Bailey v. Indep. Sch. Dist. No. 69 of Canadian Cnty. Okla.

• Decision Date: 24 July 2018
• Docket Number: No. 17-6110,17-6110
• Parties: Chester L. BAILEY, Jr., Plaintiff-Appellant, v. INDEPENDENT SCHOOL DISTRICT NO. 69 OF CANADIAN COUNTY OKLAHOMA, a/k/a Mustang School District ; Sean McDaniel, in his individual capacity, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

896 F.3d 1176

Chester L. BAILEY, Jr., Plaintiff-Appellant,

v.INDEPENDENT SCHOOL DISTRICT NO. 69 OF CANADIAN COUNTY OKLAHOMA, a/k/a Mustang School District ; Sean McDaniel, in his individual capacity, Defendants-Appellees.

No. 17-6110

United States Court of Appeals, Tenth Circuit.

Filed July 24, 2018

Barrett T. Bowers, Ward & Glass LLP, Norman, Oklahoma (Stanley M. Ward and Woodrow K. Glass, Ward & Glass LLP, Norman, Oklahoma, with him on the briefs) for Plaintiff-Appellant.

J. Douglas Mann, Rosenstein, Fist & Ringold, Tulsa, Oklahoma (Jerry A. Richardson, Rosenstein, Fist, & Ringold, Tulsa, Oklahoma, with him on briefs) for Defendants-Appellees.

Before LUCERO, McKAY, and McHUGH, Circuit Judges.

LUCERO, Circuit Judge.

We are presented in this appeal with the following question: is a letter written by a public employee, seeking a reduced sentence for his relative, speech on a matter of public concern for the purposes of a First Amendment Garcetti/ Pickering inquiry. See Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) ; Pickering v. Bd. of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). We conclude that it is. Accordingly we reverse the district court's grant of summary judgement favoring Independent School District No. 69 of Canadian County Oklahoma ("the School District"). Nonetheless, we affirm the district court's grant of qualified immunity to school superintendent Sean McDaniel because the law was not previously clearly established on this issue. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse in part, affirm in part, and remand for further proceedings.

I

Chester Bailey Jr. was employed by the School District as Director of Athletics from 2009 to 2016. His excellent performance in this position is not disputed. Throughout his career, Bailey received positive evaluations, indicating that he "exhibited strong leadership abilities," "demonstrat[ed] a high degree of integrity," and was "an asset to the district."

Dustin Graham is Bailey's nephew. In 2014, Graham pled guilty to various state charges largely stemming from video recordings he made of women in the bathroom of his apartment without their consent. Graham also pled guilty to a single count of manufacturing child pornography based on a video he recorded of a minor. There was considerable media coverage of Graham's arrest, trial, and sentencing.

During Graham's sentencing proceedings in 2014, Bailey wrote a letter to the sentencing judge on Graham's behalf. The School District does not issue its employees official letterhead but it was common practice for individuals to produce their own letterhead using the school logo and their titles. Bailey had created such a letterhead and used a sheet to write to Graham's sentencing judge. The letter's header contained the logo for the school district, and gave the address of the Department of Athletics and Bailey's job title.

In the body of the letter, Bailey noted his position as "the Director of Athletics at Mustang Public Schools" and described his background working with young people. Bailey asked the sentencing judge to consider Graham's previous good character and his efforts at rehabilitation. Bailey also noted that Graham acknowledged the wrongfulness of his actions, which in Bailey's experience, was a characteristic of young people who did not repeat their poor decisions.

In 2015, Graham moved the state court for review and reduction of his sentence. More than thirty individuals wrote letters to the sentencing judge on Graham's behalf, including his local state representative. Bailey wrote a second letter to the judge conducting the review, on the same letterhead previously used. The second letter said that Bailey was writing in support of Graham, that he had visited Graham in prison, and that if Graham were released Bailey would be "a positive role model" for him. Graham was released early, only to receive further news coverage when he became embroiled in a dispute with his homeowners' association.

McDaniel, Superintendent of Schools for the School District, received a package in July 2016. It contained documents describing Graham's offenses, a copy of Bailey's 2015 letter to Graham's sentencing judge, and a handwritten note. The package was sent by a former in-law of Bailey's who was angry about Graham's early release and other family issues. McDaniel met with Bailey on several occasions to discuss the letter, expressing concern that Bailey used district letterhead to advocate for early release of an individual convicted of a child pornography offense. Bailey stated that nothing in the letter indicated that the School District supported Graham's release, and he pointed to other occasions in which other employees used similar letterhead without incurring adverse consequences. Bailey also told McDaniel about the other letter he wrote to Graham's sentencing judge in 2014. McDaniel later retrieved that letter from Graham's case file.

After the meetings, McDaniel decided to recommend Bailey's termination. He sent Bailey a letter informing him of this decision. The letter cited McDaniel's loss of trust in Bailey's judgment, based on his use of school letterhead to request leniency for a child pornographer and his subsequent refusal to admit fault. A due process hearing before the Board of Education followed. The Board terminated Bailey's employment with the School District, in accordance with McDaniel's recommendation.

Bailey filed suit under 42 U.S.C. § 1983 in the United States District Court for the Western District of Oklahoma, against the School District and McDaniel in his individual capacity. He alleged wrongful termination in retaliation for speech protected by the First Amendment. Defendants filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6). Both parties attached materials outside the pleadings to their respective filings, and thus the district court applied the summary judgment standard under Fed. R. Civ. P. 56. See Fed. R. Civ. P. 12(d). Concluding that Bailey's speech did not relate to a matter of public concern, the district court granted summary judgment in favor of the School District and McDaniel. Bailey timely appealed.

II

We review a district court's grant of summary judgment de novo. Hobbs ex rel. Hobbs v. Zenderman, 579 F.3d 1171, 1179 (10th Cir. 2009). Summary judgment is appropriate only if, viewing the evidence in the light most favorable to the non-moving party, we conclude that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Rohrbough v. Univ. of Colo. Hosp. Auth., 596 F.3d 741, 745 (10th Cir. 2010). If a case involves the First Amendment, "we have an obligation to make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression." Id.

Bailey alleges that he was wrongfully terminated for writing letters to Graham's sentencing judge, in violation of his First Amendment right to freedom of expression. "Public employees do not surrender their First Amendment rights by virtue of their employment with the government." Martin v. City of Del City, 179 F.3d 882, 886 (10th Cir. 1999). A "government employer cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression." Burns v. Bd. of Cnty. Comm'rs, 330 F.3d 1275, 1285 (10th Cir. 2003) (quotations omitted). "[B]ecause the government has important interests in maintaining an efficient workplace and promoting the services that it renders, the government has an increased degree of discretion in regulating a public employee's speech." Martin, 179 F.3d at 886.

To achieve the required balance between the interests of public employees in commenting on matters of public concern and the interests of government employers in performing services efficiently, we apply the five-part Garcetti/ Pickering test. See Leverington v. City of Colo. Springs, 643 F.3d 719, 723-24 (10th Cir. 2011) (quotations omitted). That test asks:

(1) whether the speech was made pursuant to an employee's official duties; (2) whether the speech was on a matter of public concern; (3) whether the government's interests, as employer, in promoting the efficiency of the public service are sufficient to outweigh the plaintiff's free speech interests; (4) whether the protected speech was a motivating factor in the adverse employment action; and (5) whether the defendant would have reached the same employment decision in the absence of the protected conduct.

Dixon v. Kirkpatrick, 553 F.3d 1294, 1302 (10th Cir. 2009). In general, the first three prongs are legal issues to be decided by the court and the last two prongs are factual issues left to the factfinder. Id.

A

The district court resolved Bailey's retaliation claim on the second prong, holding that his speech did not relate to a matter of public concern. We disagree. Matters of public concern are issues "of interest to the community, whether for social, political, or other reasons." Lighton v. Univ. of Utah, 209 F.3d 1213, 1224 (10th Cir. 2000).¹ In assessing whether speech pertains to a matter of public concern, we must consider "the content, form, and context of a given statement, as revealed by the whole record." Myers, 461 U.S. at 147-48, 103 S.Ct. 1684. We may consider "the motive of the speaker, and whether the speech ... merely deals with personal disputes and grievances unrelated to the public's interest." Lighton, 209 F.3d at 1224.

We have never squarely addressed whether a sentencing proceeding is a matter of public concern. Upon analysis, we concur with the Eighth Circuit's conclusion that "[t]he proper sentencing of convicted criminals is clearly a matter of public concern." Buzek v. Cty. of Saunders, 972 F.2d 992, 995 (8th Cir. 1992). Sentencing proceedings are funded by the public, and take place, at least theoretically, within the...