Filed: Jun. 27, 2014
Latest Update: Mar. 02, 2020
Summary: Case: 13-12130 Date Filed: 06/27/2014 Page: 1 of 10 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 13-12130 _ D.C. Docket No. 1:10-cv-00836-JOF RICHARD J. HUBBARD, Plaintiff-Appellant, versus CLAYTON COUNTY SCHOOL DISTRICT, A. MICHELLE STRONG, et al., Defendants-Appellees. _ Appeal from the United States District Court for the Northern District of Georgia _ (June 27, 2014) Before MARCUS and ANDERSON, Circuit Judges, and GOLDBERG,* Judge. ANDERSON, Circuit Judge: _
Summary: Case: 13-12130 Date Filed: 06/27/2014 Page: 1 of 10 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 13-12130 _ D.C. Docket No. 1:10-cv-00836-JOF RICHARD J. HUBBARD, Plaintiff-Appellant, versus CLAYTON COUNTY SCHOOL DISTRICT, A. MICHELLE STRONG, et al., Defendants-Appellees. _ Appeal from the United States District Court for the Northern District of Georgia _ (June 27, 2014) Before MARCUS and ANDERSON, Circuit Judges, and GOLDBERG,* Judge. ANDERSON, Circuit Judge: _ ..
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Case: 13-12130 Date Filed: 06/27/2014 Page: 1 of 10
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-12130
________________________
D.C. Docket No. 1:10-cv-00836-JOF
RICHARD J. HUBBARD,
Plaintiff-Appellant,
versus
CLAYTON COUNTY SCHOOL DISTRICT,
A. MICHELLE STRONG, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(June 27, 2014)
Before MARCUS and ANDERSON, Circuit Judges, and GOLDBERG,* Judge.
ANDERSON, Circuit Judge:
___________________
*Honorable Richard W. Goldberg, United States Court of International Trade Judge, sitting by
designation.
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Richard Hubbard appeals the district court’s grant of summary judgment in
favor of the Clayton County School District (“School District”). Hubbard argues
that he was retaliated against by the School District because he made public
statements to the press regarding the accreditation investigation of the School
District.
I. FACTS AND PROCEDURAL BACKGROUND
Richard Hubbard was employed by the Clayton County School District as a
teacher and then an administrator from 1996 to 2006. He had a yearly, renewable
contract with the School District and was scheduled to be assistant principal for
Kemp Elementary School during the school year of 2006-2007. His job duties as
assistant principal did not include speaking to the media, and the School District
maintained a Department of Communications for that purpose. In 2006, Hubbard
was elected president of the Georgia Association of Educators (“GAE”), a private,
non-profit professional association that represents public educators in Georgia.
Among other things, GAE serves as the voice for education in Georgia and the
president is explicitly tasked to be that voice.
During his tenure as president of GAE, the relationship between Hubbard
and the School District was as follows. For several decades, the practice of the
GAE and the several school districts from which it recruits its presidents has been
that the president works fulltime for GAE and GAE pays for the full compensation
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package for its president. However, because an employee-president of GAE could
not continue his benefits and retirement contribution except as a school employee,
GAE and the school districts have arranged for the president to remain technically
as an employee of the school district from which he was recruited, such that the
president’s salary and benefits are paid by that school district and reimbursed in
full by the GAE. The practice has been to call these “on-loan” arrangements.
Under these arrangements, the president would continue to accrue employment
benefits (e.g. retirement and insurance) with his former school district and was
expected to return to the school district upon completion of his term as president.
The School District, GAE, and Hubbard followed this practice and exchanged
correspondence reflecting the agreement. GAE actually paid Hubbard more than
$40,000 in excess of what he had received from the School District. When
Hubbard took office as president in July 2006, the School District released him
from his duties for the School District for the duration of his tenure as president.
On February 15, 2008, Hubbard was acting in his capacity as spokesperson
for the GAE at the Georgia State Capitol. When asked about the recent SACS1
Report critical of the School District and various members of its local Board of
Education, Hubbard made public remarks about the Clayton County Board of
Education’s accreditation crisis: “If the allegations in the SACS Report are true,
1
SACS is the Southern Association of Colleges and Schools and is the regional body for
the accreditation of degree-granting higher education institutions in the Southern states.
3
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then for the good of the children and the system, individuals on the Board should
step down.” On March 3, 2008, the Board voted to discontinue any employee
leave that was not specifically allowed by Board Policy; this included the “on-
loan” agreements like Hubbard’s. Four employees were affected by the decision,
but Hubbard points out that the other three were permitted to return to employment
with the School District.
There were three other “on-loan” arrangements like Hubbard’s and all of the
loaned employees were told to return to the classrooms and receive working
assignments. Hubbard responded to his letter, which informed him of the decision
and assigned him as an assistant principal, by resigning from the School District.
By contrast, the head of the local CCEA2 (who also called for the Board’s
resignation in the wake of the SACS Report) contacted the Board and arranged to
take leave instead. When Hubbard learned of this, he tried to rescind his
resignation. Although the School District’s in-house counsel emailed Hubbard’s
attorney that “[w]e have no problem allowing him to rescind his resignation,” the
Board members tabled the issue. When the new Board convened (after all of the
members had either resigned or been removed by Governor Deal), its new counsel
determined that Hubbard’s rescission of his resignation was ineffective because he
had already cashed out his leave and had not reported to his assigned school.
2
The CCEA is the Clayton County Education Association.
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Hubbard brought suit after the end of his second term as president, when he
tried to return to the School District but was rebuffed. He argued, inter alia, that
the School District retaliated against him for his speech in violation of his First
Amendment rights. The School District asserted in its motion for summary
judgment that Hubbard was acting pursuant to his official job duties for the School
District and thus enjoyed no First Amendment protection under Garcetti v.
Ceballos, 547 U.S. 410,
126 S. Ct. 1951 (2006). The district court granted
summary judgment for the School District, holding that Hubbard’s speech was
pursuant to his official duties for the School District and thus was not protected
under Garcetti. The district court entered final judgment for the School District
and Hubbard appeals.
II. ISSUE
The narrow issue before us in this appeal is whether the district court erred
in granting summary judgment in favor of the School District on the basis that
Hubbard was speaking pursuant to his official duties for the School District and
thus had no First Amendment protection under Garcetti.
III. DISCUSSION
While a government employer “may not demote or discharge a public
employee in retaliation for speech protected under the first amendment, a public
employee’s right to freedom of speech is not absolute.” Bryson v. City of
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Waycross, 888 F.2d 1562, 1565 (11th Cir. 1989). As the Supreme Court has
explained:
[T]he State has interests as an employer in regulating the speech of its
employees that differ significantly from those it possesses in
connection with regulation of the speech of the citizenry in general.
The problem in any case is to arrive at a balance between the interests
of the teacher, 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 Educ., 391 U.S. 563, 568,
88 S. Ct. 1731, 1734-35 (1968).
In the subsequent case Garcetti v. Ceballos, 547 U.S. 410,
126 S. Ct. 1951
(2006), the Supreme Court refined its Pickering analysis. The Court stated that
while the government has the ability to restrict speech, the restrictions must be
directed at speech that has the potential to affect the government employer’s
operations.
Id. at 418, 126 S. Ct. at 1958. As long “as employees are speaking as
citizens about matters of public concern, they must face only those speech
restrictions that are necessary for their employers to operate efficiently and
effectively.”
Id. at 419, 126 S. Ct. at 1958. The Court then held that “when public
employees make statements pursuant to their official duties, the employees are not
speaking as citizens for First Amendment purposes, and the Constitution does not
insulate their communications from employer discipline.”
Id. at 421, 126 S. Ct. at
1960. Thus, a threshold question to ask in the government employee context is
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whether the speech was made by the employee in his capacity as an employee or as
a private citizen.
Hubbard relies on several cases from other circuits that have held, post-
Garcetti, that the speech of an employee acting in his capacity as a representative
of a union is not made as an employee but as a citizen. The Seventh Circuit, in
Fuerst v. Clarke, 454 F.3d 770, 774 (7th Cir. 2006), stated that Garcetti was
“inapposite” because the plaintiff deputy sheriff’s statements were made in the
capacity of his role as union president, not deputy sheriff. See also Nagle v.
Village of Calumet Park,
554 F.3d 1106, 1123 (7th Cir. 2009) (holding statements
made in capacity as union official not subject to rule announced in Garcetti). The
Ninth Circuit, in Ellins v. City of Sierra Madre,
710 F.3d 1049, 1059-60 (9th Cir.
2013), similarly held that speech made in the context of the plaintiff’s role as a
union official was made as a private citizen and did not fall under Garcetti’s
strictures.
We agree with Hubbard that his speech was made in his capacity as
president of GAE, and not as an employee of the School District. Thus, his speech
did not fall under Garcetti. Under the agreement with the School District, Hubbard
was “on-loan” to GAE. This meant that he only technically remained an employee
of the School District during his tenure as president of GAE. He had no
responsibilities as a School District employee during that tenure, and his
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relationship with the School District was only a formality so that he could retain
his benefits. Hubbard performed no duties for the School District during his time
working for the GAE. Indeed, the salary GAE provided to Hubbard was
significantly higher than what he earned as assistant principal with the School
District. Applying the practical inquiry mandated by Garcetti, 547 U.S. at 424,
126 S. Ct. at 1961-62, the substance of his relationship with the School District
was that he was on leave from the School District. Thus, Hubbard’s speech was
more clearly separate from any duties for the School District than the cases upon
which Hubbard relies because in those cases, the plaintiffs remained active
employees of their governmental employers, while Hubbard was on leave to be the
fulltime president of his trade association. 3
3
The School District does not dispute that Hubbard worked full time as president of GAE,
and does not dispute that he had no duties for the School District as such. Rather, the School
District seems to argue that all of Hubbard’s duties for GAE were somehow also duties for the
School District. This argument is counterfactual. The only hint of evidence offered by the
School District is a congratulatory letter from the Superintendent of the School District upon
Hubbard’s election. Although the letter indicated pride that the School District would be
“represented” by Hubbard in his role as leader of GAE, the obvious meaning of that was simply
an acknowledgement that Hubbard’s having been elected to lead a prestigious statewide
educational organization would enhance the reputation of the School District. Neither that letter,
nor any other evidence in the present record, could reasonably be construed as somehow
transforming Hubbard’s official duties for GAE into also being official duties for the School
District. Although the parties labeled the arrangement as Hubbard being “on-loan” to GAE, the
substance of the arrangement was that Hubbard was on leave from the School District in order to
work fulltime for GAE. It is clear that Hubbard’s official duties on behalf of GAE were not
official duties for the School District. Thus, this case is very different from Watts v. Florida
International University, 495 F.3d 1289 (11th Cir. 2007), which suggested that a university
student—who had to take a field practicum course as part of his degree requirements,
id. at 1291,
and whose practicum was employment in a private psychiatric institution—was both a student
and employee of the university,
id. at 1294. In that very different situation, the work of the
student in the practicum (i.e., “on-loan” work for a different entity) might well have been part of
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A crucial rationale for Garcetti’s holding that statements made by public
employees pursuant to their official duties are not protected by the First
Amendment is the governmental employer’s right to control official
communications.
Employers have heightened interests in controlling speech made by an
employee in his or her professional capacity. Official
communications have official consequences, creating a need for
substantive consistency and clarity. Supervisors must ensure that their
employees’ official communications are accurate, demonstrate sound
judgment, and promote the employer’s mission.
Id. at 422-23, 126 S. Ct. at 1960. It is clear that Hubbard’s speech in this case was
not an official communication of the School District. Rather, it is clear that
Hubbard was speaking in his capacity as president of GAE; Hubbard’s speech
could not reasonably be attributed to the School District. Thus, the School District
has no legitimate interest in controlling this speech. Accordingly, this rationale of
Garcetti simply has no application in this case.
Because Hubbard was not speaking pursuant to any official duties for the
School District, but rather was speaking in his capacity as president of GAE, the
district court erred when it held that Hubbard’s speech fell under the rule
announced in Garcetti. Therefore, we vacate the district court’s order and remand
for further proceedings.
the student’s official duties for the university, although the Watts court did not address that and
did not cite Garcetti.
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VACATED AND REMANDED.
10
