                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                 F I L E D
                           REVISED JUNE 13, 2005
                                                                    May 27, 2005
                 IN THE UNITED STATES COURT OF APPEALS
                                                             Charles R. Fulbruge III
                           FOR THE FIFTH CIRCUIT                     Clerk


                                No. 04-40844



CHARLENE SALGE,

                                                     Plaintiff - Appellee
versus

EDNA INDEPENDENT SCHOOL DISTRICT

                                                     Defendant - Appellant


            Appeal from the United States District Court
                 for the Southern District of Texas



Before WIENER, BARKSDALE, AND DENNIS, Circuit Judges.

WIENER, Circuit Judge:

     Defendant-Appellant Edna Independent School District (“EISD”)

appeals the district court’s grant of summary judgment in favor of

former employee Charlene Salge on her First Amendment retaliation

claim. We affirm.

                          I.   FACTS & PROCEEDINGS

     After she was fired from her longtime job of secretary at the

local    high   school,   Plaintiff-Appellee   Charlene     Salge    brought

actions against her former employer, EISD, for violations of (1)

the Age Discrimination in Employment Act (“ADEA”)1 and (2) the


     1
         29 U.S.C. § 626 et seq.
First Amendment, the latter via 42 U.S.C. § 1983.          Salge claimed

that EISD Superintendent Bob Wells fired her either because of her

age or because of her responses to questions posed by a local

journalist about the resignation of Kenneth Airheart, the principal

of the high school and Salge’s direct supervisor.             The district

court dismissed Salge’s ADEA claim but granted her motion for

summary judgment on her First Amendment claim, which ruling EISD

appeals.

     In February 2002, Wells met with Airheart to discuss the

latter’s   annual   evaluation.          Wells   criticized     Airheart’s

performance, including Wells’s perception that Airheart did not

adequately supervise his employees as Wells had expressed to

Airheart on prior occasions that Salge’s performance was deficient

and had asked Airheart to fire her.       Wells informed Airheart that

he intended to recommend to the EISD School Board that Airheart’s

current employment contract not be extended.          After hearing this

evaluation,   Airheart   held   a   meeting   with   approximately   forty

employees of the high school, one of whom was Salge.          He announced

to the group that he had received the second worst performance

evaluation of his life, that his contract had not been extended,

and that he intended to resign because he did not wish to stay

where he was not wanted.

     Two days later, the local newspaper, the Jackson County

Herald-Tribune, reported that Airheart was retiring.            Some time

during the weeks that followed, Cynthia Roberson, a reporter for

                                     2
the newspaper, called the high school for information about another

employee’s resignation; Salge answered the phone when Roberson

rang.   Roberson stated in her deposition that she had called the

high school because of the unusually large number of high-level

school officials that were leaving at the same time, and that

Airheart’s retirement had quickly become the main subject of this

conversation.     Exactly what Salge said to Roberson is disputed.

      In March, the newspaper published a second article about

Airheart’s departure, stating that his contract had not been

“renewed.”    Salge denied telling Roberson that Airheart’s contract

was not being renewed, insisting instead that she had told Roberson

that the contract was not being extended.         Roberson corroborated

Salge’s version in her deposition and stated that she had used the

wrong word in the article.        Roberson admitted when questioned by

opposing counsel, however, that she could not really recall whether

Salge had said “renewed” or “extended.”

      Most EISD employees have two-year contracts, which are renewed

every year.     An EISD contract that is not renewed after reaching

its end is effectively a termination of employment.             A two-year

contract that the school board declines to renew at the end of its

first year, is referred to as a “non-extension.”            A non-extension

of   a contract    does   not   necessarily   result   in   termination   of

employment; rather it serves as a warning to the employee that, at

the end of the second year, his contract might not be renewed.            As

a result, his employment will then terminate at the end of its

                                     3
second year.      Airheart’s contract had not been extended, thus he

had   received    a   “warning”;    but     the   second   newspaper     article

erroneously      stated   that    his   contract     had   not   been   renewed,

incorrectly implying that he had been fired contemporaneously.

      When Airheart, other EISD employees, and EISD parents read the

article, they became alarmed and expressed concern to Wells that

personnel information had been released to the media.               Airheart’s

concern was with the fact that the information was erroneous,

whereas   others      expressed   concern     that   confidential       personnel

information had been released.

      Wells contacted Roberson, who told him that she had obtained

her information regarding Airheart’s contract status from Salge.

The newspaper ran a correction approximately one week later,

clarifying that Airheart’s contract had not been extended and that

he could have elected to stay in his current position, but that he

chose to resign.       Wells never discussed any of the articles with

Salge.

      Approximately two months later, Wells discharged Salge for

releasing confidential information to the media in violation of

school district policies that prohibit employees from discussing

confidential personnel matters and from contacting the media about

school district news. Wells testified in his deposition that Salge

was terminated for violating both of these policies.

      Salge filed suit alleging that she was fired either because of

her age in violation of the ADEA, or because of her responses to

                                        4
Roberson’s questions, in violation of her First Amendment right of

free speech.   She filed a motion for partial summary judgment on

her First Amendment claim, to which EISD responded and filed a

cross-motion for summary judgment on the same issue, subsequently

filing a motion for summary judgment on Salge’s ADEA claim.     The

district court granted EISD’s motion for summary judgment on

Salge’s age discrimination claim but held in Salge’s favor on the

First Amendment claim, awarding her backpay, frontpay, damages for

mental anguish, attorney fees, and costs.      That ruling is the

subject of this appeal.2



                           II.   ANALYSIS

A.   Standard of Review

     We review grants or denials of motions for summary judgment de

novo.3   Summary judgment is proper if there is no genuine issue of

material fact and the moving party is entitled to judgment as a




     2
       Salge also asserts on appeal that EISD’s media policy,
prohibiting its employees from directly contacting the press,
violates the First Amendment. This issue was not properly
presented to the district court, however, as Salge did not allege
it in her complaint and did not provide the district court with a
copy of the policy. To be preserved for appeal, an issue must
have been raised in the trial court to the extent necessary to
allow that court to rule on it. Vogel v. Veneman, 276 F.3d 729,
733 (5th Cir. 2002)(citing In re Fairchild Aircraft Corp., 6 F.3d
1119, 1128 (5th Cir. 1993)). We therefore decline to address
this contention.
     3
       MacLachlan v. ExxonMobil Corp., 350 F.3d 472, 478 (5th
Cir. 2003).

                                  5
matter of law.4     “[T]he nonmoving party must come forward with

specific facts showing that there is a genuine issue for trial.”5

We consider the evidence in the light most favorable to the

nonmovant.6

     De novo is also our standard for reviewing district court

rulings that concern First Amendment issues, in which instances we

examine the whole record.7     Whether the speech at issue is on a

matter of public concern is a question of law that must be

determined by the court.8    And, our review of the district court’s

Pickering balancing analysis is, in the absence of any disputed,

material facts, also de novo.9

B.   First Amendment Retaliation

     To prevail on a First Amendment employment retaliation claim,

an employee must establish four elements: (1) he suffered an

adverse employment action; (2) his speech involved a matter of

public concern; (3) his interest in commenting on matters of public

concern outweighs the employer’s interest in promoting efficiency;

and (4) his speech motivated the employer’s adverse employment


     4
         Id.
     5
       Webb v. Cardiothoracic Surgery Assocs., 139 F.3d 532, 536
(5th Cir. 1998).
     6
         Anderson v. Liberty Lobby, 477 U.S. 242, 250 (1986).
     7
         Denton v. Morgan, 136 F.3d 1038, 1042-43 (5th Cir. 1998).
     8
         Tompkins v. Vickers, 26 F.3d 603, 606 (5th Cir. 1994).
     9
         See Kinney v. Weaver, 367 F.3d 337, 363 (5th Cir. 2004).

                                   6
action.10 None disputes that Salge has satisfied the first element,

as she was fired, or the fourth element, as her speech motivated

Wells to fire her:         Wells readily acknowledges that he fired Salge

because of her statement to the press.                     Thus, the elements that

remain to be examined are (1) whether Salge’s speech involved a

matter    of    public     concern,   and       (2)   if   so,    whether   her   First

Amendment interest in her speech outweighs EISD’s interest in

promoting efficiency.11

     1.        Speech on a Matter of Public Concern

               a.    Content: What Salge Actually Said

     The       parties     dispute     the       content     of    Salge’s     speech,

specifically, whether Salge stated to Roberson that Airheart’s

contract was not renewed or that it was not extended.                        They also

argue about which version we should consider in our determination

whether Salge’s speech is on a matter of public concern.                           The

district court concluded that this argument was a red herring, as

both versions of the statement address a matter of public concern.

     It    is       true    that     the     Supreme       Court’s    Churchill     v.




     10
       Harris v. Victoria Indep. Sch. Dist., 168 F.3d 216, 220
(5th Cir. 1999).
     11
       EISD does not dispute that Wells is a final decision-
maker and therefore EISD may be held liable under § 1983 for his
decision to terminate Salge. See Johnson v. Louisiana, 369 F.3d
826, 831 (5th Cir. 2004)(“[O]nly final decision-makers may be
held liable for First Amendment retaliation employment
discrimination under § 1983.”).

                                            7
Waters12 decision held that, when a plaintiff-employee’s First

Amendment retaliation claim rests on a disputed version of his

speech, a court applying the Supreme Court’s Connick v. Myers13 test

to determine whether the speech was on a matter of public concern

must    examine    the   speech   as   the   defendant-employer   reasonably

believed it to be.14        EISD argues that Wells reasonably believed

that Salge had violated the school’s confidentiality and media

policies and had provided false information to the newspaper; this

reasonable belief justified Wells’s decision to terminate Salge,

EISD argues, because (1) if Salge used the term “renewed,” then her

speech was false and therefore unprotected and (2) whether true or

false, she had violated school district policies against divulging

confidential personnel information and speaking to the media.             We

evaluate        these    arguments,      however,    as    part    of   our

Pickering balancing test to determine whether EISD’s interest in

efficiency outweighs any interest Salge has in making her speech.

Whether the speech in question violates an employer’s policy has no

relevance to whether the subject matter of the speech is on a

matter of public concern.         Whether an employee’s speech is true or

false also plays no role in the determination whether the speech




       12
            511 U.S. 661 (1994)(plurality opinion).
       13
            461 U.S. 138 (1983).
       14
            Johnson, 369 F.3d at 832 (internal citation omitted).

                                        8
concerned a matter of public interest.15

     In Churchill, unlike the instant case, the difference between

the two versions of the employee’s speech was determinative, as one

version implicated protected speech and the other did not.                  The

Churchill       employer   understood   the   employee’s   comments    to    be

personal criticism of her supervisor, which was not First Amendment

protected speech.16        The employee insisted that she criticized the

employer’s cross-training policy, which would have been protected

speech.17

     In contrast, the parties in this case dispute whether Salge

said that Airheart’s contract had not been extended or had not been

renewed.        Salge’s speech indisputably concerned the high school

principal’s resignation, so whether she used the word “renewed” or

“extended,” is immaterial: Her point was that Airheart resigned

grudgingly, as a result of the non-extension of his contract and

his own feeling that he was unwanted and unappreciated.               We are

satisfied that, under either version, Salge’s speech concerned the

high school principal’s employment status and his reasons for

resigning before the end of the term of his employment.               This is

the speech we evaluate in our determination whether Salge spoke on

a matter of public concern, and this evaluation does not implicate



     15
          Denton v. Morgan, 136 F.3d 1038, 1043 (5th Cir. 1998).
     16
          511 U.S. at 665-66.
     17
          Id.

                                        9
 Churchill.

               b.     Public Concern

        “Whether an employee's speech addresses a matter of public

 concern must be determined by the content, form, and context of a

 given statement, as revealed by the whole record.”18              When a public

 employee speaks in his capacity as an employee and addresses

 personal matters such as personnel and employment disputes, rather

 than in his capacity as a citizen on a matter of public interest,

 his speech falls outside the protection of the First Amendment.19

 When the speech in question merely touches on an element of

 personal concern in the broader context of a matter of public

 concern, however, a court is not precluded from concluding that an

 employee’s speech as a whole addresses a matter of public concern.20

       In Kennedy v. Tangipahoa Parish Library Board of Control, we

reviewed many of our First Amendment retaliation opinions.21                   In

Kennedy, we gleaned principles from these previous decisions that

are useful in determining whether in a “mixed speech” case, i.e., a

case   in    which    an   employee’s    speech   contains   elements   of   both

personal      and    public   concern,    the   subject   speech   nevertheless




        18
             Connick, 461 U.S. at 147-48 (emphasis added).
        19
        Kennedy v. Tangipahoa Parish Library Bd. of Control, 224
 F.3d 359, 366 (5th Cir. 2000)(citing Connick, 461 U.S. at 147).
        20
             Id. at 365.
        21
             Id.

                                         10
addresses public concern.22             Salge’s speech undoubtedly included an

element        of    personal     concern,   as   she   was   speaking    about     the

employment status of her direct supervisor, which in turn affected

the conditions of Salge’s employment.23                 Still, in such cases, we

found that asking only whether an employee spoke in his capacity as

a concerned citizen or an employee yields uncertain results, as the

presence of some personal interest does not necessarily preclude a

holding that the speech at issue is on a matter of public concern as

well.     Thus, in mixed speech cases we proceed to analyze the form,

content, and context of the employee’s speech.24

     The first principle identified in Kennedy is that a matter of

public concern does not involve “solely personal matters or strictly

a discussion of management policies that is only interesting to the

public        by    virtue   of   the   manager’s   status    as   an    arm   of   the

government.”25         That opinion goes on to clarify that “[i]f releasing

the speech to the public would inform the populace of more than the


         22
              Id. at 366, 372.
         23
        See Teague v. City of Flower Mound, 179 F.3d 377, 381
 (5th Cir. 1999) (“[S]peech concerning the conditions of one’s
 employment is a private matter.”); Moore v. City of Kilgore, 877
 F.2d 364, 371-72 (5th Cir. 1989)(stating that employee’s speech
 concerning local fire department’s staffing shortage, while a
 matter of public concern because it involved the department’s
 ability to effectively fight fires, also included an element of
 personal concern as the employee was criticizing his employer’s
 policy).
         24
              Kennedy, 244 F.3d at 366-67.
         25
        Id. (citing Wilson v. Univ. of Tex. Health Ctr., 973 F.2d
 1263 (5th Cir. 1992)).

                                             11
fact of an employee’s employment grievance, the content of the

speech may be public in nature.”26

     The second Kennedy principle (one that is relevant to the

“context” factor), teaches that speech on a matter of public concern

need not be made before a public audience, although “it may relate

to the public concern if it is made against the backdrop of public

debate.”27   By way of example, we cited Harris, in which we had held

that there was an ongoing public debate concerning the subject

matter of the plaintiff’s speech, namely, problems with the local

high school’s academic performance.       In Harris, faculty members and

parents    phoned   school   board   members   to   discuss   the   school’s

problems, citizens stopped one board member in a grocery store and

at church to discuss the situation, and the local newspaper ran a

story about the high school’s low performance rating.28 The audience

before whom the employee speaks29 and whether the employee speaks in


      26
           Id.
      27
        Kennedy, 224 F.3d at 372. See also Harris v. Victoria
 Indep. Sch. Dist., 168 F.3d 216, 222 (5th Cir. 1999).
      28
           Kennedy, 224 F.3d at 372; Harris, 168 F.3d at 222.
      29
        Bradshaw v. Pittsburg Indep. Sch. Dist., 207 F.3d 814,
 817 (5th Cir. 2000)(per curiam)(stating that the fact that an
 employee chose to file internal grievances rather than publicize
 her complaints weighed in favor of finding that the employee’s
 speech was private rather than public); Victor v. McElveen, 150
 F.3d 451, 456 (5th Cir. 1998)(noting that the plaintiff’s
 awareness of a journalist’s presence while engaging in the
 disputed speech supported a finding that he spoke on a matter of
 public concern); Kirkland v. Northside Indep. Sch. Dist., 890
 F.2d 794, 800 (5th Cir. 1989)(noting the fact that the plaintiff
 never spoke publicly, to colleagues, supervisors, or the public,

                                     12
response to an invitation30 may also be relevant to an analysis of

the context in which an employee’s speech is offered.

     Finally, we declared in Kennedy that speech is not on a matter

of public concern if it is made solely in “furtherance of a personal

employer-employee dispute.”31     Typically, an employee speaks in


 about the matter at issue in support of a holding that the
 plaintiff spoke on a matter of private concern); Terrell v. Univ.
 of Tex. System Police, 792 F.2d 1360, 1362 (5th Cir. 1986)
 (holding that, as the plaintiff never made an effort to
 communicate speech in his diary to the public, he did not speak
 on a matter of public concern). But see Givhan v. W. Line
 Consol. Sch. Dist., 439 U.S. 410, 413 (1979)(holding a teacher’s
 private communication with principal concerning alleged racially
 discriminatory policies to be protected by the First Amendment).
      30
           See Harris, 168 F.3d at 222.
      31
        224 F.3d at 372. See also Connick v. Myers, 461 U.S.
 138, 148 (1983)(holding that questions posed by plaintiff’s
 survey to other employees “reflect[ed] one employee’s
 dissatisfaction with a transfer and an attempt to turn that
 displeasure into a cause célèbre” and were therefore not matters
 of public concern); Bradshaw, 207 F.3d at 817 (holding that a
 high school principal’s private memos to the Board concerning her
 unfavorable performance evaluations were not a matter of public
 concern); Harris, 168 F.3d at 222 (pointing out, when evaluating
 the extent of employee’s personal interest in their speech, that
 “[t]here is no evidence that the [p]laintiffs’ speech merely
 concerned an employment related squabble with their
 supervisor.”); Victor, 150 F.3d at 456 (“Victor spoke as a
 citizen on a matter of public concern, not as an employee upon
 matters only of personal interest. At the time of his remarks,
 Victor was well pleased with his position as a courtroom bailiff;
 there was no evidence that he was a disgruntled employee or had
 any personal reason to protest what he perceived to be the
 potential racially discriminatory effects of the sheriff’s
 approach to the new program.”); Kirkland, 890 F.2d at 799 (“If
 the nature of the speech is purely private, such as a dispute
 over one employee’s job performance. . .”); Terrell, 792 F.2d at
 1363(“Terrell was not terminated for speaking ‘as a citizen upon
 matters of public concern. . .’ or for ‘speak[ing] out as a
 citizen on a matter of general concern, not tied to a personal
 employment dispute. . .”)(citing Connick, 461 U.S. at 148

                                  13
furtherance      of    his   personal    employer-employee      dispute   when   he

discusses personnel matters directly impacting his job or criticizes

other employees or supervisors’ job performance.32

            i.        Context

     The context factor weighs in Salge’s favor, because of (1) her

position as the high school secretary, (2) her responsibility for

maintaining      good     communications       between   the    school    and    the

community, (3) her thirty-three years of experience in the school

system, and (4) Airheart’s prominent position in the community.                  We

concur with the district court’s determination that, for these

reasons, Salge’s speech was of interest to community members and of

greater importance because of her familiarity with the issues faced

by the school district.33

     Salge’s      comments      were    also   made   against   a   background   of

existing community debate.34            The record before us confirms beyond

cavil that, at all times pertinent to this case, administration of

the Edna high school was an item of considerable interest in that


 n.8)(emphasis in original).
      32
           Kirkland, 890 F.2d at 798 n.10.
      33
        See Kinney v. Weaver, 367 F.3d 337, 361 (5th Cir.
 2004)(en banc)(holding that, as individuals placed in law
 enforcement such as police academy instructors “are often in the
 best position to know” about issues of public concern related to
 law enforcement, these individuals should be able to speak out
 freely).
      34
         Kennedy, 224 F.3d at 372 (“[Speech] may relate to a
 matter of public concern if it is made against the backdrop of
 public debate.”).

                                          14
small community —— in fact, EISD admits as much in its brief.    The

newspaper published several articles about Airheart’s resignation,

one before Salge spoke; the reporter initiated the contact with

Salge, not vice versa; citizens called the school regarding the

issue; and members of the community approached Wells in the grocery

store —— an overall situation closely analogous to that detailed by

the Harris court in support of its conclusion that the context

element weighed in favor of holding that the employee spoke on a

matter of public concern.35

     Salge also introduced more than fifty articles from newspapers

in the Edna area addressing school district personnel matters,

including the hiring, removal, or departure of school principals and

officials.    EISD argues that the focus of community debate shifted

from Airheart’s resignation to EISD’s termination of Airheart after

the appearance of the second article; however, we agree with the

district court that the topic of the debate was the cessation of

Airheart’s and other EISD employees’ statuses at EISD, and that

whether Airheart felt compelled to resign or did so voluntarily was

an issue that could be interwoven within the broader community

debate.

     EISD next counters that public interest in Airheart’s departure

from EISD should not render Salge’s statement protected.    For this

proposition, EISD cites Terrell v. University of Texas System


      35
           168 F.3d at 222-23.

                                  15
Police.36        In Terrell, it is true that we focused on whether the

plaintiff spoke as a citizen or an employee, not on whether members

of the public had an interest in the matter discussed by the

employee.        We did so because “almost anything that occurs within a

public agency could be of concern to the public.”37                We held in

Terrell that the plaintiff’s speech was not protected because,

although it concerned police corruption, a matter of inherent public

interest, the speech was made only in a private diary which the

plaintiff never intended to make public and therefore could not have

been intended to speak on a matter of public interest.38

      Our Terrell holding, however, is more accurately characterized

as   one    in    which   we   completely    discounted   the   content   of   an

employee’s speech because the context element weighed so heavily

against a holding of protected speech.                The interpretation of

Terrell advanced by EISD in urging that we disregard whether the

content of an employee’s speech actually interests the public, is

contradicted by other precedent.              In Kennedy, for example, we

expressly stated that “[t]he very fact of newspaper coverage [of the

matter discussed by the employee] indicates that ‘the public was

receptive and eager to hear about’ [the matter].”39 We conclude that


       36
            792 F.2d 1360 (5th Cir. 1986).
       37
            Id. at 1362 (emphasis in original).
       38
            Id. at 1363.
       39
        Kennedy v. Tangipahoa Parish Library Bd. of Control, 224
 F.3d 359, 373 (5th Cir. 2000) (citing Moore v. City of Kilgore,

                                        16
the context element weighs solidly in Salge’s favor.

            ii.    Form

     As for the form of her speech, Salge was responding to an

unsolicited inquiry from a member of the community who was also a

member of the press.          The fact that an employee responds to an

invitation to speak rather than initiating the speech weighed

heavily in favor of finding speech on a matter of public concern in

Harris,    in    which    teachers   had    been   invited   to   join   a   school

committee investigating the high school’s performance and were

subsequently invited to report findings on ways in which the school

could be improved.40

     EISD argues that, in Harris and other invited speech cases, the

employee responded to an invitation to speak issued by the employer

itself, and that these cases stand for the proposition that it is

not fair to ask an employee her opinion and then punish her when she

responds truthfully.41        We also emphasized in Harris that another

important reason for this consideration is that, when employees have

been asked to speak by a truth-finding body, to punish them for




 877 F.2d 364, 371 (5th Cir. 1989)(noting that the fact that the
 media approached the employee-speaker and printed his responses
 to their questions demonstrated public interest and concern in
 the employee’s statements and supported a holding that the
 employee’s speech involved a matter of public concern)).
      40
           168 F.3d at 222.
      41
           Id.

                                           17
responding       inhibits   the   truth-seeking   process.42     Even   though

fairness and protecting the truth-seeking process are important

reasons to protect employees who respond to invitations to speak, an

invitation to speak that has issued from the public, particularly

from the press, demonstrates the public’s interest in the matter and

therefore weighs in favor of holding an employee’s speech protected.

     EISD disputes this characterization of the form of Salge’s

speech.    It argues that Salge’s affidavit and deposition contradict

each other and that Salge’s deposition testimony, which indicated

that she was responding only to a question posed by Roberson rather

than engaging in a conversation about the large numbers of officials

leaving the school district’s employ, supports a holding that Salge

was merely engaged in gossip about personnel matters with a friend

rather than responding to an invitation to speak from a reporter.

In her affidavit, Salge said that Roberson asked her why the school

district could not keep good people and that she replied with the

information about Airheart’s resignation.          In her deposition, Salge

said that she did not discuss personnel matters in general but that

the conversation focused specifically on Airheart.                 These two

statements are not necessarily contradictory, however, as Salge’s

affidavit states that she responded to a question, not that she

herself    discussed    personnel     matters.    Importantly,    Roberson’s

statements corroborate Salge: Roberson stated that she called the


      42
           Id.

                                       18
high school because it was unusual for so many school officials to

leave the school district’s employ at about the same time.

       Moreover,         even    if    we were        to   view     Salge’s   affidavit       and

deposition testimony as inconsistent, this would not change our

characterization of the form of her speech.43                        It is undisputed that

Salge responded to a question posed by a reporter who had called the

school        to    inquire      about    why     personnel         were   leaving.       Also

uncontradicted            is    Salge’s    response          about    Airheart’s      leaving,

answering, in essence, that he did not want to stay where he was not

wanted but that she wished that Airheart would not retire because he

was good for the school and the community.                                 Even if Salge’s

testimony          as   to   precisely     how    Roberson        posed    her     question    is

disregarded,            there    is    ample    evidence       ——    including      Roberson’s

testimony, the previous newspaper article, and Wells’s own testimony

that   members          of     the    community       were    talking      about    Airheart’s

resignation —— that Airheart’s leaving the school district was a

matter of public knowledge and public concern by the time Roberson

called the school and talked to Salge.                            Irrespective of whether

Salge actually participated in a discussion with Roberson about the

school districts’ employment woes, merely responded to a question,

or was talking only about Airheart’s departure from the high school,

         43
        We also note that, if we were to find any contradiction
 between Salge’s affidavit and deposition testimony, it would not
 create a disputed issue of material fact that would prevent a
 grant of summary judgment, as the essential facts of what Salge
 said and the fact that Roberson called her and posed the
 question, are undisputed.

                                                 19
there is no question that she responded to a question from a

reporter and was talking about the school’s loss of its principal.

We conclude that the form of Salge’s speech also supports holding

that she spoke on a matter of public concern.

            iii. Content

     The content of Salge’s speech also weighs in favor of holding

that she spoke on a matter of public concern.                   The undisputed

summary    judgment   evidence    shows    that   Salge   and   Roberson   were

discussing Airheart’s retirement, and that Salge was not embroiled

in a dispute with EISD over her employment status or her own job

performance.44   Her speech did not relate to her own employment at

all, but to the impending departure of a high-profile individual

within the system who just       happened to be her supervisor.       Although

EISD urges that Salge had a personal interest in her speech because

Wells had wanted Airheart to fire her for some time, it produced no

evidence that, at the time that Salge spoke with Roberson, she had

any idea that Wells wanted her fired.             The record evidence shows

that Salge received uniformly positive work evaluations and that

there were no written complaints with respect to her work before her

termination.

     EISD argues that Salge answered the phone in her capacity as

secretary, as it was her duty to do, and therefore spoke in her


      44
        See Kennedy, 224 F.3d at 372 (stating that speech is not
 on a matter of public concern if it is made in “furtherance of a
 personal employer-employee dispute.”).

                                      20
capacity of employee, not citizen.              Although EISD does not express

this argument in terms of the content, context, or form of Salge’s

speech, it may be fairly characterized as a statement that, because

it was Salge’s job to answer the phone, anything she may have said

to a reporter, irrespective of the subject, could not have been on

a matter of public concern.              Even if the fact that Salge was

performing her job duties when she answered the phone does insert a

personal concern into the mix, it does not necessarily render her

speech unprotected per se; rather it is but one factor that we

consider.        We note, nonetheless, that if EISD’s argument were

accepted it would undermine First Amendment protection for employees

who speak at work while working:              Any speech made by an employee

whose job it is to answer the phone would be rendered unprotected,

if the speech occurred during a telephone conversation.45                 We also

conclude that, even though this presents a closer question than the

context or form of Salge’s speech, the content factor, too, weighs

in Salge’s favor.

     Relevant to all three factors discussed above, EISD tries to

liken    this    case   to   Bradshaw    v.     Pittsburg   Independent    School

District,       in   which   we   held   that    a   disgruntled   high    school


        45
        See Wilson v. Univ. of Tex. Health Ctr., 973 F.2d 1263,
 1269 (5th Cir. 1992)(holding that the fact that the plaintiff had
 a duty to report sexual harassment did not render her speech
 about her own harassment unprotected, as “such a rule would
 permit public employers to remove constitutional protection from
 speech on certain subjects by including those subjects within
 employees’ reporting duties.”).

                                         21
principal’s intra-office memos complaining about non-extension of

her contract did not constitute speech on a matter of public

concern.46 Bradshaw is easily distinguishable. First, the principal

was   complaining    only    about   her   own   contractual   status,   not

discussing the employment of someone else, much less general public

employment matters.         Second, there was no demonstrated public

interest in her employment, as there was with Airheart’s and other

school employees in this case.        Finally, unlike Salge, the school

principal in Bradshaw never communicated her concerns to a public

audience, writing only in intra-office memos.

      Although Salge’s speech does not reveal official corruption,

discrimination, or other such “hot button” policy issues that we

have held to be indisputably matters of public concern,47 the form

and context of her speech —— responding to a reporter against a


       46
            207 F.3d at 817.
       47
        See Johnson v. Louisiana, 369 F.3d 826, 830-31 (5th Cir.
 2004)(“Reporting sexual harassment is speech of ‘great public
 concern.’”)(quoting Wilson, 973 F.2d at 1269); Kennedy, 224 F.3d
 at 373 n.14 (contrasting unprotected speech about working
 conditions, such as length of time on the job and the number of
 breaks employees receive, with protected speech about “policy
 changes occasioned by the violent rape of a coworker”); Harris v.
 Victoria Indep. Sch. Dist., 168 F.3d 216, 222-23 (5th Cir.
 1999)(holding criticism of school principal for not properly
 implementing a plan to improve the high school to be speech on a
 matter of public concern); Victor v. McElveen, 150 F.3d 451, 456
 (5th Cir. 1998)(“The content of Victor’s speech was inherently of
 public concern because it was a protest against racial
 discrimination.”); Moore v. City of Kilgore, 877 F.2d 364, 370
 (5th Cir. 1989)(holding that staffing shortages at the Fire
 Department, which might threaten the ability of the Department to
 perform its duties, to be matters of public concern).

                                      22
backdrop of high interest and wide discussion on this topic within

the community —— mandate the conclusion that, as a matter of law,

Salge spoke on an issue of public concern.                The summary judgment

evidence demonstrates that this topic was a very high-profile issue

in the community at the time, differentiating Salge’s speech from

unprotected gossip by an employee about disputed personnel matters.

Even if Salge’s speech contained an element of personal concern to

the extent it related to the departure of her boss or even personnel

disputes within the EISD, her central point —— that Airheart was not

leaving voluntarily —— goes to the heart of the public conversation

about why so many EISD personnel were leaving.              We hold that Salge

has demonstrated that her speech was on a matter of public concern.

     2.     Pickering   Balancing:  Employee          Free     Speech     versus
            Employer’s Interest in Efficiency

     In balancing the relative importance of Salge’s First Amendment

rights against EISD’s interest in the efficient furnishing of public

services,    we    must   consider   whether    Salge’s    “statement    impairs

discipline    by    superiors   or    harmony    among     co-workers,    has   a

detrimental impact on close working relationships for which personal

loyalty and confidence are necessary, or impedes the performance of

the speaker’s duties or interferes with the regular operation of the

enterprise.”48     When we do so, however, we must remain mindful that

“[c]reating room for free speech in a hierarchical organization


      48
        Rankin v. McPherson, 483 U.S. 378, 388 (1987); Pickering
 v. Bd. of Educ., 391 U.S. 563, 568 (1968).

                                       23
necessarily involves inconveniencing the employer to some degree.”49

     EISD continues to urge, again citing Waters v. Churchill,50 that

we should evaluate the inefficiencies caused by Salge’s speech in

the framework of what Wells reasonably believed that Salge said.

EISD contends that Wells reasonably believed that Salge’s speech had

breached       school     district      policy        against        dissemination       of

confidential personnel information, and that Wells discharged Salge

based on his concern that she had or would cause significant

disruption      by   revealing      such     information.        EISD       insists    that

Churchill      permits     an    employer     to    take     action    to   prevent     the

disruption      that     it     reasonably        believes    will    result    from     an

employee’s speech.

     EISD’s interpretation of Churchill is correct as far as it

goes.    The aspect of Churchill that EISD fails to address, however,

is the truism that, before an employer may justifiably discharge an

employee on a belief that the employee’s speech has caused or will

cause significant disruption to the workplace, the employer must

undertake a reasonable investigation of the facts to determine what

the employee actually said.51           This indispensable prerequisite does

not impose an onerous burden on the employer, yet Wells never

bothered to satisfy the requirement of conducting a reasonable



        49
             Moore, 877 F.2d at 375.
        50
             511 U.S. 661 (1994).
        51
             Id. at 678.

                                             24
investigation         into    Salge’s       speech   before       he   terminated      her

employment.52      In fact, Wells never asked Roberson what Salge said ——

he   only     asked Roberson        “where    she    got    the    information.”      And,

Roberson’s only reply was that she had spoken to Salge, not that

Salge had said that Airheart’s contract was “not extended.”                      Without

ever addressing the content of Salge’s conversation with Roberson,

much less specifically discussing the nuances of “extended” vis-à-

vis “renewed,” Wells —— by his own admission —— merely replied,

“Okay.        That’s all I needed to know.”                Moreover, both Salge and

Wells confirmed that they never discussed the speech for which Salge

was fired.

      Generally, without at least asking an employee what she said,

an employer’s indispensable investigation into whether an employee’s

speech was protected will not be reasonable.                        In Churchill, the

investigation approved by the Supreme Court comprised the employer

(1) thrice interviewing the employee who originally complained about

Churchill’s       speech,     (2)    questioning      another      employee     who    had

witnessed       the    conversation         for   corroboration,       and     (3)    most

significantly, conversing with the employee whose speech was at

issue.53        Although     the    Court    noted   that    the    employer    had    not


         52
        See id. (“[An investigation] need not be [conducted with]
 the care with which trials, with their rules of evidence and
 procedure, are conducted. It should, however, be the care that a
 reasonable manager would use before making an employment decision
 —— discharge, suspension, reprimand, or whatever else —— of the
 sort involved in the particular case.”).
         53
              511 U.S. 661, 666 (1994)(plurality opinion).

                                             25
interviewed the plaintiff before telling her that she was fired, it

relied on the fact that, after her discharge, the plaintiff filed an

internal grievance and was afforded a meeting with the hospital

president to tell her side of the story.54    And, even then, before

making the plaintiff’s employment termination final, the hospital

conducted yet another interview with the employee who had originally

complained about the plaintiff’s speech and sought assurances of all

employees’ credibility from supervisors.55   The Court summarized the

evidence before the employer as follows:

     By the end of the termination process, Hopper, who made
     the final decision, had the word of two trusted
     employees,   the   endorsement  of   those   employees’
     reliability by three hospital managers, and the benefit
     of a face-to-face meeting with the employee he fired.
     With that in hand, a reasonable manager could have
     concluded that no further time needed to be taken.56

     Wells’s investigation also fell far short of any investigation

that we have ever held to be reasonable.     In Johnson v. Louisiana,

for example, we upheld as reasonable an employer’s investigation of

an employee’s speech after (1) it received statements from three

employees, (2) it obtained a supervisor’s report stating that the

supervisor believed that the plaintiff was lying, and (3) the

plaintiff “fail[ed] to present any evidence in his own support even




      54
           Id. at 680.
      55
           Id.
      56
           Id.

                                26
when explicitly invited to do so.”57

     These investigations obviously differ dramatically from the de

minimis one conducted by Wells in this case, i.e., doing absolutely

nothing but to ask Roberson where she got her information.   Wells

essentially conducted no investigation, despite the fact that he

knew about the previous newspaper article, the community’s interest

in Airheart’s resignation, and the 40-person meeting at which

Airheart had announced his resignation, all before Salge spoke with

Roberson.   And, Wells must be deemed to have been on notice that

Salge’s First Amendment rights could be affected.58

     EISD relies primarily on the role of Wells’s “reasonable”

belief that Salge had disclosed confidential information in his

decision to terminate her to show that Salge’s speech caused or had

the potential to cause serious disruption to the school district’s

functioning. Had Wells conducted a reasonable investigation of what

Salge actually said, he would have known immediately that she did

not divulge confidential information:    Airheart had effectively

waived any confidentiality rights by revealing the information in


      57
        Johnson v. Louisiana, 369 F.3d 826, 832 (5th Cir.
 2004)(emphasis in original). See also Gonzales v. Dallas County,
 249 F.3d 406, 412 (5th Cir. 2001)(holding an investigation in
 which the employer interviewed numerous witnesses to incident
 involving employee, including employee himself, to be
 reasonable).
      58
        See Churchill, 511 U.S. at 677 (“If an employment action
 is based on what an employee supposedly said, and a reasonable
 supervisor would recognize that there is a substantial likelihood
 that what was actually said was protected, the manager must tread
 with a certain amount of care.”).

                                27
the 40-person meeting that he convened and conducted —— he also

stated in his deposition that he did not consider this information

confidential.

       EISD argues additionally on appeal that Wells also “believed”

that     Salge        had   formerly     made    inappropriate     remarks     about

confidential matters at school, and that this belief supported his

deduction that she had divulged confidential information to the

newspaper.           Even assuming arguendo that this were true, we would

still hold that Wells’s failure at least to ask Salge what she said

to the reporter bars a conclusion that his investigation of her

speech was a reasonable one.

       EISD also points out that, when Airheart called Wells to

complain about the release of inaccurate information to the press,

Airheart did not volunteer the fact that he had revealed his

contractual status to a great many EISD employees at a meeting, and

that this also justifies Wells’s belief that Airheart’s contractual

status        was      confidential.        We     emphasize,      however,    that

Churchill requires that employers make a reasonable investigation of

an   employee’s        speech   before    taking   adverse    employment     action.

Relying on other employees and third parties to come forward sua

sponte        with    exculpatory   information     does     not   qualify    as   an

investigation at all, much less a reasonable one.59                We therefore do

not weigh in EISD’s favor the putative disruption that Salge’s



         59
              511 U.S. at 677.

                                           28
speech might conceivably have caused had she actually divulged

confidential information, as —— absent a real investigation —— it

was not reasonable for Wells to believe that she had divulged

anything confidential.60

     It might have been reasonable for Wells to believe, even after

asking Salge about her conversation with Roberson and gathering any

other        appropriate   information,    that   Salge   gave   inaccurate

information to the newspaper.61 Again, without asking Salge what she

said to the reporter or asking the reporter if Salge actually spoke

the word “renewed,” Wells was not entitled to make and rely on his

“quantum leap of logic” that the inaccurate statement in the paper

came from Salge rather than being the result of a misunderstanding

or mis-printing by the paper.

     EISD also argues that Wells did not think it necessary to

inquire further after Roberson told him that the information came

from Salge, as he assumed that the inaccuracy was Salge’s statement;

it also points out that neither Roberson nor Salge ever told Wells

that the inaccuracy in the paper was not a result of Salge’s speech.



        60
        See id. at 680 (holding that the court should consider
 the potential disruption resulting from the speech that the
 employer reasonably believed had been made).
        61
        It is possible that, if Wells had asked Salge about her
 speech, been told that she used the word “extended,” and then
 asked Roberson for confirmation, Roberson might have contradicted
 Salge’s statement, and Wells could have reasonably believed that
 Salge mis-spoke. See Churchill, 511 U.S. at 678 (“Of course,
 there will often be situations in which reasonable employers
 would disagree about who is to be believed. . .”).

                                      29
This   contention     gets    EISD     nowhere.         First,   the    one   and   only

inaccuracy in the newspaper article was its use of a single word,

“renewed,” as opposed to “extended.”                    Had the paper printed a

lengthy report about Airheart, full of distortions, lies, mistakes,

and    innuendo;     and   had     Roberson     told    Wells    that   all   of    such

information came from Salge, Wells might have been justified in his

belief that Salge had furnished inaccurate information to the

newspaper.        In this case, when but one word separates false from

accurate information, we conclude that it is not reasonable to

assume,      as   Wells    did,    that   the    inaccuracy       resulted    from    an

employee’s speech without at least asking the employee or the

journalist exactly what the employee said.                      We further note, as

indicated above, that it is not the responsibility of employees and

third parties to volunteer all relevant information to employers as

part of an employer’s “reasonable” investigation under Churchill.62

We    therefore     proceed       to   balance    the    value    of    Salge’s     non-

confidential, accurate speech, against EISD’s interest in efficiency

for purposes of our Pickering analysis.

       EISD offers four examples of how Salge’s speech purportedly

disrupted its operations: (1) Her speech affected the working

relationship between Wells and Airheart; (2) it upset EISD board

members and members of the community; (3) it caused Wells to spend

valuable time correcting the erroneous statement in public; and (4)



        62
             511 U.S. at 677-78.

                                           30
it cast the school district in a negative public light.63          EISD also

contends that the value of Salge’s speech was very low, as it

amounted to little more than gossip in the workplace about a

personnel   matter,    and   should   accordingly   count    for   little   in

opposition to the inefficiency experienced by EISD.

     First, although the working relationship between Wells and

Airheart was undoubtedly strained, this strain was certainly the

result, in principal part, of Well’s unfavorable evaluation of

Airheart’s work and his non-extension of the principal’s contract.

The very fact that, prior to Salge’s speech, Airheart assembled and

told a meeting of forty employees that he had received the second-

worst evaluation of his life and would not stay where he was not

wanted, nullifies the contention that Salge’s speech produced the

strained relationship between Wells and Airheart.

     Second, many members of the community had already expressed

concern    regarding   Airheart’s     resignation   before   the   newspaper

published Roberson’s article grounded in part on Salge’s responses

to that reporter’s questions.         EISD produced no evidence that the

community’s concern created such turmoil after the publication of

the article that it impaired the school’s operations.64 Wells stated


      63
        Although EISD states that Salge violated its policy
 against contacting the media, it did not provide the court with a
 copy of this policy or cite this policy in support of its
 interest in efficiency under Pickering.
      64
        See Moore v. City of Kilgore, 877 F.2d 364, 375 (5th Cir.
 1989)(holding that, as the employee firefighter’s speech did not
 hinder the ability of his employer, the Fire Department, to

                                      31
that, after Airheart held the meeting at which he announced the non-

extension   of   his    contract      and    his   intention    to   resign,   Wells

received a number of phone calls from high school staff members,

students were upset that Airheart was leaving, and members of the

community approached Wells to discuss the situation.

     Wells could not recall whether individuals outside the school

system   actually      called   him    to    discuss   the     matter   before   the

appearance of the article, or only afterwards.                  Wells did confirm

that members of the community approached him to discuss Airheart’s

resignation while he was in the grocery or otherwise out in the

community, although he may not have received phone calls until after

publication of the second article.                 Wells also testified in his

deposition, conclusionally, that, after the article was published,

these disruptions “escalated,” yet he did not describe what effect

these disruptions had on EISD’s operations or how the disruption


 perform its primary task of fighting fires, as opposed to causing
 a general burden on the efficient operation of the city as an
 organization, the employer’s interest in efficiency was entitled
 to little weight as opposed to the employee’s speech). See
 also Pickering v. Bd. of Educ., 391 U.S. 563, 572
 (1968)(emphasizing that plaintiff teacher’s speech did not
 disrupt the operation of the schools); Kennedy v. Tangipahoa
 Parish Library Bd. of Control, 224 F.3d 359, 378 (5th Cir.
 2000)(“[The plaintiff’s] letter would not have impeded the
 Library’s general performance and operation: it did not have any
 bearing on the day-to-day business of circulating books within
 the community.”) These cases illustrate that, when we evaluate
 the impact of a plaintiff’s speech on a defendant employer’s
 operations, we inquire whether the speech impacted the actual
 operations of the employer in providing its day-to-day services,
 such as the circulating of books at the library or the
 continuation of classes at school, as opposed to creating a
 bureaucratic hassle.

                                            32
became more severe. Moreover, EISD produced no evidence from anyone

other than Wells that Salge’s speech caused any disruption at all.65

Any additional disruption arising out of Salge’s alleged divulgence

of confidential or inaccurate information cannot, as we explained

above,        be   attributed     to     Salge   for     purposes   of   our   Pickering

balancing.

     As for the waste of Wells’s time, EISD produced no evidence

that the amount of time that Wells devoted was any greater than it

would have been if caused by an employee’s protected, if somewhat

controversial, speech.66               Wells did not state, nor did EISD produce

any other evidence to show, that he spent an inordinate amount of

time putting out brush fires in the community after the appearance

of the inaccurate article.                In fact, no summary judgment evidence

indicates          how   much   time    Wells    spent    dealing   with   the   alleged

disruption in the school district, much less that he spent enough

time to disrupt operations of the district.

     Finally, even though EISD has an interest in its reputation,

Salge’s speech concerning Airheart’s employment status could not be

said to have cast the district in a “negative public light.”



         65
        Moore, 877 F.2d at 375 (noting that the defendant
 employer presented no evidence, other than the testimony of one
 supervisor, that the plaintiff’s speech actually created any
 disruption to the employer’s work).
         66
        See id. (“Creating room for free speech in a hierarchical
 organization necessarily involves inconveniencing the employer to
 some degree. Speech concerning public affairs usually creates
 attendant inefficiencies in the running of the public entity.”).

                                                33
Indeed, Salge said nothing about the district at all, and the

disputed newspaper article did not even identify its source of

information as an employee of the district. As EISD does not

elaborate    further     on    this   argument,      we    shall    not    engage    in

conjecture as to how Salge’s comment might have negatively portrayed

the school district.

     EISD has failed to demonstrate any disruption to its working

environment or the running of the schools that is not easily

outweighed by speech of even moderate First Amendment value.                    We do

not suggest that, if an employer were to undertake a reasonable

investigation     of    an    employee’s    speech     and     determine    that    the

employee inappropriately divulged confidential information, this

fact would not weigh heavily in favor of an employer’s interest in

efficiency in the Pickering balancing test.                    Rather, we emphasize

that such is not the case before us, and that we discount Wells’s

belief that Salge revealed confidential information because he

failed to conduct any kind of reasonable investigation into the

substance    of   her   speech.       If    he   had      conducted   a    meaningful

investigation and then mistakenly determined that her speech did

include confidential information, his belief on this matter would

have weighed in favor of EISD; but, again, that is not what the

record reveals here.

      The disruption alleged by EISD does not outweigh Salge’s

interest in speaking on a matter of confirmed public interest in her

community,   especially        when   analyzed    as      to   context,    form,    and

                                           34
content.    Although it is unfortunate that Salge either misspoke or

Roberson misquoted Salge in the paper, there is no evidence that

Salge’s speech caused such an uproar —— or, to be more precise,

elevated an existing uproar —— as to impair the functioning of the

school      district   even    temporarily.      We   conclude   that

Pickering’s balance beam tips solidly in favor of Salge.

                              III. CONCLUSION

     Salge spoke on a matter of public concern and, given the dearth

of evidence produced by EISD to show that her speech either actually

or potentially interfered with or disrupted the functioning of the

school district, we conclude that she was fired in violation of her

First Amendment rights.       We therefore affirm in all respects the

district court’s grant of summary judgment in favor of Salge on her

First Amendment retaliation claim.

AFFIRMED.




                                    35
