     Case: 13-60540    Document: 00512741969    Page: 1   Date Filed: 08/21/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 13-60540                     United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
RODRICUS CARLTEZ HURST,                                            August 21, 2014
                                                                    Lyle W. Cayce
                                           Plaintiff-Appellant,          Clerk
v.

LEE COUNTY, MISSISSIPPI,

                                           Defendant-Appellee.




                Appeal from the United States District Court
                  for the Northern District of Mississippi


Before STEWART, Chief Judge, and WIENER and COSTA, Circuit Judges.
CARL E. STEWART, Chief Judge:
      Plaintiff-Appellant Rodricus Carltez Hurst filed suit in federal district
court alleging that Defendant-Appellee Lee County, Mississippi – acting
through its Sheriff – terminated Hurst’s employment in violation of his First
Amendment right to free speech. The district court granted judgment as a
matter of law in favor of Lee County. We affirm.
                  I.    FACTS & PROCEDURAL HISTORY
      Hurst became employed as a corrections officer with the Lee County
Sheriff’s Department (“the Department”) in 2008 under Sheriff Jim H.
Johnson, who was first elected in 2003. Specifically, Hurst worked as a shift
sergeant in Lee County Jail (“the Jail”) and supervised eight other correctional
officers. The Jail provides jail space for several Lee County law enforcement
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agencies, including but not limited to the Tupelo, Mississippi Police
Department. At the time, Sheriff Johnson’s media relations policy, which was
included in the Department’s standard operating procedures, provided that
only the Sheriff or his “designee” would be permitted to coordinate with the
media with respect to crimes and investigations.          Non-designees were
permitted to reveal certain “public information” to the media which included
the limited information entered on the Department’s docket book and website.
According to the record, Hurst had spoken with members of the media
numerous times during the course of his employment with the Jail.
      In 2012 on New Year’s Day, Hurst arrived at the jail to begin his shift
and learned that Chad Bumphis, a Mississippi State University football
player, had been arrested the night before by the Tupelo Police Department.
That day, numerous media representatives telephoned the Jail seeking
information about Bumphis’s arrest; Hurst fielded many of those calls. At one
point during that day, Brad Locke, a sports writer for the Northeast Mississippi
Daily Journal (NMDJ), travelled to the Jail and questioned Hurst about the
incident that happened the night before involving Bumphis. Later that day,
Locke published an article in the NMDJ in print and online about the arrest
of Bumphis, attributing certain quotes in the articles to Hurst. One article
quoted Hurst as saying that “[w]hen the fight broke out, they [i.e., the Tupelo
Police Department] started taking people to jail.”
      Sheriff Johnson read the articles and directed that Hurst be interviewed
by Department personnel with regard to the statements. Hurst acknowledged
that he had talked to the reporter and wrote out a statement which provided
in part: “I told the reporter from what I had heard a group fight had broke out
and somehow he [Bumphis] got cut on the neck.” Upon reading Hurst’s written
statement, Sheriff Johnson fired Hurst for violating the Department’s media
relations policy.
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      Following his termination, Hurst applied for and was denied
unemployment benefits by the Mississippi Department of Employment
Security (“MDES”). 1 The MDES determined that Hurst was discharged after
wrongfully releasing information to the media without authorization from the
Sheriff. Hurst appealed and an Administrative Law Judge (“ALJ”) also held
that Hurst had wrongfully released information to the media without
authorization from the Sheriff in violation of the Department’s media relations
policy. Hurst then brought suit in the United States District Court. Lee
County filed a motion for summary judgment on the grounds that the findings
of the MDES and the ALJ should have a preclusive effect on the district court
proceedings. The district court denied the motion in part and granted the
motion in part and held that “[t]he MDES factual determination is entitled to
preclusive deference; however, the facts established by the ALJ are not
dispositive [of] the question of whether Lee County Sheriff’s Department policy
on communication with the media by employees is constitutionally valid under
the First Amendment.”
      The case proceeded to jury trial and, at the close of Hurst’s case in chief,
Lee County filed a Rule 50 motion for judgment as a matter of law. FED. R.
CIV. P. 50(a). Relying primarily on this court’s holding in Nixon v. City of
Houston, 511 F.3d 494 (5th Cir. 2007), the district court ruled from the bench
and granted the motion in favor of Lee County. The court’s ruling stated that:
(1) Hurst spoke to the reporter as an employee of the Sheriff’s Department as
part of his official job duties; and (2) any part of the speech Hurst engaged in
with Mr. Locke that would not be considered part of his official job duties –




      1 Also known as the Mississippi Employment Security Commission. See Miss. Code
Ann. § 71-5-101.
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therefore speech engaged in as a private citizen – was nevertheless
unprotected because it was not of “public concern.” Hurst appeals herein.
                        II.    STANDARD OF REVIEW
      “We review the district court’s grant of judgment as a matter of law de
novo, applying the same legal standards as the district court.” Gonzalez v.
Fresenius Med. Care N. Am., 689 F.3d 470, 474 (5th Cir. 2012). Judgment as
a matter of law may be granted when “a party has been fully heard on an issue
during a jury trial and the court finds that a reasonable jury would not have a
legally sufficient evidentiary basis to find for the party on that issue.” FED. R.
CIV. P. 50(a)(1). In reviewing the district court’s grant of judgment as a matter
of law, we “consider all of the evidence in the light most favorable to the
nonmovant, drawing all factual inferences in favor of the non-moving party,
and leaving credibility determinations, the weighing of evidence, and the
drawing of legitimate inferences from the facts to the jury.” Gonzalez, 689 F.3d
at 474-75.
                               III.   DISCUSSION
   A. First Amendment Speech
      Hurst’s first argument on appeal is that the district court erroneously
granted Lee County’s Rule 50 motion because Hurst’s speech was not employee
speech pursuant to his job duties and should have been considered citizen
speech protected by the First Amendment. We disagree.
      While government employees are not stripped of their First Amendment
right to freedom of speech by virtue of their employment, this right is not
without exception. Pickering v. Bd. of Educ. of Tp. High Sch. Dist. 205, Will
Cnty., Ill., 391 U.S. 563, 568 (1968). A four-pronged test is used to determine
whether the speech of a public employee is entitled to constitutional protection
from employer discipline. See Juarez v. Aguilar, 666 F.3d 325, 332 (5th Cir.
2011). A plaintiff must establish that: (1) he “suffered an adverse employment
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                                  No. 13-60540
decision”; (2) his “speech involved a matter of public concern”; (3) his interest
in speaking outweighed the governmental defendant’s “interest in promoting
efficiency”; and (4) “the protected speech motivated the defendant’s conduct.”
Id.
       The Supreme Court noted in Garcetti v. Ceballos that, for an employee’s
speech to qualify for First Amendment protection, he must be speaking “as a
citizen on a matter of public concern.” 547 U.S. 410, 418 (2006). This court
has characterized that requirement – that he be speaking as a citizen on a
matter of public concern – as a “threshold layer” to the second prong of the
retaliation test. See Davis v. McKinney, 518 F.3d 304, 312 (5th Cir. 2008).
Garcetti further states 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.” Garcetti, 547 U.S. at 421. In the
past, we have acknowledged that Garcetti does “not explicate what it means to
speak ‘pursuant to’ one’s ‘official duties.’” Williams v. Dallas Indep. Sch. Dist.,
480 F.3d 689, 692 (5th Cir. 2007) (quoting Garcetti, 547 U.S. at 424).
       More recently, however, the Supreme Court expounded upon this issue
in Lane v. Franks, 134 S. Ct. 2369, 2379 (2014). In Lane, the Court reasoned
that “the mere fact that a citizen’s speech concerns information acquired by
virtue of his public employment does not transform that speech into
employee—rather than citizen—speech. The critical question under Garcetti
is whether the speech at issue is itself ordinarily within the scope of an
employee’s duties, not whether it merely concerns those duties.” Id. The Court
ultimately held in that case that the First Amendment “protects a public
employee who provide[s] truthful sworn testimony, compelled by subpoena,
outside the course of his ordinary job responsibilities.” Id. at 2374-75.


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       When a court determines that an employee is not speaking as an
employee, but rather as a citizen on a matter of public concern, “the possibility
of a First Amendment claim arises.”                Garcetti, 547 U.S. at 418. To then
determine whether the employee’s speech is entitled to First Amendment
protection, the court proceeds to the Pickering balancing test, which inquires
as to whether the interest of the government employer “in promoting the
efficiency of the public services it performs through its employees” outweighs
the employee’s interests, as a citizen, “in commenting upon matters of public
concern.” Pickering, 391 U.S. at 568. In performing this balancing test, the
court looks at “whether the 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.” Rankin v. McPherson, 483 U.S. 378, 388 (1987).
       Here, Hurst was an officer who, according to the Department’s media
relations policy, could have obtained authorization from his superiors to speak
to the media about the event involving Bumphis that took place while Hurst
was off duty the night before. 2 He chose, however, to make statements to the
media without obtaining that authorization and was ultimately terminated for
doing so.      Hurst argues on appeal that his job duties were limited to
supervising his subordinate officers and keeping the officers and inmates safe.
However, Sheriff Johnson’s media relations policy states that employees like
Hurst were authorized to field calls from the media - such as the numerous



       2 We note herein that the fact that Hurst first learned of Bumphis’s arrest upon
arriving to begin his shift at the Jail is not dispositive of the question of whether his speech
to the reporter about the arrest was employee speech. See Lane v. Franks, 134 S. Ct. 2369,
2379 (2014) (stating that “the mere fact that a citizen’s speech concerns information acquired
by virtue of his public employment does not transform that speech into employee—rather
than citizen—speech.”).
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calls Hurst fielded on January 1, 2012 - and to provide certain limited
information when doing so. If Hurst was not authorized as a designee to speak
on a specific issue about an arrest, he was permitted to provide certain publicly
available information to the media such as the name of the arrestee, the
charge, the amount of the arrestee’s bond, and whether the Department had
released the arrestee.      Further, the Sheriff at his discretion could have
authorized Hurst as his designee to make other statements to the media.
Hurst did not obtain that authorization before making the statements at issue
to the news reporter.
      Accordingly, we hold that Hurst’s statements to the news reporter, i.e.,
the speech at issue, was “ordinarily within the scope of [Hurst’s] duties” and
did not “merely concern those duties.” Lane, 134 S. Ct. at 2379. 3 Thus, Hurst
was not speaking as a citizen for First Amendment purposes, and consequently
his communications were not constitutionally insulated from employer
discipline. Garcetti, 547 U.S. at 421. Moreover, because we have held Hurst’s
speech to be ordinarily within the scope of his duties and therefore not citizen
speech protected by the First Amendment, we do not reach the issue of whether
Hurst’s speech involved “a matter of public concern.” Garcetti, 547 U.S. at 418;
Juarez, 666 F.3d at 332.
   B. Duty to Investigate
      Hurst’s second argument on appeal is that the Rule 50 motion was
erroneously granted because the Sheriff violated his duty to conduct a
reasonable investigation to determine whether Hurst had engaged in protected
speech when speaking with the news reporter. See Waters v. Churchill, 511



      3 In another case involving a law enforcement official making an unauthorized
comment to the media, we concluded that the statement was “not protected by the First
Amendment because it was made pursuant to his official duties and during the course of
performing his job.” Nixon v. City of Houston, 511 F.3d 494, 498 (5th Cir. 2007).
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U.S. 661, 677-80 (1994). In light of our foregoing conclusion that Hurst’s
speech to the news reporter was not protected First Amendment speech, we
pretermit discussion of Hurst’s argument that Sheriff Johnson violated his
duty to conduct a reasonable investigation under Waters prior to terminating
Hurst’s employment. See id.
                              IV.   CONCLUSION
     For the reasons stated herein, we affirm the judgment of the district
court granted in favor of Defendant-Appellee Lee County, Mississippi.




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