Date: 11-22-2017

Case Style:

Case Number: 16-1062

Judge: Loken

Court: United States Court of Appeals for the Eighth Circuit on appeal from the Western District of Missouri (Jackson County)

Plaintiff's Attorney: Ken Cox and Kelly McClelland, Ryan McClelland

Defendant's Attorney: Michael L. Blumenthal and Deena Bein Jenab

Description: Henry Lyons worked as a part-time lecturer at the University of Missouri
Kansas City (“UMKC”) for seven semesters, teaching a self-developed Career and
Life Development course. He was not asked to return for the Spring 2012 semester.
In this 42 U.S.C. § 1983 action, Lyons alleges that defendants’ decision not to renew
his contract was retaliation for his criticism of UMKC’s preferential treatment of
student athletes and therefore a violation of his free speech rights as a public
employee. The individual defendants appeal the district court order denying their
motion to dismiss Lyons’s damage claims because they are entitled to qualified
immunity. Reviewing the denial of qualified immunity de novo, we reverse.
I.
Lyons’s First Amended Complaint (“FAC”) alleged that in Fall 2010 he gave
a student athlete an “F” grade in Lyons’s course. The student challenged his grade
through UMKC’s appeal process; Lyons submitted a “formal written response”
defending his grade. The “Grade Appeal Committee,” comprised of Reginald Bassa,
Director of UMKC’s Program for Adult Education, and the Department Chair,
determined the student should be allowed to submit a second midterm paper. Lyons
appealed this decision and complained to F. Wayne Vaught, Interim Dean of the
College of Arts and Sciences. Vaught referred the student’s appeal to the Academic
Standards Committee in September 2011. The Committee determined the student
should be allowed to submit a second paper. Lyons again complained to Vaught, who
upheld the Committee’s decision. A committee appointed to grade the student’s
second paper gave it a 75% grade, and Vaught instructed the registrar to change the
student’s grade to D+ in November 2011.
In late November, Lyons arranged a meeting with UMKC Chancellor Leo E.
Morton and invited three others to attend: UMKC’s former Deputy Chancellor for
Diversity, Access, and Equity; a past Chairman of the Minority & Cultural Affairs
Committee and past Vice President of UMKC’s Alumni Association Board; and the
President of the local NAACP chapter. Lyons expressed concerns about preferential
treatment of student athletes at UMKC, summarized other professors’ complaints
about the problem, and noted that such treatment could lead to adverse publicity and
sanctions. Lyons requested that Morton “undertake a comprehensive investigation
into the preferential treatment afforded to student athletes.” Morton said he declined
to get involved with student-faculty matters on campus. Lyons never heard back
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regarding his complaints. He was not offered a part-time lecturer contract for the
following semester, contracts that “are offered based on the recommendation and
approval” of Vaught and Bassa.
Lyons initially sued Morton, Vaught, and Bassa in state court, alleging
unlawful First Amendment retaliation. He voluntarily dismissed Chancellor Morton
after defendants removed the case to federal court. Vaught and Bassa moved to
dismiss on grounds of qualified immunity and failure to state a claim. The district
court denied the motion, and defendants appealed. We agreed with the court that
dismissal for failure to state a claim was properly denied because, while Lyons’s
speech during the grade-appeal process was not protected against public-employer
retaliation, it was not clear from the ambiguous FAC whether his speech at the
meeting with Chancellor Morton was connected to the appeal process, or whether
Lyons spoke at the meeting as a citizen on a matter of public concern. However, our
review of the FAC found no allegation that Vaught and Bassa were ever apprised of
Lyons’s speech at the meeting with Morton, which they did not attend. A First
Amendment retaliation claim requires proof of a causal connection between the
protected activity and the adverse employment action, so we concluded that Vaught
and Bassa were entitled to qualified immunity because the only speech that could
have prompted their adverse action was Lyons’s unprotected speech during the appeal
process. Lyons v. Vaught, 781 F.3d 958, 962-63 (8th Cir. 2015) (“Lyons I”). We
reversed the denial of qualified immunity and remanded for further proceedings.
On remand, rather than grant defendants’ qualified immunity, the district court
permitted Lyons, over defendants’ objection, to file a Second Amended Complaint
(“SAC”) to cure the FAC’s fatal defects. The 1 SAC again alleged that Lyons’s First
1This was error. Remand required that Lyons be “no better off” than if the
motion to dismiss the FAC had been granted, so Lyons’s motion to amend his
Complaint again should have been considered under more rigorous post-dismissal
standards. See Hager v. Ark. Dep’t of Health, 735 F.3d 1009, 1017 (8th Cir. 2013).
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Amendment claim “stems from the preferential academic treatment afforded student
athletes . . . one of which [sic] challenged a grade received in [Lyons’s class].” It
alleged that the student’s grade was changed from “F” to “D+” in the appeal process
but excised extensive factual allegations in the FAC describing that process. Unlike
the FAC, the SAC specifically alleged that “Lyons told Bassa and Vaught what he
had discussed” at the meeting with Chancellor Morton -- that student athletes “were
receiving preferential treatment,” that it was unfair “to let student athletes take
advantage of the grading system,” that this could lead to adverse publicity and
sanctions, and that “he asked Chancellor Morton to undertake a comprehensive
investigation into the preferential academic treatment afforded to student athletes.”
Defendants moved to dismiss the SAC, arguing they are entitled to qualified
immunity because at the time of the alleged retaliation, “it was not clearly established
that a teacher complaining about academic favoritism towards student athletes (which
included one of Plaintiff’s own students) was engaged in constitutionally protected
speech.” The district court denied the motion, concluding it was clearly established
“that a public employee had a First Amendment right to speak on matters of a public
concern so long as that speech was not part of the employee’s job duties.”
Defendants appeal. We have jurisdiction to determine whether Lyons sufficiently
alleged a clearly established violation of law, accepting as true the facts alleged in
Lyons’s SAC. Lyons I, 781 F.3d at 960.
II.
Qualified immunity from personal damage liability “gives government officials
breathing room to make reasonable but mistaken judgments about open legal
questions.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011). “Qualified immunity
attaches when an official’s conduct does not violate clearly
established . . . constitutional rights of which a reasonable person would have
known.” White v. Pauly, 137 S. Ct. 548, 551 (2017) (quotation omitted). It “protects
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all but the plainly incompetent or those who knowingly violate the law.” Mullenix
v. Luna, 136 S. Ct. 305, 308 (2015) (quotation omitted). For purposes of their motion
to dismiss, Defendants assume that Lyons’s SAC alleged the violation of a
constitutional right -- retaliation for his First Amendment protected speech at the
meeting with Chancellor Morton. They argue the alleged right was not clearly
established at the time of the alleged violation. See al-Kidd, 563 U.S. at 735.
The Supreme Court has repeatedly warned that “clearly established law should
not be defined at a high level of generality . . . [but] must be particularized to the facts
of the case.” White, 137 S. Ct. at 552 (citing prior cases). Absent controlling
authority, Lyons must show “a robust consensus of cases of persuasive authority.”
De La Rosa v. White, 852 F.3d 740, 746 (8th Cir. 2017) (quotation omitted).
Although the Supreme Court “does not require a case directly on point for a right to
be clearly established, existing precedent must have placed the . . . constitutional
question beyond debate” at the time Vaught and Bassa acted. White, 137 S. Ct. at
551 (quotation omitted); see Mullenix, 136 S. Ct. at 308; Reichle v. Howards, 132 S.
Ct. 2088, 2094 (2012) (“[T]he right in question is not the general right to be free from
retaliation for one’s speech, but the more specific right to be free from a retaliatory
arrest that is otherwise supported by probable cause.”).
III.
To establish employer retaliation in violation of the First Amendment, a public
employee must prove: “(1) he engaged in activity protected by the First Amendment;
(2) the defendants took an adverse employment action against him; and (3) the
protected conduct was a substantial or motivating factor in the defendants’ decision
to take the adverse employment action.” Lyons I, 781 F.3d at 961. Although “legal
issues expressly or impliedly decided” in Lyons I are the law of the case, issues
outside “the four corners of that opinion” are not. McNabb v. Riley, 29 F.3d 1303,
1305 (8th Cir. 1994). Our decision in Lyons I did not address whether it was clearly
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established that the First Amendment protected Lyons’s speech at the meeting with
Chancellor Morton from retaliation by his employer.
It is clearly established that citizens do not “relinquish First Amendment rights
to comment on matters of public interest by virtue of government employment.”
Connick v. Myers, 461 U.S. 138, 140 (1983). However, “this does not require a grant
of immunity for employee grievances.” Id. at 147. “[T]he First Amendment does not
require a public office to be run as a roundtable for employee complaints over internal
office affairs.” Id. at 149. Thus, First Amendment protection of a public employee’s
speech depends on a careful balance “between the interests of the [employee], as a
citizen, in commenting upon matters of public concern and the interest of the State,
as an employer, in promoting the efficiency of the public services it performs.”
Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).
In Garcetti v. Ceballos, the Supreme Court noted two inquiries in determining
whether public employee speech is protected against employer retaliation:
The first requires determining whether the employee spoke as a citizen
on a matter of public concern. If the answer is no, the employee has no
First Amendment cause of action based on his or her employer’s
reaction to the speech. If the answer is yes, then the possibility of a First
Amendment claim arises. The question becomes whether the relevant
government entity had an adequate justification for treating the
employee differently from any other member of the general public.
547 U.S. 410, 418 (2006) (quotation omitted), quoted in Lane v. Franks, 134 S. Ct.
2369, 2378 (2014). The Court granted certiorari in Garcetti to determine whether a
public employee’s speech criticizing government misconduct -- a matter of public
concern -- was protected from employer retaliation even if made pursuant to the
employee’s duties. Id. at 416-17. The Court ruled such speech unprotected:
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[W]hen 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. . . . Restricting speech that owes its existence
to a public employee’s professional responsibilities does not infringe
any liberties the employee might have enjoyed as a private citizen.
Id. at 421-22. In Lane, a decision after the events here at issue, the Court further
explained that “[t]he 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.” 134 S. Ct. at 2379.2
Under Garcetti, when a public employee speaks on a matter of public concern
pursuant to his official duties, the speech is unprotected against employer retaliation.
Thus, for Lyons to prevail, we must conclude that, when he was not offered a
lecturer’s position in early 2012, it was clearly established First Amendment law that
his speech on matters of public concern at the meeting with Chancellor Morton was
not made “pursuant to [his] official duties.” See 547 U.S. at 421. If it was pursuant
to his official duties, he has no First Amendment claim. And if this question was not
“beyond debate,” Vaught and Morton are entitled to qualified immunity from Lyons’s
damage claims.3
2In Lane, the Court held that an employee’s truthful testimony compelled by
subpoena at a corruption trial was First Amendment protected, but the defendants
were entitled to qualified immunity because “Eleventh Circuit precedent did not
provide clear notice that subpoenaed testimony concerning information acquired
through public employment is speech of a citizen entitled to First Amendment
protection.” 134 S. Ct. at 2382-83.
3We deal here with the first step of the two-step inquiry under Garcetti. If
Lyons avoids dismissal at this step, the second step requires Pickering balancing of
his interests as a citizen commenting on a matter of public concern and the interests
of the State as public employer. See Garcetti, 547 U.S. at 418. “[A]t the summary
judgment stage, if the defendant has presented evidence that the employee’s speech
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IV.
Throughout this litigation, Lyons has conceded and the district court has
acknowledged, correctly in our view, that his speech during the student appeal
process was unprotected employee grievance. See Lyons I, 781 F.3d at 961, 963.
However, in denying defendants qualified immunity, the district court concluded that
the meeting with Chancellor Morton was not “part of [Lyons’s] job duties,” that
“academic improprieties involving interscholastic athletes is an issue of public
concern,” that Eighth Circuit cases prior to Garcetti “clearly established that a public
employee had a First Amendment right to speak on maters of a public concern so long
as that speech was not part of the employee’s job duties,” and that Garcetti did not
change that law. We disagree.
a. We first note that the court’s definition of unprotected speech -- speech that
is “part of” an employee’s job duties -- is phrased more narrowly than the governing
standard in Garcetti -- speech that is “pursuant to” the employee’s duties. At some
point, Lyons’s vigorous defense of his “F” grade after the Grade Appeal Committee
and the Academic Standards Committee upheld the student’s appeal arguably stopped
being “part of” Lyons’s duties as a part-time lecturer. But participating in the appeal
process, even to the point that he voluntarily initiated his own appeal to Dean Vaught,
was clearly “pursuant to” his grading duties. Determining whether an employee’s
speech was pursuant to his official duties is a practical inquiry. Garcetti, 547 U.S. at
424. Thus, “under the First Amendment, speech can be ‘pursuant to’ a public
employee’s official job duties even though it is not required by, or included in, the
employee’s job description, or in response to a request by the employer.” Weintraub
v. Bd. of Educ., 593 F.3d 196, 203 (2d Cir. 2010). Speech is pursuant to an
‘adversely affected the efficiency of the department,’ the required ‘fact-intensive
balancing test can rarely be considered clearly established.’” Lyons I, 781 F.3d at
961 n.1, quoting Bartlett v. Fisher, 972 F.2d 911, 916-17 (8th Cir. 1992).
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employee’s duties if it is “part-and-parcel of” the employee’s concerns about his
ability to “properly execute his duties.” Williams v. Dall. Indep. Sch. Dist., 480 F.3d
689, 694 (5th Cir. 2007); accord Renken v. Gregory, 541 F.3d 769, 774 (7th Cir.
2008). Characterizing unprotected speech as “part of” rather than “pursuant to” an
employee’s duties arguably lowers the bar in deciding whether Lyons’s final “appeal”
to Chancellor Morton was unrelated to his student’s appeal and therefore protected.
b. The district court’s conclusion that Garcetti did not affect clearly established
Eighth Circuit law is simply wrong. As we explained in McGee v. Public Water
Supply, District #2:
Many First Amendment retaliation claims have . . . present[ed] the
issue, as does this case, of whether the First Amendment protects a
government employee from retaliation when he ‘speaks upon a matter
of public concern and does so in the course of his ordinary duties as a
government employee.’ Environmental and public safety issues are
obvious examples of matters that are of concern to the general public.
Our decisions prior to Garcetti were not altogether consistent in
resolving whether a retaliation claim involving employee speech that
falls into this third category requires Pickering balancing, which often
precludes the grant of summary judgment.
471 F.3d 918, 920 (8th Cir. 2006) (citing 547 U.S. at 445 (Breyer, J., dissenting)).
Applying Garcetti, we concluded that “[a] public employee’s speech is not protected
by the First Amendment if it ‘owes its existence’ to his professional responsibilities.”
Id. at 921. In McGee, although the employee spoke on matters of “obvious” public
concern, his speech was unprotected because it was pursuant to his official duties.
Id. Contrast this decision with our pre-Garcetti decision in Kincade v. City of Blue
Springs, 64 F.3d 389 (8th Cir. 1995), cert. denied, 517 U.S. 1166 (1996), on which
the district court relied. In Kincade, a city engineer was disciplined after complaining
about a dam’s funding and safety issues. Although he made this speech “in his
capacity as City Engineer and pursuant to an assignment from” his employer, we held
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the speech was protected. Id. at 393, 397. We rejected the employer’s argument that
“when a public employee speaks in his role as an employee, that speech cannot touch
upon a matter of public concern.” Id. at 396. This analysis would not suffice under
Garcetti.
In addition to McGee, we have applied Garcetti and concluded that speech was
pursuant to an employee’s job duties and thus unprotected in numerous recent cases.
See Bonn v. City of Omaha, 623 F.3d 587, 592 (8th Cir. 2010); Anderson v. Douglas
Cty. Sch. Dist. 0001, 342 F. App’x 223, 224 (8th Cir. 2009); Bradley v. James, 479
F.3d 536, 538 (8th Cir. 2007). In other post-Garcetti cases, we concluded that a
public employee’s speech on a matter of public concern was unrelated to his job
duties and therefore protected unless the employer’s interests prevailed after
Pickering balancing. See Davenport v. Univ. of Ark. Bd. of Trs., 553 F.3d 1110,
1113 (8th Cir. 2009); Lindsey v. City of Orrick, 491 F.3d 892, 898 (8th Cir. 2007)
(employee’s job duties did not “even arguably include[] sunshine law compliance”).
c. Here the central focus is whether it was clearly established that Lyons’s
speech at the meeting with Chancellor Morton was as a citizen, not a part-time
lecturer. If no student athlete had ever taken Lyons’s course, or if his grading of
student athletes had never been questioned, then his raising of the general issue with
Chancellor Morton and others would be no different than another citizen raising the
general issue. That is not this case. As we noted in Lyons I, it was not clear from the
ambiguous FAC whether his speech at the meeting with Chancellor Morton was part
of the student appeal process or was based on the broader public concern with
UMKC’s educational mission. 781 F.3d at 962.
Lyons’s SAC did not eliminate that ambiguity. It alleged that his cause of
action “stems from” preferential treatment of student athletes including one who
“challenged a grade received” from Lyons. The FAC alleged that Lyons defended his
grade through multiple stages of the UMKC appeal process. Shortly after the student
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athlete’s appeal was upheld more than a year later, Lyons took his concerns to the
Chancellor of the University, inviting others who would likely be generally concerned
with the student athlete issue. The SAC alleges Lyons then told Vaught and Bassa,
the officials who upheld the student’s appeal, that he asked the Chancellor to conduct
a “comprehensive investigation” of student athlete grading. To Vaught and Bassa,
the only plausible interpretation of this report was that Lyons had gone outside the
well-established appeal process and was seeking an outside investigation of his
student athlete’s appeal, an inquiry that would no doubt investigate grade
determinations made by Vaught, Bassa, the Academic Standards Committee, and the
ad hoc committee that gave the student a 75% grade on his second paper. This would
threaten to turn the UMKC grade appeal process into “a roundtable for employee
complaints over internal office affairs.” Connick, 461 U.S. at 149.
Under Garcetti, “a public employee speaks without First Amendment
protection when he reports conduct that interferes with his job responsibilities, even
if the report is made outside his chain of command.” Winder v. Erste, 566 F.3d 209,
215 (D.C. Cir. 2009); see Rohrbough v. Univ. of Colo. Hosp. Auth., 596 F.3d 741,
747 (10th Cir. 2010) (employee decisions “to go outside of their ordinary chain of
command does not necessarily insulate their speech”). Did Lyons transform what
began as unprotected speech pursuant to his duties as a lecturer into protected speech
by virtue of speaking more broadly about the issue to both the UMKC Chancellor and
“community leaders”? Perhaps. But Vaught and Bassa could reasonably conclude
that Lyons spoke solely as an aggrieved lecturer in asking Chancellor Morton to
investigate grading policies for student athletes. In these circumstances, Lyons has
failed to show, using the particularized inquiry required, that his right to make this
speech in these circumstances was clearly established.
Lyons relies on pre-Garcetti cases from other circuits involving professors’
speech about academic integrity and grade inflation. See Brown v. Armenti, 247 F.3d
69, 75, 79 (3d Cir. 2001); Coats v. Pierre, 890 F.2d 728, 732 (5th Cir. 1989); Johnson
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v. Lincoln Univ., 776 F.2d 443, 452 (3d Cir. 1985). But these cases did not address
whether the speech at issue was pursuant to the plaintiffs’ job duties, an issue that
would have changed the analysis and perhaps the result in each case, as post-Garcetti
cases in those circuits illustrate. See Gorum v. Sessoms, 561 F.3d 179, 185 (3d Cir.
2009) (professor’s speech advising a student during disciplinary proceedings
unprotected); Williams, 480 F.3d at 694 (Athletic Director’s memoranda critiquing
department spending and policies unprotected).4

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______________________________
Garcetti left open the question whether 4 its holding would apply to “speech
related to scholarship or teaching.” 547 U.S. at 425. In our view, this case does not
involve speech related to scholarship or teaching. See Gorum, 561 F.3d at 186. But
in any event, the law is no more clearly established even if Garcetti is persuasive but
not controlling precedent. See Demers v. Austin, 746 F.3d 402, 417 (9th Cir. 2014).
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Outcome: We reverse the order of the district court dated December 14, 2015, and remand
with directions to dismiss Lyons’s damages claims on the basis of qualified immunity.

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