JAMES MYERS, Plaintiff-Appellee, v. CITY OF CENTERVILLE, OHIO, Defendant, WAYNE DAVIS; MATTHEW BROWN, Defendants-Appellants.
No. 21-3850
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
July 21, 2022
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0160p.06
Appeal from the United States District Court for the Southern District of Ohio at Dayton.
No. 3:20-cv-00402—Michael J. Newman, District Judge.
Argued: April 28, 2022
ARGUED: Dawn M. Frick, SURDYK, DOWD & TURNER CO., L.P.A., Dayton, Ohio, for Appellants. Laura Welles Wilson,
OPINION
SUHRHEINRICH, Circuit Judge.
By nearly all accounts, James Myers was a model employee for the City of Centerville, steadily climbing the Police Department‘s ranks over three decades to become a detective sergeant. In 2015, however, Myers started causing headaches for the City‘s bigwigs—in a smalltown, Frank Serpico sort of way. He reported several serious allegations of misconduct among the Department‘s upper brass, some of which have yet to be fully investigated. He also stood up for an acquaintance in the Public Works Department, whom he thought the City had unfairly fired. The City returned the favor, suspending Myers without pay for five days. Not long thereafter, the City fired Myers, allegedly for secretly recording a meeting between him, City Manager Wayne Davis, and Police Chief Matt Brown. Myers sued the City, Davis, and Brown, alleging a First Amendment retaliation claim under
The defendants moved for judgment on the pleadings, arguing (among other things) that Myers failed to state a claim and that Davis and Brown are entitled to qualified immunity and statutory immunity under Ohio law. The district court summarily denied the motion, which Davis and Brown now appeal. We hold that the district court erred by failing to meaningfully analyze their assertions of immunity at the pleadings stage, but we affirm after concluding that Myers plausibly alleged a First Amendment retaliation claim and that the defendants are not yet entitled to qualified or statutory immunity.
I. Background
Because this appeal comes to us from the denial of a motion for judgment on the pleadings, we assume as true the facts alleged in Myers‘s complaint and draw all reasonable inferences in his favor. Coley v. Lucas County, 799 F.3d 530, 536-37 (6th Cir. 2015). The following facts are thus taken from his complaint.
A. Allegations Against Lavigne & Robertson
In 2015, Myers reported to his supervisors, then-Lieutenant Matt Brown (defendant here) and then-Police Chief Bruce Robertson, that another supervisor in the Department created, possessed, and “possibl[y] disseminat[ed]” “sexually explicit photos of minors.” That supervisor apparently was Lieutenant Lavigne,1 who transferred illicit images from minors’ cell phones to his personal cell phone; those minors were being investigated “as part of a ‘sexting’ complaint at Centerville High School.” Over the coming years, Myers continued to pursue this allegation against Lavigne (and a separate allegation that Lavigne violated a City ordinance), which largely fell on deaf ears. Chief Robertson
In 2018, Myers went up the chain of command. He sought whistleblower protection and met with City Manager Wayne Davis (another defendant here) to report new allegations “related to theft in office and dereliction of duty” against Chief Robertson, and to repeat the child-pornography allegation against Lavigne. That led to Myers meeting with an outside attorney appointed by Davis; the attorney said he would investigate the claims against Robertson “at [Davis‘s] request,” but that the claims against Lavigne would be investigated by an outside agency (the Kettering Police Department) “due to the[ir] severity.” After learning of the investigation against him, Robertson “abruptly retired,” and the City appointed Lieutenant Brown as interim police chief.
Myers was interviewed but not hired for the vacant chief post; the City picked Brown instead. The hiring panel for that position included Lavigne, which Myers viewed as “highly unethical and improper” given Myers‘s allegations against him.
To air those complaints, Manager Davis held a meeting with Chief Brown and Myers on August 1, 2018. Myers made an audio recording of this meeting. Although the meeting was called to discuss the chief hiring process, it devolved into rehashing Myers‘s earlier allegations against Robertson and Lavigne. Davis asserted that “full on” investigations were conducted into” Myers‘s allegations. “When Myers confront[ed]” Davis and Brown “about the findings of the investigations, he [wa]s advised that no criminal wrongdoing was found after being reviewed by ‘multiple prosecutors.‘” Myers asked which prosecutors, “and Chief Brown did not answer.”2
By February 2020, Kettering had yet to conduct “a formal investigation or [a] review[] [of] the case [regarding Lavigne] with a prosecutor.” In the meantime, Myers was passed over not only for the chief‘s position, but two vacant lieutenant positions as well. And although he was admitted to the FBI National Academy after being waitlisted for several years, Quantico rescinded that offer after its background investigator spoke to Lavigne.
Mindful of that context, we review the facts supporting Myers‘s First Amendment claim.
B. The “Brannon Letter” and its Fallout
In October 2018, Myers learned that Brad Kavalunas, a longtime employee of the City‘s Public Works Department “with whom [Myers] was familiar,” was fired for actions and speech that the City deemed “bigot[ed]” and harassing. Although Myers was not involved in any investigation leading to Kavalunas‘s termination, Kavalunas asked him for “a character letter.” Myers obliged, writing a letter off-the-clock and at home; that letter, which the parties dub the “Brannon Letter,” was later given to Manager Davis by Kavalunas‘s attorney.
The letter explained that Myers has known Kavalunas for over two decades, that he‘s a caring person and a good employee, and that his professional reputation is one “of diligence, trustworthiness, and dependability.” Myers thus wrote that he “was both surprised and saddened” to learn of Kavalunas‘s alleged misconduct,
And Myers went on. First, he recalled witnessing “many instances of . . . ‘shop or locker room talk‘” among the Public Works staff, language that “was frequently inappropriate.” He described Public Works as having a “culture where grown men were accustomed to behaving as adolescents“—conduct that “was pervasive and not limited to just a select few employees.” Second, Myers placed Kavalunas‘s alleged misconduct in the context of that culture, explaining that “the workplace conduct alleged [against Kavalunas] is or was much more systemic“—his alleged behavior “was just part of the everyday norm” of Public Works. Third, he argued that such conduct “should certainly not be justified,” but “it seems ill-advised to single out one individual as the ‘poster child’ for the same or similar conduct displayed by many in the same group over the last two plus decades.” And, given Kavalunas‘s long tenure with the City, Myers thought “an alternative to termination” would have “better served” the City.
In November 2018, Myers was summoned to discuss the Brannon Letter with the City‘s human resources manager and its outside labor counsel. At no point during that meeting did they tell Myers that he did anything wrong or that the contents of the letter were disparaging to the City. Later the next month, however, Myers was called into Lavigne‘s office; Lavigne “informed [Myers] that he was being brought up on internal charges” relating to the letter. Lavigne did not specify which rules or polices were allegedly violated, despite Myers‘s “asking repeatedly.” Myers thought Lavigne was retaliating against him in part for his previous complaints, so he refused to continue the interview without a union representative present; the interview was rescheduled.
Lavigne ultimately asserted that Myers “potentially violated several City and Departmental rules by writing the letter,” one of which “was insubordination because Myers had allegedly been told in the past not to intervene with the investigation or disciplinary matters of other employees“—a point renewed the next month in a memo penned by Chief Brown. Myers “denied and refuted” that he was ever so told. In June 2019, Manager Davis suspended Myers for five days without pay “for allegedly being insubordinate and for criticism of the City” in the letter.
There things stood until November 2019. At that point, the City learned that Myers recorded the August 1, 2018, meeting (the one called to discuss Myers‘s concerns about the chief hiring process). The City placed Myers on paid administrative leave pending an investigation of the recording.
The investigation took its course, and Davis fired Myers in March 2020—not for writing the Brannon Letter, but “for alleged misconduct involving purported dishonesty related to withholding of the audio recording.” The City later issued a press release (republished “almost verbatim” in the newspaper), which Myers claims “was factually inaccurate, prejudicial, defamatory, and retaliatory.”
In June 2020, the City‘s Personnel Appeals Board affirmed Myers‘s prior five-day suspension based on the Brannon Letter. “Immediately” thereafter, the City again “issued a press release in which Chief Brown falsely and publicly stated, ‘we cannot and will not tolerate any sort of bigotry or those who support it,’ falsely stating both expressly, and by implication,
C. Procedural Background
Myers then sued Manager Davis and Chief Brown (in their individual and official capacities), as well as the City, alleging First Amendment retaliation based on the Brannon Letter, and five state-law claims, the nature of which are irrelevant at this stage. The defendants moved for judgment on the pleadings, arguing (among other things) that Davis and Brown are entitled to qualified immunity as to Myers‘s First Amendment claim and statutory immunity as to all other claims under
II. Jurisdiction
A. Jurisdiction Over the Denial of Qualified Immunity
We have jurisdiction over only “final decisions of the district courts.”
Arguably, the district court‘s order did not conclusively determine the defendants’ entitlement to qualified immunity; indeed, as discussed further below, it did not even recite the qualified-immunity standard, and it deferred ruling on all issues until summary judgment. But we have previously recognized that a nondecision on a timely assertion of qualified immunity is still a decision—it‘s a denial—and is thus immediately appealable. See Everson v. Leis, 556 F.3d 484, 492 (6th Cir. 2009) (finding jurisdiction to review the district court‘s decision to hold in abeyance, pending additional discovery, a motion for summary judgment based on qualified immunity); Summers v. Leis, 368 F.3d 881, 886 (6th Cir. 2004) (same, where the order denied without prejudice, pending additional discovery, a motion for summary judgment based on qualified immunity); Wallin v. Norman, 317 F.3d 558, 562-63 (6th Cir. 2003) (similar); Skousen v. Brighton High Sch., 305 F.3d 520, 527 (6th Cir. 2002) (similar); cf. Buddenberg v. Weisdack, 939 F.3d 732, 738 (6th Cir. 2019) (similar, where the order explained that the clearly established prong, though not the constitutional-violation prong, was “premature and cannot be determined at this stage in the litigation“).
Here too, in punting a decision on qualified immunity, the district court effectively denied it—as it unlocked discovery without answering the “threshold immunity question.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). We therefore have jurisdiction to review that order.
Myers says that‘s wrong, but for a different reason. Citing Johnson v. Jones, 515 U.S. 304, 317 (1995), he argues we lack jurisdiction because the district court, in his view, found “that the factual record [wa]s insufficient for a determination at this stage of the proceedings.” True, Johnson held that a denial of a summary-judgment motion raising qualified immunity is not immediately appealable if it “determines only a question of ‘evidence sufficiency,’ i.e., which facts a party may, or
Our authority to review the defendants’ qualified-immunity defense is therefore clear. And that review extends to the merits-based, legal question of whether Myers engaged in constitutionally protected speech (the only element the defendants challenge now) and thereby plausibly alleged a First Amendment retaliation claim. See, e.g., Charvat v. E. Ohio Reg‘l Wastewater Auth., 246 F.3d 607, 616 (6th Cir. 2001).
B. Jurisdiction Over the Denial of State-Law Immunity
The defendants also asserted statutory immunity under
III. Legal Standards
We review the denial of a motion for judgment on the pleadings de novo, using the same standards that apply to
A defendant is not entitled to qualified immunity at the pleadings stage if (1) “the facts alleged make out a violation of a constitutional right” and (2) that right “was clearly established when the event occurred so that a reasonable offic[ial] would have known that his conduct violated it.” Crawford v. Tilley, 15 F.4th 752, 762-63 (6th Cir. 2021) (quoting Buddenberg, 939 F.3d at 738). Although “a
IV. Failure to Address Qualified Immunity
Before proceeding to the merits, we address the district court‘s failure to meaningfully evaluate the defendants’ assertion of qualified immunity. As noted, the district court summarily denied that defense, stating in relevant part:
Having carefully and thoroughly considered the pleadings and briefing in support of and in opposition to Defendants’ motion, along with the procedural posture of this case, the Court believes the efficient and appropriate way forward is to permit discovery to occur and consider the parties’ arguments on summary judgment, not earlier at the motion-to-dismiss phase of the litigation. Proceeding in this manner will ensure the Court reviews these arguments only after appropriate discovery has been completed and will guarantee that the Court‘s consideration of the parties’ arguments is not premature.
The court then cited Buddenberg, 939 F.3d at 739-40, and Wesley v. Campbell, 779 F.3d 421, 433-34 (6th Cir. 2015), without elaboration. Though we cannot know for sure, it‘s a fair guess that the district court relied on Wesley‘s assertion (adopted by Buddenberg) “that ‘it is generally inappropriate for a district court to grant a 12(b)(6) motion to dismiss on the basis of qualified immunity.‘” Buddenberg, 939 F.3d at 738-39 (quoting Wesley, 779 F.3d at 433). The court erred by doing so.
We held, long before Buddenberg and Wesley, that district courts have “a duty to address” qualified immunity when it is “properly raised prior to discovery.” Summers, 368 F.3d at 886; see also Skousen, 305 F.3d at 527 (“[T]he district court was required to determine—prior to permitting further discovery—whether [the plaintiff‘s] complaint alleged the violation of a constitutional right at all, and if so, whether that right was clearly established[.]“). After all, qualified immunity shields government defendants not merely from liability, but also from litigation and discovery, because “[i]nquiries of this kind can be peculiarly disruptive of effective government.” Harlow, 457 U.S. at 817; see also Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987) (re-affirming that qualified immunity protects officials from “broad-ranging discovery” (cleaned up)). Buddenberg and Wesley could not have disturbed that long-settled precept, see, e.g., Salmi v. Sec‘y of Health & Hum. Servs., 774 F.2d 685, 689 (6th Cir. 1985), so they could not (and do not) give license to deny qualified immunity, without a reasoned opinion, whenever the defense is raised in a Rule 12 motion.
However, as we recently explained in Crawford, Wesley does have a point: analyzing the second prong of qualified immunity—whether the alleged constitutional violation is clearly established—“is sometimes difficult” on the pleadings, since that “inquiry may turn on case-specific details that must be fleshed out in discovery.” Crawford, 15 F.4th at 765 (collecting cases); see also Siefert v. Hamilton County, 951 F.3d 753, 761 (6th Cir. 2020) (“Without more than the complaint to go on, the court ‘cannot fairly tell whether a [right] is “obvious” or “squarely governed” [and thus clearly established] by precedent,’ making qualified immunity inappropriate.” (quoting Guertin v. Michigan, 912 F.3d 907, 917 (6th Cir. 2019))),
Still, that “is only a ‘general preference,’ not an absolute one.” Siefert, 951 F.3d at 761 (quoting Guertin, 912 F.3d at 917); Crawford, 15 F.4th at 765 (explaining that “the inquiry is nuanced” and not reducible to a hard-and-fast rule). In some cases, the clearly established prong may be determined on the pleadings. Indeed, Buddenberg itself determined, on appeal from the denial of a motion to dismiss raising qualified immunity, that the plaintiff‘s “right to report public corruption, unethical conduct, and sex-based discrimination within her workplace was clearly established.” Buddenberg, 939 F.3d at 741.
More importantly, Crawford made crystal clear that that general preference does not at all cover qualified immunity‘s first prong—whether the complaint plausibly alleged a constitutional violation. Crawford, 15 F.4th at 764-65 (discussing Iqbal, 556 U.S. at 687, which reversed the denial of qualified immunity raised in a
So, in this case, as in every other case in which a defendant timely raises qualified immunity, the district court was required to determine whether Myers plausibly alleged a constitutional violation and, if so, whether that right was clearly established. See Skousen, 305 F.3d at 527. But we need not vacate the district court‘s order and remand because, based on our de novo review of the pleadings, we answer both of those questions in the affirmative.
V. Qualified Immunity
A. Constitutional Violation: First Amendment Retaliation
Myers claims that the defendants violated the First Amendment by retaliating against him for writing the Brannon Letter.3 A First Amendment retaliation claim has three elements:
- the plaintiff engaged in protected conduct [i.e., constitutionally protected speech];
- an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and
- . . . the adverse action was motivated at least in part by the plaintiff‘s protected conduct.
Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). The defendants challenge only the first element, arguing that the Brannon Letter is not protected speech. We address only that element too.
“[A]lmost all speech is protected[,] other than ‘in a few limited areas.‘” Novak v. City of Parma, 932 F.3d 421, 427 (6th Cir. 2019) (quoting United States v. Stevens, 559 U.S. 460, 468 (2010)); see also Thaddeus-X, 175 F.3d at 388 (describing the “multiple levels of protection for different types of speech“). Things get complicated, however, when a public employee speaks—because such speech pits the employee‘s interests in speaking freely against the employer‘s interests in running an efficient workplace. See generally Connick v. Myers, 461 U.S. 138, 142 (1983); Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).
Courts use a three-prong test to determine if a public employee‘s speech is constitutionally protected. See generally Handy-Clay v. City of Memphis, 695 F.3d 531, 540 (6th Cir. 2012). First, the employee must have spoken as a private citizen, not “pursuant to [his or her] official duties.” Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). Second, the speech must involve “matters of public concern.” Connick, 461 U.S. at 143. Third, the employee‘s interests, “as a citizen, in commenting upon matters of public concern,” must outweigh “the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering, 391 U.S. at 568. Whether a public employee‘s speech is constitutionally protected is a question of law. Mayhew, 856 F.3d at 463.
As to the Brannon Letter, the defendants challenge only prongs two and three—arguing that the letter did not involve a matter of public concern and that, even if it did, Myers‘s interests in writing the letter did not outweigh the City‘s interests in running an efficient workplace. We therefore assume that Myers wrote the Brannon Letter as a private citizen, and we analyze only prongs two and three.
a. Matters of Public Concern
General Principles. To determine whether speech involves a matter of public concern, we consider “the content, form, and context of [the] statement, as revealed by the whole record.” Connick, 461 U.S. at 147-48. “While motive for the speech is a relevant factor, . . . ‘the pertinent question is not why the employee spoke, but what he said.‘” Westmoreland v. Sutherland, 662 F.3d 714, 719 (6th Cir. 2011) (quoting Farhat v. Jopke, 370 F.3d 580, 591 (6th Cir. 2004)). That means “[w]e examine ‘the point of the speech in question[.]‘” Mayhew, 856 F.3d at 467 (quoting Boulton v. Swanson, 795 F.3d 526, 534 (6th Cir. 2015)).
We next ask whether that point concerned the public. Broadly stated, “speech involves a matter of public concern when it can fairly be considered to relate to ‘any matter of political, social, or other concern to the community.‘” Westmoreland, 662 F.3d at 719 (quoting Connick, 461 U.S. at 146). Put differently, speech concerns such matters “when it ‘is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.‘” Lane v. Franks, 573 U.S. 228, 241 (2014) (quoting Snyder v. Phelps, 562 U.S. 443, 453 (2011)).
For example, “we have consistently reiterated that allegations of public corruption ‘are exactly the type of statements that demand strong First Amendment protections.‘” Mayhew, 856 F.3d at 468 (quoting Handy-Clay, 695 F.3d at 543-44). So too are statements “[e]xposing governmental
At the other end of the spectrum is “the quintessential employee beef: management has acted incompetently.” Barnes v. McDowell, 848 F.2d 725, 735 (6th Cir. 1988) (quoting Murray v. Gardner, 741 F.2d 434, 438 (D.C. Cir. 1984)). Hence, speech about “internal personnel disputes” generally does not involve matters of public concern. Brandenburg v. Hous. Auth. of Irvine, 253 F.3d 891, 898 (6th Cir. 2001). After all, “the First Amendment does not require a public office to be run as a roundtable for employee complaints over internal office affairs.” Connick, 461 U.S. at 149.
However, even if speech addresses an internal personnel dispute, it may involve a matter of public concern if the dispute arose from “actual or potential wrongdoing or any breach of the public trust.” Brandenburg, 253 F.3d at 898 (quoting Brown v. City of Trenton, 867 F.2d 318, 322 (6th Cir. 1989)). The distinction makes sense given the competing rationales. Most internal personnel disputes implicate only “the employee‘s personal interest[s] qua employee,” Brown, 867 F.2d at 322, while disputes arising from wrongdoing or breaches of trust implicate broader interests in good governance and democratic control, see id.; Farhat, 370 F.3d at 590 (noting speech containing information that facilitates “informed decisions about the operation of . . . government” involves a matter of public concern).
Here, we have little trouble concluding that the Brannon Letter addresses a matter of public concern.4 We first determine the “point” of the letter—based mainly on its content, not Myers‘s motives for writing it. Rodgers v. Banks, 344 F.3d 587, 600 (6th Cir. 2003). We then ask whether that point addressed a matter of public concern. Id.
The Letter‘s Point. Recall that Myers wrote the letter in support of Brad Kavalunas, a Public Works employee who was fired for alleged workplace misconduct. Myers began the letter by stating that he‘s known Kavalunas for 24 years, that he vouches for Kavalunas‘s “personality,” “character,” and “reputation,” and that he was “surprised and saddened” to learn of the alleged misconduct. After giving that preamble, Myers proceeded to the heart of his letter, concluding with these two paragraphs:
Along the way, I have also witnessed many instances of what I will refer to as “shop or locker room talk” between various employees of the Public Works staff over the years. While the language used was frequently inappropriate and often displayed someone‘s poor attempt at humor, I can say that I never witnessed any situation that bordered on illegal or hate speech. Instead, what I observed was a culture where grown men were accustomed to behaving as adolescents, sometimes using crude jokes or inappropriate language during their social interactions. Furthermore, this type of conduct
was pervasive and not limited to just a select few employees. My lay opinion is that the workplace conduct alleged in this instance is or was much more systemic. The use of this type of language was just part of the everyday norm and had in a sense became the culture at Public Works over the last two decades. While this type of conduct should certainly not be justified, it seems ill-advised to single out one individual as the “poster child” for the same or similar conduct displayed by many in the same group over the last two plus decades. Given Brad‘s past performance during his long-tenured career, it seems that the City would have been better served to find an alternative to termination. Knowing Brad, the way that I have, it seems to me a demotion, suspension and/or training would have corrected his alleged misconduct and the City would have been able to keep a diligent, trustworthy and dependable individual in their employ.
Simply put, the letter voiced Myers‘s concern that Kavalunas was unfairly fired for misconduct that the City otherwise tolerated. Indeed, Myers directly asserted “that the workplace conduct alleged in this instance“—i.e., the misconduct allegations lodged against Kavalunas—“is or was much more systemic” within Public Works, which made it unfair to single-out Kavalunas for that conduct.
The Letter Addresses a Matter of Public Concern. Viewing the letter‘s point as such, it addresses a matter of public concern for two interrelated reasons. First, the letter complained about an unfair firing. In Mayhew, we held that complaining about an employer‘s failure to follow normal hiring practices involves a matter of public concern, at least where the complaint was “not made merely for [the employee‘s] personal reasons“—i.e., the employee did not speak merely to get the job that was traded away. Mayhew, 856 F.3d at 469 (quoting Handy-Clay, 695 F.3d at 544); see also Banks v. Wolfe Cnty. Bd. of Educ., 330 F.3d 888, 897 (6th Cir. 2003) (finding that speech addressing “favoritism/nepotism in hiring” involves a matter of public concern). Myers‘s letter spoke to an analogous idea: that Kavalunas was unfairly fired. We see no material distinction between commenting on an unfair hiring (as in Mayhew) and an unfair firing (as here). And Myers obviously was not gunning for Kavalunas‘s job, so he did not speak for “personal reasons” in the way meant in Mayhew, 856 F.3d at 469.
Second, and more importantly, Myers viewed the firing as unfair not simply because Kavalunas is a good worker; instead, it was unfair because the City had previously tolerated similar “actual or potential wrongdoing,” Connick, 461 U.S. at 148, something the public certainly has an interest in learning about, see Garcetti, 547 U.S. at 425 (noting that “[e]xposing governmental inefficiency and misconduct is a matter of considerable significance” (emphasis added)); Hudson v. City of Highland Park, 943 F.3d 792, 797-98 (6th Cir. 2019) (holding that a firefighter‘s “complain[ing] about the poor administration of the fire department“—which tolerated other firefighters “watching pornography in communal spaces and engaging in extramarital affairs at the fire