Mary White v. School Board Hillsborough County

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 27, 2009
No. 08-10922 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-01626-CV-T-27-MAP
MARY WHITE,
Plaintiff-Appellant,
versus
SCHOOL BOARD HILLSBOROUGH COUNTY, FLORIDA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
Before MARCUS, WILSON and FAY, Circuit Judges.
PER CURIAM:
Mary White, proceeding pro se and in forma pauperis, appeals the district
court’s final order granting the School Board of Hillsborough County, Florida’s
(the “School Board”) motion for summary judgment on White’s 42 U.S.C. § 1983First Amendment retaliation and state law defamation claims. On appeal, White
argues that the district court erred in granting summary judgment in favor of the
School Board because: (1) there were multiple procedural errors committed by the
School Board and the district court during the summary judgment stage of the case;
(2) there were conflicting facts as to whether White was an independent contractor
for purposes of determining whether White engaged in protected speech, an
element of her First Amendment retaliation claim; and (3) the district court
erroneously found that the statements at issue were subject to a qualified privilege,
a defense to her defamation claim. After thorough review, we affirm.1
We review an order granting summary judgment de novo, viewing all the
facts in the record in the light most favorable to the non-moving party. Brooks v.
County Comm’n of Jefferson County, Ala., 446 F.3d 1160, 1161-62 (11th Cir.
2006). Moreover, “pro se pleadings are held to a less strict standard than pleadings
filed by lawyers and thus are construed liberally.” Alba v. Montford, 517 F.3d
1249, 1252 (11th Cir.), cert. denied, (U.S. Dec. 1, 2008) (No. 08-6426).
The relevant facts are these. White was the founder and director of
Wilbesan Charter School, and in April 2003, signed the charter contract with the
School Board on behalf of the school. Almost immediately after Wilbesan opened,
problems began. In August 2003, the School Board denied a request by White for
1
In addition, White’s motion to file a reply brief out of time is GRANTED.
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a waiver of the teacher certification requirements for a vocational teacher, on the
ground that the teacher in question did not meet the requirements for any course
taught in Wilbesan’s curriculum. In January 2004, School Board employees
conducted a review of Wilbesan’s operations, and after an audit by an outside
accounting firm, asked Wilbesan to prepare a corrective action plan to address its
deficit. In February 2004, a social worker working with the school wrote a
memorandum to the School Board, and expressed concerns over her safety and that
of her fellow employees, noting that White “has demonstrated a history of being
mentally unstable as observed by other charter office staff.” Sometime later, White
wrote a letter to the School Board alleging that a fire safety inspection report on the
school was false because the school had changed locations. A subsequent county
fire inspection of the new facility found significant deficiencies and ordered the
school not to open until they were corrected. The school opened the following day,
and the county fire marshal issued a cease and desist order to the school. The
School Board superintendent notified White that the school was closed effective
immediately following the issuance of the cease and desist order, and that the
superintendent was recommending that the charter be terminated based on
concerns for the health and safety of the students and the school’s “disregard for
the School Board’s directives and applicable state law.”
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White thereafter filed this lawsuit against the School Board, asserting, inter
alia, First Amendment retaliation and state law defamation claims. The district
court dismissed several of White’s claims, and ultimately granted summary
judgment to the School Board on White’s remaining claims. This appeal follows.
First, we are unpersuaded by White’s claim that the School Board’s motion
for summary judgment failed to comply with the requirements of Federal Rule of
Civil Procedure 56 and that the district court erred in ordering the School Board to
amend its motion to correct record cites and in ordering both parties to file
supplemental briefs. “[S]ummary judgment is appropriate ‘if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.’” Brooks, 446
F.3d at 1162 (quoting Fed. R. Civ. P. 56(c)). “A supporting or opposing affidavit
must be made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant is competent to testify on the matters stated.”
Fed. R. Civ. P. 56(e). The Supreme Court has held that Rule 56 does not require
“that the moving party support its motion with affidavits or other similar materials
negating the opponent’s claim.” Celotex Corp v. Catrett, 477 U.S. 317, 323 (1986)
(emphasis in original). “[R]egardless of whether the moving party accompanies its
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summary judgment motion with affidavits, the motion may, and should, be granted
so long as whatever is before the district court demonstrates that the standard for
the entry of summary judgment, as set forth in Rule 56(c), is satisfied.” Id.The record here shows that the School Board’s brief complied with the
requirements of Rule 56(c). Moreover, the district court committed no error in
ordering the School Board to correct its record citations, and the School Board’s
amended brief was otherwise identical to its original one. In addition, the court
ordered both parties to file supplemental briefs addressing the applicability of the
law governing the speech of public employees, and White in fact filed a
supplemental brief on this very issue. The district court thus did not commit any
procedural errors in ruling on summary judgment.
Next, we reject White’s claim that the district court erred in granting
summary judgment on her First Amendment retaliation claim. To state a First
Amendment retaliation claim, a plaintiff must first establish that she engaged in
constitutionally protected speech. See Bennett v. Hendrix, 423 F.3d 1247, 1250
(11th Cir. 2005). However, the government is afforded broader discretion in
regulating the speech of public employees than that of its citizenry. Boyce v.
Andrew, 510 F.3d 1333, 1341 (11th Cir. 2007). So, “for a government employee’s
speech to have First Amendment protection, the employee must have (1) spoken as
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a citizen and (2) addressed matters of public concern.” Id. “[W]hen 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.” Garcetti v. Ceballos,
547 U.S. 410, 421 (2006).
Moreover, the Supreme Court has held that government contractors are
protected under the First Amendment from retaliatory government action to the
same extent as government employees. Bd. of County Com’rs, Wabaunsee
County, Kan. v. Umbehr, 518 U.S. 668 (1996). In Umbehr, the plaintiff contracted
with a county board of commissioners to haul trash for cities within the county,
and alleged that his contract was terminated in retaliation for his public criticism of
the board. Id. at 671-72. The Court held that an independent contractor’s speech is
protected subject to the same restrictions on the speech of public employees,
because the government has similar interests in both contexts of being “free to
terminate both employees and contractors for poor performance, to improve the
efficiency, efficacy, and responsiveness of service to the public, and to prevent the
appearance of corruption.” Id. at 674. Accordingly, the government contractor,
like the government employee, “must show that the termination of [her] contract
was motivated by [her] speech on a matter of public concern[.]” Id. at 685.
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As applied here, the district court did not err in determining that Umbehr
applied to White’s retaliation claim, as it was based solely on the termination of a
contract -- the charter -- with the government. Id. Moreover, under Florida law a
charter school is a public school and is subject to significant oversight by the
sponsoring school district. See Fla. Stat. § 1002.33. Thus, the School Board, in
exercising its contractual power and promoting the public service thereby
provided, had at least the same interests as the commissioners in Umbehr that
warrant deference to its decision to terminate the charter contract. See 518 U.S. at
678; see also Mangieri v. DCH Healthcare Authority, 304 F.3d 1072, 1074-76
(11th Cir. 2002) (applying Umbehr to a § 1983 claim by a physician against a state
agency, where the physician alleged that the agency refused to renew the his
contract to provide anesthesia services at a state hospital in retaliation for his
speaking out about matters of public concern). Because Umbehr applies to
White’s retaliation claim, the statements for which she was allegedly retaliated
against are subject to the restrictions applicable to the speech of public employees.
Applying these restrictions, we must determine whether White’s statements
were made in the course of her duties as director of the school or “as a citizen on a
matter of public concern”; if the former, her speech is not protected by the First
Amendment. Garcetti, 547 U.S. at 418, 421. On this record, there is no genuine
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dispute that White’s two statements -- (1) her letter requesting that the School
Board waive certification requirements for a vocational teacher; and (2) her letter
alleging that the fire safety inspector filed an “absolutely false” report on the
school -- were made in the course of her duties as director of the school. This is
true even if White had no formal duty to write the letters. Id. at 425 (“[T]he listing
of a given task in an employee’s written job description is neither necessary nor
sufficient to demonstrate that conducting the task is within the scope of the
employee’s professional duties for First Amendment purposes.”); see also
D’Angelo v. School Bd. of Polk County, Fla., 497 F.3d 1203, 1210 (11th Cir.
2007) (holding that principal allegedly terminated in retaliation for efforts to
convert his school to a charter school made statements, in pursuit of the charter, in
his capacity as principal and not as a citizen, even if he “was not expressly
assigned the duty to pursue charter conversion”); Phillips v. City of Dawsonville,
499 F.3d 1239, 1242 (11th Cir. 2007) (holding that “a public employee’s duties are
not limited only to those tasks that are specifically designated”). This is also true
even if she was making allegations of official misconduct. See Phillips, 499 F.3d at
1242-43 (holding that city clerk/treasurer’s disclosures about the mayor’s misuse
of city resources were made pursuant to her official duties and not protected); see
also Morris v. Crow, 142 F.3d 1379, 1381 (11th Cir. 1998) (“The fact that such
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information may be of general interest to the public, however, does not alone make
it of ‘public concern’ for First Amendment purposes.”). We therefore affirm the
grant of summary judgment on White’s retaliation claim.
We likewise reject White’s argument that the district court erred in granting
summary judgment on her state law defamation claim. “To state a cause of action
for defamation, in Florida, a plaintiff must allege that (1) the defendant published a
false statement (2) about the plaintiff (3) to a third party and (4) that the falsity of
the statement caused injury to the plaintiff.” Valencia v. Citibank Int’l, 728 So. 2d
330 (Fla. Dist. Ct. App. 1999); see Rubin v. U.S. News & World Report, Inc., 271
F.3d 1305, 1306 (11th Cir. 2001). However, Florida law recognizes a qualified
privilege for statements that meet the following requirements: “(1) good faith; (2)
an interest in the subject by the speaker or a subject in which the speaker has a duty
to speak; (3) a corresponding interest or duty in the listener or reader; (4) a proper
occasion; and (5) publication in a proper manner.” Thomas v. Tampa Bay Downs,
Inc. 761 So. 2d 401, 404 (Fla. Dist. Ct. App. 2000). “The publication may be
qualifiedly privileged even if it is untrue.” Demby v. English, 667 So. 2d 350, 353
(Fla. Dist. Ct. App. 1995). If the defendant establishes the existence of a qualified
privilege, the plaintiff must demonstrate express malice, which requires a showing
that “the primary motive for the statement [was] . . . an intention to injure the
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plaintiff.” Nodar v. Galbreath, 462 So. 2d 803, 806 (Fla. Dist. Ct. App. 1984).
As the record shows, the School Board asserted as an affirmative defense
that the allegedly defamatory statements by the social worker were privileged as a
matter of law, and articulated this argument in its motion for summary judgment.
Yet White raised no argument in response to the School Board’s qualified privilege
claim, nor did she present any evidence to create a genuine issue as to whether the
social worker’s statements were made with express malice. Thus, the district court
did not err in finding that the statements at issue were subject to a qualified
privilege under Florida law, and that White had not demonstrated express malice to
overcome the privilege. We therefore affirm the grant of summary judgment on
White’s defamation claim.2
AFFIRMED.
2
White also alleged that she was defamed by a School Board director’s statements
regarding poor fiscal management at the school, but since she raised no argument to this effect
on appeal, she has abandoned it. See Horsley v. Feldt, 304 F.3d 1125, 1131 n.1 (11th Cir. 2002).
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