               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 19a0368n.06

                                          No. 18-6167

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT                              FILED
                                                                                Jul 17, 2019
                                                                           DEBORAH S. HUNT, Clerk
SHAUN BURGETT,                                          )
                                                        )
       Plaintiff-Appellee,                              )   ON APPEAL FROM THE UNITED
                                                        )   STATES DISTRICT COURT FOR
v.                                                      )   THE MIDDLE DISTRICT OF
                                                        )   TENNESSEE
KENNETH WILBER, et al.,                                 )
                                                        )
       Defendants-Appellants.                           )   OPINION



       Before: SILER, COOK, and NALBANDIAN, Circuit Judges.

       PER CURIAM. Kenneth Wilber and Anthony H. Heavner appeal the district court’s order
denying their motion for summary judgment, asserting their entitlement to qualified immunity
from Shaun Burgett’s retaliation claim brought under 42 U.S.C. § 1983. The parties have waived
oral argument, and this panel unanimously agrees that oral argument is not needed. See Fed.
R. App. P. 34(a).
       In his complaint, Burgett, a former police officer, alleged that Wilber, mayor of Portland,
Tennessee, recommended that the City Council terminate Burgett’s employment. Burgett invoked
the city’s internal appeal process and asked the City Council to reject that recommendation. After
an evidentiary hearing, the City Council overruled Wilber’s decision to terminate. Wilber then
consulted with Heavner, the police chief, and then placed Burgett on unpaid suspension, mandated
counseling and a psychological examination, noted that they would discuss job assignments, and
warned of potential disciplinary action if standards were not met. When Burgett’s suspension
ended, Heavner informed Burgett of changes to his job assignment, including his patrol unit
assignment and his responsibility for special events and animal control calls, among other things.
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Burgett further alleged that his new assignments made him the subject of ridicule and compelled
him to resign as a police officer.
        Burgett claimed, in pertinent part, that Wilber and Heavner were liable under § 1983
because they retaliated against him for requesting a hearing before the City Council and prevailing.
Wilber and Heavner—along with a co-defendant who did not join in this appeal—moved for
summary judgment, arguing that Burgett’s retaliation claim failed and that they were entitled to
qualified immunity. The district court determined that neither Wilber nor Heavner was entitled to
qualified immunity. This appeal followed.
        An order denying qualified immunity is immediately appealable and our review is de novo.
Jacobs v. Alam, 915 F.3d 1028, 1039 (6th Cir. 2019). Once a government official claims he is
entitled to qualified immunity, the plaintiff must show that he is not entitled to qualified immunity
by establishing “that the official violated a statutory or constitutional right” and “that the right was
clearly established at the time of the challenged conduct.” Id. (quoting Ashcroft v. al-Kidd, 563
U.S. 731, 735 (2011)). The latter prong sets up an exacting standard in which the plaintiff must
show that “every reasonable official would understand that what he is doing is unlawful.” District
of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (internal citations and quotation marks omitted).
“It is not enough that the rule is suggested by then-existing precedent—it must be “beyond debate”
and “settled law.” Id. at 589–90 emphasis added) (quoting Hunter v. Bryant, 502 U.S. 224, 228
(1991)).
        On appeal, Wilber and Heavner primarily argue that they were entitled to qualified
immunity because Burgett was not engaged in protected conduct when he appealed to the City
Council.1 In general, a constitutional retaliation claim under § 1983 requires proving that “(1) [the
plaintiff] engaged in protected conduct; (2) the defendant took an adverse action against him ‘that


        1
          Burgett claims that the defendants waived this argument by not presenting it below.
Appellee Br. at 19. But in their motion for summary judgment, the officers raised this precise point.
They argued that “no reasonable public official could have concluded that Plaintiff was exercising
a protected constitutional right when he requested and received a hearing before the City Council
appealing the Defendant Wilber's termination decision.” R. 30 at pp. 23–24. That’s the argument
raised again on appeal.
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would deter a person of ordinary firmness from continuing to engage in that conduct’; and (3) that
the adverse action was taken (at least in part) because of the protected conduct.” Thomas v. Eby,
481 F.3d 434, 440 (6th Cir. 2007) (quoting Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir.
1999) (en banc)). But that standard only describes the general contours of a retaliation claim.
Thaddeus-X, 175 F.3d at 394. And as we have previously explained, it “will yield variations in
different contexts.” Id.
        This poses a problem for Burgett, who must show that “every reasonable official would
understand that what [the defendants did] was unlawful.” Wesby, 138 S. Ct. at 589. Ordinarily, a
claim for retaliation under § 1983 sounds in the First Amendment. See, e.g., Thomas, 481 F.3d at
440. In those cases, we ask whether the employee “spoke as a citizen on a matter of public
concern.” Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379, 386 (2011). But here, Burgett makes
no argument that the First Amendment applies or that he spoke on a matter of public concern.
Rather, he asserts that the city retaliated against him for invoking his right to procedural due
process (a dubious proposition on its own).2 Yet he cites no caselaw clearly establishing that the
defendants can be liable under § 1983 for retaliating against Burgett after he invoked the city’s
internal appeal process to review the termination decision. See Wesby, 131 S. Ct. at 589 (“To be
clearly established, a legal principle must have a sufficiently clear foundation in then-existing
precedent.”).The failure to point to any such retaliation law prevents Burgett from overcoming
qualified immunity. Id. (“The precedent must be clear enough that every reasonable official would
interpret it to establish the particular rule the plaintiff seeks to apply.”).
        The district court made a similar error below. In addressing the defendants’ argument that
Burgett has no constitutionally protected right to appeal his termination proceeding, the district
court only cited cases arising from the First Amendment. See R. 42, PageID 1154–55. But, again,


        2
           While the Fourteenth Amendment requires that public employees with a property interest
in their job receive a due-process hearing before (or sometimes after) a termination decision, we’re
doubtful it creates a constitutionally protected interest in the internal appeal process that the
employer might have enacted after providing a hearing. See Mitchell v. Fankhauser, 375 F.3d 477,
481 (6th Cir. 2000) (“This is not to say that two hearings are always required to satisfy due
process.”).
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Burgett has not made a First Amendment argument. And so those cases would not put “every
reasonable official” on notice that the alleged retaliation was unlawful. See Wesby, 131 S. Ct. at
589.
       The defendants are entitled to qualified immunity. We therefore REVERSE the district
court’s order denying summary judgment.3




       3
        Because he is entitled to qualified immunity for other reasons, we need not address
Heavner’s alternative argument that he cannot be liable under an “influential recommender”
theory.
