Henry Lyons v. F. Wayne Vaught

United States Court of Appeals

For the Eighth Circuit

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No. 16-1062

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Henry E. Lyons

lllllllllllllllllllll Plaintiff - Appellee

v.

F. Wayne Vaught; Reginald Bassa

lllllllllllllllllllll Defendants - Appellants

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Appeal from United States District Court

for the Western District of Missouri - Kansas City

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Submitted: June 8, 2017

Filed: November 22, 2017

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Before LOKEN, MURPHY, and MELLOY, Circuit Judges.

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LOKEN, Circuit Judge.

Henry Lyons worked as a part-time lecturer at the University of Missouri

Kansas City (“UMKC”) for seven semesters, teaching a self-developed Career and

Life Development course. He was not asked to return for the Spring 2012 semester.

In this 42 U.S.C. § 1983 action, Lyons alleges that defendants’ decision not to renew

his contract was retaliation for his criticism of UMKC’s preferential treatment of

student athletes and therefore a violation of his free speech rights as a public

employee. The individual defendants appeal the district court order denying their

motion to dismiss Lyons’s damage claims because they are entitled to qualified

immunity. Reviewing the denial of qualified immunity de novo, we reverse.

I.

Lyons’s First Amended Complaint (“FAC”) alleged that in Fall 2010 he gave

a student athlete an “F” grade in Lyons’s course. The student challenged his grade

through UMKC’s appeal process; Lyons submitted a “formal written response”

defending his grade. The “Grade Appeal Committee,” comprised of Reginald Bassa,

Director of UMKC’s Program for Adult Education, and the Department Chair,

determined the student should be allowed to submit a second midterm paper. Lyons

appealed this decision and complained to F. Wayne Vaught, Interim Dean of the

College of Arts and Sciences. Vaught referred the student’s appeal to the Academic

Standards Committee in September 2011. The Committee determined the student

should be allowed to submit a second paper. Lyons again complained to Vaught, who

upheld the Committee’s decision. A committee appointed to grade the student’s

second paper gave it a 75% grade, and Vaught instructed the registrar to change the

student’s grade to D+ in November 2011.

In late November, Lyons arranged a meeting with UMKC Chancellor Leo E.

Morton and invited three others to attend: UMKC’s former Deputy Chancellor for

Diversity, Access, and Equity; a past Chairman of the Minority & Cultural Affairs

Committee and past Vice President of UMKC’s Alumni Association Board; and the

President of the local NAACP chapter. Lyons expressed concerns about preferential

treatment of student athletes at UMKC, summarized other professors’ complaints

about the problem, and noted that such treatment could lead to adverse publicity and

sanctions. Lyons requested that Morton “undertake a comprehensive investigation

into the preferential treatment afforded to student athletes.” Morton said he declined

to get involved with student-faculty matters on campus. Lyons never heard back

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regarding his complaints. He was not offered a part-time lecturer contract for the

following semester, contracts that “are offered based on the recommendation and

approval” of Vaught and Bassa.

Lyons initially sued Morton, Vaught, and Bassa in state court, alleging

unlawful First Amendment retaliation. He voluntarily dismissed Chancellor Morton

after defendants removed the case to federal court. Vaught and Bassa moved to

dismiss on grounds of qualified immunity and failure to state a claim. The district

court denied the motion, and defendants appealed. We agreed with the court that

dismissal for failure to state a claim was properly denied because, while Lyons’s

speech during the grade-appeal process was not protected against public-employer

retaliation, it was not clear from the ambiguous FAC whether his speech at the

meeting with Chancellor Morton was connected to the appeal process, or whether

Lyons spoke at the meeting as a citizen on a matter of public concern. However, our

review of the FAC found no allegation that Vaught and Bassa were ever apprised of

Lyons’s speech at the meeting with Morton, which they did not attend. A First

Amendment retaliation claim requires proof of a causal connection between the

protected activity and the adverse employment action, so we concluded that Vaught

and Bassa were entitled to qualified immunity because the only speech that could

have prompted their adverse action was Lyons’s unprotected speech during the appeal

process. Lyons v. Vaught, 781 F.3d 958, 962-63 (8th Cir. 2015) (“Lyons I”). We

reversed the denial of qualified immunity and remanded for further proceedings.

On remand, rather than grant defendants’ qualified immunity, the district court

permitted Lyons, over defendants’ objection, to file a Second Amended Complaint

(“SAC”) to cure the FAC’s fatal defects.1 The SAC again alleged that Lyons’s First

1

This was error. Remand required that Lyons be “no better off” than if the

motion to dismiss the FAC had been granted, so Lyons’s motion to amend his

Complaint again should have been considered under more rigorous post-dismissal

standards. See Hager v. Ark. Dep’t of Health, 735 F.3d 1009, 1017 (8th Cir. 2013).

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Amendment claim “stems from the preferential academic treatment afforded student

athletes . . . one of which [sic] challenged a grade received in [Lyons’s class].” It

alleged that the student’s grade was changed from “F” to “D+” in the appeal process

but excised extensive factual allegations in the FAC describing that process. Unlike

the FAC, the SAC specifically alleged that “Lyons told Bassa and Vaught what he

had discussed” at the meeting with Chancellor Morton -- that student athletes “were

receiving preferential treatment,” that it was unfair “to let student athletes take

advantage of the grading system,” that this could lead to adverse publicity and

sanctions, and that “he asked Chancellor Morton to undertake a comprehensive

investigation into the preferential academic treatment afforded to student athletes.”

Defendants moved to dismiss the SAC, arguing they are entitled to qualified

immunity because at the time of the alleged retaliation, “it was not clearly established

that a teacher complaining about academic favoritism towards student athletes (which

included one of Plaintiff’s own students) was engaged in constitutionally protected

speech.” The district court denied the motion, concluding it was clearly established

“that a public employee had a First Amendment right to speak on matters of a public

concern so long as that speech was not part of the employee’s job duties.”

Defendants appeal. We have jurisdiction to determine whether Lyons sufficiently

alleged a clearly established violation of law, accepting as true the facts alleged in

Lyons’s SAC. Lyons I, 781 F.3d at 960.

II.

Qualified immunity from personal damage liability “gives government officials

breathing room to make reasonable but mistaken judgments about open legal

questions.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011). “Qualified immunity

attaches when an official’s conduct does not violate clearly

established . . . constitutional rights of which a reasonable person would have

known.” White v. Pauly, 137 S. Ct. 548, 551 (2017) (quotation omitted). It “protects

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all but the plainly incompetent or those who knowingly violate the law.” Mullenix

v. Luna, 136 S. Ct. 305, 308 (2015) (quotation omitted). For purposes of their motion

to dismiss, Defendants assume that Lyons’s SAC alleged the violation of a

constitutional right -- retaliation for his First Amendment protected speech at the

meeting with Chancellor Morton. They argue the alleged right was not clearly

established at the time of the alleged violation. See al-Kidd, 563 U.S. at 735.

The Supreme Court has repeatedly warned that “clearly established law should

not be defined at a high level of generality . . . [but] must be particularized to the facts

of the case.” White, 137 S. Ct. at 552 (citing prior cases). Absent controlling

authority, Lyons must show “a robust consensus of cases of persuasive authority.”

De La Rosa v. White, 852 F.3d 740, 746 (8th Cir. 2017) (quotation omitted).

Although the Supreme Court “does not require a case directly on point for a right to

be clearly established, existing precedent must have placed the . . . constitutional

question beyond debate” at the time Vaught and Bassa acted. White, 137 S. Ct. at

551 (quotation omitted); see Mullenix, 136 S. Ct. at 308; Reichle v. Howards, 132 S.

Ct. 2088, 2094 (2012) (“[T]he right in question is not the general right to be free from

retaliation for one’s speech, but the more specific right to be free from a retaliatory

arrest that is otherwise supported by probable cause.”).

III.

To establish employer retaliation in violation of the First Amendment, a public

employee must prove: “(1) he engaged in activity protected by the First Amendment;

(2) the defendants took an adverse employment action against him; and (3) the

protected conduct was a substantial or motivating factor in the defendants’ decision

to take the adverse employment action.” Lyons I, 781 F.3d at 961. Although “legal

issues expressly or impliedly decided” in Lyons I are the law of the case, issues

outside “the four corners of that opinion” are not. McNabb v. Riley, 29 F.3d 1303,

1305 (8th Cir. 1994). Our decision in Lyons I did not address whether it was clearly

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established that the First Amendment protected Lyons’s speech at the meeting with

Chancellor Morton from retaliation by his employer.

It is clearly established that citizens do not “relinquish First Amendment rights

to comment on matters of public interest by virtue of government employment.”

Connick v. Myers, 461 U.S. 138, 140 (1983). However, “this does not require a grant

of immunity for employee grievances.” Id. at 147. “[T]he First Amendment does not

require a public office to be run as a roundtable for employee complaints over internal

office affairs.” Id. at 149. Thus, 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.”

Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).

In Garcetti v. Ceballos, the Supreme Court noted two inquiries in determining

whether public employee speech is protected against employer retaliation:

The first requires determining whether the employee spoke as a citizen

on a matter of public concern. If the answer is no, the employee has no

First Amendment cause of action based on his or her employer’s

reaction to the speech. If the answer is yes, then the possibility of a First

Amendment claim arises. The question becomes whether the relevant

government entity had an adequate justification for treating the

employee differently from any other member of the general public.

547 U.S. 410, 418 (2006) (quotation omitted), quoted in Lane v. Franks, 134 S. Ct.

2369, 2378 (2014). The Court granted certiorari in Garcetti to determine whether a

public employee’s speech criticizing government misconduct -- a matter of public

concern -- was protected from employer retaliation even if made pursuant to the

employee’s duties. Id. at 416-17. The Court ruled such speech unprotected:

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[W]hen public employees make statements pursuant to their official

duties, the employees are not speaking as citizens for First Amendment

purposes, and the Constitution does not insulate their communications

from employer discipline. . . . Restricting speech that owes its existence

to a public employee’s professional responsibilities does not infringe

any liberties the employee might have enjoyed as a private citizen.

Id. at 421-22. In Lane, a decision after the events here at issue, the Court further

explained that “[t]he critical question under Garcetti is whether the speech at issue is

itself ordinarily within the scope of an employee’s duties, not whether it merely

concerns those duties.” 134 S. Ct. at 2379.2

Under Garcetti, when a public employee speaks on a matter of public concern

pursuant to his official duties, the speech is unprotected against employer retaliation.

Thus, for Lyons to prevail, we must conclude that, when he was not offered a

lecturer’s position in early 2012, it was clearly established First Amendment law that

his speech on matters of public concern at the meeting with Chancellor Morton was

not made “pursuant to [his] official duties.” See 547 U.S. at 421. If it was pursuant

to his official duties, he has no First Amendment claim. And if this question was not

“beyond debate,” Vaught and Morton are entitled to qualified immunity from Lyons’s

damage claims.3

2

In Lane, the Court held that an employee’s truthful testimony compelled by

subpoena at a corruption trial was First Amendment protected, but the defendants

were entitled to qualified immunity because “Eleventh Circuit precedent did not

provide clear notice that subpoenaed testimony concerning information acquired

through public employment is speech of a citizen entitled to First Amendment

protection.” 134 S. Ct. at 2382-83.

3

We deal here with the first step of the two-step inquiry under Garcetti. If

Lyons avoids dismissal at this step, the second step requires Pickering balancing of

his interests as a citizen commenting on a matter of public concern and the interests

of the State as public employer. See Garcetti, 547 U.S. at 418. “[A]t the summary

judgment stage, if the defendant has presented evidence that the employee’s speech

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IV.

Throughout this litigation, Lyons has conceded and the district court has

acknowledged, correctly in our view, that his speech during the student appeal

process was unprotected employee grievance. See Lyons I, 781 F.3d at 961, 963.

However, in denying defendants qualified immunity, the district court concluded that

the meeting with Chancellor Morton was not “part of [Lyons’s] job duties,” that

“academic improprieties involving interscholastic athletes is an issue of public

concern,” that Eighth Circuit cases prior to Garcetti “clearly established that a public

employee had a First Amendment right to speak on maters of a public concern so long

as that speech was not part of the employee’s job duties,” and that Garcetti did not

change that law. We disagree.

a. We first note that the court’s definition of unprotected speech -- speech that

is “part of” an employee’s job duties -- is phrased more narrowly than the governing

standard in Garcetti -- speech that is “pursuant to” the employee’s duties. At some

point, Lyons’s vigorous defense of his “F” grade after the Grade Appeal Committee

and the Academic Standards Committee upheld the student’s appeal arguably stopped

being “part of” Lyons’s duties as a part-time lecturer. But participating in the appeal

process, even to the point that he voluntarily initiated his own appeal to Dean Vaught,

was clearly “pursuant to” his grading duties. Determining whether an employee’s

speech was pursuant to his official duties is a practical inquiry. Garcetti, 547 U.S. at

424. Thus, “under the First Amendment, speech can be ‘pursuant to’ a public

employee’s official job duties even though it is not required by, or included in, the

employee’s job description, or in response to a request by the employer.” Weintraub

v. Bd. of Educ., 593 F.3d 196, 203 (2d Cir. 2010). Speech is pursuant to an

‘adversely affected the efficiency of the department,’ the required ‘fact-intensive

balancing test can rarely be considered clearly established.’” Lyons I, 781 F.3d at

961 n.1, quoting Bartlett v. Fisher, 972 F.2d 911, 916-17 (8th Cir. 1992).

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employee’s duties if it is “part-and-parcel of” the employee’s concerns about his

ability to “properly execute his duties.” Williams v. Dall. Indep. Sch. Dist., 480 F.3d

689, 694 (5th Cir. 2007); accord Renken v. Gregory, 541 F.3d 769, 774 (7th Cir.

2008). Characterizing unprotected speech as “part of” rather than “pursuant to” an

employee’s duties arguably lowers the bar in deciding whether Lyons’s final “appeal”

to Chancellor Morton was unrelated to his student’s appeal and therefore protected.

b. The district court’s conclusion that Garcetti did not affect clearly established

Eighth Circuit law is simply wrong. As we explained in McGee v. Public Water

Supply, District #2:

Many First Amendment retaliation claims have . . . present[ed] the

issue, as does this case, of whether the First Amendment protects a

government employee from retaliation when he ‘speaks upon a matter

of public concern and does so in the course of his ordinary duties as a

government employee.’ Environmental and public safety issues are

obvious examples of matters that are of concern to the general public.

Our decisions prior to Garcetti were not altogether consistent in

resolving whether a retaliation claim involving employee speech that

falls into this third category requires Pickering balancing, which often

precludes the grant of summary judgment.

471 F.3d 918, 920 (8th Cir. 2006) (citing 547 U.S. at 445 (Breyer, J., dissenting)).

Applying Garcetti, we concluded that “[a] public employee’s speech is not protected

by the First Amendment if it ‘owes its existence’ to his professional responsibilities.”

Id. at 921. In McGee, although the employee spoke on matters of “obvious” public

concern, his speech was unprotected because it was pursuant to his official duties.

Id. Contrast this decision with our pre-Garcetti decision in Kincade v. City of Blue

Springs, 64 F.3d 389 (8th Cir. 1995), cert. denied, 517 U.S. 1166 (1996), on which

the district court relied. In Kincade, a city engineer was disciplined after complaining

about a dam’s funding and safety issues. Although he made this speech “in his

capacity as City Engineer and pursuant to an assignment from” his employer, we held

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the speech was protected. Id. at 393, 397. We rejected the employer’s argument that

“when a public employee speaks in his role as an employee, that speech cannot touch

upon a matter of public concern.” Id. at 396. This analysis would not suffice under

Garcetti.

In addition to McGee, we have applied Garcetti and concluded that speech was

pursuant to an employee’s job duties and thus unprotected in numerous recent cases.

See Bonn v. City of Omaha, 623 F.3d 587, 592 (8th Cir. 2010); Anderson v. Douglas

Cty. Sch. Dist. 0001, 342 F. App’x 223, 224 (8th Cir. 2009); Bradley v. James, 479

F.3d 536, 538 (8th Cir. 2007). In other post-Garcetti cases, we concluded that a

public employee’s speech on a matter of public concern was unrelated to his job

duties and therefore protected unless the employer’s interests prevailed after

Pickering balancing. See Davenport v. Univ. of Ark. Bd. of Trs., 553 F.3d 1110,

1113 (8th Cir. 2009); Lindsey v. City of Orrick, 491 F.3d 892, 898 (8th Cir. 2007)

(employee’s job duties did not “even arguably include[] sunshine law compliance”).

c. Here the central focus is whether it was clearly established that Lyons’s

speech at the meeting with Chancellor Morton was as a citizen, not a part-time

lecturer. If no student athlete had ever taken Lyons’s course, or if his grading of

student athletes had never been questioned, then his raising of the general issue with

Chancellor Morton and others would be no different than another citizen raising the

general issue. That is not this case. As we noted in Lyons I, it was not clear from the

ambiguous FAC whether his speech at the meeting with Chancellor Morton was part

of the student appeal process or was based on the broader public concern with

UMKC’s educational mission. 781 F.3d at 962.

Lyons’s SAC did not eliminate that ambiguity. It alleged that his cause of

action “stems from” preferential treatment of student athletes including one who

“challenged a grade received” from Lyons. The FAC alleged that Lyons defended his

grade through multiple stages of the UMKC appeal process. Shortly after the student

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athlete’s appeal was upheld more than a year later, Lyons took his concerns to the

Chancellor of the University, inviting others who would likely be generally concerned

with the student athlete issue. The SAC alleges Lyons then told Vaught and Bassa,

the officials who upheld the student’s appeal, that he asked the Chancellor to conduct

a “comprehensive investigation” of student athlete grading. To Vaught and Bassa,

the only plausible interpretation of this report was that Lyons had gone outside the

well-established appeal process and was seeking an outside investigation of his

student athlete’s appeal, an inquiry that would no doubt investigate grade

determinations made by Vaught, Bassa, the Academic Standards Committee, and the

ad hoc committee that gave the student a 75% grade on his second paper. This would

threaten to turn the UMKC grade appeal process into “a roundtable for employee

complaints over internal office affairs.” Connick, 461 U.S. at 149.

Under Garcetti, “a public employee speaks without First Amendment

protection when he reports conduct that interferes with his job responsibilities, even

if the report is made outside his chain of command.” Winder v. Erste, 566 F.3d 209,

215 (D.C. Cir. 2009); see Rohrbough v. Univ. of Colo. Hosp. Auth., 596 F.3d 741,

747 (10th Cir. 2010) (employee decisions “to go outside of their ordinary chain of

command does not necessarily insulate their speech”). Did Lyons transform what

began as unprotected speech pursuant to his duties as a lecturer into protected speech

by virtue of speaking more broadly about the issue to both the UMKC Chancellor and

“community leaders”? Perhaps. But Vaught and Bassa could reasonably conclude

that Lyons spoke solely as an aggrieved lecturer in asking Chancellor Morton to

investigate grading policies for student athletes. In these circumstances, Lyons has

failed to show, using the particularized inquiry required, that his right to make this

speech in these circumstances was clearly established.

Lyons relies on pre-Garcetti cases from other circuits involving professors’

speech about academic integrity and grade inflation. See Brown v. Armenti, 247 F.3d

69, 75, 79 (3d Cir. 2001); Coats v. Pierre, 890 F.2d 728, 732 (5th Cir. 1989); Johnson

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v. Lincoln Univ., 776 F.2d 443, 452 (3d Cir. 1985). But these cases did not address

whether the speech at issue was pursuant to the plaintiffs’ job duties, an issue that

would have changed the analysis and perhaps the result in each case, as post-Garcetti

cases in those circuits illustrate. See Gorum v. Sessoms, 561 F.3d 179, 185 (3d Cir.

2009) (professor’s speech advising a student during disciplinary proceedings

unprotected); Williams, 480 F.3d at 694 (Athletic Director’s memoranda critiquing

department spending and policies unprotected).4

We reverse the order of the district court dated December 14, 2015, and remand

with directions to dismiss Lyons’s damages claims on the basis of qualified immunity.

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4

Garcetti left open the question whether its holding would apply to “speech

related to scholarship or teaching.” 547 U.S. at 425. In our view, this case does not

involve speech related to scholarship or teaching. See Gorum, 561 F.3d at 186. But

in any event, the law is no more clearly established even if Garcetti is persuasive but

not controlling precedent. See Demers v. Austin, 746 F.3d 402, 417 (9th Cir. 2014).

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