at the time of Howell's discharge, coupled with the Supreme
Court's only recent clarification of Garcetti's citizen/employee
distinction in Lane, compels us to hold that the Board defendants
did not violate a ‘clearly established’ constitutional right when
voting to fire Howell.”).
Likewise, it was not clearly established that Matory’s speech
was on a matter of public concern.
“Whether an employee's speech
addresses a matter of public concern must be determined by the
content, form, and context of a given statement.”
Grief, 522 F.3d 508, 514 (5th Cir. 2008) (citation and quotation
Speech may contain elements of both personal and
public concern and nevertheless be found to address public
Salge v. Edna Indep. Sch. Dist., 411 F.3d 178, 186 (5th
The Fifth Circuit has stated:
It is well established that speech concerning official
misconduct involves a matter of public concern. See,
e.g., Modica v. Taylor, 465 F.3d 174, 180-81 (5th Cir.
2006) (holding that misuse of public funds and official
malfeasance are matters of public concern); Wallace v.
County of Comal, 400 F.3d 284, 289-91 (5th Cir. 2005)
(“[T]here is perhaps no subset of matters of public
concern more important than bringing official misconduct
to light.” (citation and quotation marks omitted));
Kinney [v. Weaver, 367 F.3d 337, 369 (5th Cir. 2004)]
(“[I]t is well-established in the jurisprudence of both
the Supreme Court and this court that official
misconduct is of great First Amendment
significance....”); Branton v. City of Dallas, 272 F.3d
730, 745 (5th Cir. 2001) (“We have held that public
employees' speech reporting official misconduct,
wrongdoing, or malfeasance on the part of public
employees involves matters of public concern.”).
Goudeau v. E. Baton Rouge Par. Sch. Bd., 540 F. App'x 429, 434-35
(5th Cir. 2013).
The Fifth Circuit has also stated that
“allegations of sexual harassment ... are always matters of public
concern, even when made both as a citizen and as an employee.”
Johnson v. Louisiana, 369 F.3d 826, 831 (5th Cir. 2004) (citing
Wilson v. UT Health Ctr., 973 F.2d 1263, 1269-70 (5th Cir. 1992));
see also Wilson, 973 F.2d at 1269-70 (5th Cir. 1992) (holding that
employee’s “reports of sexual harassment perpetrated on her and
other women at UTHC – is of great public concern.”).
In the court’s opinion, however, the content, form, and
context of Matory’s alleged speech demonstrate that she was not
speaking on a matter of public concern; and certainly, it was not
clearly established that such speech would be considered to be a
matter of public concern.
She did not speak out, report or bring
to light any misconduct by Mason.
misconduct to anyone.
She did not reveal his alleged
The court recognizes that the fact that
speech is made in private does not necessarily foreclose a finding
that it was a matter of public concern, but it is certainly a
factor, and in the context of this case, a significant factor, as
Matory spoke only in private and only to the official alleged to
have been engaged in misconduct.
See Salge v. Edna Indep. Sch.
Dist., 411 F.3d 178, 187 (5th Cir. 2005) (observing that “[t]he
audience before whom the employee speaks ... may also be relevant
to an analysis of the context in which an employee's speech is
offered); Kirkland v. Northside Indep. Sch. Dist., 890 F.2d 794,
800 (5th Cir. 1989) (noting the fact that the plaintiff never
spoke publicly, to colleagues, supervisors, or the public, about
the matter at issue in support of a holding that the plaintiff
spoke on a matter of private concern); Terrell v. Univ. of Tex.
System Police, 792 F.2d 1360, 1362 (5th Cir. 1986) (holding that,
as the plaintiff never made an effort to communicate speech in his
diary to the public, he did not speak on a matter of public
concern); Eubank v. Lockhart Indep. Sch. Dist., No.
1:15-CV-1019-RP, 2017 WL 187662, at *13 (W.D. Tex. Jan. 17, 2017)
(stating that “[w]hile not dispositive, the private nature of ...
communications nonetheless remains ‘part of the context ... to be
considered in determining whether the speech addressed a matter of
public concern.’” (quoting Davis v. West Cmty. Hosp., 755 F.2d
455, 461 (5th Cir. 1985)); cf. Sloan v. Shannon, No. CIV.A.
1:07CV245SAJA, 2009 WL 1162639, at *8–9 (N.D. Miss. Apr. 29, 2009)
(noting that court may consider employee's attempts to make the
concerns public, along with her motivation in speaking, and
finding it pertinent, although not conclusive, that employee never
attempted to air her sexual harassment complaints in a manner that
would call the public's attention to the alleged wrong).
Furthermore, in refusing to assist Mason in his efforts to
engage in a sexual relationship with Barnes, Matory was not
protesting his sexual harassment of Barnes.
Matory’s own account
reflects that her objection was not to Mason’s efforts to pursue a
sexual relationship with Barnes; rather, her objection was to
Mason’s involving her in his efforts to do so.
While Matory also
objected to certain specific crude and sexually suggestive
remarks, under the circumstances, i.e., the remarks were limited
to one occasion and were made only to Matory, the remarks were not
of public interest or concern.5
Even if this speech may have been a matter of public
concern, it was not of sufficient “value to the process of
self-governance” to warrant constitutional protection.
Based on the foregoing, it is ordered that Mason’s motion for
judgment on the pleadings as to Matory’s First Amendment
retaliation claim is granted.
It is further ordered that
defendant’s motion “to strike memorandum in opposition to motion
for judgment on the pleadings” is granted.
Finally, it is ordered
that plaintiffs’ “rule 7 reply/motion to file second amended
complaint outside of time” is granted to the extent that the court
considered plaintiffs’ untimely rule 7 reply and denied to the
extent that plaintiffs seek leave to file an amended complaint.
SO ORDERED this 19th day of June, 2017.
/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE
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