Gwynn Lumpkin v. Aransas County, Texas , 712 F. App'x 350 ( 2017 )


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  •      Case: 17-40060      Document: 00514194448         Page: 1    Date Filed: 10/13/2017
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    No. 17-40060
    Fifth Circuit
    FILED
    October 13, 2017
    GWYNN LUMPKIN; LESLIE KRENEK,                                                 Lyle W. Cayce
    Clerk
    Plaintiffs–Appellants,
    v.
    ARANSAS COUNTY, TEXAS,
    Defendant–Appellee.
    Appeal from the United States District Court
    for the Sothern District of Texas
    USDC No. 2:15-CV-190
    Before SMITH, OWEN, and HIGGINSON, Circuit Judges.
    PER CURIAM:*
    After their employment as paralegals in the Aransas County Attorney’s
    office was terminated, Gwynn Lumpkin and Leslie Krenek brought this suit
    against Aransas County under 
    42 U.S.C. § 1983
    , asserting the terminations
    were in retaliation for the exercise of their First Amendment rights. The
    district court granted the County’s motion for summary judgment. We affirm.
    * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH
    CIR. R. 47.5.4.
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    I
    Richard Bianchi, who was at the time the Aransas County Attorney,
    announced his candidacy to become the judge of the Aransas County court-at-
    law, a position he ultimately won. Assistant County Attorney Deborah Bauer
    complained to the County District Attorney that Bianchi was not complying
    with the Texas Constitution’s “resign-to-run” provision, which, she claimed,
    required Bianchi to resign from his position before seeking election as a judge.
    Bianchi fired Bauer, who then sued the County for unlawful employment
    practices.   In the course of that litigation, Bauer produced her text
    conversations with Lumpkin and Krenek, and they were deposed. Although
    the County asked Lumpkin and Krenek for all records of communications with
    Bauer, they did not produce the text messages.
    The content of those messages—nearly 200 of them—can be broadly
    categorized as relating to: (1) Bianchi’s campaign and its effects on the office,
    (2) opinions as to Bianchi’s intelligence and competence, and (3) office and
    personal affairs.
    In the first category, some of the texts comment on Bianchi’s campaign
    practices and alleged failure to comply with the resign-to-run provision. For
    example, Lumpkin informed Bauer that Bianchi received a fax from neighbors
    telling him where to put a campaign sign and Lumpkin inquired, “Isn’t that
    using county equipment for campaign purposes[?]” After a campaign meeting
    in which Bianchi commented on the court schedule of Bill Adams, the
    incumbent judge, Lumpkin complained to Bauer about the effect the comment
    would have on the office’s hearing schedule:
    Lumpkin: By the way. After Richard[’]s comment last night.
    The judge told Gracie to start putting things on the
    Monday and Friday docket if we have a courtroom.
    I hate Richard. Such a prick
    2
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    Bauer:        Great – my job just became unbearable
    Lumpkin: We feel the same way. Richard needs to resign
    Bauer:        I agree!! When are we going to prepare and how is
    that making our job less burdensome??
    Lumpkin: Richard told them at the meeting that that is the
    way he [Judge Adams] ran his court. Just like a
    doctor[’]s office. Stupid stupid man
    The stupid bastard is clueless[.]
    Months later, when Bauer recounted how she told Judge Adams that “he
    and Richard were killing [her]” with the pace of hearings, Lumpkin responded:
    I feel the same way. I don’t have time to proof anything with the
    amount of paperwork that needs drafting. . . . Richard has no clue
    the amount of work we do and doesn’t care. Used to at least have
    someone faxing and copying etc. Now we don’t even have that. No
    wonder we make mistakes. Impossible to keep up. Since Richard
    made that comment about the court schedule. They are killing
    us[.]
    Continuing to decry the strain on the office, Lumpkin said: “The problem
    is Richard has no clue. At least the judge knows what is going on. Richard is
    clueless. I have [n]o respect for the man and I guarantee when he leaves I will
    tell him he is the worst boss I have ever worked for.” She later added, “I am
    surprised he stands up straight. No backbone at all. LOL.”
    Lumpkin and Krenek also conversed with Bauer about other aspects of
    Bianchi’s campaign. Krenek, for example, told Bauer, “[H]e needs to know that
    his negative campaigning is going to kill the office staff.” Similarly, Lumpkin
    complained that Bianchi had been untruthful by overestimating the number of
    people at a campaign meeting. She also noted that Bianchi left the office early
    to give a campaign speech and, on a separate occasion, did not return to work
    after a meeting because he was “out politicing [sic].”       When Bauer told
    Lumpkin that Bianchi had reported his incumbent opponent to the judicial
    conduct commission, Lumpkin replied, “Told u he would.” More generally,
    3
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    Lumpkin lamented the office’s awkward position during the election: “The
    judge on one side and Richard on the other. What a terrible situation we are
    in.”
    Many of the messages commented on Bianchi’s competence and
    intelligence. Some messages related to Bianchi’s perceived incompetence for
    the court-at-law judgeship. When discussing a hearing, for example, Lumpkin
    said: “Ever[yone] is laughing at him. He has no clue how the court works.”
    Later, Lumpkin remarked, “Tres said that Richard is Too stupid to do county
    court at law,” and added, “Too stupid to slap a monkeys ass.”
    Numerous messages mocked Bianchi in other settings. When Bianchi
    assigned another paralegal to work on a terrorist threat case, Lumpkin called
    him a “[s]tupid stupid man” and “an idiot.” Lumpkin also described Bianchi as
    a “spineless wonder,” “silly bastard,” “[c]lueless wonder,” and “complete idiot,”
    and said, “[t]he more I have to deal with Richard the stupider he becomes.”
    She also recounted how she laughed at Bianchi with co-workers after his court
    appearances. Krenek shared similar sentiments, calling Bianchi “an idiot” and
    complaining that he was selfish.
    In some instances, Lumpkin’s criticisms of Bianchi were accompanied by
    expressions of intent to withhold information from him. When an emergency
    motion came before the court, Lumpkin told Bauer she was “[n]ot even going
    to tell Richard. He would be clueless anyway,” and said “I hate Richard. Lazy
    ass. He is clueless on everything.” Regarding a commitment case concerning
    mental competence, Lumpkin repeatedly told Bauer that Bianchi was
    “clueless” and suggested they “[l]et the judge see how stupid he is.”
    Other messages shed light on the apparently acrimonious inner-
    workings of the county attorney’s office. Some of the texts object to Bianchi’s
    management style. In one conversation, Lumpkin complains, “Richard has got
    that intern scanning documents and helping [L]ee[A]nn. What a joke.” In
    4
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    another text, after informing Bauer about a conservation with Bianchi
    regarding replacing a door in the office, Lumpkin said “[h]e needs to resign.”
    Other messages discussed Ashley Dugger, a paralegal, and LeeAnn, another
    employee. In one message, Lumpkin tells Bauer, “Wait till u see what lee ann
    has on. She looks like she [i]s in high school.” Lumpkin later texted, “Ashley
    and [L]ee[A]nn are just laughing but she has not even spoken to us. She is
    such a bitch. Wish she never ca[m]e back.” When Ashley resigned, Lumpkin
    exulted, “Ashley gone perman[ently]. One down two to go. Ashley took us off
    her facebook page . . . . We are laughing. What a joke. She is evil.” Similarly,
    Krenek told Bauer, “Ashley was very two faced and we will not miss her at all”
    and “she was a baby and started a lot of the trouble.”
    While the text messages were overwhelmingly derogatory toward
    Bianchi, the depositions strike a different tone. Krenek, for example, said that
    Bianchi was “fair,” and Lumpkin stated that she “enjoyed working for Richard”
    and that she “ha[d] no complaints with Richard at all.”
    After Bianchi became a judge, the County settled the suit that Bauer had
    brought. Three days later, Bianchi’s replacement, Kristen Barnebey Blanford,
    terminated Lumpkin and Krenek. The County initially stated that Blanford
    based her decision on all the text messages and deposition testimony. The
    County now contends the decision was based on the content of the texts and
    “inconsistencies between the text messages and deposition testimony.”
    Lumpkin and Krenek sued, claiming the County retaliated against them
    for their texts and testimony in violation of the First Amendment. The district
    court granted the County’s motion for summary judgment, holding that
    Lumpkin’s and Krenek’s texts did not involve matters of public concern.
    Although the district court considered the deposition testimony to be citizen
    speech on a matter of public concern, the court held that the County’s interest
    in an efficient workplace outweighed Lumpkin’s and Krenek’s interest in their
    5
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    speech.    After the court denied their motion to reconsider, Lumpkin and
    Krenek appealed.
    II
    The First Amendment prohibits government conduct that “abridg[es] the
    freedom of speech.” 1 Although this protection applies to everyday citizens and
    public employees, 2 it has long been recognized that government entities have
    an interest in regulating the speech of government employees speaking as
    such. 3 Accordingly, to prove a First Amendment retaliation claim, a plaintiff
    must establish that (1) she suffered an adverse employment decision; (2) she
    “spoke as a citizen on a matter of public concern;” (3) her interest in free speech
    outweighs her employer’s interest in workplace efficiency; and (4) her protected
    speech motivated the defendant’s conduct. 4
    In this case, there is no question that Lumpkin and Krenek suffered an
    adverse decision—their employment was terminated. We accordingly proceed
    to consider the second and third elements of Lumpkin’s and Krenek’s
    retaliation claims.       Determining whether Lumpkin’s and Krenek’s text
    messages and deposition testimony are citizen speech on matters of public
    concern involves two separate determinations: (1) whether the paralegals
    spoke as citizens and (2) whether their speech involved matters of public
    concern. “We review a district court’s grant of summary judgment de novo,
    applying the same standards as the district court.” 5 “Summary judgment is
    proper ‘if the movant shows that there is no genuine dispute as to any material
    1 U.S. CONST. amend. I.
    2 Graziosi v. City of Greenville Miss., 
    775 F.3d 731
    , 736 (5th Cir. 2015); see also Lane
    v. Franks, 
    134 S. Ct. 2369
    , 2374 (2014).
    3 Connick v. Myers, 
    461 U.S. 138
    , 140 (1983).
    4 Gibson v. Kilpatrick, 
    838 F.3d 476
    , 481 (5th Cir. 2016).
    5 Graziosi, 775 F.3d at 736 (quoting Antoine v. First Student, Inc., 
    713 F.3d 824
    , 830
    (5th Cir. 2013) (citation omitted)).
    6
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    fact and the movant is entitled to judgment as a matter of law.’” 6 We likewise
    “review[] a district court’s conclusions concerning First Amendment issues de
    novo.” 7 “This de novo review includes ‘the district court’s Pickering balancing
    analysis,’ so long as there are no disputed, material facts.” 8
    A
    We conclude that both the text messages and deposition testimony were
    citizen speech. In general, “when public employees make statements pursuant
    to their official duties, the employees are not speaking as citizens for First
    Amendment purposes.” 9 This generally includes “communications that relate
    to [the employee’s] own job function up the chain of command.” 10 In Davis v.
    McKinney, for example, we held that an internal auditor’s complaints to
    management about failure to discipline employees for viewing pornography
    were made as an employee because she was responsible for “oversee[ing]
    computer-related audits.” 11 In contrast, when the speech in question does not
    fall within “ordinary job responsibilities,” it is made as a citizen—even if the
    speech concerns job duties. 12
    Lumpkin’s and Krenek’s deposition testimony is clearly citizen speech.
    The Supreme Court has held that “[s]worn testimony in judicial proceedings is
    a quintessential example of speech as a citizen.” 13 The text messages also
    qualify as citizen speech. Although the messages often discussed workplace
    matters and were sent to Bauer—Lumpkin and Krenek’s supervisor—the
    6 
    Id.
     (quoting FED. R. CIV. P. 56(a)).
    7 
    Id.
    8 
    Id.
     (quoting Salge v. Edna Indep. Sch. Dist., 
    411 F.3d 178
    , 184 (5th Cir. 2005)); see
    also Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205¸ 
    391 U.S. 563
     (1968).
    9 Lane v. Franks, 
    134 S. Ct. 2369
    , 2378 (2014) (quoting Garcetti v. Ceballos, 
    547 U.S. 410
    , 421 (2006)).
    10 Davis v. McKinney, 
    518 F.3d 304
    , 313 n.3 (5th Cir. 2008).
    11 
    Id. at 315
    .
    12 Lane, 
    134 S. Ct. at 2378-79
    .
    13 
    Id. at 2379
    .
    7
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    messages were not required to fulfill job duties. Unlike the internal auditor in
    Davis, whose speech was unprotected because her reports up the chain of
    command were central to her job description, Lumpkin and Krenek were not
    required to convey any of the information reported in the text messages to
    Bauer.
    B
    The Supreme Court has explained that “[s]peech 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 general interest and of value and concern to the public.” 14 We determine
    whether a public employee’s speech relates to a matter of public concern by
    weighing “the content, form, and context of a given statement, as revealed by
    the whole record.” 15 Weighing these factors, we conclude that while Lumpkin’s
    and Krenek’s text messages did not relate to matters of public concern, their
    deposition testimony did.
    1
    We first analyze the text messages, starting with content. The content
    of speech is more likely to relate to matters of public concern when “releasing
    the speech to the public would inform the populace of more than the fact of an
    employee’s employment grievance.” 16 In Lane, for example, the Supreme Court
    held that sworn testimony regarding public corruption and misuse of state
    funds was speech on a matter of public concern. 17 By contrast, “[i]nternal
    personnel disputes and management decisions are rarely a matter of public
    14 Gibson v. Kilpatrick, 
    838 F.3d 476
    , 482 (5th Cir. 2016) (quoting Lane, 
    134 S. Ct. at 2380
     (citation omitted)).
    15 Connick v. Myers, 
    461 U.S. 138
    , 147-48 (1983).
    16 Salge v. Edna Indep. Sch. Dist., 
    411 F.3d 178
    , 187 (5th Cir. 2005) (internal
    quotations omitted).
    17 Lane, 
    134 S. Ct. at 2380
    .
    8
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    concern.” 18 In “mixed” cases involving personal and public concerns, this court
    analyzes the speech to determine whether “personal concerns predominate.” 19
    For example, in Graziosi, we held that a police sergeant’s Facebook post about
    the department’s failure to send a representative to the funeral of an officer
    from another town was not public in nature because, by emphasizing the
    sergeant’s displeasure with the chief’s leadership style, the post “devolved into
    a rant” and was “akin to an internal grievance.” 20 The sergeant’s personal
    employment concerns predominated, even though the post “started by
    addressing subjects [of public concern].” 21
    Lumpkin and Krenek argue that their texts are public in nature because
    they discuss the effects of Bianchi’s alleged violation of the resign-to-run law,
    his honesty in campaigning, his competency as an attorney, and his complaint
    to the judicial conduct commission about the judge he was seeking to replace.
    The County contends that the messages merely communicate ordinary
    employee grievances.
    We conclude that the content of the messages was predominantly private
    in nature.    On one hand, Lumpkin’s messages about Bianchi’s campaign
    promises and their effects on the court schedule appear to relate to public
    matters.     Her comments shed light on subjects that Bianchi made public
    issues—the proper management of and schedule for the county court. If made
    public, Lumpkin’s texts might help inform the public about whether Bianchi’s
    suggestions would truly improve the efficiency of the county court-at-law.
    But even assuming that Lumpkin’s and Krenek’s complaints about the
    court schedule pertained to public matters, private employee grievances were
    18 Stotter v. Univ. of Tex. at San Antonio, 
    508 F.3d 812
    , 827 (5th Cir. 2007).
    19 Gibson, 838 F.3d at 485.
    20 Graziosi v. City of Greenville Miss., 
    775 F.3d 731
    , 738 (5th Cir. 2015).
    21 
    Id.
    9
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    the predominant theme of their text messages to Bauer. The messages are
    filled with language critical of Bianchi and demeaning toward other co-
    workers.         While some of Lumpkin’s and Krenek’s messages discussed
    campaign matters, their concerns centered on the effects of Bianchi’s candidacy
    on their own work hours and office morale. Moreover, although one of the
    messages comments on Bianchi’s competence for elected office, the many other
    messages insulting him and others in the office did not. Both Lumpkin and
    Krenek demeaned Bianchi for his everyday work and made comments about
    co-workers in the office. These personal criticisms were routinely repeated in
    discussions that were entirely unrelated to Bianchi’s candidacy. Just as the
    police sergeant’s Facebook post was “akin to an internal grievance” in Graziosi
    even though it discussed some matters of public concern, 22 Lumpkin’s and
    Krenek’s messages to Bauer are most accurately described as complaints
    between co-workers. The few comments that do relate to the campaign are
    best understood as part of a broader pattern of derogatory comments about
    Bianchi.
    Other messages relating to Bianchi’s campaign were so trivial that they
    cannot be considered matters of public interest. The receipt of a single inbound
    campaign-related fax likely is not of interest to the general public, nor are
    reports that a salaried official left the office early to give a campaign speech or
    exaggerated the number of people in attendance at a meeting. The same is
    true of Lumpkin’s brief acknowledgement—“Told u he would”—of Bianchi’s
    report to the judicial conduct commission. On the whole, while some of the text
    messages addressed matters of public concern, private employee grievances
    predominated.        The content of Lumpkin’s and Krenek’s messages weighs
    against the messages being a matter of public concern.
    22   
    Id.
    10
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    The form of the messages—texts—similarly suggests that they should
    not be considered matters of public concern. Communications visible to the
    public are more likely to concern the public. In Terrell, a police officer’s private
    diary entries were not matters of public concern because “[h]e made no effort
    to communicate the contents of the notebook to the public.” 23 By contrast, a
    letter to a state representative was more likely a public matter because it
    reflected a “choice to inform someone outside” the employee’s department. 24
    Lumpkin and Krenek sent the text messages directly to Bauer—their
    supervisor—and made no effort to convey the information to anyone outside
    the county attorney’s office.         Even when the County asked Lumpkin and
    Krenek to produce all electronic communications with Bauer, the text
    messages only came to light because Bauer produced them. The form or means
    of communicating the messages weighs against their being considered matters
    of public concern.
    The context of the messages also supports the conclusion that the speech
    did not primarily pertain to a matter of public concern.                    This court has
    previously held that when speech is “made within the context of a private
    employee-employer dispute” that context “militates against a finding that her
    speech was public in nature.” 25 For example, a lawsuit brought “in the context
    of a continuing feud between” the local mayor and police chief rather than
    “against a backdrop of widespread debate in the community,” was not a matter
    23 Terrell v. Univ. of Tex. Sys. Police, 
    792 F.2d 1360
    , 1362-63 (5th Cir. 1986).
    24 Modica v. Taylor, 
    465 F.3d 174
    , 181 (5th Cir. 2006); see also Gibson, 838 F.3d at 486
    (lawsuit seeking to remedy personal grievance rather than to reveal information to the public
    was not speech on a matter of public concern); Dodds v. Childers, 
    933 F.2d 271
    , 274-75 (5th
    Cir. 1991) (college instructor who “did not address her complaints to anyone outside the
    College” did not speak on matter of public concern).
    25 Graziosi, 775 F.3d at 739.
    11
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    of public concern. 26 By contrast, speech by two teachers about improving
    educational standards was of public interest because it was not related to any
    “employment related squabble.” 27
    Unlike the teachers in Harris, Lumpkin’s and Krenek’s derogatory
    messages are part of a broader pattern of exchanging derogatory comments
    about Bianchi. The topics of the paralegals’ observations regarding Bianchi
    range from his refusal to replace a door to his interactions with office staff and
    knowledge about cases. Lumpkin’s and Krenek’s dislike of and disregard for
    Bianchi is the predominant theme of the texts at issue, and it is unsurprising
    that the messages at times touched on campaign matters.                       While “[a]n
    employee's speech may contain an element of personal interest and yet still
    qualify as speech on a matter of public concern,” 28 Lumpkin’s and Krenek’s
    limited references to Bianchi’s campaign occur within a broader context in
    which employment grievances and personal animosity predominate.
    Weighing the content, form, and context of the text messages, we
    conclude that the text messages did not involve matters of public concern.
    Their content, form and context, taken with the unquestionably private form
    of the messages, lead to the conclusion that the messages did not relate to
    matters of public concern.
    2
    Unlike the text messages, Lumpkin’s and Krenek’s deposition testimony
    does involve matters of public concern. This court has held that when a witness
    testifies before a “fact finding body hearing an official matter” the form and
    context of the speech is “sufficient to elevate the speech to the level of public
    26 Gibson, 838 F.3d at 487 (quoting Markos v. City of Atlanta, 
    364 F.3d 567
    , 572 (5th
    Cir. 2004)).
    27 Harris v. Victoria Indep. Sch. Dist., 
    168 F.3d 216
    , 222 (5th Cir. 1999).
    28 
    Id.
    12
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    concern.” 29 The Supreme Court has not “unequivocally abrogated” 30 this line
    of cases. Rather, the Court held in Lane that “the form and context of the
    speech [in question]—sworn testimony in a judicial proceeding—fortif[ied]
    th[e] conclusion” that the speech involved a matter of public concern. 31 The
    form and context of Lumpkin’s and Krenek’s testimony—given in depositions
    required by subpoena in a case to which they were not parties—elevate the
    testimony to a matter of public concern.
    C
    The third element of retaliation, established in Pickering v. Board of
    Education, 32 requires us to balance the County’s interest against that of
    Lumpkin and Krenek. The court asks “whether the relevant government
    entity had an adequate justification for treating the employee differently from
    any other member of the general public” due to its role as employer. 33 In doing
    so, we “strike a balance between ‘the interests of [employees] . . . commenting
    upon matters of public concern and the interest of [the government], as an
    employer, in promoting the efficiency of the public services it performs through
    its employees.’” 34 In particular, we evaluate whether the speech has caused
    disruption, impeded performance, or “affected working relationships necessary
    to the department’s proper functioning.” 35 “When close working relationships
    are essential to fulfilling public responsibilities, a wide degree of deference to
    the employer’s judgment is appropriate.” 36
    29 Johnston v. Harris Cty. Flood Control Dist., 
    869 F.2d 1565
    , 1577-78 (5th Cir. 1989).
    30 United States v. Tanksley, 
    848 F.3d 347
    , 350 (5th Cir. 2017).
    31 Lane v. Franks, 
    134 S. Ct. 2369
    , 2380 (2014).
    32 
    391 U.S. 563
     (1968).
    33 Graziosi v. City of Greenville Miss., 
    775 F.3d 731
    , 740 (5th Cir. 2015) (quoting
    Garcetti v. Ceballos, 
    547 U.S. 410
    , 418 (2006)); see also Lane, 
    134 S. Ct. at 2380-81
    .
    34 Id. at 740 (quoting Pickering¸ 
    391 U.S. at 568
    ).
    35 Brawner v. City of Richardson, Tex., 
    855 F.2d 187
    , 192 (5th Cir. 1988).
    36 Connick v. Myers, 
    461 U.S. 138
    , 151-52 (1983).
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    In the present case, the County’s interest in an efficient, harmonious
    work environment in its attorney’s office outweighs Lumpkin’s and Krenek’s
    interests in their speech. The County’s interest as employer weighs heavily.
    Lumpkin’s      and    Krenek’s     text   messages      reveal    a   pattern    of   toxic
    communications about supervisors and co-workers. The texts criticized fellow
    public servants for perceived personal and professional flaws and openly
    celebrated another paralegal’s departure: “One down two to go.”
    Not only would the now-public texts about other office staff make
    amicable workplace relations difficult, they expose an undercurrent of
    duplicity that would impede the “close working relationships,” which the
    Supreme Court has specifically held to be crucial in public attorney’s offices. 37
    Lumpkin’s and Krenek’s caustic messages about Bianchi differ markedly from
    the testimony in their respective depositions, which refers to Bianchi
    favorably. Given the contrast between the texts and testimony, the County
    was justified in doubting whether Lumpkin and Krenek could be trusted.
    Lumpkin’s and Krenek’s interests in their speech are less weighty.
    Although “the [F]irst [A]mendment protects the right to testify truthfully at
    trial,” 38 it does not prevent government employers from comparing sworn
    testimony to other speech. Indeed, the Supreme Court has noted that sworn
    testimony may not be protected if it is “false or erroneous.” 39
    Though it may be unclear which speech—the messages or deposition
    testimony—accurately depicts Lumpkin’s and Krenek’s sentiments about their
    former supervisor, the discrepancy gives the County ample support for
    termination. While the district court’s statement that communications must
    37Id.
    38Reeves v. Claiborne Cty. Bd. of Educ., 
    828 F.2d 1096
    , 1100 (5th Cir. 1987) (quoting
    Smith v. Hightower, 
    693 F.2d 359
    , 368 (5th Cir. 1982)).
    39 Lane v. Franks, 
    134 S. Ct. 2369
    , 2381 (2014).
    14
    Case: 17-40060     Document: 00514194448      Page: 15   Date Filed: 10/13/2017
    No. 17-40060
    “demonstrate an earnest interest in the public good” was incorrect, it does not
    impact the balance of interests in this case.
    In light of the County’s substantial interest in maintaining workplace
    trust and efficiency and responding to threats to office morale, the Pickering
    balance weighs against Lumpkin and Krenek.           Accordingly, we need not
    address the causation element of their retaliation claim.
    III
    In sum, we hold that although Lumpkin and Krenek spoke as citizens,
    their text messages did not, on the whole, involve matters of public concern.
    Although the form and context of the deposition testimony elevate it to citizen
    speech on a matter of public concern, the County’s interest in preserving trust
    and efficiency in the county attorney’s office outweighs any interest Lumpkin
    and Krenek had in their speech. For the foregoing reasons, we AFFIRM the
    judgment of the district court.
    15