      RECOMMENDED FOR FULL-TEXT PUBLICATION
           Pursuant to Sixth Circuit Rule 206            2     Farhat v. Jopke, et al.                         No. 02-1896
   ELECTRONIC CITATION: 2004 FED App. 0158P (6th Cir.)
               File Name: 04a0158p.06                           Before: ROGERS and COOK, Circuit Judges;
                                                                      BERTELSMAN, District Judge.*
UNITED STATES COURT OF APPEALS                                                 _________________
             FOR THE SIXTH CIRCUIT                                                  COUNSEL
               _________________
                                                         ARGUED: Timothy M. Holloway, Taylor, Michigan, for
KENNETH FARHAT,                    X                     Appellant. Ernest R. Bazzana, PLUNKETT & COONEY,
                                    -                    Detroit, Michigan, William F. Young, WHITE,
         Plaintiff-Appellant,                            SCHNEIDER, BARID, YOUNG & CHIODINI, Okemos,
                                    -
                                    -  No. 02-1896       Michigan, for Appellees. ON BRIEF: Timothy M.
            v.                      -                    Holloway, Taylor, Michigan, for Appellant. Ernest R.
                                     >                   Bazzana, PLUNKETT & COONEY, Detroit, Michigan,
                                    ,                    William F. Young, Jeffrey S. Donahue, WHITE,
JANET JOPKE , in her                -
individual and official                                  SCHNEIDER, BARID, YOUNG & CHIODINI, Okemos,
                                    -                    Michigan, for Appellees.
capacity; MAUREEN KELLY ,           -
in her individual capacity;         -                                          _________________
PAM HOOD , in her individual        -
                                    -                                              OPINION
capacity; TROY SCHOOL
                                    -                                          _________________
DISTRICT,                           -
         Defendants-Appellees. -                            BERTELSMAN, District Judge. The Appellant, Kenneth
                                    -                    Farhat, appeals from the district court’s grant of summary
                                   N                     judgment to the defendants. This action arises from the
       Appeal from the United States District Court      termination of Farhat from his position as a custodian for the
      for the Eastern District of Michigan at Detroit.   Troy School District.
  No. 01-72333—John Corbett O’Meara, District Judge.       Farhat raises four issues on appeal: (1) he was discharged
                                                         in retaliation for exercise of his First Amendment rights;
             Argued: December 11, 2003                   (2) he was denied due process when the school board refused
                                                         to grant a post-termination hearing in which he could deal
          Decided and Filed: May 28, 2004                directly with the board; (3) an order not to speak to other
                                                         employees was an invalid prior restraint on his speech; and
                                                         (4) Appellee Hood is liable under a conspiracy theory for

                                                                 *
                                                                   The Honorable William O. Bertelsman, United States District
                                                         Judge for the Eastern District of Kentucky, sitting by designation.

                           1
No. 02-1896                       Farhat v. Jopke, et al.     3    4    Farhat v. Jopke, et al.                     No. 02-1896

providing information to Appellee Kelly to aid in unlawfully       epithets will be addressed later in this opinion in greater
depriving Farhat of his rights. The district court found that no   detail.
constitutional violations had occurred and granted defendants’
motions for summary judgment. For the reasons set forth               In January 1997, Appellant, then a union steward, attended
below, we AFFIRM the judgment of the district court.               a grievance meeting. The record reflects that his behavior at
                                                                   the meeting was inappropriate and threatening to others.
FACTUAL BACKGROUND                                                 Appellant received a warning letter from the Superintendent
                                                                   that explicitly explained to him that this type of conduct
  Appellant Kenneth Farhat was employed as a custodian by          would not be tolerated and, if it continued in the future, that
the Troy School District for approximately 15 years. He was        he could face more severe sanctions, up to and including
discharged on September 18, 2000 and initiated this lawsuit        termination.
against the school district, its superintendent, an assistant
principal, and a fellow custodian who is also a union                In April 1998, Appellant received another written
representative. Appellant brought this action pursuant to 42       reprimand for his conduct toward the school district’s
U.S.C. § 1983.                                                     executive director and a secretary. His conduct was described
                                                                   as obnoxious, loud and threatening. In response, Appellant
  Appellant’s employment history is significant and factors        claimed that the statements of the executive director were lies
into the asserted justification for the actions of the school      and were intended as discrimination against him due to his
district. Appellant had a checkered employment history with        affiliation with the union. He claimed that he did not lose
the Troy School District. The record reflects that, from at        control but that it was the school official who lost control at
least 1997 forward, Appellant had a history of confrontational     the meeting.
behavior as well as hostile and accusatory communications
directed toward the school district, its officials, co-employees     In May - June of 1999, officials of the Michigan Education
and toward persons affiliated with the union. Appellant            Association (“MEA” or “the union”) corresponded and
received numerous warnings and other discipline in response        discussed their concerns about an upcoming union meeting
to specific behaviors that school officials found to be            with Appellant and his potential for workplace violence.
disruptive to, and inappropriate for, the working environment.     They expressed concern about their safety and stated that they
                                                                   were seeking outside support and information about what
   Appellant typically responded to such corrective action         options they had to protect themselves if Appellant became
with a letter, usually directed to the author of the warning or    violent.
reprimand. All of Appellant’s responses contained primarily
personal opinions and conclusions that were directed against         In January of 2000, Appellant wrote a letter to the
specific individuals with whom he had had a disagreement.          Superintendent claiming that he was going to sue the district
For example, Appellant routinely referred to others as “sick       for libel and slander. He also claimed that he was forced into
and demented,” “ignorant and abusive,” “mentally ill,”             a meeting where he was threatened with discipline for having
“mindless criminals,” “liars,” “lazy and pampered,”                a weapon at a union meeting and at the workplace. Appellant
“alcoholic,” “insane,” “ignorant,” “dysfunctional,” “mentally      further asserted that these “liars” and “cowards” had
ill freak,” “jack ass,” and similar terms. The context of such     continued to attack his reputation and that he intended to sue.
                                                                   Again in January of 2000, Appellant threatened to file
No. 02-1896                      Farhat v. Jopke, et al.     5    6     Farhat v. Jopke, et al.                               No. 02-1896

grievances and to take additional action because he did not       meeting was recessed at the suggestion of his union
get what he wanted.                                               representative. Appellant was given several opportunities to
                                                                  speak privately with his representatives before they decided
  Yet again, on February 24, 2000, Farhat wrote to the            to end the meeting.
“incompetent administration” claiming that he was
wrongfully denied a position because he threatened lawsuits         Another hearing was held on April 14, 2000. In a letter
and grievances. He also stated that he had been wrongfully        from the Superintendent, Appellant was advised that after two
disciplined for uncooperative behavior. He claimed it was         written reprimands for inappropriate behavior and two
others who were uncooperative, not he, as he was “the best        disciplinary hearings, he would be given yet another chance.
custodian in Troy Schools . . .” and “the best union              However, because the school district found Appellant’s
representative in Troy Schools, bar none.”                        behavior to be threatening, intimidating, and disruptive, it
                                                                  gave him the option of attending an anger management
   On February 24, 2000, there was a significant incident         course, plus a 10-day suspension without pay, or 15 days
between Appellant and another employee/union                      without pay if he did not attend the anger management course.
representative, Appellee Pam Hood. Appellant’s actions in         Appellant was instructed not to speak to other employees
regard to this incident precipitated his termination. On this     during his suspension. In this letter, moreover, Appellant was
occasion, Appellant was clearly unhappy about being denied        specifically advised that further conduct of this nature would
a position he wanted. Appellant phoned Hood, while she was        not be tolerated.
at work, and claimed that this was her fault. Within a short
period of time, Farhat called Hood a second time and                On May 11, 2000, Appellant responded by letter, stating
allegedly threatened her. Hood interpreted Farhat’s threats as    that he considered the letter from the Superintendent to be a
threats of violence. Appellant allegedly made statements such     “joke,” and claiming that it was illegal. He claimed that all
as, “When I get through with you, you won’t be driving a bus      the allegations against him were lies. He claimed that Hood,
or doing custodial work.” Afraid to leave the room for fear       other employees, and the school officials had been plotting
that Appellant was coming to the building to follow through       against him. He stated that he has the flawed character trait
on his threats, Hood contacted a school official who              of talking “fast and loud” and that this trait was being used
instructed her to contact the police. Hood then locked herself    against him.1
in a room until the police arrived.
                                                                     This letter is filled with vituperative remarks about the
   The following day, Appellant was suspended with pay to         school district, specific employees, the union and specific
allow for an investigation of the February 24, 2000 incident.     union representatives, and claims of collusion and corruption.
                                                                  The same can be said of his previous letters and conduct. The
   On March 21, 2000, a meeting was scheduled for Appellant       letter is not specific with regard to the charges of collusion or
to have an opportunity to explain his behavior. Present at this   corruption.
meeting were Appellant, Assistant Principal Maureen Kelly,
and Assistant Superintendent Mike Williams. Appellant was
represented at the meeting by union representatives Joe
Cusmano, Dominic Asaro and Mel Sledzinski. However, due
to Appellant’s uncontrolled, explosive and rude behavior, the             1
                                                                              The full text of this letter is attached hereto as Appendix A.
No. 02-1896                               Farhat v. Jopke, et al.            7   8    Farhat v. Jopke, et al.                     No. 02-1896

  On May 18, 2000, Appellant sent a letter to Lu Battaglieri,                    Superintendent, Appellee Janet Jopke, stated that Appellant
the union president. In this letter, Appellant complained that                   “crossed over the line” in his letter of May 18, 2000, and that
his union representatives did not investigate his complaints as                  he is “simply incapable or refuse[s] to recognize the
he believed they should. He also claimed they were                               inappropriateness of [his] conduct.” The Superintendent
purposefully not investigating because they were in collusion                    specifically stated that she was not concerned with
with the school district. He referred to Hood as a “demented                     Appellant’s statements about the union or union
and sick human being” and stated that he, Farhat, was the                        representatives. However, his statements and comments
“only honest union representative in the city.” He also                          about school officials and employees were “abusive,”
referred to the Assistant Principal, Appellee Maureen Kelly,                     “caustic,” and “grossly insubordinate” to her prior warnings
as “mentally ill.”                                                               and directives, specifically her April 17, 2000 letter.
   Appellant further stated that he believed the union                             On November 1, 2000, following Appellant’s filing of a
representatives were creating obstacles for the express                          grievance regarding his termination, a grievance hearing was
purpose of covering up corrupt contract negotiations;                            held. Present for the hearing were Appellee Kelly, Steven
preferential treatment of the corrupt representatives resulting                  Amburg for the union, the attorney for the school district,
in privatization, loss of bidding rights, loss of seniority rights,              Craig Lange, and the attorney for Appellant, Jerry Haymond.
unwarranted discipline, loss of medical benefits, and loss of                    Appellant failed to appear at this hearing. The hearing
sick days; and a hostile environment of dissension and chaos.                    proceeded in his absence, however, and the grievance was
He claimed that he was disciplined because he chose to                           denied.
expose the union’s and the representatives’ collusion with the
employer. He did not offer any examples of his allegations of                      On November 6, 2000, Appellant demanded arbitration.
corruption against the union except for what had happened to                     Pursuant to his request and the collective bargaining
him.2 Appellant copied this letter to three other union                          agreement, the case proceeded to arbitration before a neutral
officials, including Hood. Hood, concerned about the                             arbitrator. The record before the court does not provide the
statements in the letter, turned it over to the Superintendent.                  exact date of the arbitration. However, the record does show
                                                                                 that Appellant attended the arbitration, as did representatives
  On June 1, 2000, Appellee Maureen Kelly wrote to Joseph                        of the school district and the union. The parties reached a
Cusmano, a union representative, and stated, “We have                            tentative settlement on all claims, with Appellant present.
serious concerns about what Mr. Farhat has written and we                        However, the settlement was subsequently rejected by
need to meet with him so that he has a due process hearing.”                     Appellant. Thereafter, the union withdrew its representation
As Appellant was on medical leave, these officials decided to                    of him.
wait until he was released to return to work to continue the
investigation and hold a due process hearing.                                      Appellant’s next challenge to the school district was to file
                                                                                 this lawsuit. The United States District Court for the Eastern
  On September 18, 2000, Appellant was terminated from his                       District of Michigan, Southern Division, heard Appellant’s
employment.     The letter of termination from the                               motion for partial summary judgment, Hood’s motion to
                                                                                 dismiss or for summary judgment, and the remaining
                                                                                 defendants’ motions for summary judgment (the school
        2                                                                        district and officials named therein). The district court held
            The full text of this letter is attached hereto as Appendix B.
No. 02-1896                        Farhat v. Jopke, et al.     9    10    Farhat v. Jopke, et al.                    No. 02-1896

that Appellant’s speech was not protected, that there was no          The framework for analyzing a First Amendment retaliation
constitutional violation upon which to base a § 1983 claim,         case is well-established. In Rodgers v. Banks, 344 F.3d 587
and that all defendants were entitled to summary judgment.          (6th Cir. 2003), this court recently summarized this analysis:
  This appeal followed.                                               While public employees may not be required to sacrifice
                                                                      their First Amendment free speech rights in order to
STANDARD OF REVIEW                                                    obtain or continue their employment, Rankin v.
                                                                      McPherson, 483 U.S. 378, 383, 107 S.Ct. 2891, 97
   As this case is before us on appeal from the district court’s      L.Ed.2d 315 (1987)(citing Perry v. Sindermann, 408 U.S.
grant of summary judgment, our review is de novo. Equitable           593, 597, 92 S.Ct. 2694, 33 L.Ed 2d 570 (1972)), a state
Life Assur. Soc’y v. Poe, 143 F.3d 1013, 1015 (6th Cir. 1998).        is afforded greater leeway to control speech that threatens
Summary judgment is appropriate where “the pleadings,                 to undermine the state’s ability to perform its legitimate
depositions, answers to interrogatories, and admissions on            functions.     See United States v. Nat’l Treasury
file, together with the affidavits, if any, show that there is no     Employees Union, 513 U.S. 454, 475 n. 21, 115 S.Ct.
genuine issue as to any material fact” as to an essential             1003, 130 L.Ed.2d 964 (1995).              Therefore, in
element of the non-moving party’s case. Fed. R. Civ. P.               determining whether a public employer has violated the
56(c). An issue of fact is “genuine” if a reasonable person           First Amendment by firing a public employee for
could return a verdict for the non-moving party. Anderson v.          engaging in speech, the Supreme Court has instructed
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). After the              courts to engage in a three-step inquiry. First, a court
moving party has satisfied its burden, the burden shifts to the       must ascertain whether the relevant speech addressed a
non-moving party to set forth “specific facts showing that            matter of public concern. See Connick v. Meyers, 461
there is a genuine issue for trial.” Matsushita Elec. Indus. Co.      U.S. 138, 143, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983).
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Where                If the answer is yes, then the court must balance the
there are no disputed, material facts, we determine, de novo,         interests of the public employee, “as a citizen, in
whether the district court properly applied the substantive           commenting upon matters of public concern and the
law. See Sutton v. Cleveland Bd. of Educ., 958 F.2d 1339,             interest of the State, as an employer, in promoting the
1345 (6th Cir. 1991).                                                 efficiency of the public services it performs through its
                                                                      employees.” Pickering v. Bd. of Educ., 391 U.S. 563,
FIRST AMENDMENT RETALIATION                                           568, 88 S.Ct. 1731, 20 L.Ed. 2d 881 (1968). Finally, the
                                                                      court must determine whether the employee’s speech was
  To establish a prima facie case of First Amendment                  a substantial or motivating factor in the employer’s
retaliation under 42 U.S.C. § 1983, Appellant must                    decision to take the adverse employment action against
demonstrate that: (1) he was engaged in a constitutionally            the employee. Mt. Healthy City Sch. Dist. Bd. of Educ.
protected activity; (2) he was subjected to adverse action or         v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d
deprived of some benefit; and (3) the protected speech was a          471 (1977); Perry, 209 F.3d at 604.
“substantial” or “motivating factor” in the adverse action.
Leary v. Daeschner, 349 F.3d 888, 897 (6th Cir. 2000)               Id. at 596.
(citations omitted).
No. 02-1896                      Farhat v. Jopke, et al.    11    12   Farhat v. Jopke, et al.                     No. 02-1896

  In the case now before the court, it is not contested that         In Connick, an assistant prosecutor, upset over her pending
Appellant’s letter of May 18, 2000, culminating the events        transfer within the New Orleans District Attorney’s office,
described above, was a substantial and motivating factor in       circulated a questionnaire to her fellow employees soliciting
his termination. The letter of termination from the               their views on various issues. These issues included “office
Superintendent to Appellant specifically stated that he was       transfer policy, office morale, the need for a grievance
being terminated for the expression in that letter, as well as    committee, the level of confidence in supervisors, and
for other specific instances of unacceptable conduct. This        whether employees felt pressured to work in political
meets the third step of the test as outlined above: that          campaigns.” Id. at 141. The Court held that, of the several
Appellant’s expression in the May 18 letter was a motivating      topics raised by the questionnaire, only the matter of pressure
factor in the adverse employment action.                          to work in political campaigns was a matter of public concern.
                                                                  The Court observed:
  There remain for our consideration the other two steps of
the inquiry, the public concern step and the Pickering              When employee expression cannot be fairly considered
balancing test.                                                     as relating to any matter of political, social, or other
                                                                    concern to the community, government officials should
PUBLIC CONCERN                                                      enjoy wide latitude in managing their offices, without
                                                                    intrusive oversight by the judiciary in the name of the
  Whether the speech at issue involves a matter of public           First Amendment. Perhaps the government employer’s
concern is a question of law for the court, Bonnell v. Lorenzo,     dismissal of the worker may not be fair, but ordinary
241 F.3d 800, 809-10 (6th Cir.), cert. denied, 534 U.S. 951         dismissals from government service which violate no
(2001), although there may be some factual questions for a          fixed tenure or applicable statute or regulation are not
jury if it is disputed whether the expression occurred or what      subject to judicial review even if the reasons for the
words were specifically stated. See generally Waters v.             dismissal are alleged to be mistaken or unreasonable.
Churchill, 511 U.S. 661 (1994). Our review of the lower
court’s decision on this issue is de novo. Dambrot v. Central     Id. at 146 (internal citations omitted) (emphasis added).
Mich. Univ., 55 F.3d 1177, 1182 (6th Cir. 1995).
                                                                    The Court further instructed that “[w]hether an employee’s
  The district court here did not expressly rule on the public    speech addresses a matter of public concern must be
concern issue, but seemed to base its decision on the             determined by the content, form, and context of a given
Pickering balancing inquiry noted above. However, this issue      statement, as revealed by the whole record.” Id. at 147-48.
has been raised by all parties to this appeal.                    Moreover, the entire speech does not have to address matters
                                                                  of public concern, as long as some portion of the speech does
  In determining whether expression is a matter of public         so. Id. at 149.
concern, we are guided by Connick v. Myers, 461 U.S. 138
(1983), which we have noted is “the Supreme Court’s most            Applying this content-based test, the Court concluded that
instructive case on this issue.” See Cockrel v. Shelby County     the “focus” of the assistant prosecutor’s questionnaire, with
Sch. Dist., 270 F.3d 1036, 1050 (6th Cir. 2001), cert. denied,    the exception of the question pertaining to pressure on
537 U.S. 813 (2002).                                              employees to work on political campaigns, was her personal
No. 02-1896                            Farhat v. Jopke, et al.        13     14     Farhat v. Jopke, et al.                             No. 02-1896

dispute with her superiors over the proposed transfer and thus               the employee claims that some part of the speech also touches
was not a matter of public concern:                                          upon matters of public concern.4
  While discipline and morale in the workplace are related                     The difficulty of determining whether speech is of “public
  to an agency’s efficient performance of its duties, the                    concern” is compounded by the fact that these cases tend, as
  focus of [plaintiff’s] questions [in the questionnaire] is                 one might expect, to be highly fact-specific. However, our
  not to evaluate the performance of the office but rather                   close review of Connick and this circuit’s subsequent
  to gather ammunition for another round of controversy                      decisions yields the following principles:
  with her superiors. These questions reflect one
  employee’s dissatisfaction with a transfer and an attempt                    1. Speech is of “public concern” if it involves issues
  to turn that displeasure into a cause celèbre.                               about which information is needed or appropriate to enable
                                                                               the members of society to make informed decisions about
Id. at 148 (emphasis added).                                                   the operation of their government.5
  Summarizing this ruling, the Court stated:                                   2. The fact that the public employee engages in the
                                                                               speech while in the course of his or her employment does
  We hold only that when a public employee speaks not as                       not preclude a finding that the speech touches upon a
  a citizen upon matters of public concern, but instead as                     matter of public concern.6
  an employee upon matters only of personal interest,
  absent the most unusual circumstances, a federal court is
  not the appropriate forum in which to review the wisdom                             4
                                                                                         See, e.g., Banks v. Wolfe County Bd. of Educ., 330 F.3d 888,
  of a personnel decision taken by a public agency                           894 (6th C ir. 200 3); Vau ghn v. Lawrenceb urg Pow er Sys., 269 F.3d 703,
  allegedly in reaction to the employee’s behavior.                          716 (6th C ir. 200 1); Bon nell v. Loren zo, 241 F.3d 800, 812 (6th Cir.),
                                                                             cert. denied, 534 U.S. 951 (2001). See also Leary v. Daeschner, 349 F.3d
Id. at 147.3                                                                 888, 899 (6th Cir. 2003). Indeed, as we noted in Bonne ll, Connick itself
                                                                             was a “mixed spe ech” case b ecause, although the Court did not use that
  In the twenty-one years since Connick, this court has had                  label, it looked at every act of expression on the emp loyee’s questionnaire
                                                                             and, after concluding that one of the questions touched upon a matter of
numerous opportunities to apply that decision to determine                   public concern, proceeded to the Pickering balancing test. See Bonne ll,
when a public employee’s speech is a matter of “public                       241 F.3d at 811 n. 7.
concern.” In so doing, we have recognized that the most
difficult cases to adjudicate are “mixed speech” cases, i.e.,                         5
                                                                                       Rod gers v. Banks, 344 F.3d 587, 596 (6th Cir. 2003) (citations
those in which the speech for which the employee claims First                omitted); Banks v. Wolfe County Bd. of Educ., 330 F.3d 888, 893 (6th Cir.
Amendment protection arises in the context of an                             200 3).
employment grievance or other personnel dispute, but where                            6
                                                                                        Rod gers, 344 F.3d at 598-99 (eschewing the “course of
                                                                             employment gloss” on the Connick analysis); Cockrel v. Shelby C oun ty
                                                                             Sch. Dist., 270 F.3d 103 6, 10 52 (6th Cir. 200 1) (ho lding that although
         3
                                                                             teacher was speaking in her role as an employee when she presented
           The Court held that the one issue it found to be a matter of      information on the environmental benefits of industrial hemp, the speech
pub lic concern was not actionable because plaintiff’s case failed to pass   nonetheless related to matters of political and social concern to the
the Pickering balancing test. Id. at 154. See discussion, infra.             com munity), cert. denied, 537 U.S. 813 (2002).
No. 02-1896                              Farhat v. Jopke, et al.         15     16     Farhat v. Jopke, et al.                             No. 02-1896

  3. The employee’s motive for engaging in the speech in                          In “mixed speech” cases, application of the second and
  question is a relevant, but not dispositive, factor when                      third principles is often difficult. That is, if the employee
  considering whether an employee’s expression is of public                     speaks only in the course of his employment and does so
  concern.7                                                                     solely for personal reasons, when will the speech be of
                                                                                concern to the community?
  4. Although First Amendment protection might not be
  available if the employer can show that the public                              Taking the motive issue first, our opinions are clear that,
  employee knowingly or recklessly made false statements,                       consistent with the “content” test of Connick, the pertinent
  a public employee is not required to prove the truth of his                   question is not why the employee spoke, but what he said:
  or her speech in order to secure the protections of the First
  Amendment.8                                                                     The defendants’ most sweeping argument is that none of
                                                                                  Chappel’s speech may be considered speech on a matter
                                                                                  of public concern because all of his speech was
         7
                                                                                  fundamentally and predominately motivated by his self-
            Rodg ers, 344 F.3d at 60 0 (“Although Plaintiff’s underlying          interest in obtaining a position as a paramedic with the
motive in writing the memo might have been to complain about                      ambulance district. . . . They also suggest that Chappel
incompetent management, our duty is not to discern her underlying
motive, but rather to evaluate her point as it is presented in the speech.”);
                                                                                  “lashed out against Chief Welch and the rest of his
Taylor v. Keith , 338 F.3d 639, 645 (6th Cir. 2003) (“The inquiry is              family,” alleging misappropriations, nepotism, and a
primarily conc erned with what the speaker intende d to comm unicate              conflict of interest, only because “he believed that they
through his statement, and not his reasons for speaking.”) (citation              were standing in his way.”
omitted); Cockrel, 270 F.3d at 1052 (“Thus, even if a public employee
were acting out o f a private motive with no intent to air her speech             The defendants’ argument, that Chappel’s subjective
publicly, as was the case with M yers, so long as the spee ch relates to
matters of ‘political, social, or other concern to the community,’ as             motivations are dispositive when determining whether
opposed to matters ‘only of personal interest,’ it shall be considered as         his speech addresses a matter of purely personal concern,
touching upon matters of pub lic concern.”) (quoting Connick, 461 U.S.            is in direct conflict with the Supreme Court’s holding in
at 146-49); Bonne ll, 241 F.3d at 812; Cha ppel v. M ontgo mery Cty. Fire         Connick. In Connick, a public employee disseminated a
Pro t. Dist. No . 1, 131 F.3d 564 , 575 -76 (6 th Cir. 1997).                     questionnaire “to gather ammunition for another round of
         8                                                                        controversy with her superiors” because she was
           Rod gers, 344 F.3d at 601 n. 5 (“We note that even if P laintiff’s     “dissatisf[ied] with a transfer.” Connick, 461 U.S. at
opinion ultimately proved to be incorrect, this does not deprive her
statements of First Am endment protection.”); Chappel, 131 F.3d at 576-
77 (rejec ting defendants’ argument that employee’s speech alleging
corruption and unethical conduct canno t address matters of public concern      that he had made accusations of corruption against his public employer,
absent proof of the truthfulness of his speech); Williams v. Kentucky., 24      but discovery revealed that his actual speech included no such allegations,
F.3d 152 6, 15 35-3 6 (6th Cir.) (rejecting argum ent that plaintiff’s          only com plaints o f mismanagement. Id. Thus, because the employee had
admission that she “couldn’t prove” her allegations of unethical conduct        failed to substantiate the allegations of his complaint, i.e., to produce
foreclosed conc lusion tha t her speech was of public concern), cert. denied    evidence that he actually accused his employer of corruption, we found
sub nom Allen v. Williams, 513 U.S. 947 (1994).                                 proper the district court’s conclusion that the speech in question was not
                                                                                a matter of p ublic concern. As we explained in Chappel, this does not
         W e emphasize here, as we did in Chappel, that this principle is       mean that an employee who does, in fact, engage in speech alleging
not in conflict with our opinion in Barnes v. McDo well, 848 F.2d 725,          public corruption has to prove the truthfulness of that speech in order to
734-35 (6th Cir. 19 88). In Barnes, the employee alleged in his complaint       show it touches upo n a public co ncern. Chappel, 131 F.3d at 576-77 .
No. 02-1896                      Farhat v. Jopke, et al.   17    18   Farhat v. Jopke, et al.                    No. 02-1896

  148, 103 S.Ct. at 1691. Notwithstanding the fact that this     that the court must determine: the “focus” of the speech; “the
  personal grievance motivated the entire questionnaire,         point of the speech in question”; “to what purpose the
  the Court concluded that “[o]ne question in [the]              employee spoke”; “the intent of the speech”; or “the
  questionnaire . . . touch[ed] upon a matter of public          communicative purpose of the speaker.” See Rodgers, 344
  concern.” Id. at 149, 103 S.Ct. at 1691. We agree, as a        F.3d at 600 (holding that pertinent inquiry is “the point or
  majority of the Third Circuit recently concluded, that         focus of the speech in question”); Taylor v. Keith, 338 F.3d
  “[i]f motive were dispositive, the [Court’s] inquiry [in       639, 645 (6th Cir. 2003) (noting that proper inquiry is the
  Connick] could only have resulted in finding either that       “point of the speech” and “what the speaker intended to
  all of [the employee’s] speech was public concern speech       communicate”); Buckley v. City of Portage, No. 98-1783,
  or that none of it was.” Azzaro v. County of Allegheny,        1999 WL 777542, at *4 (6th Cir. Sept. 16, 1999) (examining
  110 F.3d 968, 978 (3d Cir. 1997) (en banc). . . .              “primary focus” of speech), cert. denied, 530 U.S. 1262
                                                                 (2000); Dambrot v. Central Mich. Univ., 55 F.3d 1177, 1187-
  [T]he inquiry into what a speaker intends to                   88 (6th Cir. 1995) (court must look to the “point” of the
  communicate remains fundamentally different from an            speech and the “communicative purpose” of the speaker);
  inquiry into why the speaker intends that communication.       Rahn v. Drake Ctr., Inc., 31 F.3d 407, 412-13 (6th Cir. 1994)
  The former inquiry is of much greater significance in          (court must examine “complete record” and determine
  determining whether speech addresses a matter of public        “focus” of statement for which employee claims protection),
  concern.                                                       cert. denied, 515 U.S. 1142 (1995).
Chappel, 131 F.3d at 574-75 (italics in original; underlining      As a corollary to this “focus” test, we have held that the
added). See also Bonnell, 241 F.3d at 817 (“However, even        proper inquiry is not what might be “incidentally conveyed”
assuming that Plaintiff was motivated by personal animus in      by the speech, and that “passing” or “fleeting” references to
circulating the Apology, the fact remains that in doing so, he   an arguably public matter do not elevate the speech to a
addressed a matter occurring at the college which was of         matter of “public concern” where the “focus” or “point” of the
public concern.”).                                               speech advances only a private interest. See Rodgers, 344
                                                                 F.3d at 597-98; Taylor, 338 F.3d at 645-46; Buckley, 1999
   As for the “course of employment” issue, this circuit has     WL 777542, at *4-5; Dambrot, 55 F.3d at 1187; Rahn, 31
flatly rejected the argument that the fact that a public         F.3d at 412-13.
employee’s speech occurs while he is carrying out his job
duties renders the speech of only private concern, noting that      Turning to the employee’s speech in the case at bar, viewed
such a rule would eviscerate First Amendment protection in       in context of the complete record, we believe that the primary
public employment. See Rodgers, 344 F.3d at 598-99;
Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036, 1052 (6th
Cir. 2001), cert. denied, 537 U.S. 813 (2002). Cf. Banks v.
Wolfe County Bd. of Educ., 330 F.3d 888, 898-99 (6th Cir.
2003) (Gibbons, J., concurring).
  Against the background of Connick and these principles,
our circuit has distilled the “public concern” test by stating
No. 02-1896                            Farhat v. Jopke, et al.          19   20    Farhat v. Jopke, et al.                           No. 02-1896

“focus,”9 “point,”10 or “communicative purpose”11 of                         Amendment because the issue was a matter of public concern.
Appellant’s letters was his own personal “beef”12 with the                   Id. at 570-71. The letter was personally critical of the
union and the school district concerning his deteriorating job               members of the Board. The Supreme Court noted, however,
situation, and his references to collusion or corruption were                that there were no close working relationships between the
“passing”13 references that were “incidental to the message                  teacher and the members of the Board and, therefore, the
conveyed.”14 Thus his letters were not matters of “public                    protected expression did not violate the Board’s “interests as
concern.”                                                                    an employer in regulating the speech of its employees that
                                                                             differ significantly from those it possesses in connection with
  Moreover, even if Appellant had satisfied this prong of the                regulation of the speech of the citizenry in general.” Id. at
First Amendment retaliation analysis, we conclude that                       568-70.
application of the Pickering balancing test still requires that
the summary judgments entered by the court below be                             The Court further enunciated what has come to be known
affirmed.                                                                    as the “Pickering balancing test”: “The problem in any case
                                                                             is to arrive at a balance between the interests of the
PICKERING BALANCING TEST                                                     [employee], as a citizen, in commenting upon matters of
                                                                             public concern and the interest of the State, as an employer,
  Application of the Pickering balancing test is a matter of                 in promoting the efficiency of the public services it performs
law for the court to decide. Leary v. Daeschner, 349 F.3d 888,               through its employees.” Id. at 568.
898 (6th Cir. 2000) (citation omitted).
                                                                               Applying this test, we conclude that, even if portions of
   In Pickering v. Bd. of Educ., 391 U.S. 563 (1968), the                    Appellant’s expression did address matters of public concern,
Court held that the firing of a teacher for writing a letter to a            the disruptiveness of his speech in the workplace outweighed
newspaper, opposing a tax increase advocated by the                          any value his expression might have had. Thus, summary
defendant Board of Education, was a violation of the First                   judgment was properly granted.15
                                                                               Authority for this conclusion is found in Waters v.
        9
          See Rod gers, 344 F.3d at 599-60 0; Buckley, 1999 WL 777542,       Churchill, 511 U.S. 661 (1994). There, a nurse was reported
at *4; Rahn, 31 F.3d at 413.                                                 to her employer as having made critical remarks concerning
        10
                                                                             the operation of one of the departments of the hospital in
          See Rodge rs, 344 F.3d at 598-600 ; Taylor, 338 F.3d at 645;       which she was employed. She also made highly derogatory
Dambrot, 55 F.3d at 1187.                                                    remarks concerning her supervisor, a physician. Id. at 665-
        11                                                                   66.
             See Dambrot, 55 F.3d at 1188.

        12
            See Barnes v. McDo well, 848 F.2d 725 , 735 (6th Cir. 1988)
(citation omitted ), cert. denied, 488 U.S. 100 7 (1989 ).
                                                                                      15
        13                                                                              W e read the district court’s succinct remarks at the summary
             See Rahn, 31 F.3d at 412-13.                                    judgment hearing as a statement that the summary judgments were
        14
                                                                             granted on this ground.
             See R odgers, 344 F.3d at 597; Dambrot, 55 F.3d at 1187.
No. 02-1896                      Farhat v. Jopke, et al.   21    22   Farhat v. Jopke, et al.                    No. 02-1896

  Some of the remarks the nurse was alleged to have made           The key to First Amendment analysis of government
were disputed by her. The Court held that her firing was           employment decisions, then, is this: The government’s
justified, even though the employer had based its decision on      interest in achieving its goals as effectively and
the reported remarks without having determined what remarks        efficiently as possible is elevated from a relatively
were actually made. Id. at 677 (plurality opinion by               subordinate interest when it acts as sovereign to a
O’Connor, J.), 686 (concurring opinion by Scalia, J.).             significant one when it acts as employer. The
                                                                   government cannot restrict the speech of the public at
   The Court recognized the right of even a governmental           large just in the name of efficiency. But where the
employer to deal with disruption in the workplace. It              government is employing someone for the very purpose
emphasized that the government as employer has efficiency          of effectively achieving its goals, such restrictions may
concerns that give it greater discretion in dealing with a         well be appropriate.
disruptive employee, more discretion than it would have to
deter speech by a private citizen. Id. at 674-75. “[S]urely,”    Id. at 674-675 (emphasis added).
the plurality observed, “a public employer may, consistently
with the First Amendment, prohibit its employees from being        The same principles have been recognized in our own
rude to customers,” as well as to other employees, including     opinions. See, e.g., Leary v. Daeschner, 349 F. 3d 888, 897
the supervising physician. Id. at 673 (internal quotations and   (6th Cir. 2000); Rodgers, 344 F.3d at 596; Hoover v.
citations omitted).                                              Radabaugh, 307 F.3d 460, 466 (6th Cir. 2002); Strouss v.
                                                                 Mich. Dep’t of Corrections, 250 F.3d 336, 346 (6th Cir.
  In language particularly applicable to the instant case, the   2001); Bonnell, 241 F.3d at 810-811; Charvat v. Eastern
plurality stated:                                                Ohio Reg’l Wastewater Auth., 246 F.3d 607, 617 (6th Cir.
                                                                 2000); Chappel, 131 F.2d at 573-574.
  [T]he extra power the government has in this area comes
  from the nature of the government’s mission as an                Thus, we find that Appellant’s speech, even if of public
  employer. Government agencies are charged by law with          concern, is not protected. Appellant’s “speech” was highly
  doing particular tasks. Agencies hire employees to help        disruptive to the point that it interfered with the effective
  do those tasks as effectively and efficiently as possible.     operation of the school district’s custodial staff. Indeed, at
  When someone who is paid a salary so that she will             times they feared for their physical safety in the workplace
  contribute to an agency’s effective operation begins to do     due to Appellant’s behavior. As the plurality stated in
  or say things that detract from the agency’s effective         Waters: “As a matter of law, this potential disruptiveness was
  operation, the government employer must have some              enough to outweigh whatever First Amendment value the
  power to restrain her. The reason the governor may . . .       speech might have had.” Waters, 511 U.S. at 681. Therefore,
  fire [a robustly critical high-ranking] deputy is not that     on this ground also we find that the district court properly
  this dismissal would somehow be narrowly tailored to a         held that there was no First Amendment violation. Thus, the
  compelling government interest. It is that the governor
  and the governor’s staff have a job to do, and the
  governor justifiably feels that a quieter subordinate
  would allow them to do this job more effectively.
No. 02-1896                              Farhat v. Jopke, et al.        23     24    Farhat v. Jopke, et al.                      No. 02-1896

lower court’s grant of summary judgment on the retaliation                     support the proposed action.” Loudermill, 470 U.S. at 545-
claims must be affirmed.16                                                     46. The essential elements required for due process are notice
                                                                               and an opportunity to respond, either in writing or in person.
DUE PROCESS                                                                    Id. at 546.
  The next issue presented is Appellant’s claim that he was                      In the Sixth Circuit, we have held that prior to termination
denied procedural due process because the school district did                  of a public employee who has a property interest in his
not meet the Constitutional due process requirements for                       employment, the due process clause requires that the
pretermination and post-termination hearings. In support of                    employee be given “oral or written notice of the charges
these claims, Appellant states that he never received a hearing                against him or her, an explanation of the employer’s evidence,
before a neutral decisionmaker. He further states that he was                  and an opportunity to present his or her side of the story to the
not permitted to present his grievance directly to the school                  employer.” Buckner v. City of Highland Park, 901 F.2d 491,
board which, he asserts, is required by Michigan statute.                      494 (6th Cir.) (citing Loudermill v. Cleveland Bd. of Educ.,
                                                                               844 F.2d 304 (6th Cir. 1988)), cert. denied, 498 U.S. 848
   Due process requires some sort of pretermination hearing,                   (1990). “To require more than this prior to termination would
the formality of which depends upon the importance of the                      intrude to an unwarranted extent on the government’s interest
interest and the nature of the subsequent proceedings. See                     in quickly removing an unsatisfactory employee.”
Duchesne v. Williams, 849 F.2d 1004, 1006-07 (6th Cir.                         Loudermill, 470 U.S. at 546.
1988), cert. denied, 489 U.S. 1081 (1989). For public
employees who can only be fired for cause, the Supreme                            We also have held that in the pretermination stage, the
Court has held, specifically, that a pretermination proceeding                 employee does not have a right to, and the Constitution does
is required. Id. (discussing Cleveland Board of Education v.                   not require, a neutral and impartial decisionmaker. The “right
Loudermill, 470 U.S. 532 (1985)).                                              of reply” before the official responsible for the discharge is
                                                                               sufficient. Duchesne, 849 F.2d at 1006. It is at the post-
  In Loudermill, the Supreme Court held that a full                            deprivation stage where a neutral decisionmaker is needed to
evidentiary hearing is not required prior to termination.                      adjudicate the evidence. Where there is a system of post-
Rather, the pretermination hearing is to provide an initial                    termination procedures available to the employee that
check against mistaken conclusions, “essentially, a                            includes a neutral decisionmaker and/or arbitration, coupled
determination of whether there are reasonable grounds to                       with a pretermination “right of reply” hearing, then the
believe that the charges against the employee are true and                     employee has received all the process due under the
                                                                               Constitution. See Duchesne, 819 F.2d at 1006; Buckner, 901
                                                                               F.2d at 494; Loudermill, 470 U.S. at 545.
         16
            Appellant’s claims that his termination violated his First           The law is well-established that it is the opportunity for a
Amendm ent rights to association and to petition the government are
without merit. Appellant’s association claim must fail because he did not
                                                                               post-deprivation hearing before a neutral decisionmaker that
adduce any evidence that he was terminated because of his union                is required for due process. As long as the procedural
activities. His petition claim fails because the “p etition” he relied on in   requirements are reasonable and give the employee notice and
his complaint - - his contac ts with the T roy City government - - was made    an opportunity to participate meaningfully, they are
after he was terminated, and thus could not have been a factor in the          constitutionally adequate. See Hennigh v. City of Shawnee,
decision to terminate him.
No. 02-1896                      Farhat v. Jopke, et al.    25    26   Farhat v. Jopke, et al.                      No. 02-1896

155 F.3d 1249, 1256 (10th Cir. 1998). As succinctly stated        the injunction granted by the district court was vacated. Id. at
by the Seventh Circuit, the “availability of recourse to a        1007-1008.
constitutionally sufficient administrative procedure satisfies
due process requirements if the complainant merely declines          In Buckner, a terminated police officer alleged that he had
or fails to take advantage of the administrative procedure.”      been denied due process because no hearing was held prior to
Dusanek v. Hannon, 677 F. 2d 538, 542-43 (7th Cir.)               his discharge. The officer further alleged that the termination
(citations omitted), cert. denied sub nom Dusanek v.              violated a state statute because he was an alcoholic in
O’Donnell, 459 U.S. 1017 (1982). Consequently, where the          treatment at the time of his discharge and believed he was
employee refuses to participate or chooses not to participate     fired because of that condition. Buckner, 901 F.2d at 493.
in the post-termination proceedings, then the employee has        We held that the facts of the case established that the officer
waived his procedural due process claim. See Krentz v.            was given notice and an opportunity to respond, even though
Robertson Fire Prot. Dist., 228 F.3d 897, 904 (8th Cir. 2000)     he was in the hospital and there was not a formal
(citations omitted).                                              pretermination hearing in the standard format. Id. at 495-496.

   “The law is also clear that grievance procedures provided        Similarly, in Loudermill, the Court held that “all the
by a collective bargaining agreement can satisfy a plaintiff’s    process that was due is provided by a pretermination
entitlement to post-deprivation due process.” Hennigh, 155        opportunity to respond, coupled with post-termination
F.3d at 1256; American Postal Workers Union Columbus              administrative procedures . . . .” Loudermill, 470 U.S. at 547-
Area Local AFL-CIO v. U.S. Postal Service, 736 F. 2d 317,         548.
319 (6th Cir. 1984). As we stated in Buckner, the opportunity
to challenge the termination in a more detailed post-                In the case before us, we find that Appellant was given all
termination proceeding, under the collective bargaining           the process due and that his constitutional rights were
agreement, satisfies the employee’s constitutional due process    protected. Appellant was provided with two pretermination
rights. Buckner, 901 F.2d at 497.                                 proceedings that were attended by himself as well as his
                                                                  chosen union representatives. Post-termination, he was given
   In Duchesne, the employee claimed that he was denied           the opportunity for a full hearing before a neutral arbitrator,
procedural due process because his pretermination proceeding      as provided for in the collective bargaining agreement. At the
was biased. Duchesne, 849 F.2d at 1005. The proceeding            arbitration, the parties reached a tentative settlement.
was presided over by the person who ultimately fired the          However, after a few days, Appellant rejected the settlement.
employee, who was also the person about whom the                  Following this rejection, the union withdrew its representation
employee had complained to the city council. Id. We held          of him. The record reflects that Appellant made no further
that even if the decisionmaker at the pretermination hearing      attempts to pursue this issue directly with the school board.
was biased, due process is fulfilled by a post-termination,       Instead, Appellant filed this lawsuit.
trial-type proceeding where an opportunity to “ferret out bias,
pretext, deception and corruption by the employer in                Under the authority cited above, due process has not been
discharging the employee” is provided. Id. at 1008.               denied in this case. Appellant was given pretermination
Duchesne held that the employee was not entitled to a             notice and an opportunity to be heard. That is all that is
pretermination hearing before a neutral decisionmaker, and        required prior to termination, even if the person against whom
                                                                  he made the allegations was the same person who presided
No. 02-1896                       Farhat v. Jopke, et al.    27    28   Farhat v. Jopke, et al.                     No. 02-1896

over the hearing. It is the post-termination proceeding where        Further, Appellant has failed to allege and prove the
bias and corruption are ferreted out. See Buckner, 901 F.2d        inadequacy of state remedies, which failure is fatal to his
at 494; Duchesne, 849 F.2d at 1006.                                procedural due process claim. See Jefferson v. Jefferson
                                                                   County Pub. Sch., 360 F.3d 583, 588 (6th Cir. 2004) (citing
   We also find that post-deprivation due process was              various cases). Indeed, he concedes that state law permitted
adequate. Appellant was provided a post-termination                him to arbitrate with the defendants even after the union
arbitration that he requested, attended, and at which he           declined to represent him. Nonetheless, Appellant failed to
reached a settlement, albeit one he later rejected. The fact       continue the arbitration after the union’s withdrawal and
that Appellant was given the opportunity for a post-               elected to file this lawsuit instead.
termination proceeding, before a neutral arbitrator, belies his
claim that due process was denied. See Buckner, 901 F.2d at        PRIOR RESTRAINT
494-5; Hennigh, 155 F.3d at 1256; American Postal Workers,
736 F.2d at 319. Being dissatisfied with the result of the            The third issue Appellant presents for review is his
arbitration does not give rise to a constitutional violation.      allegation that the school district placed an unconstitutional
Moreover, we find that Appellant waived his post-deprivation       prior or overbroad restraint on his speech when, as part of
due process when, after rejecting the settlement, he failed to     the15-day suspension and investigation, he was instructed to
pursue further arbitral proceedings. See Krentz, 228 F.3d at       refrain from speaking to other employees about the
904.                                                               investigation. Appellant dedicates approximately one page of
                                                                   his argument to this issue, which is thin on analysis.
  Appellant’s claim that Michigan law requires that he be          Appellant simply alleges that there was no legitimate reason
given a hearing directly before the board, lest he be denied       for this restriction, with no supporting evidence or argument.
due process, also fails. The applicable Michigan statute,
M.C.L.A. 423.211, states that an employee may negotiate              The Sixth Circuit addressed the issue of a prior restraint on
directly with the employer and present grievances directly to      speech of a government employee in Jackson v. City of
the employer. By its plain language, this action is                Columbus, 194 F.3d 737 (6th Cir. 1999) (abrogated on other
discretionary. Especially where other procedural measures          grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506
are available for the employee to present his case, due process    (2002)). Jackson involved the termination of a police chief
is not denied if the employer relies on the collective             who alleged that his dismissal was racially motivated. He
bargaining agreement to provide that process. See Hennigh,         further alleged that a “gag order” not to speak to the media
155 F.3d at 1256; American Postal Workers, 736 F.2d at 319.        pending investigation of his alleged misconduct
                                                                   unconstitutionally restrained his speech. Id. at 746. We
  Therefore, as a matter of law, we find that the district court   recognized that the Pickering balancing test applied to the
correctly held that Appellant was provided procedural due          analysis of such allegedly improper prior restraints on the
process. The employer provided not one, but two,                   speech of a public employee. Id.
pretermination hearings where Appellant was given notice
and an opportunity to be heard. Moreover, he was provided             Thus, the same process applies here as it did with the first
the opportunity for a post-termination arbitration presided        issue we addressed in this appeal. That is, we first determine
over by a neutral arbitrator. The Constitution requires            if the issue is one of private or public concern. Second, we
nothing further.                                                   balance the interests of the government employer in
No. 02-1896                      Farhat v. Jopke, et al.    29    30   Farhat v. Jopke, et al.                     No. 02-1896

maintaining a functioning and cohesive working environment        Franks, 229 F.3d 514, 526 (6th Cir. 2000). Claims of
against the employee’s interest in speaking. Id.                  conspiracy must be pled with some specificity: vague and
                                                                  conclusory allegations that are unsupported by material facts
  We find that the balance of interests on this issue weighs in   are not sufficient to state a §1983 claim. Gutierrez v. Lynch,
favor of the employer. As we stated previously, even if           826 F.2d 1534, 1538 (6th Cir. 1987) (citation omitted).
Appellant’s speech had been of public concern, it is clear that
the interests of the employer outweigh the interests of the
employee, for this limited purpose. The school district only         Quite simply, Appellant has failed to establish that he was
restricted Appellant’s speech for 15 days, pending its            injured by any unlawful action. As we have held here, there
investigation of allegations about him and by him. Further,       were no constitutional deprivations by Appellees, thus there
he was restricted in his speech only as to co-employees. He       is no unlawful action. Without an unlawful action causing
was not restricted from speaking to the public or his union.      injury, Appellant cannot prove the elements required to
As stated by Appellee Kelly in her deposition, the reason for     support a claim for conspiracy. Accordingly, the district court
this restriction was to prevent further disruption of the         correctly granted summary judgment to Appellees on this
workplace and potential interruption of the investigation by      issue.
Appellant’s abusive and threatening behavior. The record is
replete with Appellant’s history of this very type of behavior.   CONCLUSION

  Appellant has not presented any evidence of how he was            For the reasons set forth herein, we AFFIRM the judgment
limited by this alleged restraint. Thus, we have nothing to       of the United States District Court for the Eastern District of
place on the Pickering scale to measure against the               Michigan, Southern Division, as to all claims.
employer’s interests. As such, we find that the alleged prior
restraint on Appellant’s speech was reasonable in light of the
employer’s interest in completing its investigation and in
protecting the workplace. The district court properly granted
summary judgment on this issue.
CONSPIRACY
  Appellant’s final allegation is that Appellees are liable for
civil conspiracy for unlawfully causing his termination. He
bases this allegation on the theory that the “general objective
which Hood and Kelly shared was to cause some type of
adverse action concerning Farhat’s career.” Appellant claims
that because Hood went to her supervisor to advise the
supervisor of Appellant’s conduct, there was a conspiracy.
  A civil conspiracy is “an agreement between two or more
persons to injure another by unlawful action.” Weberg v.
No. 02-1896                      Farhat v. Jopke, et al.    31    32    Farhat v. Jopke, et al.                       No. 02-1896

                         Appendix A                               grievance because you said at the time it was not a discipline
                                                                  action, but a concern. Furthermore, Maureen Kelly now says,
Date:    5-11-00                                                  in regard to that meeting that your letter pertains to, that I was
To:      J. Jopke, Superintendent Troy Schools                    pounding my fist on the table and leapt out of my chair, your
From:    Ken Farhat, Custodial Steward, Troy Schools              letter does not describe this at all. Your letter is a joke, in the
Re:      Rebuttal to Letter dated 4-17-00                         fact it isn’t worth the paper it’s written on. Also, Kelly is
                                                                  lying in claiming Harry Sahourieh and Lloyd Stage support
I have been off work since 2-25-00, because of the ever           her statements in regards to that day, and that they will
increasing violations of my civil rights, that has led to a       provide testimony, testimony that you at the time did not
suspension based on a false police report by an incompetent       pursue. Stage’s exact quote was “I was not paying attention,”
and corrupt union representative, Pam Hood. I was placed off      seems odd if I had pounded my fist and leapt out of a chair
work because I was exposing Pam Hood for her collusion and        that he didn’t notice that, being one seat over. Harry flat out
coercion, and failure to represent members of this bargaining     denies that he agrees with Kelly, or has provided any
unit, in cooperation with your administration. This situation     testimony in agreement. Now that I am aware of this letter
is nothing more than a fabrication by administrators who are      being illegally put in my file, I will file the proper grievances.
unwilling to be accountable for their abuse, discrimination,
and incompetence.                                                 The second so called discipline from Mike Williams, was
                                                                  grieved, but the grievances were not processed because Mary
Since you illegally removed me, I have been forced to attend      Watson refused to file them in the transition to the MEA,
illegal meetings with the purpose to create fabricated charges    since I now know she is in collusion with the employer I will
of inappropriate behavior, typical of the administrators in       re-file these. Mike Williams’s letter is an outrageous and
Troy Schools. I am supposed to be docile while I am               cowardly tactic to camouflage his harassment, and abuse in
harassed, lied about, in the most boring and redundant            claiming that I was committing medical fraud and illegal
manner. If I show opposition to these lies, more lies are         union organizing. When he could not prove this by
produced. The most telling ability of Kelly and her               entrapment, he lied and said he was threatened, typical of
persecution of me, is the statement she made to the fact that     Williams. Also I wrote a rebuttal to all school board
I was filing charges against Pam Hood through proper              members and never really got a reply, so his letter is not
channels of MEA. Kelly referred to me as a threat. Since she      worth the paper is [sic] written on. And again, Harry was
made mention to this in an angry and hostile manner, I            present and ready to testify that there was no threat. So much
assume I was disciplined for my legal actions within the          for those.
union infrastructure. Kelly must believe I am a prisoner with
no civil rights.                                                  In regards to Pam Hood, the Troy Police don’t believe her,
                                                                  and closed the case. She concealed the fact that she was
During a hearing on 4-14-00, I was asked how I felt about         coerced by Mike Williams prior to calling the police, that she
your letter dated 1-28-97, applied to me. It was a joke since     has been plotting this for some time, and has been slandering
it was illegal to begin with. You stated that day, when you       me in the work place for years. As a matter of fact, I made a
gave me the letter, that it would not go in my file, it is not    complaint to Carol Miller, Asst. Principle [sic] at Troy High,
designated “personnel file,” I was not offered a union            some weeks earlier in regards to Hood’s attacks on me. It
representative and it is not noted that I was. I did not file a   was the same day I asked that something be done with Becky
No. 02-1896                         Farhat v. Jopke, et al.      33    34   Farhat v. Jopke, et al.                 No. 02-1896

Makowski, another employee that you have allowed to attack             Lastly, I have made an appointment to attend counseling at
me in the work place, along with Butler-Bull and Loretta               the Evergreen Counseling Center, although this may change,
Witkowski. Hood’s actions were of retaliation and defense              because of PPOM requirements. Not because of my behavior,
because she realized I was going to expose her, and file               but because of this administration’s behavior.
charges for collusion, and I would not submit to collusion
myself in regards to a member I was representing. A situation          Sincerely,
that Pam Hood states, “I’m doing what Maureen Kelly wants
me to do, I’m doing what I’m told to do.”                              Kenneth Farhat

My pattern of behavior is of honesty and integrity, traits that        Cc. J. Cusmano
are solely missing in Troy Schools. It is your administration              M. Kelly
that is feared not me. My characterization of those such as                M. Williams
Jack Britton is completely warranted, he is an incompetent                 L. Boehmns
supervisor that retaliated against me by abuse of his authority,           J. Britton
sanctioned by you. When I exposed his abuse and threatening
behavior towards members of this bargaining unit, I was
illegally demoted and further slandered and libeled. You also
claim my co-workers fear me, if they fear me it is because of
the conspiracy of this administration and corrupt union reps
that have been allowed to spread this slander and libel of
threats against people. Furthermore, as always in Kelly’s
warped investigations, she never names who these frightened
co-workers are, or of their testimony, and has refused to
provide this testimony.

I will only admit I talk fast and loud, everybody knows this as
a natural trait. Even if it is a flawed character trait, it is not a
threat. This is being exploited by this administration to avoid
the grievances I have filed, and will file upon returning to
work.

I expect this administration to produce more than rhetoric as
evidence.

I also request that a copy of the medical report be sent to my
residence, this is in regards to the appointment with
Dr. Sheiner. Contact Maureen Kelly.
No. 02-1896                      Farhat v. Jopke, et al.    35    36   Farhat v. Jopke, et al.                     No. 02-1896

                         Appendix B                               up for the corrupt contract negotiation, the ongoing collusion
                                                                  of the local representatives, and the preferential treatment
Date:    5-18-00                                                  they receive. Of course at the expense of the bargaining unit.
To:      Lu Battaglieri, President MEA                            An expense that has led to privatization, loss of seniority
From:    Ken Farhat, Custodial Rep Troy Schools, TESPA            rights, loss of bidding rights, unwarranted discipline, loss of
Re:      Failure to represent                                     medical benefits, loss of sick days, the implementation of a
                                                                  medical exam article that violates our civil rights, and a
On 5-16-00, I met with Tom Fette, Joe Cusmano, and Jeff           hostile environment of dissension and chaos. Least I am
Nyquist, you know who they are. Also present was Tim              remiss, I should include the main component here, Maureen
Hagan, my attorney. During this meeting and by Mr.                Kelly’s good friend Mary Watson. A MEA staff rep who has
Nyquist’s direction it was agreed that an investigation, into     no problem lying in front of nearly 200 people about all the
the allegations and incidents leading up to my suspension,        above. This to enhance her mentally ill friend Kelly, and to
would be conducted. Apparently Mr. Nyquist has no                 use this bargaining unit as a concession for the teachers
influence over Cusmano, or Fette, to motivate them to follow      negotiation.
up on this. I believe Mr. Nyquist to be in good faith at this
time, Fette and Cusmano are not. Instead they continue to         On 5-17-00, my attorney was contacted by Mr. Nyquist. He
avoid their responsibility, to cover up for Pam Hood, and         stated a representative would be assigned to conduct an
protect the employer, this corrupt local, and the incompetence    investigation into my situation. On 5-18-00, I contacted
of the MEA reps up to date.                                       Fette, he claimed no knowledge of a rep other then an
                                                                  advocate in a distant arbitration. I need action now. I don’t
Today at approximately 9:30 a.m., I called Cusmano about a        know what Cusmano intends to present at this arbitration
concern more recent that the May 16 meeting. He refuses to        other than begging like a dog. I will not do this.
investigate. It only involves the President of my local, Pam
Hood, claiming that I stopped her bus with students aboard.       The MEA has committed total failure in this matter and others
I believe that offence would get me life in prison, if true. It   of this bargaining unit, yet Mark Middlewood is being
is a demented accusation from a demented and sick human           allowed to parade around the state claiming this contract is a
being. Cusmano refused to contact Hood, and stated it was         good contract. It is, if you’re a mindless animal, which
not his concern.                                                  Maureen Kelly has done a good job in hiring mindless,
                                                                  criminals as employees.
Furthermore, in regards to the other matters of a needed          Well now you’ve been told, somewhat that is. I invite you to
investigation, he now flatly refuses to do anything to uncover    a union meeting to hear our discussion. Oh excuse me that’s
evidence. Evidence and testimony that will prove beyond a         right we don’t have meetings anymore. They are canceled
shadow of a doubt of the conspiracy behind Hood’s behavior,       when our local reps are exposed for their incompetence and
and my being victimized for being the only honest union rep       collusion, and refuse to answer questions of their conduct.
in Troy with the ability and courage to stand up to this          Like our last meeting last February.
ignorant and abusive administration in Troy Schools.
                                                                  I have been disciplined because I choose to expose MEA and
I can only conclude Cusmano, Fette, Mott, and Gay Shaw are        local reps in complete collusion with the employer. To the
intentionally creating obstacles, innuendo and lies, to cover
No. 02-1896                        Farhat v. Jopke, et al.    37

point these liars are giving testimony, illegal testimony, to the
employer. Despicable.

It is your responsibility to assign staff that is honest and
unbiased. Where is the aggressive representation that was
promised during the organizing effort? Where is the legal
team that was supposed to protect our civil rights? You have
no answer because it was all a lie, and you were not President.
This was orchestrated by Mary Watson and carried on by
every MEA rep since. Fix it please. Believe me, I will
contact newspapers and politicians till something is done. I
will not be deterred, by any threat or conspiracy. I intend to
sue.

Sincerely,

Ken Farhat

CC.    Fette
       Shaw
       Hood
