Farhat v. JopkeFarhat v. Jopke
Ernest R. Bazzana (argued and briefed), Suzanne P. Bartos, Plunkett & Cooney, Detroit, MI, William F. Young (argued and briefed), Jeffrey S. Donahue (briefed), White, Schneider, Barid, Young & Chiodini, Okemos, MI, for Appellees.
Before: ROGERS and COOK, Circuit Judges; BERTELSMAN, District Judge.*
OPINION
BERTELSMAN, District Judge.
The Appellant, Kenneth Farhat, appeals from the district court‘s grant of summary judgment to the defendants. This action arises from the termination of Farhat from his position as a custodian for the Troy School District.
Farhat raises four issues on appeal: (1) he was discharged in retaliation for exercise of his First Amendment rights; (2) he was denied due process when the school board refused to grant a post-termination hearing in which he could deal directly with the board; (3) an order not to speak to other employees was an invalid prior restraint on his speech; and (4) Appellee Hood is liable under a conspiracy theory for providing information to Appellee Kelly to aid in unlawfully depriving Farhat of his rights. The district court found that no constitutional violations had occurred and granted defendants’ motions for summary judgment. For the reasons set forth below, we AFFIRM the judgment of the district court.
FACTUAL BACKGROUND
Appellant Kenneth Farhat was employed as a custodian by the Troy School District for approximately 15 years. He was discharged on September 18, 2000 and initiated this lawsuit against the school district, its superintendent, an assistant principal, and a fellow custodian who is also a union representative. Appellant brought this action pursuant to
Appellant‘s employment history is significant and factors into the asserted justification for the actions of the school district. Appellant had a checkered employment history with the Troy School District. The record reflects that, from at least 1997 forward, Appellant had a history of confrontational behavior as well as hostile and accusatory communications directed toward the school district, its officials, co-employees and toward persons affiliated with the union. Appellant received numerous warnings and other discipline in response to specific behaviors that school officials found to be disruptive to, and inappropriate for, the working environment.
Appellant typically responded to such corrective action with a letter, usually directed to the author of the warning or reprimand. All of Appellant‘s responses contained primarily personal opinions and conclusions that were directed against specific individuals with whom he had had a disagreement. For example, Appellant routinely referred to others as “sick and demented,” “ignorant and abusive,” “mentally ill,” “mindless criminals,” “liars,” “lazy and pampered,” “alcoholic,” “insane,” “ignorant,” “dysfunctional,” “mentally ill freak,” “jack ass,” and similar terms. The context of such epithets will be addressed later in this opinion in greater detail.
In January 1997, Appellant, then a union steward, attended a grievance meeting. The record reflects that his behavior at the meeting was inappropriate and threatening to others. Appellant received a warning letter from the Superintendent that explicitly explained to him that this type of conduct would not be tolerated and, if it continued in the future, that he could face more severe sanctions, up to and including termination.
In April 1998, Appellant received another written reprimand for his conduct toward the school district‘s executive director and a secretary. His conduct was described as obnoxious, loud and threatening. In response, Appellant claimed that the statements of the executive director were lies and were intended as discrimination against him due to his affiliation with the union. He claimed that he did not lose control but that it was the school official who lost control at the meeting.
In May — June of 1999, officials of the Michigan Education Association (“MEA” or “the union“) corresponded and discussed their concerns about an upcoming union meeting with Appellant and his potential for workplace violence. They expressed concern about their safety and stated that they were seeking outside support and information about what options they had to protect themselves if Appellant became violent.
In January of 2000, Appellant wrote a letter to the Superintendent claiming that he was going to sue the district for libel and slander. He also claimed that he was forced into a meeting where he was threatened with discipline for having a weapon at a union meeting and at the workplace. Appellant further asserted that these “liars” and “cowards” had continued to attack his reputation and that he intended to sue. Again in January of 2000, Appellant threatened to file grievances and to take additional action because he did not get what he wanted.
Yet again, on February 24, 2000, Farhat wrote to the “incompetent administration” claiming that he was wrongfully denied a position because he threatened lawsuits and grievances. He also stated that he had been wrongfully disciplined for uncooperative behavior. He claimed it was others who were uncooperative, not he, as he was “the best custodian in Troy Schools ...” and “the best union representative in Troy Schools, bar none.”
On February 24, 2000, there was a significant incident between Appellant and another employee/union representative, Appellee Pam Hood. Appellant‘s actions in regard to this incident precipitated his termination. On this occasion, Appellant was clearly unhappy about being denied a position he wanted. Appellant phoned Hood, while she was at work, and claimed that this was her fault. Within a short period of time, Farhat called Hood a second time and allegedly threatened her. Hood interpreted Farhat‘s threats as threats of violence. Appellant allegedly made statements such as, “When I get through with you, you won‘t be driving a bus or doing custodial work.” Afraid to leave the room for fear that Appellant was coming to the building to follow through on his threats, Hood contacted a school official who instructed her to contact the police. Hood then locked herself in a room until the police arrived.
The following day, Appellant was suspended with pay to allow for an investigation of the February 24, 2000 incident.
On March 21, 2000, a meeting was scheduled for Appellant to have an opportunity to explain his behavior. Present at this meeting were Appellant, Assistant Principal Maureen Kelly, and Assistant Superintendent Mike Williams. Appellant was represented at the meeting by union representatives Joe Cusmano, Dominic Asaro and Mel Sledzinski. However, due to Appellant‘s uncontrolled, explosive and rude behavior, the meeting was recessed at the suggestion of his union representative. Appellant was given several opportunities to speak privately with his representatives before they decided to end the meeting.
Another hearing was held on April 14, 2000. In a letter from the Superintendent, Appellant was advised that after two written reprimands for inappropriate behavior and two disciplinary hearings, he would be given yet another chance. However, because the school district found Appellant‘s behavior to be threatening, intimidating, and disruptive, it gave him the option of attending an anger management course, plus a 10-day suspension without pay, or 15 days without pay if he did not attend the anger management course. Appellant was instructed not to speak to other employees during his suspension. In this letter, moreover, Appellant was specifically advised that further conduct of this nature would not be tolerated.
On May 11, 2000, Appellant responded by letter, stating that he considered the letter from the Superintendent to be a “joke,” and claiming that it was illegal. He claimed that all the allegations against him were lies. He claimed that Hood, other employees, and the school officials had been plotting against him. He stated that he has the flawed character trait of talking “fast and loud” and that this trait was being used against him.1
This letter is filled with vituperative remarks about the school district, specific employees, the union and specific union representatives, and claims of collusion and corruption. The same can be said of his previous letters and conduct. The letter is not specific with regard to the charges of collusion or corruption.
On May 18, 2000, Appellant sent a letter to Lu Battaglieri, the union president. In this letter, Appellant complained that his union representatives did not investigate his complaints as he believed they should. He also claimed they were purposefully not investigating because they were in collusion with the school district. He referred to Hood as a “demented and sick human being” and stated that he, Farhat, was the “only honest union representative in the city.” He also referred to the Assistant Principal, Appellee Maureen Kelly, as “mentally ill.”
Appellant further stated that he believed the union representatives were creating obstacles for the express purpose of covering up corrupt contract negotiations; preferential treatment of the corrupt representatives resulting in privatization, loss of bidding rights, loss of seniority rights, unwarranted discipline, loss of medical benefits, and loss of sick days; and a hostile environment of dissension and chaos. He claimed that he was disciplined because he chose to expose the union‘s and the representatives’ collusion with the employer. He did not offer any examples of his allegations of corruption against the union except for what had happened to him.2
Appellant copied this letter to three other union officials, including Hood. Hood, concerned about the statements in the letter, turned it over to the Superintendent.
On June 1, 2000, Appellee Maureen Kelly wrote to Joseph Cusmano, a union representative, and stated, “We have serious concerns about what Mr. Farhat has written and we need to meet with him so that he has a due process hearing.” As Appellant was on medical leave, these officials decided to wait until he was released to return to work to continue the investigation and hold a due process hearing.
On September 18, 2000, Appellant was terminated from his employment. The letter of termination from the Superintendent, Appellee Janet Jopke, stated that Appellant “crossed over the line” in his letter of May 18, 2000, and that he is “simply incapable or refuse[s] to recognize the inappropriateness of [his] conduct.” The Superintendent specifically stated that she was not concerned with Appellant‘s statements about the union or union representatives. However, his statements and comments about school officials and employees were “abusive,” “caustic,” and “grossly insubordinate” to her prior warnings and directives, specifically her April 17, 2000 letter.
On November 1, 2000, following Appellant‘s filing of a grievance regarding his termination, a grievance hearing was held. Present for the hearing were Appellee Kelly, Steven Amburg for the union, the attorney for the school district, Craig Lange, and the attorney for Appellant, Jerry Haymond. Appellant failed to appear at this hearing. The hearing proceeded in his absence, however, and the grievance was denied.
On November 6, 2000, Appellant demanded arbitration. Pursuant to his request and the collective bargaining agreement, the case proceeded to arbitration before a neutral arbitrator. The record before the court does not provide the exact date of the arbitration. However, the record does show that Appellant attended the arbitration, as did representatives of the school district and the union. The parties reached a tentative settlement on all claims, with Appellant present. However, the settlement was subsequently rejected by Appellant. Thereafter, the union withdrew its representation of him.
Appellant‘s next challenge to the school district was to file this lawsuit. The United States District Court for the Eastern District of Michigan, Southern Division, heard Appellant‘s motion for partial summary judgment, Hood‘s motion to dismiss or for summary judgment, and the remaining defendants’ motions for summary judgment (the school district and officials named therein). The district court held that Appellant‘s speech was not protected, that there was no constitutional violation upon which to base a
This appeal followed.
STANDARD OF REVIEW
As this case is before us on appeal from the district court‘s grant of summary judgment, our review is de novo. Equitable Life Assur. Soc‘y v. Poe, 143 F.3d 1013, 1015 (6th Cir. 1998). Summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact” as to an essential element of the non-moving party‘s case.
FIRST AMENDMENT RETALIATION
To establish a prima facie case of First Amendment retaliation under
The framework for analyzing a First Amendment retaliation case is well-established. In Rodgers v. Banks, 344 F.3d 587 (6th Cir. 2003), this court recently summarized this analysis:
While public employees may not be required to sacrifice their First Amendment free speech rights in order to obtain or continue their employment, Rankin v. McPherson, 483 U.S. 378, 383, 107 S. Ct. 2891, 97 L. Ed. 2d 315 (1987) (citing Perry v. Sindermann, 408 U.S. 593, 597, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972)), a state is afforded greater leeway to control speech that threatens to undermine the state‘s ability to perform its legitimate functions. See United States v. Nat‘l Treasury Employees Union, 513 U.S. 454, 475 n. 21, 115 S. Ct. 1003, 130 L. Ed. 2d 964 (1995). Therefore, in determining whether a public employer has violated the First Amendment by firing a public employee for engaging in speech, the Supreme Court has instructed courts to engage in a three-step inquiry. First, a court must ascertain whether the relevant speech addressed a matter of public concern. See Connick v. Myers, 461 U.S. 138, 143, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983). If the answer is yes, then the court must balance 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, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968). Finally, the court must determine whether the employee‘s speech was a substantial or motivating factor in the employer‘s decision to take the adverse employment action against the employee. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977); Perry, 209 F.3d at 604.
Id. at 596.
In the case now before the court, it is not contested that Appellant‘s letter of May 18, 2000, culminating the events described above, was a substantial and motivating factor in his termination. The letter of termination from the Superintendent to Appellant specifically stated that he was being terminated for the expression in that letter, as well as for other specific instances of unacceptable conduct. This meets the third step of the test as outlined above: that Appellant‘s expression in the May 18 letter was a motivating factor in the adverse employment action.
There remain for our consideration the other two steps of the inquiry, the public concern step and the Pickering balancing test.
PUBLIC CONCERN
Whether the speech at issue involves a matter of public concern is a question of law for the court, Bonnell v. Lorenzo, 241 F.3d 800, 809-10 (6th Cir.), cert. denied, 534 U.S. 951, 122 S. Ct. 347, 151 L. Ed. 2d 262 (2001), although there may be some factual questions for a jury if it is disputed whether the expression occurred or what words were specifically stated. See generally Waters v. Churchill, 511 U.S. 661, 114 S. Ct. 1878, 128 L. Ed. 2d 686 (1994). Our review of the lower court‘s decision on this issue is de novo. Dambrot v. Central Mich. Univ., 55 F.3d 1177, 1182 (6th Cir. 1995).
The district court here did not expressly rule on the public concern issue, but seemed to base its decision on the Pickering balancing inquiry noted above. However, this issue has been raised by all parties to this appeal.
In determining whether expression is a matter of public concern, we are guided by Connick v. Myers, 461 U.S. 138, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983), which we have noted is “the Supreme Court‘s most instructive case on this issue.” See Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036, 1050 (6th Cir. 2001), cert. denied, 537 U.S. 813, 123 S. Ct. 73, 154 L. Ed. 2d 15 (2002).
In Connick, an assistant prosecutor, upset over her pending transfer within the New Orleans District Attorney‘s office, circulated a questionnaire to her fellow employees soliciting their views on various issues. These issues included “office transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressured to work in political campaigns.” Id. at 141, 103 S. Ct. 1684. The Court held that, of the several topics raised by the questionnaire, only the matter of pressure to work in political campaigns was a matter of public concern. The Court observed:
When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment. Perhaps the government employer‘s dismissal of the worker may not be fair, but ordinary dismissals from government service which violate no fixed tenure or applicable statute or regulation are not subject to judicial review even if the reasons for the dismissal are alleged to be mistaken or unreasonable.
Id. at 146, 103 S. Ct. 1684 (internal citations omitted) (emphasis added).
The Court further instructed that “[w]hether 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.” Id. at 147-48, 103 S. Ct. 1684. Moreover, the entire speech does not have to address matters of public concern, as long as some portion of the speech does so. Id. at 149, 103 S. Ct. 1684.
Applying this content-based test, the Court concluded that the “focus” of the assistant prosecutor‘s questionnaire, with the exception of the question pertaining to pressure on employees to work on political campaigns, was her personal dispute with her superiors over the proposed transfer and thus was not a matter of public concern:
While discipline and morale in the workplace are related to an agency‘s efficient performance of its duties, the focus of [plaintiff‘s] questions [in the questionnaire] is not to evaluate the performance of the office but rather to gather ammunition for another round of controversy with her superiors. These questions reflect one employee‘s dissatisfaction with a transfer and an attempt to turn that displeasure into a cause celèbre.
Id. at 148, 103 S. Ct. 1684 (emphasis added).
Summarizing this ruling, the Court stated:
We hold only that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee‘s behavior.
Id. at 147, 103 S. Ct. 1684.3
In the twenty-one years since Connick, this court has had numerous opportunities to apply that decision to determine when a public employee‘s speech is a matter of “public concern.” In so doing, we have recognized that the most difficult cases to adjudicate are “mixed speech” cases, i.e., those in which the speech for which the employee claims First Amendment protection arises in the context of an employment grievance or other personnel dispute, but where the employee claims that some part of the speech also touches upon matters of public concern.4
The difficulty of determining whether speech is of “public concern” is compounded by the fact that these cases tend, as one might expect, to be highly fact-specific. However, our close review of Connick and this circuit‘s subsequent decisions yields the following principles:
- Speech is of “public concern” if it involves issues about which information is needed or appropriate to enable the members of society to make informed decisions about the operation of their government.5
- The fact that the public employee engages in the speech while in the course of his or her employment does not preclude a finding that the speech touches upon a matter of public concern.6
- The employee‘s motive for engaging in the speech in question is a relevant, but not dispositive, factor when considering whether an employee‘s expression is of public concern.7
- Although First Amendment protection might not be available if the employer can show that the public employee knowingly or recklessly made false statements, a public employee is not required to prove the truth of his or her speech in order to secure the protections of the First Amendment.8
In “mixed speech” cases, application of the second and third principles is often difficult. That is, if the employee speaks only in the course of his employment and does so solely for personal reasons, when will the speech be of concern to the community?
Taking the motive issue first, our opinions are clear that, consistent with the “content” test of Connick, the pertinent question is not why the employee spoke, but what he said:
The defendants’ most sweeping argument is that none of Chappel‘s speech may be considered speech on a matter of public concern because all of his speech was fundamentally and predominately motivated by his self-interest in obtaining a position as a paramedic with the ambulance district.... They also suggest that Chappel “lashed out against Chief Welch and the rest of his family,” alleging misappropriations, nepotism, and a conflict of interest, only because “he believed that they were standing in his way.”
The defendants’ argument, that Chappel‘s subjective motivations are dispositive when determining whether his speech addresses a matter of purely personal concern, is in direct conflict with the Supreme Court‘s holding in Connick. In Connick, a public employee disseminated a questionnaire “to gather ammunition for another round of controversy with her superiors” because she was “dissatisf[ied] with a transfer.” Connick, 461 U.S. at 148, 103 S. Ct. at 1691. Notwithstanding the fact that this personal grievance motivated the entire questionnaire, the Court concluded that “[o]ne question in [the] questionnaire ... touch[ed] upon a matter of public concern.” Id. at 149, 103 S. Ct. at 1691. We agree, as a majority of the Third Circuit recently concluded, that “[i]f motive were dispositive, the [Court‘s] inquiry [in Connick] could only have resulted in finding either that all of [the employee‘s] speech was public concern speech or that none of it was.” Azzaro v. County of Allegheny, 110 F.3d 968, 978 (3d Cir. 1997) (en banc)....
[T]he inquiry into what a speaker intends to communicate remains fundamentally different from an inquiry into why the speaker intends that communication. The former inquiry is of much greater significance in determining whether speech addresses a matter of public concern.
Chappel, 131 F.3d at 574-75 (italics in original). See also Bonnell, 241 F.3d at 817 (“However, even assuming that Plaintiff was motivated by personal animus in circulating the Apology, the fact remains that in doing so, he addressed a matter occurring at the college which was of public concern.“).
As for the “course of employment” issue, this circuit has flatly rejected the argument that the fact that a public employee‘s speech occurs while he is carrying out his job duties renders the speech of only private concern, noting that such a rule would eviscerate First Amendment protection in public employment. See Rodgers, 344 F.3d at 598-99; Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036, 1052 (6th Cir. 2001), cert. denied, 537 U.S. 813, 123 S. Ct. 73, 154 L. Ed. 2d 15 (2002). Cf. Banks v. Wolfe County Bd. of Educ., 330 F.3d 888, 898-99 (6th Cir. 2003) (Gibbons, J., concurring).
Against the background of Connick and these principles, our circuit has distilled the “public concern” test by stating that the court must determine: the “focus” of the speech; “the point of the speech in question“; “to what purpose the employee spoke“; “the intent of the speech“; or “the communicative purpose of the speaker.” See Rodgers, 344 F.3d at 600 (holding that pertinent inquiry is “the point or focus of the speech in question“); Taylor v. Keith, 338 F.3d 639, 645 (6th Cir. 2003) (noting that proper inquiry is the “point of the speech” and “what the speaker intended to communicate“); Buckley v. City of Portage, No. 98-1783, 1999 WL 777542, at *4 (6th Cir. Sept. 16, 1999) (examining “primary focus” of speech), cert. denied, 530 U.S. 1262, 120 S. Ct. 2719, 147 L. Ed. 2d 984 (2000); Dambrot v. Central Mich. Univ., 55 F.3d 1177, 1187-88 (6th Cir. 1995) (court must look to the “point” of the speech and the “communicative purpose” of the speaker); Rahn v. Drake Ctr., Inc., 31 F.3d 407, 412-13 (6th Cir. 1994) (court must examine “complete record” and determine “focus” of statement for which employee claims protection), cert. denied, 515 U.S. 1142, 115 S. Ct. 2578, 132 L. Ed. 2d 828 (1995).
As a corollary to this “focus” test, we have held that the proper inquiry is not what might be “incidentally conveyed” by the speech, and that “passing” or “fleeting” references to an arguably public matter do not elevate the speech to a matter of “public concern” where the “focus” or “point” of the speech advances only a private interest. See Rodgers, 344 F.3d at 597-98; Taylor, 338 F.3d at 645-46; Buckley, 1999 WL 777542, at *4-5; Dambrot, 55 F.3d at 1187; Rahn, 31 F.3d at 412-13.
Turning to the employee‘s speech in the case at bar, viewed in context of the complete record, we believe that the primary “focus,”9 “point,”10 or “communicative purpose”11 of Appellant‘s letters was his own personal “beef”12 with the union and the school district concerning his deteriorating job situation, and his references to collusion or corruption were “passing”13 references that were “incidental to the message conveyed.”14 Thus his letters were not matters of “public concern.”
Moreover, even if Appellant had satisfied this prong of the First Amendment retaliation analysis, we conclude that application of the Pickering balancing test still requires that the summary judgments entered by the court below be affirmed.
PICKERING BALANCING TEST
Application of the Pickering balancing test is a matter of law for the court to decide. Leary v. Daeschner, 349 F.3d 888, 898 (6th Cir. 2003) (citation omitted).
In Pickering v. Bd. of Educ., 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968), the Court held that the firing of a teacher for writing a letter to a newspaper, opposing a tax increase advocated by the defendant Board of Education, was a violation of the First Amendment because the issue was a matter of public concern. Id. at 570-71, 88 S. Ct. 1731. The letter was personally critical of the members of the Board. The Supreme Court noted, however, that there were no close working relationships between the teacher and the members of the Board and, therefore, the protected expression did not violate the Board‘s “interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” Id. at 568-70, 88 S. Ct. 1731.
The Court further enunciated what has come to be known as the ”Pickering balancing test“: “The problem in any case is to arrive at a balance between the interests of the [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.” Id. at 568, 88 S. Ct. 1731.
Applying this test, we conclude that, even if portions of Appellant‘s expression did address matters of public concern, the disruptiveness of his speech in the workplace outweighed any value his expression might have had. Thus, summary judgment was properly granted.15
Authority for this conclusion is found in Waters v. Churchill, 511 U.S. 661, 114 S. Ct. 1878, 128 L. Ed. 2d 686 (1994). There, a nurse was reported to her employer as having made critical remarks concerning the operation of one of the departments of the hospital in which she was employed. She also made highly derogatory remarks concerning her supervisor, a physician. Id. at 665-66, 114 S. Ct. 1878.
Some of the remarks the nurse was alleged to have made were disputed by her. The Court held that her firing was justified, even though the employer had based its decision on the reported remarks without having determined what remarks were actually made. Id. at 677, 114 S. Ct. 1878 (plurality opinion by O‘Connor, J.), 686 (concurring opinion by Scalia, J.).
The Court recognized the right of even a governmental employer to deal with disruption in the workplace. It emphasized that the government as employer has efficiency concerns that give it greater discretion in dealing with a disruptive employee, more discretion than it would have to deter speech by a private citizen. Id. at 674-75, 114 S. Ct. 1878. “[S]urely,” the plurality observed, “a public employer may, consistently with the First Amendment, prohibit its employees from being rude to customers,” as well as to other employees, including the supervising physician. Id. at 673, 114 S. Ct. 1878 (internal quotations and citations omitted).
In language particularly applicable to the instant case, the plurality stated:
[T]he extra power the government has in this area comes from the nature of the government‘s mission as an employer. Government agencies are charged by law with doing particular tasks. Agencies hire employees to help do those tasks as effectively and efficiently as possible. When someone who is paid a salary so that she will contribute to an agency‘s effective operation begins to do or say things that detract from the agency‘s effective operation, the government employer must have some power to restrain her. The reason the governor may ... fire [a robustly critical high-ranking] deputy is not that this dismissal would somehow be narrowly tailored to a compelling government interest. It is that the governor and the governor‘s staff have a job to do, and the governor justifiably feels that a quieter subordinate would allow them to do this job more effectively.
The key to First Amendment analysis of government employment decisions, then, is this: The government‘s interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer. The government cannot restrict the speech of the public at large just in the name of efficiency. But where the government is employing someone for the very purpose of effectively achieving its goals, such restrictions may well be appropriate.
Id. at 674-675, 114 S. Ct. 1878 (emphasis added).
The same principles have been recognized in our own opinions. See, e.g., Leary v. Daeschner, 349 F.3d 888, 897 (6th Cir. 2000); Rodgers, 344 F.3d at 596; Hoover v. Radabaugh, 307 F.3d 460, 466 (6th Cir. 2002); Strouss v. Mich. Dep‘t of Corrections, 250 F.3d 336, 346 (6th Cir. 2001); Bonnell, 241 F.3d at 810-811; Charvat v. Eastern Ohio Reg‘l Wastewater Auth., 246 F.3d 607, 617 (6th Cir. 2000); Chappel, 131 F.3d at 573-574.
Thus, we find that Appellant‘s speech, even if of public concern, is not protected. Appellant‘s “speech” was highly disruptive to the point that it interfered with the effective operation of the school district‘s custodial staff. Indeed, at times they feared for their physical safety in the workplace due to Appellant‘s behavior. As the plurality stated in Waters: “As a matter of law, this potential disruptiveness was enough to outweigh whatever First Amendment value the speech might have had.” Waters, 511 U.S. at 681, 114 S. Ct. 1878. Therefore, on this ground also we find that the district court properly held that there was no First Amendment violation. Thus, the lower court‘s grant of summary judgment on the retaliation claims must be affirmed.16
DUE PROCESS
The next issue presented is Appellant‘s claim that he was denied procedural due process because the school district did not meet the Constitutional due process requirements for pretermination and post-termination hearings. In support of these claims, Appellant states that he never received a hearing before a neutral decisionmaker. He further states that he was not permitted to present his grievance directly to the school board which, he asserts, is required by Michigan statute.
Due process requires some sort of pretermination hearing, the formality of which depends upon the importance of the interest and the nature of the subsequent proceedings. See Duchesne v. Williams, 849 F.2d 1004, 1006-07 (6th Cir. 1988), cert. denied, 489 U.S. 1081, 109 S. Ct. 1535, 103 L. Ed. 2d 840 (1989). For public employees who can only be fired for cause, the Supreme Court has held, specifically, that a pretermination proceeding is required. Id. (discussing Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985)).
In Loudermill, the Supreme Court held that a full evidentiary hearing is not required prior to termination. Rather, the pretermination hearing is to provide an initial check against mistaken conclusions, “essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action.” Loudermill, 470 U.S. at 545-46, 105 S. Ct. 1487. The essential elements required for due process are notice and an opportunity to respond, either in writing or in person. Id. at 546, 105 S. Ct. 1487.
In the Sixth Circuit, we have held that prior to termination of a public employee who has a property interest in his employment, the due process clause requires that the employee be given “oral or written notice of the charges against him or her, an explanation of the employer‘s evidence, and an opportunity to present his or her side of the story to the employer.” Buckner v. City of Highland Park, 901 F.2d 491, 494 (6th Cir.) (citing Loudermill v. Cleveland Bd. of Educ., 844 F.2d 304 (6th Cir. 1988)), cert. denied, 498 U.S. 848, 111 S. Ct. 137, 112 L. Ed. 2d 104 (1990). “To require more than this prior to termination would intrude to an unwarranted extent on the government‘s interest in quickly removing an unsatisfactory employee.” Loudermill, 470 U.S. at 546, 105 S. Ct. 1487.
We also have held that in the pretermination stage, the employee does not have a right to, and the Constitution does not require, a neutral and impartial decisionmaker. The “right of reply” before the official responsible for the discharge is sufficient. Duchesne, 849 F.2d at 1006. It is at the post-deprivation stage where a neutral decisionmaker is needed to adjudicate the evidence. Where there is a system of post-termination procedures available to the employee that includes a neutral decisionmaker and/or arbitration, coupled with a pretermination “right of reply” hearing, then the employee has received all the process due under the Constitution. See Duchesne, 849 F.2d at 1006; Buckner, 901 F.2d at 494; Loudermill, 470 U.S. at 545, 105 S. Ct. 1487.
The law is well-established that it is the opportunity for a post-deprivation hearing before a neutral decisionmaker that is required for due process. As long as the procedural requirements are reasonable and give the employee notice and an opportunity to participate meaningfully, they are constitutionally adequate. See Hennigh v. City of Shawnee, 155 F.3d 1249, 1256 (10th Cir. 1998). As succinctly stated by the Seventh Circuit, the “availability of recourse to a constitutionally sufficient administrative procedure satisfies due process requirements if the complainant merely declines or fails to take advantage of the administrative procedure.” Dusanek v. Hannon, 677 F.2d 538, 542-43 (7th Cir.) (citations omitted), cert. denied sub nom Dusanek v. O‘Donnell, 459 U.S. 1017, 103 S. Ct. 379, 74 L. Ed. 2d 512 (1982). Consequently, where the employee refuses to participate or chooses not to participate in the post-termination proceedings, then the employee has waived his procedural due process claim. See Krentz v. Robertson Fire Prot. Dist., 228 F.3d 897, 904 (8th Cir. 2000) (citations omitted).
“The law is also clear that grievance procedures provided by a collective bargaining agreement can satisfy a plaintiff‘s entitlement to post-deprivation due process.” Hennigh, 155 F.3d at 1256; American Postal Workers Union Columbus Area Local AFL-CIO v. U.S. Postal Service, 736 F.2d 317, 319 (6th Cir. 1984). As we stated in Buckner, the opportunity to challenge the termination in a more detailed post-termination proceeding, under the collective bargaining agreement, satisfies the employee‘s constitutional due process rights.
PRIOR RESTRAINT
CONSPIRACY
CONCLUSION
Appendix A
Date: 5-11-00
To: J. Jopke, Superintendent Troy Schools
Re: Rebuttal to Letter dated 4-17-00
Sincerely, Kenneth Farhat Cc. J. Cusmano M. Kelly M. Williams L. Boehmns J. Britton
Appendix B
Date: 5-18-00
To: Lu Battaglieri, President MEA
Re: Failure to represent
Sincerely, Ken Farhat CC. Fette Shaw Hood