Salge v. Edna Independent School Dist.

• Citation: 411 F.3d 178
• Decision Date: 27 May 2005
• Docket Number: No. 04-40844.,04-40844.
• Parties: Charlene H. SALGE, Plaintiff-Appellee, v. EDNA INDEPENDENT SCHOOL DISTRICT, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

411 F.3d 178

Charlene H. SALGE, Plaintiff-Appellee, v. EDNA INDEPENDENT SCHOOL DISTRICT, Defendant-Appellant.

No. 04-40844.

United States Court of Appeals, Fifth Circuit.

May 27, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Bobby Dewayne Brown (argued), Law Office of Bobby D. Brown, Victoria, TX, for Plaintiff-Appellee.

Christopher Blewer Gilbert (argued), Bracewell & Giuliani, Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before WIENER, BARKSDALE, and DENNIS, Circuit Judges.

WIENER, Circuit Judge:

Defendant-Appellant Edna Independent School District ("EISD") appeals the district court's grant of summary judgment in favor of former employee Charlene Salge on her First Amendment retaliation claim. We affirm.

I. FACTS & PROCEEDINGS

After she was fired from her longtime job of secretary at the local high school, Plaintiff-Appellee Charlene Salge brought actions against her former employer, EISD, for violations of (1) the Age Discrimination in Employment Act ("ADEA")¹ and (2) the First Amendment, the latter via 42 U.S.C. § 1983. Salge claimed that EISD Superintendent Bob Wells fired her either because of her age or because of her responses to questions posed by a local journalist about the resignation of Kenneth Airheart, the principal of the high school and Salge's direct supervisor. The district court dismissed Salge's ADEA claim but granted her motion for summary judgment on her First Amendment claim, which ruling EISD appeals.

In February 2002, Wells met with Airheart to discuss the latter's annual evaluation. Wells criticized Airheart's performance, including Wells's perception that Airheart did not adequately supervise his employees as Wells had expressed to Airheart on prior occasions that Salge's performance was deficient and had asked Airheart to fire her. Wells informed Airheart that he intended to recommend to the EISD School Board that Airheart's current employment contract not be extended. After hearing this evaluation, Airheart held a meeting with approximately forty employees of the high school, one of whom was Salge. He announced to the group that he had received the second worst performance evaluation of his life, that his contract had not been extended, and that he intended to resign because he did not wish to stay where he was not wanted.

Two days later, the local newspaper, the Jackson County Herald-Tribune, reported that Airheart was retiring. Some time during the weeks that followed, Cynthia Roberson, a reporter for the newspaper, called the high school for information about another employee's resignation; Salge answered the phone when Roberson rang. Roberson stated in her deposition that she had called the high school because of the unusually large number of high-level school officials that were leaving at the same time, and that Airheart's retirement had quickly become the main subject of this conversation. Exactly what Salge said to Roberson is disputed.

In March, the newspaper published a second article about Airheart's departure, stating that his contract had not been "renewed." Salge denied telling Roberson that Airheart's contract was not being renewed, insisting instead that she had told Roberson that the contract was not being extended. Roberson corroborated Salge's version in her deposition and stated that she had used the wrong word in the article. Roberson admitted when questioned by opposing counsel, however, that she could not really recall whether Salge had said "renewed" or "extended."

Most EISD employees have two-year contracts, which are renewed every year. An EISD contract that is not renewed after reaching its end is effectively a termination of employment. A two-year contract that the school board declines to renew at the end of its first year, is referred to as a "non-extension." A non-extension of a contract does not necessarily result in termination of employment; rather it serves as a warning to the employee that, at the end of the second year, his contract might not be renewed. As a result, his employment will then terminate at the end of its second year. Airheart's contract had not been extended, thus he had received a "warning"; but the second newspaper article erroneously stated that his contract had not been renewed, incorrectly implying that he had been fired contemporaneously.

When Airheart, other EISD employees, and EISD parents read the article, they became alarmed and expressed concern to Wells that personnel information had been released to the media. Airheart's concern was with the fact that the information was erroneous, whereas others expressed concern that confidential personnel information had been released.

Wells contacted Roberson, who told him that she had obtained her information regarding Airheart's contract status from Salge. The newspaper ran a correction approximately one week later, clarifying that Airheart's contract had not been extended and that he could have elected to stay in his current position, but that he chose to resign. Wells never discussed any of the articles with Salge.

Approximately two months later, Wells discharged Salge for releasing confidential information to the media in violation of school district policies that prohibit employees from discussing confidential personnel matters and from contacting the media about school district news. Wells testified in his deposition that Salge was terminated for violating both of these policies.

Salge filed suit alleging that she was fired either because of her age in violation of the ADEA, or because of her responses to Roberson's questions, in violation of her First Amendment right of free speech. She filed a motion for partial summary judgment on her First Amendment claim, to which EISD responded and filed a cross-motion for summary judgment on the same issue, subsequently filing a motion for summary judgment on Salge's ADEA claim. The district court granted EISD's motion for summary judgment on Salge's age discrimination claim but held in Salge's favor on the First Amendment claim, awarding her backpay, frontpay, damages for mental anguish, attorney fees, and costs. That ruling is the subject of this appeal.²

II. ANALYSIS

A. Standard of Review

We review grants or denials of motions for summary judgment de novo.³ Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.⁴ "[T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial."⁵ We consider the evidence in the light most favorable to the nonmovant.⁶

De novo is also our standard for reviewing district court rulings that concern First Amendment issues, in which instances we examine the whole record.⁷ Whether the speech at issue is on a matter of public concern is a question of law that must be determined by the court.⁸ And, our review of the district court's Pickering balancing analysis is, in the absence of any disputed, material facts, also de novo.⁹

B. First Amendment Retaliation

To prevail on a First Amendment employment retaliation claim, an employee must establish four elements: (1) he suffered an adverse employment action; (2) his speech involved a matter of public concern; (3) his interest in commenting on matters of public concern outweighs the employer's interest in promoting efficiency; and (4) his speech motivated the employer's adverse employment action.¹⁰ None disputes that Salge has satisfied the first element, as she was fired, or the fourth element, as her speech motivated Wells to fire her: Wells readily acknowledges that he fired Salge because of her statement to the press. Thus, the elements that remain to be examined are (1) whether Salge's speech involved a matter of public concern, and (2) if so, whether her First Amendment interest in her speech outweighs EISD's interest in promoting efficiency.¹¹

1. Speech on a Matter of Public Concern

a. Content: What Salge Actually Said

The parties dispute the content of Salge's speech, specifically, whether Salge stated to Roberson that Airheart's contract was not renewed or that it was not extended. They also argue about which version we should consider in our determination whether Salge's speech is on a matter of public concern. The district court concluded that this argument was a red herring, as both versions of the statement address a matter of public concern.

It is true that the Supreme Court's Waters v. Churchill¹² decision held that, when a plaintiff-employee's First Amendment retaliation claim rests on a disputed version of his speech, a court applying the Supreme Court's Connick v. Myers¹³ test to determine whether the speech was on a matter of public concern must examine the speech as the defendant-employer reasonably believed it to be.¹⁴ EISD argues that Wells reasonably believed that Salge had violated the school's confidentiality and media policies and had provided false information to the newspaper; this reasonable belief justified Wells's decision to terminate Salge, EISD argues, because (1) if Salge used the term "renewed," then her speech was false and therefore unprotected and (2) whether true or false, she had violated school district policies against divulging confidential personnel information and speaking to the media. We evaluate these arguments, however, as part of our Pickering balancing test to determine whether EISD's interest in efficiency outweighs any interest Salge has in making her speech. Whether the speech in question violates an employer's policy has no relevance to whether the subject matter of the speech is on a matter of public concern. Whether an employee's speech is true or false also plays no role in the determination whether the speech concerned a matter of public interest.¹⁵

In Churchill, unlike the instant case, the difference between the two versions of...