Tasha Royster v. Larry Robinson

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-14877

Non-Argument Calendar

____________________

TASHA ROYSTER,

Plaintiff-Appellant,

versus

LARRY ROBINSON,

in his official capacity as President

Florida A&M University,

KELVIN LAWSON,

in his official capacity as Chairman

Florida A&M University,

ELMIRA MANGUM,

in her individual capacity,

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2 Opinion of the Court 20-14877

Defendants-Appellees,

JIMMY MILLER,

in his individual capacity,

Defendant.

____________________

Appeal from the United States District Court

for the Northern District of Florida

D.C. Docket No. 4:19-cv-00517-MW-MAF

____________________

Before GRANT, BRASHER, and EDMONDSON, Circuit Judges.

PER CURIAM:

Plaintiff Tasha Royster appeals the district court’s grant of

summary judgment in favor of the defendants in Plaintiff’s employ-

ment-related civil action under 42 U.S.C. § 1983. Plaintiff named

as defendants (1) Larry Robinson, in his official capacity as Presi-

dent of Florida Agricultural and Mechanical University (“FAMU”),

(2) Kelvin Lawson, in his official capacity as Chairman of the FAMU

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20-14877 Opinion of the Court 3

Board of Trustees, and (3) Elmira Mangum (former FAMU Presi-

dent), in her individual capacity. 1 Plaintiff asserts against Defend-

ants a claim for unlawful retaliation in violation of the First Amend-

ment. No reversible error has been shown; we affirm.

I. Background

In September 2015, Plaintiff began working as an adminis-

trative employee in the Office of the Liaison to the Board of Trus-

tees at FAMU (“Liaison Office”). Between January and March

2016, Plaintiff’s direct supervisor -- Linda Barge-Miles -- was out of

the office on medical leave. During Barge-Miles’s absence, Jimmy

Miller assumed responsibility for supervising the Liaison Office.

Cleve Warren (then-Chairman of the Board) was also involved in

overseeing the Liaison Office while Barge-Miles was out.

Shortly after taking over as Plaintiff’s supervisor, Miller

threatened to fire Plaintiff after discovering that Plaintiff disobeyed

his instructions not to communicate directly with members of the

Board. After seeking advice from Chairman Warren, Plaintiff left

the office but returned to work the following day.

1Plaintiff also named as a defendant Jimmy Miller, the Chief of Staff to then-

President Mangum, in his individual capacity. The district court dismissed

Plaintiff’s claim against Miller for failure to effect proper service; Plaintiff raises

no challenge to this ruling on appeal.

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4 Opinion of the Court 20-14877

A couple of months later, in March 2016, Miller repri-

manded Plaintiff for failing to attend a scheduled meeting. Plaintiff

responded by asserting that Miller was mistaken. Miller then told

Plaintiff to leave campus and threatened to call the police if Plaintiff

returned. Plaintiff sought clarification from Chairman Warren and

from Barge-Miles about the status of Plaintiff’s employment but re-

ceived no answer. Based on Plaintiff’s exchange with Miller and

the silence from Chairman Warren and Barge-Miles, Plaintiff be-

lieved her employment with FAMU had been terminated. 2

In 2019, Plaintiff filed this civil action. In her amended com-

plaint, Plaintiff contended that she engaged in constitutionally-pro-

tected speech when she made various complaints to her supervi-

sors and to other FAMU staff. Plaintiff’s complaints fall into four

main categories: (1) complaints about FAMU’s failure to pay Plain-

tiff overtime, (2) complaints about a co-worker’s poor work perfor-

mance and alleged falsification of timesheets, (3) complaints about

a chemical smell in the Liaison Office, and (4) complaints about the

suspected presence of illegal drugs in a co-worker’s desk. Plaintiff

alleged that she was reprimanded wrongfully and then fired in re-

taliation for her speech: in violation of the First Amendment, she

says.

2 Defendants contend that Plaintiff resigned her position by not returning to

work. Viewing the record in the light most favorable to Plaintiff -- as we must

at the summary-judgment stage -- we accept that Plaintiff’s employment was

terminated.

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20-14877 Opinion of the Court 5

The district court granted Defendants’ motion for summary

judgment. The district court first concluded that Plaintiff’s com-

plaints constituted speech by an employee about private matters

and were, thus, not protected by the First Amendment. The dis-

trict court further determined that -- even if Plaintiff’s speech was

protected -- Plaintiff had failed to show that her speech played a

substantial role in the adverse employment actions. Because Plain-

tiff demonstrated no constitutional violation (and no violation of a

constitutional right that was already clearly established), the dis-

trict court concluded that Defendants were entitled to summary

judgment.

II. Discussion

We review de novo the district court’s grant of summary

judgment. See Ave. CLO Fund, Ltd. v. Sumitomo Mitsui Banking

Corp., 723 F.3d 1287, 1294 (11th Cir. 2013). We view the evidence

and draw all reasonable inferences in the light most favorable to

the non-moving party. Id. Summary judgment is proper only

when the movant proves that no genuine issue of material fact ex-

ists and that the movant is entitled to judgment as a matter of law.

Id.; Fed. R. Civ. P. 56(a).

To prevail on a claim of retaliation by a government em-

ployer in violation of the First Amendment, a government em-

ployee must show (1) that the employee’s speech “was made as a

citizen . . . and implicated ‘a matter of public concern’”; (2) that the

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6 Opinion of the Court 20-14877

employee’s free-speech interests outweigh the employer’s interests

in regulating speech; and (3) that the speech was a “substantial mo-

tivating factor” in the adverse employment action. See Moss v.

City of Pembroke Pines, 782 F.3d 613, 617-18 (11th Cir. 2015). If

the employee fails to show that he spoke as a citizen on a matter of

public concern, “the employee has no First Amendment cause of

action based on his or her employer’s reaction to the speech.” Gar-

cetti v. Ceballos, 547 U.S. 410, 418 (2006). Whether an employee’s

speech constitutes speech on a matter of public concern is a ques-

tion of law that we review de novo. See Watkins v. Bowden, 105

F.3d 1344, 1353 (11th Cir. 1997).

A.

On appeal, Plaintiff characterizes her complaints as touching

upon issues of workplace safety, theft of company time, employee

misconduct, and use of illegal substances: issues Plaintiff says are

matters of public concern. Plaintiff also contends that -- because

her speech on these matters fell outside the scope of Plaintiff’s or-

dinary job duties -- she spoke in her capacity as a citizen.

In determining whether an employee’s speech was made as

a private citizen or as an employee, “the central inquiry is whether

the speech at issue ‘owes its existence to the employee’s profes-

sional responsibilities.’” Alves v. Bd. of Regents of the Univ. Sys.

of Ga., 804 F.3d 1149, 1161 (11th Cir. 2015). When an employee’s

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20-14877 Opinion of the Court 7

speech is “made in accordance with or in furtherance of the ordi-

nary responsibilities of her employment,” the employee is not

speaking as a citizen for purposes of the First Amendment. See id.

at 1161-62. We have recognized that “formal job descriptions ‘of-

ten bear little resemblance to the duties an employee actually is ex-

pected to perform.’” See id. at 1164. Thus, in assessing the citizen-

speech element, we apply a “‘functional review’ of an employee’s

speech in relation to her duties or responsibilities.” Id.

We have determined that -- when an employee raises con-

cerns about circumstances that interfere with the employee’s abil-

ity to perform her job -- the employee’s speech is made pursuant to

her ordinary job responsibilities. See id. at 1164-65 (concluding that

employee complaints about a supervisor’s alleged mismanagement

that interfered with the employees’ job performance was speech

made pursuant to the employees’ ordinary job duties); Boyce v.

Andrew, 510 F.3d 1333, 1335-37 (11th Cir. 2007) (concluding that

employees with the Department of Family and Children Services

spoke as employees when they complained to their supervisors

about an increase in the size of their caseloads and the lack of ade-

quate assistance: conditions that interfered with the employees’

ability to complete their work and caused the employees stress and

frustration). We have said that implicit in an employee’s ordinary

job duties is the duty to inform “‘those that would appear to have

the most need to know and best opportunity to investigate and cor-

rect’ the barriers” to the employee’s job performance. See Alves,

804 F.3d at 1165.

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8 Opinion of the Court 20-14877

In deciding whether an employee’s speech satisfies the “pub-

lic concern” requirement, we examine “the content, form, and con-

text of a given statement” and determine -- based on the record as

a whole -- whether the “main thrust” of the employee’s speech was

on a matter of public concern. Alves, 804 F.3d at 1162. To rise to

the level of public concern, an employee’s speech “must relate to a

matter of political, social, or other concern to the community.”

Watkins, 105 F.3d at 1353. That the public might have some inter-

est or curiosity in the topic of the employee’s speech is not enough:

the pertinent inquiry is “whether the purpose of the employee’s

speech was to raise issues of public concern.” Alves, 804 F.3d at

1167 (emphasis in original) (alteration omitted). Whether the em-

ployee communicated her concerns publicly or privately is perti-

nent to an assessment of the employee’s motivation in speaking but

is not dispositive. Id. at 1162.

1. Failure to Pay Overtime

Plaintiff says she engaged in protected speech when she

complained to Barge-Miles and to Miller that she received no over-

time pay for work she performed in excess of forty hours a week.

We disagree.

Plaintiff’s statements to her direct supervisors about being

compensated in-full for the hours Plaintiff worked are statements

made by Plaintiff in her capacity as an employee. These statements

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20-14877 Opinion of the Court 9

were made in furtherance of Plaintiff’s ordinary job duties. Fur-

ther, the main thrust of Plaintiff’s speech was clearly personal in

nature. Plaintiff’s speech addressed only her own personal com-

pensation; Plaintiff raised no broader concerns about FAMU’s em-

ployee compensation policies. Because Plaintiff’s complaints about

overtime pay constituted speech by an employee on a private mat-

ter, the district court concluded properly that those statements are

not protected by the First Amendment.

2. Starling’s Work Performance and Timesheets

Plaintiff made several complaints to Barge-Miles, Miller,

Chairman Warren, and to others about her co-worker and office-

mate, Carl Starling. Among other things, Plaintiff alleged that Star-

ling (1) failed to report to work during regular business hours and

falsified his timesheets, (2) failed to complete competently assigned

tasks, and (3) failed to help Plaintiff with the additional workload

created by Barge-Miles’s absence. In her emailed complaints about

Starling, Plaintiff said she was “overwhelmed” with work and that

Starling had not been doing his part to help. Plaintiff also expressed

that Starling’s failure to complete adequately assigned tasks, poor

communication skills, and “defiant” and “unprofessional behavior”

were causing Plaintiff undue stress and interfering with Plaintiff’s

ability to complete her work assignments.

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10 Opinion of the Court 20-14877

Plaintiff’s complaints about Starling focused chiefly on the

negative impact Starling’s work performance and attitude was hav-

ing on Plaintiff’s ability to perform her job. We have concluded

that this kind of speech constitutes speech made pursuant to an em-

ployee’s job responsibilities and not in an employee’s role as a citi-

zen. See Alves, 804 F.3d at 1164-65; Boyce, 510 F.3d at 1335-37.

Moreover, the purpose of Plaintiff’s complaints was to seek

help from Plaintiff’s supervisors in managing Starling’s unprofes-

sional behavior and help in reducing Plaintiff’s workload and stress.

The main thrust of Plaintiff’s speech was thus related to a personal

matter, not a matter of public concern. See Alves, 804 F.3d at 1166

(concluding that plaintiffs’ internal complaints about their supervi-

sor constituted speech by “employees on conduct that interfered

with their job responsibilities, rather than [speech by] citizens on

matters of social, political, or other civic concern.”); Boyce, 510

F.3d at 1346 (concluding that the “main thrust” of employees’ com-

plaints about being overworked and overwhelmed “took the form

of a private employee grievance.”). Plaintiff’s complaints about

Starling are not constitutionally-protected speech.

3. Chemical Smell

Plaintiff complained to Barge-Miles, Chairman Warren, and

to several other people about a “strong chemical smell” emanating

from Starling’s work area. Plaintiff said the smell burned her throat

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20-14877 Opinion of the Court 11

and affected her productivity. Plaintiff said she complained to

Chairman Warren because Plaintiff wanted him to experience the

smell firsthand.

The district court concluded properly that Plaintiff’s com-

plaints about a chemical smell were not speech protected under the

First Amendment. Plaintiff’s complaints about a localized unpleas-

ant odor that affected Plaintiff’s work performance was speech

made pursuant to Plaintiff’s ordinary job duties and, thus, consti-

tuted speech by an employee. The record also demonstrates that

the purpose of Plaintiff’s complaints was to have the offensive

smell investigated and corrected, not to raise an issue of public con-

cern. Like the complaints involved in Alves and in Boyce, Plaintiff’s

internal complaint focusing on how the complained-of workplace

condition interfered with Plaintiff’s job performance constituted

speech as an employee on a private matter. See Alves, 804 F.3d at

1166; Boyce, 510 F.3d at 1346.

4. Suspected Illegal Drugs

Plaintiff also says she engaged in protected speech when she

reported to Barge-Miles and to a campus security officer that she

suspected Starling of possessing illegal drugs. When FAMU failed

to act on Plaintiff’s complaints about the chemical smell, Plaintiff

searched Starling’s desk and found a small bag containing a white

substance Plaintiff believed was cocaine. Plaintiff notified a

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12 Opinion of the Court 20-14877

campus security officer, who then called the police. Upon exami-

nation, the police determined that the substance was not a drug

and took no further action.

We agree with the district court’s determination that the

chief purpose of Plaintiff’s speech was to raise personal, work-re-

lated concerns. Plaintiff testified that she decided to search Star-

ling’s desk because her reports about a chemical smell had not been

investigated adequately and because Plaintiff suspected that she

was going to be fired. Viewed in the light of the record as a whole

-- including in the context of Plaintiff’s earlier unresolved com-

plaints about the chemical smell and about Starling’s unprofes-

sional behavior -- Plaintiff’s complaints about Starling’s suspected

drug possession were motivated chiefly by Plaintiff’s desire to have

Starling’s conduct addressed and to improve her own personal

working conditions. That the presence of illegal drugs on a univer-

sity campus might be a topic of interest to the public is not enough

by itself to transform Plaintiff’s personal grievances about a co-

worker and about her personal workspace into a matter of public

concern. See Alves, 804 F.3d at 1167; Boyce, 510 F.3d at 1344 (“A

‘public employee may not transform a personal grievance into a

matter of public concern by invoking a supposed popular interest

in the way public institutions are run.’”).

B.

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Even to the extent that Plaintiff’s complaints might consti-

tute protected speech (which we reject), the district court commit-

ted no error in determining that Plaintiff also failed to show that

her speech was a significant motivating factor underlying the ad-

verse employment acts.

Whether a causal connection existed between the em-

ployee’s speech and the adverse employment act is a question of

fact. See Moss, 782 F.3d at 618.

The record demonstrates that the complained-of employ-

ment acts (Miller’s reprimand of Plaintiff and supposed termination

of Plaintiff’s employment) occurred immediately after Plaintiff’s

failure to attend a scheduled meeting and Plaintiff’s attempt to cor-

rect Miller. The timing of the adverse employment acts -- com-

bined with Miller’s earlier threat to fire Plaintiff -- shows that Miller

was motivated primarily by what Miller saw as Plaintiff’s ongoing

failure to comply with his directions.

Nothing evidences sufficiently a causal link between Plain-

tiff’s speech and the adverse employment decisions. Among other

things, Plaintiff produced no evidence showing that Miller knew

about Plaintiff’s complaints about Starling’s suspected drug posses-

sion.

Viewing the record in Plaintiff’s favor, Plaintiff has failed to

demonstrate that her complaints constituted speech protected by

the First Amendment and failed to demonstrate that her com-

plaints played a significant role in the adverse employment acts.

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14 Opinion of the Court 20-14877

Plaintiff has established no constitutional violation; we affirm the

district court’s grant of summary judgment in favor of Defendants.3

AFFIRMED.

3 Because we determine that no First Amendment violation occurred, it fol-

lows that we also conclude that Defendant Magnum violated no constitutional

right that was already clearly established in 2016. The district court concluded

properly that Defendant Magnum is thus entitled to immunity on Plaintiff’s

individual-capacity claim.