                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0510n.06

                                          Case No. 13-2588                               FILED
                                                                                    Jul 11, 2014
                          UNITED STATES COURT OF APPEALS                       DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


ROBERT GARCEAU, et al.,                             )
                                                    )
       Plaintiffs-Appellees,                        )
                                                    )        ON APPEAL FROM THE UNITED
v.                                                  )        STATES DISTRICT COURT FOR
                                                    )        THE EASTERN DISTRICT OF
CITY OF FLINT, et al.,                              )        MICHIGAN
                                                    )
       Defendants-Appellants.                       )
                                                    )


       BEFORE: GIBBONS, SUTTON and WHITE, Circuit Judges.


       SUTTON, Circuit Judge. Fourteen police officers sued the City of Flint, its chief of

police, and its police captain. The police officers alleged that the defendants used race-based

discriminatory promotion practices and retaliated against them when they complained, all in

violation of their First and Fourteenth Amendment rights. After the defendants moved to dismiss

the complaint under Civil Rule 12(b)(6), the district court allowed part of the case to go forward.

The defendants seek interlocutory review of that part of the district court’s decision that declines

to dismiss the case in full. We affirm.

       In 2011 and 2012, the Flint Police Department promoted some patrol officers to the rank

of sergeant on a provisional basis. To determine whether those provisional sergeants should stay

on permanently, the department administered a test. Some of the provisional sergeants did not
Case No. 13-2588
Garceau et al. v. City of Flint, et al.
pass the test, but the department allowed them to stay on as provisional sergeants anyway. The

provisional sergeants, as it happens, were African-Americans. The plaintiffs, all Caucasian, saw

these provisional promotions as part of a pattern designed to skirt the department’s internal rules

(requiring seniority-based promotions) and to favor African-Americans.

        The plaintiffs raised their concerns with the department, after which the defendants

allegedly began “harassing” them and “retaliating” against them through “increas[ed] scrutiny”

and “pretextual discipline.” R.6 at 8 ¶¶ 31, 33. The plaintiffs as a result filed this lawsuit against

the City, Police Chief Alvern Lock in his individual capacity, and Police Captain Darryl

Patterson in his individual capacity. All of the plaintiffs allege racial discrimination in violation

of the Fourteenth Amendment, and four of them separately allege retaliation in violation of the

First (and Fourteenth) Amendments.

        The defendants filed a motion to dismiss the lawsuit under Civil Rule 12(b)(6), which

succeeded in part. The district court agreed with the defendants that some of the counts—the

conspiracy count and two of the First Amendment retaliation counts—failed to state a claim. At

the same time, it allowed one of the First Amendment retaliation claims against Chief Lock and

Captain Patterson—based on their actions after the plaintiffs filed this lawsuit—to go forward.

And it held that the claim against the City could proceed as well. This interlocutory appeal

followed.

        Three sets of rules frame our consideration of this appeal. The first is that we give fresh

review to a district court’s decision on a Civil Rule 12(b)(6) motion to dismiss. See Jasinski v.

Tyler, 729 F.3d 531, 538 (6th Cir. 2013). The second is that a court may grant a motion to

dismiss under Civil Rule 12(b)(6) only if, after drawing all reasonable inferences from the

allegations in the complaint in favor of the plaintiff, the complaint still fails to allege a plausible



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theory of relief. See Ashcroft v. Iqbal, 556 U.S. 662, 677–79 (2009). And the third is that a

government official seeking qualified immunity may defend a section 1983 lawsuit on one or

both of two grounds: (1) that his conduct did not violate the plaintiffs’ constitutional or statutory

rights or (2) that any right violated had not been clearly established at the time of the violation.

See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

        The claim against Chief Lock and Captain Patterson.           On appeal, Chief Lock and

Captain Patterson claim that qualified immunity shelters them from this First Amendment

retaliation lawsuit, and that the district court erred in concluding otherwise. To state a claim for

relief, the complaining officers had to show that they (1) engaged in activity that the First

Amendment protects, (2) that the defendants took an adverse action against them, and (3) that the

defendants did so in response to the protected activity. See Mattox v. City of Forest Park,

183 F.3d 515, 520 (6th Cir. 1999).        Lock and Patterson focus on the protected activity

requirement, saying that the filing of this lawsuit does not count. Generally speaking, when

public employees like the plaintiffs speak on “matters of public concern” and do so separate and

apart from their responsibilities as public employees, the First Amendment protects that speech.

See Garcetti v. Ceballos, 547 U.S. 410, 421 (2006); Connick v. Myers, 461 U.S. 138, 145–46

(1983). The plaintiffs’ complaint alleges that the Flint Police Department discriminates on the

basis of race. “[A]llegedly racially discriminatory policies involve[] a matter of public concern,”

Connick, 461 U.S. at 146, a clearly and well-established principle. The First Amendment thus

protects the plaintiffs’ complaint.

        In arguing to the contrary, Lock and Patterson invoke Rice v. Ohio Department of

Transportation, 887 F.2d 716 (6th Cir. 1989). But that decision has been vacated. See 497 U.S.

1001 (1990). On top of that, the decision relied on an overly narrow understanding of matters of



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public concern. That “employee complaints over internal office affairs” are cordoned off from

First Amendment protection, Connick, 461 U.S. at 149, does not mean that matters of both

personal and public concern lack protection, Chappel v. Montgomery Cnty. Fire Prot. Dist. No.

1, 131 F.3d 564, 575 (6th Cir. 1997). And it assuredly does not mean that all employment

disputes lack protection. “[W]hether [the plaintiffs’] racial discrimination complaint was borne

of civic-minded motives or of . . . individual employment concern[s] is irrelevant. What is

relevant is that the subject of [the] complaint was racial discrimination—a matter inherently of

public concern.” Perry v. McGinnis, 209 F.3d 597, 608 (6th Cir. 2000). The district court

properly concluded that, at this phase of the case, the First Amendment retaliation claim against

Chief Lock and Captain Patterson should be allowed to proceed.

        The claim against the City of Flint. The City of Flint claims that the district court erred

in   declining    to   grant   the   City’s   Civil   Rule   12(b)(6)   motion   to   dismiss   the

discrimination/retaliation claim against it. Here, too, no error occurred.

        In their complaint, the plaintiffs allege that the City and department maintained a “policy,

rule, custom and/or practice of” discriminating against Caucasians in favor of African-Americans

and of retaliating against those who opposed them. R.6 at 3 ¶¶ 8–9; see also Monell v. Dep’t of

Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978). They allege that the City and the

department previously maintained policies allowing unlawful affirmative action and preventing

police officers from speaking to the media. They allege a two-year long discriminatory practice

of filling sergeant positions. And they allege that high-level city and department officials

complained about the trouble the plaintiffs’ complaints about that discrimination had caused.

Given these allegations, the complaint contains sufficient factual material to raise a “plausible”




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inference that the defendants maintained a policy or custom that led to discrimination and

retaliation. Iqbal, 556 U.S. at 678. That is all they needed to do at this early phase of the case.

        For these reasons, we affirm.




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