NOT RECOMMENDED FOR PUBLICATION File Name: 22a0076n.06
No. 21-1313
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
FILED ) Feb 18, 2022 BARI BLAKE WOOD, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellant, ) ) v. ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR THE ) 36TH DISTRICT COURT; JUDGE EASTERN DISTRICT OF MICHIGAN ) WILLIAM C. MCCONICO; LAWANDA ) CROSBY, OPINION ) ) Defendants-Appellees. )
Before: SUTTON, Chief Judge; STRANCH and BUSH, Circuit Judges.
JANE B. STRANCH, Circuit Judge. Bari Blake Wood, a former Chief Magistrate Judge
for the 36th District Court in Michigan, brought claims against that Court, alleging First
Amendment retaliation, violation of Michigan’s whistleblower statute, and termination in violation
of public policy. Wood had reported concerns regarding the legality of the Court’s warrant and
arraignment practices to her supervisor and coworkers. She was subsequently demoted from her
role as Chief Magistrate Judge and then terminated. The district court dismissed Wood’s First
Amendment claim, finding that her speech was pursuant to the ordinary scope of her job duties,
and declined to exercise supplemental jurisdiction over her remaining state law claims. For the
reasons that follow, we AFFIRM the district court’s judgment. No. 21-1313, Wood v. 36th District Court, et al.
I. BACKGROUND
A. Factual Background
Because this matter involves review of the district court’s order of dismissal under Federal
Rule of Civil Procedure 12(b)(6), we accept as true the facts set out in the complaint, as follows.
Bari Wood was appointed Magistrate Judge of the 36th District Court by then-Chief Judge
Nancy M. Blount in January 2016.1 On November 15, 2017, Wood was appointed Chief
Magistrate. In that role, she “provided oversight and guidance to the Court’s other Magistrate
Judges” and she “continued to address potential legal and civil violations she observed were
occurring in the adjudication of criminal cases by Court personnel.” For example, Wood “created
guidance and training materials for the Magistrate Judges on topics such as how to conduct legally
proper misdemeanor and felony arraignment hearings, and small claims and informal hearings.”
During her tenure as a Magistrate Judge, her “performance was at all times satisfactory or better.”
Wood also “notified” the Court of areas where its practices “fell short of legal requirements.”
In 2018, Wood observed a practice in which Court personnel approved search warrants that
lacked “crucial legal requirements.” Later that year, she raised concerns with other magistrate
judges about whether the practices were consistent with state and federal law and also advised
then-Chief Judge Blount of her concerns.
In December 2018, Wood also realized that arraignment hearings were not being conducted
legally. In January 2019, she again notified then-Chief Judge Blount and the Court Administrator
of her concerns. Judge Blount responded that this “was not the Court’s problem,” and she
“instructed [Wood] . . . not to raise these concerns any further.”
1 Although Wood’s complaint did not contain allegations regarding the relevant statute, under Michigan law, Magistrate Judges of the 36th District Court are considered at-will employees who “serve at the pleasure of the chief judge of the thirty-sixth district.” M.C.L. § 600.8501(3).
-2- No. 21-1313, Wood v. 36th District Court, et al.
In March 2019, Wood heard from an acquaintance that the American Civil Liberties Union
(ACLU) intended to sue over the unconstitutional practices regarding felony arraignment hearings.
Wood met with Judge Blount, told her of the pending litigation, and then contacted the other
Magistrate Judges about the potential litigation “so they could make educated determinations on
whether and how to entertain bond arguments at arraignment hearings.” A month later, a class of
plaintiffs represented by the ACLU sued Judge Blount and other Magistrate Judges, including
Wood, for violations of their civil rights stemming from the felony arraignments.
On May 29, 2019, Wood “met with the other Magistrate Judges, the Chief Judge, Chief
Judge Pro Tem, the Court’s in-house counsel, the Court Administrator, and outside counsel
representing the Court officials named as defendants in the ACLU litigation.” During that
meeting, Wood “was questioned at length about her conversation with her acquaintance regarding
the potential for litigation,” and explained that she advised the Court of the basis for the ACLU
lawsuit “before the events giving rise to it occurred.”
A few months later, Wood met with outside counsel representing the Court officials in the
ACLU litigation. Wood told counsel that she advised the Court of the legal basis for the potential
lawsuit, to which counsel expressed concern “that [Wood’s] knowledge of and attempts to redress
the Court’s potential legal violations would negatively impact their defense of the lawsuit filed
against them.”
Defendant William McConico was appointed Chief Judge of the 36th District Court on
November 22, 2019. Shortly thereafter, he was briefed on the status of the ACLU litigation,
“including [Wood’s] attempts to forewarn the Court about the legal issues it presented.” A month
later, the Court Administrator notified Wood that “Defendant McConico decided to remove [her]
from the Chief Magistrate position.” A couple of weeks later, Wood was terminated. Although
-3- No. 21-1313, Wood v. 36th District Court, et al.
the Court never provided Wood a reason for her termination, she alleges that she was terminated
“because she had a history of reporting and seeking to remedy legal violations by the Court, and
because these actions threatened their legal defense against the ACLU litigation.”
B. Procedural Background
Wood sued the 36th District Court, Chief Judge McConico, and Lawanda Crosby, the
Court Administrator, alleging that she was terminated in retaliation for exercising her First
Amendment rights and that her termination violated the Michigan Whistleblower Protection Act
and public policy. Defendants moved to dismiss the complaint, arguing that its allegations lacked
a legal basis. They also moved to strike portions of the complaint, arguing that they contained
work-product protected or attorney-client privileged communications.
The district court granted in part and denied in part both motions. On the motion to strike,
the district court reasoned that Paragraphs 36, 45, and 46 contained “specific information shared
by Plaintiff when she was an employee of the 36th District Court and in her capacity as an
employee of the court.” It therefore granted the motion to strike as to those paragraphs only. The
district court granted the motion to dismiss concerning Wood’s First Amendment retaliation claim.
Focusing exclusively on the first element under the analysis set forth in Garcetti v. Ceballos,
547 U.S. 410, 418 (2006)—whether Wood spoke as a citizen or as an employee—the district court
reasoned that “all the allegations in the complaint were made as ‘part and parcel’ of Plaintiff’s role
as a magistrate or chief magistrate Judge.” Accordingly, because Wood’s speech was a part of her
job duties, it was not constitutionally protected, and she failed to state a plausible claim for relief.
The district court then declined to exercise supplemental jurisdiction over the pendent state law
claims and dismissed those remaining claims without prejudice.
Wood timely appealed.
-4- No. 21-1313, Wood v. 36th District Court, et al.
II. ANALYSIS
On appeal, Wood challenges the district court’s dismissal of her First Amendment claim
and its decision to strike three paragraphs in her complaint pursuant to attorney-client privilege.
Because we find that the stricken allegations do not affect our analysis of the plausibility of Wood’s
First Amendment retaliation claim, we do not reach the latter issue.
We review de novo a district court’s grant of a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6). Jones v. City of Cincinnati, 521 F.3d 555, 559 (6th Cir. 2008). The
court “construe[s] the complaint in the light most favorable to the plaintiff, accept[s] all
well-pleaded factual allegations as true, and examine[s] whether the complaint contains ‘sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.’” Hill v.
Snyder, 878 F.3d 193, 203 (6th Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Wood’s only federal claim is her First Amendment retaliation claim under 42 U.S.C.
§ 1983. To properly plead a § 1983 claim, a plaintiff must (1) “allege that a defendant acted under
color of state law”; and (2) “that the defendant’s conduct deprived the plaintiff of rights secured
under federal law.” Handy-Clay v. City of Memphis, 695 F.3d 531, 539 (6th Cir. 2012) (citing
Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010)). The district court here did
not address whether Wood adequately alleged state action, and the parties do not raise the issue on
appeal. We will assume that this requirement has been met. See Fritz, 592 F.3d at 723 (“[I]t does
not appear from the pleadings to be in dispute whether Defendant Hudson acted under color of
state law, and so it will be assumed that Plaintiff sufficiently pled state action for purposes of
evaluating the motion to dismiss.”). The critical question, therefore, is whether the 36th District
Court deprived Wood of her First Amendment rights when it demoted and then terminated her.
-5- No. 21-1313, Wood v. 36th District Court, et al.
To properly plead a First Amendment retaliation claim, a plaintiff must plead factual
allegations sufficient to establish that “(1) the plaintiff engaged in constitutionally protected
conduct; (2) an adverse action was taken against the plaintiff that would deter a person of ordinary
firmness from continuing to engage in that conduct; and (3) the adverse action was motivated at
least in part by the plaintiff’s protected conduct.” Handy-Clay, 695 F.3d at 539 (quoting Fritz,
592 F.3d at 723). Here, the district court concluded that the first element was not met and declined
to address the remaining elements, so we too focus our analysis on that first element.
The First Amendment protects public employees from adverse employment actions,
including retaliation, for their protected speech conduct. See Garcetti v. Ceballos, 547 U.S. 410,
417 (2006); Lane v. Franks, 573 U.S. 228, 235–36 (2014). There is “considerable value” in
protecting public employees’ speech, “[f]or ‘[g]overnment employees are often in the best position
to know what ails the agencies for which they work.’” Lane, 573 U.S. at 236 (second alteration in
original) (quoting Waters v. Churchill, 511 U.S. 661, 674 (1994) (plurality opinion)). Recognizing
“the government’s countervailing interest in controlling the operation of its workplaces,” id., there
must be “a balance between the interests of the [public 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 services it performs through its employees.” Pickering v. Bd. of Educ.,
391 U.S. 563, 568 (1968). For these reasons, a plaintiff must allege that she spoke as a citizen on
a matter of public concern before we can address actions that are alleged to be adverse and
improperly motivated.
The analysis turns on a two-part inquiry. See Boulton v. Swanson, 795 F.3d 526, 531–32
(6th Cir. 2015). First, the court must address the “threshold inquiry,” which contains two
components: (1) whether the employee spoke as a “citizen,” and (2) whether the employee spoke
-6- No. 21-1313, Wood v. 36th District Court, et al.
“on a matter of public concern.” Id. at 531 (quoting Garcetti, 547 U.S. at 418). If both components
of the threshold inquiry are satisfied, “then [the court] balance[s] the justifications for a speech
restriction against the employee’s free speech interest.” Id. (quoting Garcetti, 547 U.S. at 418).
The district court’s decision is properly based on the parties’ main dispute—whether Wood
was speaking as a citizen or as an employee when she spoke against the allegedly unconstitutional
arraignment processes and through her reports regarding the same. Thus, this case comes down to
whether Wood’s incidents of protected speech fell within the ordinary scope of her job duties.2
See Lane, 573 U.S. at 240 (noting that the key question in the citizen speech analysis is “whether
the speech at issue is itself ordinarily within the scope of an employee’s duties”).
Garcetti addressed how to determine when a public employee is speaking as a citizen.
Garcetti, 547 U.S. at 421. There, the Supreme Court explained the principle governing these
cases—“when public employees make statements pursuant to their official duties, the employees
are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate
their communications from employer discipline.” Id. The Court stated that the “controlling factor”
is whether the statements were “made pursuant to [the public employee’s] duties”; that is, whether
the statements were among the things that the employee “was employed to do.” Id. Though it did
not specify a framework for making this determination, it condemned reliance on “excessively
broad job descriptions” and cautioned against a focus on formal job descriptions because the
inquiry ought to be “a practical one.” Id. at 424–25.
2 In their briefs, both parties rely on documents and statutes that they argue evince Wood’s ordinary job duties. These documents were initially attached to the 36th District Court’s motion to dismiss and were not attached to Wood’s complaint. The district court provided no indication that it relied on the additional evidence, nor did it state that it was converting the motion to dismiss into a motion for summary judgment. “In general, the appellate court should have before it the record and facts considered by the District Court.” United States v. Barrow, 118 F.3d 482, 487 (6th Cir. 1997). Therefore, like the district court, we rely solely on the allegations set forth in the complaint in analyzing Wood’s First Amendment retaliation claim.
-7- No. 21-1313, Wood v. 36th District Court, et al.
“Determining whether speech is unprotected due to the Garcetti exception . . . has proven
to be challenging.” Boulton, 795 F.3d at 533. In Lane, the Supreme Court clarified the Garcetti
exception as follows: “Garcetti said nothing about speech that simply relates to public
employment or concerns information learned in the course of public employment.” Lane, 573
U.S. at 239. Rather, “[t]he critical question under Garcetti is whether the speech at issue is itself
ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.”
Id. at 240. According to the Supreme Court, the term “official responsibilities” includes the
responsibilities an employee undertook when she “went to work and performed the tasks [s]he was
paid to perform.” Id. at 239 (quoting Garcetti, 547 U.S. at 422).
In Boulton, we explained the effect of Lane on our precedent: “[a]fter Lane, the Garcetti
exception to First Amendment protection for speech residing in the phrase ‘owes its existence to a
public employee’s professional responsibilities’ must be read narrowly as speech that an employee
made in furtherance of the ordinary responsibilities of his [or her] employment.” 795 F.3d at 534.
In making this determination, we consider several “non-exhaustive factors,” including the
motivation behind the speech (i.e., whether the employee is speaking to further a job duty or an
unrelated goal), where the speech was made (i.e., was it on-the-clock in the workplace?), the
speech’s audience (i.e., was it within the chain of command?), and its general subject matter. See,
e.g., DeCrane v. Eckhart, 12 F.4th 586, 596 (6th Cir. 2021); Mayhew v. Town of Smyrna, 856 F.3d
456, 464 (6th Cir. 2017).
Wood alleges that she engaged in protected speech “when she notified [the 36th District
Court] of potential legal violations in the approval of warrants, conduct of felony arraignments,
-8- No. 21-1313, Wood v. 36th District Court, et al.
and the potential for litigation,” and when she “reiterated these potential legal violations in
preparing to defend against the ACLU litigation.”3
To guide our analysis, we first assess Wood’s allegations to define the ordinary scope of
her job duties. Wood alleges that as the Chief Magistrate Judge, she was “responsible for presiding
over a docket of cases as a Magistrate Judge.” In her capacity as Chief, she additionally “provided
oversight and guidance to the Court’s other Magistrate Judges”; “address[ed] potential legal and
civil rights violations she observed were occurring in the adjudication of criminal cases by Court
personnel”; and trained personnel, including other Magistrate Judges, on “topics such as how to
conduct legally proper misdemeanor and felony arraignment hearings, and small claims and
informal hearings.” Wood also alleges that as part of her role, she “notified the Court of several
other issues, particularly concerning areas where the Court’s practices fell short of legal
requirements.” To that end, she historically worked to help address those issues, resulting in some
“[p]olice officers and prosecutors . . . [becoming] extremely upset with the changes [Wood]
advocated.” We take these allegations to encompass the ordinary scope of her job duties.
Against this backdrop, we analyze each allegation of protected speech. First, Wood alleges
that she observed Court personnel approve search warrants that lacked “crucial legal
requirements.” She subsequently advised her fellow Magistrate Judges of the problem and notified
then-Chief Judge Blount of her concerns. Viewed in light of her allegations regarding her ordinary
job duties, Wood acted here pursuant to her duty, as she alleged, to “provide[] oversight and
guidance to the Court’s other Magistrate Judges” and her duties to “address potential legal and
civil rights violations” that she observed. Wood, moreover, reported the problem within her chain
3 At oral argument, counsel for Wood clarified that her complaint alleges that she was retaliated against only for her reports to the 36th District Court, and not for her conversation with her acquaintance about the ACLU’s plan to initiate litigation against the 36th District Court.
-9- No. 21-1313, Wood v. 36th District Court, et al.
of command, see DeCrane, 12 F.4th at 596, and the subject matter of her speech addressed
problems concerning her case work as a Magistrate Judge. This part of Wood’s speech constituted
speech as a government employee.
Next, Wood alleges that she notified then-Chief Judge Blount and the court administrator
that “the Court’s arraignment hearings were not being conducted in accordance” with state and
federal law. Wood contends that Judge Blount’s response—disclaiming that this was the “Court’s
problem” and instructing Wood not to raise “these concerns any further”—indicates that her
speech on this issue was not pursuant to her job duties. But Wood’s observations about the
practices of other Magistrate Judges fall precisely within her alleged job duties of providing
oversight and guidance to other Magistrate Judges and addressing potential legal and civil rights
violations by the 36th District Court. Likewise, even though other districts participated in some
arraignments, that too falls within her alleged duty to notify the Court of problematic practices.
To this end, Wood only raised these concerns with her supervisor within the chain of command,
further showing that she intended to speak in her capacity as an employee. See DeCrane, 12 F.4th
at 596. Here too, Wood’s speech was pursuant to her role as a government employee and not as a
citizen.
Wood alleges that a few months later, following her conversation with her acquaintance,
she informed then-Chief Judge Blount and her fellow Magistrate Judges of an imminent ACLU
lawsuit so that she and the Magistrates “could make educated determinations on whether and how
to entertain bond arguments at arraignment hearings.” In so alleging, Wood essentially concedes
that this report pertained to her own duties as a Magistrate Judge—that it was part and parcel of
her job in managing her docket to figure out how to evaluate bond arguments at arraignment
hearings in light of the impending litigation. That Judge Blount previously disclaimed Wood’s
-10- No. 21-1313, Wood v. 36th District Court, et al.
reports regarding the legality of the arraignment process does not help this second allegation
because the first incident addressed entirely different concerns pertaining to the oversight of other
judges. By contrast, here, Wood alleges that she was informing Judge Blount and her colleagues
of the litigation in order to determine how she should proceed in her role as Magistrate Judge in
light of the litigation. In other words, she was speaking to her colleagues and up the chain of
command to make a determination as to how she needed to manage her own docket of arraignment
hearings. Her speech here, therefore, falls squarely within the ordinary scope of her job duties.
Finally, Wood alleges that she engaged in protected speech when she met with then-Chief
Judge Blount, the Court Administrator, other Magistrate Judges, in-house legal counsel, and
external counsel regarding the ACLU litigation. At that meeting, she explained that she had
already reported the practices underpinning the ACLU’s suit. The problem with Wood’s
allegations here is that she attended those meetings not because she was attending as a citizen but
based on her responsibilities as Chief Magistrate Judge and because she was named as a defendant
in her official capacity in the litigation. As a result, her speech in these circumstances was again
pursuant to her role as an employee.
Wood also argues, pursuant to Lane, that her obligation to “participate truthfully” in the
ACLU litigation was protected as citizen speech. In Lane, however, the plaintiff was terminated
pursuant to her sworn testimony during a criminal trial to which she was subpoenaed. Lane, 573
U.S. at 231. There, the plaintiff’s obligation to provide truthful sworn testimony was independent
of her job duties. Id. at 238. By contrast, Wood does not allege that she had an independent
obligation to participate or speak at that meeting beyond her obligations to attend the meeting by
virtue of her job. Thus, the conduct alleged in her complaint is distinct from the obligation to
truthfully testify under oath described in Lane.
-11- No. 21-1313, Wood v. 36th District Court, et al.
In light of the foregoing, we find that each allegation of speech, read in light of the job
duties that Wood alleged in her complaint, was pursuant to her capacity as an employee, not a
citizen. Wood’s First Amendment retaliation claim fails the initial Garcetti analysis as a matter
of law because her speech was not protected citizen speech. As a result, we do not address and
take no position on Wood’s allegations concerning the remaining elements of her First Amendment
retaliation claim. The district court did not err in dismissing her complaint for failing to state a
claim.
III. CONCLUSION
We AFFIRM the district court’s judgment.
-12-