                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 18a0048n.06

                                        Case No. 17-5615                                FILED
                                                                                  Jan 24, 2018
                                                                              DEBORAH S. HUNT, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


RACHEL JONES,                                       )
                                                    )
       Plaintiff-Appellant,                         )
                                                    )       ON APPEAL FROM THE UNITED
v.                                                  )       STATES DISTRICT COURT FOR
                                                    )       THE MIDDLE DISTRICT OF
WILSON COUNTY, TENNESSEE, et al.,                   )       TENNESSEE
                                                    )
       Defendants-Appellees.                        )
                                                    )
                                                    )


BEFORE: MERRITT, GRIFFIN and DONALD, Circuit Judges.

       BERNICE BOUIE DONALD, Circuit Judge.                     Plaintiff-Appellant Rachel Jones

appeals the district court’s grant of summary judgment in favor of Defendants-Appellees Wilson

County, Tennessee (the “County”) and Terry Duncan on her First Amendment and state law

claims. Jones also appeals the district court’s exercise of supplemental jurisdiction over her state

law claim. The district court was correct, however, in finding that Jones’ First Amendment

claim failed because she was speaking as a public employee, rather than a private citizen.

Likewise, the district court properly held that Jones failed to state a claim under the state law.

Finally, the district court did not abuse its discretion when it exercised supplemental jurisdiction

over her state law claim. We AFFIRM the judgment of the district court.
Case No. 17-5615
Jones v. Wilson County, Tennessee, et al.

                                                I

       Jones was a probation officer for Wilson County, Tennessee. As part of her job duties,

Jones reported to the County General Sessions Court, where she was required to answer

questions about probationers. She had a duty to provide truthful statements. On September 5,

2014, Jones was terminated for allegedly failing to do that part of her job. On that date, Terry

Duncan, Jones’ supervisor, notified her via letter that she was being terminated because she

made allegedly false statements during a court hearing. Specifically, Defendants alleged that

Jones was asked whether a criminal defendant could attend a drug and alcohol counseling class

provided by a counselor, Chris Buchanan. Defendants further allege that Jones responded

falsely, answering that Buchanan had said the defendant could not attend. Buchanan advised the

defendant’s lawyer that this was not true, who then informed Duncan about Jones’ alleged false

testimony. Upon learning that Jones had provided untrue statements related to her job duties,

Duncan terminated her.

       Jones filed a complaint in court in the Middle District of Tennessee on August 26, 2015,

alleging claims under 42 U.S.C. § 1983 for a violation of her First Amendment right to freedom

of speech and under the Tennessee Public Employee Political Freedom Act (“PEPFA”). On

September 20, 2016, Defendants filed a Motion for Summary Judgment. On April 26, 2017, the

district court granted Defendants’ motion, finding that Jones’ claims failed under both the First

Amendment and PEPFA. The district court found that Jones was speaking as a public employee

pursuant to her official duties, rather than as a citizen for First Amendment purposes, thus

extinguishing her claim. As to Jones’ PEPFA claim, the district court concluded that the statute

did not apply, and even if it did, Jones was terminated for permissible reasons. Jones now

appeals.


                                              -2-
Case No. 17-5615
Jones v. Wilson County, Tennessee, et al.

                                                 II

          We review a district court’s grant of summary judgment de novo. Jackson v. VHS

Detroit Receiving Hosp., Inc., 814 F.3d 769, 775 (6th Cir. 2016).          Summary judgment is

appropriate “if the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is “genuine”

“if the evidence is such that a reasonable jury could return a verdict for the non-moving party.”

Ford v. Gen. Motors Corp., 305 F.3d 545, 551 (6th Cir. 2002) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986)).          The moving party bears the initial burden of

establishing that there are no genuine issues of material fact, which it may accomplish “by

demonstrating that the nonmoving party lacks evidence to support an essential element of its

case.” Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986)). In response, the

nonmoving party must present “significant probative evidence” that will reveal that there is more

than “some metaphysical doubt as to the material facts.” Moore v. Philip Morris Cos., Inc.,

8 F.3d 335, 340 (6th Cir. 1993). The mere existence of a scintilla of evidence in support of the

nonmovant’s position will not suffice to avoid summary judgment. Anderson, 477 U.S. at 252.

                                                 III

   A. First Amendment Claim

          A public employee’s First Amendment right to freedom of speech is subject to limitations

when her speech is made pursuant to her official duties. Garcetti v. Ceballos, 547 U.S. 410, 418

(2006).     Though her employment does not require her to completely surrender her First

Amendment rights, the government “need[s] a significant degree of control over [her] words and

actions.” Id. Accordingly, the government has discretion in how it restricts an employee’s

speech. Id. Neither party disputes that Jones was working in her capacity as a probation officer


                                                -3-
Case No. 17-5615
Jones v. Wilson County, Tennessee, et al.

and was required to answer questions in open court regarding probationers as part of her official

duties. As the district court noted, Jones conceded as much in her affidavit, stating that it was

“part of [her] duties” to respond to a judge’s questions about her probationers.

        Jones first disputes that the alleged false testimony took place at all. She also suggests

that she may have been fired for another reason altogether, owing to an adverse relationship with

the public defender who reported her alleged false statements to her supervisor.1 But this is

wholly unrelated to Jones’ § 1983 claim—that she was entitled to First Amendment protection

for the alleged false statements she made in court, which served as the basis for her termination.

We therefore move to her next argument, that the alleged false statements were entitled to

protection.

        To determine if a public employee’s speech is entitled to protection, courts engage in a

two-step inquiry:

        The first requires determining whether the employee spoke as a citizen on a matter of
        public concern. If the answer is no, the employee has no First Amendment cause of
        action based on his or her employer’s reaction to the speech. If the answer is yes, then the
        possibility of a First Amendment claim arises. The question becomes whether the
        relevant government entity had an adequate justification for treating the employee
        differently from any other member of the general public.

Lane v. Franks, 134 S. Ct. 2369, 2378 (2014) (quoting Garcetti, 547 U.S. at 418). The Garcetti

Court elaborated on the first step by distinguishing employee speech from citizen speech, stating

that public employees who make statements pursuant to their official duties are “not speaking as

citizens for First Amendment purposes.” Id. (citing Garcetti, 547 U.S. at 421). We find that

Jones does not satisfy the first step and thus her First Amendment claim fails.




1
  We also note that in another section in her brief, Jones states that it is “undisputed” that Duncan fired her for
testifying in open court. Jones’ arguments are incompatible and inconsistent.

                                                       -4-
Case No. 17-5615
Jones v. Wilson County, Tennessee, et al.

       To satisfy the first step, Jones argues that testimony in open court is “always a matter of

public concern.” This is plainly wrong. In Lane, the Supreme Court analyzed whether the

plaintiff’s sworn testimony outside the scope of his ordinary job duties was speech as a citizen

for First Amendment purposes. 134 S. Ct. at 2378. If testimony in open court was “always a

matter of public concern,” as Jones claims, the Lane Court would have so indicated and would

not have investigated the contours of First Amendment protections as applied to an employee

who gives testimony related to his employment but outside the scope of that employment. 134

S. Ct. at 2378-79. The Court simply would have stated that sworn testimony satisfies the first

step of the inquiry. Instead, Lane distinguished the speech at issue in that case, testimony related

to a public corruption scandal, from the speech in Garcetti, an internal memorandum made

pursuant to that employee’s official duties, and emphasized that the “critical question” is whether

the speech is ordinarily within the scope of the employee’s duties. Id. at 2379-80.

       We have noted that determining if an employee is speaking as a private citizen “can be

challenging.” Mayhew v. Town of Smyrna, Tennessee, 856 F.3d 456, 464 (6th Cir. 2017). But

the facts here are straightforward: Jones, a public employee, stated that testifying in court was

part of her official job duties. As instructed by Lane and Garcetti, we focus on Jones’ “ordinary

job responsibilities” and look practically at her job duties. Id. at 465. As her alleged false

statements were undoubtedly made pursuant to her employment, she fails the first step of the

inquiry. Accordingly, Jones’ First Amendment claim fails.

   B. PEPFA Claim

       Jones appeals the district court’s grant of summary judgment on her state law claim under

PEPFA, arguing that 1) summary judgment was inappropriate, and, in the alternative, 2) the




                                               -5-
Case No. 17-5615
Jones v. Wilson County, Tennessee, et al.

district court should have declined to exercise supplemental jurisdiction over her state law claim

and dismissed it without prejudice. For the reasons below, we reject Jones’ arguments.

       PEPFA provides that a public employer cannot “discipline, threaten to discipline or

otherwise discriminate against an employee because such employee exercised that employee’s

right to communicate with an elected public official.” Tenn. Code Ann. § 8-50-603(a). Jones

argues that it is “undisputed” that she was terminated for communicating in open court with the

judge, an elected public official. The County argues that the district court correctly found that

Jones was terminated not for communicating with the judge in that case, but for allegedly

providing false testimony, rendering PEPFA inapplicable. The Tennessee Court of Appeals has

stated that the purpose of PEPFA is “to facilitate free and open communication between public

employees and elected officials by deterring the public employer from taking discriminatory

actions against an employee because of such communication.” Pewitt v. Buford, No. 01A01-

9501-CV-00025, 1995 WL 614327, at *5 (Tenn. Ct. App. Oct. 20, 1995). The purpose alone

suggests that Jones’ claim is not the type that spurred PEPFA’s enactment.

       A review of case law on this point is instructive. In Pewitt, a county trustee’s office

employee brought suit under PEPFA for discriminatory conduct against her by her employers

after she communicated allegations of criminal misconduct at the trustee’s office to a county

commissioner. Id. at *1-2. In another case, a police officer brought a PEPFA claim for

termination following his discussion with an investigator about officer wrongdoing. Guthoerl v.

City of Mount Juliet, Tennessee, No. 3:05-0131, 2006 WL 1454736, at *3, 7 (M.D. Tenn. May

22, 2006).   Here, Jones’ testimony was not a volitional attempt to inform the judge of

institutional misconduct or wrongdoing unrelated to her ordinary job duties—it was simply the




                                              -6-
Case No. 17-5615
Jones v. Wilson County, Tennessee, et al.

fulfillment of one of those duties. It is hard to imagine that PEPFA was designed to reach this

type of communication.

       The County has not argued that Jones was terminated because of her communication with

the judge. Rather, Jones was terminated for failure to perform one of her job duties—to testify

truthfully in open court.    To argue that Jones was fired for simply answering the judge’s

questions would beg the question why Jones, or any other probation officer, had not been

terminated previously when performing an ordinary job duty. Accordingly, we find that Jones

was terminated for reasons other than exercising her right to communicate with a public official.

As such, Jones has failed to state a claim under PEPFA.

       Finally, we address Jones’ argument on supplemental jurisdiction. “We review the

district court’s decision to exercise supplemental jurisdiction for abuse of discretion.” Kuivila v.

City of Conneaut, 430 F. App’x 402, 404 (6th Cir. 2011) (citing Harper v. AutoAlliance Int’l.,

Inc., 392 F.3d 195, 209 (6th Cir. 2004)). “An abuse of discretion exists only when we are left

with the definite and firm conviction that the district court made a clear error of judgment in its

conclusion upon weighing relevant factors.” Hucul Advert., LLC v. Charter Twp. of Gaines,

748 F.3d 273, 275 (6th Cir. 2014) (citing Veneklase v. Bridgewater Condos, L.C., 670 F.3d 705,

709 (6th Cir. 2012)).

       Jones argues that the district court should have declined supplemental jurisdiction over

her state law claim. The appeal on the PEPFA claim involves the same facts as the First

Amendment claim, and Jones does not dispute that the two claims formed part of the same case

or controversy. See id. at 281. Under 28 U.S.C. § 1367(c), the district court could have declined

to exercise supplemental jurisdiction in one of four circumstances: 1) the State law claim raised a

novel or complex issue of State law; 2) the State law claim predominated over the federal claim;


                                               -7-
Case No. 17-5615
Jones v. Wilson County, Tennessee, et al.

3) the district court dismissed the federal claim; or 4) this case was an exceptional circumstance

in which compelling reasons existed for declining jurisdiction. If any of these circumstances was

present, we would review for abuse of discretion. See Hucul Advert., LLC, 748 F.3d at 281.

“But in the absence of any such circumstance, it does not appear that a court would be

authorized—let alone required—to decline to exercise jurisdiction.” Id.

       Such is the case here.      Jones does not assert the presence of any of the above

circumstances. She does not argue that the PEPFA claim raised a novel or complex issue of law

or that the PEPFA claim predominates over her federal claim under the First Amendment. The

district court did not dismiss Jones’ federal claim, but rather resolved it on the merits. Lastly,

Jones does not argue that compelling reasons existed for the district court to decline

supplemental jurisdiction. As no exception applies, the district court did not, and could not,

abuse its discretion in exercising supplemental jurisdiction over Jones’ PEPFA claim. See id.

       Finally, Jones urges, without any support or argumentation, that her PEPFA claim should

have been dismissed without prejudice. In her reply brief, Jones makes an argument that the

district court abused its discretion when it dismissed her claims with prejudice. But as she only

makes this argument in her reply, the argument is waived. See United States v. Abboud, 438

F.3d 554, 589 (6th Cir. 2006) (“An argument first presented to the Court in a reply brief is

waived.”).

                                               IV

       For the foregoing reasons, we AFFIRM the decision of the district court.




                                              -8-
