*4 merly manager, a case promoted was PRYOR, Before BIRCH and Circuit Supervisor Social Services for CPS investi- Judges, NANGLE,* District Judge. gations on December 2003. She super- PER CURIAM: approximately vised for four months and Robinson for approximately fifteen interlocutory This from appeal the deni- assigned months. Andrew cases as well as qualified al of immunity supervisors in a supervised monitored and investigations county Department Family and Chil- for CPS. Defendant-appellant Katherine (“DFCS”) requires dren Services us to Herren, DHR, an was as- determine if complaints internal about signed to DeKalb as Acting DFCS Social constitutionally protected caseloads are Services Director. She was responsible public speech that employees shield from for administering the child pro- welfare termination or transfer. The district grams, identifying problems, making judge determined that managers case who changes. needed Defendant-appellant complained regarding their caseloads had Glenda McMillan employed was at DeKalb raised a encompassed by concern DFCS as the Social Services Administra- the First Amendment. We reverse and tor, but she has not employed been remand. DeKalb DFCS since June Walk- II, Solomon, I. er BACKGROUND was the Director of De- Kalb DFCS. (“DeKalb County DFCS DFCS”), component Georgia of the De- CPS is the unit of respon- DFCS is (“DHR”) partment of Human Resources sible for making the initial contact and Family Services, Division of and Children investigation allegations of child abuse responsible investigating super- neglect. or Case managers required vising involving respond child welfare and to to such allegations within twen- * souri, Nangle, sitting Honorable F. by designation. John United States Dis- Judge trict for the District Eastern of Mis- in finaliz- to assist employed were systems depending days, five hours ty-four assigned were Thereafter, ing reports; allegation. the nature the state DFCS office manager as- the DeKalb case investigations CPS caseloads. to monitor and submits office environment sesses In thirty days. within for closure complained to Robinson Boyce and fam- initial contact to the addition case- of their size about the includes investigation child, the ily complaints Primarily, these loads. of re- and submission necessary contacts supervisors. to their sent mails electronic closed is considered A case forms. quired “Assign- used also necessary contacts when all or terminated form “ADO” Objection” or Despite required all completed and have been an em- to advise union by their provided required If contact submitted. forms being insubordinate ployer without moni- needed to or DFCS maintained to be assigned had been work that amount of be re- situation, would the case tor the too that it employer notify the and to Unit Ongoing Services to the ferred to handle. much During *5 of DFCS. unit CPS, a different case 2004, expected and 2004, Boyce com- 2003 and During a cases least four close at managers to management, supervisors, to her plained week. of more caseload union that her and her 2002-2004, experi- DFCS period For gave high. She was too fifty cases than maintaining caseloads in enced difficulties and McMillan. forms to Herren ADO three managers case all of its 2004, January until September From in turnover and caseloads extremely high so off rotation to come Boyce asked was high case- To address employees.1 time to investi- more could devote that she managers used loads, DFCS case DeKalb Management cases. closing and gating al- managers were Case methods. several During her cases. some of reassigned also rotation,” which meant off to “come lowed cases, however, closed time, Boyce no skipped for manager was that the case had was because she represents she so wheel in the rotation assignment new other as- court on time in more spend have addi- manager would the case signments. existing or her close his tional time months of four her the outset of From of new assignment before caseload difficulty with had Andrew supervision, managers were Additionally, case cases. On cases. to close being able Boyce’s not complete compensation overtime given her assigned 2004, had Andrew hours; March tem- working normal work outside case Boyce returned cases. four new assigned were hired porary employees her that told to Andrew files dictation various managers; case to assist man- DFCS case order, October judge described the district his 1. In DFCS, In Boyce of 30 to cases. agers average while had at DeKalb this situation manag- managers: average case case were and Robinson December in CPS Investi- problems Three children existed Multiple 35 to cases. er had Boyce Robinson’s tenure. during gation died Three more in 2002. died DFCS Attrition was understaffed. The unit sent DHR In October 2003. tempo- in flux Management high. employees management level three team of the work. much rary handled DFCS, instructing to iden- them to DeKalb guidelines League America Welfare Child existing problems. tify address carry manager be- a case recommend R2-29 at time. In at one and 15 cases tween 12 would not any take new cases. Andrew DFCS.5 During meeting with Dr. complained to DeKalb DFCS management, Olivia staff, and the entire Boyce asked Boyce had received a reprimand letter whether the state had developed system Solomon, to which she had responded to alert DHR case manager had by a letter characterizing her exchange assigned been many cases; too whether with Andrew as a “frustrated outburst.” the Governor’s office had instituted certifi- Boyce Dep. at 109. In describing her requirements cation managers; case stress and frustration with her high case- and whether there any were checks and load, Boyce said: really “Just overwhelm- balances in place as to the assignment of ing feeling you’re going to up wake cases occurred, before a crisis such as the and a going injured child’s to be dead death of a child. She also stated that lack you a result being able to help that of communication and low morale contrib- family, help that child.”2 Id. at 84. uted to the deaths children DFCS care, that placed generally McMillan on a per- managers work plan getting formance and that help, deadlines for closing DeKalb DFCS fifty-one appeared that were at be ninety least ineffective. days overdue.3 Because failed to After the meeting, Boyce was notified of meet the deadlines of performance dismissal. Defendants-appellants
plan, Andrew and McMillan recommended maintain that her termination had nothing to Solomon that she be terminated.4 They to do with her outspokenness at the meet- were advised that her termination had ing, because Andrew and McMillan had been approved by the April state office on *6 presented Boyce’s lack of productivity to 7, 2004. personnel Dr. before Olivia’s meeting with
That day, Olivia, same Dr. Janet staff, DeKalb DFCS and her termi- DFCS, state Director of visited DeKalb nation had approved been prior to the Andrew, Boyce's supervisor, direct did not 2. Herren Boyce’s testified that work had not Boj'ce recall expressed any that concern for and, satisfactory, been example, ex- welfare the children for whom she was plained disagreed that had she Boyce’s with responsible. Dep. Andrew at Similarly, 28. recommendation to longer continue a case for McMillan, supervisor investiga- for the days. than 30 Dep. Herren at 46-47. Her- tions Boyce’s unit supervi- intermediate ren's Boyce's concerns with work as to her sor, Boyce testified that "never verbalized’’ to caseload, which was consistent with other her that children were at risk because case managers, was management her case managers given had not been sufficient time generally and inability her to meet deadlines investigate cases. Dep. McMillan at 24. close cases. Id. at 49-50. Herren, When Acting Social Services Di- DFCS, rector at DeKalb was Boyce asked if 4. The Boyce's recommendation of termi- discussed with her concerns about children’s nation occurred after placed she had been being put lives danger because of the case- plan a work with "a number of discussions management, load responded: she did "She about progress [her] before there was a deci- not any discuss with me concerns about child made sion about termination.” McMillan safety.” Dep. added). Herren (emphasis 54at Dep. performance at 22. "Her on her work plan is what to her led Andrew termination.” Id. at "just testified that basically 3. 26. producing,” 23; was not Dep. Andrew at "[approximately percent” of her cases "were being timely,” not submitted at 5. additionally id. Dr. Olivia capaci- served in the McMillan testified that “delayed ty special was advocate to the Commissioner. work,” producing the "there missing Dep. was Andrew at 38. Andrew testified that the documentation from the record to open meeting indicate Dr. Olivia "prac- with included what work was done.” McMillan Dep. tically at 19. everybody in child Id. welfare.” that Generally, she contended listed. not shows evidence undisputed meeting. adversely affected high caseload her in the deci- not involved was Herren that of DeKalb care children safety of Boyce. to terminate sion DFCS. supervisors to her complained Robinson subjected was that she argues Robinson concerning mail by electronic verbally and supervisors DeKalb by her to retaliation caseload, mismanage- her burdensome high case- her reporting because DFCS submitted safety. She ment, and child Andrew When mismanagement. load objected to in which she ADOs least seven cases, her discuss Robinson met with help.6 requested high caseload her one, Robinson whereas one on they met com- work-related Generally, Robinson’s other case met with that Andrew states continuously was re- she plaints further Robinson group. aas managers processing cases without ceiving new her inconsis- gave that Andrew contends able to had; not she was she old cases that meeting with concerning tent instructions case- times because response meet additionally believed Robinson on families. in court was load; and, she because re- that she delay in assistance supervised; cases, adequately was she caseload was because on her ceived with subjected to had been Robinson McMillan. with conversation and she styles; management inconsistent Mildred reprimand also received new cases to receive want did not Administrator, Hart, the Social Services able being she was uncomfortable Solomon, of DeKalb as Director already had that she the cases process Octo- DFCS, Robinson’s rescinded. later complained also assigned. been evaluation stated performance ber high caseload that her to McMillan one expectations in meet did not that she was not accu- caseload all evaluation lists, While category. management on case rately reflected that she to show subsequently changed they were why know did not although she *7 record has ADO in the ADOs, sixth Robinson’s handwritten Robinson's her In six of 6. explanation concern- following handwritten identically with the worded explanation is being pending of cases cases: ing the number 63 only her distinctions 10, correspon- with the handling sent February contrasted 2004 was I that she On by the Child and standard Andrews my supervisor Gwen recommended dence to number and the League of America Welfare Glenda administrator services social to contact been unable she had cases which my case load alerting them that McMillan the child: not high I have extremely and currently high dangerously case- currently at a I am with 19 Families. contact able to make been help requested repeatedly I have load. including the of 13 cases now total I have situation; have I not however with this today have assigned that to me was that one process and in- enough to time given been requesting I am to. responded been enormously high my vestigate the this to attend to of rotation time off more making again am once I caseload. and 50 cases the other to work and issue There are situation. agency aware these cases to of closure bring type some able to make not been I have cases that 2003. October back to date that with the child. contact any type of 13; 10, 2004-Feb. Feb. off I rotation 2004, 2, (74 7, ADO Mar. Dep. Exh. Robinson cases); enough to attend time that is however cases, 2004, 23, (66 ADO Feb. and not seen I that families to the 23, 2004, contact); Feb. no child cases with my cases on on all other to work continue cases, child (65 with no con- 10 cases ADO help again requesting once I am load. cases, 2004, (64 20, tact); February ADO 2004, this situation. 19, contact); with Feb. no child cases with contact). ADO. Feb. Id. cases, (63 no with child 9 cases ADO expectations, objected had Robinson met The record does not show that either An- to the of whiteout to make the use correc- drew or Herren was directly involved tion; ultimately Robinson, Robinson received an decision transfer and her meeting expectations evaluation of for the transfer occurred after McMillan had left period covered the evaluation. She ini- employment DFCS.8 DeKalb request tially eighty was denied her for Boyce and Robinson a 42 filed U.S.C. leave, sick which later ap- hours of § against 1983 action their DeKalb DFCS proved provided after Robinson medical Andrew, supervisors, McMillan, Herren, gallstone of her need for documentation Solomon,9 alleged Boyce’s surgery. termination and Robinson’s transfer were 21, 2004, On October and November retaliation protected requested speech. she be In analyzing defen- motion, to another unit because summary judgment transferred of her dants’ the dis- in dealing difficulties with Andrew.7 trict judge On determined that 15, 2005, February Solomon notified Rob- safety Robinson’s concerns over child be- inson she was approved ing transfer sacrificed because of their high case- Telephone Intake Unit effective March loads mismanagement problems 1, 2004, although requested transfer DeKalb DFCS matters con- percent in a five resulted reduction of cern.10 He also concluded that salary monthly losing because of subjected coun- Robinson were to adverse em- ty paid supplement ployment they CPS. actions because had spoken 23, 2004, situations, 7. Robinson's November electronic ments and in po- certain to call mail to Herren states: they provided lice. Defendants state that resources, rotation, Robinson with time off ongoing Due to disturbances and abuse pay, chance to work over-time for Andrew, requesting I Ms. am to be trans- manage- assisted with time and caseload department. ferred to another unit or I am ment. Defendants also removed 80 cases requesting agency that the accommodate from Robinson's caseload when Robinson my request. returned sick from leave. Dep. Rl-18 at Robinson Exh. Herren for- R2-29 at 13. Hart, warded Robinson's electronic mail to responded who to Robinson: 9. Solomon was a defendant the district you I received email a[n] on 10/21/04 judge court. granted The district him sum request. you same I advised mary judgment against because suit him in present documenting that time to capacity his official against is a suit the local causefd] disturbances and abuse Ms. An- government entity, or DFCS. *8 anything drew. To date I have received Hafer Melo, 21, 25, 358, 361, v. U.S. 502 112 S.Ct. you regarding from Ms. Andrew. I am (1991); Vineyard 116 301 County L.Ed.2d v. willing any you more than to address issue Ga., 1207, Murray, 990 F.2d 1210 n. 3 However, having your supervisor. of are with (11th Cir.1993) curiam). Therefore, (per Sol you provide must me documenta- longer party omon is no a in this case. tion. Id. determining In that and Robinson judge 8. The super- district also described the spoken concerning public had of issues con- visors' view of Robinson’s work and com- cern, judge the district that concluded "the plaints: public strong knowing has a interest in that Defendants caught maintain that Robinson sys- children within the DeKalb DFCS unproductive, telephone necessarily failed to return public tem are not safe. The also calls, appear appoint- and failed to government for has knowing an interest in that trying ments. Defendants appear further contend that officials are to make it that complained clients that Robinson improving, threat- services at DeKalb DFCS are stamp ened to eliminate food they their allot- not.” R2-29 at 20.
1341 is clear- law “[t]he Id. While confronted. public concern.11 of issues these on out may employer that that established ly judge concluded district for employee a discharge whistleblowers or had been demote v. Travers warning that speech,” protected had fair engaging defendants Cir.2003) (11th for liability subject 1294, them Jones, F.3d 1295 could 323 actions McPherson, Amendment First of a curiam) v. violation alleged (citing Rankin (per defendants he denied Accordingly, 2891, 97 right. 383, 378, 107 S.Ct. U.S. 483 challenge they immunity, which qualified inquiry (1987)), the threshold 315 L.Ed.2d interlocutory appeal. immunity appro- is if deciding qualified for Amend- First determining under is priate DISCUSSION II. whether law ment, government-speech Analysis Immunity Qualified A. violation a constitutional been there has employer. gov allows government immunity “Qualified dis carry out their ernment litigation, Inquiry without fear
cretionary B. duties plainly all but suit from ‘protecting of em regulation Government vio knowingly is or one who incompetent regulation its speech differs ployees’ ” City v. Mercado the federal law.’ lating v. citizenry. Connick of its (11th 1152, Cir. Orlando, 1156 407 F.3d 1684, 140, 138, 103 S.Ct. U.S. Myers, 461 omitted). 2005) (citation government A (1983); Pickering v. 1686, 708 75 L.Ed.2d or her dis his acted within has employee Dist. High Sch. Twp. Educ. Board objective circum if authority cretionary 1734, 1731, 568, S.Ct. 205, 563, 391 U.S. challenged actions stances show (1968). an em Acting as L.Ed.2d 811 em performance in the occurred broad afforded government ployer, the scope “and within duties ployee’s decisions. employment in its discretion Reg’l v. Dekalb authority.” Hill this 1087, 1092 F.3d Clifton, 74 v. Johnson 1176, n. 17 Ctr., F.3d Det. Youth by the Cir.1996). settled well (11th It Cir.1994). the affirma (11th analyzing In Pickering in Connick Court Supreme use immunity, we qualified defense tive employee’s that, government facts (1) alleged do the inquiry: two-part protection, First Amendment have violated actor that the show (1) citizen as a spoken must have (2) con was that right? constitutional con (2) matters addressed Sau clearly established? right stitutional “directive,” we Following cern. Katz, 533 U.S. v. cier determine we must recognized (2001). “The 150 L.Ed.2d made at issue was “whether for determin inquiry” relevant, dispositive citizen, role employee’s in the primarily is whether law established clearly ing employee.” the role primarily con employee’s reasonable 723, 727 Vickrey, 855 Kurtz in the situation clearly unlawful duct was *9 those concurrent Subsequent to and al- Robinson's and of As a result 11. sub- statements, were Boyce and Robinson judge speech, district the leged public-interest management’s allege be they to ject what supervisors retaliated to that their determined retaliatory ac- intimidating, harassing, against them: actions salient Management's most tions. struggling with were Boyce and repri- the are against Robinson told plaintiffs large Both very caseloads. Boyce and the and termination mand they could that and others their Robinson. and transfer reprimand family each adequately serve R2-29 at 17. many cases. they had too caseload Cir.1988). Supreme The Court has clari 1961. Focusing on the aspect “citizen” fied and simplified this inquiry by holding the First Amendment analysis, the Court “when employees make state determined that the research and memo- pursuant ments duties, to their official the randa part deputy the district employees are not speaking as citizens for attorney’s official duties. Since his find- First purposes, Con the ings and recommendation were “pursuant stitution does not insulate their communi duties, to” his official he was not speaking cations from employer discipline.” Garcet Amendment; aas citizen under the First Ceballos, ti v. U.S. Id. at 1960. The Court determined that 1960, 164 (2006). L.Ed.2d 689 “[Restricting speech that owes its exis- Garcetti, In a Angeles Los County depu- tence a public employee’s professional ty attorney district two disposition wrote responsibilities does not infringe any liber- memoranda recommending dismissal of the employee ties might have enjoyed as a case, the charges in which his research private citizen. It simply reflects the ex- revealed that a search warrant affidavit ercise of employer control over what the contained misrepresentations. A meeting employer itself has commissioned creat- involving deputy the district attorney, his ed.” Id. supervisors, of the An- Los geles County Garcetti, Sheriffs Department, Following our circuit allegedly heated, became has analysis conducted to modified the step first discuss the search warrant affidavit. De- the Pickering test analyzing for alleged spite the expressed by concerns the depu- government employer retaliation to deter ty attorney, district the decision was made mine if an employee’s speech has constitu to proceed prosecution. with the He was protection tional by deciding at outset the called the defense regarding the alleged (1) if government the employee spoke as misrepresentations at a hearing, but the an (2) or citizen and if the trial judge rejected the challenge to the speech addressed an issue relating the search warrant. deputy district attor- mission of the employer or a ney subsequently was transferred from his matter of public concern. D’Angelo v. calendar deputy position to a trial deputy School Bd. Fla., Polk County, 497 F.3d position at another courthouse. He sued (11th Cir.2007).12 To qualify as § under alleged change his constitutionally protected speech in the job and location had been retaliation for Amendment, government employ speech; his Ninth Circuit agreed, but ment retaliation context that warrants the the Supreme Court reversed. Pickering analysis, as speci Garcetti has fied,
Garcetti instructs speech “[t]he must be gov made proper inquiry is a practical one.” Id. at ernment employee speaking as a citizen Following Pickering, analysis our of retalia- employment adverse employ- action. If an against tion employee by an ee satisfies her on the burden three first employer alleged constitutionally protect- [(4)] steps, then burden shifts ed comprised has been parts: of four employer show preponderance prevail To under analysis, evidence that it employ- would made (1) ee must show that: same decision even in involved the absence of the concern; (2) a matter protected employ- speech. ee’s free outweighed Dist., interests County Cook Gwinnett Sch. 414 F.3d employer’s interest in Cir.2005). effective and efficient The first two responsibilities; (3) fulfillment of its law, parts questions and the two last *10 speech the played a part substantial questions in the parts are of fact. Id.
1343 through its em performs it services public See concern. public subject a be on and of at 88 Pickering, 391 U.S. Dawsonville, F.3d ployees.” 499 City v. Phillips of curiam) Therefore, “in the First Cir.2007) (per at 1734-35. (11th S.Ct. 1242 Amendment, context, restric retalia- courts review in a First (concluding gov- that the greater following speech employees’ Garcetti with on case tion tions accord in speaking “was govern the balance order to ernment in deference as and not City the Clerk duty as in its with her interests legitimate employer’s ment Padrón, 484 citizen”); v. Vila private Dep’t Oregon v. Engquist mission.” Cir.2007) (acknowl- (11th 1334, 1339 Cir.2007) F.3d (9th 985, 995 F.3d Agric., 478 analyze a that, to after Garcetti edging 1960). Garcetti, Ac at 126 S.Ct. (citing Amendment, claim retaliation whether must decide initially cordingly, we employee, “[t]he government by a speech spoke government as Robinson Boyce and govern- [the is whether question threshold Deciding wheth as citizens. employees or aon a citizen spoke as employee] relates speech government employee’s aer City v. concern”); Mills public matter of issue of job opposed as to his or her (7th 646, 647-48 Evansville, Ind., F.3d 452 determined the be “must concern public “[o]nly Cir.2006) (recognizing form, given state content, and context penalizes employer record.” ment, by the whole as revealed the citizen’ must ‘as a utters plaintiff that a 147-48, Connick, U.S. at If analysis). Pickering the court consider” however, was employee, the can there then employee, as an for DeKalb managers speaking case As issue, the and First Amendment no job be DFCS, and Robinson’s no consid- with ends inquiry constitutional allegedly children the cases investigate Mills, test. See Pickering the eration to make recommendations and risk (“Garcetti ... holds at 647 F.3d to meet Both failed supervisors. their subject-matter asking whether before elec respective In their quotas. their public topic is a particular union supervisors mails tronic whether must decide concern, court ADOs, to be overworked claimed each or a citizen’ ‘as speaking plaintiff be mis could that children commented add- (emphasis job.” part of Robinson Boyce and die because treated Therefore, Pickering balance ed)). “[t]he as all the to handle unable were first deter- is unless it triggered mentioning than Other to them. signed is consti- employee’s mined previously, had died children that the six Mills, Ferrara tutionally protected.” case, at issue are not who Cir.1986). (11th 1508, 1513-14 F.2d child single identifies specifically neither dis therefore must “A court danger. was in who employee’s purpose cern the com- in which and context The form on be spoke is, whether speech&emdash;that were made Robinson Boyd and plaints citizen, or whether aas half of intend- they fact that of the indicative em as an for herself employee spoke with connected only to address matters ed Ford, Morgan v. ployee.” Verbal, elec- DFCS. jobs at DeKalb their curiam). Cir.1993) Importantly, (per Boyd complaints mail, ADO tronic employ [government of the interests “the focus to their mat citizen, upon commenting ee], aas caseloads that their respective views their be balanced must public concern” ters not to each caused high, too State, as an em interest “the deadlines, conse- expected meet efficiency of the promoting ployer, *11 quent supervisors, assistance. need for Robinson’s diate concern personal her although more in a complaints, often writ- working conditions without reference to or memorandum a ten format as a letter to child, any particular family, or case. Sig- supervisor, were not sent outside nificantly, speech by Boyce occurred entity, like the to a teacher’s letter news- reprimanded she had been after Pickering, in paper not did address placed a performance plan because of subject any personal to her working performance Andrew, issues raised DFCS; conditions at she reiterat- McMillan, and Solomon and her dis- after same about personal ed her issues which missal had been recommended Andrew complains in her mail electronic com- and McMillan approved by Solomon. supervisors. munications with her Therefore, her remarks at meeting the could not have an instigating been factor in police
We that a have determined the employment any decisions of of her generated in the report “normal course of defendant supervisors. Additionally, the plaintiffs] speech duties” [the was not on a in undisputed evidence concern, record is that public although matter of it con Boyce’s Herren po tained information unfavorable involved termi- Crow, department. lice Morris v. 142 nation. (11th Cir.1998) (per F.3d cu- A “public employee may not riam). “The that fact such information personal grievance transform a into a mat may general the public, be interest public ter of by invoking concern a sup however, it ‘public does not alone make posed popular way public interest purposes.” concern’ First Amendment Ferrara, institutions are run.” 781 F.2d at Id. at 1381. “To all presume that matters inquiry “[T]he relevant is not transpire within a office whether the would be interested in are of concern mean would topic at issue but rather virtually every certainly remark —and ev is ‘whether purpose plain the [the ery criticism at a public directed official— tiffs] was to raise of public issues plant the seed of would a constitutional Maggio Sipple, concern.’” 211 F.3d Connick, case.” U.S. Cir.2000) (quoting Mor
at 1691. 754) (alteration gan, 6 original); Boyce additionally relies on statements see v. Kirkpatrick, 722 F.2d Renfroe 7, 2004, the April she made at staff (11th Cir.1984) (“[Plain curiam) (per meeting attended DeKalb DFCS em- tiffs reference to the students’ welfare ployees supervisor. Specifical- and state during presentation her oral to the Board ly, any she asked whether sys- there was is not bring grievance sufficient to place tem in to alert the state office within rubric of matters ‘public con manager case been assigned had too many ”). cern.’ The safety of children under De- cases; whether the Governor’s office was Kalb DFCS care is the paramount issue of going require that DFCS case workers importance to purpose agency; certified; be whether there were checks it is each intertwined with act of a case and balances in place regarding assign- manager impacts every aspect of the occurred, before crisis performance job. of a manager’s case child; such generally death of record in this case reveals that the complained helping that no one was Robinson, managers ques- ostensibly their cases. These while open meeting, tions asked in an intermingled safety staff like with issues of child her other communications with imme- and DeKalb mismanagement, DFCS
1345
implicated.”).
is not
Amendment
First
the
public
of
matters
address
to
not intended
“heightened
employers
Government
of a citizen.
perspective
the
concern
by an
controlling
made
in
interests
Corp. v. Patter
Towing
Plains
See White
capaci
professional
in his
Cir.1993) employee
(2d
1049, 1059
son,
F.2d
991
that their
“must ensure
they
ty,” because
an issue
as to
“[e]ven
that
(recognizing
ac
communications
official
employees’
as a matter
viewed
arguably be
that could
and
judgment,
curate,
sound
demonstrate
has
concern,
employee
the
if
public
of
Garcet
mission.”
employer’s
the
promote
to further
in
solely
order
the issue
raised
case, Boyce
In this
ti,
at 1960.
126 S.Ct.
interest, his First
employment
his own
excuses
complaints and
Robinson’s
and
is
that
on
to
right
comment
Amendment
concerning and
workloads
their
about
(citing Con
weight”
little
to
is entitled
sue
for their
disruptive
1694)).
at
154, 103 S.Ct.
nick,
at
U.S.
461
DFCS,
investi
to
of DeKalb
mission
the
addressed
Boyce and Robinson’s
concern
make recommendations
and
gate
frustrations
grievances
personal
danger, was not
reportedly in
ing children
DeKalb
managers at
case
jobs as
being accomplished.
to
result
they viewed
be
DFCS, which
supervi
and Robinson’s
administra
internal
mismanagement
in their
adjustments
made some
had
sors
inci
specific
no
generally with
tive affairs
workloads,
those measures
but
respective
or docu
reporting
false
alleged
dents of
it
When
problem.
resolve
not
did
employee
public
a
“When
mentation.
she still
that
to Robinson
apparent
became
responsi
employment
speaks pursuant
quota,
review
meet her
not
could
analogue
relevant
bilities,
is no
...
there
transfer,
granted
a
requested
govern
are not
who
citizens
Boyce’s written
supervisors.
by her
at
Garcetti, 126 S.Ct.
employees.”
ment
her workload
about
complaints
verbal
ensure
is to
responsibility
“Our
1961.
remarks
as her
help, as well
lack of
of fundamental
deprived
are not
citizens
meeting, were
staff
open
in an
expressed
govern
working for
by virtue
rights
to the mission
stark contrast
in
grant
a
require
not
ment;
does
confirmed
DFCS office
af
grievances not
employee
immunity for
decision.
correct
termination was the
to those
Amendment
First
by the
forded
at
S.Ct.
Connick,
103
at
461 U.S.
See
Connick,
for the State.”
who
work
do
per
(“
employee
a government
1693 ‘When
147, 103
at 1690.
at
S.Ct.
U.S.
superior,
his immediate
sonally confronts
in
held
Court
Importantly,
effi
institutional
agency’s
employing
speaks
employee
Connick,
public
a
“when
only
may
threatened
ciency
be
public
matters
upon
a citizen
also
not as
but
message
employee’s
content of
upon
employee
an
it
concern,
instead as
but
in which
manner, time,
place
by the
”
interest,
omitted)).
absent
(citation
only
personal
“[T]he
matters
delivered.’
circumstances, a federal
mana
prohibit
most unusual
does not
Amendment
employee’s
forum which
appropriate
based
discipline
is not the
court
gerial
re
deci
personnel
official
pursuant
the wisdom
made
expressions
review
Garcetti,
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126 S.Ct.
agency
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1349 (Tenth at 1202-03 mer-Hoelter, F.3d 492 by govern- cases Amendment, retaliation n. 5 Reuland, at 415 460 F.3d Circuit); employees: ment 647- Mills, F.3d at Circuit); 452 (Second asking ... holds Garcetti before Circuit). using is circuit (Seventh Our particular 48 subject-matter whether concern, the following Garcetti analysis public expedited topic is plaintiff if whether as Garcetti Pickering decide citing must court without part asor citizen” “as a First Amend speaking decision independent Only job. involving govern ment, retaliation utters plaintiff speech that penalizes City Phillips v. See employees. ment consider the court must a citizen” (11th “as 1239, Dawsonville, 1242 F.3d 499 inter- private the balance curiam) in a (concluding Cir.2007) (per posed questions ests, along with other follow Amendment, retaliation case and its successors.... Pickering that the ing Garcetti Ind., Evansville, F.3d 452 City v. Mills duty in accord with speaking “was Cir.2006) v. (7th (citing Waters 646, 647-48 citizen” private as a and not City Clerk 1878, 128 661, 114 Churchill, U.S. S.Ct. 511 analy using Pickering or its citing without 461 Myers, (1994); v. Connick 686 L.Ed.2d Padrón, 1339 484 sis); Vila 1684, 75 L.Ed.2d S.Ct. U.S. Cir.2007) Gar- after (acknowledging Line Consol. (1983); v. Western Givhan Amendment, that, a First analyze cetti Dist., U.S. Sch. govern claim retaliation added). (1979)) (emphasis L.Ed.2d question threshold employee, “[t]he *16 analysis judicial is efficiency for The employee] government [the whether is employer penal only when a public a matter of on a citizen as spoke ‘as “utters izes the Picker in engaging without concern” bal the court consider citizen’ must case). This citing the ing analysis interests” —the private ance of instruction reasoning or the Court’s Mills, 452 F.3d analysis. Pickering Garcetti. recognized Indeed, have we 648. other analysis implemented changed Garcetti/Pickering utility of analysis of “refined our circuits Gar- cases since in our analysis is evident D’Angelo Pickering test.” step of the first case, preva- show the cetti, which, like this Fla., 497 County, Bd. Polk v. School Amendment, retaliation lence Cir.2007). Conse 1203, F.3d employees involving cases ours, circuits, like quently, to citi- opposed as employees speaking five-step Garcet- to a changed definitively interest. issues of speaking zens none following Garcetti ti/Pickering test 1239; D’Ange- 499 F.3d See, e.g., Phillips, five-step in this actually engage theless Vila, 1203; lo, 497 F.3d step of first divide the we analysis, because us given has Court Supreme Because Id. subparts. into two test Pickering these analysis Garcetti expedited upon built has the Court In Garcetti adopted circuits have other cases that give cases to succeeding Pickering and I acknowledging, using without we analy a distinction courts federal lower five-part Garcet- implement would Amend of First review expedites sis that circuit. in our ti/Pickering analysis govern involving ment, retaliation examining the first expedited This classification. employee’s at least recognized has been analysis Bram See post-Garcetti. circuits
three