                                                                          RECOMMENDED FOR FULL-TEXT PUBLICATION
24   Perry v. McGinnis, et al.                    No. 98-1607                  Pursuant to Sixth Circuit Rule 206
                                                                       ELECTRONIC CITATION: 2000 FED App. 0133P (6th Cir.)
                                                                                   File Name: 00a0133p.06
raised the matters repeatedly in public fora (although the court
noted that Chappel’s private speech was also protected), his
“speech on these matters was almost entirely undiluted by
speech indicating purely personal interests,” and there was        UNITED STATES COURT OF APPEALS
strong public interest in his speech. Id. at 578. Unlike                         FOR THE SIXTH CIRCUIT
Chappel, however, Perry’s speech addresses only his personal                       _________________
interests.

                                                                                                     ;
  For these reasons, I would affirm the district court’s

                                                                                                      
dismissal of Perry’s free speech claim arising from his             EVERETT PERRY,
                                                                                                      
workplace complaints of race discrimination because his                      Plaintiff-Appellant,
                                                                                                      
speech involved only a personal employment dispute, not a

                                                                                                      
matter of public concern.                                                                                No. 98-1607
                                                                              v.
                                                                                                      
  Finally, because I would affirm the dismissal of Perry’s                                             >
First Amendment allegations, I would also affirm the                KENNETH MCGINNIS, et al.,         
dismissal of his substantive due process claim.                           Defendants-Appellees. 
                                                                                                      
                                                                                                      
                                                                                                     1
                                                                         Appeal from the United States District Court
                                                                        for the Eastern District of Michigan at Detroit.
                                                                      No. 96-71373—Patrick J. Duggan, District Judge.
                                                                                 Argued: November 4, 1999
                                                                              Decided and Filed: April 13, 2000
                                                                     Before: KEITH, NORRIS, and CLAY, Circuit Judges.
                                                                                     _________________
                                                                                          COUNSEL
                                                                   ARGUED:      William Goodman, CENTER FOR
                                                                   CONSTITUTIONAL RIGHTS, New York, New York, for
                                                                   Appellant. Frank J. Monticello, OFFICE OF THE
                                                                   ATTORNEY GENERAL, PUBLIC EMPLOYMENT AND
                                                                   ELECTIONS DIVISION, Lansing, Michigan, for Appellees.
                                                                   ON BRIEF: Julia Ila Sherwin, HADDAD & SHERWIN,

                                                                                               1
2       Perry v. McGinnis, et al.                    No. 98-1607       No. 98-1607                    Perry v. McGinnis, et al.    23

Oakland, California, for Appellant. Frank J. Monticello,               inherently of public concern.” Connick, 461 U.S. at 148 n.8.
OFFICE OF THE ATTORNEY GENERAL, PUBLIC                                 The Court also noted, however, that the speech at issue in
EMPLOYMENT AND ELECTIONS DIVISION, Lansing,                            Givhan was “not tied to a personal employment dispute.” Id.
Michigan, for Appellees.      Frederick M. Baker, Jr.,                 Furthermore, this court has determined that “[t]he fact that an
HONIGMAN, MILLER, SCHWARTZ & COHN, Lansing,                            employee alleges discrimination on the part of a public
Michigan, for Amicus Curiae.                                           employer is not itself sufficient to transform the dispute into
                                                                       a matter of public concern.” Jackson v. City of Columbus,
  KEITH, J., delivered the opinion of the court, in which              194 F.3d 737, 746 (6th Cir. 1999). In Jackson, a public
CLAY, J., joined. NORRIS, J. (pp. 21-24), delivered a                  employee alleged that his right to freedom of speech was
separate opinion concurring in part and dissenting in part.            violated when the city imposed a gag order on him,
                                                                       forbidding him from speaking with the news media about an
                     _________________                                 investigation into his alleged misconduct while the
                                                                       investigation was pending. See id. The court focused on
                         OPINION                                       several points when holding that Jackson had sufficiently
                     _________________                                 alleged that his speech involved a matter of public concern.
                                                                       First, the court noted that Jackson was not an ordinary
  DAMON J. KEITH, Circuit Judge. Plaintiff-Appellant                   employee, but a high-profile member of the community. Id.
Everett Perry (“Perry”) appeals from   the district court’s            at 747. Furthermore, the court indicated that “[b]ecause the
decisions on Defendants-Appellees’1 (the “prison officials”)           investigation involved allegations of corruption and abuse of
motion for summary judgment pursuant to Federal Rule of                power within the Division of Police, as well as the City’s
Civil Procedure (“FRCP”) 56(c) and motion to dismiss for               allegedly racial motivations, the gag order could be construed
failure to state a claim upon which relief can be granted              as covering more than a private employment dispute.” Id.
pursuant to FRCP 12(b)(6). We REVERSE the district                     (emphasis added). Unlike the plaintiff in Jackson, there is no
court’s decisions and REMAND for further consideration                 indication that Perry is alleging speech regarding anything
consistent with this opinion.                                          other than his personal employment dispute.
                        I. Background                                     The case relied upon by the majority, Chappel v.
  On October 30, 1988, Perry, a Black man, was hired by the            Montgomery County Fire Protection District No. 1, 131 F.3d
Michigan Department of Corrections (the “MDOC”) as an                  564 (6th Cir. 1997), does not alter my conclusion. In
Administrative Law Examiner (“ALE”). Specifically, he                  Chappel, the public employee spoke about his concerns as to
worked for the MDOC’s Office of Policy and Hearings as a               serious problems with the finances and management of the
hearing officer and decision maker in major misconduct                 fire and ambulance districts in his area. Chappel had a
                                                                       personal motivation for the speech: if enough people agreed
                                                                       with his concerns, his career could benefit. However, this
                                                                       court did not deem Chappel’s desire to gain from his speech
    1                                                                  as dispositive, even assuming that his predominant motivation
     Defendants-Appellees are Kenneth McGinnis, Director of the        for the speech was to secure a job for himself. See id. at 578.
Michigan Department of Corrections (the “MDOC”); Richard Stapleton,
Manager of the Hearings and Appeals Division of the Office of Policy   Instead, the court determined that the context showed
and Hearings for the MDOC; Marjorie Van Ochten, Administrator of the   Chappel’s speech was on a matter of public concern because
Office of Policy and Hearings for the MDOC; and Leonard Den Houter,    he addressed matters “near the zenith” of public concern, he
Supervisor of the Office of Policy and Hearings for the MDOC.
22    Perry v. McGinnis, et al.                     No. 98-1607      No. 98-1607                      Perry v. McGinnis, et al.       3

While MDOC’s alleged guilty verdict quota may be improper,           disciplinary hearings in Michigan state prisons.               On
the First Amendment is not an appropriate means to address           November 5, 1993, Perry was fired.
the problem.
                                                                        Perry filed his initial complaint on March 27, 1996. After
   I also disagree with the majority’s reliance upon Parate v.       a volley of motions to dismiss and amended complaints, Perry
Isibor, 868 F.2d 821 (6th Cir. 1989). In Parate, this court          filed his final amended complaint on September 20, 1996,
determined that the assignment of a letter grade is symbolic         bringing First and Fifth Amendment claims as well as a
communication intended to send a specific message to a               Fourteenth Amendment equal protection claim, a claim of
student, noting that “[t]he message communicated by the              equal protection violations in contravention of the Michigan
letter grade ‘A’ is virtually indistinguishable from the             Constitution, and a claim of race discrimination in violation
message communicated by a formal written evaluation                  of Michigan’s Elliott-Larsen Civil Rights Act (the
indicating ‘excellent work.’” Id. at 827. In the present case,       “ELCRA”). The prison officials subsequently filed a motion
an analogous message is not at issue. Perry has not suggested        to dismiss for failure to state a claim upon which relief can be
that appellees have interfered with the message of his               granted under FRCP 12(b)(6). On March 14, 1997, the court
opinions to individual prisoners that they were or were not          dismissed Perry’s First and Fifth Amendment claims, but
guilty of misconduct. Instead, Perry focuses on alleged              denied the prison officials’ motion with respect to the equal
speech about MDOC’s requirements for numbers of guilty               protection and ELCRA claims. Perry, soon thereafter,
verdicts. This purported message cannot be implied from              voluntarily dismissed his equal protection claim brought
Perry’s ALE findings with the ease that a message of                 under the Michigan Constitution. On September 16, 1997,
“excellent work” can be implied from the assignment of a             the prison officials filed a motion for summary judgment, and
letter grade “A.” Nor do I find the question of academic             on April 15, 1998, the district court granted summary
freedom analogous to the present situation.                          judgment on the remaining claims. Perry appeals the lower
                                                                     court’s grant of summary judgment for the prison officials as
  For these reasons, I disagree with the majority’s                  well as its grant of the prison officials’ motion to dismiss.
determination that Perry engaged in speech on a matter of
public concern through his ALE findings. Therefore, I would                             II. Race Discrimination
affirm the district court’s dismissal of Perry’s First
Amendment claim premised on speech in his ALE findings,                Perry argues that the district court erred in determining that
albeit on a different ground than that articulated by the district   he failed to raise genuine issues of material fact as to his race
court.                                                               discrimination claims under the Fourteenth Amendment and
                                                                     the ELCRA. We agree.
  The majority also holds that Perry’s internal grievance of
racially disparate treatment is a matter of public concern. I          This Court reviews grants of summary judgment de novo,
disagree. A determination of whether speech involves a               and applies the same standard that the district courts apply.
matter of public concern must be based on the content, form,         That test is set out in FRCP 56(c): “Summary Judgment is
and context of a given statement, as revealed by the whole           only appropriate if the pleadings, depositions, answers to
record. Connick v. Myers, 461 U.S. 138, 147-48 (1983).               interrogatories, and admissions on file, together with the
While discussing Givhan v. Western Line Consolidated                 affidavits, if any, show that there is no genuine issue as to any
School District, 439 U.S. 410, 415-16 (1979), the Supreme            material fact and that the moving party is entitled to judgment
Court has indicated that racial discrimination is “a matter          as a matter of law.” In applying this test, it is well settled that
                                                                     “[t]he evidence of the non-movant is to be believed, and that
4    Perry v. McGinnis, et al.                    No. 98-1607      No. 98-1607                          Perry v. McGinnis, et al.          21

all justifiable inferences are to be drawn in his favor.”          _______________________________________________
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Furthermore, summary judgment is generally not well suited          CONCURRING IN PART, DISSENTING IN PART
for cases in which motive and intent are at issue and in which     _______________________________________________
one party is in control of the proof. See Cooper v. North
Olmsted, 795 F.2d 1265, 1272 (6th Cir. 1986). In Gutzwiller           ALAN E. NORRIS, Circuit Judge, concurring in part and
v. Fenik, 860 F.2d 1317, 1325 (6th Cir. 1988), this Court          dissenting in part. I concur with the majority’s decision in
established that a plaintiff asserting a Fourteenth Amendment      Part II and agree that the grant of summary judgment should
equal protection claim under 42 U.S.C. §1983 must prove the        be reversed with respect to Perry’s race discrimination claims
same elements required to establish a disparate treatment          under the Fourteenth Amendment and Michigan’s Elliott-
claim under Title VII of the Civil Rights Act of 1964. Both        Larsen Civil Rights Act. However, because Perry did not
parties agree that in order to establish a prima facie case, the   allege that he engaged in speech involving a matter of public
plaintiff must set forth the following elements: “1) he was a      concern, I respectfully dissent from Parts III.A.1, III.A.2.a,
member of a protected class; 2) he was subject to an adverse       III.B, and IV of the majority’s opinion   and would not reach
employment action; 3) he was qualified for the job; and 4) for     the issue addressed in Part III.A.2.b.1
the same or similar conduct, he was treated differently from
similarly situated non-minority employees.” Perkins v.                The majority opinion indicates that Perry’s “insistence
University of Mich., 934 F.Supp. 857, 861 (E.D. Mich. 1996);       through his decisions that he be impartial and operate within
see Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir.          the confines of constitutional law, constitutes speech on a
1992). It should be noted that the plaintiff’s race need only be   matter of public concern.” I disagree with this conclusion and
a motivating factor – not necessarily the sole factor – in order   the implications upon which it relies. In his complaint, Perry
for the plaintiff to succeed in his claim. See Gutzwiller, 860     alleges that he was terminated because of his “speech and/or
F.2d at 1328.                                                      conscience in opposing, failing and/or refusing to find a
                                                                   higher percentage of prisoners guilty of misconduct.” The
  Both parties agree that Perry has satisfied prongs one and       complaint later indicates that Perry was deprived of his First
two of this test. The parties, however, disagree with respect      Amendment rights when he was disciplined and terminated
to prongs three and four. Perry argues that he was qualified       for “his speech in opposition to . . . unlawful pressure to find
for his job and that he was treated differently from his           more prisoners guilty.” In my opinion, it is too great a stretch
similarly situated White colleagues. The prison officials          to imply from Perry’s findings as an ALE that he was
disagree.                                                          engaging in speech about MDOC’s alleged quotas for guilty
                                                                   verdicts. Perry never alleges that in his ALE findings he
  After reviewing the record, it is clear that genuine issues of   discussed his opinion about MDOC’s alleged policies or
material fact exist as to whether Perry was qualified and          desire for him to find more prisoners guilty and more prison
whether he was treated differently from similarly situated         guards credible. Instead, the first time Perry states his opinion
colleagues. As such, the district court inappropriately granted    of the alleged quotas is in his complaint to the district court.
summary judgment for the prison officials. We first address
the issue of Perry’s disparate treatment and then address his
qualifications.                                                        1
                                                                         If I were to consider the issue in Part III.A.2.b, however, I would
                                                                   agree with the majority opinion to the extent that it suggests the district
                                                                   court erred in determining that application of the Pickering test could only
                                                                   favor appellees.
20       Perry v. McGinnis, et al.                        No. 98-1607        No. 98-1607                     Perry v. McGinnis, et al.      5

decision to dismiss Perry’s substantive due process claim                       Considering that under summary judgment analysis all
relating to the fundamental right of free expression is reversed             justifiable inferences are to be drawn in favor of the non-
and remanded for further consideration.6                                     movant and the non-movant’s evidence is to be believed, it is
                                                                             surprising that the district court decided as it did. This Court
                           V. Conclusion                                     has held that to qualify as “similarly-situated” in the
                                                                             disciplinary context, the plaintiff and the colleagues to whom
 For the foregoing reasons, the district court’s judgment is                 he seeks to compare himself “must have dealt with the same
REVERSED, and the case is REMANDED.                                          supervisor, have been subject to the same standards and have
                                                                             engaged in the same conduct without such differentiating or
                                                                             mitigating circumstances that would distinguish their conduct
                                                                             or the employer's treatment of them for it.” Mitchell, 964 F.2d
                                                                             at 583. In addition, this Court has asserted that in applying
                                                                             the standard courts should not demand exact correlation, but
                                                                             should instead seek relevant similarity. See Ercegovich v.
                                                                             Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir.
                                                                             1998). Here, all hearing officers were supervised by the same
                                                                             officials, subject to the same standards, and charged with the
                                                                             same duties. They were indeed similarly situated.
                                                                               Abundant record evidence demonstrates that the prison
                                                                             officials treated Perry differently than these similarly situated
                                                                             non-minority employees. The depositions of non-minority
                                                                             hearing officers, as well as other portions of the record, are
                                                                             replete with instances of disparate treatment. The following
                                                                             represent just a few examples.
                                                                               The prison officials disciplined Perry on several occasions
                                                                             for typographical errors. Hearing Officer Thomas Craig
                                                                             testified in his deposition that he commits a typographical
                                                                             error in every hearing report that he does. The prison
                                                                             officials, however, have never disciplined Craig for such
                                                                             errors. Similarly, Hearing Officer Miriam Bullock testified in
                                                                             her deposition that she commits a typographical error in all of
                                                                             her hearing reports. Like Craig, Bullock has never been cited
                                                                             for such errors.
                                                                               Perry failed to correct an incorrect inmate number (that a
     6
      At one point, Perry pressed a substantive due process claim based
                                                                             corrections officer wrote) on a disciplinary ticket, and was
on his right to equal protection, but the prison officials accurately note   disciplined. Officer Bullock herself once typed the wrong
that Perry agreed below to voluntarily dismiss that claim. As such, Perry    inmate number for a prisoner, resulting in the wrong prisoner
has forfeited the claim and cannot advance it now.
6     Perry v. McGinnis, et al.                    No. 98-1607      No. 98-1607                     Perry v. McGinnis, et al.     19

receiving a guilty finding in his record. The prison officials,     distinction between matters of public concern and matters
however, did not discipline her.                                    only of personal interest, not civic-minded motives and self-
                                                                    serving motives.” Chappell, 131 F.3d at 575. Thus, whether
  The prison officials disciplined Perry for stating the charge     Perry’s racial discrimination complaint was borne of civic-
of “Destruction or Misuse of Property with a Value of $10.00        minded motives or of an individual employment concern is
or More” as “Destruction: Misuse of Property with a Value of        irrelevant. What is relevant is that the subject of Perry’s
$10.00 or More.” In other words, they disciplined him for           complaint was racial discrimination – a matter inherently of
replacing the word “or” with a colon. Officer Bullock,              public concern, according to the Supreme Court. See Connick,
however, testified that she has frequently failed to type the       461 U.S. at 148 n.8.
proper name of a charge on the corresponding report, and yet
Bullock has never been disciplined for failing to do so.               We find that Perry’s complaint of racially disparate
                                                                    treatment, which consisted of an internal grievance, is a
  The prison officials disciplined Perry for re-listing a case to   matter of public concern, and as such, we remand the issue to
get physical evidence or a photograph of physical evidence          the district court for further consideration in line with this
that he deemed relevant. Hearing Officer Ann Baerwalde has          opinion.
re-listed cases to get physical evidence or a photograph of
physical evidence that she deemed relevant, but has never                          IV. Substantive Due Process
been disciplined for doing so.
                                                                      Perry asserts that the district court erred in granting the
  The prison officials disciplined Perry for failing to state in    prison officials’ FRCP 12(b)(6) motion to dismiss his
his hearing record that a door is worth more than $10 (when         substantive due process claim. A substantive due process right
an element of the crime demanded that the property be worth         may be implicated when a public employee is discharged for
more than $10). Leonard Den Houter, Supervisor of the               reasons that shock the conscience. See McMaster v. Cabinet
Office of Policy and Hearings and Perry’s direct supervisor,        for Human Resources, 824 F.2d 518, 522 (6th Cir. 1987).
admits that other hearing officers have made the same               The violation of a fundamental right, however, is necessary
mistake, but he does not recall disciplining them.                  for a successful substantive due process claim. See Sutton v.
                                                                    Cleveland Bd. of Educ., 958 F.2d 1339, 1350 (6th Cir. 1992).
  Perry’s infractions and those of his colleagues were              Therefore, the crux of the question is whether the prison
obviously of “comparable seriousness,” as is required under         officials violated one of Perry’s fundamental rights.
the standard. Mitchell, 964 F.2d at 583 n.5. As such, it is
abundantly clear that genuine issues of material fact exist as         Just as the district court found that Perry’s right to freedom
to whether the prison officials treated Perry differently from      of expression was not abused, the court found that his right to
similarly situated non-minority employees. Consequently, we         freedom of expression could not serve as the fundamental
conclude that the district court erred in finding that Perry did    right necessary for due process analysis. On that basis, the
not satisfy prong four of the test.                                 court dismissed Perry’s substantive due process claim.
                                                                    Because Perry’s First Amendment claim was incorrectly
  The court erred as to prong three as well. The prison             dismissed, it logically follows that his substantive due process
officials accept that Perry would seem qualified for the job in     claim based on the First Amendment claim should not have
that he has a law degree and is a member of the Michigan Bar,       been dismissed – in that the right to freedom of expression
but they argue that his job performance was poor. In doing          should have been viewed as a fundamental right in the
so, the prison officials rely almost exclusively on Perry’s         substantive due process analysis. As such, the district court’s
18   Perry v. McGinnis, et al.                    No. 98-1607      No. 98-1607                         Perry v. McGinnis, et al.          7

complaint is, as a matter of law, a matter of public concern.      numerous citations for the alleged substandard disposition of
A review of the case law reveals that Perry is correct.            cases during his tenure. The discussion of prong four above,
                                                                   however, is enough to derail the prison officials’ argument.
  In Connick, discussed above, the Supreme Court clearly           From the beginning, Perry has insisted that the citations he
established that racial discrimination is inherently a matter of   received were pretextual. Evidence indicating that Perry was
public concern. See Connick, 461 U.S. at 148 n.8.                  often cited for errors for which other hearing officers2 were not
Furthermore, in Givhan v. Western Line Consolidated School         cited and was cited for omissions that seem trivial, supports
District, 439 U.S. 410 (1979), the Supreme Court established       Perry’s contention. There is, therefore, clearly a genuine issue
that an employee’s choice to communicate privately with an         of material fact regarding Perry’s qualifications.
employer does not strip the concern of its public nature.
“Neither the [First] Amendment itself nor our decisions              The district court erred in failing to draw inferences in
indicate that [freedom of speech] is lost to the public            favor of Perry and consequently determining that Perry failed
employee who arranges to communicate privately with his            to satisfy prongs three and four of the aforementioned test.
employer rather than to spread his views before the public.”       This error led the district court to grant summary judgment for
Givhan, 439 U.S. at 415-16. Here, it is undisputed that Perry      the prison officials.
complained about racial discrimination and that he did so in
a private conversation with supervisors.                             We acknowledge the possibility that the prison officials’
                                                                   disparate treatment of Perry had nothing to do with race.
   The prison officials, however, argue that although Perry        Perhaps, the prison officials were upset that his not-
complained of racial discrimination and did not lose his First     guilty/dismissal rate was so high relative to the norm
Amendment protection by communicating privately, Perry’s           (discussed infra). And perhaps, as the prison officials argue,
claim is not a matter of public concern. The prison officials      Perry was not carrying his weight as a hearing officer. On the
rely on Rice v. Ohio Department of Transportation, 887 F.2d        other hand, it is possible that the prison officials disciplined
716 (6th Cir. 1989), for the proposition that if an employee is    and ultimately terminated Perry because of the color of his
not speaking out as a citizen, but is instead advancing his own    skin. Trials exist to resolve such issues of fact, and summary
personal employment dispute, that employee’s complaint may         judgment is to be used only when there is no question as to
not be deemed a matter of public concern. See Rice, 887 F.2d       such issues of fact. Here, many questions are left unresolved.
at 721. The prison officials note that Perry was complaining       These questions must be resolved at trial.
in the course of his personal employment dispute, and that the
district court, citing Rice, decided that Perry’s complaint was      The grant of summary judgment is reversed and the case is
not a matter of public concern.                                    remanded for further consideration.3
  The district court, however, made its decision in the instant
case on September 11, 1996, over a year before the Sixth               2
Circuit decided Chappell v. Montgomery County Fire                      On December 10, 1992, Perry was disciplined for failing to state
Protection, 131 F.3d 564 (6th Cir. 1997). Chappell, a case in      why a razor blade is dangerous in his report regarding a charge of
                                                                   Possession of Dangerous Contraband.
which this Court examined what is a matter of public concern,
clears up any confusion resulting from Connick, and disposes           3
                                                                        Claims for race discrimination in violation of the ELCRA, like
of the issue. In Chappell, this Court plainly states that “[t]he   Fourteenth Amendment equal protection claims, are interpreted in
fundamental distinction recognized in Connick is the               accordance with Title VII of the Civil Rights Act of 1964. See Kitchen v.
                                                                   Chippewa Valley Sch., 825 F.2d 1004, 1012 (6th Cir. 1987). As such, the
8     Perry v. McGinnis, et al.                       No. 98-1607       No. 98-1607                     Perry v. McGinnis, et al.     17

                 III. Freedom of Expression                             that he was disciplined and terminated because of the
                                                                        MDOC’s interest in ensuring guilty findings for no less than
  Perry further argues that the district court erred in granting        90% of defendants. Drawing all inferences in favor of the
the prison officials’ motion to dismiss his §1983 claim for             plaintiff, as is required under FRCP 12(b)(6), would
violation of his right to freedom of expression under the First         seemingly lead the district court to the conclusion that part of
Amendment, made applicable to the states by the Fourteenth              the government’s interest – if not its entire interest – in
Amendment. We agree.                                                    disciplining and terminating Perry was in maintaining a guilty
                                                                        rate of 90%. As explained above, adherence to a particular
  An FRCP 12(b)(6) motion to dismiss for failure to state a             guilty rate necessarily results in arbitrary justice for innocent
claim may only be granted if it is clear beyond a doubt that            inmates adjudged guilty in the pursuit of this interest.
the plaintiff can prove no set of facts in support of his claim         Insistence upon a 90% guilty rate flies in the face of due
which would entitle him to relief. See Hishon v. King &                 process as mandated by Wolff, and is thus not a legitimate
Spaulding, 467 U.S. 69, 73 (1984). In determining how to                organizational interest.
handle the motion, the court must accept all of the plaintiff’s
factual allegations as true and must construe the complaint in             At the very least, the record is not thorough enough to
the light most favorable to the plaintiff. See Sistrunk v. City of      determine whether the MDOC’s interest in impairing Perry’s
Strongsville, 99 F.3d 194, 197 (6th Cir. 1996). Further, “this          First Amendment right through discipline and termination
court will scrutinize with special care any dismissal of a              was based on a desire to maintain accountability or a desire to
complaint filed under a civil rights statute.” Brooks v. Seiter,        maintain a 90% guilty rate. As such, the district court erred
779 F.2d 1177, 1180 (6th Cir. 1985). Finally, this Court must           in determining that the Pickering balance could only favor the
review the district court’s dismissal de novo. See Cameron v.           prison officials and in consequently granting the prison
Seitz, 38 F.3d 264, 270 (6th Cir. 1994).                                officials’ motion to dismiss. Therefore, the issue is remanded
                                                                        to the district court for further consideration in line with this
   In order to have stated a claim under §1983, Perry must              opinion.
have alleged in his complaint that 1) he was deprived of a
right secured by the Constitution or laws of the United States                                         B.
and that 2) the deprivation was caused by someone acting
under color of state law. See West v. Atkins, 487 U.S. 42, 48             In his complaint, Perry states that while working for the
(1988).                                                                 MDOC, he made an internal grievance, asserting that he was
                                                                        being disciplined because of his race, and that he was further
  In the instant matter, there is no debate as to the second            disciplined and ultimately terminated, in part, because of
prong. The prison officials do not dispute that while working           those complaints. The Pickering test applied in Part III(A) of
under the authority of the MDOC they were acting under                  this opinion governs this analysis as well. In this instance,
color of state law. The question is whether Perry was                   however, the district court used the first prong of the test to
deprived of a right secured by the Constitution. Perry asserts          dispose of the issue – determining at the FRCP 12(b)(6) stage
that he was deprived of his First Amendment right to freedom            that Perry’s complaint of racially disparate treatment, which
                                                                        consisted of an internal grievance, did not constitute a matter
                                                                        of public concern.
discussion in Part II of this opinion is completely applicable to the
ELCRA claim, and the conclusion is the same – the grant of summary       On appeal, Perry argues that the court simply
judgment is reversed and the case is remanded.                          misunderstood the governing precedent, and that Perry’s
16   Perry v. McGinnis, et al.                   No. 98-1607      No. 98-1607                   Perry v. McGinnis, et al.     9

against proceeding to the fact-finding stage of the trial. It     of expression in two ways: 1) he suffered retaliatory
erred in doing so.                                                termination because of his findings made as an ALE in
                                                                  prisoner misconduct hearings; and 2) he suffered retaliatory
  Moreover, the district court struck the balance in an           termination because of his complaints of race discrimination.
impermissible manner. Both the Supreme Court in Rankin            We will deal with the two in turn.
and this Court in Meyers v. City of Cincinnati, 934 F.2d 726
(6th Cir. 1991), have outlined the considerations which a                                      A.
court must take into account when utilizing the balancing test.
Taking its cue from Rankin, this Court wrote:                                                   1.
  In order to justify a restriction on speech of public             As a threshold matter, we must determine whether Perry’s
  concern by a public employee, plaintiff’s speech must           decisions made in inmate disciplinary hearings constitute
  impair discipline by superiors, have a detrimental impact       expression as protected by the First Amendment. We find that
  on close working relationships, undermine a legitimate          they do.      The Supreme Court has long held that
  goal or mission of the employer, impede the performance         communicative action is protected by the First Amendment.
  of the speaker’s duties, or impair harmony among co-            See Tinker v. Des Moines Indep. Community Sch. Dist., 393
  workers. The state bears the burden of showing a                U.S. 503, 505-506 (1969) (holding that the act of wearing a
  legitimate justification for discipline. As in Rankin, we       black armband constitutes expressive conduct and is protected
  look for evidence of the impact of the statement on the         by the First Amendment); Brown v. Louisiana, 383 U.S. 131,
  city’s legitimate organizational interests.                     141-42 (1966) (holding that a sit-in by Black students
                                                                  constitutes symbolic speech).
Meyers, 934 F.2d at 730 (citations omitted) (emphasis added).
MDOC’s organizational interest, therefore, must be legitimate        This Circuit has done the same – most notably and
if the court is to effectuate a meaningful balancing. The         relevantly in Parate v. Isibor, 868 F.2d 821 (6th Cir. 1989).
district court concluded that the MDOC’s interest was             Parate involved an engineering professor at Tennessee State
legitimate. We disagree.                                          University, Natthu Parate, who refused to alter his evaluation
                                                                  of a student and was subsequently subjected to discipline and
  The district court asserted that “[t]he MDOC has to be able     threats of termination. Parate assigned the student a “B”
to discipline its hearing officers for findings and credibility   while the Dean of Tennessee State’s School of Engineering
determinations made in prison misconduct hearing reports;         and Technology – whom the Court suggests had a particular
otherwise all ALEs would be insulated from accountability         affinity for the student involved because of a shared national
for any statements made in that context.” Thus, the district      heritage – insisted that the student receive an “A”. When
court determined that the organizational interest at stake was    Parate refused, the Dean disciplined Parate and threatened to
the MDOC’s interest in maintaining accountability among           fire him.
hearing officers.       We acknowledge that maintaining
accountability is a legitimate interest. Whether the                 The Court explained that because “the assignment of a
government’s interest in maintaining accountability led to        letter grade is symbolic communication intended to send a
Perry’s disciplining and ultimate termination, however, is far    specific message to the student, the individual professor’s
less clear. Perry has produced substantial evidence suggesting    communicative act” falls within the bounds of the First
that the MDOC implores its hearing officers to find no less       Amendment. Parate, 868 F.2d at 827. The Court then held
than 90% of the defendant’s before them guilty, and he insists    that the Dean’s act of forcing Parate to choose between
10    Perry v. McGinnis, et al.                    No. 98-1607      No. 98-1607                    Perry v. McGinnis, et al.     15

changing the grade against his professional judgment and              or another. Just a couple that I haven’t heard ever say
keeping his job “unconstitutionally compelled Parate’s                that.
speech.” Id. at 830.
                                                                       If hearing officers focus on finding 90% of the defendants
  Although Parate and the instant case involve different            before them guilty, as the evidence adduced thus far suggests,
sectors of the state’s machinery – an educational institution       they cannot possibly be impartial, as is required by Wolff.
and a correctional institution – the cases involve nearly           The prisoner whose case merits a not-guilty finding, but
identical communicative acts protected by the First                 whose case would result in the eleventh not-guilty finding in
Amendment. In the instant case, as in Parate, the state             one hundred decisions, is sunk. His fate is sealed before his
entrusted one of its employees with the task of reviewing           file is opened. Such a system reeks of arbitrary justice, which
facts, evaluating a set of circumstances, and making a              can only be injustice.
decision. In Parate, the decision was handed down in the
form of a letter grade. In the case at bar, the decisions came         Because Perry’s speech served to ensure that the MDOC,
in the form of guilty/not-guilty determinations. Perry’s            an arm of the state, was operating in accordance with the law
decisions, like Parate’s, are communicative acts – acts aimed       as established in Wolff, it concerns the most public of matters.
squarely at the inmates in question with the goal of
reemphasizing the parameters of acceptable behavior in                                            b.
prison.
                                                                      As noted above, the district court surpassed prong one of
   In Parate, this Court decided that the attempt to pervert the    the Pickering test altogether, and based its disposition of the
communicative acts with discipline and threatened                   case on prong two, concluding that the MDOC’s interest in
termination was the essence of coerced expression. Such             disciplining ALEs outweighed Perry’s right to speak on a
compulsion in the academic realm is certainly of concern. It        matter of public concern. In concluding as such, the court
is, however, particularly unsettling in the instant case because,   erred.
here, the interference results in the heavy hand of the state’s
disciplinary authority being brought to bear on inmates who            In many cases, due to inadequate factual development, the
may have done nothing to deserve the invocation of that             prong two balancing test “cannot be performed on a 12(b)(6)
authority.                                                          motion.” Weisbuch v. County of Los Angeles, 119 F.3d 778,
                                                                    783 (9th Cir. 1997). This is such a case. Because the facts
  We find that a disciplinary hearing decision, like the            were not well enough developed in the pleadings, the court
assignment of a letter grade, is a communicative act entitled       should not have performed the test. The court, however,
to First Amendment protection.                                      performed the test by going beyond the pleadings and
                                                                    engaging in fact finding, which is impermissible at the FRCP
                               2.                                   12(b)(6) stage. Reaching beyond the pleadings, the court
                                                                    determined that the MDOC’s interests outweighed Perry’s
  A determination that First Amendment-protected                    rights. The court based its decision on the proposition that the
expression is involved is, of course, only a preliminary issue      MDOC must be able to discipline its hearing officers for their
in the analysis of a First Amendment retaliatory discharge          decisions in order to prevent all ALEs from being insulated
claim.                                                              from accountability. Nothing in the pleadings could have led
                                                                    the court to such a conclusion. Such a conclusion required
                                                                    the finding of facts. The district court, however, decided
14   Perry v. McGinnis, et al.                   No. 98-1607     No. 98-1607                          Perry v. McGinnis, et al.          11

  Here, Perry asserts that pursuant to the Supreme Court’s          It is well established that a government employer cannot
mandate in Wolff, he acted non-arbitrarily and as an impartial   “condition public employment on a basis that infringes the
and independent fact finder. He further asserts that through     employee’s constitutionally protected interest in freedom of
his disciplinary hearing decisions, made with an eye toward      expression.” Connick v. Myers, 461 U.S. 138, 142 (1983). As
justice and impartiality, he was ensuring – at least to the      a logical consequence, retaliation by a government employer
extent of the cases for which he was responsible – that the      against an individual who exercises his First Amendment
MDOC was operating in accordance with the law as                 rights constitutes a First Amendment violation. See Zilich v.
established by Wolff.                                            Longo, 34 F.3d 359, 365 (6th Cir. 1994). This is the case
                                                                 even if the employee could have been terminated for any
  Perry alleges that the MDOC, however, was contravening         reason. See Rankin v. McPherson, 483 U.S. 378, 383 (1987).
the law by demanding that ALEs find 90% of inmates
appearing before them guilty. Van Ochten denies that she or        The Supreme Court has established a three-pronged test for
any of the hearing officers under her supervision (of whom       determining whether a plaintiff can prevail on a First
Perry was one) were ever formally limited to a particular not-   Amendment retaliatory discharge claim. Under the test,
guilty/dismissal rate. Regardless of whether she and her         commonly called the Pickering test, the plaintiff must set
hearing officers were beholden to a formal regulation            forth three elements: 1) the speech involved a matter of public
demanding a certain not-guilty/dismissal rate, overwhelming      concern, see Connick, 461 U.S. at 143; 2) the interest of the
evidence suggests that there was, at the very least, a strong    employee “as a citizen, in commenting upon matters of public
expectation that the not-guilty/dismissal rate should not rise   concern,” outweighs the employer’s interest “in promoting the
above 10%. In her own deposition, Van Ochten admits that         efficiency of the public services it performs through its
Deputy Director Bolden of the Correctional Facilities            employees,” Pickering v. Board of Education, 391 U.S. 563,
Administration decided “that if the not-guilty/dismissal rate    568 (1968); and 3) the speech was a substantial or motivating
at a facility went above a certain percentage, that he was       factor in the denial of the benefit that was sought. See Mt.
going to view that as a trouble signal.” The critical rate was   Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,
20% in the early 1980's, but Bolden reduced it to 10% in the     287 (1977). If the employee        satisfies this test, he has
early 1990's, noting that he “thought [the MDOC] should be       established a prima facie case.4
doing better.” Van Ochten concedes that the rate was
discussed at meetings and that, when not-guilty/dismissal           Here, Perry argues that he was fair and impartial in his
rates got high, there was pressure “put on wardens to bring      disposition of disciplinary cases, and that each of his
those rates down.” Further still, at trial, Hearing Officer      decisions was a communicative act protected by the First
Arvid Perrin testified specifically about the ubiquity of that   Amendment. He further argues that in disciplining and
coercion when asked to recite the names of every hearing         terminating him for that expression, the MDOC infringed
officer who complained about the pressure to find inmates        upon his freedom of expression. Perry presents the following
guilty:                                                          facts in support of his assertion.
  I’ve heard complaints from Hearing Officers about times
  they were criticized for finding somebody not guilty or
  dismissing a case. . . . I think the exception would be,           4
                                                                       Because prong three of the Pickering test involves a determination
  you know, easier. . . . [P]eople I have seen and talked to,    of fact, normally reserved for a jury or the court in its fact-finding role,
  I would say just about all of them I had heard at one time     see Tao v. Freeh, 27 F.3d 635, 639 (D.C. Cir. 1994), the district court
                                                                 rightfully did not reach it.
12   Perry v. McGinnis, et al.                   No. 98-1607      No. 98-1607                        Perry v. McGinnis, et al.        13

   The MDOC conducts probationary evaluations of all new          When fleshed out, it is clear that Perry’s insistence through
ALEs after three months on the job and again after six            his decisions that he be impartial and operate within the
months.       Perry received satisfactory ratings at both         confines of constitutional law, constitutes speech on a matter
probationary evaluations and continued to receive good            of public concern. When Perry conducts hearings, he is doing
reviews for the first year-and-a-half of his tenure. On March     so at the behest of the Michigan legislature, see Mich. Comp.
8, 1990, Perry received his first citation from his direct        Laws § 791.252 (1979), and is making decisions that can
supervisor, Den Houter, regarding a problem with his              result in a greater or lesser period of incarceration for an
disposition of a case. During the twenty-seven months             inmate. These are intensely public matters.
between Den Houter’s original complaint about Perry’s work
and June 22, 1992, Perry received only four additional              Furthermore, the public undoubtedly has an interest in a
citations regarding his disposition of cases. The rate at which   public employee’s efforts to remain undeterred by a public
Perry disposed of cases through finding inmates not-guilty        employer’s policy that seeks to limit constitutionally
and issuing dismissals, however, was higher than the norm.        mandated fairness in inmate disciplinary hearings. See
Perry’s not-guilty/dismissal rate hovered between 17% and         Marohnic v. Walker, 800 F.2d 613, 616 (6th Cir. 1986). In
18%, which was well above the institutional standard of 10%.      Marohnic, a case in which this Court examined what
When Perry’s supervisors noticed his not-guilty/dismissal         constitutes a matter of public concern, the Court concluded
rate, the frequency with which they cited him for substandard     that “[p]ublic interest is near its zenith when ensuring that
disposition of cases increased dramatically.                      public organizations are being operated in accordance with
                                                                  the law.” Id.
  On June 18, 1992, Den Houter wrote a memorandum to
Marjorie Van Ochten, the Administrator of the Office of             Public interest is certainly near its zenith here. In 1974, in
Policy and Hearings and Den Houter’s direct supervisor,           the case of Wolff v. McDonnell, 418 U.S. 539 (1974), the
noting that pursuant to her request he had reviewed all of        Supreme Court mandated the establishment of prison
Perry’s not guilty and dismissed hearing reports, and found       disciplinary hearings, demanding that inmates be afforded due
that Perry was prone to finding prisoners not guilty.             process before being disciplined for major misconduct. The
Beginning on June 22, 1992, four days after Den Houter’s          Court acknowledged that “the full panoply of rights due a
memorandum to Van Ochten, Perry received the first of             defendant [in a criminal prosecution] does not apply” with
nineteen memoranda that he would receive over the course of       regard to inmate disciplinary hearings, and that the contours
the following sixteen months citing him for mistakes in his       of the due process guaranteed an inmate depends to some
disposition of cases. As noted above, Perry’s colleagues          extent on context. Id. at 556. The Court clearly articulated,
made many of the same mistakes, but were not cited. Perry         however, that due process can only be finessed so much
was terminated two weeks after receiving the last of those        before it ceases to be due process. “The touchstone of due
nineteen memoranda.                                               process is protection of the individual  against arbitrary action
                                                                  of government.” Id. at 558.5
                              a.
  The district court assumed, arguendo, that Perry’s decisions
in inmate disciplinary hearings constituted matters of public
concern, and then proceeded to base its disposition of the case       5
                                                                        The state of Michigan is just as resolute in its prohibition of
on prong two of the Pickering test – the balancing prong.         arbitrary or impartial decision making in prison disciplinary cases. See
                                                                  Mich. Comp. Laws § 791.252(i) (1979).
