Monday, February 16, 2015

Librarian Fired For Suggesting Safety Improvements After Rape

A librarian is raped.  As a result, another librarian makes safety suggestions.  Result?  She's demoted then fired.  She's told it wasn't her place to make safety suggestions: "You [sic] job does not include discussion of ... the daily administration of this Library System...."

The case is Kennedy v. Tangipahoa Parish Library, 224 F. 3d 359 (5th Cir. 2000).

Donna KENNEDY, Plaintiff-Appellant,


Pat Sledge, Director of the Tangipahoa Parish Library System, Defendants-Appellees.

No. 99-30277.
United States Court of Appeals, Fifth Circuit.

August 15, 2000.

Thomas Joseph Hogan, Jr. (argued), Hogan & Hogan, Hammond, LA, for Plaintiff-Appellant.

Scott G. Vincent (argued), New Orleans, LA, for Defendants-Appellees.

Before BARKSDALE, BENAVIDES and STEWART, Circuit Judges.

BENAVIDES, Circuit Judge:

Appellant Donna Kennedy ("Kennedy") appeals from the district court's dismissal of her First Amendment cause of action for failure to state a claim, or, in the alternative, for summary judgment. Because we find that Kennedy has stated a claim and created a genuine issue of material fact precluding summary judgment, we reverse and remand.

I.  Factual and Procedural Background

Kennedy began working at the Tangipahoa Parish Library ("the Library") on March 21, 1995. By all objective criteria, she performed her job well. Over the course of two years, she received five promotions with commensurate pay raises. At the time the Library terminated her, Kennedy served in two managerial positions, Automation Coordinator and Technical Services Supervisor. In Kennedy's June 1997 evaluation, her last before being fired, appellee Pat Sledge ("Sledge"), the Library's director, rated Kennedy's performance overall as "excellent."

The events leading to Kennedy's termination commenced on October 15, 1997. On that day, Virginia Patanella ("Patanella") and her supervisor, branch manager Sannie Bonfiglio ("Bonfiglio"), were working at the Independence branch of the Library. Around 1:00 pm, Bonfiglio called the Library's administrative offices to ask that a replacement worker be sent to the Independence branch; Bonfiglio was departing work early to prepare for her daughter's wedding that evening. The person to whom Bonfiglio spoke in the administrative offices apparently told Bonfiglio to stay at work because she only had a few hours left. But at 3:15, Bonfiglio again called the administrative offices and reported that she was going home. No one arrived to replace Bonfiglio, so Patanella continued working alone.

At 4:00 pm, Archie Dean Forsythe ("Forsythe"), an apparently homeless man with a criminal record and a history of mental illness, entered the Independence branch. Finding no patrons in the library, Forsythe raped Patanella, threatened to kill her, and severely beat her about her head, fracturing several bones in her face. A patron entering the library during the rape summoned an off-duty police officer, Sergeant R.J. Guarena, Jr. ("Sergeant Guarena"), who was grocery shopping across the street. Sergeant Guarena confronted Forsythe while he was pulling up his pants. A struggle ensued and Guarena succeeded in apprehending Forsythe.

The crime, its brutal nature, the dramatic apprehension of Forsythe, and the lack of security at any of the Library's branches left the community in an uproar. By the appellee's own admission, the crime sparked intense media scrutiny and gossip. Responding to these community pressures, the Tangipahoa Parish Council ("Council") sent a letter to Sledge on October 16, 1997, the day after the crime; the letter requested that Sledge detail how she planned to prevent such occurrences in the future.

On October 17, 1997, Kennedy visited Patanella in the hospital. Having been told that Patanella was fine except for some bruises, Kennedy was unprepared for Patanella's true condition.[1] Moved, Kennedy spoke to Patanella about the rape, and Patanella confessed that her main concern was that others not suffer the same fate.[2]

On her way home from the hospital, Kennedy stopped at the Ponchatoula branch, where, upon her arrival, branch manager Lenore Johnson ("Johnson") was hanging up the phone after talking with Sledge. Johnson confided to Kennedy that Sledge had requested help with "damage control" regarding Patanella's rape. As Sledge was ultimately responsible for maintaining the employment of both Bonfiglio, the branch manager who left early in the day with only two hours notice, and the administrative offices' employee who failed to dispatch a replacement for Bonfiglio, Sledge understandably wanted aid in dealing with the fallout. Moreover, Sledge was hoping that the appellee Tangipahoa Parish Library Board of Control ("the Board of Control" or "the Board") would soon approve spending for a building to house the Hammond branch of the Library, and the rape obviously had the potential to jeopardize those plans.[3]

Kennedy became extremely concerned after speaking with Johnson. Kennedy had observed in the past that Sledge had downplayed any events that cast the library in a negative light, and Kennedy feared that de-emphasizing Patanella's rape could have terrible consequences. On October 18, 1997, Kennedy wrote a letter. She hoped that this letter would prompt Sledge and the Board to confront the risks occasioned by the lack of security at the Library branches. In its salient parts, the letter stated:
I would like to suggest to the Library Board and Administration a much needed change in the Tangipahoa Parish Library policy. 
Suggested Policy: There will be at least two library employees present at all times when the Library is open to the public. No library employee (male or female) will be in an unlocked library building alone. Also, two library employees must be present to close the library after it has been open to the public. 
. . . . 
I also venture to suggest, that if it is deemed that there is not enough circulation to support two employees at the Clark and Loranger branches, that these branches be closed and the employees transferred to other branches. 
Please note that this is not a knee-jerk reaction to this hideous crime. Similar changes have been discussed, that I am aware of, due to the drinking and drug activities on the corner down from the Loranger Branch and the distasteful pranks, suspicious characters, and rude and harassing patrons at the Kentwood Branch.[4] 
It is my humble opinion that what happened at the Independence Branch on October 15, 1997 cannot be down played. This event must be addressed and steps taken to prevent a similar act. . . . 
Now is the time for the Library Board and Administration to take a firm stand and address the question: Are we ready to show the Library employees and Tangipahoa Parish residents that we will do everything possible to protect the safety of our Library employees and our Library patrons?
Kennedy signed the letter in her capacity as Automation Coordinator and Technical Services Supervisor and enclosed a copy of part of the Library's Safety Program, which sets forth the Library's policy for dealing with investigations of accidents. Included within this section are the directives "ENCOURAGE people to give their ideas for preventing a similar accident," and "FOLLOW UP to make sure conditions are corrected."

Kennedy mailed the letter to the members of the Board of Control and the Library branch managers. She hand-delivered a copy of the letter to Patanella the day she wrote it.

The following Monday, October 20, 1997, Kennedy attended a meeting called by Sledge at the Amite branch. At the meeting, Sledge reprimanded those in attendance for personally attacking her. Specifically, Sledge singled out Anne Ellzey. Sledge then indicated that she had spoken with Patanella, and that Patanella primarily desired that the Library employees stop gossiping about the rape. Remembering Patanella's plea that no other librarians work alone, Kennedy ventured a comment that the situation was not about Sledge, but rather about Patanella and the safety of the patrons and employees at the Library.

After the meeting, Kennedy asked to speak with Sledge. Kennedy then showed Sledge the letter. Sledge perused it and remarked that it was well written. The encounter was unremarkable, and Kennedy departed to complete her work for that day in the usual manner.

Sledge answered the Council's request for policy changes on October 20, 1997 with a 10-step plan designed to heighten security. Sledge's proposal included a provision insisting that two employees be present at any Library branch open to the public, though the record does not reveal whether Sledge incorporated Kennedy's idea or thought of it independently.

Three days later, on October 23, 1997, the Board of Control held a meeting. Security matters were not on the agenda, but Board member Howard G. Ridgel ("Ridgel") broached the topic. Board chairman Edward B. Dufreche attempted to postpone the issue, arguing that more time was necessary to examine all the options. Ridgel urged the Board members to confront the problem and mentioned that Kennedy's letter had also encouraged the Board not to gloss over the rape and the safety concerns it highlighted. The Board members then voted to address the security issue and adopted Sledge's 10-step plan at the meeting.[5]

That afternoon, Sledge penned a letter demoting Kennedy and stripping her of all her supervisory duties. Though Sledge and the Board of Control concede that Sledge demoted Kennedy in response to her letter, the announcement of this demotion criticized Kennedy in general terms:
It is with disappointment that I recognize and accept the fact that you and I no longer share the same vision of the future for the Tangipahoa Parish Library System. 
It has become apparent that you have assumed far too much authority for your position as Automation Coordinator and Technical Services Supervisor. Your assigned role does not include discussing opening and closing of library branches, nor does include [sic] discussing with other employees what I, as the appointed Director, do correctly or, in you [sic] opinion, incorrectly. 
. . . . 
You [sic] job does not include discussion of personnel, the daily administration of this Library System nor meeting with business representatives[6] that are not directly concerned with your departments, nor writing derogative comments about local communities.
Rather than delivering the demotion letter to Kennedy personally or at work, Sledge mailed the letter by certified mail to three addresses in Kennedy's personnel file. On October 30, 1997, fully a week after Sledge composed and sent the demotion letter, Kennedy's father called Kennedy at work to tell her that he had declined to sign for a certified letter for her from the Library. On October 31, 1997, Kennedy, who was familiar with the Library's protocol of delivering bad news by certified mail, called Sledge to find out what the letter said. Sledge refused to speak with Kennedy on the phone, but Sledge allowed that she would send a copy of the demotion letter to Kennedy at work on November 3, 1997. Kennedy read the letter on November 3, and thereby became informed of her demotion, more than 10 days after its occurrence.

Sledge made an appointment for November 10, 1997 to speak with Kennedy about her job. Sledge's stated purposes for the meeting were to discuss the reasons for Kennedy's demotion and her new job responsibilities, to agree upon a lower wage, and to assess Kennedy's willingness to continue working at the library in a non-supervisory capacity. The meeting, however, never occurred. On November 10, 1997, Kennedy showed up for the meeting with a tape recorder and her father, whom she wanted along as a witness. Sledge, meanwhile, had asked Cindy Camp to join the meeting, unbeknownst to Kennedy. Sledge refused to permit Kennedy to record the meeting or to have her father present as a witness. Sledge then fired Kennedy.[7]

Kennedy filed a grievance with the personnel committee of the Library. The Board of Control upheld the personnel committee's decision in favor of Sledge on February or March 17, 1997. Kennedy then filed this present action on March 26, 1998.

During a hearing on December 2, 1998, the district court denied Kennedy's motion to amend her complaint and granted Sledge's motion to dismiss on grounds of qualified immunity. Ignoring the court's order, Kennedy filed a first amended complaint on December 7, 1998. The district court permitted the clerk of the court to place the first amended complaint in the record.

Sledge, who apparently was unsure of the significance of the first amended complaint, and the Board then moved to dismiss the first amended complaint for failure to state a claim, or, in the alternative, for summary judgment, which motion the district court granted, entering its final order on February 23, 1999.[8]

II.  Standard of Review

III.  Failure to State a Claim

IV.  Qualified Immunity

V.  Conclusion

We hold, as a matter of law, that Kennedy spoke on a matter of public concern, and therefore, that her first amended complaint states a claim for retaliation in violation of the First Amendment. We further hold that the district court should have granted Kennedy leave to amend her complaint and should have considered her first amended complaint. We are thus constrained to reverse the district court's dismissal of the case on these grounds and remand for a new trial on the merits.

We further hold that Kennedy has alleged a violation of a clearly established constitutional right and raised a fact issue as to whether Sledge acted in an objectively reasonable manner in demoting Kennedy in response to her letter. We therefore reverse the district court's grant of summary judgment on this ground and remand for a trial on the merits.


[1] One newspaper described Patanella's appearance on Friday, October 17, as follows: "Her face [had] . . . two deep purple/pink bruises where eyes should be. Her eyes had just barely slit open a little that morning for the first time since the attack, she said. She had stitches on the side of her head, and her hair was stiff with dried blood." Gloria Lupo, I'm Going to Kill You, Says the Attacker, The Amite Tangi Digest, Oct. 22, 1997, at 1. 
[2] Indeed, Patanella said the same thing in The Amite Tangi Digest article. Id. at 1 ("I don't want it to happen to anyone else. I hope no one will have to be left alone in the libraries again."). 
[3] The Board did in fact approve the resolution to purchase a building for the Hammond branch on November 7, 1997. See Sharyn C. Brecheen, Parish Library Wants to Buy Permanent Home for Hammond Branch, The Amite Tangi Digest, Nov. 12, 1997. 
[4] These references relate to an incident in which a patron sat in the Kentwood branch and stared at the librarians for hours on end. Shortly thereafter, the librarians found a dead cat in their drop box. 
[5] A newspaper article detailing the October 23, 1997 Board of Control meeting reports that Ridgel mentioned Kennedy's letter. See Sylvia Schon, Libraries Take Safety Measures, Daily Star, Oct. 24, 1997, at 1. The article also quotes Kennedy telling the Board of Control, "I appreciate the fact that Buddy [Ridgel] brought this up. We're all wondering what's going to be happening. It's good to let the employees and the public know that you're talking about this and doing something about it." Id
[6] This is apparently a reference to an incident in which a representative of a security company talked to Kennedy about where he should place a cable. As the location of cables for the computer network was within Kennedy's authority as Technical Services Supervisor, she was the correct Library representative to answer the security company representative's questions. Kennedy's conduct in this regard presented no problem to Sledge until Kennedy mentioned at the October 23, 1997 Board of Control meeting that she had spoken with a representative of the security company. 
[7] The parties dispute the facts surrounding this meeting. Kennedy claims that Sledge planned to fire her on October 23, the date of the Board meeting. Kennedy surmises that Sledge demoted Kennedy because of the letter, waited two weeks as required by Library policy, and then fired her. Kennedy supports her inference with the fact that Sledge had prepared Kennedy's final paycheck prior to the meeting. Sledge, on the other hand, claims that when Kennedy indicated her desire to record the meeting, Sledge promptly fired her for insubordination. 
[8] The record is in an unfortunate state that leaves unknown the true grounds for the district court's dismissal. Appellees styled their motion to dismiss as a motion to dismiss for failure to state a claim, or in the alternative, for summary judgment. The district court stated its reasons for the dismissal from the bench during oral argument, but neither party requested that a court reporter make a record of oral argument. Moreover, the district court's judgment relates the grounds of dismissal only as being those set forth during oral argument. As we lack any objective account of the district court's reasoning for the dismissal, we must conduct both Rule 12(b)(6) and Rule 56 analyses before we may properly reach our conclusion that the district court's dismissal warrants reversal and remand for a trial on the merits. 

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