414 F.3d 1313 (11th Cir. 2005), 04-12914, Cook v. Gwinnett County School Dist.

Docket Nº:04-12914.
Citation:414 F.3d 1313
Party Name:Dora Elizabeth COOK, Plaintiff-Appellee, v. GWINNETT COUNTY SCHOOL DISTRICT, Defendant, J. Alvin Wilbanks, Grant Reppert, Randy Samples, Sam Smith, Shirley Hixon, Carolyn Pealock, Andra Hall, in their official and individual capacities, Defendants-Appellants.
Case Date:June 29, 2005
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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414 F.3d 1313 (11th Cir. 2005)

Dora Elizabeth COOK, Plaintiff-Appellee,



J. Alvin Wilbanks, Grant Reppert, Randy Samples, Sam Smith, Shirley Hixon, Carolyn Pealock, Andra Hall, in their official and individual capacities, Defendants-Appellants.

No. 04-12914.

United States Court of Appeals, Eleventh Circuit

June 29, 2005

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        Christopher Dean Balch, Jamie Ponder Woodard, Swift, Currie, McGhee & Hiers, L.L.P., Atlanta, GA, E.L. Sweeny, Thompson & Sweeny, Lawrenceville, GA, for Appellants.

        Jeremiah A. Collins, Robert Alexander, Bredhoff & Kaiser, P.L.L.C., Washington, DC, Terence Tyrone Thomas, Atlanta, GA, for Appellee.

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        Appeal from the United States District Court for the Northern District of Georgia.

        Before BARKETT, KRAVITCH and FARRIS [*], Circuit Judges.

        KRAVITCH, Circuit Judge:

        Plaintiff-appellee Dora Elizabeth Cook, a bus driver for the Gwinnett County School District ("district"), brought the instant § 1983 action against the defendants-appellants, 1 officials employed by the district, alleging violations of her First Amendment rights to free speech and free association, as well as her right to equal protection under the Fourteenth Amendment. 2 The defendants interlocutorily appeal the district court's order denying summary judgment, which determined that the defendants are not entitled to qualified immunity. Because of the interlocutory nature of this appeal, we address some preliminary matters before setting forth the facts.

         I. Scope of Review/Jurisdiction

        We apply a two-step analysis to determine when an official acting within his discretionary authority 3 is eligible for qualified immunity. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). First, we ask whether the facts "[t]aken in the light most favorable to the party asserting the injury, ... show the officer's conduct violated a constitutional right[.]" Id. Second, if a constitutional right was violated under the plaintiff's version of the facts, we must then determine "whether the right was clearly established." Id. In this interlocutory appeal, the defendants challenge both the district court's factual findings as to whether the plaintiff put forth sufficient evidence of an underlying constitutional violation and the district court's legal conclusion that the law was clearly established. This forces us to briefly address our jurisdiction over these matters.

         Because a denial of summary judgment is not an appealable final judgment under 28 U.S.C. § 1291, it is not ordinarily subject to immediate review. However, "[a] district court's order denying a defense of qualified immunity is an appealable final decision within the meaning of 28 U.S.C. § 1291 to the extent that it turns on a question of law." McMillian v. Johnson, 88 F.3d 1554, 1562 (11th Cir.1996); see also Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). When an interlocutory appeal raises both sufficiency of the evidence and clearly established law issues, as this appeal does, we have jurisdiction to entertain both issues. 4 Stanley v. City of Dalton, Ga., 219 F.3d 1280, 1286 (11th Cir.2000) ;

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Vista Community Servs. v. Dean, 107 F.3d 840, 843-44 (11th Cir.1997).

        Although we may do so, we often decline to address the sufficiency of the evidence issue. "In reviewing the district court's denial of summary judgment, we--in most qualified-immunity interlocutory appeals--accept the facts which the district court assumed for purposes of its decision about whether the law was clearly established." Cooper v. Smith, 89 F.3d 761, 762 (11th Cir.1996). Here, the district court made detailed factual findings, and we choose to accept those facts. 5 Using those facts, we therefore address only the pure legal question of whether the defendants violated clearly established law. 6

         II. Facts

        Since 1995, Cook has been a school bus driver for the district. Bus drivers are divided into clusters, each of which is led by a zone supervisor. Directly subordinate to each zone supervisor are team leaders, who serve in a leadership capacity over the other bus drivers. Team leaders have no authority to discipline or evaluate drivers, but they are authorized to resolve driver disputes and other issues when a supervisor is unavailable. Team leaders are not paid a higher rate than regular drivers, but they are guaranteed the opportunity to work forty hours per week, which enables them to earn more income. Regular bus drivers may have the opportunity to work forty hours per week, but these hours are not guaranteed. In 1999, Cook became a team leader.

        Bus drivers have layover periods during the day when they are not transporting students to and from school or performing any other necessary work. During layovers, drivers are still on the clock, but their only duty is to wait to begin their next route. While waiting, drivers often congregate in a variety of locations, where they discuss various matters. Drivers also communicate with each other through a monthly newsletter called "The Transportation News" published by the transportation department; by posting solicitations in work areas; and by distributing fliers in driver paycheck envelopes.

        Although it is unclear whether the district has a formal policy restricting speech during working hours, in practice, the district permitted a variety of solicitations during working hours. While on the clock, employees freely solicited contributions for sympathy gifts, Christmas gifts, Relay for Life, the United Way, and a disaster relief fund. In addition, while on the clock, employees bought and sold various items including candy, T-shirts, Girl Scout cookies, church products, key chains, washcloths, and miniature school buses. The defendants engaged in some of these activities while on the clock as well: Pealock participated in the sale of cosmetics; Hixon purchased cookies and church fund raiser products; Reppert purchased an American eagle replica and encouraged employees to form a transportation department Weight

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Watchers group; and Hall bought T-shirts and donated money for Christmas gifts. In addition, Reppert devoted substantial work time to the expression of his personal views on political matters in columns he prepared for "The Transportation News."

        Since 2001, Cook has been a member of the United School Employees Association ("USEA"), a union-like 7 organization which represents non-teaching school employees and is affiliated with the Georgia Association of Educators. She was elected co-president of the USEA in March 2001 and president in 2002. The USEA states that its first priority is the safety of children in school and the union believes that well-trained, motivated, and content employees are one of the keys to school safety. The USEA also assists its members with matters pertaining to dismissal, grievances, wages, benefits, and other conditions of employment. Moreover, the USEA lobbies the state legislature regarding safety conditions and other issues of concern to bus drivers and students, and provides legal counsel to members in the event of a civil lawsuit arising from their employment.

        During layovers when she had no duties to complete, Cook recruited fellow employees to join the USEA. She also raised various safety concerns and other matters to supervisors on behalf of her fellow bus drivers. Under her leadership, USEA membership increased 235%. Defendants Hall and Hixon ordered Cook to stop discussing USEA during working hours. The defendants also refused to allow Cook to insert a flyer for a USEA sponsored food drive in employee's paycheck envelopes unless all references to USEA were removed. The parties dispute whether the defendants took such action because they needed to maintain discipline and efficiency in the workplace or whether it was motivated by animus towards Cook's USEA activities and speech.

        In May 2002, plaintiff's supervisor, Hall, requested that Cook be transferred to another cluster. 8 Due to the transfer, Cook no longer holds the position of team leader. According to the defendants, Hall sought to transfer Cook because he did not trust her and felt that she was insubordinate. By contrast, Cook contends that she and Hall had a good working relationship before she began conducting USEA activities and she was transferred in retaliation for her USEA activities and speech. Although the district has a policy requiring documentation of personnel infractions, Cook's employment record contains no documentation of any insubordination, disruption, or lack of trustworthiness. In addition, she never received a poor evaluation. Cook submitted other evidence of hostility toward the USEA such as testimony from Hixon that she is "against union ... [W]e don't ... need a union, period,"; testimony from several employees that Hall made a number of anti-USEA comments to employees; testimony that Hall told Cook that her USEA position was inconsistent with her team leader status; and Reppert's column in "The Transportation...

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