Donna Cockrel v. Shelby County School District

COCKREL, Plaintiff-Appellant, Donna

v. SCHOOL SHELBY COUNTY DISTRICT, AL., ET De-

fendants-Appellees.

No. 00-5259. Appeals, United States Court of Sixth Circuit. Argued March 2001. Decided and Filed Nov. SILER, MOORE, CLAY,

Before: Judges. Circuit

OPINION

MOORE, Judge. Circuit (“Cockrel”) ap- Plaintiff Donna Cockrel granting decision peals the district court’s Shelby County Public School District (“School “District”), Superin- or District” Mooneyhan, Principal tendent Leon (collectively Bruce Slate’s referred to as “defendants”) summary judg- motion for respect ment to Cockrel’s First with claim, which she Amendment retaliation § brought pursuant U.S.C. REMAND case REVERSE and We proceedings court for further district opinion. consistent with this

I. BACKGROUND Cockrel, a tenured fifth- Plaintiff Donna Elementary Simpsonville teacher at grade Kentucky Shelby County, in the School terminated July District was School Dr. by superintendent, the District’s District’s Mooneyhan. Leon The School for termi- proffered grounds insubordination, conduct unbe- nation were teacher, incompeten- coming inefficiency, for duty. of As the basis cy, neglect and District detailed charges, these School of misconduct specific instances seventeen Cockrel, fading including: engaged the school’s “Just disparaging to teach and curriculum; Har- calling Principal Think” members front of staff ry Slate names students; cooperate with failing and and I aides in program I and the Title the Title (briefed), F. Mooney Eugene James M. class, faculty as with other as well (ar- (briefed), Mooney L. Mooney Matthew Ele- Simpsonville members and staff briefed), Mooney Mooney, & gued and mentary School. KY, Mooney, Lexington, Plaintiff-Ap- for pellant. alleged numer- the School District While decision to terminate ous reasons for its (argued), John C.

Robert L. Chenoweth fired Office, Cockrel, that the District (briefed), she claims III Law Fogle Chenoweth Woody to invite Frankfort, KY, her due to her decision Defendants-Appellees. Trees,” in the use of industrial film which Harrelson, and actor the television “Woody” on alternative to hemp possible role as fibers as a most famous for his “Cheers,” discussed, and the network television show pulp wood was to be Cockrel give presenta- her classroom to others to representative contacted was of in- environmental benefits (“CNN”) tions on the and asked News Network Cable illegal hemp. Hemp, substance dustrial cameras to film permit if she would CNN’s 218A.1422, Ky.Rev.Stat. §§ Kentucky, in a presentation larger her class for use 218A.010(14), from plant is a which both conservation. Cockrel program on tree can har- marijuana and a valuable fiber be immediately then informed claims that she two varieties of the There are vested. visit to their potential Slate of CNN’s marijuana plant. plant is the hemp One school, does not recall this though Slate itself, approximately four to seven with conversation. tetrahy- weight comprised of its percent Hickey, early May presi- Joe (“THC”), the active chemi- drocannabinol Kentucky Hemp Growers As- dent of marijuana drug; cal in the the other is sociation, Woody informed hemp, plant grows which might Kentucky with Harrelson visit can taken stalks and from which fibers CNN, might and that Harrelson also visit paper goods to make various such Cockrel claims that she her classroom. Mintz, Splendor John in the clothes. specific information as to given was no Grass?, Post, 5, 1997, at Washington Jan. classroom, might when Harrelson visit marijuana, HI. Unlike the industrial morning that it was not until the only comprised of 0.1 and plant is between 30, 1996, May day the last of the school THC, amount to percent 0.4 an insufficient year, that she was notified that Harrelson any narcotic effect. Id. Neverthe- have visiting Simpsonville Elementary would be less, Kentucky prohibits possession law day. School that Cockrel informed Princi- hemp plant, including varieties of the both visit, and he pal impending Slate of the any compound, resin mix- “its seeds or or it, claims that agreed though to allow Slate ture, or which preparation contains only presentation he told that the Ky.Rev. substances.” quantity of these agriculture. given be was about 218A.010(14). 218A.1422, §§ Stat. Harrelson arrived at the school later claims that on at least three Cockrel seven-year morning “entourage, that with an includ- during occasions tenure Elementary organized Kentucky she Simpsonville ing representatives of speakers Kentucky Hemp outside to come her class Hemp Museum and hemp. fur- speak Association, about industrial Cockrel Cooperative Growers several that Principal ther claims both Slate countries, foreign hemp growers from Mooneyhan knew that she Superintendent CNN, Kentucky and various media news organized hemp presentations. representatives.” Appellant’s Br. at 4-5. never Principal alleges While Slate that he complaint, As stated in Cockrel’s Harrel- hemp being knew industrial was discussed op- with the children about his spoke son class, he does admit that use, marijuana position yet he distin- plans, Cockrel’s lesson on at least one oc- marijuana hemp guished from industrial casion, specifically hemp mentioned that hemp and advocated the use of industrial was to be discussed. ef- logging as an alternative to increased presentation, prod- 9, 1996, part forts. As April following

On or about hemp ucts made from were shown to the to end the 1995-96 Cockrel’s decision seeds, children, hemp as were a banned year project “Saving school with a entitled Kentucky. in the state of Har- In the following substance months Harrelson’s vis- it, Simpsonville Elementary relson’s visit received both local and na- School adopted a policy new visitors for “contro- tional media attention. One student who topics required versial” that ap- advance parental permission did not have to be proval by school administration and writ- videotaped photographed by or the news ten consent parents. students’ This press media was included in a class policy when, put to use during the photograph with Harrelson. next year, Cockrel informed Slate Following Harrelson’s visit and the me- that Harrelson making would be a second garnered, parents dia attention it visit to her classroom to discuss industrial teachers wrote numerous letters to mem- hemp. Cockrel met all require- Shelby County bers School District ments of the new policy, visitors including voicing dismay regard- their concern and providing requisite advance notice to ing hemp presentation. the industrial Sev- Principal Slate and obtaining permission eral of the letters noted the mixed mes- parents from the of her students for their sage sending drug the school was use children to attend the presentation.2 Slate presentation Harrelson’s occurred on attempt did not to discourage Cockrel day many Simpsonville the same Ele- from having another presentation class mentary School students were graduating hemp, nor did tell he her that Drug from the Abuse Resistance Edu- Harrelson should not invited back to (“D.A.R.E.”) cation program offered in the Cockrel, the school. According to howev- school. er, Superintendent Mooneyhan did tell her the complaints expressed Based on year earlier in the school that it would not letters, Superintendent be in her Mooneyhan de- best interests if Harrelson made cided investigation to initiate an more visits to her class. into Cock- While Har- relson was unable to Following day rel’s conduct. attend on the investigation, visit, his scheduled a small Mooneyhan group par- Kentucky advised the Edu- ents, unaware that Harrelson was not com- cation Professional Standards Board ing, (“EPSB”) “loudly went to the school and voiced Cockrel had allowed objections” their to Slate about permit- his seeds, substance, illegal passed to be ting Harrelson to visit the school a second around to students in her during class (Slate Dep.). time. J.A. at 182 Harrelson’s class visit. The Standards Board, matter, after investigating the ulti- Harrelson rescheduled the visit for the mately dismissed Mooneyhan’s complaint week, following January 1997, and prejudice, stating without that there was again fully complied with the an “insufficient basis to warrant certifi- [a] school’s policy. Principal visitors Slate cate revocation action.”1 Appendix Joint again approved Harrelson’s visit. This (“J.A.”) (EPSB Cockrel). at 288 Letter to time appearance. Harrelson did make an 3, 1996, September 1. On based on the find- about when she first learned Harrelson would ings investigation, Mooneyhan gave of the visit; coming failing to have all the private reprimand Cockrel a both for her con- hemp presentation visitors associated with the during duct the Harrelson visit and for other office; register allowing at the school and a inappropriate actions that were discovered. photographed by student to be the media specifically pertaining The criticisms to Har- parental permission. without visit, relson's which were also listed as rea- discharge, sons for her eventual included: al- given per- 2. All but one of her students was lowing hemp passed seeds to be around to her presentation. mission to attend the Harrelson students; allegedly lying to the administration in his Slate stated every years. three group parents bymet was Harrelson his reason for Cockrel’s protesting deposition who were that the school outside problems, scheduling things perception Due to school early visit. review was his only speak able to was Harrelson “going downhill” between had been the stu- minutes before for few students years. previous two two of them for for lunch. Harrelson’s had to leave dents (Slate further Dep.). at 159 Slate J.A. media atten- national again garnered visit neither com- that Cockrel was explained Slate, had Principal who from CNN. tion him and cooperating with municating nor re- an interview asked CNN for been faculty of and the rest of the staff on indus- presentations garding Cockrel’s Elementary, nor was she ade- Simpsonville a written state- hemp, trial chose issue curriculum following the school’s quately statement, said In his Slate ment instead. policies. and following: trend Citing examples of this downward Ms. reported has Cock- The media performance, attitude and in Cockrel’s with experienced problems has Shel- rel want that Cockrel did not Slate testified officials, me, County including police charge officer in Deputy Yeager, the teaching about industrial regarding her Simpsonville D.A.R.E. at program prob- I admit that we have had hemp. Harrelson spoken against had out who however, lems, are not all our concerns visits, instructing her stu- her classroom teaching about Ms. Cockrel’s about asked Slate to find someone dents. She complaints also received hemp. I have program. to teach the D.A.R.E. Slate else areas. The about her conduct other ap- had that two teachers further stated and I do Shelby County school officials him to let him know that Cockrel proached teaching disapprove of Ms. Cockrel calling pres- him names outside his se, which hemp, per admit has we about addition, parent and notified Slate as to its historical ence. educational value as an al- potential current uses and its call that her child had heard Cockrel Slate Rather, have crop. ternative we been also noted that a name class. Slate the methods Ms. Cock- concerned about many times when Cockrel sim- there were regarding present rel has used to issues with him failed to ply speak refused to or hemp to students. meetings. attend CNN) (Statement (empha- J.A. year, during In the 1996-97 school then sis in Slate’s statement original). that Harrelson would be after the news permitting went on to criticize Cockrel’s students, again, five visiting her class once around to the passed seeds to be parents’ request, were transferred at their first as well presentation, students at the class. Each time Slate out of Cockrel’s promptly her failure inform him attempted to inform Cockrel of a student’s visit, Harrelson’s first which occurred transfer, to talk with Cockrel would refuse day graduation. the same as the D.A.R.E. him, right past him walking sometimes ini- following In the months Harrelson’s her, with or turn- speak when he tried to visit, shortly tial after his second visit him, to meet ing refusing her back to or January Slate sat on Cockrel’s request- he with him in his office when so conducting class for evalua- purposes ed. the year, tions. That Cockrel was school 20, 1997, in wake of February the On only Simpsonville teacher at Ele- tenured discussing to continue Cockrel’s decision years, mentary to be reviewed after two of industrial with out- the benefits in the whereas tenured teachers School Simpsonville Parent only speakers, side typically District are reviewed once (“PTA”) mentary. a adopted There no evidence Teachers Association statement,” stated, record, however, in part: which “position that Cockrel had been reprimanded activity prior for such behavior opinion, In our Mrs. Cockrel’s inap- few months has been past over the Harrelson’s visits to her classroom. a teacher and role model propriate for law, right Kentucky As is her under our children. We feel she violated for initially decided appeal Cockrel the Su- KY. [sic] code of ethics for professional perintendent’s decision to terminate her. personnel. opinion, school our she thereafter, however, Shortly she withdrew longer can no be an effective educator appeal. her and children’s education system our our 161.120, Ky.Rev.Stat. § Pursuant Su- by would be better served another perintendent Mooneyhan forwarded on to teacher. proffered EPSB reasons for termi- (PTA Statement). A at 291 Position J.A. nating in case Cockrel the Board wished to later, Principal little more than a month teaching revoke certificate. Fol- Cockrel’s issued a “summative evaluation” of Slate EPSB, lowing review Cockrel en- performance, stating that Cock- tered a agreement whereby into written requisite rel did not meet level of teaching her certificate was surrendered forty-three cat- performance five of the (June 1999) years for two 1997 June and egories perfor- of evaluation. Deficient suspended years (July for two following mance was noted in the areas: 2001). through agreement The June parents regarding communication with stated, in part: performance and teacher expecta- student tions; plans; documentation of lesson any wrongdoing While Cockrel denies sensitivity showing “consistent to individu- and further denies that her conduct is academic, social, physical, al and cultural any way a violation of 161.120 KRS responding] differences and to all stu- the Professional Code of Ethics and/or manner”; ability in caring dents to build Personnel, Kentucky for School she positive relationships within the school and evidence, agrees present- that the when community; between the school and hearing, ed formal is such to result with and with acting accordance laws charges all that her finding conduct regulations procedures. J.A. 161.120, inis violation of KRS and the (Performance Evaluation, Mar. at 292-97 Professional Code of Ethics for Ken- 1997). Attached to the evaluation Therefore, tucky Personnel. School parents were several letters from com- it is in her best Cockrel believes plaining about Cockrel’s discussion of interest at this time to enter into this class, hemp in as well as documentation of Agreed Order. alleged other misconduct. Based on this (EPSB Order). Agreed J.A. at 68-69 evaluation, Superin- recommended to Slate 4, 1998, filed in the On June Cockrel suit Mooneyhan termi- tendent that Cockrel be for the East- United States District Court nated. Cockrel was terminated Moo- Kentucky. brought ern District of neyhan July § pursuant to 42 1983 in a claim U.S.C. informing The termination letter Cock- alleged was terminated which she she discharge detailed numerous rel of exercising for her First in retaliation misconduct, alleg- all instances of of which right Amendment of free when dis- discharge. edly served as the basis cussing potential environmental bene- charges of these detailed miscon- Several in- hemp. Cockrel also fits duct that occurred well before Harrelson law contract claim. Simpsonville his initial Ele- cluded state breach of made visit 1046 Estoppel discovery, A.

Following limited the defen- Collateral summary judgment on dants moved that, argue The defendants first § Cockrel’s 1983 claim and asked that the appeal because Cockrel failed to the Su deciding district court abstain from her, perintendent’s decision to terminate state law claim of breach of contract. law, right Kentucky as was her under she collaterally estopped is challenging from agreed The court from district abstain her dismissal this court. As this circuit deciding Cockrel’s state law breach of con- n explained, estoppel, has collateral other tract claim. As for Cockrel’s First preclusion, wise known as issue “refers to claim, Amendment retaliation the district the effect a judgment foreclosing granted court the defendants’ motion for relitigation of a matter that liti has been so, summary judgment. doing In the dis- McDowell, gated and decided.” Barnes v. trict court held that Cockrel’s decision to (6th Cir.1988), 848 F.2d n. 728 5 cert. bring speaker a to discuss industrial denied, 488 U.S. 109 S.Ct. hemp constituted conduct was neither (1989). L.Ed.2d 780 The Barnes court expressive convey partic- nor intended to explained further that federal courts must message, ularized and thus was not consid- give findings agency the factual of a state protected speech ered Supreme under judicial acting capacity preclu jurisprudence. Court The district court sive effect if such findings would have further held that Cockrel’s decision to dis- preclusive effect in the State’s courts. Id. cuss industrial hemp part as of the fifth- (citing University at 730 Tennessee v. grade curriculum could be considered Elliott, 788, 796-98, 478 U.S. 106 S.Ct. nothing more than private speech by a (1986)). 92 L.Ed.2d Kentucky teacher who communicating was give preclusive courts effect to factual find citizen, employee, role as an not as a ings previous in a proceeding “only as to thus did not public touch on matters of matters which were necessarily involved Ultimately, concern. the district court action,” and determined in the former concluded that because Cockrel’s conduct opposed “to matters which were immateri could expressive not even be considered al or unessential to the determination of because, speech, and if it speech, even prior action or which were not neces her curricular choices did not touch on sary Barnes, uphold judgment.” concern, public matters of she did not have (quoting 848 F.2d at 730-31 Sedley City v. right First Amendment to discuss indus- Buechel, West (Ky. 461 S.W.2d Thus, trial in her classroom. be- 1970)). cause she had no First right Amendment speak instance, case, this the court con- question this of wheth cluded that Cockrel had no actionable er Cockrel was terminated retaliation First Amendment retaliation claim. Cock- for the exercise of her First Amendment appeal rel’s to this court followed. rights by any was not prior resolved state

proceeding. As Cockrel notes in her reply “[tjhere brief, hearing any was no issue II. ANALYSIS involved in this action. There are no state We must procedural first address two court or findings administrative arguments appellees raised if factual Appel matters involved here.” successful, Reply would render a review of the lant’s if appeals Br. at 13. Even the merits of Cockrel’s First Amendment re- board had decided that prof the reasons taliation unnecessary. claim fered the defendants for Cockrel’s dis- is not a form support protec- the ter- of entitled charge adequate were by that there was substantial tion the First J.A. at 41 mination and Amendment.” 2000). (Dist.Ct.Order, 14, proffered of reasons The court evidence defendants’ Feb. record, her unless raised in light in the Cockrel further stated of the law claim, it would not have decid- granting retaliation discussed in its memorandum considered, ed, whether the true summary nor even judgment, “[permitting Plaintiff defendants’ actions was to motivation of response to file a belated would be exercising her against retaliate her for futility.” exercise in J.A. at 42.4 Barnes, See F.2d speech rights. free for reconsideration filed Motions Thus, First at 731. because Cockrel’s days ten final within of district court’s not ad- retaliation claim was Amendment was, judgment, generally as this one are issue any prior proceedings, dressed treated as a motion to alter or amend the her federal preclusion prevent does not 59(e). judgment pursuant to Fed.R.Civ.P. Id. suit. al., 12 James Wm. Moore et Moore’s Fed (3d ed.2000). § eral Practice 59.30[7] B. Motion to Reconsider Cockrel’s generally While this court reviews the de brief, defendants note their Coek- As 59(e) nial of a Rule motion to alter or respond rel failed to to their motion for judgment amend a for an abuse discre summary judgment requisite within the tion, a de novo standard of review ap is court, The district without period.3 time 59(e) plied when the Rule motion seeks by plaintiff, issued response benefit of grant summary judgment. review of a granting and order de- its memorandum Stores, Inc., v. Smith Walr-Mart 167 F.3d summary judgment motion for fendants’ Cir.1999). (6th 286, 289 2, January February on 2000. On Indeed, because the district court filed a motion with the dis- Cockrel exercising was not its discretion refus asking trict court it to reconsider and set response, allow in ing to but granting the issuance of its order aside law, stating, stead was as matter of parties’ of the summary judgment light any response by plaintiff would be agreement enlarge time an additional futile, apply we a de novo standard of thirty days plaintiff respond so that could legal conclusion. We now review to this summary judg- to defendants’ motion for turn of the to the merits case order The district court denied this mo- ment. futil tion, finding evaluate the district court’s stating that remains clear to this “[i]t later, ity. only "willbe discussed of industrial As Court Plaintiffs selection bring in part curriculum it clear that Cockrel’s decision to hemp as of her classroom agreement writing 3. motion for sum- and circulate it to The defendants filed their opposing signature, mary judgment by mail on December counsel for his the dis- 28, 2000, judge, January giving eighteen days to file trict issued his thus (i.e., ruling summaiy judgment. response days respond on the motion for the fifteen by the Eastern District allotted local rules of Kentucky plus days pursu- three additional Although arguments 4. Cockrel did not submit 6(e) ant to Fed.R.Civ.P. because she was her claims in her motion to merits of mail). Thus, reconsider, served with the motion Cock- the district court did not fault Instead, by January response was due rel’s for this omission. the sole basis for 18, 2000, attorney futility January On Cockrel's ob- its denial of Cockrel's motion prior legal agreement light court's tained defense counsel's that time of her claims in thirty teach enlarged days to re- conclusion that Cockrel’s decision to an additional spond was not to the defendants' motion. Neverthe- her students about less, protected put speech under the First Amendment. the time Cockrel's counsel could con- ordinary firmness from a of person use of industrial advocating the speakers activity; and in that tinuing engage to the First speech under hemp protected is (3) motivat- the adverse action re- was Amendment, First Amendment that but response a to the part as enough to survive ed at strong least claim is taliation rights. summary judg- constitutional [her] of motion for exercise defendants’ the denial, on Thus, district court’s ment. the (6th Daeschner, 729, 737 228 F.3d Leary v. 59(e) Rule of Cockrel’s futility grounds, Cir.2000). that she was To demonstrate er- judgment was reconsider its motion to constitutionally protected engaging ror. speech must show that her speech, Cockrel concern, and public on matters of touched Retalia- Amendment First C. Cockrel’s upon commenting that her “interest tion Claim outweigh[s] ... public concern matters of State, of Review employer, an Standard of the the interest efficiency public the promoting novo a reviews de This court through employ performs services it its summary grant court’s decision district omitted); see also (quotation ees.” Id. Heavy v. Am. judgment. Miller Lift Educ., 106 Floyd County v. Bd. Bailey Cir.2000). (6th 242, F.3d 246 of Shipping, 231 (same). (6th Cir.1997) 135, If the 144 F.3d only if may granted Summary judgment the three elements plaintiff can establish material issues of genuine there no are claim, Amendment retaliation of her First judg is entitled to a party fact and one to the persuasion then shifts the burden law. Fed.R.Civ.P. a matter of ment as defendants, show, by prepon must 56(c). who a fact can dispute A over material evidence, they that “would jury the unless a reasonable derance of “genuine” not be in the nonmoving the the same action a verdict for have taken even could return Inc., Lobby, Leary, Liberty v. conduct.” party. protected Anderson absence of the omitted). 106 91 477 S.Ct. (quotation U.S. 228 F.3d 737 at (1986). reviewing the dis 202 L.Ed.2d Speech? a. This Was summary grant decision to trict court’s Cock- deciding Before whether all the and the judgment, we view facts constitutionally speech protected, rel’s was light drawn therefrom in inferences question must first address this court nonmoving party. most favorable activity be con can whether v. Zenith Ra Elec. Indus. Co. Matsushita at all. The district court’s sidered speech 106 S.Ct. Corp., dio 475 U.S. (1986). First disposing decision Coekrel’s 1348, L.Ed.2d 538 appears to be based on claims Amendment Amend- Elements of a First 2. The uses separate theories that court two Retaliation Claim ment First, court interchangeably. district bring in a Cockrel, stated Cockrel’s decision a teacher Donna District, give presentation County speaker would Shelby Public School who public em not be employee. hemp For a industrial should considered public is a Amend held a claim of First The district court further ployee speech. to establish retaliation, regarding court held that ment this has that a decisions teacher’s demonstrate: she will teach to she content the curriculum must class, still speech, if considered (1) even engaged a constitu- [she] protected by the First Amendment. (2) activity; that the tionally protected holding aside for putWe the second [her] adverse action caused defendant’s the first. likely chill moment turn to injury that would suffer court held because The district To the extent that the district simply bring speakers chose court relied on argument that Cock- hemp, who would talk about conduct speech rel’s was not because she speaking rather than on the matter her- had no advocative purpose bringing when self, free claim is sole- “[h]er based class, enthusiasts to her (Dist.Ct.Mem. ly on conduct.” J.A. this was also error. The Supreme Court in Op.). Also influential the district court’s films, has held that programs, radio and that, staging decision was its notion an live protected by entertainment are all the hemp presentation, Cockrel was First Amendment. v. Borough Schad of intending convey “particularized not a Ephraim, 61, 65, Mount 452 U.S. 101 S.Ct. message,” nor advocating was she or (1981). 2176, Moreover, 68 L.Ed.2d 671 speaking against hemp’s use as an environ- protection, have constitutional those who cutting mental alternative to down trees. choose to show the film or stage play the at 35 (Dist.Ct.Mem.Op.) (quotation J.A. they need not show that intended to con omitted). vey so, particularized message a in doing Regardless reasoning upon which they approved nor that disapproved or relied, content, it the district court in holding erred its for such activities are inherent First, conduct not to speech. be ly expressive and entitled to constitutional to the per- extent the district court was protection. Id. suaded that Cockrel’s actions did not con- points The district court to Judge Mil- Harrelson, speech Woody stitute because concurring burn’s opinion Fowler v. Cockrel,

rather than was doing speak- Education, (6th Board 819 F.2d 657 ing, Supreme this was error. As the Cir.), denied, 986, cert. 484 U.S. 108 S.Ct. in Hurley Court stated v. Irish-American (1987), 98 L.Ed.2d 501 in support of Gay, Group, Lesbian & Bisexual 515 U.S. argument its that Cockrel’s conduct should 557, 570, 115 S.Ct. 132 L.Ed.2d 487 Fowler, speech. not be considered (1995), protec- to receive First Amendment teacher, high request at the of her tion, a speaker generate, does not have “to students, Floyd showed them Pink —The matter, original as an each item featured Wall, containing nudity an “R”—rated film example, in the communication.” For ca- violence, great and a deal of on the last operators, though they only ble even day completed grade of school while she written, spoken, broadcast material cards. Id. at 658-59. The teacher was others, produced by are still considered to showing later terminated for the film. (cit- engaged protected speech. Id. suit, The brought claiming teacher then FCC, ing Sys., Turner Broad. Inc. v. 512 that she was terminated retaliation for 622, 636, U.S. 114 129 L.Ed.2d S.Ct. exercising rights. her First Amendment (1994)). The same First Amendment Milburn, Judge writing only for himself protections newspapers, exist for which in on the issue of whether the conduct of their opinion pages simply collect and showing the film to the class constituted present speech Hurley, others. protected speech, stated because the U.S. at 115 S.Ct. 2338. We see no reason, teacher had never seen the movie before explained nor have the defendants content, court, and had no idea its her decision why this a teacher’s selection of a to show the film could speaker presentation for an in-class not be considered is less “expressive in nature. operator’s a form of than a or communicative” cable Thus, programs Judge decision as to which it to Id. at 662-64. Milburn con- chooses cluded, present viewing showing to its audience. conduct in teacher’s message she wanted deliv- Amend- that this was entitled to First film ered to her students. Id. protection. ment Thus, had we believe that Cockrel disagreed with while Peck and Merritt Judges bringing purpose an advocative analysis of whether Judge Milburn’s students with presented consid- who her showing speakers of a film could be teacher’s benefits Judge information on environmental Id. at 669-70. speech. ered even if Cockrel did not Peck, hemp, outcome of of industrial concurring while organizing when case, purpose con- have such expressive that the stated pres- decision to presentations, to ana- these by Judge Milburn duct cases used consti- showing speakers of the film were ent these class still teacher’s lyze the Merritt, speech. Judge Id. at 667. tutes “inapposite.” movies, books, music that noting Speech b. Is Cockrel’s still for entertainment value purely are Constitutionally ar- protection, First Amendment receive Protected? the teacher’s decision show gued that Id. clearly protected speech. the film was that Cockrel’s our determination Given at 669-70. hemp advo- bring decision to industrial speech, the next cates into her class is analysis in Fowl- Judge Milburn’s While that question we must ask is whether court, if it binding on this even er is not constitutionally protected. As speech is were, clearly of this are the facts case earlier, speech public employee of a stated the distinguishable from Foivler. Unlike only protected by the First Amendment is film of showing of a the content teacher’s concern, public of if it touches on matters about, nothing knew Coekrel’s which she interest in only employee’s and if “the in bring hemp industrial advo- decision con- commenting upon public matters of convey partic- have an intent to cates did of the outweigh[s] cern ... the interest Cockrel, in her message. ularized who State, promoting the employer, as an that a teacher complaint “[s]he states efficiency public performs the services it of Kentucky sponsored trainer the state employees.” Leary, 228 F.3d through its the Class- Agriculture Environment omitted). If (quotation at Cockrel’s 737 1997[,]” from 1993 to worked project room speech cannot meet both of these stan- agricul- designing integrate methods to dards, First Amendment retalia- then her curriculum. topics fifth-grade tural into her go tion claim cannot forward. had, on at least (Compl.). J.A. at 9 She visit, before the Harrelson three occasions Speech i. Does Cockrel’s Touch the brought speakers who advocated use a Matter of Public Concern? trees and hemp of industrial to conserve In determining the facts whether Cock- Viewing other natural resources. Cockrel, speech public touched on matter of light in the most favorable to we rel’s did, concern, state, Myers, turn to Connick v. 461 as the district court we cannot 138, 1684, after 103 S.Ct. 75 L.Ed.2d 708 point during it was not until “some or U.S. (1983), may Supreme the Court’s most instruc presentation Plaintiff have [that] Connick, In tive ease on this issue. developed approval disapproval or of con public stated that matters of hemp[.]” of industrial J.A. at 36- Court use Instead, fairly cern are those that can “be consid (Dist.Ct.Mem.Op.). 37 the evi- political, matter of relating aware ered as dence shows that Cockrel was well social, concern to the communi- hemp, and or other arguments for industrial

1051 ty[.]” 146, Id. at 103 S.Ct. 1684. There is concern” as Court, defined the Supreme question no the issue of some courts have focused on other por hemp great is a matter of of political Supreme and tions Court’s Connick deci sion many concluding social concern citizens Ken- that a teacher’s class speech room tucky, and does not touch we believe that pre- matters of public concern. Boring See v. clearly sentations come Buncombe within the Su- Educ., County 364, Bd. preme F.3d understanding Court’s 368-69 cert, (4th Cir.) (en banc), denied, 525 touching on U.S. public matters of concern. (1998); S.Ct. 142 L.Ed.2d 36 support conclusion, of this first we Kirkland v. Indep. Northside Sch. Dist. turn to the opinion, district court’s which cert, (5th 890 F.2d Cir.1989), 797-99 unequivocally “that stated of in- issue denied, 496 U.S. 110 S.Ct. politically dustrial charged and of (1990). L.Ed.2d 641 These pay par cases great concern to certain citizens.” J.A. at ticular attention to the following portion of Second, 36 (Dist.Ct.Mem.Op.). past holding: Connick Court’s alone, year hemp advocacy a public employee [W]hen speaks not as Kentucky has made news on several occa- a citizen upon of public concern, matters sions, revealing significant extent but instead as an employee upon mat- which industrial hemp has become an im- only ters personal interest, absent the portant publicly debated issue in the most circumstances, unusual a federal October, State. In presidential candidate court is not the appropriate forum in Nader, Ralph in campaign a stop in Ken- which to review the wisdom of a person- tucky, spoke in out favor of legalization the nel decision taken a public agency of industrial hemp and of the benefits it allegedly in reaction to employee’s the would have for family small farmers. A1 behavior. Cross, Nader Blasts Foes in Visit to Connick, 461 at U.S. 103 S.Ct. 1684. Louisville, (Louis- The Courier Journal upon Based language, this the Fourth and ville, KY), 12, 2000, Oct. at Al. In Decem- Fifth Circuits have determined that a ber, after Drug the Agency Enforcement teacher, choosing in what he will teach his confiscated hemp being industrial grown students, citizen, is not speaking as a but on the Pine Ridge, South Dakota Indian rather employee as an pri- matters of Reservation, Kentucky members of the 368-69; vate interest. Boring, 136 at F.3d Hemp Association, Growers including for- Kirkland, 890 F.2d at 800. mer Kentucky governor Nunn, Louie B. We believe that the Fourth and Fifth and, traveled to South Dakota in a ceremo- Circuits have extended the holding of Con- ny at the base Mount Rushmore, of deliv- beyond nick what the Supreme in- Court legally ered imported hemp industrial to tended. Under the courts’ analyses in the tribe aas of its sign solidarity. David Boring Kirkland, teacher, and a regard- Melmer, Kentucky Hemp Farmers Aid less of what he decides to include his S.D., Ridge, Pine Crop Indians De- After curriculum, is speaking as employee an struction, Knight-Ridder News, Trib. Bus. private a Boring, matter. 136 F.3d at Dec. 2000. These examples only 368-69; Kirkland, 890 F.2d at 800. This scratch the of surface the extent to which gives essentially right a teacher no to free- hemp has become an of issue speech dom of when teaching students a political contentious and economic debate classroom, for very the act of teaching is in Kentucky. what the employee paid Thus, is to do.

While discussion of teaching, when even if upcoming an about plainly meets concept the broad of “public presidential election or importance the of inter- and Fifth Circuits’ If Fourth Fifth the Fourth and the Rights, Bill of

our correct, such then leave reasoning would of Connick were pretation Circuits’ protection, constitutional speech employee speaking without was public a time employee, anas speaking is the teacher for Myers like was when she employee, as not as a citizen. employees being question about asked at speech issue campaign, that the pressured indicate The facts Connick Supreme have read Fifth Circuits As protected. not be Fourth would In broadly. language however, too Supreme analysis, Court’s clear in its made Court attorney, fol- Connick, district an assistant person a key question is whether supervisor, with a disagreement lowing a or a employee role as an speaking his seeking opin- questionnaire a prepared speech citizen, employee’s whether the but as on issues such ions of her co-workers con- public of touches on matters fact morale, the office policy, transfer “office Thus, 148^49, 1684. Id. S.Ct. cern. committee, the level grievance need for acting out employee were public even if and whether supervisors, of confidence with no intent air motive private politi- to work pressured felt employees was the case with publicly, as speech Connick, campaigns.” U.S. cal relates as the Myers, long so later fired was 1684. Connick 103 S.Ct. social, con- or other “political, matters on the questionnaire circulating community,” opposed as cern to Id. The Court grounds of insubordination. interest,” it shall “only personal matters many questions while held touching upon matters be considered efforts plaintiffs simply reflected 146-49, 103 Id. at S.Ct. public concern. against her su- information to use gather dis- private employment pervisors in her pres- regarding the Myers’s question pute, case, although she campaigns did political to work on sure employee role an when in her as speaking Id. at public of concern. on a touch matter the environmen- information on presenting Thus, held 149, the 103 S.Ct. Court hemp, the content tal of industrial benefits Myers speaking as was though even supra, most her as discussed speech, of in private interest out of her employee an related to certainly involved the matters combating supervisors’ decision of the commu- and social political concern her, ques- that of fact one transfer the private of to mere matters nity, opposed as the fundamental constitu- dealt with tions Thus, contrary analyses to the in interest. coerced into cam- right not to be tional Kirkland, hold that Cock- and we Boring political candidate paigning a pub- touch matters of does speech rel’s touch particular make this issue enough to lic Id. concern.5 public concern. on a matter of Cockrel, speech on matters entails that her of teaching her students fession 5. While in likely to political and social is be interest benefits of industrial about the environmental citizen, employee and a the both as an arguably speaking both as an em- made hemp, was Instead, citizen, speech is not mixed. of her we do not content ployee and as a believe employee concerning, part, an speech” than in analyzed a rather is best as "mixed this case Lorenzo, dispute, private grievance or some as other v. 241 F.3d case. See Bonnell speech professor's (6th Cir.2001). with the in speech was the case mixed In 811-12 Bonnell, speech cases, relates matters only Cockrel's employee speaks not the at issue public Even if we particularly employee, of concern. but the both a citizen and an as speech analysis, apply so the mixed were to involves of both speech content of her matters employee’s speech, long "any part of an private In this public and concern. See id. discharge, relates to case, to the pro- contributes very which the nature of Cockrel’s while Pickering Balancing ii. in engaging “particular Before a ized balancing” competing of the interests Having held that Cockrel’s case, Connick, at stake in this at U.S. speech public touches on matters of con important 103 S.Ct. it is to note cern, weigh employee’s we must now the employee’s that “if an speech substantially against employer’s in the speaking interest concern, public involve[s] matters of an in regulating speech interest to deter employer may required be to make a par if speech constitutionally pro mine is ticularly strong showing employ that the In Pickering tected. v. Board Edu of speech ee’s interfered with workplace cation, 1731, 20 391 U.S. 88 S.Ct. functioning taking before action.” Leary, (1968), Supreme L.Ed.2d 811 Court omitted). (quotation 228 F.3d 737-38 In endeavored to strike balance between case, this it speech is clear that Cockrel’s rights on public employee’s speech matters (in substantially public did involve that case a matters public public interest school) concern, and thus the defendants will speech school teacher’s outside of have as an employer stronger showing the State’s interest to make a their maintaining productive workplace. regulating plaintiffs interests speech balancing with the test accordance created outweighed speak Cockrel’s interests in Pickering, public employee speech, even ing. concern, if touching public on matters Weighing plaintiffs favor in constitutionally will un protected analysis this the fact that her employee’s speaking less the interest substantially signifi involved matters of “outweigh[s] these issues ‘the interest public Kentucky. cant concern in Defen State, employer, promoting as an claim, however, dants that their “interest efficiency public of the services it per ” in maintaining loyalty, operation efficient through employees.’ Leary, forms its schools, workplace harmony” (quoting Pickering, 228 F.3d at 737 outweighs plaintiffs speak interest 1731). In striking U.S. at 88 S.Ct. ing hemp. Appellees’ about industrial Br. and the balance between State’s em at 27. We first note that the defendants interests, ployee’s respective this court has claim that presentations do not Coekrel’s stated that it will “consider whether hemp meaningfully on industrial interfered employee’s meaningfully comments inter performance teaching with the of her duties, performance fere with the of her duties. Defendants would have a difficult goal a legitimate undermine" or mission of however, making argument, time this con employer, disharmony among create in sidering they openly acknowledged a co-workers, impair discipline superiors, public statement to CNN that there was destroy or the relationship loyalty and teaching “educational value” in students required employees.” trust of confidential hemp about industrial as an alternative 1526, 24 Kentucky, Williams v. F.3d 1536 cert, (Statement CNN). (6th crop. at 265 Cir.), denied, 947, J.A. for 513 U.S. 115 (1994) 358, purport We further note that defendants’ (citing S.Ct. 130 L.Ed.2d 312 McPherson, 378, 388, “maintaining loyalty” inap ed interest in is Rankin v. 483 U.S. (1987)). posite 107 97 L.Ed.2d 315 in circuit S.Ct. this case. While this has concern, later, public speech matters of the court must more detail because Cockrel’s concern, balancing conduct a of interests test as set public does relate to matters of and Education, Pickering forth in v. Board 391 speech, part, because this at least in contrib- U.S. S.Ct. 20 L.Ed.2d 811 discharge, balancing uted to a of interests her Ctr., Inc., (1968).” Rahn v. Drake 31 F.3d Pickering under is in order. (6th Cir.1994). As we will discuss in wrote hemp. Parents industrial use of in balanc- consider its that it stated would Superinten- and Principal Slate to letters to operated speech employee ing whether to opposition Coekrel’s loyalty Mooneyhan and relationship of dent “destroy the and a small hemp presentations, employees[,]” confidential required of trust Elementary Simpsonville Williams, public a school came to number 24 F.3d Har- believe, type of final occasions teacher, hardly protest on the two is we addition, had in the court to visit. employee relson was scheduled confidential rec- that the statement Thus, loyalty position concerns a passed the PTA mind. into longer not teach have will be taken no may ommending Cockrel defendants com- weighing of the District. Shelby County our School in the consideration at stake. interests peting of a contentious Although this evidence in- proffered defendants’ Turning disrupted to the work environ- periodically and defendants, operation in an efficient terests in favor of weighs ment work environ- a harmonious give this weight we should the amount of plaintiffs ment, there is evidence question. entirely an different evidence of these problems both has led whereas by the fact troubled We are Harrelson’s following example, For areas. approv- gave plaintiff prior school officials mem- Simpsonville, numerous visit to first three of al to host all circu- faculty and staff school’s case, bers defen- at issue in this presentations signed letters addressed and or lated effi- of school forward concerns dants now criticizing actions Cockrel’s school officials harmony supporting as ciency and reasons hemp to use of industrial advocating Prin- discharge Cockrel. their decision ex- thereafter students. Cockrel of Harrelson’s approved all cipal Slate with her co-work- displeasure pressed advance, and Slate visits scheduled As on several occasions. ers’ sentiments with problem that he had no openly stated earlier, offi- following D.A.R.E. discussed in- teaching her students about Cockrel of the Harrelson Yeager’s criticism cer con- met the hemp. Cockrel also dustrial visits, officer longer no wanted the Cockrel imple- policy the new ditions of visitors her students. instructing in her classroom visit, initial Harrelson after the mented a replacement to find asked Slate Cockrel of each obtaining permission including Yeager as well. Cockrel’s termination par- child could parents student’s before disputes instances of detañed several letter do ticipate presentation. in the We co-workers, including had with Cockrel outcry use the that defendants can believe jerked phone in which Cockrel instance community protesting the school within signed who away from a co-worker had ap- that was speech, speech out speaking against one of the letters advance, by school officials proved visit, an incident which Harrelson discharge her. for their decision shield “not to waste told co-workers two give substantial ordinarily we would Whhe morning’ they ‘good said their breath after employer’s con- weight government to the 54, 245-46. At least one at [her.]” to J.A. harmony, efficiency, workplace of cerns signed a let- co-workers had also of these balancing conducting in our discipline speak to of Cockrel’s decision ter critical compet- employee’s employer’s of the hemp. about industrial interests, con- we cannot allow these ing Pickering scale in favor cerns to tilt the of the Many and members parents evidence, other government, the absent great community expressed also school consequences of the disruptive when invite the decision to concern over Cockrel’s to can traced back speech employee the to class who advocated speakers 1055 government’s express that, the permit- decision by being terminated, Cockrel has suf- ting the employee engage to in that fered an injury that would chill an ordi- speech.6 nary person from continuing to engage in speech on the environmental benefits

Accordingly, balance, we hold hemp. defendants’ the interests in an efficient operation of the school and a harmonious

workplace do not d. outweigh Was plaintiffs Decision to Terminate interests speaking about the benefits of Motivated, Part, at Least hemp, an issue of substantial by Speak Plaintiffs Decision to political and economic concern in Ken- Hemp? About Industrial Thus, tucky. because Cockrel’s speech The final element of touches on matters of public concern and First Amendment retaliation claim re because the balancing of interests under quires her to show that defendants’ deci Pickering favor, weighs in her her speech sion to discharge motivated, her was at is constitutionally protected.7 We now least in part, by the exercise of her free proceed with an examination of the re- speech rights. Id. This circuit has stated plaintiffs mainder elements of First that “the nonmoving party may rely Amendment retaliation claim. the mere fact that an employment adverse action speech followed employer c. Did the Injury Plaintiff an Suffer would have liked prevent. Rather, to Speech a Result of Her That Would employee Ordinary Chill must link an Person speech question From Continuing to Engage the defendant’s decision to dismiss her.” Such Speech? (citation Bailey, omitted). 106 F.3d at 145 words, In other to survive defendants’ mo

For the next element of Cockrel’s tion for summary judgment, Cockrel must claim, retaliation she must show “that present sufficient to allow a evidence rea defendant[s’] action adverse caused [her] conclude, sonable factfinder to injury pre suffer that would likely chill person ponderance ordinary evidence, firmness from continu that her ing engage speech, that activity[.]” Leary, part, at least in motivated the de F.3d at 737. 228 There is question no fendants to discharge her. Id. noted, 448, This circuit expla- (1st has with ey, Cir.1993); minimal 996 F.2d 453 Silano v. nation, that an may Sag unconstitutional dilemma of Educ., Harbor Union Free Dist. Sch. Cir.1994), Bd. 719, for a speech (2d exist teacher denied, whose controversial 42 F.3d 723 rt. ce officials, approved 1160, ex 2612, ante but 515 U.S. 115 S.Ct. 132 L.Ed.2d post, ex parental (1995); used Schs., the wake of and or 856 v. Miles Pub. Denver 944 community 773, dismay speech, (10th Cir.1991); with that as the F.2d Bishop v. Aro nov, reason discharge. for the teacher's (11th Cir.1991), Stachura 926 F.2d Truszkowski, (6th denied, v. 763 F.2d 213-15 cert. 505 U.S. 112 S.Ct. Cir.1985), grounds, rev’d on (1992). other 477 U.S. 120 L.Ed.2d 897 Pickering The bal 299, 303-04, 106 S.Ct. 91 L.Ed.2d 249 ancing analysis consistently applied has been (1986). See, speech to cases of teacher in this circuit. Bonnell, e.g., (applying 241 F.3d at 821 Picker apply ing college professor’s

7. Rather Pickering, speech); than to a Leary, several circuits chosen apply Supreme (applying have Pickering F.3d 737-38 Court’s analysis elementary speech). of students’ rights in-class school teachers' We see Kuhlmeier, School part District v. no Pickering Hazelwood 484 reason from when decid 260, ing U.S. 108 98 involving S.Ct. 592 L.Ed.2d cases a teacher's in-class (1988), to speech, cases in which teachers’ parties in-class nor have either of the in this speech rights are at issue. See Ward v. argued Hick- case Pickering apply. that should not 1056 Rebutting First the Plaintiffs certainly signifi is

Although there Amendment Retaliation at behavior evidence that Cockrel’s cant Claim pre school, from the industrial apart sentations, we be inappropriate, was often has success Because Cockrel enough presented has that Cockrel lieve of the sum fully purposes for established jury could such that a reasonable evidence mary judgment stage the three elements defendants, terminating that find claim, retaliation of her First Amendment her, motivated partially were at least shifts to the de persuasion the burden hemp. speak decision to on industrial earlier, to defeat the fendants. As stated in her pieces of evidence work Several trial, at the defendants plaintiffs claim First, early initiated Principal favor. Slate by a of the evi preponderance must show in the 1996-97 of Cockrel evaluations they would have terminated dence that following Harrelson’s first visit year school engaged she not con Cockrel even had day the last of the 1995-96 to her class on stitutionally protected activity. Leary, 228 year, year. In the 1996-97 school claim on plaintiffs F.3d at 737. To defeat only tenured teacher Slate Cockrel was the however, summary judgment, a for motion of more than one reviewed on a schedule must be sur substantially higher a hurdle In addi every years. three evaluation where, particularly as is the case passed, tion, and teachers’ parents’ on the based here, ultimate moving party bears the Har complaint following letters the initial persuasion on this issue at trial. burden visit, Mooneyhan Superintendent relson al., Moore’s 11 William Moore et James investigation into open-ended initiated an (3d 56.13[1], § Practice at 56-138 Federal de Finally, school conduct. Cockrel’s ed.2000) (stating moving party if the testimony that the March position shows persuasion the burden of also bears as the 1997 summative evaluation served trial, summary initial moving party’s Principal recom upon which Slate basis in that it must judgment “higher burden is Mooneyhan that Cockrel be mended that the record contains evidence show fired, Mooneyhan’s also a factor in and was satisfying persuasion the burden and ultimate decision to terminate Cockrel. powerful the evidence is so that no several to this evaluation were Attached jury reasonable would be free to disbelieve and critical of parents letters from staff it.”). summary judgment in their To merit to teach her students Coekrel’s decision favor, may simply bring the defendants hemp. about jury enough forth evidence to allow evidence, they find that would have terminated examining this we con-

After Rather, find, regardless speech. of her jury prepon- could clude that evidence, reviewing summary judg a motion for the defen- derance of the ment, we must view the evidence and draw discharge Cockrel was dants’ decision motivated, light all inferences most part, by at least in her decision reasonable party, Matsu nonmoving favorable to the to teach her students about shita, 1348, and 475 U.S. at 106 S.Ct. hemp. temporal proximity The between party in favor of the “[sjummary judgment series of the Harrelson visits evaluations, inap ... persuasion as well the with the burden unscheduled susceptible propriate teacher com- when the evidence is parent influence the interpretations or inferences appeared to have on the defendants of different plaints Cromartie, visits, by the trier of fact.” Hunt v. in the wake of the Harrelson consti- 119 S.Ct. evidence for Cockrel to es- U.S. tute sufficient (1999). Thus, plain element of her First because tablish the causation L.Ed.2d the elements of her tiff has established retaliation claim. Amendment retaliation, class, Amendment visit her spoke claim for First she with Superin- summary judgment Mooneyhan the defendants is tendent possibility about the only if the proper evidence is such making Harrelson a second visit every reasonable juror would conclude that Simpsonville Elementary. Cockrel that, the defendants have met their burden of during claimed the course of this showing conversation, that Cockrel would have been ter- Mooneyhan told her that it spoken minated even had she not to her would not be in her if best interests Har- hemp. class about the merits of industrial any relson made more visits to her class. (Cockrel Dep.). J.A. at 104-05 While Moo- In July 1997 termi neyhan denies making ever such a state- by Superintendent nation letter sent Moo ment, Mooneyhan Dep. I at when re- Cockrel, neyhan to seventeen reasons were viewing defendant’s summary motion for given as the basis for the school district’s judgment, required we are to view the discharge decision to her. J.A. 51-55. evidence in light most favorable to litany Among reasons offered Cockrel, This, the nonmoving party. defendants for discharge were: alone, creates a material fact issue over her calling Principal Slate names front the extent to which defendants’ decision to students;8 of staff members and her fail discharge Cockrel was motivated mandatory ure to teach the school’s “Just bring decision to advo- curriculum; Think” her persistent failure cates to class. I program; follow the school’s Title Other, inappropriate language displays circumstantial, of an more evidence class; ger general and her weighs failure to also in favor of allowing Cockrel to cooperate with other members of the proceed trial on her retaliation claim. Simpsonville community, point earlier, school As Principal noted Slate initiated already which we have discussed in detail. early evaluations of Cockrel in the 1996-97 question There is no that Cockrel’s con year following school Harrelson’s first visit duct, if it did in fact occur as the defen day prior year. on the last of the allege, completely dants inappropriate. addition, Superintendent Mooneyhan’s Furthermore, we have no doubt that con investigation decision to conduct an into duct of this nature can adequate serve as solely Cockrel’s conduct was based on the grounds employee’s for an termination. parents’ and complaint teachers’ letters he this, however, Despite viewing after all the following received the initial Harrelson vis- light evidence the record in the most it. is no There evidence the record that Cockrel, favorable to we do not believe any news of conduct improper alleged signifi that the defendants have met their letter, in Cockrel’s termination much of showing every cant burden of reason which occurred well before Harrelson set that, juror able would conclude even had grounds Simpsonville foot on the Ele- spoken Cockrel her students about mentary, relayed had ever been to the hemp, she would have been ter in- Superintendent before the decision to any minated in event. made, vestigate Cockrel had been nor is there evidence that Cockrel had been pieces weigh Several of evidence against disciplined by any school administrator for granting summary judgment defendants’ First, this conduct Harrelson arrived on motion. before Cockrel testified her de- many allegations the scene. While position beginning at the of the 1996- would, true, year following against 97 school Harrelson’s first made if Mooneyhan’s profanity-laced letter to Cockrel describes in to Cockrel's remarks directed faculty attesting detail the names of and staff at Slate. nursing home Langford, part, guishable. her on misconduct amount to serious in engaging con- was fired after employee for disciplined that she was the fact activity speaking in stitutionally protected behavior, Superin- nor did the any of this in front of employment dispute about an it, Harrelson until after tendent know County Board of Commissioners. the the school members of and various visited day The F.2d at 678-79. Langford, 921 displeasure with community voiced their Langford was sched- plaintiff the before genuine issue to leads presentation, the (Lane) asked supervisor speak, uled to concerning the defendants’ fact of material why to discuss (Langford) plaintiff the have been would that Cockrel assertion (Langford hostile to her Langford was so speak to on of her decision regardless fired co- Lane in front of had earlier insulted of industrial benefits the environmental workers) to Langford planned and what hemp. evening. Lang- the Board the next say to evaluation telling is the summative Also discussion, engage to ford twice refused itself, testified was Principal which Slate After employees. in front of other once he recommended to upon which the basis her, Lane speak to with Langford refused fired, and Mooneyhan that Cockrel be if Lane could fire supervisor asked a factor in Mooneyhan admitted was which con- Langford based on this insubordinate discharge decision to Cockrel. his ultimate that, supervisor told her be- duct. Lane’s Mooneyhan Dep. II at 150. As evidence allegedly cause he had not witnessed performance deficient allegedly conduct, he could not make insubordinate evaluation, Princi- categories of in several Rather termination decision for her. to attached numerous documents pal Slate left a note discharge Langford, Lane than Among these documents the evaluation. meet with her the follow- Langford parents from staff and were several letters Langford scheduled ing day, day was speak criticizing Coekrel’s decision Lang- the Board. This time speak hemp, position as a state- as well Lane, though agree did to meet with ford PTA Simpsonville adopted ment postpone Lane to their Langford asked longer no recommending that Cockrel day Langford after meeting until that to teach at school based permitted Despite agree- Board. their spoke to the hemp pre- associated with her conduct ment, failed to attend her sched- Langford ap- in the documents sentations. While meeting Langford with Lane. was uled evaluation there to the summative pended then fired. engaging inappro- of Cockrel evidence grant of the district court’s On review apart partic- from her priate behavior summary judgment government to the em- presenta- ipation that the evidence ployer, this court held that, tions, on the we do not believe based jury to enough for a reasonable strong ease, every in this totality of the evidence motivat- employee’s speech that the state juror conclude that reasonable would ed, part, at the defendant’s deci- least terminated not- would have been her. Id. at 683. Never- discharge sion to constitutionally protected withstanding her theless, then held based on this court speech. “rank insubordination” Langford’s circuit’s deci- The defendants cite to this in front of co-workers and insulting Lane Lane, 921 F.2d 677 Langford v. employment sion dis- refusing to discuss her (6th Cir.1991), conten- support requests for their pute despite with Lane Lane’s so, terminat- they have met their burden the defendants would have tion do protected Langford regardless of her retaliation claim. We ed rebutting Cockrel’s believe, however, speech. Id. at 683-84. Langford is distin- defendants in the Although example, Mooneyhan case For cited Cockrel’s frequent use of the telephone have as much evidence of school’s for bar insubordina- business, non-school-related her failure to upon tion other which misconduct to prepare adequate plans lesson for substi- discharge their decision to as did the base teachers, tute and her failure to follow the in it Langford, defendants is less clear in policy school’s visitors for the first Harrel- the current case that the defendants would son visit. For charges, each of these there have fired Cockrel even had she not en- is no evidence in the record that Cockrel First, in gaged protected speech. in had ever disciplined been or reprimanded Langford, acknowledged this court in any way for these prior violations to temporal proximity aside from the be- their inclusion as bases for her termi- requests speak tween Lane’s Lang- with Furthermore, nation. while many of the problems ford their Langford’s about more allegations serious detailed the speaking engagement scheduled with the (i.e., termination letter calling Principal Commissioners, plaintiff Board of had Slate names and inappropriate displays of brought forth no showing evidence that class) anger occurred well before Har- trying Lane intimidate her into not relson came to Simpsonville speak on Board, speaking front of the nor was industrial hemp, there is no evidence that there additional evidence aside from this upon by misconduct was ever acted temporal proximity the of the termination any school administrator until after Har- and her which indicated that the relson made his initial visit. Based on this defendants had retaliated against her for evidence, we do not believe that the defen- case, speaking. Id. at 682. In the current dants have met their burden at the sum- testimony regarding warning Cockrel’s the mary judgment stage of that showing their Mooneyhan, she received from as well as decision to discharge Cockrel would have the attached to materials the summative regardless been made of her decision to evaluation, pieces are engage constitutionally evidence that cast protected speech. more doubt the defendants’ motives

terminating Lang- Cockrel than existed in We are well aware that deci- Cockrel’s ford. sion to speak cannot immunize her from an employment adverse arising decision out of addition, in Langford, plaintiffs su- inappropriate workplace behavior unrelat- pervisor appeared ready and willing to ter- protected speech. Similarly, ed to her plaintiff minate as as plaintiff soon refused employer is not immunized from its deci- speak with her problems about the the sion to an employee terminate based on having. Langford two were was then speech simply that employee because swiftly terminated after she failed to at- engaged has other conduct could meeting they tend a Lane in with which legitimate have grounds constituted for dispute. were to discuss their In the cur- Rather, discharge. review of defen- case, rent there is less evidence that the summary motion for if judgment, dant’s sufficiently defendants were motivated plaintiff the has made out the elements of conduct apart Cockrel’s from her decision claim, her First Amendment retaliation we they to speak when made their decision to must be that the confident defendant’s de- case, although terminate her. In this plaintiff terminate cision to was not Mooneyhan charges cited seventeen consti- part upon plaintiffs based in decision termination, for tuting basis case, speak. In this the defendants proffered several of the provide burden, reasons have not met this and we believe compelling genuine less than basis for termination. that a issue of material facts exists supported a dismissal very con- well have jury could from reasonable which cause, took no toward but the school action have been would not clude that Cockrel until after the of this conduct her for engaged consti- some had she not terminated following Har- Thus, community agitated became this activity. tutionally protected Thus, majority opin visit. rather relson’s resolved at trial matter should relates, upon ion burden summary judgment stage. than at would to show dismissal board III. SUMMARY even in the absence have occurred Healthy City Mt. conduct. See protected reasons, RE- we foregoing For 274, 287, Doyle, 429 U.S. 97 Bd. v. Educ. grant- court’s decision the district VERSE (1977). 568, L.Ed.2d 471 The S.Ct. 50 summary judg- motion for ing defendants’ correctly found that district court court for ment, REMAND to that to show presented evidence school board proceedings. further regard have been fired that Cockrel would SILER, concurring. Judge, Circuit protected conduct. less of Neverthe less, presented has also evidence it, appears inappropri face of it On the this a factual contrary, to the which makes to have a celebri grade a fifth class ate for by summary that cannot be decided issue complicated as on a matter as ty speaker judgment. It is a matter hemp. legalizing Kentucky, as evi concern public in the by anecdotal illustrations denced nevertheless, matters of

majority opinion; may outweighed public concern certain le maintaining interest school’s DISTRICT COUNCIL CHICAGO See gitimate goals or missions. Williams (6th Cir.), OF CARPENTERS PENSION Kentucky, v. F.3d al., Plaintiffs, FUND, et denied, cert. 513 U.S. 115 S.Ct. (1994). 130 L.Ed.2d v. Here, might very school well have CONSTRUCTION, INC., K I& allowing Har- the teacher from

precluded Defendant/Third-Party legalization to discuss relson and others Plaintiff-Appellant, hemp before a of children class v. school, might where it be a grade in a even Chicago and Illinois District Northeast college. One high valid school or topic al., Carpenters, et Third- Council of subjects myriad appro- could out point Party Defendants-Appellees. an older audience would priate for No. 00-3973. for purpose educational promote a valid However, children. grade school Appeals, States Court of United subject in advance the approved Seventh Circuit. pay It must speaker. and the now matter Argued Feb. be- penalty giving prior approval, 2001.* it cannot now be such Decided Feb. cause heard disruptive. Cockrel was conduct true,

Likewise, conduct, if to- may and other principal ward teachers * 23, 2001, of K&I affirming district court's February we order denial On issued an

Case Details

Case Name: Donna Cockrel v. Shelby County School District

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Nov 9, 2001

Citation: 270 F.3d 1036

Docket Number: 00-5259

Court Abbreviation: 6th Cir.