Bausworth v. Hazelwood School Dist., 92-2001

• Decision Date: 27 April 1993
• Docket Number: No. 92-2001,92-2001
• Citation: 986 F.2d 1197
• Parties: 8 IER Cases 539, 8 IER Cases 726 Mary BAUSWORTH, Appellant, v. HAZELWOOD SCHOOL DISTRICT, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1197

986 F.2d 1197

8 IER Cases 539, 8 IER Cases 726

Mary BAUSWORTH, Appellant, v. HAZELWOOD SCHOOL DISTRICT, Appellee.

No. 92-2001.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 17, 1992.

Decided Feb. 25, 1993.

Rehearing and Rehearing En Banc

Denied April 27, 1993.

Ross Harry Briggs, St. Louis, MO, argued, for appellant.

John J. Horgan, St. Louis, MO, argued (John J. Horgan and Christiana M. Rush, on the brief), for appellee.

Before FAGG, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

FAGG, Circuit Judge.

After the Hazelwood School District decided not to rehire bus driver Mary Bausworth, Bausworth brought this 42 U.S.C. § 1983 action against the school district asserting the termination violated the First Amendment. The district court granted the school district's motion for summary judgment, concluding Bausworth failed to show her speech was a substantial factor in her termination. Bausworth appeals and we affirm.

Bausworth claims the school district terminated her in retaliation for certain speech involving the district's decision to charge parents for bus transportation costs of a student field trip. According to Bausworth's complaint, a student's parent asked Bausworth about the charge's justification in April 1990. Bausworth relayed the question to the school district's assistant director of transportation, who told Bausworth the expense should have been included in the school budget. Bausworth conveyed this response to the parent. In May 1990, the parent filed a complaint with the Missouri Department of Education asserting the field trip charge was improper. On June 5, 1990, Bausworth asked a school board member about the district's policy on charging parents for field trip transportation. Based on these undisputed facts, Bausworth claimed the school district's termination of her employment later in June 1990 violated her right to freedom of speech.

To state a claim under 42 U.S.C. § 1983, a public employee asserting a freedom of speech violation must establish the First Amendment protects the speech involved and the protected speech was a substantial factor in the adverse employment decision. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977); Cox v. Miller County R-I Sch. Dist., 951 F.2d 927, 931 (8th Cir.1991). The protected status of speech is a question of law, Connick v. Myers, 461 U.S. 138, 148 n. 7, 103 S.Ct. 1684, 1690 n. 7, 75 L.Ed.2d 708 (1983), and thus, is readily susceptible to summary judgment disposition. Pearson v. Macon-Bibb County Hosp. Auth., 952 F.2d 1274, 1278 (11th Cir.1992).

To establish the First Amendment protects a public employee's speech, the employee must make a threshold showing that the speech addressed a matter of public concern. Stever v. Independent Sch. Dist. No. 625, 943 F.2d 845, 850 (8th Cir.1991); Connick, 461 U.S. at 143, 103 S.Ct. at 1688. To decide whether speech addressed a matter of public concern, we examine the speech's content, form, and context. Connick, 461 U.S. at 147-48, 103 S.Ct. at 1690. In making our examination, we focus on the employee's role in conveying the speech rather than the public's interest in the speech's topic. Terrell v. University of Tex. Sys. Police, 792 F.2d 1360, 1362 (5th Cir.1986), cert. denied, 479 U.S. 1064, 107 S.Ct. 948, 93 L.Ed.2d 997 (1987). Thus, speech is a matter of public concern when a public employee speaks as a concerned citizen, but not when the employee speaks as an employee. Id.; Schalk v. Gallemore, 906 F.2d 491, 495 (10th Cir.1990) (per curiam); Thomson v. Scheid, 977 F.2d 1017, 1020 (6th Cir.1992); see Connick, 461 U.S. at 147, 103 S.Ct. at 1690; Cox v. Dardanelle Pub. Sch. Dist., 790 F.2d 668, 672 (8th Cir.1986). When focusing on the employee's role, we consider whether the employee attempted to communicate the speech to the public at large and the employee's motivation in speaking. Deremo v. Watkins, 939 F.2d 908, 910-11 & n. 3 (11th Cir.1991); see Connick, 461 U.S. at 148, 103 S.Ct. at 1690. Absent highly unusual circumstances, a federal court is not the appropriate forum for reviewing a public employer's reaction to an employee's speech when the employee did not speak as a citizen on a matter of public concern. Connick, 461 U.S. at 147, 103 S.Ct. at 1690.

In our view, Bausworth did not speak in her role as a citizen. Bausworth received a question from a student's parent, repeated the question to her superior, received the superior's response, and repeated the answer to the parent. Although it turned out that the content of Bausworth's speech was a matter of concern to the parent, the speech's form and context show Bausworth conveyed the speech in the course of acting as a school district employee. Bausworth engaged in nothing more than a job-related chore to get information for a student's parent. Bausworth neither espoused a personal opinion that the...