           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         January 30, 2009

                                     No. 08-60702                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


JERRY W. CUTRER, SR.; LENA S. GUYTON; NORA WALKER; JANICE
HUFF; FRED LUCKETT, JR.; SUSAN HAMMETT; RONALD W. KINSEY;
MELISSA E. KEMP; CATHY B. WEBB; CAROLYN STERLING; and JOHN
LOWRY

                                                  Plaintiffs-Appellants
v.

BUTCH MCMILLAN; SHELIA BROWNING; JO ANN SUMMERS;
CANDICE WHITFIELD

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:07-CV-701


Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Plaintiffs-Appellants Jerry W. Cutrer, Sr., Lean S. Guyton, Nora Walker,
Janice Huff, Fred Luckett, Jr., Ronald W. Kinsey, Melissa E. Kemp, Cathy B.
Webb, Carolyn Sterling, and John Lowry, (collectively, “Plaintiffs”) appeal the



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                     No. 08-60702

judgment of the district court order dismissing their § 1983 First Amendment
retaliation claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Finding
no error, we AFFIRM.
                  I. FACTUAL AND PROCEDURAL HISTORY
       Plaintiffs, who are all over age 40, were employees of the Mississippi
Department of Rehabilitation Services (“MDRS”), a state governmental agency,
in various supervisory positions during the period January 1, 2005 through
February 1, 2008. Defendants-Appellees H.S. McMillan, Shelia Browning, Jo
Ann Summers, and Candice Whitfield (collectively “Defendants”) are or were
supervisory officials with MDRS.1
       In November 2005, Plaintiffs filed a charge of discrimination with the
Equal Employment Opportunity Commission (“EEOC”), claiming that MDRS
discriminated against them on the basis of age. Plaintiffs alleged that they were
passed over for certain promotions in favor of individuals under the age of forty
who were less qualified for the respective positions. The EEOC issued a
determination letter in April 2007, finding that MDRS had impermissibly
discriminated against Plaintiffs on account of age, and MDRS declined the offer
of conciliation. The EEOC subsequently issued a right to sue letter.
       On February 21, 2006, five Plaintiffs filed a second charge with the EEOC,
alleging that MDRS retaliated against them for filing the first age
discrimination charge. Again the EEOC made an adverse finding, and MDRS
declined the offer of conciliation. The EEOC then issued a right to sue letter on
the retaliation claim.
       In November 2007, Plaintiffs filed suit against Defendants in their
individual capacities, with an amended complaint filed on February 1, 2008.


       1
        Specifically, McMillan was Executive Director of MDRS; Browning was Deputy
Administrator for MDRS; Summers was Office Director for the Office of Disability
Determination Services; and Whitfield was the Director for the Office of Program Integrity.

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Plaintiffs’ suit alleged violations of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, et seq., and the Age Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. § 621, et seq. Plaintiffs also asserted a claim under 42
U.S.C. § 1983, alleging that the retaliatory conduct violated their rights under
the First and Fourteenth Amendments to the United States Constitution.
       Defendants moved for dismissal of the suit pursuant to Rule 12(b)(6). The
district court granted the motion, holding that Defendants were not individually
liable under ADEA or Title VII and that Plaintiffs had failed to state a First
Amendment retaliation claim. Plaintiffs appeal only as to the First Amendment
claim and have abandoned the remaining two claims.


                                     II. DISCUSSION
A. Standard of Review
       We review the district court’s Rule 12(b)(6) dismissal de novo, accepting
as true the well-pleaded factual allegations of the complaint. Cuvillier v. Taylor,
503 F.3d 397, 401 (5th Cir. 2007). Although detailed factual allegations are not
required, the complaint must provide factual allegations that, when assumed to
be true, “raise a right to relief above a speculative level,” id. (quoting Bell Atl.
Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007)), and “state a claim to relief
that is plausible on its face.” Twombly, 127 S.Ct. at 1974.2 Dismissal is
appropriate when the complaint “on its face show[s] a bar to relief.” Clark v.
Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986).




       2
          Although Plaintiffs assert that the court may not dismiss a complaint under Rule
12(b)(6) “unless it appears beyond doubt that the plaintiff can prove no set of facts in support
of his claim which would entitle him to relief,” citing Collins v. Morgan Stanley Dean Witter,
224 F.3d 496, 498 (5th Cir. 2000), the Supreme Court has rejected the “no set of facts”
language. Cuvillier v. Taylor, 503 F.3d 397, 401 n.4 (5th Cir. 2007) (citing Twombly, 127 S.Ct.
at 1969).

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B. § 1983 First Amendment Claim
       Plaintiffs argue that they have stated a viable § 1983 claim for retaliation
for speech protected by the First Amendment because their age discrimination
charge with the EEOC constitutes speech on a matter of public concern because
it was a class action, not merely a personal employment dispute of the individual
plaintiffs in the suit.3 Defendants respond that Plaintiffs’ claims are foreclosed
by Fifth Circuit law that EEOC charges alone are not protected speech, and
therefore the class-action age discrimination EEOC charge is not protected
conduct.
       Although “public employees do not surrender all their First Amendment
rights by reason of their employment,” Jordan v. Ector County, 516 F.3d 290,
294-95 (5th Cir. 2008), and public employees may not be retaliated against for
exercising their right to free speech, Thompson v. City of Starkville, 901 F.2d
456, 460 (5th Cir. 1990), not all of their actions are protected speech. Davis v.
McKinney, 518 F. 3d 304, 311 (5th Cir. 2008). “In order for a public employee to
prevail on a First Amendment retaliation claim, she must prove that (1) she
suffered an adverse employment decision; (2) she was engaged in protected
activity; and (3) the requisite causal relationship between the two exists.”
Jordan, 516 F.3d at 295. The threshold question in this case is the second
element–whether Plaintiffs’ conduct was protected by the First Amendment.
       Public employees’ conduct is protected by the First Amendment in some
instances when they speak as private citizens on a matter of public concern.



       3
         Plaintiffs also argue that this court should adopt the reasoning of the Eighth Circuit
in Greenwood v. Ross, 778 F.2d 448 (8th Cir. 1985), to hold that the filing of an EEOC
discrimination charge by an employee is, per se, speech protected by the First Amendment.
This Circuit has already rejected this argument, as discussed infra. See Ayoub v. Texas A& M
Univ., 927 F.2d 834, 837 (5th Cir. 1991). As a general rule, one panel may not overrule the
decision of a prior panel. Billiot v. Puckett, 135 F.3d 311, 316 (5th Cir. 1998).

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Davis, 518 F.3d at 311. There are three steps in determining whether a public
employee’s speech is constitutionally protected: (1) whether the employee’s
speech is pursuant to his/her official duties; (2) if not, whether the speech is on
a matter of public concern; and (3) if on a matter of public concern, whether the
employee’s interest in expressing such a concern outweighs the employer’s
interest in promoting the efficiency of the public services it performs through its
employees.    Davis, 518 F.3d at 312 (quoting Ronna Greff Schneider, 1
EDUCATION LAW: FIRST AMENDMENT, DUE PROCESS                AND   DISCRIMINATION
LITIGATION § 2:20 (West 2007)).
      As to step one, we agree with the district court that Plaintiffs clearly did
not file their EEOC charges pursuant to their official duties at the MDRS. See
Davis, 518 F.3d at 313 (holding that plaintiff did not complain to EEOC or FBI
pursuant to official duties). When a public employee takes job concerns to
external agencies, such communications are ordinarily made as a citizen rather
than an employee. Id.
      As to step two, this case is controlled by Ayoub v. Texas A& M Univ., 927
F.2d 834, 837-38 (5th Cir. 1991). In that case, the court concluded that Ayoub’s
speech, which included an EEOC discrimination complaint, was not a matter of
public concern. Lodging a complaint with the EEOC, without further airing of
grievances, implicates only the private employment interests of the plaintiff and
is not conduct that constitutes speech on a matter of public concern. See Short
v. City of West Point, Miss., 1997 WL 575048, at *1 (5th Cir. 1997) (applying
Ayoub, 927 F.2d at 837-38).
      Plaintiffs argue that the fact that the EEOC charge was filed as a class,
rather than as individual complainants, sufficiently distinguishes this case from
Ayoub or Short. We disagree. The charge refers to the named individuals and
positions for which they were allegedly passed over impermissibly on account of
age. It does not otherwise address alleged discrimination actions against non-

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plaintiff employees of MDRS. In addition, there was no conduct by Plaintiffs
publicizing their complaints or otherwise indicating that the speech was
intended to raise a matter of public concern rather than a dispute about
Plaintiffs’ employment conditions. See Ayoub, 927 F.2d at 837 (finding that
plaintiff “never attempted to air” the complaints at the heart of his EEOC charge
“in a manner that would call the public’s attention to the alleged wrong”).
Although discrimination in awarding promotions based on age can certainly be
a matter of public concern, “in the context in which it was presented in this case”
by Plaintiffs, “it was a purely personal and private matter.” See Ayoub, 927 F.2d
at 838.4
           Because Plaintiffs’ class-action EEOC age discrimination charge is not
speech on a matter of public concern, they have failed to establish a prima facie
First Amendment retaliation claim, and we affirm the judgment of the district
court. See Click v. Copeland, 970 F.2d 106, 111 (5th Cir. 1992) (“If the conduct
does not touch a matter of public concern, the inquiry is at an end and a court
will not scrutinize the reasons motivating the employer’s action.”).


                                  III. CONCLUSION
       For the foregoing reasons, the judgment of the district court is
AFFIRMED.




       4
          Plaintiffs’ reliance on Davis v. McKinney, is misplaced. Davis did not alter this
Circuit’s jurisprudence regarding when an EEOC charge might be protected speech. The case
was remanded for the district court to examine in the first instance whether Davis’s
communications with the EEOC or FBI were speech on a matter of public concern, because
those communications were among several at issue in the case, and the issue of those
particular instances of speech being on a matter of public concern was not separately briefed
by the parties. See Davis, 518 F.3d at 316-17.

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