Tompkins v. Vickers, 93-7250

• Decision Date: 26 July 1994
• Docket Number: No. 93-7250,93-7250
• Citation: 26 F.3d 603
• Parties: 92 Ed. Law Rep. 28 Robert TOMPKINS, Plaintiff-Appellee, v. Dr. Nolan VICKERS, Superintendent, et al., Defendants, Dr. Nolan Vickers, Superintendent, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 603

26 F.3d 603

92 Ed. Law Rep. 28

Robert TOMPKINS, Plaintiff-Appellee, v. Dr. Nolan VICKERS, Superintendent, et al., Defendants, Dr. Nolan Vickers, Superintendent, Defendant-Appellant.

No. 93-7250.

United States Court of Appeals, Fifth Circuit.

July 26, 1994.

Michael Chase, William Spencer, Mitchell, McNutt, Threadgill, Smith & Sams, Tupelo, MS, for appellant.

Marcie M. Fyke, John Maxey, II, Lindsay Patterson, Maxey, Pigott, Wann & Begley, Jackson MS, for appellee.

Appeal from the United States District Court for the Northern District of Mississippi.

Before GOLDBERG, DAVIS and DeMOSS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

In this Sec. 1983 action, Nolan Vickers appeals the district court's order denying his motion for summary judgment based on qualified immunity. We agree with the district court that issues of fact are presented with respect to Vickers' motivation for transferring Tompkins to a less desirable employment position. We therefore dismiss the appeal.

I.

For approximately twenty-one years, Robert Tompkins taught art at Greenville High School (Greenville) without controversy. In August 1988, Tompkins began criticizing school district Superintendent Nolan Vickers for cancelling the art program at Coleman Junior High School (Coleman), an "historically black [junior] high school." Tompkins decried the cancellation because the same art program was spared at Solomon Junior High, an "historically white junior high school". When the Vickers administration explained that the program was cancelled because instructors could not be found for Coleman, Tompkins located art instructors for the school.

Around this same time, the Vickers administration was the subject of extensive criticism in the community. His management style was criticized by a large segment of the teachers and staff of the school district. Criticism of his vindictive and retaliatory management style was reported in the press and was the subject of discussion at school board meetings.

In September 1988, Tompkins, on behalf of a local teachers' organization, presented a letter of "no confidence" to Vickers, detailing the grievances of employees, staff and teachers. Tompkins also wrote a letter to the editor of the local newspaper, further publicizing his criticism of the Vickers administration for its poor relations with faculty, staff and students. Finally, in October 1988, Tompkins appeared before the School Board of Trustees and urged the Board to reinstate the art program at Coleman.

The following April, Charlie Lynch, the Greenville principal, recommended Tompkins for re-employment as an art instructor at Greenville. ¹ However, this recommendation was revoked after a July 1989 meeting between Lynch, Mac Durastanti (the principal of Coleman) and Sammie Felton (the principal of T.L. Weston). On Vickers' instruction, the group of principals met for the avowed purpose of redistributing art instructors throughout the school district; according to Tompkins, a meeting of this kind had never taken place before. After the meeting, the principals unanimously recommended that Tompkins be reassigned to Coleman for the upcoming school year. Vickers accepted this recommendation and ordered Tompkins' transfer. After being notified of the transfer, Tompkins requested the Board to reassign him to Greenville, but the Board denied his request.

Tompkins then filed this suit under 42 U.S.C. Sec. 1983 against the Greenville Municipal School District, Superintendent Vickers, several other administrators and the members of the School Board of Trustees. Tompkins alleged that his reassignment to Coleman was made in retaliation for the public criticism he had expressed toward the various defendants, in violation of his First Amendment rights. Tompkins also complained that his reassignment violated his Due Process and Equal Protection rights.

All defendants moved for summary judgment on a number of grounds, including qualified immunity. The district court granted summary judgment in favor of the defendants on Tompkins' Due Process and Equal Protection claims, but denied summary judgment on Tompkins' First Amendment claim, rejecting the defendants' request for qualified immunity. Only defendant Vickers appeals the district court's denial of qualified immunity.

II.

A.

We review de novo the denial of a public official's motion for summary judgment predicated on qualified immunity. Johnston v. City of Houston, 14 F.3d 1056, 1059 (5th Cir.1994) (citation omitted).

Tompkins' First Amendment claim is predicated on his contention that Vickers reassigned him to Coleman to retaliate against him for criticizing the Vickers administration on matters of public concern. Vickers argues that his actions did not violate Tompkins' clearly established constitutional rights. Vickers further contends that Tompkins was reassigned solely because of a personality conflict with Lynch, and that Tompkins has not met his summary judgment burden of establishing a causal connection between his transfer and his First Amendment activity.

In reviewing the denial of a summary judgment motion based on a claim of qualified immunity, the Supreme Court has instructed us to first consider whether the actions of the plaintiff are entitled to constitutional protection. Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). Even if the plaintiff's actions are constitutionally protected, public officials are nonetheless entitled to qualified immunity unless the constitutional right asserted was clearly established at the time of their conduct. The law is considered clearly established if the contours of the right asserted are sufficiently clear that a reasonable official would understand that what he is doing violates that right. Texas Faculty Ass'n v. University of Texas at Dallas, 946 F.2d 379, 389 (5th Cir.1991) (quoting Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987)).

The parties do not dispute that the First Amendment prohibits a public employer from retaliating against an employee for exercising his right to speak on a matter of public concern. Nor do the parties dispute whether the contours of this right were clearly established at the time of Tompkins' transfer. However, Vickers contends that it was not clearly established that Tompkins' speech addressed a matter of public concern because the statements were arguably motivated by Tompkins' personal interests as an employee. Whether the speech at issue relates to a matter of public concern is a question of law to be resolved by the court. Rankin v. McPherson, 483 U.S. 378, 386 n. 9, 107 S.Ct. 2891, 2898 n. 9, 97 L.Ed.2d 315 (1987).

In Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), a public employee, disgruntled by an undesirable transfer, complained that she was terminated because of statements pertaining to the office transfer policy, the need for a grievance committee, and the level of confidence in various supervisors. In distinguishing between speech relating only to the employee's personal interests and speech relating to a matter of public concern, Connick instructs us to look to "the content, form, and context of [the speech at issue], as revealed by the whole record." Id. at 147-48, 103 S.Ct. 1684, 1690, 75 L.Ed.2d at 720. The Connick Court interpreted the public employee's statements as "mere extensions of [her] dispute over her transfer," which were not "of public import in evaluating the performance of ... an elected official." Accordingly, the Court declined to afford First Amendment protection because the employee had spoken "not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest." Id.

We are persuaded that Tompkins' complaints about cancelling the art program at a black junior high school for no apparent reason while maintaining the art program at a white junior high school relates to a matter of public concern. This conclusion is strengthened by the content, form and context of Tompkins' complaints. See id. Tompkins' complaints were made against a backdrop of widespread debate in the Greenville community regarding the art program and other aspects of Vickers' management of the school system. Thus, Tompkins' complaints can be seen "in the context of a continuing commentary that had originated in [a] public forum." See Brawner v. City of Richardson, 855 F.2d 187, 192 (5th Cir.1988). In fact, most of Tompkins' complaints were made in a public forum. He wrote a letter to the editor of the local newspaper criticizing the Vickers administration. This criticism continued at a public meeting of the local School Board, where Tompkins urged the Board to reinstate the art program at Coleman. See id. Moreover, Tompkins, on at least one occasion, spoke not only on his behalf, but as a representative of a local teachers' organization.

Vickers' only specific argument that Tompkins did not engage in public speech is that Tompkins spoke out as an employee on a matter of solely personal interest. Specifically, Vickers contends that Tompkins stood to benefit personally from the continuation of the art program at Coleman because his Greenville students would be better prepared for high school art classes. Vickers points to no record support for this argument and we find it unpersuasive. The district court correctly concluded that Tompkins engaged in protected public speech. ²

B.

Vickers argues next that, even if Tompkins' speech is constitutionally protected, his claim must still suffer early dismissal on qualified immunity grounds because Tompkins did not meet his summary judgment burden of establishing that he was transferred because of his speech. Vickers contends that Tompkins has not met his summary judgment burden because he did not produce specific, direct proof that Vickers had an unconstitutional motive in transferring Tompkins to Coleman.

Vickers...