Samsel v. Desoto County School District (242 F. Supp. 3d 496, 2017)

ORDER

Michael P. Mills, UNITED STATES DISTRICT JUDGE, NORTHERN DISTRICT OF MISSISSIPPI

This cause comes before the court on the motion of defendants Desoto County School District, Desoto County School District Superintendent Milton Kuykendall and Olive Branch High School (“OBHS”) Principal Allyson Killough, for summary judgment, pursuant to Fed. R. Civ. P. 56. This court, having considered the memo-randa and submissions of the parties, concludes that the motion should be granted, in part and denied in part.

Introduction

This is a- case, arising out of the firing of a .high school football coach, which has aroused passionate disagreement among Desoto County residents. This court’s opinion today does not attempt to answer the question of whether plaintiffs January 2014 firing as OBHS athletic director and head football coach was the “correct” one. Rather, this court must decide a much narrower issue: whether the decision to fire plaintiff was a lawful one. As discussed below, plaintiffs contract with the school district allowed him to be terminated as coach and athletic director even without good cause. Moreover, plaintiff offers insufficient proof that his firing violated federal law, including provisions barring age discrimination and retaliation for engaging in protected speech. This court therefore concludes that plaintiffs claims arising out of his termination (and failure to be rehired) should bé dismissed. However, this court concludes that triable jury issues exist regarding plaintiffs state law defamation claim against Kuykendall, which it discusses below.

Analysis

I. Does plaintiff have any federal claims arising out of his termination as athletic director and football coach?

Prior to discussing plaintiffs specific claims arising out of his termination (and failure to be rehired), this court will first evaluate some of the conflicting evidence in this case regarding exactly why he was fired as athletic director and coach at OBHS. In their briefing; the parties spend considerable energy discussing whether plaintiff was fired for, relatively speaking, more or less “noble” reasons. This is unsurprising, since both sides understandably wish to be viewed as “wearing the white hat” in this case. After carefully reviewing the record, however, this court harbors no suspicion that any legally-protected right was implicated by plaintiffs firing. That being the case, this court will not engage in a lengthy discussion of whether plaintiffs firing was the result of a more laudable motive such -as concerns about his job performance or a less laudable one such as small-town politics. Neither conclusion would justify a federal court’s interjecting itself into a school district’s decision to fire a football coach operating under an at-will contract. This court will, instead, focus on the legal requirements of the specific claims asserted by plaintiff and determine whether genuine issues of fact exist regarding those claims.

In seeking to justify their decision to fire plaintiff, defendants have submitted a lengthy list of alleged misconduct and/or performance deficiencies on his part, to wit:

Plaintiff, Scott Samsel, claims that the Defendants, violated various state, and federal laws by removing him as Head Football Coach and Athletic Director of the Olive Branch High School (“OBHS”) and transferring him to another school within the DeSoto County School District (the “School District”). Samsel claims that his allegedly protected speech, association, and age were reasons for .his removal; this is not true. In reality, Principal Allyson Killough decided to remove Samsel from his supplemental positions, which left his licensed teaching contract intact, based on information that he had engaged in multiple instances of misconduct. Killough believed that such misconduct, if allowed to continue, would undermine her authority and continue to disrupt the working and learning environment at OBHS. * * *

Killough decided to remove Samsel due to multiple issues reported by numerous individuals, including without limitation reports that Samsel: (1) made equipment purchases that violated the School District’s policies; (2) used vulgar and offensive language to the football players and coaches to refer to Principal Killough; (3) interrupted a middle school football game to argue with the referees; (4) improperly used the school time and facilities for personal business; and (5) engaged in questionable conduct regarding the official athletic rules. Regardless of Samsel’s protected conduct, the Defendants would have made the same decision to remove his supplemental duties and transfer him.

[Defendants’ brief at 1-2].

With regard to the third allegation, defendants write that:

Shortly before Killough became Principal, she heard that Samsel had interrupted an Olive Branch Middle School football game to argue with the referees. According to witness reports, Samsel belligerently yelled at the referees and marched down to the field to argue with them about a call. Samsel, however, was not a coach of the middle school team. When the referees asked Samsel what gave him the right to question their calls, he responded that he was the Athletic Director of OBHS. The referees ejected Samsel from the game, and a police officer walked Samsel from the field.

[Defendants’ brief at 4-5 (record citations omitted) ]. Plaintiff has contested many of these allegations, but this court’s review of the record suggests that they may have considerable substance. This -court need not make a definitive finding in this regard since, once again, it is presently concerned with the issue of whether federal law may have been implicated by plaintiffs firing, not whether he “got a raw deal” by being removed as AD and coach.

While defendants thus point to several instances of alleged misconduct by plaintiff, there is also evidence that other factors, including small-town politics, may have played a role as well. In so concluding, this court finds plaintiffs deposition testimony to be particularly enlightening. Indeed, when given a chance at his deposition to speak freely regarding why he believed he was fired, plaintiff placed heavy emphasis on what appear to be issues of local and office politics. Most notably, plaintiff appeared to suggest that his firing was due, in large part, to the removal of his “lifetime friend” Kyle Brigance as OBHS principal near the start of the 2013 school year. [Samsel depo. at 20]. Plaintiff testified that, soon afterward (and apparently before Killough was even selected as the new principal in November), he began hearing rumors in the community that he would be next:

A. [F]or a couple of months prior to December, ■ all I’d heard or basically since from the time Brigance was removed, all I’d heard that I was next. And that was very distracting.

Q. All you heard. When did those rumors start?

A. Right after Brigance was removed.

[Samsel depo. at 61-62].

In his deposition, plaintiff was quite emphatic that there was a common public perception that his days as coach were numbered after his friend (and apparent protector) Brigance was removed as principal. For example, in discussing a meeting he had with the Olive Branch mayor shortly before he was fired, plaintiff testified that:

Q. You didn’t — earlier in your testimony today you were talking about people coming to you and coming to others and expressing their concern that or stating that you would be next. You’re the next to be fired and that sort of thing. So I’m wondering if you talked about those rumors with the mayor?

A. I don’t remember that being a part of the conversation, but I know he was well aware of those rumors.

Q. How do you know he was well aware of those rumors?

A. Everybody was.

[Samsel depo. at 79].

This court finds plaintiffs deposition testimony to be quite interesting, since it suggests that there may have been factors at work in his termination which were known to the Olive Branch rumor mill but which are less than clear to this court. Whatever these factors might have been, plaintiff gave little, if any, indication that any federally-protected right was the reason for the common perception that he would be fired after Brigance’s removal. As discussed below, plaintiff did testify that, after initially positive interactions between Killough and himself, their relationship soured after she had heard reports that he was not working well with “younger” coaches and that this gave her an age-based reason to want him fired. Assuming this actually occurred, however, it would have been well after Brigance’s removal as principal. The same is true with regard to the alleged protected speech which, plaintiff contends, motivated his firing as football coach.

In light of the foregoing, this court can only regard plaintiffs testimony as harming his federal claims. This court notes parenthetically that, even if the removal of plaintiffs friend, Brigance, was a prime factor in his termination, this does not necessarily mean that it was unjustified. Indeed, as far as this court is aware, perhaps plaintiff would have been justifiably fired long ago if he had not had Brigance protecting him. Perhaps not. What does seem clear is that the role Brigance’s removal played in plaintiffs firing has no apparent connection to his federal claims.

In his deposition, plaintiff placed great emphasis upon, and was obviously aggrieved by, an alleged instance of office politics which, he clearly believes, factored into his termination. In particular, plaintiff testified that he believes that his former offensive line coach Jeremy .Toungett, who replaced him as head coach, was making negative comments about him to Principal Killough in order to get him fired:

Q. And do you know or do you think, do you have an idea of what Toungett was saying to Ms. Killough that you were doing?

A. I have no idea.

Q. But you had some suspicions about what he was saying?

A. He is a master of manipulation.

[Samsel depo. at 55], Plaintiff also testified that he believed that other members of the football staff were being influenced by Toungett to work against him:

Q. Was there anyone else other than Toungett that you felt like was working against you, Gaspard or Pool or Goodwin?

A. I think a lot of those guys were getting influenced by Jeremy Toungett.

[Samsel depo. at 54].

In his own deposition, Toungett acknowledged that he did make negative remarks about the state of the football program to Killough:

Q. After Ms. Killough came as principal, did you make some criticisms of Coach Samsel to Ms. Killough?

A. As far as the morale and singling somebody out, no. As far as the atmosphere back there, yes.

[Toungett depo. at 15]. Toungett was very hesitant to give specifics about the exact nature of the negative atmosphere which, in his view, prevailed on the football team, but he did testify:

A. That it was a pretty volatile situation. I mean, as far as no — it was just a bad situation. I don’t know how to elaborate on that. It was a bad situation.

[Toungett depo. at 18],

In his deposition, Toungett acknowledged that the football coaches’ morale was hurt by the fact that, in losing five games the previous season, the football team had failed to meet expectations. He otherwise failed to. provide specific reasons for the team’s morale problems, however. Toungett testified that he was named the new head football coach shortly after plaintiff was fired:

Q. When she had these conversations with you about how are things going, was this after he had told you he’d been fired as athletic director or before?

A. It was before.

Q. And then after he was fired as athletic director, is the next thing that happened is you got a call from her saying that she had fired him as head coach and wanted to make you head coach?

A. Yes.

[Toungett depo. at 24-25]. This court is not in a position to judge Toungett’s character, and it has no basis to determine whether or not he was working behind the scenes to get plaintiff fired so that he could become the. new head coach. "What is clear, however, is that this constitutes another alleged instance of local and/or office politics which has no apparent connection to any. federally-protected right. Moreover, the fact that plaintiff himself clearly seems to believe that these matters of politics heavily influenced his firing can only be regarded as quite damaging to his federal claims.

In his deposition, plaintiff offered yet another instance of local politics which, he believes, factored in his termination, namely jealously between different parts of De-soto County. Plaintiff emphasized that Superintendent Kuykendall hailed from the western part of the county, and he testified to his belief that jealousy of eastern Deso-to County (where Olive Branch is located) was a factor in Kuykendall wanting to see him gone. Specifically, plaintiff - testified that:-

Q: So if you have some opinion I suppose it would be appropriate to ask what your opinion is.

A: Okay. That’s pretty simple, I think there was a lot of jealousy in the county. I think there’s been a history of jealousy between the western part of the county and the eastern part of the county. Mr. Kuykendall’s roots are from the western part of the county. * * * I think there are deep rooted political jealousies and political issues there between Mr. Kuyk-endall and Olive Branch and maybe even a board member or two.

[Samsel 2nd depo. at 286].

Thus, plaintiff appears to believe that Kuykendall did not want to see OBHS succeed in football and that, for that reason, he worked behind the scenes to have him fired. While plaintiff freely acknowledged that he had no actual proof that such is the case, he plainly believes it to have been a factor in his firing. In a broader sense, plaintiffs testimony confirms this court’s overriding impression that, assuming that factors other ,than genuine concerns about his job performance motivated his firing, these factors involved issues which had hothing to do with either federal or state law. Having discussed some of its general 'impressions regarding the proof relating to the reason for plaintiffs termination; this court now proceeds to a discussion of the specific claims which plaintiff asserts in this case.

Age Discrimination

This court first considers plaintiffs ADEA claim, in which he alleges that his age (fifty-two) was the but-for cause of his termination as AD and head football coach. Samsel offers no direct evidence of age discrimination in this case, and he therefore relies upon the familiar McDonnell Douglas framework to meet his burden of proving his case at the summary judgment stage. It is well settled that

[a] plaintiff relying on circumstantial evidence must put forth a prima facie case, at which point the burden shifts to the employer to provide a legitimate, nondiscriminatory reason for the employment decision. If the employer articulates a legitimate, non-discriminatory reason for the employment decision, the plaintiff must then be afforded an opportunity to rebut the employees purported explanation, to show that the reason given is merely pretextual.

Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010) (citations omitted). To establish an age discrimination claim under the ADEA, “[a] plaintiff must prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the ‘but-for’ cause of the challenged employer decision.” Moss, 610 F.3d at 922 (quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 129 S.Ct. 2343, 2351, 174 L.Ed.2d 119 (2009)).

Defendants do not dispute that plaintiff is able to make a prima facie case of discrimination, and this court will therefore consider the issue of whether their “legitimate, nondiscriminatory reason for the - employment decision” is pretextual. Importantly, to prove that a reason given was pretext for discrimination, Samsel must submit evidence “both that the reason was false, and that discrimination was the real reason.” Holliday v. Commonwealth Brands, Inc., 483 Fed.Appx. 917, 921 (5th Cir. 2012) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). This court has previously quoted the job performance issues which, defendants contend, motivated plaintiff’s firing, and it has likewise discussed the political factors which, plaintiff testified, played a role his removal as AD and coach.

From reading plaintiffs brief, it appears that he strains to find any evidence of age-related animus in this case. When questioned regarding this issue at his deposition, plaintiff testified that: -

Q: Duringi these meetings, did Ms. Kil-laugh ever say that she was letting you go because of your age?

A. Not in those exact words; no.

Q. Did she use any other words that would suggest that your age was the reason?

A. I think the not being able to relate to some of the younger coaches was where that was implied. And also, you know, if you look at who she replaced me with. They’re all young, inexperienced guys that had no experience doing what they do at a school.

[Plaintiffs depo. at 180]. It appears that this is, essentially, plaintiffs primary “evidence” of age discrimination in this case. Once again, however, plaintiff must create fact issues regarding whether age was the “but for” cause of his termination, and this court has previously noted the many'political factors which he himself cited as contributing to his termination, which had nothing to do with his age.

Plaintiff cites Killough’s alleged concerns about his working with “younger” coaches as supporting his termination, but this court does not believe that this constitutes proof of age discrimination at all. Indeed, even accepting plaintiffs (rather self-serving) interpretation of Killough’s beliefs as accurate, an ability to “relate to” and work well with younger employees does not fit within the quite narrow scope of compensable age-based animus, as established by U.S. Supreme Court precedent. Indeed, in Hazen Paper Co. v. Biggins, 507 U.S. 604, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993) the Supreme Court emphasized that the ADEA was enacted in reaction to stereotypical beliefs among some employers regarding the notion that an individual’s competence and work performance decline with age. Specifically, the Supreme Court wrote that:

It is the very essence of age discrimination for an older employee to be fired because the employer believes that productivity and competence decline with old age. As we explained in EEOC v. Wyoming, 460 U.S. 226, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983), Congress’ promulgation of the ADEA was prompted by its concern that older workers were being deprived of employment on the basis of inaccurate and stigmatizing stereotypes.

Hazen Paper, 507 U.S. at 610, 113 S.Ct. 1701.

The Supreme Court thus emphasized, that the ADEA was enacted to combat employment decisions made on the basis of certain specific stereotypical views regarding older workers. The Court hastened to add, however, that other factors which are merely “correlated” with age, such as pension status, may not serve as the basis for an ADEA claim, writing that:

When the employer’s decision is wholly motivated by factors other than age, the problem of inaccurate and stigmatizing stereotypes disappears. This is true even if the motivating factor is correlated with age, as pension status typically is.

Id. at 611, 113 S.Ct. 1701. It is not clear to this court that an inability to work effectively with younger workers is even “correlated” with age; it could just as easily be argued that age gives one perspective regarding the need to work well with individuals of all ages.

Even assuming for the sake of argument that there is a correlation between advancing age and an inability to deal effectively with younger workers, then this clearly does not fall within the rather narrow scope of compensable age-based animus, as set forth in Hazen Paper. It strikes this court that, in a head football coach, an inability to relate to, and work well with, younger assistant coaches is simply a leadership defect which constitutes an entirely proper basis for an employer to wish to fire him. This court certainly does not believe that it constitutes a basis for the head coach to claim a defense to termination under the ADEA. In this case, plaintiffs reference to “younger” assistant coaches may include Toungett and Gas-pard, and both of these coaches made it clear that they informed Killough of serious issues with the state of the football program, not simply that plaintiff did not “relate well” to them. In the court’s view, plaintiff should not be rewarded for these alleged deficiencies even assuming that the coaches who reported them happened to be younger. Once again, plaintiff suggested in his deposition that Toungett fabricated accusations against him in order to take his job. Even assuming that this is true, however, it nevertheless weakens plaintiffs ADEA claims, since a genuine, yet mistaken, belief on Killough’s part that plaintiff was showing poor leadership and fostering dissension among his assistant coaches, young or old, may not serve as the basis for an ADEA claim.

Thus, even if plaintiffs testimony regarding Killough’s reasons for firing him are correct, this court does not regard them as proof of age-based animus on her part. This court also notes that the timing of the events in this case, as described by plaintiff, casts further doubt upon his claims. In so stating, this court emphasizes that plaintiff testified that his initial meetings with Killough as principal were quite positive ones. In his brief, for example, plaintiff states that:

Defendant Killough had two (2) early meetings with Samsel, one in November, and the second in December. At the November meeting, Defendant Killough praised Samsel’s performance and stated she knew how important athletic teams were. Defendant Killough assured Samsel she would make no changes in the way he operated the athletic program and praised his success. At the December meeting, Defendant Killough again praised Samsel’s accomplishments.

[Plaintiffs brief at 2-3]. Plaintiff appears to assert that “something happened” to sour Killough’s views towards him between the December meeting and his subsequent firing in mid-January. What exactly that might be appears to depend upon which of his claims plaintiff is advancing at a particular time, but, in the ADEA section of his brief, he contends that it was because Kil-lough learned that he wasn’t working well with younger coaches. Under this theory, Killough would have decided to fire plaintiff in late December and early January, and yet plaintiff himself testified that he, and many others in the community, believed that his days were numbered after his friend Brigance was removed as principal. That was, of course, even before Kil-lough was hired as principal.

There is thus a clear internal inconsistency between plaintiffs many theories regarding why he was fired. At this juncture, this court must consider the facts in the light most favorable to plaintiff, but the coherence of his disparate claims greatly suffers when he advances one theory of his termination in one section of his deposition or brief, and then proceeds to an entirely inconsistent one in another. Plaintiffs age discrimination claims are also, competing, in a causation sense, with his First Amendment retaliation claims, discussed below, in which he alleges that certain statements he made regarding the running of the football team and regarding school-related matters led to his termination as well. There is, in this court’s view, simply not enough oxygen in the room for plaintiffs ADEA claims to survive alongside the many other reasons he himself cites as motivating his termination, particularly under the “but for” causation standard applicable to his age discrimination claims.

In arguing that fact issues exist in this regard, plaintiff relies heavily upon a tape recording of the January 13, 2014 meeting between Killough and himself which preceded his removal as AD, which, he argues, establishes that defendants’ stated reasons for firing him are pretextual. As discussed below, this court agrees with plaintiff that the recording may serve as evidence of pretext, but not for age discrimination. In his brief, plaintiff describes a portion of this tape, which occurs at the end of the meeting and which includes statements from both Killough and assistant principal Mike Murphy, as follows:

Defendant Killough obviously forgot to turn off the tape-recorder when Samsel left the meeting, and the conversation continued as follows:

MR. MURPHY: That was a great Oscar you just earned.

MS. KILLOUGH: It went a lot smoother than I thought.

MR. MURPHY: It did but he almost cried about four times. He was seething. You couldn’t see his seat on the side. He was seething. That’s a good word to use. It was the best we could expect under the circumstances and the parameters that Kuykendall put you in.

MS. KILLOUGH: Right.

MR. MURPHY: When you told him about that, he was holding it in, Ms. Killough. Had you been a little nastier, he might have blown, but you outfoxed him on that. He was holding it in. I •could see gritting the teeth, the body language. I was just waiting for him to unleash. I kept having my radio, that may have been too obvious.

MS. KILLOUGH: There were a couple of times I don’t think I got it recorded all the way because it’s not on anymore.

MR. MURPHY: I do.

MS. KILLOUGH: Do you really? (Laughter)

MR. MURPHY: I do. I’m sitting right next to him too and then I’m going to stop.

[Plaintiffs brief at 11, quoting Tape Transcript, pp. 61-62],

While this recording is open to differing interpretations, this court believes that plaintiff offers one arguable theory for its significance:

If Murphy thinks Defendant Killough should have gotten an “Oscar” for her performance, a jury may infer her whole performance was an act undertaken in order to stir up anger in Samsel so as to give some reason to remove him as athletic director. Indeed, the School Board president has testified that the superintendent told him that reason for the employment action against Samsel was Samsel’s becoming angry at a meeting with the principal. Nichols depo., pp. 8-9. Further, a jury may find that the January 13, 2014 [meeting] to “consider” removing Samsel as athletic director was a ruse since Killough had already decided to remove him by January 9, 2014.

[Plaintiffs brief at 11]. Thus, plaintiff argues that the tape -recording suggests that Kuykendall and Killough used the-meeting as an attempt to make him angry so that they could have a reason to fire him. Given the nature of the recording, this court believes that plaintiff has a legitimate argument in this regard.

At the same time, it is crucial to recognize that, to establish that a reason given was pretext for discrimination, plaintiff must show “both that the reason, was false, and that discrimination was the real reason,” Holliday, 483 Fed.Appx. at 921. In arguing that the tape recording demonstrates pretext for age discrimination, this court believes that plaintiff is his own worst enemy. As quoted previously, when asked in his second deposition why Kuyk-endall would have coached Killough to fire him, plaintiff responded that, in his opinion, it was because of jealousy issues between the eastern and western parts of DeSoto County. Moreover, the other reasons which plaintiff cited in his deposition as motivating his firing, quoted previously, largely involved issues of local and office politics which' have nothing to do with age discrimination.

This court also notes that the circumstantial evidence of age discrimination in this case is quite weak. While plaintiffs replacement Toungett - was, in fact, less than forty years of age, he himself only lasted a year as OBHS’s head football coach, before ' being replaced by Steve Buckley, who was fifty-one years old. While that is sufficient' to meet plaintiffs prima facie case of age discrimination, it is only barely so. Moreover, to reiterate, plaintiff contends that Toungett got his job partly by making false accusations against him to Principal Killough. If true, such scheming on the part of Toungett would certainly be reprehensible, but it would have nothing to do with age discrimination.

From carefully reviewing the record, this court believes that there is a much more plausible explanation for “what happened” to sour Killough’s view towards plaintiff after her initially positive .meetings with him. Simply stated, it seems clear from the record that, at some point after she was hired, Killough came to believe that plaintiff was trying to undermine her authority, if not to have her fired outright as principal. This evident belief strikes this court as reasonable under the circumstances. Once again, plaintiff testified in his deposition that he, and much of the community, believed that his days as head coach were numbered once his friend Brigance was removed as OBHS principal. Moreover, it seems clear from the record that plaintiff had his own supporters in the community, which is unsurprising for a head football coach who had enjoyed considerable on-field success. Under these circumstances, it strikes this court as quite realistic to believe that a head coach in plaintiffs position might choose not to go quietly into the night, but instead choose to rally his supporters to save his job.

It appears to this court that the “triggering” event which led to clear animosity between plaintiff and Killough may have been a December 2013 meeting at which she overruled certain team-related decisions he made. It appears that, once this meeting occurred, plaintiffs generalized belief that his job was threatened may have coalesced into a firmer conviction that Killough was, in fact, “out for his job.” Regardless of whether this is, in fact, the exact moment in which plaintiffs relationship with Killough degenerated into mutual suspicion and hostility, it seems quite clear from the record that it occurred (at least with regard to Killough) at some’ point by the January 13, 2014 meeting. As noted previously, plaintiffs testimony suggests that he believes that his assistant Toungett was a third party in this intra-school fight, which allegedly had him serving in the role- of a Brutus eager to stab his head coach in the back in the interests of taking his job. Whether or not this is, in fact, how the events in this case played out, it seems quite clear from the record that Killough believed, by the January 13 meeting, that plaintiff was trying to get her fired.

Killough openly acknowledges that her belief that plaintiff was agitating against her was a reason for his termination. Unsurprisingly, however, Killough appeared eager to find additional reasons for terminating plaintiff which would not be regarded as simply her acting to vindicate her authority as principal-and ensure her own job security. This court frankly believes that this is where any actual pretext in this case may lie. Killough may believe that a power struggle between herself and plaintiff is a less “noble” reason for firing him than genuine concerns about how good an AD and football coach he was. From this court’s perspective, however, it is largely immaterial whether the reasons for firing plaintiff were “noble” or not. The question is whether those reasons were lawful. It seems clear to this court that, from Kil-lough’s perspective-as principal, plaintiffs perceived actions represented simple insubordination which constituted an entirely lawful reason for his termination.

The fact that Killough believed, by the time of the January 13 meeting, that her own job was at stake seems clear enough from the transcript of the meeting. This transcript quotes Killough as confronting plaintiff with the following accusation:

MS. KILLOUGH: Good..Also [it has] been brought to my attention that you have gone to the Mayor Scott Phillips; that you told him you need me fired, you’re ready to start your separate school district. I don’t know what I’m doing, I’m an idiot, I should have never been hired.

MR. SAMSEL: No.

MS. KILLOUGH: Didn’t happen, good.

[Transcript of Jan. 13th meeting at 16].

There is additional evidence in the record supporting a conclusion that, by the January 13 meeting, Killough genuinely believed that plaintiff was seeking to rally support in the community against her. In her declaration, Killough asserts that, at some point after she became principal, she was told by Gaspard that plaintiff had been making vulgar remarks about her to the football team and that he had encouraged his players to “tell their parents that I did not support the football team and was trying to ruin the program.” [Killough Declaration at 3].

In his deposition, Gaspard confirmed Killough’s account, describing plaintiffs statement to the team, at some point in December 2013, as follows:

A: He came in and he was upset. I don’t know what happened before. And he just said, told the kids tell their parents that the bitch up front is trying to ruin the program that we started.

[Gaspard dep. at 28-29]. Gaspard confirmed that he told Killough about plaintiffs alleged remarks, and it is thus apparent that, at the time of the January 13 meeting, she had reasonable cause to believe that plaintiff was seeking to rally support in the community against her. This court notes that plaintiff has submitted evidence from several football team members denying that they heard him make the alleged derogatory remarks about Killough. For the purpose of evaluating Killough’s motives and conduct at the January 13 meeting, however, the crucial fact is that she had reasonable cause to believe that plaintiff was agitating against her, regardless of whether he actually was or not. Indeed, while Toungett seemed, as noted previously, quite hesitant to give specifics about what he told Killough about the negative “atmosphere” on the team, plaintiff himself testified that he believed that Toungett was making negative remarks about him to the principal.

As discussed below, plaintiff asserts First Amendment retaliation claims in which he maintains that he was fired for his “association” with members of the community. Plaintiff is not at all eager to go into details regarding exactly what sort of associations he might have had in this regard, but it seems clear to this court that Killough (reasonably) believed that those associations involved plaintiff attempting to marshal his supporters in the community to ensure that he would come out on top in what he may have perceived as a power struggle between himself and his principal. In his deposition, plaintiff conceded that Killough had raised concerns with him that he was trying to marshal community support against her. Specifically, plaintiff testified that:

Q: It looks to me like you identify that issue that happened January 24th, I think, 2014, that you’re claiming that you were connected with persons who made adverse social media comments about her as an associational claim under the First Amendment.

A. She accused me of having something to do with negative comments about her on social media.

Q. Okay.

A. And she also accused me of organizing a rally.

[Samsel depo. at 77-78].

The question thus arises: is it more plausible to believe that Killough’s view towards plaintiff worsened because she had learned that he did not “relate well” to younger coaches or because she had come to believe that he was rallying his supporters in the community to try and have her fired? The question largely answers itself. Plaintiff had certainly not aged more than a few weeks from the time of his initially positive meetings with Killough. This court recognizes that the tape recording of the January 13 meeting arguably casts Kil-lough in a negative light, since, considered in the light most favorable to plaintiff, it suggests that she may have been seeking to goad him into losing his temper. This might well serve as evidence of pretext for age discrimination, in a case where plaintiff had even some evidence that he was fired because of his age. In this case, however, this court sees no indication whatsoever that age-related concerns were even a motivating factor, much less a but-for cause, of his termination.

This court does agree with plaintiff that the January 13 recording constitutes evidence that, by that date, Killough was determined to have plaintiff fired and that she was trying to place him in a position where he would give her additional reasons to do so. The first fact is not even in dispute, however, and this court accordingly does not regard the tape recording as constituting as strong a piece of evidence as plaintiff does. Indeed, Killough openly admits in her declaration that, due to performance-based reasons set forth therein, that she had decided to fire plaintiff as AD and head coach by January 9, 2014 at the very latest:

11. Throughout December and January, I spoke with my Assistant Principals, Mike Murphy, Sid McNeil, and Todd Nichols, about the reported conduct and my concerns regarding Samsel. Everyone agreed that Samsel was causing disruption to and hostility in the working and learning environment, rather than performing his duties as Athletic Director. The consensus was that I should remove him as Athletic Director and Head Football Coach.

12. On January 9, I sent an e-mail to Van Alexander, the Associate Superintendent of Personnel, stating that I wanted to discuss my decision to remove Samsel as Athletic Director and Head Football Coach.

[Killough Declaration at 4].

Killough further states in her declaration that she discussed her determination to fire plaintiff with Superintendent Kuyk-endall, as well as legal counsel. According to Killough, Kuykendall indicated that he would support whatever decision she made but that he recommended first removing plaintiff as Athletic Director only. [Id], Kil-lough asserts that, after considering plaintiffs verbal and written responses to the accusations she leveled against him at the January 13 meeting, she gave him a “two week notice that his supplemental contracts for his Athletic Director duties were being canceled.” [Id. at 5]. In so stating, Killough notes that “my understanding of supplemental contracts is that they can be cancelled at any time, for any reason, by either party upon providing two (2) weeks notice.” As discussed below, the language of plaintiffs contracts supports her conclusion in this regard.

Killough asserts that, after removing plaintiff as AD, his performance did not improve. To the contrary, Killough noted her belief that plaintiff had been communicating with individuals on social media who were critical of her and supportive of him. Specifically, Killough states that:

18.1 became aware of posts on the “OB Nation” Facebook page, which I understood is operating by Lisa Ransom and other unknown individuals. The things being reported involved topics that I discussed with Samsel on January 13th (e.g. Samsel using the school’s washer and dryer to do his personal laundry). An OBHS student showed me text messages that Ransom sent her requesting that she participate in activities to support Samsel.

[Id. at 5-6], Killough asserts in her declaration that, based on these and other factors, she met again with Kuykendall and others, told them that plaintiffs attitude had actually gotten worse and advised them that she planned to remove him as head coach. [Id. at 6]. Kuykendall indicated that he would support her in this decision.

Considered in light of these facts, this court does not regard the tape recording of the January 13 meeting as being as damaging as plaintiff contends, In so stating, the court first emphasizes that plaintiff argues in a different section of his brief that the holding of a “show cause” hearing was not only proper but constitutionally required. This contradiction is typical of the manner in which plaintiff manages to argue one theory of the case in one section of his brief and then argue something entirely different in another. While this court does not believe that a show cause hearing was constitutionally required, for the reasons discussed below, it does -consider it entirely fair and proper that Killough gave plaintiff an opportunity to answer the charges against him.

This court therefore regards the holding of the January 13 meeting as being a laudable step, and plaintiffs argument that the tape recording supports his claims comes down to the rather subjective evidence of the manner in which it was held. In this vein, however, this court notes that the most damaging statements in the recording were made by Assistant Principal Murphy, not Killough. In particular, Murphy’s statement to Killough that “[t]hat was a great Oscar you just earned” does tend to cast her in a negative light, since it arguably suggests she was putting on a performance and was. not sincere, in what she said. That is merely Murphy’s (rather unfortunate) choice of words, however, rather than Killough’s own description of her intent and state of mind.

In the court’s view, the recording would be stronger evidence of pretext if Killough, and not Murphy, had made the statements in question. Moreover, this court does not believe that the nefarious nature of defendants’ tactics at the January 13 meeting should be overstated, even if plaintiffs theory of-what motivated Killough -is correct. Plaintiffs reaction to the accusations made against him at 'the January 13 meeting was a matter within his control, and, even if. Killough was attempting to make'him lose his temper, it was ultimately his choice whether he did so or not. Thus, this court does not regard Killough’s alleged “performance” (which simply reflects Murphy’s characterization of her actions) at the meeting to .constitute fabrication of evidence against plaintiff, or similar misconduct.

Nevertheless, this court does, once again, accept the recording as evidence of pretext, but, for 'the reasons previously stated, it does not regard it as evidence of pretext for age discrimination. This court additionally notes that many df the performance-based reasons cited by defendants for terminating plaintiff appear to be cause for serious concern, including the aforementioned incident in which plaintiff was escorted from a middle school football game by police, after arguing with officials over a call in a game in which he was not even acting as coach. Killough testified that she was well aware of this incident even before she became principal, and this court believes that it raises legitimate questions about plaintiffs temperament. Indeed, the record contains a number of references to plaintiff potentially having temper issues, and this may well have given rise to a, hope (and expectation) on the part of Killough and Kuykendall that plaintiff would “lose it” at the January 13 meeting.

As quoted previously, Murphy made references that seem to indicate that plaintiff did, in fact, come close to losing his temper at the meeting. Moreover, plaintiff emphasizes that Kuykendall asserted at a school board meeting that plaintiff did, in fact, lose his temper at the meeting and that this was a reason for his firing. This further buttresses this court’s conclusion that the tape recording constitutes valid evidence of pretext, but, at the end of the day, ADEA claims still require proof of age discrimination. Having carefully considered the record, this court can find no such evidence in this case, much less evidence that might lead a jury to conclude that age was a “but for” cause of his firing. This court therefore concludes that plaintiffs ADEA claims are due to be dismissed, and it will turn to the next federal claim asserted by plaintiff.

First Amendment Retaliation

The court next addresses plaintiffs First Amendment retaliation claims in this case. As discussed below, most of these claims fail to even leave the starting gate, due to plaintiffs reluctance to state, with any degree of specificity, in exactly what protected speech and/or associations he engaged in this case. In employment discrimination cases, a court must approach First Amendment retaliation claims with great caution, since there are many forms of speech which might be considered protected activity when spoken by a non-employee but which enjoy no protection whatsoever when spoken by an employee. Indeed, the U.S. Supreme Court has established ‘ quite stringent standards applicable in cases where an employee argues that he was terminated in retaliation for First Amendment-protected activity. It is well settled that “when'a public employee speaks pursuant to [his] official duties, [he] does not speak as a citizen and [his] statements are not entitled to constitutional protection.” Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). Moreover, even when an employee does speak as a citizen on a matter of public concern, he might lack constitutional protection for such statements, if they tend to unduly harm the efficient operations of the governmental defendant. See Pickering v. Bd. of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983).

Thus, even if this court were, to find that Samsel engaged in protected speech and/or association, then it must still be determined whether, his interest in the protected conduct outweighed the school district’s interest in the efficiency of its operations. Reyes v. Weslaco Indep. Sch. Dist., 354 Fed.Appx. 904, 906-907 (5th Cir. 2009). To make that determination, this court must engage in the Pickering-Con-nick balancing test, which considers the “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 service it performs through its employees.” Id. (quoting Connick, 461 U.S. at 150, 103 S.Ct. 1684). In applying this test, this court must consider:

(1) the degree to which the employee’s activity involved a matter of public concern; (2) the time, place, and manner of the employee’s activity; (3) whether close working relationships are essential to fulfilling the employee’s public responsibilities and the potential effect of the employee’s activity on those relationships; (4) whether the employee’s activity may be characterized as hostile, abusive, or insubordinate; (5) whether the activity impairs discipline by superiors or harmony.among coworkers.

Id. (quoting Brady v. Fort Bend County, 145 F.3d 691, 707 (5th Cir. 1998).

Plaintiff correctly notes that, in one respect, his burden in the First Amendment retaliation context is less stringent than in the ADEA context. That is, to meet the relevant causation standard, a First Amendment retaliation plaintiff need to show only that his speech was a “motivating factor or substantial factor” in the employment decision. Mt. Healthy City School District Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). If the plaintiff does, in fact, demonstrate that his speech- was a substantial factor in the adverse employment action taken against him, there is no constitutional violation if the defendant can show both (i) that it would have taken the same action in any event, and (ii) that it would have taken that action for reasons that are not unconstitutional. Mt. Healthy, 429 U.S. at 286-87, 97 S.Ct. 568.

While the Mt. Healthy “mixed motive” option lessens the burden of First Amendment retaliation plaintiffs somewhat, the Supreme Court’s body of law in this context is, on balance, quite stringent. It appears to this court that, by being deliberately vague regarding’ in exactly what First Amendment-protected speech he engaged in this case, plaintiff is seeking to avoid subjecting his speech to these stringent requirements. Obviously, such a tactic cannot succeed. That being said, this court does believe that there is substantial evidence in the record that the school district terminated plaintiff partly, if not largely, on the basis of its belief regarding things that he said and/or associations that he had. In this sense, plaintiffs First Amendment retaliation claims are quite different from' his ADEA claims, since this court sees no evidence whatsoever in the record that age was even a motivating factor for plaintiffs firing.' Nevertheless, this court finds that plaintiffs First Amendment retaliation claims clearly lack merit, since the things that the school district believed that he said (correctly or not) and which potentially contributed to his firing, constituted self-serving advocacy for plaintiffs own personal interests and/or simple insubordination. Neither of these are protected by the First Amendment.

Moreover, plaintiff fails to offer proof, or even specific allegations, regarding any other activity he might have engaged in which enjoys First Amendment protection and which might even potentially have contributed to his firing. Thus, to some extent, this court is forced to argue with itself on this issue, even though it should arguably simply dismiss plaintiffs First Amendment claims outright. Out of an abundance of caution, however, this court will discuss them in some detail.

Once again, for plaintiffs speech to be protected, the Court must first determine that he spoke as a citizen on a matter of public concern. Garcetti, 547 U.S. at 418, 126 S.Ct. 1951. Importantly, whether a plaintiff spoke as an employee or as a citizen on a matter of public concern is a question of law, and, as such, this court may not simply pass these issues on to a jury based upon the vagueness of the First Am'endment allegations in this case. Graziosi v. City of Greenville, 775 F.3d 731, 736 (5th Cir. 2015). “An employee is not speaking as a citizen — but rather in his role as an employee — when he ‘makes statements pursuant to his official duties.’ ” Haverda v. Hays County, 723 F.3d 586, 598 (5th Cir. 2013) (quoting Nixon v. City of Houston, 511 F.3d 494, 497 (5th Cir. 2007). “Even if the speech at issue is not required by the employee’s job, the speech may not be protected if it was made while performing the job or to fulfill the job’s responsibilities.” Brown v. North Panola Sch. Dist., 2010 WL 3001914, *4, 2010 U.S. Dist. LEXIS 76419, *12 (N.D. Miss. July 28, 2010) (citing Williams v. Indep. Sch. Dist., 480 F.3d 689, 692 (5th Cir. 2007)). According to the Fifth Circuit, “[sjpeech involves a matter of public concern if it can be ‘fairly considered as relating to any matter of political, social, or other concern to the community.’” Graziosi, 775 F.3d at 738 (5th Cir. 2015) (quoting Connick, 461 U.S. at 146, 103 S.Ct. 1684).

Based upon this authority, this court concludes that none of plaintiffs speech which might even potentially have led to his termination was protected by the First Amendment. While plaintiffs allegations in this context are, to reiterate, quite vague, at least some of the alleged speech which might have led to his firing related to the proper management of a high school football team. As noted previously, for example, Coach Gaspard testified that plaintiff told the football team “to tell their parents that the bitch up front is trying to ruin the program that we started” and that he relayed these comments to Killough. This strikes this court as being a quite plausible reason for Killough to have wanted to fire plaintiff. In his complaint, plaintiff also cites certain statements he made to Killough during their private meetings, in which they discussed team-related issues.

It is unclear to this court whether speech regarding the management of a sports team might be properly considered a “matter of political, social, or other concern to the community” within the meaning of Graziosi, and it will accordingly not rule on this basis. Regardless, even assuming that a member of the public might be able to assert a First Amendment retaliation claim based on statements about the mis-management of a sports team, it concludes that plaintiff may not do so, under the facts of this case. In so stating, this court notes that the Fifth Circuit held in Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 692 (5th Cir. 2007) that a head football coach/athletic director’s communications to his principal regarding athletic finances, including statements that the school’s allocations “hurt [his] ability to provide ... student/athletes with critical items and/or materials necessary for competition” were not protected by the First Amendment. In so holding, the Fifth Circuit appeared to assume that such statements might be a matter of public interest if spoken by a non-employee, but it held that they were made by the plaintiff in his capacity as head coach and were thus not protected under Garcetti. Williams, 480 F.3d at 692-93.

Clearly, Williams constitutes adverse authority for plaintiff in this case, and it is consistent with the Fifth Circuit’s conclusion that “the mere insertion of a scintilla of speech regarding a public concern” is not sufficient to “make a federal case out of a wholly private matter fueled by private, non-public interests.” Teague v. City of Flower Mound, 179 F.3d 377, 381-83 (5th Cir. 1999). In Teague, the Fifth Circuit held that speech regarding a matter of public concern (i.e., police misconduct) which was made by an officer in the context of a grievance with his employer did not enjoy constitutional protection. Id. at 383. It strikes this court that Teague and similar holdings may be motivated, at least partly, by a conclusion that alleged First Amendment activity by employees who believe that their job is threatened must be regarded with- caution. Indeed, if such caution were not present, then threatened employee's might well be encouraged to “lash out” against their employers by making statements of alleged public interest, in the interests of.manufacturing a potential First Amendment retaliation claim and saving their jobs.

In this case, it seems clear that plaintiffs statements regarding the management of the football team (both to Killough and to the team) were made, if at all, in his capacity as head coach and that they were fueled by his own private interests, in particular protecting his own professional authority and saving his job. As noted previously, plaintiff made it very clear that he believed that once his friend Brigance was fired as OBHS principal, efforts would be made to fire him.': Accordingly, it appears to this court that, once Killough was hired, plaintiffs posture became largely one of professional self-preservation. Plaintiffs alleged statements to the football team were apparently in response to a meeting between Killough and plaintiff, shortly after he was hired, in which she limited his ability to hire assistant coaches. It seems clear from the record that plaintiff regarded Killough’s, decision as limiting his authority to run the football team as he saw fit, if not confirmation of the fact that Killough was, in fact, part of the political forces in the community aligned against him. Plaintiff, thus had a personal stake in the management of the football team, even assuming for the sake of argument that such management might be considered a matter of public interest, if spoken by someone without such an interest.

.The court therefore concludes that, from plaintiffs perspective, his alleged statements to the football team involved “a wholly private matter fueled by private, non-public interests” within the meaning of Teague. Even assuming arguendo that this conclusion is somehow incorrect and that the issue of the proper management of the football team was one of public interest, even when spoken by plaintiff, the fact remains that he was plainly speaking in his capacity as head football coach when he made the statements which Gaspard alleges. Indeed, it would be difficult to argue that a head coach addressing members of his team on school premises did not act in his official capacity in doing so, and plaintiff thus clearly fails to meet the requirements of Garcetti on this issue.

. Of course, it could be argued that, since plaintiff denies even making the derogatory statement to the football team, this court should not even consider it. This argument raises the rather interesting question of whether a public employer’s firing of an-employee based upon the mistaken belief that he engaged in protected speech would be .actionable in a First Amendment retaliation lawsuit. This court’s research indicates that the federal circuits are split on this issue. In-chambers research suggests that at least three federal circuits are of the view that a mistaken belief that a plaintiff engaged in protected activity may give rise to a First Amendment retaliation lawsuit. See Dye v. Office of the Racing Comm’n, 702 F.3d 286, 299-300 (6th Cir. 2012), Welch v. Ciampa, 542 F.3d 927, 939 (1st Cir. 2008), and Gann v. Cline, 519 F.3d 1090, 1094 (10th Cir. 2008). More federal circuits have reached a contrary conclusion, however, holding that there can be no First Amendment cause of action where there was no speech by the plaintiff. Fogarty v. Boles, 121 F.3d 886, 890-91 (3d Cir.1997); Barkoo v. Melby, 901 F.2d 613, 619 (7th Cir. 1990); Ambrose v. Twp. of Robinson, Pa., 303 F.3d 488, 495 (3d Cir. 2002); Wasson v. Sonoma Cnty. Junior Coll., 203 F.3d 659, 662 (9th Cir. 2000).

Unfortunately for plaintiff, the Fifth Circuit has adopted the latter view. See Jones v. Collins, 132 F.3d 1048, 1053 (5th Cir.1998). In Jones, the Fifth Circuit concluded that the plaintiff could not seek recovery based upon her employer’s mistaken belief about her public comments, writing that:

In this case, Jones contends that she never made any public comment about the prospect of placing the alternative education program on the Dunbar campus and that Jones retaliated against her based upon his perception that she spoke out negatively regarding this matter. Assuming for the sake of argument that Jones’s expression as perceived by Collins would have been subject to constitutional protection (i.e., the negative comments perceived by Collins related to a matter of public concern and Jones’s interest in making them outweighed TISD’s interest in efficiently providing educational services), retaliation based on this perception, in the absence of any actual expression by Jones that is subject to First Amendment protection, does not constitute a constitutional violation.

Jones, 132 F.3d at 1053.

Thus, the Fifth Circuit follows the more restrictive approach to the First Amendment retaliation cause of action in this context, and this court is, of course, bound to apply that approach. It is important to emphasize, however, that this constitutes a purely cumulative obstacle to plaintiffs First Amendment retaliation claims, since hé would be unable to recover even if he did make the perceived statements in question. Indeed, it appears to this court that, in Jones, there was a much stronger argument than here that the plaintiff would have made any perceived statements in her capacity as a citizen speaking regarding a matter of public interest and that the statements would not have unduly interfered with the employer’s operations. Indeed, the Fifth Circuit assumed that the plaintiff could make such -a showing in Jones. Id. In this case, by contrast, the perceived statements by Samsel regarding his principal’s decisions regarding the football team are of more tenuous public interest, they were made (if at all) in his capacity as head coach, and, in the case of his alleged statements to the team, they clearly had a great potential to interfere with orderly school and team operations. It is thus, strictly speaking, unnecessary for this court to even address this issue, but it has chosen to do so, pa