JAMES G. CARR, District Judge.
Plaintiff-Appellant Ruth Mosholder appeals from a grant of summary judgment on her First Amendment retaliation claim to Defendant-Appellees Patricia Barnhardt
For the following reasons, we REVERSE and REMAND the district court's grant of summary judgment.
A. Mosholder's Work History
Mosholder has held the position of Corrections Officer E-9 at the Michigan Department of Corrections' (MDOC) Thumb Correctional Facility (TCF) in Lapeer, Michigan since February, 2001. She became the institution's school officer in 2001. Her primary duty was to maintain order and discipline within the school.
Mosholder received annual performance evaluations generally affirming her competence and enthusiasm in performing her assigned duties. Assigned evaluators performed each evaluation, and Warden Barnhardt or Warden Burton eventually signed off on them.
B. The Rap Competition and Letter
In 2005, TCF began housing youthful offenders. Mosholder believed that these offenders were a "different population" of prisoner, and one which prison management, in her view, coddled.
TCF's administrators, led by Deputy Warden Burton, held a rap competition for youthful offenders on October 3, 2008. TCF partnered with Kettering University to hold the event, the purpose of which was to steer the offenders toward productive expression and possible careers outside of prison. Burton, a Prison Inspector and the head of the correction officers' union, judged the contest. Prison administrators screened the lyrics beforehand and disqualified any competitors whose songs referenced gangs or used profanity.
The parties disagree as to the conduct of the prisoners during the rap competition. Mosholder claims she heard gang references and saw gang signs flashed during the competition. The defendant wardens claim to have heard and seen nothing of the sort. The event passed without incident.
On October 10, 2008, Mosholder sent a letter to several Michigan state Representatives and Senators, including Representative Lee Gonzales:
Some of the more serious incidents we've had so far this year are:
Representative Gonzales contacted Warden Barnhardt to obtain a response to the letter. Barnhardt investigated Mosholder's claims, and drafted a response on October 24, 2008. Barnhardt's office provided the response to Mosholder and Representative Gonzales. Barnhardt's letter reiterated the administrators' view of the October 3, 2008 event. It explained what the administration considered to be the rehabilitative purpose of the competition.
C. Conflict with the School Principal
In December, 2006, TCF hired Laquita Featherstone as the school's principal. Featherstone and Mosholder had multiple run-ins with each other, and Featherstone viewed Mosholder as a too-strict disciplinarian.
In January, 2009, Mosholder and Featherstone had a confrontation over Mosholder's attempt to issue a Major Misconduct Ticket to an inmate. While in a classroom, Mosholder seized paperwork which she believed contained gang-related drawings from the prisoner. She attempted to issue a Major Misconduct Ticket for Destruction or Misuse of State Property Over $10. Featherstone asked Mosholder not to write the ticket, and leave the discipline to the classroom teacher. Mosholder refused, and stated that she would only do so if instructed by her supervisor.
Moreover, inmates complained at a Warden's Forum on January 27, 2009, about Mosholder. Their complaints included a critique of Mosholder's ejection of prisoners from the music room. This, according to the wardens, created potential safety and security problems.
On February 10, 2009, Burton transferred Mosholder from her school officer position to a general corrections officer position. As a result of the transfer, Mosholder would perform rotating duties at the prison in different assignments, come into contact with more of the prison population, and no longer have a work schedule allowing for consistent weekends and holidays off.
E. Procedural History
Mosholder initially filed suit in the Circuit Court in Genesee County, Michigan. Appellees then removed the case to the Eastern District of Michigan on May 12, 2009. On December 9, 2009, Appellees filed a motion for summary judgment, which the district court subsequently denied. On October 4, 2010, Appellees filed a motion in limine on the issue of whether Mosholder's speech was on a matter of public concern. The district court interpreted this motion as a renewed motion for summary judgment. On November 30, 2010, the court granted that motion, ruling that Mosholder did not engage in protected speech. Mosholder timely appealed that order.
Standard of Review
We review a district court's decision to grant summary judgment de novo. Pagan v. Fruchey, 492 F.3d 766, 770 (6th Cir. 2007). A court may grant summary judgment only if there are no genuine issues of material fact and one party is entitled to a judgment as a matter of law. Fed. R.Civ.P. 56(c). The moving party bears the initial burden of demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To support its motion, the moving party may show "that there is an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S.Ct. 2548.
Once the moving party satisfies its initial burden, the burden shifts to the nonmoving party to set forth specific facts
Mosholder brings a retaliation claim under the First Amendment. To prove her claim, she must show: "1) she engaged in constitutionally protected conduct; 2) an adverse action was taken against [her] that would deter a person of ordinary firmness from continuing to engage in that conduct; and 3) the adverse action was motivated at least in part by [her] protected conduct." Mezibov v. Allen, 411 F.3d 712, 717 (6th Cir.2005).
The district court's summary judgment opinion concluded Mosholder's speech was not on a matter of public concern. It likewise weighed the competing interests of the parties under Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and found that Appellees' institutional interest in safety and security outweighed Mosholder's free speech interests. On appeal, the parties focus primarily on the district court's determination that Mosholder's speech was not a matter of public concern, with some argument on the Pickering analysis. We address both issues.
1. Mosholder's Speech as a Matter of Public Concern
The First Amendment may afford protection to a public employee's speech about her employer's activities where the speech relates to a matter of public concern. In determining whether such speech has First Amendment protection, a court must, under Pickering, 391 U.S. at 568, 88 S.Ct. 1731, balance the individual's interest in free expression with the employer's interest in effectively operating its public institutions.
The "boundaries of the public concern test are not well defined." San Diego v. Roe, 543 U.S. 77, 83, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004). Generally, an employee speaking as a citizen is speaking on a matter of public concern when that speech can "be fairly considered as relating to any matter of political, social, or other concern to the community." Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Another consideration is whether the speech involves "a subject of general interest and of value and concern to the public." Roe, 543 U.S. at 83-84, 125 S.Ct. 521.
We live in an age where individuals possess a near-limitless ability to speak to audiences who might share their outrage at a particular controversy or allegation, turning the "matter of concern" test into a simple test of whether the statement was made and someone heard it. The more meaningful inquiry, then, calls for looking into "the content, form, and context of a
The district court relied heavily on Brown v. City of Trenton, 867 F.2d 318, 322 (6th Cir.1989), in reaching its finding that Mosholder did not speak on a matter of public concern. In that case, a group of disgruntled police officers serving on the Emergency Response Tactical Team sent a letter to the city's police chief; they also sent copies to several other public officials. The letter contained rather extensive complaints about the management of their team, particular decisions by police administrators, and accusations of administrative jealousy and betrayal. Id. at 319-20. The letter ended with an implied endorsement of a change in administration and an offer to return all of their gear and resign. Id. at 320. The officers later resigned. Id.
This court held that the letter concerned "a matter of limited interest to members of the general public." Id. at 322. Finding "no hint . . . of any actual or potential wrongdoing or breach of public trust," the court affirmed the district court's grant of summary judgment to the city. Id. at 322-25.
The district court determined that Mosholder's letter was little more than a "quintessential employee beef," see Fox v. Traverse City Area Pub. Schs. Bd. of Educ., 605 F.3d 345, 349 (6th Cir.2010) (quoting Barnes v. McDowell, 848 F.2d 725, 735 (6th Cir.1988)), and, as such, did not touch on a matter of public concern. This analysis was incorrect.
There are two ways of reading Mosholder's letter. The first, which the district court embraced, is as the airing of personal complaints about a management practice with which Mosholder disagreed, albeit dressed up as a larger treatise on the prison's failure to rehabilitate inmates properly. The second is as a specific instance of the prison failing to accomplish its rehabilitative goals, as manifest in inmate behavior during the rap competition, accompanied by a series of statistics providing a wider view of the problems.
The second reading more closely adheres to the content, form and context of the letter. "[T]he pertinent question is not why the employee spoke, but what he said. . . ." Farhat v. Jopke, 370 F.3d 580, 591 (6th Cir.2004) (emphasis in original). We are concerned with the distinction between matters of public concern and those only of private interest, "not [between] civic-minded motives and self-serving motives." Chappel v. Montgomery Cnty. Fire Protection, 131 F.3d 564, 575 (6th Cir.1997).
Mosholder disagreed with the operation of an institution charged with protecting the public. She was almost certainly motivated, at least in part, by personal disagreement with the manner in which the prison administration ran TCF. Correct operation of that institution is a matter of public concern. Mattox v. City of Forest Park, 183 F.3d 515, 521 (6th Cir.1999). This court's evaluation of her letter, then, focuses on whether her complaint is merely a matter of private interest—her personal offense at a rap competition, decorated with appended statistics and expressing merely a token concern for the community—or if it remains in the realm of public concern.
The relevant analysis here is whether the communication touches "upon matters only of personal interest. . . ." Connick, 461 U.S. at 147, 103 S.Ct. 1684 (emphasis added). A public concern/private interest analysis does not require that
In Brown, the purpose of the letter was to vent (rather extensively) personal grievances with the administration of the officers' unit, share the officers' perception of jealousy coming from other units, their sense of betrayal by their superiors, and prospectively tender their resignations. No matter the arguable relationship between their grievances and public safety, the complaints in Brown did not concern "actual or potential wrongdoing or any breach of public trust. . . ." 867 F.2d at 322.
Mosholder, on the other hand, lodged complaints about the administration of a public safety facility that, in her view, promoted behavior that could offend victims and their families, and also potentially put prisoners and staff immediately, and the general public eventually, at risk. Whatever her personal motivation, including her own desire to see different policies enacted, she wrote primarily on a matter of public concern.
The Pickering test asks a court to arrive "at a balance between the interests of the [employee], as a citizen, in commenting on 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." 391 U.S. at 568, 88 S.Ct. 1731.
The district court again looked to Brown in determining that the interests of the prison administration outweighed Mosholder's interests. In Brown, the court referenced "the importance of deference to the city's judgment on the matter of discouraging public dissension within its safety forces" in "tip[ping] the scales decisively in favor of the [police department]." 867 F.2d at 322 (citing McMurphy v. City of Flushing, 802 F.2d 191 (6th Cir.1986)). The district court found that, even if Mosholder were speaking on a matter of public concern, the administration's interests in maintaining order and discipline in a prison setting would outweigh Mosholder's interest.
This interpretation of Brown goes too far. Even where the speech criticizes the operations of a public safety official or entity, the Pickering analysis requires a balancing of the "public and social importance" of the speech against the dissension it would cause in the workplace. McMurphy, supra, 802 F.2d at 198 (quoting Hughes v. Whitmer, 714 F.2d 1407, 1421 (8th Cir.1983)). It was not the purpose of Brown, nor is it the rule of this Circuit, that public safety employers have a greater weight placed on their interests in order and discipline than other employers have in their institutional interests.
This court is to "consider whether an employee's comments meaningfully interfere with the performance of her duties, undermine a legitimate goal or mission of the employer, create disharmony among co-workers, impair discipline by superiors, or destroy the relationship of loyalty and trust required of confidential employees." Leary v. Daeschner, 349 F.3d 888, 900 (6th Cir.2003).
Mosholder claims an interest in expressing the need for safe, properly rehabilitative spaces and programs to help prisoners. The wardens point to their interests in promoting order and discipline. On balance, Mosholder's letter did not undermine or threaten to undermine the
There is no indication that Mosholder's letter would materially disrupt her work environment or the performance of her duties. This is bolstered by the time Mosholder served as school officer between the composition of the letter and her transfer to general corrections officer duty, during which any issues that arose were continuations of issues predating the composition of the letter.
The Pickering balancing test favors Mosholder.
For the foregoing reasons, we REVERSE the district court's grant of summary judgment to Appellees and REMAND for further proceedings.