Smith v. The College of the Mainland and Michael Elam, President of College, in His Individual and Official Capacity
Filing
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MEMORANDUM AND ORDER granting in part denying in part 27 MOTION for Summary Judgment. (Signed by Judge Gregg Costa) Parties notified.(arrivera, )
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
DAVID MICHAEL SMITH,
Plaintiff,
VS.
THE COLLEGE OF THE
MAINLAND, et al,
Defendants.
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§ CIVIL ACTION NO. 3-11-286
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§
MEMORANDUM AND ORDER
On June 17, 2010, Plaintiff David Michael Smith, a long-time
professor of government at Defendant The College of the Mainland, spoke
up during a special meeting of the College’s Board of Trustees at which
public comment was prohibited. A few days later, the College formally
reprimanded Smith for violating his duty under the Faculty Code of
Professional Ethics to treat all persons with respect, dignity, and justice.
Smith filed suit alleging that the College and its then President David Elam
violated his First Amendment rights by retaliating against him for the
remarks he made at the board meeting. For the reasons discussed below, the
Defendants’ Motion for Summary Judgment is GRANTED IN PART and
DENIED IN PART.
1
I.
BACKGROUND
This suit arises out of a vigorous dispute over whether the College
would continue to deduct union dues from faculty members’ paychecks.
The underlying facts are largely undisputed. The College of the Mainland is
a two-year community college in Texas City, Texas. Smith is a longtime
professor of government at the College; according to him, he has taught
there for thirteen years and is the president of its faculty union, COM-Unity.
At all times relevant to this suit, Defendant Michael Elam was president of
the College.1
According to Smith, the College had had a policy of deducting union
dues from faculty members’ paychecks for nearly 30 years. However, in
April 2010, Elam ended the dues deduction policy. This decision generated
controversy in the College community. A number of concerned parties,
including Smith, wrote critical letters published in the Galveston Daily
News. See Docket Entry Nos. 32-10, 32-11 at 3–4. Additionally, one of the
College’s trustees, Mr. Criss, requested that the Board hold a vote on
reversing Elam’s action. In response to Criss’s request, the Board scheduled
a discussion session—a format that allows discussion between Board
members on the record but disallows public comment—for a meeting to be
1
Elam, however, is no longer employed by the College, and Smith has abandoned all
claims against him. Summary judgment will therefore be granted in Elam’s favor.
2
held on June 17, 2010.
The meeting was held on campus in the
“administration boardroom.” Docket Entry No. 27-1 Ex. A-1.
In relevant part, the meeting began with a report by one of the
College’s business office employees on the costs of the dues deduction
policy. See Docket Entry No. 37 at 1:15–8:40. After the report concluded,
Criss asked the employee some pointed questions about the figures
presented in the report. See id. at 8:40–13:55. In response, Elam spoke up
to defend the College’s move away from deductions toward direct deposits.
See id. at 13:55–14:58. Criss then questioned whether union members were
being treated less favorably than employees using deductions for other
purposes. See id. at 14:58–15:06. Elam disagreed with the assertion and
stated that he had met with the union and that “we ended up with the
discussion that we could work towards trying to figure out a way to do direct
deposit for them.” Id. at 15:10–15:22.
As soon as Elam had finished speaking, Criss expressed surprise, and
Smith interjected to state “[n]o, no sir, we did not agree to that at all.” Id. at
15:22–15:30. There was then some crosstalk, the Board chair rapped her
gavel for order, and Elam responded to Smith, “Wait a minute, wait a
minute, now don’t lie, don’t lie, don’t lie, because that was the last thing we
talked about, we mentioned it, and I can even, I can go back and look at the
3
minutes, we can find out the people who, who raised the issue as I was
leaving about direct deposits, so, so don’t, you know, don’t go there.” Id. at
15:28–15:53. Smith immediately retorted, “Yeah, don’t go there, you’re not
telling the truth, there were 30 people there and they heard you.” Id. at
15:53–15:57. Criss then chided Smith and indicated he was out of order by
stating “[c]ome on, David.” Id. at 15:57–15:59. There was then a severalsecond pause, after which Criss quipped “[w]here did David go,” an
apparent inside joke that was greeted with raucous laughter by the entire
Board. Id. at 16:00–16:20. As the laughter ended, one of the trustees,
apparently addressing Smith, jokingly stated that “you might want to grab a
seat, man, and pull it up to the table.” Id. at 16:21–16:25. Elam, returning
to serious conversation, then attempted to ask Smith whether direct deposit
for union dues would be acceptable, but Criss called a point of order,
sustained by the Board chair, reminding Elam that he was not to address
guests like Smith. Id. at 16:23–16:58. The conversation then moved on;
Smith did not make any other statements.2
Though Smith’s involvement in the exchange lasted only a minute, it
had far-reaching consequences. On June 23, 2010, Elam complained to
Smith’s immediate supervisor, Pam Millsap, at that time the Chair of the
2
Ultimately, the Board reversed Elam’s decision and reinstated the dues deduction policy
in a subsequent meeting held on June 28, 2010.
4
College’s Department of Social & Behavioral Sciences, that Smith’s actions
had been “disruptive, inappropriate, unprofessional, insubordinate, and a
violation of the Faculty Code of Professional Ethics.” Docket Entry No. 271 Ex. C ¶ 3. Together, Elam and Millsap interviewed a witness who had
attended the June 17 meeting. They then met with Smith, who conceded that
he had spoken out of order but denied that he had been disruptive,
unprofessional, or that he had violated his ethical duties.
Elam and Millsap then formally reprimanded Smith by issuing him a
“Formal Conduct Correction Plan” that placed Smith on “Level 1
Discipline.” Id. ¶ 5; Docket Entry No. 32-4. The reprimand stated that, at
the June 17 meeting, Smith “repeatedly engaged in loud and unprofessional
outbursts”; “shouted that the President of the College had made an untrue
statement”; “interrupted the President and bellowed ‘that’s not true!’”; that
his “eruptions were during the Board’s discussion”; that he “repeatedly
interrupted the dialogue between Trustees and the President”; was
“admonished, at least twice . . . to curtail [his] behavior, comments, and
outburst”; and that he had “dismissed their directive [to remain silent] and
continued.” Docket Entry No. 32-4.
Following this recitation of alleged facts, the reprimand stated that
Smith’s “outburst during the Board meeting violates the Faculty Code of
5
Professional Ethics as outlined under DH(Exhibit E) Employee Standards of
Conduct. Further, [Smith’s] behavior is intolerable, inappropriate and a
complete
disruption
of
the
College
process;
[sic]
bordering
on
insubordination.”3 Docket Entry No. 32-4. The reprimand ordered Smith to
“[i]mmediately cease and desist all such disruptive, inappropriate,
unprofessional and insubordinate behavior. Any further violations will be
cause for immediate disciplinary action, up to and including termination.”
Id.
On July 8, 2010, Smith filed an official grievance against Elam in an
attempt to have the reprimand overturned and expunged from his record. In
it, Smith argued that the reprimand misrepresented his behavior at the
meeting and that the charges Elam had made against him were mere
personal attacks and not a suitable basis for disciplinary action. Docket
Entry No. 27 Ex. B-2 at 4. Elam rejected the grievance in October 2010 and
affirmed his earlier decision to reprimand Smith.
Smith appealed that
decision to the Board of Trustees. Although the Board never resolved the
appeal, Millsap eventually took Smith off of Level 1 Discipline in January
2011, supposedly for obeying the reprimand’s order to refrain from any
3
The applicable section of the faculty ethics code states that “[t]he professional educator
shall treat all persons with respect, dignity, and justice.” Docket Entry No. 27-1 Ex. B-1,
at 3 ¶ 1; see Docket Entry No. 32-3 at Interrogatory No. 6.
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further disruptive behavior. Docket Entry Nos. 27 Ex. C, at ¶ 6; 27 Ex. C-2.
Nonetheless, the reprimand remained on Smith’s record and Millsap referred
to it as a justification for giving Smith negative marks in a performance
evaluation later in 2011. See Docket Entry No. 27 Ex. B-8 at 1–2. Millsap
also declined to include Smith on a faculty hiring committee she convened
in the spring of 2011. Smith alleges that the College gave him the negative
performance evaluation and excluded him from the committee because of
his speech at the June 17 meeting. Smith filed this suit on June 23, 2011.
II.
STANDARD OF REVIEW
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).
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III.
THE RETALIATION CLAIM
A. Elements
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). The elements a public
employee must prove to establish a First Amendment retaliation claim
attempt to balance these competing interests. He must show that: (1) he
suffered an adverse employment action; (2) he spoke on a matter of public
concern; (3) his interest in commenting on the matter outweighed the
College’s interest in promoting efficiency; and (4) his speech motivated the
College’s action against him. See Harris v. Victoria Ind. Sch. Dist., 168
F.3d 216, 220 (5th Cir. 1999) (citations omitted).4 The “public concern” and
4
There is some confusion about the number of claims that Smith is asserting. The
College appears to believe that Smith brought two claims: (i) a First Amendment claim
based on the denial of his right to speak at the June 17 meeting, and (ii) a First
Amendment retaliation claim based on the alleged retaliatory actions taken against him
after he spoke at the meeting. Accordingly, it has briefed both issues in its motion.
However, a close reading of Smith’s complaint and briefing reveals that Smith only
asserts a single retaliation claim. See Docket Entry No. 12 at 5–10; Docket Entry No. 32
8
“balancing” elements “are legal in nature and are for the court to resolve.”
Branton v. City of Dallas, 272 F.3d 730, 739 (5th Cir. 2001) (citing Connick,
461 U.S. at 147–48 n.7). The final element, “whether plaintiff’s protected
speech was a substantial or motivating factor in the adverse employment
decision,” is usually a jury question. Id.
The College argues that summary judgment is appropriate because
Smith has failed to present evidence that could satisfy the first, third, and
fourth elements of the standard. It does not dispute that Smith spoke as a
citizen on a matter of public concern—namely, on whether the College
should continue its dues deduction policy.
B. Adverse Employment Action
The College first argues that Smith, who remains employed at the
College, did not suffer an adverse employment action. In the Fifth Circuit,
only a limited number of events count as adverse employment actions:
“discharges, demotions, refusals to hire, refusals to promote, and
reprimands.” Pierce v. Tex. Dep’t of Crim. Justice, 37 F.3d 1146, 1149 (5th
Cir. 1994). The Fifth Circuit has “declined to expand the list of actionable
actions, noting that some things are not actionable even though they have the
effect of chilling the exercise of free speech.” Breaux v. City of Garland,
at 13–18, 20–24. The Court thus need only address the College’s motion for summary
judgment on Smith’s retaliation claim.
9
205 F.3d 150, 157 (5th Cir. 2000) (quotation and citation omitted). Many
retaliatory actions that can have severe effects on the lives and well-being of
employees—including “mere accusations or criticism,” “investigations,”
“psychological testing,” “false accusations,” and “polygraph examinations
that do not have adverse results for the plaintiff”—have been deemed not
actionable. Id. at 157–58 (citations omitted). Indeed, for educators like
Smith, “decisions concerning teaching assignments, pay increases,
administrative matters, and departmental procedures, while extremely
important to the person who has dedicated his or her life to teaching, do not
rise to the level of a constitutional deprivation.” Harrington v. Harris, 118
F.3d 359, 365 (5th Cir. 1997) (quotation and citation omitted).
To meet his burden, Smith points to three allegedly retaliatory actions
taken against him: (i) the formal reprimand; (ii) the negative performance
evaluation; and (iii) his exclusion from the new faculty hiring committee.
The College argues that the negative performance evaluation and committee
exclusion were not adverse employment actions. The Fifth Circuit has not
directly addressed whether these last two acts count as adverse employment
actions. Other courts have classified negative performance evaluations as
adverse actions either as a general matter, see Guilloty Perez v. Pierluisi,
339 F.3d 43, 49 (1st Cir. 2003) (assuming, without addressing the issue, that
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negative performance evaluations standing alone can constitute adverse
employment actions), or when other benefits are tied to the evaluations, see
Braswell v. Allen, 586 F. Supp. 2d 1297, 1307 (M.D. Ala. 2008) (“A poor
performance evaluation that directly results in denial of pay raise of any
significance constitutes an adverse employment action.”). Given the Fifth
Circuit’s statement that “mere . . . criticism” is not actionable and its
generally restrictive approach to the adverse action element, Breaux, 205
F.3d at 157, this Court concludes that at a minimum a plaintiff in this Circuit
would have to establish a reasonable likelihood that a negative performance
evaluation might affect pay, opportunities for promotion, or similar
conditions of employment.
Because Smith has not identified any such
repercussions flowing from the 2011 evaluation, that conduct does not
qualify as an adverse action. Likewise, Smith’s exclusion from the hiring
committee falls in the category of events that the Fifth Circuit treats as
nonactionable “administrative matters.” Harrington, 118 F.3d at 365.
However, the first action taken against Smith, the formal reprimand,
was an adverse employment action, and the College does not argue
otherwise. A formal reprimand is actionable for a key reason: it, “by its very
nature, goes several steps beyond a criticism or accusation and even beyond
a mere investigation; it is punitive in a way that mere criticisms, accusations,
11
and investigations are not.” Colson v. Grohman, 174 F.3d 498, 512 n.7 (5th
Cir. 1999) (citing Scott v. Flowers, 910 F.2d 201, 208 (5th Cir. 1990)). The
reprimand was an official rebuke of Smith’s behavior; it served as a prelude
to and put him at risk of termination; and it went on his permanent record,
where it remains today. The fact that Smith was formally reprimanded is
sufficient to show that he suffered an adverse employment action.
C. Pickering Balancing Test
Second, though the College does not dispute that Smith was speaking
as a citizen on a matter of public concern, it does argue that Smith’s speech
fails 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 State, as
an employer, in promoting the efficiency of the public services it performs
through its employees.” Pickering, 391 U.S. at 568. In doing so, the Court
must consider whether Smith’s statements impaired “discipline by superiors
or harmony among co-workers, ha[d] a detrimental impact on close working
relationships for which personal loyalty and confidence are necessary, or
impede[d] the performance of the speaker’s duties or interfere[d] with the
regular operation of the enterprise.” Salge v. Edna Indep. Sch. Dist., 411
F.3d 178, 192 (5th Cir. 2005) (quoting Rankin v. McPherson, 483 U.S. 378,
12
388 (1987)). The time, place, and manner of Smith’s speech are relevant to
this determination, as is the context in which it arose.
See Victor v.
McElveen, 150 F.3d 451, 457 (5th Cir. 1998) (quoting Rankin, 483 U.S. at
388).
The College contends that “courts have long held that Boards may
restrict public comments” in a limited public forum such as the June 17
meeting, and it implies that this fact alone carries the day under the
Pickering test. Docket Entry 27, at 19. But, as discussed previously, see
supra note 4, Smith is not trying to enjoin the Board’s policy forbidding
public comment at its “discussion sessions”; instead, he is alleging that the
punishment he received for speaking two sentences in violation of that
policy—a punishment found not in the “discussion session” policy itself but
through application of a generally worded section of the faculty ethics code
directing that people be treated “with respect, dignity and justice”—was
unlawful retaliation. There is a fundamental distinction in First Amendment
law between whether a policy restricting speech is itself valid as a general
matter and whether the consequences imposed for a particular violation of
that policy amount to unlawful retaliation. See Robinson v. York, 566 F.3d
817, 825 (9th Cir. 2009) (“[T]he Pickering balancing test can favor protected
speech even where the speech violates the employer’s written policy
13
requiring speech to occur through specified channels.”); Brockell v. Norton,
732 F.2d 664, 667 (8th Cir. 1984) (stating that it could not conclude that a
police department’s chain-of-command policy “will always take precedence
over the interest of a public employee in open communication” but that it
instead “must look to the particular circumstances of each case to determine
the importance of enforcing the chain of command against an employee
whose speech breaches that policy”). A general restriction on speech may
be content-neutral, but the punishments resulting from violating such a
restriction may stem from content- or viewpoint-based discrimination, a
prospect more likely in a case such as this one in which the punishment is
not found in the content-neutral rule itself but instead in an independent and
highly discretionary standard requiring “respectful” conduct.
The feature of this case the College emphasizes–that Smith violated a
speech restriction that is content neutral on its face–does not make this an
unusual retaliation case. Employees asserting First Amendment retaliation
claims often violated a policy that they are not challenging in its own right.
See, e.g., Robinson, 566 F.3d at 825; Brockell, 732 F.2d at 667 (both
involving violations of police chain-of-command rules). In such situations,
courts treat the presence of the policy as a factor favoring the government in
balancing the Pickering factors, but still assess the other factors to determine
14
whether the punishment applied to an employee for violating the policy in a
particular situation amounts to unlawful retaliation. See Connick, 461 U.S at
153 & n.14 (noting that the government’s position in the balancing test is
strengthened, but not made impervious, when the employee violated an
official policy); see also, e.g., James v. Tex. Collin Cnty., 535 F.3d 365,
379–80 (5th Cir. 2008) (balancing various Pickering factors in deciding
retaliation claim arising from discharge of county employee who violated
rule against political campaigning during working hours); Davis v. Allen
Parish Serv. Dist., 210 F. App’x. 404, 411–13 (5th Cir. 2006) (balancing
various Pickering factors in deciding retaliation claim in which plaintiff
engaged in speech that violated the confidentiality policy of the psychiatric
hospital that employed her).
Other than the “no comment” policy itself, the only Pickering factor
that the College cites to support Smith’s reprimand is the disruption it
attributes to Smith’s conduct. But that disruption was negligible. He uttered
just two sentences, and the Board laughed at the exchange and quickly
returned to its business. In fact, it was Elam, not Smith, who attempted to
continue the debate with Smith after Smith had obeyed the Board’s order to
cease talking.
Moreover, Smith’s speaking appeared to be not a
premeditated disruption but rather an impulsive reaction to Elam’s statement
15
that the union had agreed to direct deposit of dues, a statement that also
provoked a surprised response from Trustee Criss. And although Smith did
state that Elam was “not telling the truth,” that was only after Elam had first
used the incendiary word “lie.” Docket Entry No. 37 at 15:22–15:57.
The College does not allege that Smith’s speech impaired discipline or
relationships at the College, impeded Smith’s duties, or interfered with the
College’s operation. As in Pickering, the speech occurred outside of the
classroom and thus cannot be shown or presumed “to have in any way either
impeded the teacher’s proper performance of his daily duties in the
classroom or to have interfered with the regular operation of the schools
generally.” Pickering, 391 U.S. at 572–73. Moreover, Smith’s speech took
place outside of work hours and in “non-work areas of the office.” Connick,
461 U.S. at 153 n.13 (noting that such factors would have favored the
plaintiff had they been present).
Given that Smith was speaking on a matter of public concern and that
the two comments he made during a one-minute exchange did not in any
meaningful way undermine the efficient operation of the College, the Court
has no difficulty concluding that the Pickering balancing test must be
resolved in Smith’s favor.
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D. Speech as Motivating Factor
Third and finally, the College argues that summary judgment is
appropriate because Smith cannot show that the formal reprimand was
motivated by his speech.5 Although the College admits that Smith was
reprimanded because he spoke, it argues that Smith was reprimanded only
because of the allegedly disruptive manner in which he spoke and not
because of the content of his speech. But the following facts are more than
enough evidence to allow a reasonable jury to find in favor of Smith on this
element: the timeline of what transpired at the meeting, the controversial
nature of the issue on which Smith spoke, and the fact that the object of
Smith’s criticism, Elam, filed the complaint that resulted in the reprimand.
See Click v. Copeland, 970 F.2d 106, 113 (5th Cir. 1992) (“Whether 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.”).
IV.
CONCLUSION
Because Smith did suffer an adverse employment action in the form
of the formal reprimand, because the Pickering balancing test must be
5
Because the Court has already decided that the formal reprimand was the only adverse
employment action taken against Smith, it need not address whether Smith’s negative
performance evaluation or exclusion from the hiring committee were motivated by his
speech.
17
resolved in his favor, and because whether his speech was a motivating
factor in his reprimand is a disputed issue of material fact, summary
judgment in favor of the College is inappropriate. Smith has, however,
abandoned his claims against Defendant Elam.
Accordingly, the
Defendants’ Motion for Summary Judgment (Docket Entry No. 27) is
GRANTED as to Elam and DENIED as to the College.
IT IS SO ORDERED.
SIGNED this 3rd day of December, 2012.
______________________________
Gregg Costa
United States District Judge
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