Bolton v. Forrest Cnty?
| Decision Date | 18 December 2012 |
| Docket Number | CIVIL ACTION NO. 2:11-CV-220-KS-MTP |
| Parties | TAWANA BOLTON PLAINTIFF v. FORREST COUNTY, MISSISSIPPI, et al. DEFENDANTS |
| Court | U.S. District Court — Southern District of Mississippi |
For the reasons stated below, the Court grants in part and denies in part Defendants' Motion for Summary Judgment [76].
Plaintiff was a correctional officer at the Forrest County Juvenile Detention Center, which is operated by Defendant Forrest County, Mississippi. Defendant Chris Selman is the director of the facility, and Defendant Chris Bolton is the Sheriff's Chief Deputy.
In 2008, Plaintiff began making copies of surveillance videos at the facility, allegedly concerned about the abuse of juvenile inmates. In June 2010, Plaintiff copied a recording of Defendant Chris Selman allegedly abusing a female inmate. She claims to have reported the incident to her superiors.
Plaintiff called in sick on June 23, 2010. She remained on sick leave until Defendants terminated her employment on July 6, 2010. Defendant Selman claims that Plaintiff submitted a false medical excuse, and that Plaintiff screamed and cursed at him when confronted about it. Accordingly, Defendants claim that they terminatedPlaintiff for insubordination and conduct unbecoming an officer. Plaintiff denies that she submitted the medical excuse in question, and she denies that she screamed or cursed at Selman. She believes that Defendants terminated her in retaliation for her complaint about Defendant Selman, and for her making copies of surveillance videos at the facility.
After Plaintiff had been terminated, she distributed the videos to various parties, including a local television station. The Sheriff's Department sought and obtained a temporary injunction from the Forrest County Youth Court, which was later vacated by the Mississippi Supreme Court. The subsequent news reports and publication of the videos led to litigation in which a non-profit organization sought access to the facility under various federal statutes.
Plaintiff filed this lawsuit in March 2011. She asserted the following claims:
Defendants filed a Motion for Summary Judgment [76], which the Court now addresses.
Rule 56 provides that "[t]he court shall grant summary judgment 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); see also Sierra Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010). "Where the burden of production at trial ultimately rests on the nonmovant, the movant must merely demonstrate an absence of evidentiary support in the record for the nonmovant's case." Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir. 2010) (punctuation omitted). The nonmovant "must come forward with specific facts showing that there is a genuine issue for trial." Id. (punctuation omitted). "An issue is material if its resolution could affect the outcome of the action." Sierra Club, Inc., 627 F.3d at 138. "An issue is 'genuine' if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party." Cuadra, 626 F.3d at 812.
The Court is not permitted to make credibility determinations or weigh the evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009). When deciding whether a genuine fact issue exists, "the court must view the facts and the inference to be drawn therefrom in the light most favorable to the nonmoving party." Sierra Club, Inc., 627 F.3d at 138. However, "[c]onclusional allegations and denials,speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial." Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002).
Plaintiff claims that Defendants violated her "First Amendment right to be free from retaliation for protected speech." Juarez v. Aguilar, 666 F.3d 325, 332 (5th Cir. 2011). First, Plaintiff must demonstrate that she spoke as a citizen, rather than as part of the official duties of her public employment. Davis v. McKinney, 518 F.3d 304, 312 (5th Cir. 2008). Then she must demonstrate: (1) that she suffered an adverse employment decision, (2) that her speech involved a matter of public concern, (3) that her interest in speaking outweighed the Defendants' interest in promoting efficiency, and (4) that her protected speech motivated Defendants' conduct. Juarez, 666 F.3d at 332.
First, Defendants argue that Plaintiff's expressive conduct - making copies of surveillance videos from the facility and reporting Defendant Selman's abuse of an inmate - was not a matter of public concern because it was done pursuant to her official duties as a public employee.
"Activities undertaken in the course of performing one's job are activities pursuant to official duties and not entitled to First Amendment protection." Davis, 518 F.3d at 313; see also Garcetti v. Ceballos, 547 U.S. 410, 126 S. Ct. 1951, 1960, 164 L. Ed. 2d 689 (2006). When determining whether expressive conduct occurs pursuant toa public employee's official duties, the "formal job description is not dispositive, nor is the fact that the speech relates tangentially to the subject matter of one's employment." Davis, 518 F.3d at 312 (internal citation omitted). "[W]hen a public employee raises complaints or concerns up the chain of command at his workplace about his job duties, that speech is undertaken in the course of performing his job," and, therefore, it does not enjoy First Amendment protection. Id. "If however a public employee takes his job concerns to persons outside the work place in addition to raising them up the chain of command at his workplace, then those external communications are ordinarily not made as an employee, but as a citizen." Id.
The record contains evidence indicating that Plaintiff's actions in making copies of the facility's monitoring videos were not undertaken pursuant to her official duties. Plaintiff testified that she began making copies of surveillance videos in 2008 after a coworker told her that she was going to be fired [76-1]. She testified that she "did what [she] had to do" because she did not think anyone would believe her allegations regarding abuse at the facility.
Kelvin Newsome, a fellow employee at the facility, testified that Sergeant Donnell Brannon, Plaintiff's immediate supervisor, advised Plaintiff to make copies of a recording of Defendant Selman mistreating an inmate [76-16]. Brannon purportedly told Plaintiff to "keep them for her reasons." Newsome opined that Plaintiff "had something on them that they didn't want nobody to know about."
Andre Cooley, a fellow employee at the facility, testified and produced an e-mail[76-15] in which he stated that he observed Plaintiff make a copy of a surveillance video while Sergeant Brannon "was looking out for Chris Selman." Cooley alleged that Plaintiff said to him: Cooley further stated that Plaintiff advised a female inmate that she could sue Forrest County, and that everything would be proven by the video recordings.
All of the above evidence indicates that Plaintiff made the videos surreptitiously, to use against her superiors in case she were ever terminated. These actions were not part of her official duties or undertaken in the course of performing her job. Indeed, Forrest County argued before the Youth Court [76-21] that Plaintiff was not authorized to make the videos. Accordingly, the Court concludes that Garcetti is inapplicable to Plaintiff's claim that she suffered retaliation for making copies of surveillance videos.
As noted above, "when a public employee raises complaints or concerns up the chain of command at his workplace about his job duties, that speech is undertaken in the course of performing his job," and, therefore, it does not enjoy First Amendment protection. Id.; see also Garcetti, 547 U.S. at 424, 126 S. Ct. 1951 (). However, "it is not dispositive that a public employee's statements are made internally." Davis, 518F.3d at 313 n. 3.
Plaintiff testified [76-1] that she attempted to talk to Defendant Selman about the alleged abuse at the facility, but that he wouldn't listen to her. Plaintiff further testified that she called the Sheriff, but declined to meet with him because he wanted Selman to be present for the meeting. She also testified that she submitted reports of abuse to Sergeant Donnell Brannon on approximately eight occasions - including ones in which Selman was...
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