Gragg v. Kentucky Cabinet for Workforce Dev.

• Decision Date: 20 May 2002
• Docket Number: No. 01-5171.,01-5171.
• Citation: 289 F.3d 958
• Parties: Sharon L. GRAGG, Plaintiff-Appellee, v. KENTUCKY CABINET FOR WORKFORCE DEVELOPMENT; Somerset Technical College; Kentucky Community and Technical College System; Ann W. Cline, Dr., Individually; Carol Ann VanHook, Dr., Individually; William D. Huston, Individually; Charles Wade, Dr., Individually; Rodney "Biz" Cain, Individually; Delmus Murrell, Individually, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

289 F.3d 958

Sharon L. GRAGG, Plaintiff-Appellee, v. KENTUCKY CABINET FOR WORKFORCE DEVELOPMENT; Somerset Technical College; Kentucky Community and Technical College System; Ann W. Cline, Dr., Individually; Carol Ann VanHook, Dr., Individually; William D. Huston, Individually; Charles Wade, Dr., Individually; Rodney "Biz" Cain, Individually; Delmus Murrell, Individually, Defendants-Appellants.

No. 01-5171.

United States Court of Appeals, Sixth Circuit.

Argued December 4, 2001.

Decided and Filed May 20, 2002.

COPYRIGHT MATERIAL OMITTED

Winter R. Huff (argued and briefed), Law Offices of John G. Prather, Somerset, KY, for Plaintiff-Appellee.

Kent T. Young (briefed), Office of the Attorney General, Frankfort, KY, D. Brent Irvin (argued and briefed), Asst. Atty. General, Frankfort, KY, Brenda D. Allen (briefed), Office of the Attorney General Frankfort, KY, for Defendants-Appellants.

Before: NORRIS, SILER, and BATCHELDER, Circuit Judges.

OPINION

BATCHELDER, Circuit Judge.

Defendants-Appellants appeal the order of the district court denying their motion for summary judgment on immunity grounds on plaintiff-appellee Sharon Gragg's claims of retaliatory discharge in violation of the First Amendment and the Kentucky Constitution. Because we conclude that the undisputed facts clearly demonstrate that the speech to which Gragg points as the reason for her discharge did not involve matters of public concern, we hold that the district court erred in denying the motion for summary judgment.

I.

In 1996, when the events leading to this lawsuit occurred, the Kentucky Department of Technical Education ("DTE") operated Kentucky's post-secondary vocational colleges. The DTE was governed by the State Board for Adult and Technical Education, which in turn was governed by the Kentucky Cabinet for Workforce Development ("Cabinet"). Early in 1996, the Kentucky General Assembly reduced the authorized full-time workforce for the DTE, necessitating the elimination of more than forty-five positions. Sharon Gragg was at that time employed by the DTE as a regional¹ educational consultant² at Somerset Technical College ("Somerset") in the DTE's Southern Region. Gragg's immediate supervisor was Dr. Carol Ann VanHook, the director of Somerset; VanHook's supervisor was Dr. Ann W. Cline, the director of the Southern Region of the DTE; Delmus Murrell was the Deputy Commissioner. The DTE Commissioner was William Huston.

Huston circulated memoranda to the administrators whose assistance he would need in determining what positions could be eliminated in order to comply with the mandated workforce reduction; he provided criteria to be considered in making the determinations; and he held a meeting with those administrators. One of the positions ultimately selected for elimination was Sharon Gragg's; according to the correspondence from Gragg's immediate supervisor, VanHook, and VanHook's supervisor, Cline, Gragg's position was selected because it was inconsistent with DTE statewide staffing patterns, and elimination of that position would cause the least disruption to the services provided to the students at Somerset.

Gragg participated in an informal pretermination hearing, after which her attorney sent a letter to the Cabinet's general counsel contesting the decision to eliminate Gragg's position, criticizing the criteria used in selecting the positions to eliminate, and questioning the hiring of a young man as the Dean of Instruction at Somerset immediately prior to the budget constraint imposed by the General Assembly and so close in time to the elimination of Gragg's position. The DTE's general counsel did not respond to the letter.

Gragg was laid off in October of 1996. She filed a state administrative appeal — ultimately dismissed as untimely — and charges of gender and age discrimination with the Equal Employment Opportunity Commission ("E.E.O.C."). After receiving a right-to-sue letter from the E.E.O.C., Gragg filed this action against the Cabinet,³ other agencies, and various officials, in both their official and individual capacities, claiming that the defendants had terminated her employment in retaliation for her exercising her rights under the Kentucky Constitution and the First Amendment of the Constitution of the United States, in violation of state and federal law prohibiting discrimination in employment on the basis of gender and age, and in violation of Kentucky's Whistleblower Act.

The district court dismissed most of Gragg's claims several months after the suit was filed, and those claims are not before us in this appeal. We will confine our review of the facts to those that underlie the First Amendment and Kentucky Constitution retaliation claims, which are the subject of this interlocutory appeal.

Germane to this appeal are Gragg's claims that the defendants eliminated her position because, during the course of her employment at Somerset, she had "pointed out areas of deficiency and of concern," and had been "critical of the Defendants and their administration, acts and omissions." Gragg points to several instances in which she claims that she engaged in conduct protected by the First Amendment, and for which she claims the defendants retaliated against her by eliminating her position.

Gragg's position with the DTE was that of a liaison between Somerset and its accrediting body, and much of her time was devoted to the school's accreditation selfstudy, which Gragg was required to perform every five years. Gragg claims that she "brought to the attention of the Defendant Cline her questions and concerns regarding the Defendant VanHook's failure to follow proper policies and procedures relevant to the accreditation process." According to Gragg, members of the committee responsible for the 1995 study made errors in their reports that VanHook required Gragg to correct; Gragg believed that this was not the proper procedure to be followed in the accreditation process, and informed Cline of her concern. Gragg also claimed that she brought to VanHook's attention her concerns that some of the data upon which the accreditation was to be based was not correct. VanHook again insisted that Gragg correct the errors when, in Gragg's view, her job was not to correct such errors but to bring them to the attention of her supervisor. Gragg further claims that she suggested that the coordinator of Somerset's licensed practical nursing program pursue "up the chain of command" concerns that VanHook was misusing federal funds by assigning a secretary paid out of those funds to a program not covered by the federal monies. And finally, after Gragg's pretermination hearing, her counsel sent a letter to the Cabinet's general counsel, criticizing every aspect of the process and criteria used in determining which positions to eliminate.

The district court dismissed or granted summary judgment to the defendants on all of Gragg's claims except those for termination of employment in retaliation for Gragg's exercising her rights under the First Amendment and the Kentucky Constitution.⁴ The defendants bring this interlocutory appeal, claiming qualified immunity, Eleventh Amendment immunity and immunity under state law.

II.

We turn first to the defendants' claim of Eleventh Amendment immunity. Although the defendants raised this defense in their answer to Gragg's amended complaint, they did not identify the claims to which it applied, nor did they argue this immunity defense before the district court. In their brief on appeal, the defendants devote one page to a perfunctory statement that because the Eleventh Amendment provides immunity to the state and its agencies, Gragg's state constitutional claims against the defendants are barred.

Ordinarily, we will not consider issues that have not been fully developed by the briefs or in the record. See McPherson v. Kelsey, 125 F.3d 989, 995 (6th Cir.1997) (quotations omitted) ("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived."). And the Supreme Court has now made it clear that we are not required to raise the issue of Eleventh Amendment immunity if the state has not done so. See Wis. Dep't of Corrs. v. Schacht, 524 U.S. 381, 389, 118 S.Ct. 2047, 141 L.Ed.2d 364 (1998). Although this circuit has not definitively answered the question of who bears the burden when a defendant invokes Eleventh Amendment immunity, other circuits to address the issue have determined that, "[l]ike any other such defense, that which is promised by the Eleventh Amendment must be proved by the party that asserts it and would benefit from its acceptance." ITSI TV Prods., Inc. v. Agric. Ass'ns, 3 F.3d 1289, 1291 (9th Cir.1993). See also Skelton v. Camp, 234 F.3d 292, 297 (5th Cir.2000) (ruling that a defendant seeking Eleventh Amendment immunity had the burden to show that it was an arm of the state); Christy v. Pa. Turnpike Comm'n, 54 F.3d 1140, 1144 (3d Cir.1995) ("We conclude that the party asserting Eleventh Amendment immunity ... bears the burden of proving its applicability."); Baxter v. Vigo County Sch. Corp., 26 F.3d 728, 734 n. 5 (7th Cir.1994) (same). We find the reasoning of these cases persuasive and hold that the entity asserting Eleventh Amendment immunity has the burden to show that it is entitled to immunity, i.e., that it is an arm of the state.

Gragg did not bring this action against the State of Kentucky. Rather, she sued the Kentucky Cabinet for Workforce Development, Somerset Technical College, the Kentucky Community and Technical College System, and various officials. These defendants have pointed to nothing in the record, and we have been unable to find anything in the record, that would establish that they are arms of the state entitled to the protections of the Eleventh Amendment. For example, there is nothing in the record to show: "how state law defines the entity, what degree of control the state maintains over the entity,...