Ex-Police Chief’s suit against Mayor was not “matter of public concern” in relation to Chief’s suit against City under First Amendment

Gibson v. Kilpatrick,15-60583(5th Cir. September 20,2016)

This is a First Amendment retaliation in employment case where the U.S. Court of Appeals for the 5th Circuit held the employee’s speech was not on a matter of public concern.

This is a continuing litigation saga (technically Gibson III) regarding “a small-town feud between the former police chief and mayor.”  Mayor Kilpatrick opposed the appointment of Gibson as the Chief of Police, but the council hired him regardless of the Mayor’s input. Later, Chief Gibson reported Mayor Kilpatrick for misappropriating City funds through the use of a gas card and the Mayor had to repay approximately $3000.  Nine months later, Kilpatrick started placing written reprimands in Gibson’s personnel file. The reprimands involved such allegedly serious conduct as showing up late to a meeting with the mayor because he was in the emergency room being treated for a knee injury. Similarly, Gibson was suspended for allowing city employees to play basketball in an uncompleted gym at the city civic center, even though the Mayor had played basketball there a few weeks earlier.  Gibson sued Kilpatrick in his individual capacity, claiming retaliation for protected First Amendment speech under 42 U.S.C. § 1983.  Afterwards the City Council fired Gibson, who amended his petition and brought in the City. After several trips to the 5th Circuit, the only remaining claim was Gibson’s suit against the City alleging it retaliated against him for exercising his First Amendment right and suing the Mayor. The trial court granted the City’s summary judgment motion and Gibson appealed.

The court first noted that Gibson’s suit against the Mayor was as a citizen, not as an employee. The court held “…suing one’s supervisor, in his personal capacity, for discrimination surely is not part of one’s job description.”  However, that does not end the analysis. He must also show the subject matter was of public concern. Speech involves matters of public concern when it can “be fairly considered as relating to any matter of political, social, or other concern to the community” or when it “is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.” “[P]ublic concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.” Gibson’s suit was not him functioning as a whistleblower, but was an employment grievance. The suit asks only for personal relief. Further, the original suit was against Kilpatrick in his individual capacity only, not as the Mayor.    Gibson cannot prevail by demonstrating that his report to the State Auditor was a matter of public concern. In Gibson II, the court already determined the speech to the Auditor was unprotected. By focusing on the underlying speech to state authorities, Gibson is trying to relitigate Gibson II.  Merely including a First Amendment claim in a lawsuit does not transform it into a matter of public concern. Speech that is “related only to [a] superior’s employment decisions” and that affects a plaintiff “in a purely personal manner” is not a matter “of political, social, or community concern.”  Further, the underlying context of the suit indicates an ongoing personal feud between Kilpatrick and Gibson. Taken as a whole, all three of the factors—content, form, and context— support the conclusion that the suit was a matter of private concern.  Summary judgment was proper for the City.

If you would like to read this opinion click here. The Panel includes Circuit Judge Smith, Circuit Judge Barksdale and Circuit Judge Costa. Circuit Judge Smith delivered the opinion of the court. Attorney for Gibson is listed as Jim D. Waide, III. Attorney listed for the City is Gregory Todd Butler.