RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Rodgers v. Banks No. 01-4034 ELECTRONIC CITATION: 2003 FED App. 0329P (6th Cir.) File Name: 03a0329p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: William B. Singer, Cincinnati, Ohio, for FOR THE SIXTH CIRCUIT Appellant. Anne E. Thomson, OFFICE OF THE _________________ ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: William B. Singer, Cincinnati, Ohio, for CAROLYN T. RODGERS , X Appellant. Anne E. Thomson, OFFICE OF THE Plaintiff-Appellant, - ATTORNEY GENERAL, Columbus, Ohio, for Appellee. - - No. 01-4034 _________________ v. - > OPINION , _________________ ELIZABETH BANKS , - Defendant-Appellee. - CLAY, Circuit Judge. Plaintiff Carolyn T. Rodgers N brought this action pursuant to 42 U.S.C. § 1983, alleging, inter alia, that Defendant wrongfully terminated Plaintiff from her employment in violation of Plaintiff’s First Amendment right to free speech. Plaintiff appeals from the Appeal from the United States District Court district court’s granting of Defendant Elizabeth Banks’ for the Southern District of Ohio at Cincinnati. motion for summary judgment and dismissal of Plaintiff’s No. 99-00780—Susan J. Dlott, District Judge. case. We hold that although the Eleventh Amendment bars Plaintiff from seeking money damages from Defendant, Argued: March 12, 2003 Plaintiff produced sufficient evidence of a First Amendment retaliation claim to survive summary judgment, and that the Decided and Filed: September 17, 2003 district court’s dismissal of this claim was inappropriate. We therefore REVERSE the judgment of the district court. Before: MOORE and CLAY, Circuit Judges; LAWSON, District Judge.* I. Plaintiff was employed by the Pauline Warfield Lewis Center (“Lewis Center”), an Ohio state mental hospital in Cincinnati. She began her employment at the Lewis Center as a social worker and was eventually promoted to Director of Quality Management, a position designated in the unclassified civil service of Ohio. According to Plaintiff, the “principal * The Honorable David M. Lawson, United States District Judge for task” of this position was to “prepare the Center for surveys the Eastern D istrict of M ichigan, sitting by de signation.
1 No. 01-4034 Rodgers v. Banks 3 4 Rodgers v. Banks No. 01-4034
by the Joint Commission on Accreditation of Hospitals SUBJECT: Survey Preparedness [JCAH] and other surveying organizations.” (J.A. at 7.) Patient Rights and Ethics Defendant was the CEO of the Lewis Center. Plaintiff reported to Alice Gray, Director of Support Services, and In the Supplemental Recommendations last survey, we Gray reported to Defendant. had a recommendation regarding privacy for patients. This area will be scrutinized in the coming survey with On January 21, 1999, Defendant revoked Plaintiff’s a risk of a Type I. unclassified appointment. In a memo informing Plaintiff of the revocation, Defendant stated, “I no longer have Patient visiting in privacy is hindered by lack of space-- confidence in your ability to function as the hospitals [sic] especially on Units 1 through 6. There are the dining Quality Management Director, your verbal and written room and two days [sic] rooms. The day rooms are also communication skills are not conducive to a cooperative work used for group process--we have worked very hard the environment.” (J.A. at 53.) last three years to have more groups on the units.
Specifically, the dispute concerns various statements In doing a walk-around during the Mock Survey, I was Plaintiff made during her tenure at the Lewis Center. amazed to see that a patient/program/visiting area had Defendant maintains that Plaintiff’s manner and method of been turned into an MD’s office on Unit 4. communication had offended and inflamed her coworkers and subordinates at the Lewis Center. In particular, Defendant - The forensic units need more space for patients who highlighted an incident which began when one of the Lewis have low level privileges and cannot leave the unit. Center’s psychiatrists requested that his office be moved to one of the patient units. Defendant granted the psychiatrist’s - The nature of Forensic patients on a confined unit request, ostensibly to encourage doctors to maintain closer would indicate a need for as much “personal space” as physical proximity to their patients. Plaintiff, who apparently possible. was concerned that the psychiatrist’s move had compromised patient privacy in the unit, sent a memorandum to Defendant, - This sets a precedent for the other psychiatrists to have dated August 7, 1998, in which she discussed the allocation “special” needs that rationalize taking large patient and of space in the Lewis Center’s psychiatric units as it related visiting areas for office space. to an upcoming JCAH survey. We reproduce the Dr. Natarajan - Unit 1 memorandum below in its entirety: Dr. Mannava - Unit 2 DATE: August 7, 1998 Dr. Holtman - Unit 5 The 1199 psychiatrist on Unit 5 TO: L. Banks, CEO Dr. Rodgers Wilson on Unit 6
FROM: C. Rodgers, LISW In the new architectural plan there may be a space for the Director, Quality Management unit psychiatrist, and no one is denying that this would be optimal. However, the patient’s needs, including space for visits with families and privacy for visiting should be the most important factor. No. 01-4034 Rodgers v. Banks 5 6 Rodgers v. Banks No. 01-4034
R/pp/daw Discovery ensued, during which the depositions of Plaintiff and Defendant were taken. During Defendant’s deposition, cc: Alice Gray she was asked what factors contributed to Plaintiff’s Paul Blackwell termination, Defendant pointed to, among other incidents, M. Russ Plaintiff’s August 7, 1998 memo regarding the upcoming JCAH survey and patient privacy. Defendant characterized (J.A. at 139.) the memo as offensive, overly critical, and inaccurate. According to Defendant, other communications Defendant After discovery, Defendant filed a motion for summary considered inappropriate included (1) arguing with the judgment on both of Plaintiff’s claims. Plaintiff filed a housekeeping director about the cleanliness of the restrooms memorandum in opposition, at which time she withdrew the in front of other Lewis Center employees, (2) arguing with Title VII “reverse” racial discrimination claim but opposed another employee and then detailing the incident in an e-mail summary judgment on her §1983 First Amendment claim. In to the Lewis Center’s director of operations, and (3) support of her First Amendment claim, Plaintiff further presenting a quality management report at an administrative asserted that her termination was motivated by the August 7, meeting in a “very angry and hostile manner” and accusing 1998 memorandum she sent to Defendant. management of not caring about quality standards. Plaintiff acknowledges that these various “instances of On August 23, 2001, the district court granted summary communication” occurred (J.A. at 10-11), but she contests the judgment to Defendant, reasoning that Plaintiff’s August 7, manner and disruptive nature of her statements as 1998 memo to Defendant did not touch upon a matter of characterized by Defendant. public concern and, therefore, Plaintiff’s First Amendment claim necessarily failed. Plaintiff’s timely appeal followed. Following her termination, Plaintiff filed a complaint with the district court, alleging “reverse” racial discrimination in II. violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1). In this complaint she requested Defendant first argues that, pursuant to the Eleventh injunctive relief ordering reinstatement of Plaintiff to her job, Amendment, she is immune from Plaintiff’s § 1983 action to as well as compensatory and punitive damages.1 Plaintiff the extent that the lawsuit seeks money damages. This subsequently filed an amended complaint, alleging that argument presents a legal question, which we review de novo. Defendant wrongfully terminated her for exercising her First Timmer v. Mich. Dep’t of Commerce, 104 F.3d 833, 836 (6th Amendment right to free speech, and requesting “damages Cir. 1997) (citing Williams v. Kentucky, 24 F.3d 1526, 1543 and other relief” provided under 42 U.S.C. § 1983. (J.A. at (6th Cir. 1994)). We agree with Defendant that, on this 10-12.) record, the Eleventh Amendment precludes Plaintiff from seeking money damages from Defendant. In general, “[s]tate governments and entities that can be 1 considered arms of the state are immune from suits for money Although both P laintiff and D efendant are w hite females, Plaintiff alleged in her original complaint that most of the employees at the Lewis damages under the Eleventh Amendment.” Alkire v. Irving, Center were b lack and that she, as a “m inority” in this employment 330 F.3d 802, 814 (6th Cir. 2003) (citing Brotherton v. setting, experienced emp loyment discrim ination. No. 01-4034 Rodgers v. Banks 7 8 Rodgers v. Banks No. 01-4034
Cleveland, 173 F.3d 552, 560 (6th Cir. 1999)). Specifically, her “official capacity as the representative of the State of Ohio the Eleventh Amendment bars § 1983 suits seeking money department of Mental Health.” (J.A. at 6 ¶ 2.) damages against states and against state employees sued in their official capacities. Will v. Mich. Dep’t of State Police, We do note that the original complaint only alleged a Title 491 U.S. 58, 66 (1989). Therefore, § 1983 plaintiffs should VII violation, and the complaint was subsequently amended “set forth clearly in their pleading that they are suing the state to add the § 1983 First Amendment claim. Although the defendants in their individual capacity for damages, not amended complaint presented an opportunity for Plaintiff to simply their capacity as state officials.” Shepherd v. clarify the issue, it failed to provide sufficient notice that Wellman, 313 F.3d 963, 967 (6th Cir. 2002) (quoting Wells v. Defendant was being sued in her individual capacity, as Brown, 891 F.2d 591, 593 (6th Cir. 1989) (internal quotation required by Moore. The amended complaint’s caption still marks omitted)). lists Defendant’s name and official title, and the amended complaint incorporates by reference paragraphs 2-7 of the However, a plaintiff’s failure to explicitly state “individual original complaint, including the statement that Defendant capacity” in the complaint is not necessarily fatal to the was being sued in her official capacity. The amended lawsuit. Rather, in this situation we employ a “course of complaint is otherwise silent as to whether Defendant is being proceedings” test to ascertain whether a § 1983 defendant was sued in her official or individual capacity. Moreover, on notice that the plaintiff intended to hold him or her Defendant has not moved for summary judgment on the issue personally liable, notwithstanding the plaintiff’s failure to of qualified immunity, yet another indication that Defendant provide explicit notice. Id. at 967-68 (citing Moore v. City of was not adequately notified that she was being sued in her Harriman, 272 F.3d 769, 772 (6th Cir. 2001) (en banc)). individual capacity. See Moore, 272 F.3d at 772 n.1. Pursuant to this inquiry, “we consider the nature of the plaintiff’s claims, requests for compensatory or punitive Having applied the course of proceedings test, we hold that damages, and the nature of any defenses raised in response to insufficient indicia exists in the original complaint and the complaint, particularly claims for qualified immunity, to amended complaint suggesting that Defendant was on notice determine whether the defendant had actual knowledge of the that she was being sued in her individual capacity. Therefore, potential for individual liability.” Id. at 968 (citing Moore, the Eleventh Amendment bars Plaintiff’s suit to the extent 272 F.3d at 772 n.1). Additionally, we “consider whether that she seeks money damages. Plaintiff’s claim is hereafter subsequent pleadings put the defendant on notice of the limited to seeking other relief arising under 42 U.S.C. § 1983. capacity in which he or she is being sued.” Id. (citing Moore, We will now proceed to the merits of Plaintiff’s First 272 F.3d at 772 n.1). Amendment claim.
Like the plaintiff in Moore, Plaintiff did request III. compensatory and punitive damages in the original complaint, which we have held provides some notice of her intent to hold We review a district court’s order granting summary Defendant personally liable. See Moore, 272 F.3d at 772 n.1. judgment de novo. Johnson v. Univ. of Cincinnati, 215 F.3d However, unlike the plaintiff in Moore, the caption on 561, 572 (6th Cir. 2000). Summary judgment is appropriate Plaintiff’s complaint listed Defendant’s name and her official where there is no genuine issue as to any material fact and the title, and specifically stated that Defendant was being sued in moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). No. 01-4034 Rodgers v. Banks 9 10 Rodgers v. Banks No. 01-4034
The party bringing the summary judgment motion has the officials acting under color of law. Lomaz v. Hennosy, 151 initial burden of informing the district court of the basis for its F.3d 493, 500 (6th Cir. 1998). To assert a valid § 1983 cause motion and identifying portions of the record that demonstrate of action, a plaintiff must demonstrate that “1) [the plaintiff] the absence of a genuine dispute over material facts. Mt. was deprived of a right secured by the Constitution or laws of Lebanon Pers. Care Home, Inc. v. Hoover Universal, Inc., the United States and that 2) the deprivation was caused by 276 F.3d 845, 848 (6th Cir. 2002). The moving party may someone acting under color of state law.” Perry v. McGinnis, satisfy this burden by presenting affirmative evidence that 209 F.3d 597, 603 (6th Cir. 2000) (citing West v. Atkins, 487 negates an element of the non-moving party’s claim or by U.S. 42, 48 (1988)). The parties dispute only the first issue, demonstrating “an absence of evidence to support the i.e., whether Plaintiff suffered a deprivation of a right secured nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. by the Constitution or federal law. Plaintiff bases her § 1983 317, 325 (1986). If the moving party satisfies this initial claim on Defendant’s decision to terminate Plaintiff, allegedly burden, the non-moving party must then “set forth the specific in retaliation for Plaintiff’s exercise of her First Amendment facts showing that there is a genuine issue for trial.” Fed. R. right to speech. Civ. P. 56(e). That is, the non-moving party must “make a showing sufficient to establish the existence of an element While public employees may not be required to sacrifice essential to that party’s case, and on which that party will bear their First Amendment free speech rights in order to obtain or the burden of proof at trial.” Celotex, 477 U.S. at 322. continue their employment, Rankin v. McPherson, 483 U.S. 378, 383 (1987) (citing Perry v. Sindermann, 408 U.S. 593, In evaluating the evidence, we “draw all reasonable 597 (1972)), a state is afforded greater leeway to control inferences therefrom in a light most favorable to the speech that threatens to undermine the state’s ability to non-moving party.” PDV Midwest Ref., L.L.C. v. Armada Oil perform its legitimate functions. See United States v. Nat’l & Gas Co., 305 F.3d 498, 505 (6th Cir. 2002) (citing Treasury Employees Union, 513 U.S. 454, 475 n.21 (1995). Williams v. Int’l Paper Co., 227 F.3d 706, 710 (6th Cir. Therefore, in determining whether a public employer has 2000)). However, “[t]he mere existence of a scintilla of violated the First Amendment by firing a public employee for evidence in support of the plaintiff’s position will be engaging in speech, the Supreme Court has instructed courts insufficient” to survive summary judgment; rather, “there to engage in a three-step inquiry. First, a court must ascertain must be evidence on which the jury could reasonably find for whether the relevant speech addressed a matter of public the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, concern. See Connick v. Myers, 461 U.S. 138, 143 (1983). If 252 (1986). the answer is yes, then the court must balance the interests of the public employee, “as a citizen, in commenting upon Plaintiff argues on appeal that the district court erred in matters of public concern and the interest of the State, as an granting Defendant’s motion for summary judgment because employer, in promoting the efficiency of the public services the evidence in the record, if believed, establishes that it performs through its employees.” Pickering v. Bd. of Defendant violated Plaintiff’s First Amendment rights. We Educ., 391 U.S. 563, 568 (1968). Finally, the court must agree with Plaintiff and therefore reverse the district court’s determine whether the employee’s speech was a substantial or dismissal of this claim. motivating factor in the employer’s decision to take the adverse employment action against the employee. Mt. Section 1983 provides a federal cause of action for the Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, violations of federal statutory or constitutional rights by state 287 (1977); Perry, 209 F.3d at 604. No. 01-4034 Rodgers v. Banks 11 12 Rodgers v. Banks No. 01-4034
A. Prong One: A Matter of Public Concern ‘quintessential employee beef’ of incompetent management”) (quoting Barnes v. McDowell, 848 F.2d 725, 735 (6th Cir. The threshold inquiry is whether Plaintiff’s speech 1988) (internal citation in Barnes omitted)). addressed a matter of public concern. Rankin, 483 U.S. at 384; Dambrot v. Cent. Mich. Univ., 55 F.3d 1177, 1186 (6th Additionally, in distinguishing between matters of public Cir. 1995). We review the district court’s determination on and private concern, we focus not on “what might incidentally this issue de novo. Dambrot, 55 F.3d at 1186 (citations be conveyed by the fact that the employee spoke in a certain omitted). Our inquiry in this regard requires us to consider way, [but] the point of the speech in question.” Dambrot, 55 “the content, form, and context of a given statement, as F.3d at 1187 (quoting Linhart v. Glatfelter, 771 F.2d 1004, revealed by the whole record.” Connick, 461 U.S. at 147-48. 1010 (7th Cir. 1985)) (alteration in original and internal quotation marks omitted). Thus, “[c]ontroversial parts of Matters of public concern include speech that “relat[es] to speech advancing only private interests do not necessarily any matter of political, social, or other concern to the invoke First Amendment protection.” Id. However, the community.” Connick, 461 U.S. at 146. In other words, we employee’s entire speech does not have to focus on matters must determine whether the relevant speech “involves ‘issues of public concern, as long as some portion of the speech does about which information is needed or appropriate to enable so. Rahn v. Drake Ctr., Inc., 31 F.3d 407, 412 (6th Cir. 1994) the members of society to make informed decisions about the (citing Connick, 461 U.S. at 146-49). operation of their government.’” Brandenburg v. Hous. Auth. of Irvine, 253 F.3d 891, 898 (6th Cir. 2001) (quoting In granting summary judgment to Defendant on Plaintiff’s McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir. First Amendment claim, the district court determined that 1983)). Thus, speech falling into this category includes Plaintiff’s August 7, 1998 memo did not relate to an issue of informing the public that a governmental entity failed to public interest or concern.2 The district court’s entire analysis “discharg[e] its governmental responsibilities” or “bring[ing] of this inquiry was as follows: to light actual or potential wrongdoing or breach of public trust [on the part of a governmental entity or any officials The Court does not find this letter to be of public therein].” Connick, 461 U.S. at 148. concern. “First Amendment protection extends to a public employee’s speech when he speaks as a citizen on Along these lines, the Supreme Court has emphasized that a matter of public concern, but does not extend to speech the employee must be speaking as a citizen, not as an made in the course of acting as a public employee.” employee for personal interest purposes. Connick, 461 U.S. Thomson v. Scheid, 977 F.2d 1017, 1021 (6th Cir. 1992). at 146-47. Thus, “internal personnel disputes or complaints The Court finds this letter to address internal [Lewis about an employer’s performance” do not touch upon a matter Center] issues that were of concern to Rodgers as of public concern and therefore fall outside the scope of First Director of Qualify Management, not as a citizen. As the Amendment-protected speech. Brandenburg, 253 F.3d at 898; see also Jackson v. Leighton, 168 F.3d 903, 910-11 (6th Cir. 1999) (holding that the state hospital employee’s statement advocating “that a letter be sent to the Board of 2 Trustees declaring the lack of confidence with [the Because the district court fo und that Plaintiff failed to m eet this administrator] was nothing more than an example of the thresho ld issue, it declined to reach the second and third prongs of the inquiry. No. 01-4034 Rodgers v. Banks 13 14 Rodgers v. Banks No. 01-4034
letter does not address a matter of public concern, this is necessarily precluded from enjoying First Amendment Court’s inquiry is at an end. protection. Rather, Connick held that a court’s inquiry should not focus on who made the statement, but rather on the point (J.A. at 17.) We disagree with the district court’s reasoning, of the speech itself. because this narrow interpretation of what speech addresses a public concern misinterprets the guidelines enunciated by Nevertheless, the district court relied on one sentence found the Supreme Court in Connick. in our decision in Thomson v. Scheid, 977 F.2d 1017 (6th Cir. 1992), to wit, “First Amendment protection extends to a In Connick, 461 U.S. at 140-41, a district attorney proposed public employee’s speech when he speaks as a citizen on a to transfer Sheila Myers, an assistant district attorney. Myers matter of public concern, but does not extend to speech made strongly opposed the transfer and expressed her opposition to in the course of acting as a public employee.” Id. at 1020. several supervisors. She then prepared and distributed a Such reliance was in error. questionnaire to other assistant district attorneys in the office, soliciting their views on “office transfer policy, office morale, First of all, a review of the facts in Thomson reveal that the the need for a grievance committee, the level of confidence in Thomson court did not draw the narrow boundaries the supervisors, and whether employees felt pressured to work in district court attributed to it. In Thomson, the plaintiff was political campaigns.” Id. at 141. Perceiving the questionnaire hired by the county to investigate suspected fraud by the dissemination as insubordination, the district attorney fired county commissioner. During the course of his investigation, Myers. In holding that Myers’ First Amendment rights were the plaintiff spoke with his supervisors about his desire to file not violated, the Supreme Court emphasized that “when a formal charges against the county commissioner, but the public employee speaks not as a citizen upon matters of supervisors warned the plaintiff not to proceed without public concern, but instead as an employee upon matters only following the established department policies and procedures. of personal interest, absent the most unusual circumstances, In the plaintiff’s subsequent lawsuit, he pointed to this a federal court is not the appropriate forum in which to review conversation with his supervisors and alleged that he was the wisdom of a personnel decision taken by a public agency retaliated against for the statements he made during that allegedly in reaction to the employee’s behavior.” Id. at 147. conversation. Thomson began by observing that “[n]ot all The Court held that, aside from one question about pressure matters discussed within a government office are of public from the district attorney to work on political campaigns, the concern, and thus internal office communication does not contents of the questionnaire were “mere extensions of necessarily give rise to a constitutional claim.” Id. at 1020- Myers’ dispute over her transfer” and thus did not involve 21. Thomson then examined the speech at issue and matters of public concern. Id. at 148. In so holding, the concluded that the conversation concerned how the plaintiff Court reasoned that the questionnaire did not attempt to would proceed with his investigation, and that the plaintiff “evaluat[e] the performance of the District Attorney as an was not speaking out in that conversation about a topic of elected official,” inform the public that the district attorney’s public concern, for instance, whether or not an investigation office was failing to discharge its governmental should proceed. In so doing, Thomson correctly applied the responsibilities, or “bring to light actual or potential principle that a conversation generally pertaining to an issue wrongdoing or breach of public trust” occurring in that office. of public concern (in Thomson, the investigation of allegedly Id. At no point in Connick did the Supreme Court suggest fraudulent activity) does not automatically convert all that an employee’s speech made in the course of employment statements made in that conversation into First-Amendment- No. 01-4034 Rodgers v. Banks 15 16 Rodgers v. Banks No. 01-4034
protected speech. Rather, the First Amendment inquiry Even more recently we have expressly eschewed applying requires us to examine the point of the speech in question and a “course of employment” gloss on the Connick analysis. In determine whether the point advances a public or private Cockrel v. Shelby County School District, 270 F.3d 1036 (6th interest. Dambrot, 55 F.3d at 1187. Cir. 2001), a Kentucky elementary school teacher was fired for inviting an actor to discuss the environmental benefits of Thus, the one sentence in Thomson on which the district industrial hemp, a substance that was illegal in the state, with court relied –“First Amendment protection extends to a public her class. In determining that the speech pertained to a matter employee’s speech when he speaks as a citizen on a matter of of public concern, we rejected holdings from the Fourth and public concern, but does not extend to speech made in the Fifth Circuits that “a teacher, in choosing what he will teach course of acting as a public employee,” id. at 1021–cannot his students, is not speaking as a citizen, but rather as an properly be read in isolation, for it could mislead courts into employee on matters of private interest.” Id. at 1051 (citing believing that an employee who speaks out about a matter of Boring v. Buncombe County Bd. of Educ., 136 F.3d 364, 368- public concern, while in the course of his or her employment, 69 (4th Cir. 1998) (en banc) and Kirkland v. Northwide is never entitled to First Amendment protection. Such a Indep. Sch. Dist., 890 F.2d 794, 800 (5th Cir. 1989)). We proposition is incorrect.3 reasoned that such an approach “essentially gives a teacher no right to freedom of speech when teaching students in a Our subsequent First Amendment jurisprudence further classroom, for the very act of teaching is what the employee confirms that we have never applied such a narrow is paid to do,” and that “[i]f the Fourth and Fifth Circuits’ interpretation of Connick. In Charvat v. Eastern Ohio interpretation of Connick were correct, then any time a public Regional Wastewater Authority, 246 F.3d 607 (6th Cir. 2001), employee was speaking as an employee . . . the speech at an employee brought suit, claiming he was fired for reporting issue would not be protected.” Id. at 1051-52. We therefore violations of environmental regulations. We held that the concluded that the content of the teacher’s speech touched employee’s speech related to a matter of public concern, even upon a matter of public concern, even though she was though the employee made the relevant statements in his role speaking in her role as a school employee at the time. Id. at as an employee and the speech was not communicated to the 1052.4 public. Id. at 617. Thus, in analyzing whether an employee’s speech touches upon a matter of public concern, we consistently have 3 W e previously have clarified that Thomson does not stand for the observed the dichotomy Connick presented: speaking as a proposition that the district court attributed to it. In Williams, 24 F.3d at citizen (albeit in the employee role) versus speaking as an 1530, the plaintiff spoke out in a meeting of office managers against employee for personal interest. As Connick emphasized, the illegal political patronage emp loyment prac tices and later advocated the dismissal of a state political appointee who she be lieved was improperly using government resources to conduc t private business. The plaintiff 4 subsequently was demoted, and she brought a § 1983 action against the Mo reover, other circuits have rejected the broader interpretation of defenda nts. Id. Relying on Thomson, the defendants argued that her Connick emp loyed by the d istrict court below. See, e.g., Kennedy v. speech was not protected because she was speaking as an emp loyee. Id. Tangipahoa Parish Libra ry Bd . of Co ntrol, 224 F.3d 3 59 (5th Cir. 2000); at 153 5. W e disag reed, reasoning that Thomson merely drew a distinction Lew is v. Cowen, 165 F.3d 154 (2d Cir. 1999); Hulbert v. Wilhelm, 120 between “[d]iscussions about office policy and job duties,” which F.3d 648 (7th C ir. 199 7); Azzaro v. County of Allegheny, 110 F.3d 968 generally “address m atters of only private concern,” and other speech (3d Cir. 1997) (en banc); Int’l Soc’y for Krishna Consciousness, Inc. v. which “addresses matters of great public concern.” Id. Lee, 925 F.2d 576 (2d Cir. 19 91), aff’d, 505 U.S. 672 (1992). No. 01-4034 Rodgers v. Banks 17 18 Rodgers v. Banks No. 01-4034
focus of the speech is on the point of the speech as opposed The memo then listed three reasons as to why this conversion to the role of the speaker in saying it. See 461 U.S. at 148-49. was not a good decision. The first two reasons were Having concluded that the district court inappropriately particularly patient-oriented (the forensic units needed more interpreted Thomson in adjudicating this case, we now will space for patients who could not leave the unit and such analyze Plaintiff’s August 7, 1998 memo to determine if the patients needed as much “personal space” as possible), and speech therein merits First Amendment protection. the last reason was less patient-oriented (such a practice set a Specifically, we will consider (1) the point or focus of the precedent for other psychiatrists to use scarce patient space). speech in question and (2) whether the point “relat[es] to any The memo concluded by emphasizing that “the patient’s matter of political, social, or other concern to the needs . . . should be the most important factor.” (J.A. at 139.) community.” Id. at 146. Although Plaintiff’s underlying motive in writing the memo might have been to complain about incompetent management, Citing Rahn, 31 F.3d at 412, as support, Defendant argues our duty is not to discern her underlying motive, but rather to that the point of Plaintiff’s August 7, 1998 memo was to evaluate her point as it is presented in the speech. Chappel v. discuss management incompetency in allocating hospital Montgomery County Fire Prot. Dist. No. 1, 131 F.3d 564, space and to complain about psychiatrists usurping patient 575-76 (6th Cir. 1997). Plaintiff’s point, as we view the space; therefore, Defendant contends, the indirect references memo’s contents, was to call Defendant’s attention to what to patient privacy did not constitute a matter of public Plaintiff perceived as a disregard of patient privacy at the concern. Defendant’s reliance on Rahn is misplaced, and her Lewis Center, not to complain about management or other characterization of Plaintiff’s August 7, 1998 memo is internal disputes. erroneous. In Rahn, the plaintiff-nurse organized a committee and disseminated a press release stating various employment- Furthermore, the focus of Plaintiff’s memo pertained to a related grievances about new work rules, and suggesting that matter of political, social, or other concern. The parties do the rules could adversely affect patient care. Id. at 410-11. not dispute that the JCAH’s finding in its previous survey that However, we found that the point of the plaintiff’s press the Lewis Center had failed to provide adequate patient space release was to air employment-related grievances, the fleeting and/or privacy constituted a deficiency, or that a finding of a reference to patient care in the press release notwithstanding. continuing deficiency by JCAH could mean eventual Id. at 412-13. decertification for the hospital. If the Lewis Center was in danger of being decertified, this would be an indication that In contrast to the focus of the press release in Rahn, the the hospital (an arm of the state of Ohio) was operating with focus of Plaintiff’s August 7, 1998 memo is on patient care. substandard care for its patients. The quality of patient care Plaintiff’s memo described its purpose as “Survey in state hospitals presents an issue of public concern. See Preparedness” and “Patient Rights and Ethics.” The memo Jackson, 168 F.3d at 910 (holding that an employee’s explained that the Lewis Center would be subject to an statements about a proposal to merge the state medical college upcoming JCAH survey, and that the last survey conducted with a public hospital constituted a public concern because there had found a deficiency at the Lewis Center regarding “the continued existence of [the medical college] was patient privacy. Plaintiff’s memo then commented that important to the locality due to the fact that [the medical patient privacy was hindered by a lack of space and that college] provide[d] health care to area residents” and further Plaintiff was “amazed” to see that some of that scarce space reasoning that the “‘quality, availability, and cost of health had been converted into a psychiatrist office. (J.A. at 139.) care are among the most important and debated issues of our No. 01-4034 Rodgers v. Banks 19 20 Rodgers v. Banks No. 01-4034
time’”) (quoting U.S. Healthcare, Inc. v. Blue Cross of expression,” as well as “the context in which the dispute Greater Philadelphia, 898 F.2d 914, 937 (3d Cir.1990).5 arose.” Rankin, 483 U.S. at 388 (citations omitted). Defendant bears the burden of demonstrating that legitimate Therefore, drawing all reasonable inferences from the grounds existed justifying the termination. Id. (citing evidence in a light most favorable to Plaintiff, Williams, 227 Connick, 461 U.S. at 150). F.3d at 710, we hold that Plaintiff has established the threshold requirement that the contents of her August 7, 1998 Defendant argues that Plaintiff’s memo was “disruptive, memo addressed a matter of public concern. inflammatory and interfered with working relationships at the Lewis Center,” and therefore the Lewis Center’s interest in B. Prong Two: A Balancing of the Parties’ Interests promoting its efficiency overrode Plaintiff’s First Amendment interests. (Defendant’s Br. at 20.) Plaintiff counters that Because Plaintiff has successfully established that her Defendant has identified no evidence that Plaintiff’s memo speech touched upon an issue of public interest or concern, negatively impacted (or might have negatively impeached) we now must balance Plaintiff’s interest, as a citizen, in the smooth operation of the Lewis Center. making her speech against Defendant’s interest, “as an employer, in promoting the efficiency of the public services” We first note that Plaintiff’s memo, on its face, does not performed at the Lewis Center. Rankin, 483 U.S. at 388 appear to be particularly inflammatory. Although the memo (quoting Pickering, 391 U.S. at 568). is arguably critical of Defendant’s decision to use patient space for doctor’s offices, no abusive language is apparent We previously have observed that in balancing an and we do not discern any exceptionally insulting aspect of its employee’s and an employer’s respective interests, we presentation. Defendant notes that Dr. Stewart Harris, the “should consider whether an employee’s comments psychiatrist who was referred to in the August 7, 1998 memo meaningfully interfere with the performance of her duties, by his union affiliation (i.e., as the “1199 psychiatrist”), filed undermine a legitimate goal or mission of the employer, a grievance complaining of the memo’s designation of him in create disharmony among co-workers, impair discipline by this regard. However, other evidence in the record reflects superiors, or destroy the relationship of loyalty and trust that the Lewis Center fired Dr. Harris shortly thereafter for required of confidential employees.” Williams, 24 F.3d at alleged sexual harassment, and there appears to be some sort 1536 (citations omitted). Relevant factors in this regard of history of acrimony between Dr. Harris and the hospital include “the manner, time, and place of the employee’s which is unrelated to Plaintiff’s memo.6 Defendant’s general
5 6 Although Defendant insisted in her depo sition testimony that the Furthermore, it is unclear how Dr. Harris received a copy of the issue of space was irrelevant to the issue of patient privacy, she also memo, inasmuch as Plaintiff’s listed recipients were Defendant, Alice indicated that she did not think Plaintiff was lying; rather, she thought that Gra y, Paul B lackwell, and M . Russ. To the extent that Dr. Harris only Plaintiff was simply wrong in her opinion. W e note that even if Plaintiff’s received it because one or more of the recip ients sent him a cop y, opinion ultimately proved to be incorrect, this does not deprive her Defendant could not have relied upon any disturbance that could not statements of First Am endment protection. See Chapp el, 131 F.3d at 576 reasonably be trac ed back to Plaintiff, who limited her audienc e. See (“A public emplo yee is not required to prove the truth of his speech in Cockrel v. Shelby C oun ty Sch . Dist., 270 F.3d 1 036, 105 4-55 (6th Cir. order to secure the protections of the First Amendm ent.”) (citations 2001) (rejecting the school’s argument that the teacher’s speech had omitted). impacted the “efficient operation of the school and a harmonious No. 01-4034 Rodgers v. Banks 21 22 Rodgers v. Banks No. 01-4034
assertions that the memo was disruptive are essentially C. Prong Three: A Substantial or Motivating Factor conclusory. Finally, an employee must demonstrate that the speech at Although it is possible that the August 7, 1998 memo, issue represented a substantial or motivating factor in the which was carbon-copied to other employees in the adverse employment action. Johnson, 215 F.3d at 584. department, might have, to some extent, “undermine[d] a Specifically, the employee must “‘point to specific, legitimate goal or mission of the employer” in maintaining nonconclusory allegations reasonably linking her speech to efficient operation of the hospital or “create[d] disharmony employer discipline.’” Farmer v. Cleveland Pub. Power, 295 among co-workers,” Williams, 24 F.3d at 1536, we have F.3d 593, 602 (quoting Bailey v. Floyd County Bd. of Educ., never held that the relatively minor associated risk of 106 F.3d 135, 144 (6th Cir. 1997)). If the employee meets disharmony as is present in this case would ordinarily that burden, the employer may “show[] by a preponderance of overcome an interest in making sure a state hospital maintains the evidence that it would have reached the same decision . . . its certification (and thus presumably maintains a minimum even in the absence of the protected conduct.” Mt. Healthy, standard of care for its patients). See id. at 1536-37 (rejecting 429 U.S. at 287. However, this latter burden “involves a the argument that the state interest of avoiding disharmony determination of fact” and ordinarily is “reserved for a jury or between the plaintiff-employee and those she reported the court in its fact-finding role.” Perry, 209 F.3d at 604 n.4 outweighed the public interest in reporting politically corrupt (citing Tao v. Freeh, 27 F.3d 635, 639 (D.C. Cir. 1994)). practices in the governmental office); Marohnic v. Walker, 800 F.2d 613, 616 (6th Cir.1986) (“[W]hen an employee The parties do not dispute that Plaintiff’s August 7, 1998 exposes unscrupulous behavior in the workplace, his interests memo at least played a role in Defendant’s decision to are co-extensive with those of his employer; both want the terminate Plaintiff. Indeed, Defendant identified that very organization to function in a proper manner.”) Furthermore, memo during her deposition as a motivating factor. Defendant presents no evidence that Plaintiff’s August 7, Therefore, Plaintiff has established a causal link between her 1998 memo disrupted the Lewis Center’s efficient First Amendment protected activity and her subsequent functioning, and we do not discern, on this record, any termination. meaningful threat to the hospital’s efficient functioning. Rankin, 483 U.S. at 388-89. Thus, given our precedent on Defendant nevertheless argues that the August 7, 1998 this balancing inquiry, and on this record, Defendant has not memo could not have been a substantial or motivating factor demonstrated a state interest that outweighs Plaintiff’s First because (1) the time period between the memo and the Amendment right to call Defendant’s attention to the quality termination was almost six months (i.e., August 7, 1998 to of the Lewis Center’s patient care. Id. January 21, 1999); and (2) several intervening incidents occurred, breaking the link. For support Defendant relies on Wallscetti v. Fox, 258 F.3d 662, 669 (7th Cir. 2001), which held that a four month long period of time “between the protected speech and the adverse employment action . . . without more, is too long to support a reasonable inference of environment” because her speech had been pre-approved by the school causation.” (citations omitted) (emphasis added). However, board and, thus, the “disruptive consequences of the employee speech can Wallscetti is distinguishable inasmuch as in that case there be traced back to the government's express decision permitting the was no admission from the employer that the employee’s emp loyee to engag e in that speech”). No. 01-4034 Rodgers v. Banks 23
speech played any role in his decision to fire the employee, and therefore the employee could only rely on the four month time gap to support a causal link. Conversely, in the present case Defendant conceded that Plaintiff’s memo was a motivating factor in her decision to fire Plaintiff. Therefore, Plaintiff has met her burden of production with respect to showing that her First Amendment protected activity was a motivating factor in Defendant’s decision to fire Plaintiff. The burden now shifts to Defendant to demonstrate that she would have fired Plaintiff notwithstanding Plaintiff’s exercise of First Amendment protected speech. As noted earlier, this is generally a jury question. Perry, 209 F.3d at 604 n.4. Thus, the parties may litigate at trial whether Defendant would have terminated Plaintiff notwithstanding Plaintiff’s dissemination of her August 7, 1998 memo. See Crawford-El v. Britton, 523 U.S. 574, 593 (1998) (citing Mt. Healthy, 429 U.S. at 287). IV. For the foregoing reasons, we REVERSE the district court’s grant of summary judgment to Defendant on Plaintiff’s First Amendment claim and REMAND this case to the district court for further proceedings consistent with this opinion.