United States Court of Appeals Fifth Circuit F I L E D REVISED APRIL 8, 2004 March 23, 2004 IN THE UNITED STATES COURT OF APPEALS Charles R. Fulbruge III FOR THE FIFTH CIRCUIT Clerk
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No. 03-40140 ______________________
BEN MARKOS
Plaintiff-Appellant versus
CITY OF ATLANTA, TEXAS; MIKE DUPREE and MICHAEL AHRENS
Defendants-Appellees
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Appeal from the United States District Court for the Eastern District of Texas (USDC No. 5:02-CV-17) ___________________________________________________
Before KING, Chief Judge and DENNIS, Circuit Judge, and LYNN,* District Judge.
DENNIS, Circuit Judge:
Ben Markos appeals the district court’s order granting summary
judgment in favor of defendants City of Atlanta, Texas, Mike
Dupree, and Michael Ahrens on Markos’ First Amendment retaliatory
discharge claim. The district court dismissed this claim because
the court found that Markos’ speech did not involve a matter of
public concern. We disagree. Thus, we reverse and remand this
* District Judge of the Northern District of Texas, sitting by designation.
1 case to the district court for further proceedings consistent with
this opinion.
BACKGROUND
Ben Markos was a police sergeant for the City of Atlanta,
Texas. On February 25, 2001, Markos reported to Captain Steve
Mericle, an internal affairs officer, that Officer Richard Dyer had
used excessive force while arresting Ben Wiggins the previous
night. Chief Mike Dupree ordered Mericle to investigate the
incident. Mericle eventually concluded that Dyer had used
excessive force but that Markos and the other officers present were
innocent of any wrongdoing.
On October 15, 2001, Wiggins sued the City of Atlanta and
several officers, including Markos and Dyer, for damages sustained
during the incident. Markos informed Dupree that he was concerned
about the officers’ reputations and that he hoped that Dupree would
defend them. Two days later, Dupree distributed a memo to all
police department employees advising them “not to discuss this case
with ANYONE except for attorneys hired by Texas Municipal League
for our defense.”
Markos admits that, prior to the memo’s circulation, he had
spoken to a reporter at the Atlanta Citizens Journal (the
“Journal”) off the record. After the memo’s circulation, on
October 21, 2001, the Journal published an article on the Wiggins
incident stating that “Markos, when contacted by the Journal this
2 week, said that he had been ordered by the APD Chief of Police Mike
Dupree ‘not to talk to anyone’ regarding the incident.” On October
24, the Journal published another article, entitled “Wiggins
incident: Did police cover up?”, that contained several quotes
from Markos. Although Markos was initially reluctant to talk, he
changed his mind and granted an interview “[b]ecause my reputation
dictates how well I can do my job. With what was in the paper and
me not being able to defend myself since the city seems to choose
not to defend any of the officers, I have no choice.” In that
article, Markos made statements defending some of his fellow
officers1 and criticizing Dyer’s actions.2 Markos also stated that
Mericle had asked him to file two incident reports and that Dyer
wanted “one with what Richie Dyer did and one without what Richie
Dyer did.” Markos said that he responded that he would file two
reports but that they would both say the same thing. The article
further quoted Markos as saying, “In 20 years I’ve never been asked
to do two reports on anything I’ve ever done - especially leaving
1 “I want to state for the record that Officer Green and Officer Lawrence acted as professionally as any two officers I’ve ever seen in over 20 years ... not only did they act professionally before the arrest, but they went above that after they had observed what Richie Dyer did. Those officers did nothing wrong.” 2 “Mr. Dyer had no business doing what he did. I don’t care what Mr. Wiggins was charged with in the past. I don’t care what he was charged with in the present. Once a man is in custody you don’t abuse somebody. That’s not what our job is. Our job is to protect and serve the public.”
3 anything out of one and putting it in the other.” The Journal
article also reported that Markos had in fact submitted two
identical reports, both detailing Dyer’s actions.
After the article ran, Dupree suspended Markos with pay while
investigating Markos’ insubordination in agreeing to speak to the
reporter for the Journal. As punishment, Markos was permanently
demoted from Sergeant to Patrol Officer, placed on disciplinary
probation for ninety days, and suspended without pay for five days.
After the probationary period, Markos was fired; the stated reason
for this firing was Markos’ failure to issue traffic tickets.
Markos sued the City of Atlanta, Dupree, and Michael Aherns,
the City Manager of Atlanta, in January 2002 claiming that he was
retaliated against for exercising his First Amendment right to free
speech. The defendants moved for summary judgment on this claim
arguing that Markos’ speech did not involve a matter of public
concern.3 The district court agreed with the defendants and
granted summary judgment. Markos timely appealed.
ANALYSIS
To establish a First Amendment retaliatory discharge claim,
the plaintiff must prove that (1) he suffered an adverse employment
3 Markos also claimed that the defendants’ actions violated his due process rights in his employment as a police officer. The district court granted summary judgment in favor of the defendants, ruling that Markos had not alleged or presented evidence of either a liberty or property interest in his employment as a police officer. Markos has not appealed that ruling.
4 action, (2) his speech involved a matter of public concern, (3) his
interest in commenting on the matter of public concern outweighed
the defendant’s interest in promoting efficiency, and (4) his
speech was a substantial or motivating factor behind the
defendant’s actions. Harris v. Victoria Independent School
District, 168 F.3d 216, 220 (5th Cir. 1999). As the parties agree,
because the district court granted summary judgment against Markos’
retaliatory discharge claim on the second element, this appeal
focuses only on whether Markos’ speech involved a matter of public
concern.
Standard of Review
This court reviews a district court’s grant of summary
judgment de novo. Leasehold Expense Recovery, Inc. v. Mothers
Work, Inc., 331 F.3d 452, 455 (5th Cir. 2003). Whether the speech
at issue relates to a matter of public concern is a question of law
to be resolved by the court. Tompkins v. Vickers, 26 F.3d 603, 606
(5th Cir. 1994). Generally, the inquiry is whether the public
employee was speaking as a citizen upon matters of public concern
or as an employee upon matters only of personal interest. Harris,
168 F.3d at 221 (citing Connick v. Meyers, 416 U.S. 138, 147
(1982)). The existence of an element of personal interest on the
part of an employee does not prevent a finding that the speech as
a whole raises issues of public concern; but an employee cannot
transform a personal conflict into an issue of public concern
5 simply by arguing that individual concerns might have been of
interest to the public under different circumstances. Bradshaw v.
Pittsburgh Independent School District, 207 F.3d 814, 816 (5th Cir.
2000) (citations omitted).
Whether an employee’s speech addresses a matter of public
concern must be determined by the content, form, and context of a
given statement, as revealed by the whole record. Connick, 416
U.S. at 147-48; Tompkins, 26 F.3d at 606. These factors should be
considered as a package, and their significance will differ
depending on the circumstances of the particular situation. Teague
v. City of Flower Mound, 179 F.3d 377, 381 (5th Cir. 1999) (citing
Moore v. City of Kilgore, 877 F.2d 364, 370 (5th Cir. 1989)).
Markos argues that, based upon these three factors, his speech
addressed a matter of public concern. The defendants counter that
because Markos’ motivation in speaking was to protect his
reputation and the reputations of his fellow officers his speech
was private in nature and thus not deserving of protection.
Content
We will first review the content of Markos’ speech to
determine whether it was public or private. An examination of
Markos’ speech reveals that it was “mixed” in content - both public
and private. This court has often stated that allegations of
police misconduct and corruption are important matters of public
concern. See, e.g., Thompson v. City of Starkville, Mississippi,
6 901 F.2d 456, 463 (5th Cir. 1990) (Speech “complaining of misconduct
within the police department ... [is] speech addressing a matter of
public concern.”); Brawner v. City of Richardson, 855 F.2d 187,
191-92 (5th Cir. 1988) (Exposure of official misconduct, especially
within the police department, is generally of great consequence to
the public.); Branton v. City of Dallas, 272 F.3d 730, 740 (5th
Cir. 2001) (“There is perhaps no subset of ‘matters of public
concern’ more important than bringing official misconduct to
light.” (citing Davis v. Ector County, 40 F.3d 777, 782 (5th Cir.
1995))). Markos’ statements regarding Mericle’s request for two
incident reports – one with Dyer’s actions and one without Dyer’s
actions – involved allegations of a police cover up and
consequently addressed a matter of significant public concern.
But some of Markos’ comments also addressed matters of
personal interest. Statements made to exonerate one’s own
professional reputation address a matter of personal concern.
Bradshaw, 207 F.3d at 817. Thus, Markos’ statements defending his
own reputation are personal in nature. This court has also held
that speech on behalf of a coworker in an intra-office meeting
constituted personal speech. Fiesel v. Cherry, 294 F.3d 664, 668
(5th Cir. 2002). Based on Fiesel, the defendants argue that Markos’
statements protecting his coworkers also constitute personal
speech. While speech on behalf of a coworker would be private in
many situations, it is infused with an element of public interest
7 here because it assured the public of the trustworthiness of some
of its police officers. Regardless of the characterization of
Markos’ statements about his coworkers, the content of Markos’
speech on the whole was mixed – private and public.
Form
Realizing that it is not easy to break the public interest
analysis down into hermetic categories of content, form, and
context, Thompson, 901 F.2d at 462, the next step in the inquiry is
to ascertain whether the form of the speech in question was public
or private in nature. Publicization of the speech is a factor to
be weighed in determining whether the speech was of public concern.
Thompson, 901 F.2d at 466. The form of Markos’ speech was
quintessentially public as his comments appeared in the form of an
article in the local newspaper. Markos made his comments to a
newspaper reporter, and Markos’ statements make it clear that he
understood that his statements were to be used in a published
article.
The situation at hand contrasts starkly with other situations
in which this court has found that speech not intended for public
consumption was not protected. For example, in Terrell v. Univ. of
Texas System Police, 792 F.2d 1360 (5th Cir. 1986), Terrell’s boss
received an anonymous letter accompanied by photocopies of pages
from Terrell’s personal notepad. Id. at 1361. The notes were
critical of the boss’s job performance, and the boss eventually
8 terminated Terrell’s employment. Id. Terrell brought a suit
alleging retaliatory discharge. Id. This court held that
“Terrell’s personal notebook cannot serve as the basis for a claim
that he was fired for exercising his first amendment rights. He
made no effort to communicate the contents of the notebook to the
public, and the evidence does not suggest that he would have had
any occasion to do so.” Id. at 1362-63. Similarly, in Bradshaw,
the plaintiff, a school principal, sent three memoranda to the
school superintendent and the members of the Board of Trustees.
207 F.3d at 815. The memoranda related to controversy and
negotiations surrounding the renegotiation of Bradshaw’s contract.
Id. This court noted that Bradshaw did not publicly announce her
concerns but only outlined them in internal grievances related to
an employer-employee dispute. Id. at 817. This court stated that
this fact weighed in favor of a finding that Bradshaw’s speech was
not public in nature. Id. The facts and analyses from Terrell and
Bradshaw help illustrate, by contrast, the public nature of the
form of Markos’ speech as well as the importance of the form in
ascertaining whether speech is of public concern.
Context
Next, we must examine the context in which Markos’ speech was
made so that we can evaluate whether it indicates that Markos’
speech was of public concern. “[A] factor considered in
determining whether speech is on a matter of public concern is
9 whether the comments were made against a backdrop of widespread
debate in the community.” Harris, 168 F.3d at 222. Public
employees, by virtue of their public employment, may make valuable
contributions to public debate. Branton, 272 F.3d at 740.
Information regarding an attempted cover up by police is best
obtained from a department insider, such as Markos. In fact, by
the time Markos’ statements had been published, there had already
been a previous article published on this controversy. Thus,
Markos’ statements were made “in the context of a continuing
commentary that had originated in [a] public forum.” Tompkins, 303
F.3d at 607 (citing Brawner, 855 F.2d at 192).
Additionally, a journalist who desired this information for
the purpose of publication approached Markos. Two of our sister
circuits have found, and we agree, that the fact that the speaker
was approached by a journalist weighs in favor of a finding that
the speech involved a matter of public concern, even if the
plaintiff had a personal stake in the subject being discussed.
Rode v. Dellarciprete, 845 F.2d 1195, 1202 (3d Cir. 1988)
(“Dismissing [the public employee’s] speech as unprotected merely
because she had a personal stake in the controversy fetters public
debate on an important issue because it muzzles an affected public
employee from speaking out. Thus, we hold that when a public
employee participates in an interview sought by a news reporter on
a matter of public concern, the employee is engaged in the exercise
10 of a first amendment right to freedom of speech, even though the
employee may have a personal stake in the substance of the
interview.”); Matulin v. Village of Lodi, 862 F.2d 609, 613 (6th
Cir. 1988) (same). Because Markos’ statements were made against a
backdrop of public debate and Markos was approached by a reporter
who intended to use Markos’ statements in a published article, we
conclude that the context of Markos’ speech was also public in
nature.
Motivation
As noted above, the defendants argue that Markos’ speech was
primarily intended for the private purpose of protecting his
reputation and, based upon this court’s opinions in Teague and
Bradshaw, is thus not entitled to First Amendment protection. The
district court agreed, concluding that “Markos was speaking out to
protect his own reputation, not to advise the citizens of
improprieties at the department.” The district court focused much
of its analysis on Markos’ motivation without examining the Connick
factors in detail.
Bradshaw and Teague do not support the proposition that
motivation is the new litmus test for the matter of public concern
analysis, displacing the Connick factors. The general facts of
Bradshaw are outlined above. In Bradshaw, this court concluded
that “the content, form, and context of the memoranda show that
these were more of an effort by Mrs. Bradshaw to clear her name
11 rather than some dialogue on high school activity funds as she
would have this court believe.” 207 F.3d at 818. While this
statement does support the principle that an employee’s motivation
in speaking is relevant to the inquiry at hand, it is also
indicative of the full analysis of the content, form, and context
factors actually employed by the court in Bradshaw. It does not
stand for the proposition that motivation has supplanted the
Connick factors in the public interest inquiry.
Teague involved a lawsuit by two police officers who were
eventually terminated after filing an internal grievance against
the chief of police based on their suspicions that he had covered
up the wrongdoing of another officer. 179 F.3d at 379. The
defendants point out that this court stated that “[a]lthough
interspersed with apparently genuine concerns regarding police
wrongdoing, [the officer’s] grievances were primarily motivated by,
and primarily addressed, concerns particular to their private
interests.” Id. at 383-84.
But, as in Bradshaw, this court pursued a full content, form,
and context analysis in Teague. Although the court concluded that
the content at issue in Teague was “predominantly public,” the
court noted that the context of Teague’s grievance was private, an
employer-employee dispute, and that the grievance letter was
“undeniably private in form.” Id. at 383. Here, by contrast, the
context and form of Markos’ speech are unquestionably public. In
12 fact, the Teague court noted that this court elevated the roles of
context and form over content in Gillum v. City of Kerrville, 3
F.3d 117, 121 (5th Cir. 1993). Thus, the Teague court concluded
that “[t]aking these three factors together, and weighing the
latter two (context and form) more heavily as required by Gillum,
we conclude that the speech is not entitled to First Amendment
protection.” Id. at 382-83. As these excerpts illustrate, the
Teague court, like the Bradshaw court, did not analyze motivation
to the exclusion of applying the Connick test. Additionally, to
the extent that Teague focuses on context and form more than
content, its analysis is decidedly unhelpful to the defendants in
this case.
The analyses in Bradshaw and Teague are consistent with the
analysis this court employed in Thompson v. City of Starkville,
Mississippi, 901 F.2d 456 (5th Cir. 1990). In finding that a police
officer’s internal complaints alleging improprieties in the police
department would, if true, constitute speech on a matter of public
concern, id. at 467, this court noted that the existence of an
element of personal interest on the part of an employee in his or
her speech does not dictate a finding that the speech is not on a
matter of public concern. Id. at 463. As to using the employee’s
motivation as the sole test for whether speech addresses a matter
of public concern, the Thompson court referenced a portion of an
Eleventh Circuit decision, Kurtz v. Vickery, 855 F.2d 723, 727 (11th
13 Cir. 1988). Id. at 465 n.7. The Kurtz court stated that “focusing
solely on … the employee's motivation does not fully reflect the
Supreme Court's directive that the content, form, and context of
the speech must all be considered.” Id. at 727.
Markos’ statements do indicate that his motivation for coming
forward was to protect his own reputation as well as the
reputations of his fellow officers. As discussed above, to the
extent that Markos intended to clear his own reputation, his
motivation was private. And, again, while speaking out to defend
the reputation of coworkers would often be private, here Markos’
motivation for doing so contains an element of public interest
because he was assuring the public of the trustworthiness of a
number of its police officers. Of course, these motivations only
explain Markos’ statements criticizing Dyer and defending himself
and the other officers who were present; these motivations do not
explain why Markos would have gone on to give information regarding
an attempted cover up by the police department, which was the
primary focus of the article. It therefore follows that Markos’
motivations for speaking were mixed in the same manner as the
content of his speech.
In this case, we have a public employee speaking out about
alleged corruption in the police department, a subject undoubtedly
of public concern. The comments were published in the local
newspaper against a backdrop of brewing public controversy, and the
14 employee was approached by a reporter – not vice versa. In this
case, the fact that the content of the speech and Markos’
motivations were partially private is not enough to remove this
speech from the realm of public concern. Again, the multi-factor
analysis outlined in Connick is factually intensive, and in this
case the balance tips in favor of a finding of public concern.
Thus, the district court erred in granting summary judgment in
favor of the defendants.
CONCLUSION
We find that Markos’ speech involved a matter of public
concern. The district court’s order granting summary judgment is
REVERSED, and this case is REMANDED for proceedings consistent with