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.
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
Douglas Mann, Rosenstein, Fist & Ringold, Tulsa, Oklahoma
(Jerry A. Richardson, Rosenstein, Fist, & Ringold, Tulsa,
Oklahoma, with him on briefs) for Defendants-Appellees.
LUCERO, McKAY, and McHUGH, Circuit Judges.
LUCERO, Circuit Judge.
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.
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."
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.
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
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
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'
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.
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 ...