Ferrara v. Mills, 85-5107

• Citation: 781 F.2d 1508
• Decision Date: 10 February 1986
• Docket Number: No. 85-5107,85-5107
• Parties: 29 Ed. Law Rep. 981 Lawrence J. FERRARA, Plaintiff-Appellant, v. Thomas MILLS, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1508

781 F.2d 1508

29 Ed. Law Rep. 981

Lawrence J. FERRARA, Plaintiff-Appellant, v. Thomas MILLS, et al., Defendants-Appellees.

No. 85-5107.

United States Court of Appeals, Eleventh Circuit.

Feb. 10, 1986.

I. Jeffrey Pheterson, Lake Worth, Fla., for plaintiff-appellant.

James K. Green, West Palm Beach, Fla., for amicus-ACLU.

Richard L. Oftedal, Robert D. Moses, West Palm Beach, Fla., for Mills, Monroe.

Appeal from the United States District Court for the Southern District of Florida.

Before VANCE and HATCHETT, Circuit Judges, and ATKINS ^*, Senior District Judge.

HATCHETT, Circuit Judge:

In this civil rights action a public school teacher contends that school administrators assigned him an inferior teaching schedule in retaliation for his criticism of school policies. The district court granted summary judgment for the school administrators. We affirm.

FACTS

Lawrence J. Ferrara, the appellant, has been employed with the Palm Beach County School Board, Palm Beach, Florida, as a teacher since 1965. He has taught in the social studies department of John I. Leonard Community High School in Lake Worth, Florida, since 1970. Traditionally, he taught eleventh and twelfth grade American history and political science courses between 6:45 a.m. and 2:15 p.m. on school days.

In January, 1980, Ferrara spoke out against the high school's use of collegiate registration, a procedure through which students are permitted to choose their subjects and teachers. At a meeting of the high school faculty in the spring of 1981, the faculty expressed general disapproval of collegiate registration and recommended to Principal John Munroe that the practice be discontinued. Consistent with this recommendation, Munroe abolished collegiate registration.

Later that term, on June 10, 1981, at Ferrara's request, Munroe and Ferrara met "to discuss several items regarding the assignment of [Ferrara's] subjects for the coming 1981-82 school year." Ferrara reiterated his request to teach a newly instituted advanced history course and expressed his disapproval of the practice of filling teacher vacancies within the social studies department with physical education teachers and athletic coaches. Ferrara expressed particular displeasure at the fact that one of the physical education teachers assigned to teach a social studies course was not certified in the field of social studies, and suggested that such out-of-field placement of teachers contributes to "civic illiteracy." ¹

Sometime after the June, 1981, meeting, Munroe assigned Ferrara to teach elective courses to ninth and tenth graders between 9:45 a.m. and 5:15 p.m., rather than the required courses which he had traditionally taught to eleventh and twelfth graders between 6:45 a.m. and 2:15 p.m.

On October 22, 1981, Luke Thornton became the principal of John I. Leonard Community High School. Thornton declined Ferrara's request to alter his course assignments to those which he had traditionally taught, and Ferrara completed the term under the new schedule. At the beginning of the next school term, Ferrara renewed his request that his traditional "Follow[ing] the required procedures," Ferrara solicited the assistance of Thomas Mills, the superintendent of schools for Palm Beach County. Dissatisfied with Mills's decision not to alter his schedule, Ferrara took his grievance to the Palm Beach County School Board. The school board also declined to intervene. Thereafter, Ferrara allegedly became inflicted with severe headaches, psoriasis, insomnia, and other stress-related disorders and, consequently, was not able to work for the remainder of the 1981-82 school year.

class schedule be reinstated. Thornton again denied the request.

On July 29, 1982, pursuant to 42 U.S.C.A. Sec. 1983 (West 1971) and the first and fourteenth amendments to the Constitution, Ferrara filed this action against Munroe, Thornton, Mills, the School Board of Palm Beach County, Paula Nessmith, Arthur Bougae, George Bailey, Louie Eassa, Susan Pell, Robert Howell, and Samuel Lovell, all members of the Palm Beach County School Board, asserting that they had infringed his constitutional right to free speech by retaliating against him for speaking out against school policies. ² Ferrara also brought a pendent state tort claim for intentional infliction of emotional distress.

The district court dismissed the school board and its members on the ground that they could not be held vicariously liable for the other defendants' actions under section 1983. The remaining defendants, Munroe, Thornton, and Mills (the school administrators), filed a motion for summary judgment on the ground that under Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), Ferrara had failed to meet his burden of establishing that his speech related to matters of public concern.

On November 14, 1984, the district court concluded that "[Ferrara's] speech, while tangentially related to matters of public concern, constitute[d] nothing more than a series of grievances with school administrators over internal school policies" and, therefore, was not protected under the first amendment. Ferrara v. Mills, 596 F.Supp. 1069, 1071 (S.D.Fla.1984). The district court also dismissed Ferrara's pendent state claim for lack of jurisdiction and entered summary judgment in favor of Munroe, Thornton, and Mills. ³

CONTENTIONS OF THE PARTIES

Ferrara challenges the district court's entry of summary judgment in favor of the school administrators on two grounds. First, he argues that disputed issues of material fact exist as to the time, place, manner, and context of his speech. Second, he contends that the district court erred in imposing upon him the undue burden of affirmatively proving that his speech related to matters of interest to the community at large, rather than imposing upon the school administrators the burden of proving that the speech related only to matters of personal interest to him.

The school administrators argue that the time, manner, and context of Ferrara's speech illustrate that the speech related only to Ferrara's course assignments, a matter not of public concern, but of interest only to Ferrara.

ISSUES

The issues which we address are: (1) whether the district court correctly allocated the relevant burdens of proof, and (2) whether Ferrara's speech related to matters of public concern.

DISCUSSION

Because of some confusion in this area of the law, we begin our discussion with an outline of the analytic framework which gives definition to our consideration of Ferrara's first amendment claim.

I. Analytic Framework

A.

To prevail on his claim that the school administrators infringed upon his first amendment right to freedom of speech, Ferrara must establish prima facie that his speech (1) is constitutionally protected, and (2) was a substantial or motivating factor in the decision to alter his teaching assignments. If Ferrara is successful in making this initial showing, the burden then shifts to the school administrators to show by a preponderance of the evidence that they would have altered Ferrara's teaching assignments even in the absence of his protected speech. Mt. Healthy City Bd. of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977); Holley v. Seminole County School Dist., 755 F.2d 1492, 1500 (11th Cir.1985).

The Supreme Court's most recent explication of the Mt. Healthy test is found in Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). The Supreme Court announced in Connick that the question of whether a public employee's speech is constitutionally protected turns upon whether the speech related to matters of public concern or to matters of merely personal interest to the employee. Connick, 461 U.S. at 146-47, 103 S.Ct. at 1689-90; Ballard v. Blount, 581 F.Supp. 160, 162 (N.D.Ga.1983), aff'd, 734 F.2d 1480 (11th Cir.) (unpublished decision), cert. denied, --- U.S. ----, 105 S.Ct. 590, 83 L.Ed.2d 700 (1984). "Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record." Connick, 461 U.S. at 147-48, 103 S.Ct. at 1690; Ballard, 581 F.Supp. at 162.

If the employee's speech cannot fairly be characterized as constituting speech on a matter of public concern, the inquiry is at an end. With that circumstance present, we need not proceed to determine whether the employee's speech was a substantial or motivating factor in the adverse employment decision. ⁴ Connick, 461 U.S. at 146, 103 S.Ct. at 1689; Renfroe v. Kirkpatrick, 722 F.2d 714, 715 (11th Cir.1984); Ballard, 581 F.Supp. at 162.

If, however, the employee's speech is determined to relate to a matter of public concern and to have been a substantial or motivating factor in the adverse employment decision, the inquiry focuses upon whether the adverse employment decision was justified. Connick, 461 U.S. at 149-50, 103 S.Ct. at 1691-92; see also Givhan v. Western Line Consolid. Sch. Dist., 439 U.S. 410, 412, 99 S.Ct. 693, 694, 58 L.Ed.2d 619 (1979). It is only at this point that we balance "the interest 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 v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968); Connick, 461 U.S. at 149-54, 103 S.Ct. at 1691-94.

The employee in Pickering, a public school teacher, wrote a letter to the editor of the local newspaper criticizing the school board's handling of two bond proposals and a proposed tax increase, as well as its allocation of financial resources between academic and athletic programs. Pickering, 391 U.S. at 571, 88 S.Ct. at 1736. The issue before the Court was not whether the teacher's speech was constitutionally protected. The issue of the funding...