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Bailey v. Independent School District No. 69 of Canadian County Oklahoma

United States Court of Appeals, Tenth Circuit

July 24, 2018

CHESTER L. BAILEY, JR., Plaintiff - Appellant,
INDEPENDENT SCHOOL DISTRICT NO. 69 OF CANADIAN COUNTY OKLAHOMA, a/k/a Mustang School District; SEAN MCDANIEL, in his individual capacity, Defendants - Appellees.

          Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:16-CV-01055-HE)

          Barrett T. Bowers, Ward & Glass LLP, Norman, Oklahoma (Stanley M. Ward and Woodrow K. Glass, Ward & Glass LLP, Norman, Oklahoma, with him on the briefs) for Plaintiff-Appellant.

          J. Douglas Mann, Rosenstein, Fist & Ringold, Tulsa, Oklahoma (Jerry A. Richardson, Rosenstein, Fist, & Ringold, Tulsa, Oklahoma, with him on briefs) for Defendants-Appellees.

          Before LUCERO, McKAY, and McHUGH, Circuit Judges.

          LUCERO, Circuit Judge.

         We are presented in this appeal with the following question: is a letter written by a public employee, seeking a reduced sentence for his relative, speech on a matter of public concern for the purposes of a First Amendment Garcetti/Pickering inquiry. See Garcetti v. Ceballos, 547 U.S. 410 (2006); Pickering v. Bd. of Educ., 391 U.S. 563 (1968). We conclude that it is. Accordingly we reverse the district court's grant of summary judgement favoring Independent School District No. 69 of Canadian County Oklahoma ("the School District"). Nonetheless, we affirm the district court's grant of qualified immunity to school superintendent Sean McDaniel because the law was not previously clearly established on this issue. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse in part, affirm in part, and remand for further proceedings.


         Chester Bailey Jr. was employed by the School District as Director of Athletics from 2009 to 2016. His excellent performance in this position is not disputed. Throughout his career, Bailey received positive evaluations, indicating that he "exhibited strong leadership abilities," "demonstrat[ed] a high degree of integrity," and was "an asset to the district."

         Dustin Graham is Bailey's nephew. In 2014, Graham pled guilty to various state charges largely stemming from video recordings he made of women in the bathroom of his apartment without their consent. Graham also pled guilty to a single count of manufacturing child pornography based on a video he recorded of a minor. There was considerable media coverage of Graham's arrest, trial, and sentencing.

          During Graham's sentencing proceedings in 2014, Bailey wrote a letter to the sentencing judge on Graham's behalf. The School District does not issue its employees official letterhead but it was common practice for individuals to produce their own letterhead using the school logo and their titles. Bailey had created such a letterhead and used a sheet to write to Graham's sentencing judge. The letter's header contained the logo for the school district, and gave the address of the Department of Athletics and Bailey's job title.

         In the body of the letter, Bailey noted his position as "the Director of Athletics at Mustang Public Schools" and described his background working with young people. Bailey asked the sentencing judge to consider Graham's previous good character and his efforts at rehabilitation. Bailey also noted that Graham acknowledged the wrongfulness of his actions, which in Bailey's experience, was a characteristic of young people who did not repeat their poor decisions.

         In 2015, Graham moved the state court for review and reduction of his sentence. More than thirty individuals wrote letters to the sentencing judge on Graham's behalf, including his local state representative. Bailey wrote a second letter to the judge conducting the review, on the same letterhead previously used. The second letter said that Bailey was writing in support of Graham, that he had visited Graham in prison, and that if Graham were released Bailey would be "a positive role model" for him. Graham was released early, only to receive further news coverage when he became embroiled in a dispute with his homeowners' association.

         McDaniel, Superintendent of Schools for the School District, received a package in July 2016. It contained documents describing Graham's offenses, a copy of Bailey's 2015 letter to Graham's sentencing judge, and a handwritten note. The package was sent by a former in-law of Bailey's who was angry about Graham's early release and other family issues. McDaniel met with Bailey on several occasions to discuss the letter, expressing concern that Bailey used district letterhead to advocate for early release of an individual convicted of a child pornography offense. Bailey stated that nothing in the letter indicated that the School District supported Graham's release, and he pointed to other occasions in which other employees used similar letterhead without incurring adverse consequences. Bailey also told McDaniel about the other letter he wrote to Graham's sentencing judge in 2014. McDaniel later retrieved that letter from Graham's case file.

         After the meetings, McDaniel decided to recommend Bailey's termination. He sent Bailey a letter informing him of this decision. The letter cited McDaniel's loss of trust in Bailey's judgment, based on his use of school letterhead to request leniency for a child pornographer and his subsequent refusal to admit fault. A due process hearing before the Board of Education followed. The Board ...

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