01-6460 | 6th Cir. | Aug 5, 2003
(cid:45) SILER, Circuit Judge. Plaintiffs, Sergeant Dick I. Taylor (cid:45) and Officer Robert J. Taylor, brought a civil rights action
and official capacity; (cid:45) pursuant to 42 U.S.C. § 1983 against several City of S ERGEANT G ORDON C ATLETT , (cid:45) Knoxville supervisory police officers in their individual and S R ., in his individual and (cid:45) official capacities. The Taylors alleged that the defendants official capacity, (cid:45) retaliated against them for the exercise of their First Defendants-Appellees. (cid:45) Amendment rights. The district court granted summary (cid:45) judgment in favor of the defendants on the basis that the (cid:45) Taylors did not engage in protected speech. For the reasons (cid:78) that follow, we REVERSE the judgment of the district court
and REMAND for further proceedings. Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville. I. BACKGROUND No. 99-00057—James H. Jarvis, District Judge. On December 14, 1997, police officers Robert Taylor and Argued: May 6, 2003 Toby Wells attempted to serve an arrest warrant on Jack Longmire. Longmire resisted arrest and, in the course of the
1 No. 01-6460 Taylor, et al. v. Keith, et al. 3 4 Taylor, et al. v. Keith, et al. No. 01-6460 struggle, Officer Taylor called for emergency assistance and been a problem with Szczepanowski and decided to conduct was accidentally sprayed with pepper spray. The officers their own investigation. Captain Davis instructed one of his eventually succeeded in placing Longmire in handcuffs and lieutenants to investigate the report. Sergeant White informed forcing him to the ground next to the squad car. Internal Affairs that he had left Szczepanowski written
instructions to make a statement about the incident. Shortly after Longmire was subdued, Officer John Szczepanowski was not interviewed, however, because he Szczepanowski arrived at the scene. Officers Taylor and was on medical leave due to injuries sustained in connection Wells left Longmire in the custody of Szczepanowski while with an arrest made on December 17 wherein he broke the they went to flush the pepper spray out of Taylor’s eyes. suspect’s leg. When they returned, the officers found Longmire lying face down with blood flowing from the right side of his head. On January 8, 1998, after Sergeant Taylor saw
Szczepanowski at roll call, he approached his supervisor, Officer Taylor’s father, Sergeant Dick Taylor, who was Lieutenant Gordon Catlett, Jr., to express concern about covering for Sergeant Roger White, also responded to the Szczepanowski’s returning to active duty. Sergeant Taylor emergency call. Upon arriving at the scene, Sergeant Taylor testified that he told Lieutenant Catlett: was informed that Longmire resisted arrest. He proceeded to treat Longmire’s wounds and directed another officer to wash [S]ince you are a lieutenant, it may be a good idea for Longmire’s blood from the asphalt. Sergeant Taylor briefed you to use your influence, if this boy does have a Sergeant White when he arrived, and the two questioned Mrs. problem, to get him moved or to get him out of the area Longmire about what she had witnessed during her husband’s he was in. He was working in a high crime area and the arrest. When Mrs. Longmire expressed concern about the impression that I got was that he needed to be moved. . . . beating her husband received, Sergeants Taylor and White Sergeant Taylor’s inquiry prompted Internal Affairs to reopen explained that she could file an abuse complaint with Internal the investigation. Affairs. Mr. Longmire was later advised about the procedure for filing a complaint.
The Taylors cooperated with the Internal Affairs investigation and both implicated Szczepanowski in their The following day, Officer Taylor filled out the required formal statements. At the conclusion of the investigation, Use of Force Report wherein he implicated Szczepanowski in however, the Taylors were terminated by Chief Keith at the the beating of Longmire. Taylor’s report stated that he could recommendation of Captain Davis, Deputy Chief Robert not explain how Longmire’s head injury occurred since Coker, and Sergeant Catlett for allegedly covering up the Longmire was not bleeding when he was left in Szczepanowski incident. The City alleged that Officer Taylor Szczepanowski’s custody. Upon review of this report, Chief intentionally falsified information in Longmire’s resisting- of Police Phillip Keith directed Sergeant Gordon Catlett, Sr. arrest warrant. The arrest warrant stated that Longmire’s of Internal Affairs to investigate the matter. Internal Affairs injuries occurred when he fell to the pavement while contacted Longmire, who declined to give a statement, and struggling with the officers, whereas the Use of Force Report the investigation was closed.
indicated that Longmire’s injuries occurred while in the Captain Dan Davis and Sergeant White reviewed Officer custody of Szczepanowski. Moreover, Wells testified that Taylor’s Use of Force Report. They felt that there may have Officer Taylor asked him whether he would cover for No. 01-6460 Taylor, et al. v. Keith, et al. 5 6 Taylor, et al. v. Keith, et al. No. 01-6460 Szczepanowski. As for Sergeant Taylor, the City alleged that The defendants moved for summary judgment on grounds he failed to take appropriate action regarding allegations of of qualified immunity, claiming that the evidence failed to officer abuse and improperly processed evidence when he show a violation of a clearly established right. The district washed away Longmire’s blood without calling criminalistics court granted the defendants’ motion for summary judgment, to process the scene. holding that the Taylors failed to state a claim of unlawful
retaliation because they did not establish that they were The Taylors filed grievances regarding their terminations. punished for speaking on a matter of “public concern.” After a hearing, the Administrative Hearing Officer found “overwhelming evidence” that the investigation was initiated II. STANDARD OF REVIEW as a result of the Use of Force Report prepared by Officer This court reviews a grant of summary judgment de novo . Taylor and renewed upon concerns expressed by Sergeant Dambrot v. Cent. Michigan Univ. , 55 F.3d 1177" date_filed="1995-06-05" court="6th Cir." case_name="Keith Dambrot v. Central Michigan University">55 F.3d 1177, 1182 (6th Taylor. This evidence, she concluded, was wholly Cir. 1995). Summary judgment should be granted when “the inconsistent with the City’s allegation that the Taylors pleadings, depositions, answers to interrogatories, and attempted to cover up the Longmire incident. The Taylors admissions on file, together with the affidavits if any, show were ordered reinstated with full back pay.
that there is no genuine issue as to any material fact and that The defendants appealed to the Chancery Court for Knox the moving party is entitled to a judgment as a matter of law.” County, which set aside the decision of the Hearing Officer Fed. R. Civ. P. 56(c). When reviewing a motion for summary and ordered reinstatement with an oral reprimand for Officer judgment, all inferences drawn from the facts must be Taylor and reinstatement with a 30-day suspension for reviewed in the light most favorable to the nonmoving party. Sergeant Taylor. As a consequence, the Taylors appealed to See Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 the Tennessee Court of Appeals. The court of appeals U.S. 574, 587 (1996). reversed the chancery court judgment with respect to Sergeant III. DISCUSSION Taylor, reinstating him with full back pay and no suspension. The court upheld the Chancellor’s decision with respect to
A public employee has a constitutional right to comment on Officer Taylor. matters of public concern without fear of reprisal from the government as employer. Connick v. Myers , 461 U.S. 138" date_filed="1983-04-20" court="SCOTUS" case_name="Connick Ex Rel. Parish of Orleans v. Myers">461 U.S. 138,
The Taylors filed the instant lawsuit against the defendants 140, 145-46 (1983); Pickering v. Bd. of Educ. , 391 U.S. 563" date_filed="1968-06-03" court="SCOTUS" case_name="Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty.">391 U.S. 563, in their individual and official capacities. The complaint 574 (1968). Thus, even though the government has greater alleged that the defendants retaliated against them for the authority to regulate the speech of its employees than it has in exercise of their First Amendment Rights. Specifically, the regulating the speech of the public at large, public employers Taylors claimed they were wrongfully terminated for refusing cannot silence their employees simply because they to remain silent and, upon reinstatement, were subjected to disapprove of their speech. See Rankin v. McPherson , 483 further retaliation (loss of clothing and equipment, increased U.S. 378, 384 (1987). “[R]etaliation by a government scheduling on holidays and weekends, and denial of training employer against an individual who exercises his First and career advancement opportunities), which continues to
Amendment rights constitutes a First Amendment violation.” this day. Perry v. McGinnis , 209 F.3d 597" date_filed="2000-04-13" court="6th Cir." case_name="Everett Perry v. Kenneth McGinnis">209 F.3d 597, 604 (6th Cir. 2000). No. 01-6460 Taylor, et al. v. Keith, et al. 7 8 Taylor, et al. v. Keith, et al. No. 01-6460 This circuit has a established a three-step process for U.S. at 146; see also Charvat v. Eastern Ohio Reg’l evaluating a public employee’s claim of unlawful retaliation. Wastewater Auth. , 246 F.3d 607, 617 (6th Cir. 2001); First, the employee must establish that his speech is protected. Chappel v. Montgomery County Fire Protection Dist. No. 1 , To accomplish this, the employee must show that his speech 131 F.3d 564" date_filed="1997-11-14" court="6th Cir." case_name="Robert Chappel v. Montgomery County Fire Protection District No. 1 Montgomery County Ambulance District">131 F.3d 564, 579 (6th Cir. 1997) (“Constitutional protection touches on a matter of public concern, Connick , 461 U.S. at for speech on matters of public concern is not premised on the 147, and demonstrate that his interest in the speech outweighs communication of that speech to the public.”). Speech the government’s countervailing interest in promoting the touches upon a matter of public concern if it can be “fairly efficiency of the public service it provides as an employer. considered as relating to any matter of political, social or Pickering, 391 U.S. 563" date_filed="1968-06-03" court="SCOTUS" case_name="Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty.">391 U.S. at 574. This determination is a question other concern to the community.” Connick , 461 U.S. 138" date_filed="1983-04-20" court="SCOTUS" case_name="Connick Ex Rel. Parish of Orleans v. Myers">461 U.S. at 146. of law for the court to decide. Connick , 461 U.S. 138" date_filed="1983-04-20" court="SCOTUS" case_name="Connick Ex Rel. Parish of Orleans v. Myers">461 U.S. at 148 n.10. Absent unusual circumstances, however, “when a public Second, the employee must show that the employer’s adverse employee speaks not as a citizen upon matters of public action would chill an ordinary person in the exercise of his concern, but instead as an employee upon matters only of a First Amendment rights. Cockrel v. Shelby County Sch. Dist. , personal interest,” his speech is not afforded constitutional 270 F.3d 1036" date_filed="2001-11-09" court="6th Cir." case_name="Donna Cockrel v. Shelby County School District">270 F.3d 1036, 1048 (6th. Cir. 2001). Finally, the employee protection. Id. at 147. must present sufficient evidence to create a genuine issue as “Whether an employee’s speech addresses a matter of to whether his speech was a substantial or motivating factor public concern must be determined by the content, form, and in the employer’s decision to discipline or dismiss. Mt. context of a given statement, as revealed by the record as a Healthy City Sch. Dist. Bd. of Educ. v. Doyle , 429 U.S. 274" date_filed="1977-01-11" court="SCOTUS" case_name="Mt. Healthy City School District Board of Education v. Doyle">429 U.S. 274, whole.” Id. at 147-48. The essence of the Taylors’ argument 287 (1977).
is that the content of their speech--alleged police brutality-- A. Matter of Public Concern addresses a matter of inherent public concern. Moreover, they assert that their speech should be afforded constitutional The district court held that Officer Taylor’s speech did not protection because its purpose was to “bring to light actual or touch on a matter of public concern because his speech potential wrongdoing or breach of public trust.” See Brown v. merely consisted of a report made in the course of his City of Trenton , 867 F.2d 318" date_filed="1989-02-09" court="6th Cir." case_name="Gerald Brown James Menna Gregory Plagens v. The City of Trenton">867 F.2d 318, 322 (6th Cir. 1988); Marohnic employment. In so ruling, the court noted that the report v. Walker , 800 F.2d 613" date_filed="1986-09-10" court="6th Cir." case_name="William Marohnic v. Richard Walker and the Barren River Regional Mental Health-Mental Retardation Board, Incorporated">800 F.2d 613, 616 (6th Cir. 1986) (holding that contained no accusation of excessive force and was not statements regarding the operation of public organizations in disclosed to the public. Similarly, the court concluded that accordance with law are matters of public concern). Sergeant Taylor’s comment to Lieutenant Catlett was not protected because it addressed an internal personnel matter Relying on Thomson v. Scheid , 977 F.2d 1017 (6th Cir. and did not express an opinion that Szczepanowski violated 1992), the defendants contend that, even if the Taylors’ Longmire’s rights. For reasons explained below, we reverse speech indirectly implicates a matter of public concern, none the decision of the district court. of their statements is protected because they were made in the
course of their employment, not in their role as a private Although it was not necessary for the Taylors to have citizen. In Thomson , the plaintiff, a fraud investigator, argued spoken to the press or to the general public in order for their that his conversation with a supervisor and his decision to speech to be protected, Givhan v. Western Line Consol. Sch. send a report detailing potential fraud involving a local Dist ., 439 U.S. 410" date_filed="1979-01-09" court="SCOTUS" case_name="Givhan v. Western Line Consolidated School District">439 U.S. 410, 412 (1979), some aspect of their speech county official to the Inspector General were protected. Id. at must touch upon a matter of public concern. Connick , 461 1020-21. In reviewing the plaintiff’s claim, this court No. 01-6460 Taylor, et al. v. Keith, et al. 9 10 Taylor, et al. v. Keith, et al. No. 01-6460 determined that the plaintiff’s conversation with his of a classroom lesson, cannot touch upon a matter of public supervisor about the investigation, her reminder to him that concern because “a teacher, in choosing what he or she will his investigation was confidential, and her warning not to teach his students, is not speaking as a citizen, but rather as an pursue the matter without following department procedures, employee on matters of private interest.” Id. at 1051. Instead, concerned his duties as an employee and addressed only we held that a public teacher’s speech, made in the role of matters of internal department policy. Therefore, his speech employee, is protected so long as the speech itself addresses could not be considered a matter of public concern. Id. We a matter of public concern. Id. at 1052 (“[A]lthough also concluded that the plaintiff’s decision to turn over his [Cockrel] was speaking in her role as an employee when report to the Office of the Inspector General was not protected presenting information on the environmental benefits of because the plaintiff’s contact was approved by his industrial hemp, the content of her speech. . . most certainly supervisors, which made his contact an action in the course of involved matters related to the political and social concern of his employment. Id. In making these determinations, this the community, as opposed to mere matters of private court stated that “First Amendment protection extends to a interest.”). In doing so, we concluded that the Supreme Court public employee’s speech when he speaks as a citizen, on a made clear in Connick that “the key question is not whether matter of public concern, but does not extend to speech made a person is speaking in his role as an employee or citizen, but in the course of acting as a public employee.” Id. whether the employee’s speech in fact touches on a matter of
public concern.” [1] Id. at 1052. The defendants seize upon this language and argue that when a public employee speaks in his role as a public In this regard, the defendants argue that the Taylors’ speech employee, his speech cannot touch on a matter of public cannot be characterized as an attempt to “bring to light” concern. This argument, in our opinion, relies on an overly police brutality since neither officer unequivocally stated that broad reading of Thomson . Immediately after stating the Szczepanowski used excessive force. In their view, Officer language relied upon by the defendants, the Thomson court Taylor’s speech amounts to nothing more than recording the explained that “[n]ot all matters discussed within a arrest incident and advising Longmire’s wife of her husband’s government office are of public concern, and thus internal rights pursuant to police procedure. Further, they assert that office communication does not necessarily give rise to a Sergeant Taylor’s comments fall short of alleging potential constitutional claim.” Id. at 1020-21 (emphasis added). wrongdoing, since he merely suggested that “if Thomson therefore did not purport to strip public employees of the First Amendment’s protection for all speech that occurs No. 01-6460 Taylor, et al. v. Keith, et al. 11 12 Taylor, et al. v. Keith, et al. No. 01-6460 Szczepanowski did have a problem, it might be a good idea Accordingly, the Taylors’ speech touches on a matter of to move him out of a high crime area.” public concern.
When examining the content of speech, “the proper inquiry B. Causation [is] not what might incidentally be conveyed by the fact that Next, the defendants contend that the Taylors cannot the employee spoke in a certain way, [but] the point of the
establish that the decision to terminate them was motivated, speech in question.” Dambrot , 55 F.3d 1177" date_filed="1995-06-05" court="6th Cir." case_name="Keith Dambrot v. Central Michigan University">55 F.3d at 1187 (emphasis in in part, by the exercise of their First Amendment rights. They original). The point of the speech, however, is not to be assert that the Taylors have failed to rebut the defendants’ confused with the speaker’s motivation for speaking. declarations stating that the Taylors were disciplined for Chappel , 131 F.3d 564" date_filed="1997-11-14" court="6th Cir." case_name="Robert Chappel v. Montgomery County Fire Protection District No. 1 Montgomery County Ambulance District">131 F.3d at 575. The inquiry is primarily concerned reasons wholly unrelated to the free exercise of speech. The with what the speaker intended to communicate through his defendants further maintain that the Taylors cannot explain statement, and not his reasons for speaking. Id. at 575 (“The how firing them would have resulted in silencing them about motive which underlies an employee’s statements is a the Longmire incident. relevant, but not necessarily dispositive factor when considering whether an employee’s statements may be fairly
This circuit has held that “the nonmoving party cannot rely characterized as relating to any matter of political, social, or on the mere fact that an adverse employment action followed other concern to the community.”). speech that the employer would have liked to prevent.” Cockrel , 270 F.3d 1036" date_filed="2001-11-09" court="6th Cir." case_name="Donna Cockrel v. Shelby County School District">270 F.3d at 1055. Rather, to survive a motion for
The Taylors’ speech was intended to communicate the summary judgment, the employee must present sufficient potential wrongdoing of a fellow officer. Officer Taylor’s evidence linking his speech to the employer’s adverse report clearly implicated Szczepanowski in the use of decision so that a reasonable factfinder could conclude, by a excessive force. And, although his report contained facts preponderance of the evidence, that the speech, at least in rather than accusations, the purpose of his report was to bring part, motivated the decision to discharge. Id. to light conduct that warranted further investigation to ensure that the arrests were being carried out according to law.
The Taylors have presented adequate evidence suggesting Similarly, Sergeant Taylor’s suggestion to Catlett to use his that the defendants’ actions were partially motivated by their influence to get Szczepanowski moved if there was a problem desire to silence them about the Longmire incident. First, clearly implies that Taylor strongly believed that aside from the temporal proximity between the Taylors’ Szczepanowski had a problem with excessive force, speech and their termination, the Taylors were terminated for particularly since the comment was made soon after Sergeant acts that the department characterized as attempts to cover for Taylor learned that Szczepanowki had broken the leg of Szczepanowski when in fact the Taylors were the impetus for another arrestee. The fact that Sergeant Taylor couched his the investigation. recommendation in terms of “if” does not lessen the allegation of wrongdoing since Sergeant Taylor would not
Second, several other police officers who participated in the have asked Catlett to use his “influence” if he did not intend Longmire arrest also failed to follow department procedures, to communicate that he believed there was a serious problem. yet they were not disciplined or even reprimanded. Officer There is little doubt that, in this context, the Taylors’ Taylor completed the required Use of Force Report and was supervisors perceived their comments as communicating a later terminated when Longmire’s resisting-arrest warrant concern about a fellow officer’s potential for excessive force. No. 01-6460 Taylor, et al. v. Keith, et al. 13 14 Taylor, et al. v. Keith, et al. No. 01-6460 contained facts that were inconsistent with this report. IV. CONCLUSION Officer Wells, who like Taylor observed the Longmire’s For the reasons stated herein, we REVERSE the decision injuries, failed to file a report and was not reprimanded. of the district court and REMAND for further proceedings. Sergeant White, Szczepanowski’s immediate supervisor, who was present on the scene with Sergeant Taylor, failed to file a supervisor report or investigate Szczepanowski’s actions. He received a demotion and a thirty-day suspension, but those sanctions were later rescinded. The department proceeded with charges against Sergeant Taylor for his failure to take appropriate action regarding allegations of officer abuse (remove Szczepanowski from his duties) and his failure to have the evidence (blood) properly processed, despite the fact that he was the only superior officer who pressed for further investigation into Szczepanowski’s alleged abuse.
After reviewing the evidence, a reasonable juror could conclude that the disparate treatment of the officers involved in the Longmire incident shows that the department targeted the Taylors because of their speech. As such, the temporal proximity between the Taylors’ speech, and the manner in which the department disciplined the officers involved, constitute sufficient evidence for the Taylors to create a genuine issue that their speech was a substantial or motivating factor in their termination. C. Qualified Immunity
Lastly, the defendants claim that, even if the Taylors establish a violation of their constitutional rights, they are entitled to qualified immunity. The district court did not reach this issue and we decline to consider this claim in the first instance. See Bauer v. Montgomery , 215 F.3d 656" date_filed="2000-06-21" court="6th Cir." case_name="Louis T. Bauer v. Betty D. Montgomery">215 F.3d 656, 662 (6th Cir. 2000) (holding, under nearly identical circumstances, that this court should not consider a qualified immunity defense where the district court did not reach the issue). Therefore, we remand this issue to the district court for further consideration.
NOTES
[1] in the course of employment. Rather, Thomson simply The decision in Connick does not preclude First Amendm ent implies that the context of the speech (i.e., whether an protection when an emp loyee sp eaks in the cou rse of his emplo yment if employee speaks in the course of his employment) is relevant the employee’s speech involve s a matter of pu blic co ncern. Connick went only so far as to hold tha t: to, but not determinative of, whether the speech touches on a [W]hen a public employee speaks not as a citizen upon matters matter of public concern. of public concern, but instead as an employee upon matters of only personal interest, absent the mo st unusua l circum stances, a Our recent decision in Cockrel , 270 F.3d 1036, which federal court is not the appropriate forum in which to review the implicitly rejects a broad interpretation of Thomson , confirms wisdom of a personnel decision taken by a public agency this view. In Cockrel , we declined to follow other circuits allegedly in reaction to the employee’s behavior. that have held that a teacher’s statements, made in the course Connick , 461 U.S. 138" date_filed="1983-04-20" court="SCOTUS" case_name="Connick Ex Rel. Parish of Orleans v. Myers">461 U.S. at 147 (emp hasis added).