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

                                                                            FILED
                                                                           April 25, 2008

                                                                      Charles R. Fulbruge III
                                       No. 07-60252                           Clerk


TAMMY WILLIAMS; EARL RUSSELL; CHERYL HAMBRICK

                                                  Plaintiffs-Appellants
v.

SHERIFF JAMES A RILEY, In his Official and personal capacities; STEVE
ATKINSON, Individually and in His Official Capacity as Deputy Sheriff and
Jail Administrator of Desoto County, Mississippi; LARRY GATLIN,
Individually and in His Official Capacity as Deputy Sheriff and Jail
Administrator of Desoto County, Mississippi

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                              USDC No. 2:05-CV-83


Before WIENER, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
       Tammy Williams, Earl Russell, and Cheryl Hambrick (Plaintiffs) contest
the dismissal of their First Amendment and equal-protection claims involving


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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their former public employer, in which they maintain they were terminated in
retaliation for reporting an incident in their workplace to their supervisors. One
of the principal issues is whether the dismissal was pursuant to Federal Rule of
Civil Procedure 12(b)(6) (failure to state a claim) or Rule 56 (summary
judgment). It appears the dismissal was through summary judgment, with a
resulting issue being whether a genuine issue of material fact exists on whether
Plaintiffs reported the incident pursuant to their official job duties, resulting in
their speech not being protected by the First Amendment. Also at issue are
whether: the district court abused its discretion by denying Plaintiffs leave to
amend their complaint to clarify their job duties; and Plaintiffs stated an equal-
protection claim.      AFFIRMED IN PART, VACATED IN PART, and
REMANDED.
                                         I.
      Plaintiffs worked as jailers at the DeSoto County Jail. In December 2004,
while on duty, Plaintiffs-Jailers Williams and Hambrick witnessed an inmate
being beaten by a Sergeant. Jailer Williams stepped in to stop the Sergeant;
Jailers Williams and Hambrick reported the incident to their supervisor,
Plaintiff-Deputy Sheriff Russell, who was also a jailer. Deputy Sheriff Russell
told them to report the incident to another supervisor, Defendant-Deputy Sheriff
Gatlin. Unable to reach Deputy Sheriff Gatlin, Jailers Williams and Russell
contacted Captain Stewart, who was off-duty. Captain Stewart: came to the jail;
informed Jailers Williams and Hambrick she had contacted Defendant-Deputy
Sheriff Atkinson, the Chief Jailer; and instructed them to write a report and
place it under Deputy Sheriff Atkinson’s door. Jailer Hambrick did so. The next




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day, Plaintiffs were informed of unrelated charges of misconduct against them,
given a hearing, and terminated from their employment. Defendant-Sheriff
Riley was the sheriff.
      Proceeding under 42 U.S.C. § 1983, Plaintiffs filed this action in April
2005, claiming, inter alia, retaliation in violation of their First Amendment right
to free speech and denial of equal protection. Subsequently, the Supreme Court
of the United States decided Garcetti v. Ceballos, 547 U.S. 410 (2006), holding
speech pursuant to a public employee’s official duties is not entitled to First
Amendment protection. In July 2006, in the light of Garcetti, Defendants moved
to supplement their pending Rule 12(b)(6) dismissal motion. The district court,
without ruling on the motion to supplement, denied the dismissal motion and
granted Plaintiffs leave to file an amended complaint.
      Defendants moved for reconsideration of their dismissal motion; Plaintiffs
filed the amended complaint. In replying to Plaintiffs’ opposition to the motion
for reconsideration, Defendants attached, inter alia, a copy of a page from the
DeSoto County Sheriff’s Department Operations Policy and Procedures (Policy),
which purported to impose an official duty on Plaintiffs to report the witnessed
incident.
      In September 2006, following a case-management conference, Defendants
filed another Rule 12(b)(6) motion to dismiss. In responding, Plaintiffs attached,
inter alia, a declaration by each Plaintiff, contesting Defendants’ assertion that
Plaintiffs had an official duty to report the incident. Defendants replied, again
attaching the Policy.
      Plaintiffs moved to amend their complaint, and Defendants responded,
attaching the Policy yet again. Ruling on the above-pending motions, the district


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court granted the motion to dismiss, stating it did so under Rule 12(b)(6), and
denied, as futile, Plaintiffs’ motion to amend. It also declined to exercise
supplemental jurisdiction over Plaintiffs’ state-law claims.
                                        II.
                                        A.
      It goes without saying that a Rule 12(b)(6) motion is not interchangeable
with a Rule 56 summary-judgment motion. E.g., Jackson v. Procunier, 789 F.2d
307, 309-10 (5th Cir. 1986). A Rule 12(b)(6) motion must be evaluated only on
the complaint, and amendments to the complaint are generally allowed to cure
deficiencies. Jackson, 789 F.2d at 309-10. In that regard, pursuant to Rule
12(d), “[i]f the district court considers information outside of the pleadings, the
court must treat the [Rule 12(b)(6)] motion as a motion for summary judgment”.
See, e.g., Kennedy v. Chase Manhattan Bank USA, NA, 369 F.3d 833, 839 (5th
Cir. 2004).
      Although the district court did not reference the Policy and stated that,
“even after viewing all of the facts in favor of the plaintiffs”, it was granting
Defendants’ Rule 12(b)(6) motion, it also stated: “it is undisputed that part of
the plaintiffs’ official duty description [presumably the Policy relied upon by
Defendants] includes reporting unlawful activity of other officers”. Williams v.
Riley, 481 F. Supp. 2d 582, 584 (N.D. Miss. 2007) (emphasis added). Plaintiffs’
operative complaint, however, does not mention their “official duty description”.
And, contrary to Defendants’ contention in support of their dismissal motion and
on appeal, the complaint does not allege the speech was made pursuant to
Plaintiffs’ official duties. Moreover, the Policy was neither attached to the
complaint, nor referenced by the complaint and central to the claim. See, e.g.,


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Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000)
(citations omitted) (stating documents attached to a motion to dismiss may only
be considered if referenced by the complaint and central to the claim).
         Accordingly, because it appears the Policy, a matter outside the pleadings,
was considered, the dismissal was through a summary judgment and is reviewed
de novo. E.g., Jackson, 789 F.2d at 310. In doing so, we consider the summary-
judgment record, which includes the Policy and Plaintiffs’ declarations.
         Summary judgment is appropriate if there is no genuine issue of material
fact and the movant is entitled to a judgment as a matter of law. FED. R. CIV. P.
56(c).    “We resolve doubts in favor of the nonmoving party and make all
reasonable inferences in favor of that party.” Dean v. City of Shreveport, 438
F.3d 448, 454 (5th Cir. 2006). No genuine issue of material fact exists if,
pursuant to the summary-judgment evidence, no reasonable juror could find in
favor of the nonmovant. E.g., Jenkins v. Methodist Hosps. of Dallas, Inc., 478
F.3d 255, 260 (5th Cir.), cert. denied, 128 S. Ct. 181 (2007). (If matters outside
the pleadings were not considered, resulting in the dismissal being under Rule
12(b)(6), the dismissal of the First Amendment claim would still be erroneous for
the below-stated reasons.)
                                          B.
         Plaintiffs challenge the dismissal of their claims under § 1983 for
violations of their constitutional rights to free speech and equal protection on
three bases. They maintain: a genuine issue of material fact exists on whether
their speech is protected by the First Amendment; the district court erred by
denying leave to file an amended complaint to clarify their job duties; and their
equal-protection claim was erroneously dismissed.


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                                        1.
      Plaintiffs claim it was error to dismiss their claim for retaliation, in
violation of their First Amendment rights to speak as citizens on matters of
public concern. In that regard, at issue is whether a genuine issue of material
fact exists on whether their speech was made pursuant to their official job duties
and, therefore, not protected by the First Amendment.
      “[T]he First Amendment protects a public employee’s right, in certain
circumstances, to speak as a citizen addressing matters of public concern”.
Garcetti, 547 U.S. at 417 (citations omitted and emphasis added). “So long as
employees are speaking as citizens about matters of public concern, they must
face only those speech restrictions that are necessary for their employers to
operate efficiently and effectively.” Id. at 419 (citing Connick v. Myers, 461 U.S.
138, 147 (1983)) (emphasis added). “Employees who make public statements
outside the course of performing their official duties retain some possibility of
First Amendment protection . . . .” Id. at 423 (emphasis added).
      But, “when public employees make statements pursuant to their official
duties, the employees are not speaking as citizens for First Amendment
purposes”. Id. at 421 (emphasis added); see Williams v. Dallas Ind. Sch. Dist.,
480 F.3d 689, 693 (5th Cir. 2007); Davis v. McKinney, No. 07-20184, 2008 WL
451769 (5th Cir. 21 Feb. 2008); Nixon v. City of Houston, 511 F.3d 494 (5th Cir.
2007).
      At issue, then, is whether a genuine issue of material fact exists on
Garcetti’s threshold inquiry — whether Plaintiffs’ speech was pursuant to their
official duties. The district court held the speech was unprotected, pursuant to
Garcetti. As discussed above, it stated: “it is undisputed that part of the


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plaintiffs’ official duty description [as noted supra, presumably evidenced by the
Policy] includes reporting unlawful activity of other officers”. Riley, 481 F. Supp.
2d at 584 (emphasis added).
        The Policy, however, does not conclusively establish the speech was made
“pursuant to their official duties”. Garcetti, 547 U.S. at 424-25. Further,
Plaintiffs’ declarations maintain, inter alia, no such duty was imposed upon
them.
        Along that line, even if the Policy undisputedly imposed a duty on
Plaintiffs to report the incident they witnessed, it is error to rely solely upon an
employer’s written policy in determining official duties.        Garcetti had “no
occasion to articulate a comprehensive framework for defining the scope of an
employee’s duties” (the plaintiff in Garcetti conceded his speech was made
pursuant to his official duties), but instructs “[t]he proper inquiry is a practical
one”. Id. at 424.
        Formal job descriptions often bear little resemblance to the duties
        an employee actually is expected to perform, and the listing of a
        given task in an employee’s written job description is neither
        necessary nor sufficient to demonstrate that conducting the task is
        within the scope of the employee’s professional duties for First
        Amendment purposes.
Id. at 424-25 (emphasis added).        Accordingly, the district court erred by
apparently relying solely upon Plaintiffs’ “official duty description”.
        Neither is it dispositive that the speech was made within the workplace;
nor that it concerned a matter related to Plaintiffs’ employment. Id. at 420-21
(citing Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410 (1979)). Although it
may be presumed that an employee’s official job duties at a reasonable sheriff”s
department would include reporting crimes perpetrated at work by department

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members, it is not clearly so here. Plaintiffs’ job duties as jailers are scarcely
mentioned, save Plaintiffs’ denials that those duties included reporting the
incident at issue. Defendants produced the Policy, but it concerns “improper
conduct” and was not shown to be applicable. Again, Plaintiffs, as summary-
judgment nonmovants, are accorded all reasonable inferences. See, e.g., Dean,
438 F.3d at 454.
      Therefore, a genuine issue of material fact remains on whether the speech
was: “pursuant to . . . official duties” Plaintiffs “actually [were] expected to
perform”, i.e., made “in the course of performing their official duties” under
Garcetti, 547 U.S. at 421-25. Accordingly, dismissal was improper.
                                         2.
      Along that line, Plaintiffs maintain the district court should have granted
leave to file a third amended complaint, to clarify their allegations that the
speech was not made pursuant to their job duties. Denial of leave to amend is
reviewed for an abuse of discretion. E.g., Stripling v. Jordan Prod. Co., LLC,
234 F.3d 863, 872 (5th Cir. 2000).
      The district court, relying on Garcetti, ruled the amendment would be
futile. As discussed supra, however, a genuine issue of material fact exists on
whether the speech was made pursuant to Plaintiffs’ job duties. Accordingly, the
district court abused its discretion in finding futility. See id. at 873. Therefore,
on remand, Plaintiffs should be given leave to file the requested amended
complaint.




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                                        3.
      Finally, Plaintiffs maintain the district court erred in dismissing their
Fourteenth Amendment equal-protection claim on the basis that Plaintiffs’
speech is not protected by the First Amendment.
      Plaintiffs’ equal-protection claim is based on the alleged retaliation against
them for the exercise of their purported First Amendment rights — for reporting
abusive activity by a member of the Sheriff’s Department. In support, they rely
on Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (holding a “class-of-one”
equal-protection claim based on government’s “irrational and wholly arbitrary”
demand of an easement was cognizable), and Shipp v. McMahon, 234 F.3d 907
(5th Cir.) (holding equal-protection claim may be available based on unequal
police protection if illegitimate animus or ill-will motivated plaintiff’s
intentionally different treatment from others similarly-situated and no rational
basis existed for such treatment), cert. denied, 532 U.S. 1052 (2000), overruled
on other grounds, McClendon v. City of Columbia, 305 F.3d 314 (5th Cir. 2002).
      Assuming, arguendo, that a cognizable equal-protection claim may be
based on a government-employer’s selective enforcement of an employment
policy, a “class-of-one” plaintiff must, at a minimum, show he “has been
intentionally treated differently from others similarly situated”. Olech, 528 U.S.
at 564; Shipp, 234 F.3d at 916 (stating plaintiff must also allege “an illegitimate
animus or ill-will motivated” the different treatment); see Mikeska v. City of
Galveston, 451 F.3d 376, 381 & n.4 (5th Cir. 2006) (listing different types of
class-of-one claims). Plaintiffs, however, have not alleged they were treated
differently than similarly-situated individuals. Rather, they alleged being




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treated differently than those who did not report the same type of incident (i.e.,
did not engage in purported protected speech).
      Therefore, Plaintiffs’ equal-protection claim “amounts to no more than a
restatement of [their F]irst [A]mendment claim”. Thompson v. City of Starkville,
Miss., 901 F.2d 456, 468 (5th Cir. 1990). Accordingly, it was properly dismissed.
                                       III.
      For the foregoing reasons, the judgment is AFFIRMED in part and
VACATED in part.       This matter is REMANDED for further proceedings
consistent with this opinion.




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