Harris v. Noxubee Cnty., CAUSE NO. 3:17-cv-291-CWR-LRA

• Decision Date: 19 October 2018
• Docket Number: CAUSE NO. 3:17-cv-291-CWR-LRA
• Citation: 350 F.Supp.3d 592
• Parties: Valerie Denece HARRIS, Plaintiff v. NOXUBEE COUNTY, MISSISSIPPI and Betty S. Robinson, Defendants
• Court: U.S. District Court — Southern District of Mississippi

350 F.Supp.3d 592

Valerie Denece HARRIS, Plaintiff

v.NOXUBEE COUNTY, MISSISSIPPI and Betty S. Robinson, Defendants

CAUSE NO. 3:17-cv-291-CWR-LRA

United States District Court, S.D. Mississippi, Northern Division.

Signed October 19, 2018

Jim D. Waide, III, Waide & Associates, P.A., Richard Shane McLaughlin, McLaughlin Law Firm, Tupelo, MS, for Plaintiff.

Jamie F. Jacks, Arnold U. Luciano, Daniel J. Griffith, Jacks Griffith Luciano, PA, Cleveland, MS, Jessica S. Malone, William Robert Allen, Allen, Allen, Breeland & Allen, PLLC, Brookhaven, MS, for Defendants.

ORDER GRANTING SUMMARY JUDGMENT

Carlton W. Reeves, UNITED STATES DISTRICT JUDGE

Before the Court are three motions for summary judgment filed by Valerie Harris, Noxubee County, and Betty Robinson. Docket Nos. 40, 43, 45. Additionally, Robinson seeks leave to file a motion for judgment on the pleadings and Harris seeks leave to supplement her response in opposition. Docket Nos. 58, 61. The parties all argue that there is no genuine dispute as to any material fact in this case; the Court agrees. For the reasons stated below, summary judgment is granted in favor of Noxubee County and Betty Robinson and both motions for leave are denied.

I. Factual and Procedural History

The following facts are from the complaint, pleadings on summary judgment, and the parties' proposed pre-trial order presented to the Court ahead of the September 25, 2018 pre-trial conference.

For nearly 20 years, Harris was employed by Noxubee County serving as an appointed deputy in the office of the Tax Assessor & Collector. In December 2015, Robinson took over the elected position of Noxubee County Tax Assessor & Collector. On November 17, 2016, Robinson held a staff meeting and ordered all of the employees in the office to sign the following agreement:

Please be reminded that discussing any matters concerning the business or conduction of business of the Noxubee County Tax Assessor/Collector's Office is strictly prohibited. This includes but is not limited to employee and employer meetings. Failure to adhere is grounds for immediate termination.

Harris refused to sign the agreement at the meeting. Robinson presented it to her again on January 23, 2017, and again Harris refused to sign. Robinson fired Harris immediately.

After her termination, Harris filed for unemployment benefits with the Mississippi Department of Employment Security ("MDES"). After an initial denial and appeal, an ALJ for the MDES determined that Noxubee County and Robinson had not met their burden of "establish[ing] [Harris'] misconduct connected with the work by substantial, clear, and convincing evidence" and Harris was entitled to unemployment benefits.

In April 2017, Harris filed the instant suit claiming a violation of her rights under the First Amendment by Noxubee County and Robinson. On June 1, 2018, the dispositive motion deadline, all three parties moved for summary judgment. On September 25, 2018, the parties met for a pre-trial conference before this Court. At the pre-trial conference, Harris' counsel asserted that Robinson was being sued in both her official and individual capacities. In response, Robinson retained her own counsel, apart from the representation provided by Noxubee County, and on September 28, 2018, she filed a motion for leave to file a motion for judgment on the pleadings as to the claims against her in her individual capacity. Harris responded in opposition to Robinson's motion, and additionally filed a motion for leave to supplement her response with exhibits. All the issues are fully briefed.

II. Legal Standard

Summary judgment is only appropriate "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 is only genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Lloyd v. Birkman , 127 F.Supp.3d 725, 739 (W.D. Tex. 2015) (quotations and citations omitted). "On cross-motions for summary judgment, the court reviews each party's motion independently, viewing the evidence and inferences in the light most favorable to the nonmoving party." Baylor Cty. Hosp. Dist. v. Burwell , 163 F.Supp.3d 372, 377 (N.D. Tex. 2016), aff'd sub nom. , 850 F.3d 257 (5th Cir. 2017) (quotations and citations omitted).

III. First Amendment Rights

Harris raises claims under 42 U.S.C. § 1983 alleging violations of rights secured by the First Amendment of the United States Constitution; the Complaint did not particularize the type of First Amendment claim, but Harris' motion for summary judgment describes her claims under the doctrines of prior restraint and first amendment retaliation.

The Supreme Court has long held that government employers "may impose restraints on the job-related speech of public employees that would be plainly unconstitutional if applied to the public at large." United States v. Nat'l Treasury Employees Union , 513 U.S. 454, 465, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995). However, those restraints are not applicable to speech from a citizen "upon a matter of public concern." Connick v. Myers , 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). When evaluating restraints on speech, the Court must balance "the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will Cty., Illinois , 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).

There is a threshold inquiry when it comes to public employee speech cases: "whether the public employee spoke as a citizen at all." Anderson v. Valdez , 845 F.3d 580, 592 (5th Cir. 2016) (citing Garcetti v. Ceballos , 547 U.S. 410, 419, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) ). After determining that the plaintiff is not speaking pursuant to the duties of her job, then it is necessary to evaluate whether the speech is a matter of public concern. See Connick , 461 U.S. at 147–148, 103 S.Ct. 1684 ; Williams v. Dallas Indep. Sch. Dist. , 480 F.3d 689, 693 (5th Cir. 2007) (whether the speech in question involved matters important to the public was "irrelevant to the threshold inquiry. Job-required speech is not protected."). If it is determined that the employee was speaking as a citizen on a matter of public concern, then "[t]he question becomes whether the relevant government entity had an adequate justification" for the limitation of speech. Garcetti , 547 U.S. at 418, 126 S.Ct. 1951.

A. Prior Restraint

In her motion for partial summary judgment, Harris alleges that the agreement was a prior restraint, and as such, the strong presumption against prior restraints should apply to the agreement drafted by Robinson. Noxubee County and Robinson argue that the complaint did not invoke the doctrine of prior restraint, so an expansion of the claim now is improper.

Alleging a prior restraint is a facial constitutional challenge. "Since every challenge based on prior restraint is a facial challenge, the remedy is always complete invalidation." Serv. Employees Int'l Union v. City of Houston , 542 F.Supp.2d 617, 629 (S.D. Tex. 2008), aff'd in part, rev'd in part and remanded sub nom. , 595 F.3d 588 (5th Cir. 2010).

Harris is correct that in cases of a prior restraint, there is a "heavy presumption" against the restraint's "constitutional validity." See Bantam Books, Inc. v. Sullivan , 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). However, the Fifth Circuit has not extended this presumption of invalidity to policies regulating employee speech. See Moore v. City of Kilgore, Tex. , 877 F.2d 364, 392 (5th Cir. 1989). The Fifth Circuit explained that when speech policies threaten employees with termination for violating the policy, the policy is not a prior restraints. Id. They are not prior restraints, the court reasoned, because they are not as severe as actions, which would directly prohibit speech, like shutting down printing presses, or a speaker being gagged or subjected to an injunction. Id. The court described this type of employee speech policy as an "after-the-fact" sanction, not severe enough to receive the suspect treatment given to prior restraints. Id.

Harris also argues that the prior restraint is so broad that it would prohibit every type of speech, protected or not. See Docket No. 51 at 1 ("The breadth of the Non-Disclosure Agreement at issue is shockingly unconstitutional. The Agreement can be read in no way other than muzzling citizen speech on all conceivable issues, including important issues of public concern."). This argument suggests that not only is the agreement a prior restraint but it is also facially unconstitutional for reasons of overbreadth. The problem with both of these challenges is that Harris' complaint describes an as-applied challenge, not one of facial unconstitutionality. The complaint requests actual damages and reinstatement, but no other form of declaratory or injunctive relief; the complaint does not articulate any injury to other parties because of the agreement.

In Moore , a firefighter sued the city after he was disciplined for speaking to the press regarding recent cuts in the fire department staff and budget. The Fifth Circuit found that while the department's policy of not allowing firefighters to speak to the press without prior approval was unconstitutional as applied to the plaintiff, the court could not hold that the policy was facially unconstitutional. Moore , 877 F.2d at 390. The court reasoned that the plaintiff's facial challenge was "entirely upon grounds of overbreadth." Id. For a court to uphold an overbreadth challenge the policy has to be "not only ... real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Id. at 391 (quotations and citations omitted) (emphasis added). Overbreadth is an exception...