                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 07a0150n.06
                          Filed: February 23, 2007

                                         06-5691

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


ABDON IBARRA,                                )
                                             )
       Plaintiff-Appellant,                  )
                                             )
v.                                           )   ON APPEAL FROM THE UNITED
                                             )   STATES DISTRICT COURT FOR THE
LEXINGTON-FAYETTE URBAN                      )   EASTERN DISTRICT OF KENTUCKY
COUNTY GOVERNMENT; TERESA                    )
ISAAC; and ALAYNE WHITE,                     )
                                             )
       Defendants-Appellees.                 )




       Before: MERRITT, DAUGHTREY, and GRIFFIN, Circuit Judges.


       PER CURIAM. The plaintiff, Abdon Ibarra, appeals from two district court rulings

that resulted in the dismissal of his amended complaint against the Lexington-Fayette

Urban County Government (LFUCG), Mayor Teresa Isaac, and Commissioner Alayne

White. In that filing, Ibarra alleged that defendant Isaac slandered him and that all three

defendants unconstitutionally retaliated against him for exercising his First Amendment

rights of free speech and association. In light of the United States Supreme Court’s recent

decision in Garcetti v. Ceballos, 126 S.Ct. 1951 (2006), we conclude that Ibarra has failed

to establish that the speech he highlights was entitled to protection under the First and

Fourteenth Amendments to the United States Constitution. It thus becomes unnecessary
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Ibarra v. Lexington-Fayette County

to review the propriety of the district court’s determination that the plaintiff failed to

establish a temporal link between the speech in question and his eventual termination.

Moreover, we agree that the district court’s rulings on the questions of the alleged

infringement of the plaintiff’s right of association and the allegation of defamation were

correct in all respects and, therefore, affirm those rulings for the reasons given in the

district court’s memorandum opinion.


                    FACTUAL AND PROCEDURAL BACKGROUND


       The facts relating to this litigation are not seriously disputed by the parties and were

succinctly stated by the district court in its memorandum opinion ruling on the defendants’

motion to dismiss Ibarra’s amended complaint.           In that decision, the district judge

summarized:


       Ibarra was employed by the Lexington-Fayette Urban County Government
       (“LFUCG”) as “Coordinator of Immigrant Services” from December 20, 1999,
       to August 27, 2003. After the election of Mayor Teresa Isaac (“Mayor Isaac”
       or “Isaac”) in November, 2002, Ibarra expressed concerns and complaints
       relating to the treatment of the local Hispanic community. According to the
       amended complaint those expressed concerns included, but are not limited
       to:
       1. In December of 2002, Ibarra told Bruce Edwards, a member of Mayor
       Isaac’s staff, that a non-profit organization partially funded by the LFUCG
       had a history of racial discrimination.
       2. In January of 2003, Ibarra advised Alayne White, Commissioner of Social
       Services for the LFUCG, that another non-profit Hispanic organization was
       requiring cash “kickbacks” from Hispanic laborers who sought assistance
       from the organization.



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       3. In January of 2003, Ibarra told Mayor Isaac that two individuals who
       wanted to provide Hispanics with “unofficial identification cards” were
       proposing excessive fees for those cards and that he had been working on
       a project to provide government sanctioned identification cards at a much
       lower cost.
       4. In January of 2003, Ibarra advised Council member, Paul Brooks, that
       Hispanic workers in the Cardinal Valley area were being charged for services
       represented as free and overcharged for other various services. Ibarra
       proposed that a Resolution be adopted by the LFUCG Council to help “quell
       the tide” of overcharges.
       5. In January of 2003, Ibarra drafted a proposed Resolution relating to the
       abuses and mistreatment of the Hispanic Community.
       6. In February of 2003, during the now infamous ice storm, Ibarra discussed
       with the Lexington Herald-Leader some of the “serious communication
       problems due to ‘English only’ public announcements to the local Hispanic
       community regarding life threatening and dangerous alternative heating
       sources.”
       Plaintiff claims that all of these communications were made to public officials
       and/or the newspaper for public dissemination.
       Ibarra claims that, due to these expressions of concern, he was subjected to
       a pattern of retaliatory conduct by the LFUCG, Mayor Isaac, and
       Commission Wayne [sic]. For example, Ibarra claims he was removed from
       projects, told to stop certain investigations, told not to speak on certain
       subjects, and issued “severe” reprimands. He also claims that a resolution
       he helped prepare was pulled from the LFUCG Council’s agenda. Ibarra’s
       amended complaint states that this retaliatory conduct ultimately concluded
       with his termination on August 27, 2003.
       Following his termination, Ibarra applied for unemployment benefits. The
       Kentucky Division of Unemployment Insurance conducted a hearing, the
       result of which was a ruling stating that Ibarra was “discharged for reasons
       other than misconduct” and an award of unemployment benefits.
       Also subsequent to Ibarra’s termination, on August 27, 2003, Mayor Isaac
       conducted an audit of the Cardinal Valley Empowerment Project, a non-profit
       organization incorporated by Ibarra. The LFUCG also initiated a LFUCG
       police investigation into Ibarra’s financial activities at the Cardinal Valley
       Center. As explained in correspondence from the LFUCG to Ibarra, attached
       to the Amended Complaint, the audit and investigation were to wrap up some
       “loose ends” regarding Ibarra’s employment, and close out his relationship

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Ibarra v. Lexington-Fayette County

       with the LFUCG. Ibarra cooperated with the audit. In connection with the
       audit, Mayor Isaac telephoned Ibarra’s wife, Lori Ibarra (“Lori”), and advised
       her that her husband had set up several bank accounts in her name; that her
       husband failed to provide requested financial records; and that her husband
       was in serious trouble. Ibarra claims that Mayor Isaac’s conduct constituted
       both “outrageous conduct by intentional infliction of emotional distress and
       slander.”


       Because Ibarra did not file his original complaint in this matter until August 18, 2004,

the district court determined that Kentucky’s applicable one-year statute of limitations

barred all claims for personal injury alleged in the complaint except for the claim of

retaliation relating to the plaintiff’s August 27, 2003 termination. See KY. REV . STAT . ANN .

§ 413.140(1)(a). Furthermore, the court dismissed Ibarra’s claim for intentional infliction

of emotional distress because the alleged acts of the defendants did not constitute conduct

sufficiently outrageous to justify imposition of tortious liability. Likewise, the district court

dismissed the plaintiff’s slander cause of action, concluding that the single telephone call

from Isaac to Lori Ibarra did not place the plaintiff “into a position of public hatred,

contempt, ridicule; cause him to be shunned or avoided, or injure him in business or

occupation.” Finally, the district judge ruled that Ibarra’s freedom of association claim must

also be dismissed because the “amended complaint makes no factual allegations as to

how Ibarra’s freedom of association was hindered by acts of Mayor Isaac, Alayne White,

or the LFUCG. Moreover, Plaintiff’s amended complaint fails to state with whom he was

prevented from associating.”




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         Subsequently, the district court also granted summary judgment in favor of the

defendants on the remaining retaliation cause of action. In doing so, the district judge

concluded that “[t]he Court need not determine whether Ibarra’s speech constituted

constitutionally protected speech because he cannot show that his speech was a

motivating factor in the defendants’ decision to terminate his employment.” The court also

noted:


         Ibarra has not demonstrated that his protected conduct in January, February,
         and March of 2003 led to his termination several months later in August of
         2003. Furthermore, Ibarra has not presented any evidence that he engaged
         in any protected conduct after March of 2003 that served as a motivating
         factor in his dismissal.


         Before this court, Ibarra now concedes the propriety of the district court’s dismissal

of the intentional infliction of emotional distress claim. He continues to assert, however,

the viability of the other causes of action asserted in his amended complaint.


                                         DISCUSSION


         As recognized by this court sitting en banc:


                 A retaliation claim essentially entails three elements: (1) the plaintiff
         engaged in protected conduct; (2) an adverse action was taken against the
         plaintiff that would deter a person of ordinary firmness from continuing to
         engage in that conduct; and (3) there is a causal connection between
         elements one and two – that is, the adverse action was motivated at least in
         part by the plaintiff’s protected conduct.




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Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999). In this case, the parties do not

dispute that Ibarra was subjected to an adverse action (termination) that would deter a

reasonable individual from engaging in the conduct that prompted the employment

decision. The district court, assuming for the sake of argument that Ibarra’s speech was

constitutionally protected, nevertheless concluded that the relatively innocuous comments

made by the plaintiff in January-March 2003 could not be taken as motivation for the

termination of Ibarra’s employment a full five months later. After the district court’s ruling,

however, the United States Supreme Court released its opinion in Garcetti v. Ceballos, 126

S.Ct. 1951 (2006), which held explicitly “that when public employees make statements

pursuant to their official duties, the employees are not speaking as citizens for First

Amendment purposes, and the Constitution does not insulate their communications from

employer discipline.” Id. at 1960. That opinion, obviously, has direct implications for this

case.


        By now, the legal principle that “the First Amendment protects a public employee’s

right, in certain circumstances, to speak as a citizen addressing matters of public concern”

is beyond legitimate dispute. See id. at 1957. This protection exists, moreover, even in

some instances in which the expressions are made at the workplace during work hours.

See id. at 1959. Nevertheless, when an individual acts not as a citizen, but rather merely

performs “the tasks he was paid to perform, [he] act[s] as a government employee. The

fact that his duties sometimes required him to speak or write does not mean his

supervisors were prohibited from evaluating his performance.” Id. at 1960.

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       Ibarra’s complaint alleges that his position as “Coordinator of Immigrant Services”

required him to undertake the following duties and responsibilities:


       to act as liason [sic] for the LFUCG with the Hispanic community and to
       promote institutional changes and updates; to improve service delivery to the
       Hispanic community; to implement educational programs; to achieve cultural
       competence within the comprehensive service being provided to the
       community such as health, education, mental health, police services, and all
       other fields relevant to the improvement and support of the Hispanic
       community as a whole; to ensure that the Hispanic community made a
       smooth transition into the educational, social and economic infrastructure of
       the community as a whole; and to ensure that they affirmatively availed
       themselves of the rights and protections of the legal and justice system
       operating within the Commonwealth of Kentucky.


       Hence, the plaintiff was, by his own admission, charged with the responsibility of

advocating for the Hispanic community with the various governmental agencies and social

service providers in the Lexington-Fayette County area.         Indeed, as Ibarra himself

conceded in his amended complaint, the comments he made that he now alleges were the

catalyst for the adverse employment decision concerned “problems, dangers, abuses

and/or mistreatment of the Hispanic community” and “were made, in large part, in response

to inquiries by public officials, including, but not exclusively, Mayor Teresa Isaac, members

of the Mayoral staff, various LFUCG Council members, and the newspaper, the Lexington

Herald Leader.” Consequently, the comments made by the plaintiff constituted no more

than a part of the performance of the tasks that he was hired and paid to complete. The

restriction by the defendants of such “speech that owes its existence to a public

employee’s professional responsibilities does not infringe any liberties the employee might


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Ibarra v. Lexington-Fayette County

have enjoyed as a private citizen. It simply reflects the exercise of employer control over

what the employer itself has commissioned or created.” Garcetti, 126 S.Ct. at 1960.


       The speech that the plaintiff emphasizes to support his allegation of a constitutional

violation was, therefore, not constitutionally-protected speech, given the context in which

the comments were made. Because Ibarra thus failed to establish the first element of his

retaliation claim, we need not engage in an analysis of whether that speech was a

motivating factor in the decision to terminate the plaintiff’s employment. The district court’s

rejection of the retaliation claim was thus proper, as were the rulings on the other claims

brought by the plaintiff.


                                       CONCLUSION


       For the reasons set out above, we AFFIRM the judgment of the district court

granting summary judgment to the defendants and dismissing the complaint in this case.




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