Wright

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

YOLANDA S. WRIGHT, )

)

Plaintiff, )

)

v. ) Case No. 2:24-cv-93-GMB

)

FAIRFIELD BOARD OF )

EDUCATION, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Yolanda S. Wright brings claims against her employer, the Fairfield

Board of Education and the Fairfield City School District (collectively, “the

Board”),1 for retaliation in violation of the False Claims Act, 31 U.S.C. § 3730(h)(1),

and for a violation of her rights under the First Amendment to the United States

Constitution. Doc. 6 at 13–15. The parties consented to the jurisdiction of a United

States Magistrate Judge pursuant to 28 U.S.C. § 636(c). Doc. 19. Two motions are

pending before the court. The Board has filed a motion for summary judgment.

Doc. 38. Wright filed a brief and evidence in opposition to the motion (Doc. 43),

and the Board then moved to strike portions of Wright’s evidentiary materials.

1 The Board clarified in its answer that the Fairfield Board of Education and the Fairfield City

School District are “one in the same as the Board operates the school district.” Doc. 11 at 1.

Neither party moved to dismiss the Fairfield City School District even though both have operated

as if the Fairfield Board of Education is the sole defendant. See Doc. 43 at 1 (listing the Board as

the only defendant in the style and body of the response).

Doc. 46. Both motions are fully briefed (Docs. 39, 43, 46, 47, 51 & 52) and ripe

for decision.

For the reasons that follow, the motion to strike (Doc. 46) is due to be denied

and the motion for summary judgment (Doc. 38) is due to be granted.

I. MOTION TO STRIKE

In her opposition to summary judgment, Wright relies on (1) an affidavit from

a former interim member of the Board, Eric Major; and (2) a declaration she prepared

after her deposition. See Docs. 43-1 & 43-2. The Board moves to strike portions of

both documents. Doc. 46 at 7–13.

A. The Major Affidavit

When Wright filed suit, she attached Major’s affidavit to her pro se complaint.

Doc. 1-1 at 5. Two months later, she amended her complaint at the court’s direction

but did not attach the affidavit to the amended pleading. Doc. 6. She nevertheless

relies on the affidavit in her response to the motion for summary judgment. See Doc.

43-1 at 7–8 (citing Doc. 1-1 at 5).

The Board argues that the court should strike the affidavit either in whole or

in part because (1) Wright did not incorporate it into her amended complaint and so

it is not properly before the court, and (2) it contains privileged material. Doc. 46 at

7–10; Doc. 52 at 2–6. While the affidavit and its contents have been the source of

an evidentiary dispute in this case (see Doc. 31), the court rejects the Board’s two

2

arguments for striking it.

First, the Board contends that Wright cannot rely on the Major Affidavit in

her opposition because it was not attached to her amended complaint. See Doc. 46

at 7 n.7; Doc. 52 at 2–3. Under Federal Rule of Civil Procedure 56, a party opposing

summary judgment may rely on an affidavit that is based on personal knowledge,

sets out facts that would be admissible in evidence, and shows that the affiant is

competent to testify on the matters stated. Fed. R. Civ. P. 56(c)(4). It is true that an

amended complaint supersedes an original complaint and its attached exhibits such

that “the original pleading is abandoned by the amendment, and is no longer a part

of the pleader’s averments against his adversary,” Dresdner Bank AG v. M/V

Olympia Voyager, 463 F.3d 1210, 1215 (11th Cir. 2006) (quoting Proctor & Gamble

Def. Corp. v. Bean, 146 F.2d 598, 601 n.7 (5th Cir. 1945)), but Rule 56 does not

require the party to incorporate a document into her operative pleading for it have

evidentiary value at summary judgment.2 The court will not strike the affidavit for

this reason.3

The Board alternatively argues that the court should strike portions of the

2 For that matter, “nothing in the Rule suggests that the affidavits or declarations themselves have

to have been produced in discovery in order to be considered in support of or in opposition to a

motion for summary judgment.” Benoit v. City of Lake City, Fla., 343 F. Supp. 3d 1219, 1224

(M.D. Fla. 2018).

3 The Board also complains that Wright did not take the additional step of attaching the affidavit

to her opposition brief. See Doc. 52 at 3 (noting that Wright cites to the inoperative complaint in

her brief). This technicality is not a basis for excluding the affidavit.

3

affidavit protected by the attorney-client privilege. Doc. 46 at 7–10; Doc. 52 at 3–6.

Particularly, it claims privilege over the parts of the affidavit that (1) mention

Major’s motion to table the vote on Wright’s nonrenewal after her presentation

during the executive session, and (2) the Board’s consideration of that motion.

See Doc. 46 at 7–9; Doc. 52 at 3–6. As the party invoking the privilege, the Board

has the burden of proving its applicability. Bogle v. McClure, 332 F.3d 1347, 1358

(11th Cir. 2003).

The court previously determined that the attorney-client privilege attaches to

the executive session after Wright left. Doc. 31 at 6. However, the court did not

make factual findings about the precise timing of Wright’s departure. See Doc. 31 at

10 n.3; Doc. 46 at 8. In its motion to strike, the Board does not point to any evidence

that resolves the question whether Wright was in the room during Major’s motion or

the discussion that followed. See Doc. 46 at 8–10; Doc. 52 at 3–5.4 For this reason,

the Board has not met its burden to prove that the attorney client privilege covers the

statements in Major’s affidavit.

B. Wright’s Post-Deposition Declaration

The Board also moves to strike portions of the declaration Wright prepared

4 Because the motion is not reflected in the minutes of the open session, the Board speculates that

it “must have been during the privilege portion of the executive session.” Doc. 46 at 9. Knowing

that Major made the motion during the executive session, however, does not necessarily mean it

was privileged without also knowing when Wright left the room.

4

after her deposition. Doc. 46 at 10–12; see Doc. 43-2. Under the “sham affidavit”

rule, a party who “‘has given clear answers to unambiguous questions which negate

the existence of any genuine issue of material fact . . . cannot thereafter create such

an issue with an affidavit that merely contradicts, without explanation, previously

given clear testimony.’” Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151, 1161 (11th

Cir. 2012) (quoting Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656,

657 (11th Cir. 1984)). The court may exclude a plaintiff’s affidavit or declaration

when it “completely contradicts her deposition” and there is “no way that [the]

statements could be read together.” Id.; see Furcron v. Mail Ctrs. Plus, LLC, 843

F.3d 1295, 1306–07 (11th Cir. 2016). The rule is “applied sparingly because of the

harsh effect it may have on a party’s case,” Latimer v. Roaring Toyz, Inc., 601 F.3d

1224, 1237 (11th Cir. 2010) (citation omitted), and courts “must be careful to

distinguish ‘between discrepancies which create transparent shams and

discrepancies which create an issue of credibility or go to the weight of the

evidence.’” Rodriguez v. Jones Boat Yard, Inc., 435 F. App’x 885, 887–88 (11th Cir.

2011) (quoting Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir. 1986)).

The Board argues that Wright’s deposition and declaration present material

inconsistencies about an April 2023 meeting among Thompson, Broadnax,

Aikerson, and the Elementary and Secondary School Emergency Relief (“ESSER”)

processors. See Doc. 46 at 10–13; Doc. 52 at 6–9. In her declaration, Wright claims

5

she conducted a review of ESSER spending with Aikerson in March and April and

they later briefed Thompson and Broadnax “on the discrepancies [they]

uncovered.”5 Doc. 43-2 at 1. During this meeting, Aikerson mentioned that ESSER

spending should comply with the grant’s regulations. Doc. 43-2 at 1.

This declaration does not directly contradict Wright’s testimony about the

same meeting. See Doc. 40-1 at 79–80. Wright testified in her deposition that “a lot

of attention was being placed on ESSER” around this time, so Thompson asked

questions about ESSER funding and budgets during the meeting. Doc. 40-1 at 79–

80. Much like her declaration, Wright’s deposition testimony did not specify what

was said during the meeting or identify Thompson’s questions or her answers.

Compare Doc. 40-1 at 79–80, with Doc. 43-2 at 1. For that reason, Wright’s

declaration and deposition can be harmonized such that the declaration does not fall

within the scope of the sham affidavit rule.

II. MOTION FOR SUMMARY JUDGMENT

A. Standard of Review

Summary judgment is appropriate “if the movant shows that there is no

5 The Board emphasizes the preceding paragraph of the declaration in which Wright states that she

raised certain concerns to Broadnax in the spring of 2023 about the ESSER funds. Doc. 43-2 at 1.

Wright does not claim that these concerns matched what she later discovered with Aikerson in

April or that she specifically raised them when she met with Thompson and Broadnax. See Doc.

43-2 at 1. Although she later argues this point in her opposition brief (see Doc. 43-1 at 13), this

argument is unsupported in the record and immaterial to summary judgment.

6

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). “The purpose of summary judgment is to

separate real, genuine issues from those which are formal or pretended.” Tippens v.

Celotex Corp., 805 F.2d 949, 953 (11th Cir. 1986). “Only disputes over facts that

might affect the outcome of the suit under the governing law will properly preclude

the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). A dispute of material fact is genuine only if “the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Id.

The moving party “always bears the initial responsibility of informing the

district court of the basis for its motion, and identifying those portions of the

pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, which it believes demonstrate the absence of a genuine

[dispute] of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)

(internal quotation marks omitted). In responding to a properly supported motion

for summary judgment, the nonmoving party “must do more than simply show that

there is some metaphysical doubt as to the material fact.” Matsushita Elec. Indus.

Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Indeed, the nonmovant

must “go beyond the pleadings” and submit admissible evidence demonstrating

“specific facts showing that there is a genuine [dispute] for trial.” Celotex, 477 U.S.

at 324 (internal quotation marks omitted). If the evidence is “merely colorable, or

7

is not significantly probative, summary judgment may be granted.” Anderson, 477

U.S. at 249 (citations omitted).

When a district court considers a motion for summary judgment, it “must view

all the evidence and all factual inferences reasonably drawn from the evidence in the

light most favorable to the nonmoving party, and must resolve all reasonable doubts

about the facts in favor of the nonmovant.” Rioux v. City of Atlanta, Ga., 520 F.3d

1269, 1274 (11th Cir. 2008) (citation and internal quotation marks omitted). The

court’s role 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, 477 U.S. at 249.

“If a reasonable fact finder evaluating the evidence could draw more than one

inference from the facts, and if that inference introduces a genuine issue of material

fact, then the court should not grant summary judgment.” Allen v. Bd. of Pub. Ed.

for Bibb County, 495 F.3d 1306, 1315 (11th Cir. 2007) (citation omitted). On the

other hand, if the nonmovant “fails to adduce evidence which would be sufficient

. . . to support a jury finding for [the nonmovant], summary judgment may be

granted.” Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1370

(11th Cir. 1997) (citation omitted).

8

B. Relevant Facts6

The Fairfield City School District hired Wright as an administrative assistant

in July 2020. Doc. 40-1 at 24. The Board operates the school district, makes

personnel decisions, and sets and approves salaries for each employee. Doc. 40-5 at

9–10; Doc. 40-7 at 7–8; see Doc. 40-1 at 201–04; Doc. 40-7 at 29; Doc. 40-1 at 107–

08. Beginning in April 2021, Wright worked at the Board’s Central Office and

reported to the Director of Teaching and Learning, Dr. LaRhonda Aikerson.

Doc. 40-1 at 24–25, 167. Aikerson “had several budgets she was responsible for,”

and Wright “would assist her with those” by processing purchase orders and

invoices. Doc. 40-1 at 25–26.

Aikerson also served as the “monitor” for the Board’s ESSER grant. Doc. 40-

1 at 25; Doc. 40-6 at 8. The United States Department of Education issues ESSER

grants to “state educational agenc[ies] with an approved application” under the

Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). Pub. L. No.

116–136, 134 Stat. 566 at § 18003 (2020). Under the CARES Act, a state department

of education allocates ESSER funds “as subgrants to local education agencies,” or

“LEAs.” Id. The LEAs can use the funds to (1) improve and develop coordinated

responses to prepare for or respond to the coronavirus, (2) provide resources for

6 Wright does not dispute most of the facts in the Board’s motion. Doc. 39 at 2–14; Doc. 43–1 at

3. To the extent the parties disagree about the material facts, the court notes those disputes below.

9

school leaders to address the needs of their schools, (3) train staff on sanitation and

purchase cleaning supplies, or (4) any “other activit[y] . . . necessary to maintain the

operation of and continuity of services” during the pandemic. Id.; see Doc. 40-1 at

227.

Wright, as one of the Board’s four ESSER “processors,” assisted Aikerson

with the administration of the grant. Doc. 40-1 at 27–28, 79. With the Board’s

approval, ESSER processors received a $2,500 stipend twice per year. Doc. 40-1 at

79, 202. In December 2021, the Board moved Wright to a Payroll Bookkeeper

position, but she continued to assist Aikerson with the ESSER grant as needed.

Doc. 40-1 at 25–28, 31.

1. Payroll Bookkeeper

In her new position, Wright worked in the school’s finance department and

reported to Chief School Finance Officer (“CSFO”) Victoria Broadnax. Doc 40-4 at

8; Doc. 40-5 at 13. Broadnax was the head of the finance department and she

reported to the superintendent for the district, Dr. Regina Thompson. Doc. 40-1 at

30, 35; Doc. 40-5 at 5.

Wright also managed the employee payment process from “start to finish.”

Doc. 40-1 at 31. She gathered each employee’s information, ensured the employee’s

hours and absences had been documented correctly, and processed direct deposits.

See Doc. 40-1 at 31–33. Wright also confirmed that each employee’s pay matched

10

the Board’s salary scale. Doc. 40-1 at 33–34. Although the human resources

department verified the employee’s level of education or certification, Wright made

sure the salary aligned with the verified credentials. Doc. 40-1 at 43. Wright

generally did not track which fund sources paid each employee, but she made

changes to funding sources at Broadnax’s direction. See Doc. 40-1 at 32–34. In

addition to processing salary payments, Wright also issued stipends to employees.

See Doc. 40-1 at 66–67.

2. Payroll Irregularities

Early on in her employment, Wright noticed some irregularities in employee

pay. See, e.g., Doc. 40-1 at 36–38. In particular, she believed that (1) several

employees were receiving “master’s pay” without a verified master’s degree;

(2) Thompson and Broadnax increased the salaries for certain employees, including

Thompson herself, without Board approval; (3) Thompson did not take leave when

she missed work for surgeries in the fall of 2021 and 2022; and (4) some employees

received excessive pay out of ESSER funds. See Doc. 40-1 at 36–38, 40–44, 51, 79–

80, 82; see also Doc. 40-1 at 171, 197–200.

a. Master’s Pay and Salary Increases

Around September 2022, Wright notified Broadnax, Thompson, and Human

Resources Director Zenobia Odoms that some teachers and administrators who did

not have a master’s degree or a valid certification had higher salaries corresponding

11

with that degree or certification. See Doc. 40-1 at 36–38, 44. Wright emailed Odoms

and asked her to provide documentation of these employees’ credentials. See Doc.

40-1 at 43, 169. Wright explained that “several employees were asking her

questions” about their pay and she needed to be able to “answer them correctly.”

Doc. 40-1 at 43, 169–170. But Odoms denied Wright’s request for more

information, and Thompson explained that the Board relies on the degree listed on

the employees’ resumes to set their salaries until the State of Alabama completes a

verification process.7 Doc. 40-1 at 44, 51, 170.

Later that fall, Thompson asked Wright to process a 4% salary increase for

her administrators. Doc. 40-1 at 80. Wright requested documentation that the Board

approved the raise, but Thompson and Broadnax did not provide any, so Wright did

not process the raise.8 Doc. 40-1 at 80–81. A few months later, Broadnax told

Wright that Thompson received a favorable annual evaluation and would be

receiving a raise. Doc. 40-1 at 40–41. Again, Wright refused to input the pay

increase without documentation of board approval. Doc. 40-1 at 41.

7 Wright believed this policy did not comply with state guidelines, so she emailed Beverly Thomas

at the State Department of Education to ask for verification that these employees had master’s

degrees. See Doc. 40-1 at 64–65, 190.

8 Wright believes that Broadnax processed the salary increases for the administrators after she

refused. Doc. 40-1 at 80–81.

12

b. Thompson’s Leave

On two different occasions, Walter Curry, the Director of Operations, served

as Interim Superintendent of the school district while Thompson was out of the

office after surgeries. Doc. 40-1 at 41–42, 45, 94, 171; see Doc. 40-5 at 35. Since

Curry received a stipend for this role, Wright thought Thompson should have to use

sick leave during her absences. See Doc. 40-1 at 41, 45. Wright mentioned this to

Broadnax, and the next day Thompson emailed Wright to explain that she had

participated in meetings and worked from home after her medical procedures.9

Doc. 40-1 at 41, 45, 171. She told Wright to follow Broadnax’s directions on her

pay and absences. See Doc. 40-1 at 171.

c. The ESSER Grant

In the fall of 2022 and the spring of 2023, Aikerson created a spreadsheet and

asked Wright to verify that “these people are the ones . . . being paid out of ESSER.”

Doc. 40-1 at 42, 82; Doc. 40–6 at 18. Wright discovered some employees were

receiving ESSER funds but were not listed on the spreadsheet. Doc. 40-1 at 42. In

addition, the spreadsheet indicated that the salary for the school’s COVID manager,

Jimecio Archie, was $25,000, but Wright found out his actual salary was around

$30,000. Doc. 40-1 at 82; see Doc. 40-6 at 17. Wright told Aikerson about these

9 According to Wright, Broadnax and Curry then met with Wright to try and “scare her about

minding her own business.” Doc. 40-1 at 46.

13

discrepancies, and Aikerson said she would look into them but cautioned against

“saying anything to Thompson because she gets defensive about [] Archie.”10

Doc. 40-1 at 82.

Wright met with Thompson, Broadnax, Aikerson, and the ESSER processors

during April 2023.11 Doc. 40-1 at 79; see also Doc. 43-2 at 1. After the meeting,

Wright told Aikerson privately that she had discovered that Broadnax, who was one

of the four ESSER processors, had posted a $4,500 stipend to her own account.

Doc. 40-1 at 79–80, 197. This exceeded the $2,500 stipend the Board approved for

ESSER processors. See Doc. 40-1 at 79. Aikerson told Wright she was not going to

say anything about Broadnax’s stipend because “it would come up later.”12 Doc. 40-

1 at 79, 197.

3. Wright’s Continued Employment

Thompson, as superintendent, recommends the termination or nonrenewal of

personnel and presents her recommendations to the Board for approval. Doc. 40-5

10 Aikerson claims she learned about Archie’s salary during the May 15, 2023, executive session

of the Board, and she denies making this comment about Thompson. Doc. 40-6 at 17–18, 28.

11 According to Wright, “a lot of attention was being placed on ESSER during the month of April,”

and Thompson asked questions about ESSER funding and budgets during the April meeting.

Doc. 40-1 at 79. Aikerson and Wright “briefed” Thompson and Broadnax “on the discrepancies

[they] uncovered.” Doc. 40-1 at 79, 197. Thompson does not recall this meeting (Doc. 40-5 at

44), and Aikerson denies it occurred. Doc. 40-6 at 19.

12 Wright also testified that Aikerson said she would deny knowledge of any “improper use of

ESSER funds” if anyone ever questioned her about it; Aikerson disputes this testimony. Doc. 43-

2 at 2; Doc. 40-6 at 28.

14

at 9–10. Beginning in March 2023, Thompson, Odoms, and Broadnax met to discuss

the status of various employee contracts for the next school year. Doc. 40-4 at 18–

19; see Doc. 40-5 at 13. Broadnax raised concerns about Wright’s ability to respond

to constructive criticism and the way she talked to other employees. Doc. 40-4 at 19.

Broadnax told Thompson and Odoms she did not believe the Board should renew

Wright’s contract at the end of the school year. Doc. 40-4 at 19; Doc. 40-5 at 34.

She later conducted a review of Wright’s performance in which she scored Wright

as “excellent” in multiple categories but “unsatisfactory” in accepting constructive

feedback. Doc. 40-1 at 60, 184; Doc. 40-4 at 31–33.

Relying on Broadnax’s concerns, Thompson formally submitted her

recommendation not to renew Wright’s employment, and the Board placed this

recommendation on its agenda for a meeting on May 15, 2023. Doc. 40-5 at 13, 119–

127, 129. The agenda contained 45 personnel items in total, ten of which were

recommendations for nonrenewal, and the Board placed these items on its consent

agenda, allowing it to vote “yes” or “no” on all 45 recommendations at one time.

Doc. 40-5 at 24, 123–27; Doc. 40-5 at 10.

4. Wright’s Discipline and Grievance

In the days leading up to the May 2023 meeting, Wright attended a compliance

training session hosted by the State of Alabama. Doc. 40-1 at 66. After the training

session, she noticed that an employee named Marcus Jones was receiving payments

15

through payroll, accounts payable, and an athletic stipend. Doc. 40-1 at 66, 191.

Wright believed this was inappropriate based on her compliance training so she

emailed Broadnax, Curry, and Odoms to tell them Jones was “double dipping” and

she did not “feel comfortable issuing an additional check nor back pay” to him.13

Doc. 40-1 at 66–67, 191. Broadnax explained that Jones was not double dipping14

and then issued formal discipline to Wright for sending an email to the directors

divulging sensitive, personal, and unverified information about an employee.

Doc. 40-1 at 68–69, 192; Doc. 40-4 at 22, 29–30. In response, Wright filed an

Employee Grievance Form with Odoms complaining that she was “being subjected

to harassment while . . . doing [her] job.” Doc. 40-1 at 70, 194.

5. Presentation to the Board

Wright contacted the Board’s president, Randall Smith, because “things were

. . . mounting up against her” and her superiors were “making [her] feel like [she]

was doing something wrong by asking for documentation.” Doc. 40-1 at 70–71.

According to Wright, she was only trying to pay the employees correctly, but her

13 Wright testified that Jones also was “one of the ones being paid through ESSER funds that was

not earmarked to be paid through ESSER funds based upon [Aikerson’s] spreadsheets,” but she

did not mention this in her email. Doc. 40-1 at 66, 191.

14 Broadnax explained that Jones was receiving a payment out of accounts payable on behalf of

Ballers Flooring, who “did the floors or spray[ed] the building.” Doc. 40-1 at 67, 191. Wright

thought that he could have been working for Ballers Flooring at the same time he was supposed to

be on the clock as a school employee, but she admits she had no way of knowing whether that was

true. Doc. 40-1 at 67–68.

16

superiors wanted her “to do things that [she felt] are unethical” and contrary to her

compliance training. Doc. 40-1 at 70. Wright told Smith that Thompson had

received an unapproved raise, some teachers “are being paid what they’re not

supposed to be paid,” and she planned to tell the State Department of Education what

she had learned. Doc. 40-1 at 71; Doc. 40-7 at 14. Smith asked Wright to raise her

concerns at the next board meeting. Doc. 40-1 at 72; Doc. 40-7 at 15. Unbeknownst

to Smith and Wright,15 the Board would be voting on Thompson’s recommendation

not to renew Wright’s employment at the same meeting. See Doc. 40-1 at 63;

Doc. 40-7 at 17–18.

Wright attended the May 2023 meeting and presented her “Bad Business

Report” during the Board’s executive session. Doc. 40-1 at 74–76, 197–200;

see Doc. 40-7 at 19. The report included a list of the financial irregularities she had

discovered:

1. Broadnax “posted a $4,500 stipend payment to her account but

the Board had only approved a $2,500 stipend” for ESSER

processors.

2. “Dr. Thompson received salary increases without approval.”

3. “Dr. Thompson was out of the office . . . and refused to use her

leave days . . . even when Mr. Curry was paid $7,500 each time

in her absence.”

15 Because Wright was being “pick[ed] on,” she suspected that she would be on the nonrenewal

list. Doc. 40-1 at 85.

17

4. Thompson and Broadnax gave administrators “an additional

salary increase in addition to the 4% State raise without Board

approval.”

5. Several employees did not have a master’s degree or a “valid

certification [on file],” but Wright still had to “pay them Master’s

pay.”

6. Broadnax hired a new Accounts Payable Bookkeeper and paid

her more than the previous Accounts Payable Bookkeeper while

adding “Assistant to CSFO to her title.”

7. The “ESSER III Application states [Archie’s] starting salary

should have been $25,000 a year but he was paid $31,028 and he

works 5–10 hours less each week than full time 12 month

employees.”

8. The certification for one of the school bus drivers expired in

December but he “was still driving the bus.”

9. “ESSER funds [were] used to pay employees that weren’t Board

approved or indicated in the ESSER application.”

10. Several employees were being paid through Accounts Payable.

11. Marcus Jones was double dipping “per the Compliance Training

[she] had received.”

Doc. 40-1 at 197–200. As best the court can tell, Wright handed the Board a packet

of materials to support her allegations,16 which included copies of a salary schedule,

16 According to Wright, Exhibits 20 and 21 to her deposition contain some of the materials she

submitted to the Board. Doc. 40-1 at 73–75; see Doc. 40-1 at 195; Doc. 40-2 at 28. However, the

materials are out of order, some are extraneous, and some are missing. See Doc. 40-1 at 73–76.

18

resumes and personnel files for employees receiving salaries at master’s rates, the

Board’s approval of the stipends for the ESSER processors and Curry, an application

for ESSER funds, Thompson’s employment contract, and other payroll documents.

See Doc. 40-1 at 76–78, 197–228; Doc. 40-2 at 1–27. Wright told the Board she was

planning to send the packet to the Alabama State Department of Education. Doc. 40-

1 at 78; Doc. 40-4 at 37; Doc. 40-5 at 23.

After Wright’s presentation, the Board reconvened in open session and voted

to approve the consent personnel agenda, which included Wright’s nonrenewal.

Doc. 40-7 at 26; Doc. 40-5 at 10, 24–25, 127. Wright learned that her employment

had been not been renewed the next day. Doc. 40-1 at 85.

C. Discussion

Wright claims that she engaged in protected activity under both the False

Claims Act (“FCA”) and the First Amendment by reporting financial irregularities

to the Board during the executive session, and that the Board wrongfully terminated

her after her presentation. Doc. 6 at 13–15; Doc. 43 at 12–16, 20–23. For the reasons

below, however, Wright has not established that she engaged in protected conduct

or speech, and both of her claims fail as a matter of law.

1. FCA Retaliation

The FCA imposes liability on any person who “knowingly presents, or causes

to be presented, a false or fraudulent claim for payment or approval.” 31 U.S.C.

19

§ 3729(a)(1)(A). An FCA claim “arises from the submission of a fraudulent claim

to the government, not the disregard of government regulations or failure to maintain

proper internal procedures.” Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039, 1045

(11th Cir. 2015) (internal quotation marks and citation omitted). The anti-retaliation

provision of the FCA prohibits employers from terminating an employee for

(1) “lawful acts done by the employee . . . in furtherance of an action under the FCA”

and (2) “other efforts to stop 1 or more violations of this subchapter.” 31 U.S.C.

§ 3730(h)(1). To establish a prima facie case under the FCA, a plaintiff must show

that (1) she engaged in statutorily protected conduct; (2) she suffered an adverse

event; and (3) the adverse event was causally related to the protected conduct. Simon

ex rel. Fla. Rehab. Assocs., PLLC v. Healthsouth of Sarasota Ltd. P’ship, 2022 WL

3910607, at *5 (11th Cir. Aug. 31, 2022) (citing Little v. United Techs., Carrier

Trans. Div., 103 F.3d 956, 959 (11th Cir. 1997)).

A plaintiff who claims she engaged in “other efforts” to stop a FCA violation

“must at least show that she had an objectively reasonable belief that her employer

violated the FCA to establish that she engaged in protected activity.”17 Simon, 2022

17 The Eleventh Circuit has assumed without deciding that the lower “objectively reasonable

belief” standard applies to FCA claims instead of the more onerous “distinct possibility” standard

following Congress’ revision of the retaliation provisions of the FCA in 2009 and 2010. See Simon,

2022 WL 3910607, at *6; Hickman, 985 F.3d at 1288–90. As in Simon, the parties here do not

dispute that the lower standard applies, and the court will address whether Wright has shown “that

a ‘reasonable person’ might have thought that a false claim . . . was being conveyed to the

government for money.” Simon, 2022 WL 3910607, at *6–7.

20

WL 3910607, at *6 (11th Cir. Aug. 31, 2022) (citing Hickman v. Spirit of Athens

Ala., Inc., 985 F. 3d 1284, 1289 (11th Cir. 2021)). “[T]he submission of a false

claim is the sine qua non of a False Claims Act violation,” Hopper v. Solvay

Pharms., Inc., 588 F.3d 1318, 1328 (11th Cir. 2009) (cleaned up), so an employee

bringing an FCA retaliation claim must have reasonably suspected that her employer

made a false claim to the federal government. Hickman, 985 F.3d at 1289 (citing

Ruckh v. Salus Rehab., LLC, 963 F.3d 1089, 1103 (11th Cir. 2020)). General

allegations of fraud, noncompliance with governmental regulations, or improper

internal procedures are insufficient. Id. (“An organization might commit, and its

employees might believe it has committed, any number of legal or ethical

violations—but the Act’s retaliation provision only protects employees where the

suspected misdeeds are a violation of the False Claims Act, not just of general

principles of ethics and fair dealing.”).

Wright predicates her FCA retaliation claim on a “false certification” theory

(Doc. 43-1 at 13), under which “a defendant may be found liable for falsely

certifying its compliance with applicable laws and regulations.” Ruck, 963 F.3d at

1103; Urquilla-Diaz, 780 F.3d at 1052. The certification of compliance must be

both a prerequisite to obtaining a government benefit and a condition for the receipt

of funds. Urquilla-Diaz, 780 F.3d at 1052. Under this theory also, “mere regulatory

violations” do not give rise to a viable FCA claim—only “the false certification of

21

compliance which creates liability when certification is a prerequisite to obtaining a

government benefit.” Id. (citation omitted) (addressing a false-certification claim

where a university “improperly [paid] incentive compensation to recruiters” and then

“falsely assert[ed] in a yearly letter that it was in compliance with the ban on

recruitment-based incentive compensation”).

As best the court can tell, Wright alleges that she discovered the Board was

not complying with the information listed on its ESSER application and thereby

violated the FCA by falsely certifying compliance.18 See Doc. 43-1 at 12–13. In

particular, she claims that (1) a section of the ESSER application listed the COVID

manager’s salary as $25,000; (2) the Board used ESSER funds to pay personnel who

were not designated in the ESSER application; and (3) the district was using ESSER

funds to pay employees who were not performing ESSER services. Doc. 43-1 at 12–

13.

The first problem with Wright’s argument is that she does not identify any

certification the Board made to the government. See Doc. 43-1 at 12–13. To be sure,

Wright offers her own unsupported assumption that the Board had to submit such a

18 Wright does not claim that she suspected the application itself was submitted fraudulently or

falsely for the purpose of obtaining federal funds. See Doc. 43-1 at 12–13.

22

certification at some point. See Doc. 43-1 at 12–13; Doc. 43-3.19 But she does not

offer any evidence of a specific claim or certification—let alone a false or fraudulent

one. Without more, Wright has not shown she had a reasonable belief that the Board

violated the FCA.20 See Mueller v. Sylacauga Hous. Auth., 2022 WL 4538457, at *9

(N.D. Ala. Sept. 28, 2022) (granting defendant’s motion for summary judgment

where the plaintiffs did not “direct the court to any documents or other evidence

showing the defendant made a false statement—or even a potentially false

statement—to [the government]”). When the “False Claims Act requires a false

claim,” Hickman, 985 F.3d at 1289, Wright’s generalized claims of potential

noncompliance with the ESSER grant provisions cannot carry the day. See id.;

Urquilla-Diaz, 780 F.3d at 1052.

Even if Wright could point to a false certification the Board made, she has not

shown that she had a reasonable belief that the Board violated the ESSER

regulations. Wright does not dispute that the ESSER grant permitted the Board to

19 To support her claim that the “ESSER funding agreement specifically requires grantees to attest

to their comprehensive compliance with the statutory provisions of ESSER” (Doc. 43-1 at 13),

Wright relies on the Georgia Department of Education’s publicly available “Certification and

Agreement for Funding Under [ESSER].” Doc. 43-3. This document states that a state educational

agency must submit certain assurances and certifications to receive an ESSER fund allocation,

such as a statement that it will ensure its LEAs use ESSER funds for allowable activities. See Doc.

43-3 at 5. But Wright does not offer any evidence that the Board had to or ever did submit such a

certification to obtain its ESSER funding.

20 When asked to identify any misrepresentation the Board made to the government, Wright offered

only that “ESSER funds were earmarked for certain things and were not used appropriately.”

Doc. 40-1 at 91.

23

combine ESSER funds with other sources, so that, for example, it could pay the

COVID manager a higher salary than the one listed on the application. Doc. 39 at 8;

see Doc. 40-1 at 34–35, 82. In addition, Wright has not identified any evidence

suggesting the ESSER grant required the Board to list the names of individuals that

would be paid with ESSER funds on its application, so she has not shown that it was

reasonable for her to believe that it was improper for the Board to pay employees

who had not been identified in the application.21 See Doc. 43-1 at 12–13, 197–200.

And although Wright claims she believed some employees were being paid ESSER

funds without performing any of the services permitted by the grant, she has not

developed any evidence supporting that belief.22 See Doc. 43-2 at 1; see also Pub. L.

No. 116–136, 134 Stat. 566 at § 18003 (listing permissible uses under the ESSER

grant). Ultimately, Wright bases most of her contentions solely on Aikerson’s

spreadsheet and not on an application or certification to obtain ESSER funds or any

of the grant’s regulations or requirements. See Doc. 40-1 at 42, 66, 82–84.

In sum, Wright has not established that she had a reasonable belief that the

Board engaged in conduct that violated the FCA. See Mueller, 2022 WL 4538457,

at *10 (“[A] sincere belief is not the same thing as a reasonable one.”). And she

21 In fact, Aikerson testified that the Board did not have to list the names of personnel who were

being paid out of ESSER funds in its application. Doc. 40-6 at 11.

22 If Marcus Jones could have been one of these employees, Wright concedes she had no way of

confirming her suspicion. See Doc. 40-1 at 67–68.

24

does not show that her allegations about the Board’s misuse of ESSER funds, even

if true, involved any false or fraudulent claim or certification to the government.

See Hickman, 985 F.3d at 1289; Mueller, 2022 WL 4538457, at *9. For this reason,

Wright has not established the protected conduct element of her prima facie case of

retaliation under the FCA, so the Board is entitled to summary judgment on this

claim.

2. First Amendment Retaliation

The First Amendment prohibits a government employer from discharging a

public employee in retaliation for engaging in constitutionally protected speech.

Alves v. Bd. of Regents of the Univ. Sys. of Ga., 804 F.3d 1149, 1159 (11th Cir.

2015). Speech is constitutionally protected when the plaintiff speaks (1) as a citizen

and (2) on a matter of public concern. Moss v. City of Pembroke Pines, 782 F.3d

613, 618 (11th Cir. 2015). This threshold inquiry is a question of law. Alves, 804

F.3d at 1159–60.

To determine whether a plaintiff’s speech was made in her capacity as a

citizen, rather than as a public employee, courts focus on “whether the speech at

issue ‘owes its existence to’ the employee’s professional responsibilities.” Moss, 782

F.3d at 618 (quoting Garcetti v. Ceballos, 547 U.S. 410, 421 (2006)). But “the mere

fact that a citizen’s speech concerns information acquired by virtue of his public

employment does not transform that speech” into employee speech; courts must ask

25

“whether the speech at issue is itself ordinarily within the scope of an employee’s

duties.” Lane v. Franks, 573 U.S. 228, 237 (2014); King v. Bd. of County Comm.,

916 F.3d 1339, 1346 (11th Cir. 2019) (“A plaintiff’s speech may deserve First

Amendment protection even when it concerns her area of employment.”).

This inquiry is a practical one turning on “the employee’s job description,

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

the subject matter of the employee’s job.” Alves, 804 F.3d at 1161. Another relevant

factor is whether the employee “observ[ed] formal workplace hierarchies” while

making the speech. Fernandez v. Sch. Bd. of Miami-Dade County, Fla., 898 F.3d

1324, 1333–34 (11th Cir. 2018). The court should focus on “whether the speech

falls within an ordinary duty,” and not “whether the speech itself is made ordinarily

and regularly.” Id.; see Alves, 804 F.3d at 1163–65 (holding that employees drafted

a memorandum detailing their supervisor’s conduct “in the course of trying to

perform” their ordinary roles and their complaints could not be “reasonably divorced

from those responsibilities” even though they were not paid to “rais[e] ethical issues”

and the memorandum did not “bear the hallmarks of daily activity”).

Wright does not dispute that the contents of her speech owed its existence to

her job as a bookkeeper. See Doc. 43-1 at 20–23. After all, her role required her to

make sure that employees correctly documented their absences and received the

correct pay (Doc. 40-1 at 31–34), so her claims that Thompson should have taken

26

leave or that other employees should not have received master’s salaries fall squarely

within her job duties. See Doc. 40-1 at 197–200. Wright contends, however, that

her job did not “involve engagement with” or “reporting on payroll practices” to the

Board such that she spoke outside of her ordinary duties when she presented her

findings during the executive session. Doc. 43-1 at 21. The court disagrees.

Wright’s job description may not have required her to report directly to the Board,

but she made her presentation while “trying to perform” her responsibilities as

bookkeeper. See Alves, 804 F.3d at 1163. And Wright admits that her role implied

a mandatory duty to report concerns about financial misconduct.23 Doc. 40-1 at 96.

She believed that Broadnax and Thompson asked her to process payments that had

not been approved by the Board or were against state policy (see, e.g.,

Doc. 40-1 at 37–38, 41), and she met with the Board’s president and presented during

the executive session at his recommendation when Broadnax and Thompson ignored

23 Wright argues that her presentation went beyond ordinary complaints about her ability to work

and instead painted “a comprehensive narrative of payroll irregularities and noncompliance with

federal and state authority,” so she must have been speaking as a citizen. Doc. 43-1 at 22–23. This

argument is not supported by law. The Eleventh Circuit has explained that speech about conduct

that interferes with an employee’s job responsibilities can be employee speech, Alves, 804 F.3d at

1165, but it is not true that speech addressing the misuse of funds necessarily must be considered

citizen speech. See Phillips v. City of Dawsonville, 499 F.3d 1239, 1242 (11th Cir. 2007) (finding

a city clerk spoke as an employee despite specific allegations about the misuse of city money,

services, or property).

27

her concerns.”4 See Doc. 40-1 at 70-71; Doc. 40-7 at 17-19; see Alves, 804 F.3d at

1164—65 (explaining that implicit in the employees’ duty to perform was a “duty to

inform . . . those that would appear to have the most need to know and best

opportunity to investigate and correct”). Accordingly, the court finds that Wright

spoke as an employee such that her speech was not protected by the First

Amendment. Because Wright cannot meet this threshold inquiry, the court’s

analysis ends there. See Moss, 782 F.3d at 618.

II. CONCLUSION

For these reasons, it is ORDERED that the Board’s Motion to Strike

(Doc. 46) is DENIED. The Board’s Motion for Summary Judgment (Doc. 38) is

due to be granted, and a separate final order will be entered.

DONE and ORDERED on August 27, 2026.

UNITED STATES MAGISTRATE JUDGE

4 Wright argues that she threatened to take her speech public, but she did not take this step until

after her termination. See Doc. 40-1 at 78, 92. And while the “lack of public dissemination is not

alone dispositive,” King v. Board of County Commissioner, 916 F.3d at 1349, her belated threat to

make her speech public does not transform her private speech into citizen speech.

28