Brown v. Leflore Cnty.

• Decision Date: 15 December 2015
• Docket Number: NO. 4:14-CV-00114-DMB-JMV,4:14-CV-00114-DMB-JMV
• Citation: 150 F.Supp.3d 753
• Parties: Troy D. Brown, Plaintiff v. Leflore County, Mississippi, Defendant
• Court: U.S. District Court — Northern District of Mississippi

150 F.Supp.3d 753

Troy D. Brown, Plaintiff

v.Leflore County, Mississippi, Defendant

NO. 4:14-CV-00114-DMB-JMV

United States District Court, N.D. Mississippi, Greenville Division.

Signed December 15, 2015

Jim D. Waide, III, Ronnie Lee Woodruff, Waide & Associates, PA, Tupelo, MS, for Plaintiff.

Catherine Ashburn Hester, Daniel, Coker, Horton & Bell, Oxford, MS, Silas W. McCharen, Stephen Paul Huwe, Daniel, Coker, Horton, & Bell, Jackson, MS, for Defendant.

OPINION AND ORDER DENYING MOTION FOR SUMMARY JUDGMENT

Debra M. Brown

, UNITED STATES DISTRICT JUDGE

This is a First Amendment retaliation case in which Plaintiff Troy D. Brown alleges that he was wrongly discharged from his position as Director of the Greenwood Leflore Emergency Management Agency because of comments he made in two newspaper publications. Before the Court is the motion for summary judgment filed by Defendant Leflore County, Mississippi. Doc. # 43. For the reasons below, the motion will be denied.

ISummary Judgment Standard

When a party moves for summary judgment, the reviewing court shall grant the motion “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)

. A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). All reasonable doubts on questions of fact must be resolved in favor of the party opposing summary judgment. See

Evans v. City of Houston , 246 F.3d 344, 348 (5th Cir.2001) (citation omitted). “Summary judgment should be used ‘most sparingly in ... First Amendment case[s] ... involving delicate constitutional rights, complex fact situations, disputed testimony, and questionable credibilities.’ ” Benningfield v. City of Houston , 157 F.3d 369, 377 (5th Cir.1998) (alterations in original) (quoting Porter v. Califano , 592 F.2d 770, 778 (5th Cir.1979) ).

IIBackground

On August 26, 2013, Leflore County, Mississippi (“County”), acting through its Board of Supervisors (“Board”), hired Troy Brown as the Director of the Greenwood Leflore Emergency Management Agency (“GLEMA”). Doc. # 43-2. The Board is composed of five members: Robert Collins, Phillip Wolf, Anjuan Brown, Robert Moore, and the current Board President, Wayne Self. GLEMA is the County department tasked with disaster preparedness and response. See generally Miss. Code Ann. § 33–15–1, et seq .

As Director, Brown's job included, among other tasks, interacting with state and federal emergency management agencies to ensure the County was prepared for disasters, and coordinating with first responders to ensure their preparedness to effectively respond to a disaster. Doc. # 51-1 at 59:7–18.

When Brown assumed the Director position, one of his first important tasks was to compile and submit an inventory list of GLEMA's equipment to the Board. Id. ; Doc. # 43-5. Brown had difficulty assembling the list to the satisfaction of the Board, missing at least two deadlines to submit the completed inventory.¹ Doc. # 43-7; Doc. # 43-15; Doc. # 43-24. Brown attributed the missed deadlines to several causes, including: (1) an outdated list of GLEMA inventory caused by the failure of his predecessor, T.W. Copper

, to complete and sign off on GLEMA's inventory list before his June 2013 retirement;² (2) interference by Sam Abraham, the County's Chancery Clerk and Administrator,³ who Brown claims improperly loaned out equipment to other County departments without completing the required forms;⁴ (3) a lack of cooperation from other County personnel that possessed certain GLEMA equipment;⁵ and (4) a lack of cooperation from two of GLEMA's employees, Bobby Norwood and Dorothy Ivory.⁶ Throughout his tenure as GLEMA's director, Brown made these concerns known to his supervisors.⁷

Ultimately, on February 16, 2014, Brown published a guest column in the Greenwood Commonwealth (“Commonwealth ”) titled, “Sam Abraham has it out for me ,” detailing some of his concerns about Abraham and public safety. Doc. # 51-39. Two days later, the Commonwealth published an editorial titled, “Troy Brown brings lots of drama ,” which was very critical of Brown's guest column. Doc # 51-41. Brown responded to the editorial in a letter to the Commonwealth's Editor titled, “This is more than a workplace tiff ,” which was published in the Commonwealth on February 23, 2014. Doc. # 51-42.

The day after Brown's letter to the Editor appeared in the Commonwealth , the Board voted to terminate Brown. Doc. # 51-43. The Board's minutes do not provide a reason for Brown's termination. Id. But, in the Executive Session where the Board voted 3–2 to terminate Brown, Brown's recent publications in the Commonwealth were a prominent topic in the prevote discussion. See Doc. # 51-9 at 35:4–11.

Brown responded to his termination by filing this action on August 13, 2014, alleging that the County terminated his employment in retaliation for his publications in the Commonwealth in violation of his First Amendment rights. Doc. # 1. The County has filed a motion for summary judgment, arguing that the evidence does not establish a First Amendment violation, and that an affirmative defense under Mount Healthy City School District Board of Education v. Doyle , 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)

, applies to bar Brown's claims. Doc. # 43; Doc. # 46.

Brown filed a response in opposition to the motion for summary judgment, and the County filed a reply. Doc. # 50; Doc. # 54.

IIIDiscussion

A “public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment.” Connick v. Myers , 461 U.S. 138, 140, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)

(citing Pickering v. Bd. of Educ. , 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) ). On the other hand, the government's interests in regulating the speech of its employees “differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” Id. (quoting Pickering , 391 U.S. at 568, 88 S.Ct. 1731 ). To establish a prima facie case for First Amendment retaliation, a public employee must show that:

(1) He suffered an adverse employment action;

(2) He spoke as a citizen, rather than pursuant to his official job duties;

(3) He spoke on a matter of public concern;

(4) His interest in the speech outweighed the government's interest in the efficient provision of public services; and

(5) His speech precipitated the adverse employment action.⁸

Hardesty v. Cochran , 621 Fed.Appx. 771, 775–76, 2015 WL 4237656, at *3 (5th Cir.2015)

(footnote added) (citing Wilson v. Tregre , 787 F.3d 322, 325 (5th Cir.2015) ). If the plaintiff establishes a prima facie case, the defendant may still prevail if it shows by a preponderance of the evidence that it would have come to the same conclusion in the absence of the protected conduct. Mt. Healthy , 429 U.S. at 287, 97 S.Ct. 568.

The County does not dispute that Brown suffered an adverse employment action when he was terminated.⁹ The County argues that summary judgment is appropriate though because Brown failed to present evidence that could satisfy the second, third, fourth and fifth elements of the prima facie standard. Doc. # 46 at 2. The County also argues that summary judgment is appropriate under Mount Healthy

because it would have fired Brown even absent his protected speech. Id. Elements two through four are questions of law that must be resolved by the Court. Branton v. City of Dallas , 272 F.3d 730, 739 (5th Cir.2001) (citing Connick , 461 U.S. at 147–48 n. 7, 103 S.Ct. 1684 ); Davis v. McKinney , 518 F.3d 304, 315 (5th Cir.2008). Element five and the Mount Healthy affirmative defense are typically questions for the jury. See Brady v. Fort Bend Cty. , 145 F.3d 691, 712 (5th Cir.1998)

(considering both “motivating factor” and “Mt. Healthy defense” under section analyzing “Jury's Finding on Causation”).

ACitizen Speech

The County first argues that in his guest column and letter to the Editor, Brown spoke not as a private citizen but as the Director of GLEMA. See Doc. # 46 at 19–20. The County contends that two facts support this conclusion: Brown is “complaining about his ‘official duties,’ ” and Brown identifies his job title in the guest column. Id. at 20.

“For an employee's speech to be entitled to First Amendment protection, [ ]he must be speaking as a citizen on a matter of public concern.” Graziosi v. City of Greenville Miss. , 775 F.3d 731, 736 (5th Cir.2015)

(citing Garcetti , 547 U.S. at 418, 126 S.Ct. 1951 ). When a public employee speaks pursuant to his official duties, he does not speak as a citizen and his statements are not entitled to constitutional protection. Garcetti , 547 U.S. at 421, 126 S.Ct. 1951. However, “Garcetti did not explicate what it means to speak ‘pursuant to’ one's ‘official duties.’ ” Graziosi , 775 F.3d at 737 (quoting Williams v. Dallas Indep. Sch. Dist. , 480 F.3d 689, 692 (5th Cir.2007) ). Recently, in Lane v. Franks, the United States Supreme Court explained that “[t]he critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee's duties, not whether it merely concerns those duties.” ––– U.S. ––––, 134 S.Ct. 2369, 2379, 189 L.Ed.2d 312 (2014).

Here, the County has offered no authority or argument suggesting that the speech at issue—publications in the local newspaper about the County Administrator's interference with Brown's office—is ordinarily within the scope of Brown's job duties. Instead, the County argues that in the publications, Brown complained about his duties as the Director of GLEMA and submitted his job title in conjunction with his guest column. This type of argument was squarely rejected in Lane

, which held “the mere fact that a citizen's speech concerns information acquired by virtue of his...