Cottrell v. Chickasaw City Schools Board of Education

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

RONALD COTTRELL, et al., )

)

Plaintiff, )

)

vs. ) CIVIL ACTION NO. 16-0503-CG-N

)

CHICKASAW CITY SCHOOLS )

BOARD OF EDUCATION, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

This lawsuit is the result of Plaintiffs’ employment being terminated by

Defendant. Specifically before the court is Defendant, Chickasaw City Board of

Education’s (the “Board”), Motion for Summary Judgment (Doc. 40) and brief in

support thereof (Doc. 41), Plaintiffs’ Response in opposition (Doc. 44) with materials

in support (Doc. 43), and Defendant’s Reply (Doc. 45). For the reasons explained

below, the Court finds that Defendant’s motion for summary judgment should be

granted.

FACTS

Plaintiffs, Ronald Cottrell (“Cottrell”), James Rigdon (“J. Rigdon”), and

Stacey Rigdon (“S. Rigdon”) were each employees of the Chickasaw City School

System for the 2014-15 school year. (Doc. 1 at 2). Cottrell and J. Rigdon were both

employed as teachers and coaches while S. Rigdon was employed as a

paraprofessional. (Id.) J. Rigdon and S. Rigdon are also husband and wife and

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their son, Chandler Rigdon was a senior student at Chickasaw City School during

the 2014-15 school year. (Id.) On September 21, 20141, Chandler Rigdon was

involved in an incident (the “incident”) wherein the principal of Chickasaw City

High School, Brent Ward, struck him on the head/neck between one and three times

in front of three other teachers, Stephanie Serra (“Serra”), Ricky Ruffin (“Ruffin”),

and Ronald Cottrell. (Id. at 3). Brent Ward ultimately resigned from his position

based on another incident unrelated to this lawsuit. However, the facts

surrounding the investigation of Mr. Ward’s behavior are disputed by the parties

and are pertinent to this motion.

Plaintiffs assert that following the incident with Chandler Rigdon and

Principal Ward, Ruffin took Chandler outside of the school building and instructed

him not to tell his father, J. Rigdon, what had occurred. Ruffin then approached J.

Rigdon in his classroom and informed him of the incident and told him that he,

Ruffin, had taken care of it. (Id. at 3). At the end of the school day Serra informed

the Rigdons of the incident and apologized that it had occurred. (Id.) Cottrell was

approached by the assistant principal, Willie Lewis “(Lewis”) after the school day

ended and told that he needed to calm J. Rigdon down and that the Rigdons did not

need to press charges. Cottrell replied that Ward should not have hit a student. (Id.)

The same afternoon, after football practice, Lewis approached J. Rigdon and stated

1 Defendant disputes the date Plaintiffs contend this incident occurred and assert

the correct date is between August 18 and 22, 2014. (Doc. 41 at 3; Doc. 41-15).

However, the exact date of the incident is not material to the issues addressed

herein below.

2

“Word for the wise, if you want to stay, you need to let it go.” (Id. at 4). The day

after the incident, Cottrell met with Ward and suggested that Ward apologize for

the incident, to which he refused. (Id.) Days after the incident occurred, J. Rigdon

requested video surveillance of the incident and that video was provided to him in

Ward’s office where J. Rigdon, Ruffin, and Ward watched the video. (Id.)

Following the incident, Cottrell and J. Rigdon reported the incident to Robert

McFall (“McFall”), president of the Chickasaw School Board of Education and Kyle

Kallhoff (“Kallhoff”), the superintendent. (Id.) Kallhoff instructed J. Rigdon to

report the incident to Ward in accordance with the school’s chain of command.2 (Id.)

Kallhoff also called Cottrell to determine the veracity of the incident and Cottrell

confirmed that he witnessed the incident occur. (Id.) Kallhoff responded that he

was not going to investigate because Ward was doing a good job. (Id.) S. Rigdon

then reported the incident to the Superintendent of the Alabama State Department

of Education and a week later, Kallhoff requested a meeting with Mr. and Mrs.

Rigdon which occurred in the presence of the attorneys for the Board and the school

system. (Id.) Plaintiffs contend that following the meeting, no investigation was

initiated. (Id.)

The remaining events relevant to this action are listed below in chronological

2 It is unclear whether J. Rigdon actually spoke with Kallhoff before being told to

follow the proper chain of command relating to the reporting of the incident.

Rather, the Complaint indicates J. Rigdon “called” Kallhoff (not “spoke with”) (Doc.

1 at 4.) and Plaintiff’s Response indicates “Kallhoff’s office” – not Kallhoff-

“instructed James Rigdon to talk to the Principal, Brent Ward (Doc. 44 at 9).

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order:

On September 25, 2014, Lewis sent J. Rigdon an email regarding problems

observed in his classroom and J. Rigdon responded the same day. (Doc. 41-17 at 12-

13). J. Rigdon’s response brings up the incident.

On October 8, 2014, a co-employee sent an email to Lewis and Ward

regarding J. Rigdon’s behavior relating to his son receiving a uniform violation. J.

Rigdon responded to that email and brought up the incident. (Id. at 14-15).

On October 27, 2014, Cottrell completed a witness statement relating to the

incident. (Id. at 60).

On October 27, 2014, Ward was reprimanded for the incident involving

Chandler. (Doc. 41-17 at 36).

On October 29, 2014, as a result of another incident, Ward was placed on

administrative leave. (Id. at 58). Lewis was named interim principal upon Ward’s

exit. (Doc. 1 at 5). Shortly thereafter, Ward resigned in response to the other

unrelated incident. (Id.)

On October 31, 2014, interim principal Lewis observed J. Rigdon’s classroom

to be disorderly and questioned him about the state of the class. (Doc. 41-17 at 16).

On November 3, 2014, Lewis issued a written reprimand to J. Rigdon for his

behavior during their previous encounter on October 31, 2014. (Doc. 41 at 6; Doc.

41-17 at 16).

On November 3, 2014, Chandler Rigdon filed a police report with the

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Chickasaw Police Department against Brent Ward for the incident. Ward was

charged with harassment and prosecuted in Chickasaw Municipal Court. (Doc. 41

at 5).

The Board accepted Ward’s resignation on November 13, 2014. (Doc. 41 at 4).

On December 19, 2014, Lewis wrote a letter to J. Rigdon regarding a conflict

of interest for conducting personal business with school. (Doc. 41-17 at 17).

On December 20, 2014, Lewis wrote a letter to J. Rigdon regarding a personal

conflict involving a student that was negatively impacting positive work

environment. (Id. at 20).

On December 22, 2014, S. Rigdon sent an email to Lewis requesting that he

stop harassing her and her family. (Id. at 26-27).

On February 26, 2015, Cottrell was reprimanded by Kathy Odom for meeting

with recruiters during instructional time. (Id. at 3).

On March 10, 2015, Cottrell was given a letter from Lewis explaining items

that needed Cottrell’s attention (relating to sports). (Id. at 4).

On March 18, Cottrell was reprimanded for making purchases without

following proper accounting procedures. (Id. at 5).

On March 18, 2015, S. Rigdon sent an email to Lewis that mentions the

incident. (Id. at 28-29).

On April 21, 2015, Cottrell was given Letter of Reprimand for unprofessional

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conduct and insubordination. (Id. at 8-9).

On May 6, 2015, S. Rigdon sent an email to Lewis that again demanded that

Lewis stop harassing her and her family. (Id. at 31)

On May 6, 2015, James and Stacey Rigdon were placed on administrative

leave. (Id. at 68).

On June 11, 20153, Kallhoff recommended that each of the Plaintiffs be non-

renewed and the Board approved the recommendations resulting in the termination

of Plaintiffs. (Doc. 1 at 6).

On August 4, 2015, Cottrell testified in Municipal Court resulting in Ward

being found guilty, a result that Ward appealed to Circuit Court. (Doc. 41-11 at 10-

11).

On January 11, 2016, Cottrell testified in Circuit Court resulting in Ward

being found not guilty. (Id. at 11).

DISCUSSION

A. Summary Judgment Standard

Federal Rule of Civil Procedure 56(a) provides that summary judgment shall

be granted: “if the movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” The trial court’s

3 Defendants dispute the date the recommendation was made and contend the

correct date was May 21, 2015. (Doc. 41 at 2-3; Doc. 41-17 at 50-57). The exact

date is immaterial to the issues addresses herein below.

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function is not “to weigh the evidence and determine the truth of the matter but to

determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 249 (1986). “The mere existence of some evidence to support the

non-moving party is not sufficient for denial of summary judgment; there must be

‘sufficient evidence favoring the nonmoving party for a jury to return a verdict for

that party.’” Bailey v. Allgas, Inc., 284 F.3d 1237, 1243 (11th Cir. 2002) (quoting

Anderson, 477 U.S. at 249). "If the evidence is merely colorable, or is not

significantly probative, summary judgment may be granted." Anderson, at 249-250.

(internal citations omitted).

The basic issue before the court on a motion for summary judgment is

“whether the evidence presents a sufficient disagreement to require submission to a

jury or whether it is so one-sided that one party must prevail as a matter of law.”

See Anderson, 477 U.S. at 251-252. The moving party bears the burden of proving

that no genuine issue of material fact exists. O'Ferrell v. United States, 253 F.3d

1257, 1265 (11th Cir. 2001). In evaluating the argument of the moving party, the

court must view all evidence in the light most favorable to the non-moving party,

and resolve all reasonable doubts about the facts in its favor. Burton v. City of Belle

Glade, 178 F.3d 1175, 1187 (11th Cir. 1999). “If reasonable minds could differ on

the inferences arising from undisputed facts, then a court should deny summary

judgment.” Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th

Cir. 1992) (citing Mercantile Bank & Trust v. Fidelity & Deposit Co., 750 F.2d 838,

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841 (11th Cir. 1985)).

Once the movant satisfies his initial burden under Rule 56(c), the non-moving

party "must make a sufficient showing to establish the existence of each essential

element to that party's case, and on which that party will bear the burden of proof

at trial." Howard v. BP Oil Company, 32 F.3d 520, 524 (11th Cir. 1994)(citing

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Otherwise stated, the non-

movant must “demonstrate that there is indeed a material issue of fact that

precludes summary judgment.” See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608

(11th Cir. 1991). The non-moving party “may not rely merely on allegations or

denials in its own pleading; rather, its response .... must be by affidavits or as

otherwise provided in this rule be set out specific facts showing a genuine issue for

trial.” Vega v. Invsco Group, Ltd., 2011 WL 2533755, *2 (11th Cir. 2011). “A mere

‘scintilla’ of evidence supporting the [non-moving] party’s position will not suffice;

there must be enough of a showing that the jury could reasonably find for that

party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citation omitted).

“[T]he nonmoving party may avail itself of all facts and justifiable inferences in the

record taken as a whole.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th

Cir. 1992). “Where the record taken as a whole could not lead a rational trier of fact

to find for the non-moving party, there is no genuine issue for trial.” Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 at 587 (1986) (internal

quotation and citation omitted).

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B. Count One: SEPA Claim

Defendant asserts that summary judgment is due to be granted as to Count

One of the Complaint stating a cause of action pursuant to the State Employees

Protection Act because Plaintiffs were not state employees. (Doc. 41 at 11). In

response, Plaintiffs stated: “Defendant is entitled to summary judgment on

Plaintiffs’ Count One State Employees Protection Act Claim. Plaintiffs hereby

concede and withdraw their claim contained in Count One of their Complaint with

regards to the State Employees Protection Act.” (Doc. 44 at 5). As such, summary

judgment is granted as to Count One.

C. Count Two: Violation of First Amendment Right to Freedom of

Speech

Plaintiffs contend that the Board and the Superintendent retaliated against

them in that

they terminated their employment for participating and

testifying in the criminal prosecution of another school employee.

Alternatively, and/or additionally, Plaintiffs James Rigdon and Stacey

Rigdon were terminated due to their association with their son and

their son’s filing of charges against another employee of the Board.

Further, for the same reasons, Plaintiffs were retaliated against by

being treated differently, by being observed more strenuously, and by

losing the support of the Board and the Superintendent in their

coaching of System’s athletic teams.

(Doc. 1 at 7-8).

In support of their position, Plaintiffs have pointed to a number of encounters

between themselves and other school administrators, mainly Lewis and Kallhoff,

which occurred either following the incident or following Chandler’s filing of a police

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report. Defendant contends that Plaintiffs’ First Amendment claims are due to be

denied as a matter of law because their actions did not constitute free speech. (Doc.

41 at 14). More specifically, Defendant argues that Plaintiffs’ statements relating

to the Ward incident were made in their official capacities and were not on a matter

of public concern, such that the statements and actions of Plaintiffs are not

protected. (Id. at 13-23).

Although the law is well-established that the state 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 Waycross, 888 F.2d. 1562, 1565 (11th Cir. 2017) citing Rankin v.

McPherson, 483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987). Rather, the First

Amendment protection of a public employee's speech depends on a careful balance

“between the interests of the [employee], 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.

Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563, 568, 88

S.Ct. 1731, 20 L.Ed.2d 811 (1968). To strike this balance, courts employ a four-

factor analysis in assessing First Amendment retaliation claims. Moss v. City of

Pembroke Pines, 782 F.3d 613, 617 (11th Cir. 2015).

At the first stage, the court determines the threshold issue

raised in Pickering, whether the employee's speech may be “fairly

characterized as constituting speech on a matter of public concern.”

Rankin, 483 U.S. at 384, 107 S.Ct. at 2896–97 (quoting Connick v.

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Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983)).

The court examines the content, form, and context of the employee's

speech to determine whether it addresses a matter of public concern.

Rankin, 483 U.S. at 384–85, 107 S.Ct. at 2897. Second, if the speech

addresses a matter of public concern, the court then applies the second

prong of Pickering, the balancing test, weighing the employee's first

amendment interests against “the interest of the state, as an employer,

in promoting the efficiency of the public services it performs through

its employees.” Pickering, 391 U.S. at 568, 88 S.Ct. 1731. Again, the

context and circumstances of the employee's speech must be

considered. Rankin, 483 U.S. at 388, 107 S.Ct. 2898. If the public

employee prevails on the balancing test, the fact-finder determines

whether the employee's speech played a “substantial part” in the

government's decision to demote or discharge the employee. Mt.

Healthy City School District Board of Education v. Doyle, 429 U.S. 274,

97 S.Ct. 568, 50 L.Ed.2d 471 (1977). Fourth, if the employee prevails

by showing that the speech was a substantial motivating factor in the

state's employment decision, the state must prove by a preponderance

of the evidence that “it would have reached the same decision ... even

in the absence of the protected conduct.” Mt. Healthy, 429 U.S. at 286,

97 S.Ct. at 576. This fourth stage has been referred to as a “but for”

test; the employer must show that “its legitimate reason, standing

alone, would have induced it to make the same decision.” Price

Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 1791, 104

L.Ed.2d 268 (1989).

Bryson, 888 F.2d. at 1565. The first two elements are questions of law designed to

determine whether the First Amendment protects the employee's speech. The third

element and affirmative defense are questions of fact designed to determine

whether the adverse employment action was in retaliation for the protected speech.

Battle v. Board of Regents for Georgia, 468 F.3d 755, 760 (11th Cir. 2006) (citation

omitted).

This Court will analyze each of the first two Pickering factors with regard to

the allegedly protected statements of the Rigdons and Cottrell separately.

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1) Ronald Cottrell

Cottrell contends that the facts, taken in a light most favorable to him, show

that he witnessed Ward assault Chandler, that he thought Ward’s behavior was

inappropriate, and that he spoke out about the incident by way of an investigatory

statement, a verbal report to the President of the School Board, and testimony in

Court. (Doc. 44 at 20). Defendant concedes and there is no legal debate that

Cottrell’s court testimony is speech as a citizen on a matter of public concern. (See

Lane v. Franks, ––– U.S. ––––, 134 S.Ct. 2369, 2379, 189 L.Ed.2d 312 (2014); Doc.

41 at 22). Whether Cottrell’s pre-testimony speech is protected, however, is

disputed among the parties and requires analysis. As to those statements,

Defendant argues that Cottrell was speaking in his official capacity and not as a

citizen on an issue of public concern. Plaintiffs argue that Defendant’s

characterization of Cottrell’s statements as being made in his official capacity are

misguided and, therefore, they assert that Cottrell’s speech is protected by the First

Amendment. (Doc. 44 at 20-21).

In order to determine whether Cottrell’s speech is protected, this Court must

discern the purpose of the Cottrell’s speech—that is, whether [he] spoke on behalf of

the public as a citizen, or whether the employee spoke for [him]self as an employee.

Connick, 461 U.S. at 146. The Supreme Court, in Garcetti v. Ceballos, 547 U.S. 410,

126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), declined to provide a “comprehensive

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framework” for deciding this question, but did provide some general guidance.4 The

Court defined speech made pursuant to an employee's job duties as “speech that

owes its existence to a public employee's professional responsibilities,” id. at 421,

126 S.Ct. at 1960, and a product that “the employer itself has commissioned or

created,” id. at 422, 126 S.Ct. at 1960. Factors such as the employee's job

description, whether the speech occurred at the workplace, and whether the speech

concerns the subject matter of the employee's job may be relevant, but are not

dispositive. Id. at 420–21, 424, 126 S.Ct. 1951. Garcetti instructed that “[t]he proper

inquiry is a practical one.” Id. at 424, 126 S.Ct. 1951.

To fall within the realm of the “public concern,” an employee's

speech must “relat[e] to a[ ] matter of political, social, or other concern

to the community.” Connick v. Meyers, 461 U.S. 138, 146, 103 S.Ct.

1684, 1690, 75 L.Ed.2d 708 (1983). To determine whether speech is a

matter of public concern, a court considers “the content, form and

context of a given statement, as revealed by the whole record.” Deremo

v. Watkins, 939 F.2d 908, 910 (11th Cir.1991) (citing Connick, 461 U.S.

at 147–48, 103 S.Ct. at 1690). A court may consider the employee's

attempts to make the concerns public, along with “the employee's

motivation in speaking.” Id. at 911 (citations omitted). “ ‘[T]he mere

fact that the topic of the employee's speech was one in which the public

might or would have had a great interest is of little moment.’ ” Kurtz,

855 F.2d at 727 (quoting Terrell v. University of Tex. Sys. Police, 792

F.2d 1360, 1362 (5th Cir.1986), cert. denied, 479 U.S. 1064, 107 S.Ct.

948, 93 L.Ed.2d 997 (1987)). Rather, it must be determined whether

the purpose of the speech was to raise issues of public concern, on the

one hand, or to further private interest, on the other. See Deremo, 939

F.2d at 912 (employees' request for compensation for remaining silent

about sexual harassment did not constitute a matter of public concern).

Morgan v. Ford, 6 f.3d 750, 754 (11th Cir. 1993).

4 Unlike in this action, the plaintiff in Garcetti admitted that he spoke pursuant to

his official duties. Garcetti, 547 U.S. at 424, 126 S.Ct. 1951.

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The total content of the written statement dated October 27, 2014, given to

Kallhoff, states as follows: “Brent Ward hit Chandler Rigdon three times[.] First on

top of his head, second in the back of his head and third on his cheek with his

forearm.” (Doc. 41-17 at 60). The content of the written statement offers some

insight as to its purpose because it describes Cottrell’s observation of a specific

incident and does not mention any other opinions or concerns. It was also given to

Kallhoff privately and Cottrell made no attempt to bring it to the attention of the

public. The date of the written statement also offers some insight as it was provided

approximately two months after the incident occurred, an amount of time that does

not support a desire to bring the event to the attention of the general public out of

concern for Ward’s misconduct. Lastly, it is undisputed that Cottrell provided the

written statement to Kallhoff, his superior, upon his request and it was not written

by Cottrell on his own initiative. (Doc. 43-12). Considering the content, form, and

context of the written statement it is clear that the same was made as part of

Cottrell’s official duties as part of an investigation of a private matter by the

school’s administration that Cottrell’s statement was not made as a citizen on a

matter of public concern. As such Cottrell’s written statement is not protected.

With regard to his verbal reporting of the incident to Kallhoff, McFall, and

Ham, Cottrell has not provided any facts to establish that the speech was by a

citizen on a matter of public concern. The only facts provided by Cottrell relate to

his meeting with McFall. In that regard, the record indicates that Cottrell drove to

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McFall’s house at some point after the incident occurred and only after Cottrell was

unable to speak with Kallhoff and that Cottrell spoke with McFall about the

incident in McFall’s kitchen. (Doc. 43-1 at 46-49). While at McFall’s house, Cottrell

“told him what happened.” (Id. at 48). The only stated reason for Cottrell’s

conversation with McFall was because he had previously been unable to talk with

Kallhoff, he didn’t want to talk to Ward since the incident involved him, and

because Cottrell respected McFall. (Id. at 46-49). As such, the record reflects that

Cottrell sought to have a private conversation with the single member of the Board

whom he most respected about the subject incident that he witnessed. Cottrell has

not presented any facts that his conversation with McFall was initiated in his

capacity as a private citizen in an attempt to discuss a matter of public concern

versus in his capacity as a teacher to a person up the hierarchal chain of command.

The timing, circumstance, content, or arena in which the statements with

Kallhoff and Ham were made is not a part of the record. As such, it cannot be

determined whether Cottrell was speaking as either an employee or a citizen.

Plaintiffs argue that Defendants have not established that Cottrell was acting in

accordance with his official duties because they have not provided any job

description showing his job duties; however, such a standard is not required. See

Garcetti 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

15

purposes.”). Rather, the initial burden is upon Plaintiff to establish that he

engaged in protected speech and for purposes of summary judgment, Defendant

need only establish that Plaintiffs have not met that burden or that the facts taken

in a light most favorable to Cottrell could in no way result in a jury finding that

Cottrell was speaking as a citizen on a matter of public concern. See Howard, 32

F.3d at 524 (Once the movant satisfies his initial burden under Rule 56(c), the non-

moving party “must make a sufficient showing to establish the existence of each

essential element to that party’s case, and on which that party will bear the burden

of proof at trial”).

In effort to establish that he engaged in protected speech, Cottrell, in

response to the subject motion for summary judgment, submitted an affidavit which

stated, “I reported Brent Ward hitting Chandler Rigdon because, I like any other

member of the community, know that it is wrong for an adult to hit a student.”

(Doc. 43-12 at 3). Even assuming his statements were made as a citizen, however,

Plaintiff must still present facts that the statements were on a matter of public

concern. Plaintiffs make the blanket assertion that “the subject matter - physical

abuse of a student by a public school principal- is a matter of public concern. (Doc.

44 at 20). In support of this position, Cottrell points to several non-binding cases

from outside of the Eleventh Circuit. 5 However, after reviewing each of the cases

5 Specifically, Plaintiffs cite Cioffi v. Averill Park, 444 F.3d 158, 164 (2nd Cir. 2005);

Voigt v. Savell, 70 F.3d 1552, 1562 (9th Cir. 1995); Schultea v. Wood, 27 F.3d 1112,

1119 (5th Circuit 1994); and Meenan v. Harrison, 264 Fed. Appx. 146, 150 (3rd Cir.

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cited to by Plaintiffs, this Court reaches two conclusions (1) none of the cases are

factually similar to the case at hand and (2) the conclusions implying that physical

abuse of student is a matter of public concern were reached not solely by the subject

matter alone, but by the proper analysis of the content, form, and context of the fact

specific circumstances in those cases. As a result, this Court does not find Plaintiffs’

argument compelling. While the subject matter of the speech in this action may be a

matter of public concern the Pickering test requires an analysis of the true purpose

of the speech. In the instant action, even assuming Cottrell was speaking as a

citizen, there are no facts to suggest that Cottrell’s purpose in making these reports

was to raise an issue of public concern as the reports were made verbally to single

individuals (superiors) with no obvious expectation of bringing the matter to public

light. Accordingly, considering the record as a whole in a practical way, Cottrell’s

pre-testimony statements, verbal or written, were not made by a citizen on a matter

of public concern and, therefore, not protected. Cottrell’s court testimony will be

further analyzed herein below.

2) James and Stacey Rigdon

The record reflects that J. Rigdon reported the incident between Ward and

Chandler to Superintendent Kallhoff, Board Members McFall and Ham, and Office

Administrator Jodie McPherson (Doc. 1 at 4; Doc 43-1; Doc. 43-11 at 4). The record

does not contain the details of these reportings. It is also evident that J. Rigdon

2008).

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brought up the incident to Lewis on September 25, 2014 following Lewis’s

reprimanding J. Rigdon for the state of his classroom. (Doc. 41-17 at 12-13) (“I

understand you [W]ard work off intimidation and my son has [a]lready been

slapped and since then you 2 have came by my room so much students have asked

why you guys drop by so much but let me make it clear you guys do not intimidate

me and never will.”) J. Rigdon additionally brought up the incident in an email with

another teacher, Grace Whit, (with Lewis and Ward copied) on October 8, 2015 in

response to that teacher’s email to Lewis regarding a uniform violation given to

Chandler Rigdon. (Doc. 41-17 at 15)(“ Let me also add for the record that YOU were

the main person telling me that I should go to the cops on Brett [sic] [W]ard for

what happened with chandler. Your exact words were if you don’t he will go after

you and chandler, funny how I did not listen and you are the one who are trying to

do what you can do to go after chandler and I.”) The evidence before this Court

indicates that Stacey Rigdon reported the incident to the Alabama State

Department of Education. (Doc. 1 at 4). No details relating to that reporting are a

part of the record. A week after she reported the incident to the Department of

Education, Ms. Rigdon also participated in a meeting with J. Rigdon, Kallhoff, and

the attorneys for the School Board. (Doc. 1 at 4). The record does not contain the

details of that meeting. Subsequently, S. Rigdon also brought up the incident in

emails to Lewis on December 23, 2014, wherein the main topic was her son’s

suspension by Lewis (“I understand you are upset because Chandler took out a

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police report on your friend Brent Ward but I’m gonna ask you to stop bullying and

harassing my child and family.”), and on March 18, 2015, wherein the main topic

was Lewis’s refusal to allow the Rigdons to sell pizza from their pizza business on

school grounds (“yet you promote you[r] friend Brent Ward’s family business. Your

excuse to my husband is ‘he doesn’t work at Chickasaw,’ Are you serious, We know

he does not work in Chickasaw because he couldn’t keep his hands off of children

and keep from harassing a teacher, but you already know this. So you hurt my

family while you promote Brent Ward’s family’s business. This is ABSOLUTELY

astonishing, yet at the same time after you hid the fact that you knew Chandler was

slapped by Mr. Ward it should not be too surprising.”), and on May 6, 2015 where

the main topic was a threatening letter written by a student (“Please STOP

HARRASSING ME and MY FAMILY!!!!!!”) (Doc. 1 at 6; Doc. 41-17 at 26, 28-29, 31).

There is also mention on the record of the possibility that one or both of the Rigdons

may have discussed the incident with a local newspaper, Call News, although the

details of those discussions or the time period in which they were made are not

stated.

Plaintiffs unequivocally state that “the Rigdon’s regularly discussed their son

being hit by Brent Ward and supported their son filing his police report” and that

“their speech was on a matter of public concern” because physical abuse of a student

by a public school principal is a matter of public concern. (Doc. 44 at 20, 22). Like

Cottrell, the Rigdons do not address in detail whether or not they were speaking as

19

citizens, but cite several non-binding cases which tend to support their contention

that the subject of the statements were a matter of public concern.6 To support that

their speech was not privately motivated, J. Rigdon and S. Rigdon have also each

submitted an affidavit that states that they were not speaking out about the

incident to improve their own self-interest. (Doc. 43-10, Affidavit of S. Rigdon: “…I

did not instruct him [Chandler] to file it to gain any leverage related to my

employment”; Doc. 43-11, Aff. of J. Rigdon: same.) Defendant asserts summary

judgment is due to be granted because the Rigdons’ speech did not address a matter

of public concern and it is therefore, not protected.

Again, in order to determine whether the Rigdons’ speech was protected, this

Court must discern the purpose of the speech—that is, whether [they] spoke on

behalf of the public as a citizen, or whether the employee spoke for [his/her]self as

an employee. Connick, 461 U.S. at 146. To determine whether speech is a matter of

public concern, a court considers “the content, form and context of a given

statement, as revealed by the whole record.” Deremo v. Watkins, 939 F.2d 908, 910

(11th Cir.1991) (citing Connick, 461 U.S. at 147–48, 103 S.Ct. at 1690). A court may

consider the employee's attempts to make the concerns public, along with “the

employee's motivation in speaking.” Id. at 911 (citations omitted). “ ‘[T]he mere fact

that the topic of the employee's speech was one in which the public might or would

have had a great interest is of little moment.’ ” Kurtz, 855 F.2d at 727 (quoting

6 See FN 5.

20

Terrell v. University of Tex. Sys. Police, 792 F.2d 1360, 1362 (5th Cir.1986), cert.

denied, 479 U.S. 1064, 107 S.Ct. 948, 93 L.Ed.2d 997 (1987)). Rather, it must be

determined whether the purpose of the speech was to raise issues of public concern,

on the one hand, or to further private interest, on the other. See Deremo, 939 F.2d

at 912.

Plaintiffs’ argument that “Plaintiffs exercised their right to free speech by

talking publicly about the assault on their child” (Doc. 44 at 22) tends to suggest

that any speech made by a citizen related to any matter that may potentially be a

concern of the public is protected. Such a contention is misguided and the correct

analysis requires a review of the purpose for which the speech was made. As to the

verbal statements made by S. Rigdon, i.e. reporting the incident to the Alabama

Department of Education, discussing the incident during a meeting, and generally

discussing the incident with unidentified people, there are no facts from which it

could be determined that her speech was protected because there are no facts in the

record providing details as to the content or context of these statements. At best,

the known facts suggest that S. Rigdon may have been acting as a citizen, but even

so, there is no indication that these statements were made in a public forum, for

non-personal reasons, or with the intent to raise public awareness. As discussed

herein above, once Defendants have shown a lack of material fact, it is Plaintiff’s

burden to establish that she engaged in protected speech. See Howard, 32 F.3d at

524. In that regard, S. Rigdon has urged that the subject matter of her son’s

21

incident - physical abuse of a student by a teacher- is carte blanche a matter of

public concern and has filed an affidavit which indicates her motive was not to

further her own interest. (Doc. 43-10). Such a blanket denial without supporting

evidence does not overcome the lack of factual support that her speech was

protected based on its content, form, and context.

With regard to the statements made by S. Rigdon in her emails to Lewis, the

content, form, and context of those statements do not support that they were made

by a citizen on a matter of public concern. Rather, the emails are clearly written to

one individual, her superior, in a private manner and in response to other work-

related incidents involving her or her husband. (Doc. 41-17 at 26-27,28-29, 31). The

comments were also made after Ward was placed on administrative leave and had

resigned and, therefore, when Ward was no longer on campus or having any contact

with students. Further, while personal motive may not be wholly dispositive of

determining the purpose of speech, a plain reading of the emails show that S.

Rigdon was motivated, at least in part, because the child involved was her son.

Lastly, the emails address multiple school-related issues for which S. Rigdon would

not be involved or have knowledge of but for her position as an employee and only

mention the incident as an aside to other matters. For all off these reasons, taken

as a whole the facts taken in a light most favorable to her, do not show that S.

Rigdon’s speech was protected.

J. Rigdon’s speech suffers the same shortcomings as S. Rigdon’s speech.

22

Again, in response to Defendant’s assertion that there is no dispute of material fact

that J. Rigdon’s speech was protected, J. Rigdon has failed to provide any facts

which would establish otherwise. Like, S. Rigdon’s verbal statements, the content

and context of J. Rigdon’s verbal statements are wholly unknown. The record

provides no details as to on what dates the statements were made or the content of

the statements from which the proper analysis would result in a conclusion that

those statements, together or separate, are protected as a matter of law. Further,

those statements which have been memorialized in emails between J. Rigdon and

Lewis/Kallhoff show that the incident was brought up not as a topic issue, but as an

aside to other matters being discussed based on J. Rigdon’s role as a teacher,

specifically in response to his being reprimanded by an administrator or having a

conflict with another co-worker. (See Docs. 41-17 at 12, 15, and 16). Those

statements were also made to only one individual, a superior, in private emails and

some after Ward had been placed on administrative leave and was no longer on the

school’s premises. As such, the statements are not indicative of those made by a

citizen, rather than a public employee, or for the purpose of raising public

awareness, rather than to express a personal grievance. For these reasons, the

record as a whole does not support that J. Rigdon’s speech was protected as a

matter of law.

a. The Second Pickering Factor

There being no dispute that Cottrell’s court testimony was protected and

23

even assuming arguendo that the Rigdons’ speech was protected, the Pickering

balance requires determining whether the public employee's interest in exercising a

constitutional right outweighs the employer's interest in efficiency and the effective

functioning of the office. Pickering, 391 U.S. at 568, 88 S.Ct. at 1734–35; Rankin,

483 U.S. at 388, 107 S.Ct. at 2899. The Supreme Court has identified a number of

factors for courts to consider when performing the balance: (1) whether the

employee's exercising rights “impairs discipline by superiors or harmony among co-

workers”; (2) whether the employee's exercising rights “has a detrimental impact on

close working relationships for which personal loyalty and confidence are

necessary”; and (3) whether the employee's exercising rights “impedes the

performance of the [employee's] duties or interferes with the regular operation of

the enterprise.” Rankin, 483 U.S. at 388, 107 S.Ct. at 2899 (citation omitted).

Defendant contends that both Cottrell’s and the Rigdons’ speech was

disruptive to the efficient functioning of the school and therefore, even if it was

protected, their claims should fail as a matter of law because the Board’s interest in

operating the school efficiently outweighs Plaintiffs’ First Amendment rights. (Doc.

41 at 24-28). In support of its position, Defendant cites numerous occasions in

which Cottrell, J. Rigdon, and S. Rigdon, individually interrupted the efficient

functioning of the school by their rhetoric or behavior.7 (Id.) In response, Plaintiffs

7 Most of the instances have been included in the “Facts” section herein at pp. 3-5.

There are however, instances that are not described in the “Facts” section of this

opinion because they are not related to the incident and are only relevant to the

24

argue that the Board has intertwined the third and fourth factors of the Pickering

analysis with the second factor. (Doc. 44 at 22). In that regard, Plaintiffs point out

that “[t]he Board is not actually claiming that there is something sufficiently

disruptive about the actual speech in question such that the Board would be

justified in firing Plaintiffs for it.” (Id.) For the most part, this Court agrees with

Plaintiffs. Of the numerous instances brought forth by the Board showing the

disruptive nature of the Rigdon’s behavior, the only instances wherein Plaintiffs

potentially engaged in protected speech are those occasions where the incident was

mentioned in email correspondences (discussed previously herein). Thus, those are

the only instances in which the second Pickering analysis should be applied. While

the other examples of the Rigdons’ behavior may be indicative of the Board’s reason

for non-renewing Plaintiffs, they offer no insight as to whether the Board’s interest

in maintaining an efficient workplace outweigh Plaintiffs’ interest in the protected

speech.

With regard to Cottrell, none of the disruptive instances referred to by

Defendant relate to the incident or the protected court testimony, a point Defendant

acknowledges. (Doc. 45 at 11). Accordingly, the interests of the Board in regulating

Cottrell’s speech does not outweigh Cottrell’s First Amendment Rights. With regard

to the conduct wherein the Rigdons’ discussed the incident, they assert that “with

the facts taken in a light most favorable to them, the worst that could be said is that

fourth Pickering factor, which this Court does not need to address.

25

they were frustrated both by the initial incident and by their supervisors’ seeming

desire to pretend that it never happened. Whether their frustration in that regard

was expressed in ways that were actually disruptive justifying termination is, at

most a question requiring resolution of disputed facts.”8 (Doc. 44 at 23). Plaintiffs’

argument is not compelling. The second Pickering analysis is a question of law to

be decided by this Court and of the instances involving the allegedly protected

speech by Plaintiffs, Defendant has sufficiently established that the Rigdons’ speech

was disruptive to the efficient functioning of the school. Specifically, the email

correspondences wherein J. Rigdon mentions the incident (discussed herein above)

show a pattern of hostility, insubordination, and lack of professionalism all of which

would have affected his ability to perform his duties as an employee. The same is

apparent from the email correspondences from S. Rigdon (discussed herein above)

wherein her rhetoric was accusatory and insubordinate with her superior. The

emails additionally raised conflict with other staff members. (Doc. 41-17 at 14-15).

Notably, the Rigdons have not responded or addressed in any manner the Board’s

position as to the second Pickering factor as it relates to the speech which the

Rigdons allege was protected. Nevertheless, the record is clear that the Rigdons’

speech relating to the incident was, in fact, disruptive to the functioning of the

school because it interfered with the relationships with their co-workers and

8 The question is not whether the speech justified termination. Rather, the question

is whether the Plaintiff’s interest in speaking outweighs the Board’s interest in

promoting the services it performs.

26

superiors and hindered the administration’s ability to trust them as employees. As

a result, this Court finds that even if the Rigdons’ speech was protected –which it is

not- their interest in said speech is outweighed by the Board’s interest.

Accordingly, for the reasons stated herein above, Defendant’s motion for

Summary Judgment as to James and Stacey Rigdons’ freedom of speech claim is

granted. The analysis will continue with regard to Cottrell.

b. The Third Pickering Factor

As for Cottrell’s protected speech, his trial testimony, the third Pickering

factor requires this Court to determine whether Cottrell has presented evidence of a

material dispute of fact that the protected speech was a motivating factor in

Cottrell’s non-renewal such that summary judgement would not be appropriate.

The Eleventh Circuit has stated that “[i]t is neither possible nor desirable to fashion

a single standard for determining when an employee has met her initial burden of

demonstrating that a retaliatory intent was a ‘substantial’ or ‘motivating factor’

behind a government employment decision.” Beckwith v. City of Daytona Beach

Shores, 58 F.3d 1554, 1564 (11th Cir.1995). “Rather, we examine the record as a

whole to ascertain whether [Plaintiff] presented sufficient evidence for a reasonable

jury to conclude that his protected speech was a ‘substantial’ motivating factor in

the decision to terminate him.” Stanley v. City of Dalton, Ga,. 219 F.3d 1280, 1291

(11th Cir. 2000) citing to Beckwith, 58 F.3d at 1564. The Eleventh Circuit, however,

has also “identified several factors that are relevant in determining whether

27

protected speech was a “substantial” motivating factor in an adverse employment

decision: (1) whether temporal proximity exists between the employment action and

the protected activity; (2) whether any reasons for the employment action are

pretextual; (3) whether any comments made, or actions taken, by the employer

indicate that the employment action was related to the protected speech; (4)

whether the asserted reasons for the action vary; and (5) any circumstantial

evidence of causation.” Potter v. City of Miami, 2015 WL 11233079 *5 (S.D. Florida

June 5, 2015) (citing to Stanley, 219 F.3d at 1291 n.20 (11th Cir. 2000) (quotation

marks omitted).

Cottrell asserts that his speech was a motivating factor in his termination.

In support of his position, Cottrell points out that (1) the majority of the Board was

aware of the incident because they had heard of it either from the press, the

community, or directly from Kallhoff, (2) the incident was widely talked about, (3)

Kallhoff did not want bad “PR” for the school system and wanted to control any

mention of the school system in the press because bad press reflected badly on him

and the Board, and (4) Kallhoff and other administrators worked to minimize any

negative impact the incident had on the school system and acted to keep Cottrell

from testifying as a witness and that once charges were filed and Ward resigned,

Kallhoff, Ruffin, and Lewis continued to harass Plaintiffs making it clear they

wanted them “gone from Chickasaw” until their eventual recommendations for

termination from Kallhoff to the Board. (Doc. 44 at 23) (internal citations omitted).

28

Despite Plaintiff’s burden being low at this stage, Cottrell has not presented

any evidence that would create an issue of material fact that his protected speech

was a substantial factor in his ultimate termination. Even considering the speech

which this Court has previously found to be unprotected, i.e. the verbal and written

statement prior to Cottrell’s testimony, Plaintiff has not presented facts that the

speech and the non-renewal are causally linked. Specifically, Cottrell has not

pointed to any comments made by the Board or Kallhoff that suggest his speech was

a factor, much less a substantial one, in his termination. There is no evidence that

the reasons for his non-renewal varied. Moreover, it is undisputed that the

protected trial testimony had not yet occurred when Cottrell was non-renewed by

the Board and the record is devoid of any comments suggesting Cottrell should not

testify or may be looked on with disfavor if he testified in the future. Further,

during his deposition testimony in this action, Cottrell indicated that (1) he did not

know of any instance when a Board member influenced the alleged harassment or

disparate treatment, (2) he had no knowledge of a Board member ever telling an

employee to discriminate or harass him for any reason, and (3) he had no knowledge

of a Board member ever saying that he would be fired for testifying in the Brent

Ward case. (Doc. 41-10 at 6). Cottrell has identified a number of encounters with

Kallhoff and/or Lewis which he believes were pretextual in nature (Doc. 44 at 24).

Namely, in an effort to create a question of fact, Cottrell disputes a number of

allegedly unprofessional instances that were on a list drafted by Kallhoff entitled

29

“Unprofessional Behavior”. (Doc. 41-17 at 10). However, while Cottrell disputes

whether the actions listed were unprofessional, he does not provide any facts that

they did not occur. For example, Cottrell states one listed item was an unsanctioned

football practice witnessed but not stopped by Lewis and Athletic Director Ruffin.

(Doc. 44 at 24). While Cottrell disputes whether the incident was worthy of

reprimand, he does not dispute that there was, in fact, an unsanctioned football

practice. Another noted incident involved Cottrell having helmets reconditioned

and Cottrell disputes it was unprofessional because he is required as a coach to

have the helmets reconditioned. (Doc. 44 at 17-18). However, he does not dispute

that he had to follow proper accounting procedures to have them reconditioned, the

reason that he was reprimanded on that occasion. (Doc. 41-17 at 5). While Cottrell

states that “all of the allegations in Kallhoff’s document are disputed” he has not

shown that they were pretextual based on his protected court testimony which had

not yet occurred. As a result, Cottrell has not presented evidence of a disputed

material fact to show that his protected speech was a substantial motivating factor

in his non-renewal and summary judgement is due to be granted9.

D. Count Two: Violation of First Amendment Right to Freedom of

Association

9 Plaintiffs additionally assert they Cottrell need not establish retaliatory

motivation on the part of the Board because entity liability in this action is

established by the retaliatory actions of the superintendent, Kallhoff. Because this

argument pertains to all Plaintiffs equally, this Court will address this argument

herein below as to all Plaintiffs at pp. 35-39.

30

The Rigdons alternatively argue that they need not establish that their

speech was protected because they have asserted a freedom of association claim and

“freedom of association claims do not require a showing of public concern.” (Doc. 44

at 23 citing to Bouldin v. Troy City Board of Ed., No. 2:13-cv-898-JA-GMB, Doc. 70,

P.19 (M.D. Ala. July 19, 2016)(“In the Eleventh Circuit, ‘public concern’ is not part

of the analysis of a freedom of association claim, regardless of whether that claim is

an expressive association claim or an intimate association claim”). Defendant

contends that a freedom of association claim fails for the same reasons that

Plaintiffs’ freedom of speech claim fails because Garcetti still applies to freedom of

association claims and therefore, it still requires analysis pursuant to Pickering.

(Doc. 45 at 2). Neither party is wrong.

A right of free association is implicit in the First Amendment. Roberts v. U.S.

Jaycees, 468 U.S. 609, 622 (1984). There are two types of protected association:

association involving “intimate human relationships” and association to engage “in

those activities protected by the First Amendment.” Id. at 617–18. Intimate

association concerns those relationships inherent to a family structure. See McCabe

v. Sharrett, 12 F.3d 1558, 1563 (11th Cir.1994) (stating that “[a]t a minimum, the

right of intimate association encompasses the personal relationships that attend the

creation and sustenance of a family.”). Expressive association, on the other hand,

relates to protected rights such as “speech, assembly, petition for redress of

grievances, and the exercise of religion.” Id.

31

James and Stacey Rigdon have argued they have both an intimate and

expressive association claim. The former being based on their relationship with

their son and the latter being based on the support of their son in pursuing charges

against Ward. (Doc. 44 at 23). In support of their position, Plaintiffs rely solely on

Bouldin wherein the Middle District of Alabama found that freedom of association

claims do not require a showing of public concern and state “[t]he Board has made

no argument to show that termination because of their association would be

constitutionally permissible.” (Doc. 44 at 23). Defendants correctly point out,

however, that in reaching its conclusion the District Court in Bouldin cited

D’Angelo v. School Bd. Of Polk County, FL, 497 F.3d 1203, 1212 (11th Circuit 2007).

The pertinent language in D’Angelo states as follows:

We have long held that, unlike speech or petitions by public employees,

associational activity by public employees need not be on matters of

public concern to be protected under the First Amendment. See, e.g.,

Hatcher v. Bd. of Pub. Educ. & Orphanage, 809 F.2d 1546, 1558 (11th

Cir. 1987); Cook v. Gwinnett County Sch. Dist., 414 F.3d 1313, 1320

(11th Cir. 2005) (citing Hatcher). But see, e.g., Cobb v. Pozzi, 363 F.3d

89, 102 (2d Cir. 2004) (associational conduct by public employee must

touch on matter of public concern); Klug v. Chi. Sch. Reform Bd. of

Trs., 197 F.3d 853, 857 (7th Cir.1999) (same); Boals v. Gray, 775 F.2d

686, 692 (6th Cir. 1985) (same). We explained in Hatcher that

“application of a requirement that associational activity relate to a

matter of public concern in order to be constitutionally protected would

overturn Supreme Court and Eleventh Circuit jurisprudence,” such as

NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488

(1958). Hatcher, 809 F.2d at 1558.

The question is whether the holding in Garcetti

nevertheless applies to public employees who argue that they

were terminated for exercise of their right to free association

and requires those public employees to have engaged in

associational activity as citizens to be protected under the

32

First Amendment. We conclude that it does.

D’Angelo, 497 F.3d at 1212 (emphasis added). Accordingly, Plaintiffs are correct

that [t]he Eleventh Circuit does not require Plaintiffs to demonstrate that their

claimed freedom of association pertains to matters of public concern.” Thomas v.

McKee, 205 F.supp.2d 1275, 1284 (M.D. Alabama February 11, 2002) citing to

Hatcher, supra at 1558. However, the inquiry does not simply end. Defendant is

also correct that the freedom of association claim must still be analyzed under the

proper test and this Court agrees that based on the factual assertions in this case,

the Pickering analysis is the proper test. See Cook v. Gwinnett, 414 F.3d 1313, 1318

(11th Cir. 2005)(“[i]n analyzing free association claims in this context, we do not

apply the public concern portion of the Pickering analysis. (citation omitted). We do,

however, apply the Pickering balancing test. (citation omitted); See also Shahar v.

Bowers, 114 F.3d 1097, 1103 (11th Cir. 1997) (en banc) (applying Pickering in the

intimate-association context); Starling v. Bd. of Cnty. Comm'rs, 602 F.3d 1257, 1260

(11th Cir. 2010) (applying the Pickering balance to a claim that intimate association

right was burdened). Therefore, in analyzing whether a government employee's

freedom of association rights have been infringed involves a three-part test.10 Green

10 Defendant’s argument that the application of the Pickering analysis defeats the

Rigdons’ freedom of association claim misses the mark in part because Defendant

still focuses on whether the associative action was on a matter of public concern, a

factor which is not required in freedom of associations claims. While Defendant

argues that the Rigdons’ freedom of association claim still fails because they were

not acting as citizens the Court did not determine that none of the Rigdons’

statements were made in their capacity as citizens because it was clear that even if

33

v. City of Montgomery, 792 F.Supp. 1238, 1252 (M.D. Ala. 1992). The first step is for

the court to balance an employer's interest in maintaining an efficient workplace

against the weight accorded to the employee's First Amendment rights. Pickering

391 U.S. at 568. If the First Amendment interest is of sufficient importance,

Plaintiffs then have the burden of showing that the protected activity “was a

substantial motivating factor in the” decision not to promote them. Morgan v. Ford,

6 F.3d 750, 754 (11th Cir. 1993) (internal quotations omitted). If Plaintiffs

demonstrate this, the burden shifts to Defendants to prove by a preponderance of

the evidence that they would not have promoted Plaintiffs, even in the absence of

the protected conduct.” Mt. Healthy, 429 U.S. at 287. In the instant action, there is

no dispute that James and Stacey Rigdon are the parents of Chandler Rigdon or

that a parent-child relationship is intimate association. There is also no dispute

that Chandler Rigdon filed a police report against Ward and that the Rigdons were

both ultimately non-renewed by the Board. There is no argument that the state’s

interest in maintaining an efficient workplace outweighs the constitutional right of

a parent to associate with their child. Therefore, the only question is whether

Plaintiffs have established a question of material fact exists that their association

with their son was a “substantial motivating factor” in the decision to non-renew

them.

they were acting as citizens they were not speaking on a matter of public concern.

Thus, the Court’s conclusion in Section C(2), does not automatically foreclose the

Rigdons’ freedom of association claim and the Court will continue with the relevant

Pickering analysis on this claim.

34

Defendant argues that in the instant case the evidence is undisputed that the

both the Rigdons’ speech11 and their association was not a substantial motivating

factor in their non-renewal. Defendant makes this argument because Plaintiffs did

not file this lawsuit against any of the individuals who Plaintiffs have alleged

harassed or retaliated against them, namely Lewis, Kallhoff, or Ruffin. Rather,

Defendant posits that Plaintiffs have sued only the Board and there is no evidence

whatsoever that the Board based its decision to non-renew the Rigdons on

retaliatory motives.12

Plaintiffs do not dispute that the Board is the only defendant or that there is

no evidence of a policy or custom at issue in this action. There is, likewise, no

evidence that the Board, itself, acted with retaliatory motivation. In fact, all three

board members who voted in favor of non-renewal have been deposed and testified

as to their reasons for voting the way they did after the Rigdons were recommended

for non-renewal by Kallhoff, none of those reasons included retaliatory motivation.

(See Doc. 41-6 at 51-58; Doc. 41-7 at 52-54; Doc. 41-8 at 45, 47-48, 51-52). Lastly,

the Rigdons’ discovery responses do not offer any evidence that the Board acted

11 This Court has already determined that the Rigdon’s speech is not protected and

that their interest in the relevant speech does not outweigh that of the interests of

the Board. Nevertheless, if this Court had concluded that their speech was

protected, this third Pickering analysis would apply both to the Rigdons’ freedom of

speech and freedom of association claims under the First Amendment.

12 The fact that the superintendent is not named as a party in his official capacity is

not determinative of whether the Board can be held liable for his actions. In fact,

this action was previously dismissed against a different superintendent in her

official capacity because such an action was redundant of an action against the

Board. (See Doc. 19 at 15).

35

with retaliatory motivation. (Doc. 41-12 at 4-8; Doc. 41-13 at 3-7). Nevertheless,

Plaintiffs argue that it is not necessary for the Board or its members to exercise

retaliatory motivation because “the Superintendent is enough to create liability on

the facts of this case”. (Doc. 44 at 18).13 More specifically, Plaintiffs assert that

entity liability can arise from those who have the authority to make final policy on

behalf of the entity. (Doc. 44at24). In that regard, Plaintiffs posit that the

superintendent and the Board are “co-equal” in terms of authority because the

Board cannot act without the recommendation of the superintendent and therefore,

“neither can create a policy without the other’s approval.” (Id.) Plaintiffs further

argue that “entity liability can arise, as well, from even a single action by an officer

with final policy making authority over the type of decision in question.” (Id. citing

to Pembaur v. Cincinnati, 475 U.S. 469, 480-82 (1986).) Plaintiffs then argue that

because terminating a school board employee requires both a recommendation by

the superintendent and a vote by the Board, therefore, making the superintendent a

final policymaker that could bind liability. (Doc. 44 at 24).

Liability can attach to the Board only if the alleged retaliation by its

employee was caused by an “official policy” or “custom” of the Board. See Monell v.

Dep't of Social Serv., 436 U.S. 658, 690-92 (1978). Otherwise, “[m]unicipal liability

attaches only where the decisionmaker possesses final authority to establish

13 Plaintiffs assert this position with regard to both the Rigdons and Cottrell.

Therefore, despite this Court’s analysis in Section C(1)(b), this analysis will also be

considered with regard to Cottrell.

36

municipal policy with respect to the action ordered. Pembaur v. City of Cincinnati,

475 U.S. 469, 481, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (majority opinion)

(footnote omitted). The Eleventh Circuit “has interpreted Monell 's policy or custom

requirement to preclude § 1983 municipal liability for a subordinate official's

decisions when the final policymaker delegates decisionmaking discretion to the

subordinate, but retains the power to review the exercise of that discretion.” Scala

v. City of Winter Park, 116 F.3d 1396, 1399 (11th Cir. 1997). Thus, “[f]inal

policymaking authority over a particular subject area does not vest in an official

whose decisions in the area are subject to meaningful administrative review.” Id. at

1401.

Plaintiffs have not shown that final policy making authority vest in the

superintendent with regard to terminations of board employees because it is

apparent that the superintendent’s recommendation, as the decisionmaker, is

subject to meaningful administrative review. See Ala. Code. § 16-24C.

Plaintiffs alternatively contend that because three of the five board members

did not question the superintendent’s recommendations to non-renew Plaintiffs,

that the Board essentially rubber-stamped Kallhoff’s recommendation which

effectively made him the final policymaker. In support of their position, the

Rigdons point to the deposition testimony of Broadhead, Grizzle, and McFall, the

three board members who voted in support of non-renewal, to show that they did

not question Kallhoff’s motive for his recommendation in any way because they

37

believed it was the job of the superintendent to run the school, not the Board. (See

Doc. 44 at 26). For legal support, Plaintiffs rely heavily on Maschmeier v. Scott, 269

Fed. Appx. 941 (11th Cir. 2008), which Plaintiffs parenthetically describe as

“discussing the possibility of establishing entity liability under § 1983 by proving

that governing body merely rubber-stamps the employment decisions of another

official”. (Doc. 44 at 25). Relying on Maschmeier, Plaintiffs assert that “[a] finder of

fact could therefore conclude that a majority of this Board, as a matter of

philosophy, custom, and practice, engaged in no meaningful review [… and] [a]

finder of fact could readily find that this amount[s] to a delegation of final authority,

to a lack of meaningful review, and to a rubber-stamping process that yields entity

liability based on the acts and motivation of the Superintendent.” (Doc. 44 at 26).

The entire text referred to by Plaintiffs in Maschmeier states as follows:

A municipal official is not a final policymaker when his or her decisions

are subject to meaningful administrative review. Scala, 116 F.3d at

1401. Automatic review of the official's decisions is not required for the

review to be meaningful; an opportunity for meaningful review is

sufficient. Id. at 1402. When a council or board has the power to review

and reverse a municipal official's decision, final policymaking authority

does not vest in the official. See Id. (holding that a city manager and

his subordinate were not final policymakers in regard to plaintiff's

termination because a civil service board had the authority to review

the termination); Quinn v. Monroe County, 330 F.3d 1320, 1326 (11th

Cir.2003) (finding that the career services council's power to review the

county administrator's termination decision deprives the county

administrator of final policymaking authority); Manor Healthcare

Corp. v. Lomelo, 929 F.2d 633, 637 (11th Cir.1991) (holding that the

city council's ability to override the mayor's veto in regard to zoning

issues meant that the mayor was not the final policymaker for zoning

decisions). The plaintiff can try to demonstrate that the board's review

is not meaningful, such that the official should be considered the final

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policymaker. See Quinn, 330 F.3d at 1326; Scala, 116 F.3d at 1402. To

succeed in such an argument, the plaintiff would need to show

that the board has defective procedures, merely “rubber

stamps” the official's decisions, or ratified the official's

decision and improper motive. See Quinn, 330 F.3d at 1326;

Scala, 116 F.3d at 1402. However, the existence of a reviewing

board has generally been sufficient to find that the official in

question did not have final policymaking authority. See, e.g.,

Quinn, 330 F.3d at 1326; Morro, 117 F.3d at 514; Scala, 116 F.3d at

1402-03.

Maschmeier at 944 (emphasis added). Plaintiffs have not shown that the

superintendent was the final policymaker in the instant action because it is

undisputed that the recommendation of the superintendent must be approved via a

majority vote of the Board before becoming final. Moreover, there are no facts to

suggest that the Board terminated Plaintiffs without review or that the review was

somehow deficient or only a matter or “rubber-stamping” by the Board. Rather, the

record reflects that the recommendations of Kallhoff with regard to Plaintiffs were

narrowly approved by the Board in a three to two vote. As such, Plaintiffs’

argument that there was no meaningful review is not compelling. While Plaintiffs

argue that every single one of the board members did not review Kallhoff’s

recommendation in this case, it is clear that they had an opportunity to review the

recommendations and, in fact, two of the members both reviewed and rejected

Kallhoff’s recommendation. As a result, in this action, Plaintiffs have not shown

that Kallhoff was a final policy maker by way of the Board simply rubber-stamping

his recommendations, such that liability exists without evidence of retaliatory

motivation caused by an “official policy” or “custom” of the Board.

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Because Plaintiffs’ effort to impose liability on the Board by way of Kallhoff’s

actions is not compelling, there remains no evidence from which it could be

determined that Plaintiffs’ speech or association was a substantial factor in their

being non-renewed. Accordingly, the Rigdons’ freedom of association claim fails.

Further because this Court has determined that all of Plaintiffs’ claims fail

based on the analysis set forth herein above, it is unnecessary for the Court to

determine whether a question of material fact exists on Defendant’s position that it

would have terminated Plaintiffs despite their allegedly protected behavior, step

four of the Pickering analysis.

CONCLUSION

For the reasons stated above, Defendant’s motion for summary judgment is

GRANTED.

DONE and ORDERED this 7th day of February 2018.

/s/ Callie V. S. Granade

SENIOR UNITED STATES DISTRICT JUDGE

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