Mark Mayhew v. Town of Smyrna, Tenn.
856 F.3d 456
| 6th Cir. | 2017Background
- Mark Mayhew was the lab supervisor at Smyrna’s wastewater-treatment plant, responsible for sampling, testing, maintaining NPDES-related records, preparing MORs/DMRs, and reporting regulatory problems to management and regulators.
- Mayhew discovered supervisor Leland Noble allegedly pressured him to alter or omit test results, cherry-pick sampling days, alter logged results, and otherwise interfere with required monitoring and reporting.
- Mayhew reported Noble’s conduct up the chain of command (plant manager, utilities directors, city manager Harry Gill) and later emailed concerns about the promotions of Noble and Gill’s nephew, asserting Smyrna bypassed normal hiring protocols and placed unqualified persons in management.
- After Mayhew’s July 1, 2014 email, Gill called Mayhew insubordinate and terminated him at a July 7 meeting, citing Mayhew’s unwillingness to unequivocally agree he could work with Noble and concerns about compromised work ethics.
- Mayhew sued under 42 U.S.C. § 1983 for First Amendment retaliation and under Tennessee’s Public Protection Act; the district court granted summary judgment to defendants on the First Amendment claim and declined supplemental jurisdiction over the state claim; Mayhew appealed only the federal claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether Mayhew’s reports about Noble’s lab misconduct are protected First Amendment speech | Mayhew: He spoke as a citizen about illegal/regulatory violations, outside ordinary job duties, so speech is protected | Defendants: Reporting was within his ordinary job duties (oversee testing/reporting), so unprotected under Garcetti | Held: Not protected — speech was within Mayhew’s ordinary job responsibilities; summary judgment for defendants affirmed as to these reports |
| 2. Whether Mayhew’s complaints about Smyrna’s hiring/promotions (Noble and the manger’s nephew) implicated a matter of public concern | Mayhew: Complaints about bypassing hiring protocol, nepotism, and promoting unqualified persons concern public integrity and hiring practices | Defendants: Internal grievance about job security; did not raise legal violations or public concern; therefore unprotected | Held: Protected — court reversed district court and concluded complaints about the promotions could be a matter of public concern; district court erred in dismissing this ground |
| 3. Whether the question of protected status (employee vs. citizen speech) is a question of law or a mixed question | Mayhew: Lane v. Franks requires factfinding whether speech falls within ‘‘ordinary’’ duties, making it a mixed question | Defendants: Circuit precedent treats the inquiry as a question of law | Held: Question remains one of law in Sixth Circuit; Lane did not overrule Connick or convert the inquiry into mixed question of fact and law |
| 4. Whether the complaint adequately pleaded a First Amendment claim based on hiring/promotions | Mayhew: Complaint alleged specific facts about promotions and connected them to his email and termination | Defendants: District court found Mayhew raised the hiring-practices theory belatedly and did not plead it | Held: Complaint was sufficient; district court erred in holding the hiring/promotions theory was not pled |
Key Cases Cited
- Connick v. Myers, 461 U.S. 138 (speech-protected inquiry is one of law; public-employee speech narrower than citizen speech)
- Garcetti v. Ceballos, 547 U.S. 410 (speech pursuant to official duties is not protected)
- Pickering v. Board of Education, 391 U.S. 563 (balancing employee’s speech vs. employer’s interest in efficient public service)
- Lane v. Franks, 134 S. Ct. 2369 (speech that concerns employment is not necessarily within official duty; focus on whether speech is ordinarily within job duties)
- Evans-Marshall v. Board of Education, 624 F.3d 332 (Sixth Circuit standard for public-employee First Amendment retaliation elements)
- Fox v. Traverse City Area Pub. Sch. Bd. of Educ., 605 F.3d 345 (Sixth Circuit: protected-status inquiry treated as one of law)
- Boulton v. Swanson, 795 F.3d 526 (adopting a narrow reading of Garcetti post-Lane)
- Handy-Clay v. City of Memphis, 695 F.3d 531 (mixed-speech analysis; nepotism/hiring practices can be public concern)