United States District Court, S.D. Mississippi, Northern Division
P. JORDAN III CHIEF UNITED STATES DISTRICT JUDGE
Carol Dorsey believes that Defendant Jackson Public School
District (“JPSD”) terminated her employment
because she engaged in speech protected by the First
Amendment to the United States Constitution. JPSD has moved
for summary judgment, arguing that Dorsey did not speak as a
citizen on a matter of public concern. See
Def.'s Mem.  at 7-9. The Court needs clarification
and therefore requests additional briefing on three
employed Dorsey as its Executive Director of Human Resources.
In that capacity, Dorsey received an email directing her to
place two hiring recommendations on the school board's
agenda. Consistent with her job responsibilities, she
forwarded the email to her assistant for posting on the
agenda, but Dorsey apparently disagreed with the decision and
added the word “REALLY!!” JPSD eventually backed
off the hiring recommendation but terminated Dorsey's
parties now dispute the second element of Dorsey's First
Amendment retaliation claim-whether she spoke as a citizen on
a matter of public concern. JPSD's core argument for
dismissal is that the email was sent pursuant to Dorsey's
“official duties” because the “speech was
made in the course of performing her employment.”
Def.'s Mem.  at 8 (brackets omitted) (citing
Anderson v. Valdez, 845 F.3d 580, 595 (5th Cir.
2016))). In other words, any statements Dorsey made within
the email were made pursuant to her duties.
JPSD needs to explain its argument in light of Fifth Circuit
law on mixed speech. In Davis v. McKinney, the Fifth
Circuit considered whether the plaintiff acted as an employee
when she sent an internal complaint letter that contained
some statements that related to her job and some that did
not. 518 F.3d 304, 314 (5th Cir. 2008). The Davis
court concluded that the letter constituted mixed speech.
Id. at 314-15; see also Gibson v.
Kilpatrick, 838 F.3d 476, 485 (5th Cir. 2016) (holding
that “even a mere scintilla of speech regarding a
matter of public concern is sufficient to treat the entire
communication as mixed speech”) (citation omitted). The
court then held that it must “consider[ ] separately
discrete topics within a single communication for purposes of
applying post-Garcetti First Amendment
analysis” regarding employee status. 518 F.3d 304, 315.
So based on Davis, it is not apparent that
Dorsey's added comment was made as an employee just
because it occurred while performing a work-related
task. If Davis survives Lane v. Franks, 134
S.Ct. 2369, 2379 (2014), then it seems instead that this
Court should consider separately the statement
Davis applies, other questions also require further
attention. Looking separately at the “REALLY!!”
statement, the more precise issue is whether the comment
“itself ordinarily [falls] within the scope of
[Dorsey's] duties, not whether it merely concerns [read:
relates to] those duties.” Anderson, 845 F.3d
at 595-96 (quoting Lane, 134 S.Ct. at 2379). To
answer that question, the Fifth Circuit has looked to factors
such as “job descriptions, whether the employee
communicated with coworkers or with supervisors, whether the
speech resulted from special knowledge gained as an employee,
and whether the speech was directed internally or
externally.” Howell v. Town of Ball, 827 F.3d
515, 523 (5th Cir. 2016) (quoting Davis, 518 F.3d at
313). The Fifth Circuit also noted in Anderson v.
Valdez that “[w]hen an employee was not actually
‘performing work assigned by the employer, ' he
nonetheless might have acted within the scope of his
employment-or pursuant to his official duties-if he was
‘engaging in a course of conduct subject to the
employer's control.'” 845 F.3d at 596 (quoting
Restatement (Third) of Agency § 7.07).
case, the undisputed record evidence is that Dorsey was not
consulted on this specific hiring recommendation but that as
the Executive Director of Human Resources, one of the
“essential function[s] of her job was to coordinate the
entire personnel process to include . . . appointment . . .
of all personnel employed by the system.” Job
Description [73-2] at 1. Given the fact that hiring decisions
fall squarely within Dorsey's essential functions, it at
least appears that comments she makes to her HR staff, about
an HR decision, based on information she obtains due to her
position, and that never leaves the HR department would be
subject to her employer's control and otherwise fall
within her ordinary duties. And these facts may distinguish
Dorsey's primary authority, Rankin v. McPherson,
where two co-workers were fired for their comments on a
political issue that was unrelated to their work. 107 S.Ct.
2891, 379-80 (1987). Having said all that, neither party
adequately addresses the mixed-speech issue or the more
precise application of Lane and Anderson to
Dorsey's ordinary duties.
Waters v. Churchill
Court likewise has questions about the Waters v.
Churchill claim. 511 U.S. 661 (1994). In her Second
Amended Complaint (“SAC”), Dorsey avers that JPSD
failed to conduct a reasonable investigation before
terminating her employment. See SAC  ¶ 19.
She appears to assert that this violated her rights and
entitles her to a remedy.
threshold issue, the Court requires further briefing on
whether Churchill creates a constitutional right
that would allow a cause of action under § 1983. Cases
citing Churchill frequently observe that speech
should be viewed in light of what the employer reasonably
believed the employee said. See Salge v. Edna Indep. Sch.
Dist., 411 F.3d 178, 185, 192 (5th Cir. 2005). But that
presumption will not apply if the employer fails to conduct a
reasonable investigation. See Id. at 192. While
cases like Salge generally speak about the right to
such an investigation, the parties need to address whether
this is simply an evidentiary issue or a substantive right
that is enforceable on its own under § 1983.
addition, it is not apparent that JPSD's citation to
Salge supports the argument that undisputed speech
requires no investigation. JPSD says that Churchill
“requires an investigation only where there is a
dispute about what the speaker said.” Def.'s Mem.
 at 11. It then cites the following language from
Salge to support that assertion: “In
Churchill, unlike the instant case, the difference
between the two versions of the employee's speech was
determinative, as one version implicated protected speech and
the other did not.” Id. (quoting
Salge, 411 F.3d at 185). But that passage addressed
the Churchill holding related to the Connick v.
Myers inquiry into whether the speech was on a matter of
public concern. See ...