       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2     Taylor, et al. v. Keith, et al.           No. 01-6460
    ELECTRONIC CITATION: 2003 FED App. 0270P (6th Cir.)
                File Name: 03a0270p.06                                Decided and Filed: August 5, 2003

                                                              Before: KRUPANSKY, SILER, and GILMAN, Circuit
UNITED STATES COURT OF APPEALS                                                 Judges.
              FOR THE SIXTH CIRCUIT                                            _________________
                _________________
                                                                                    COUNSEL
DICK I. TAYLOR and ROBERT         X
                                   -                      ARGUED: Wanda G. Sobieski, SOBIESKI, MESSER &
J. TAYLOR,                                                ASSOCIATES, Knoxville, Tennessee, for Appellants. John
          Plaintiffs-Appellants, -                        A. Lucas, HUNTON & WILLIAMS, Knoxville, Tennessee,
                                   -   No. 01-6460
                                   -                      for Appellees. ON BRIEF: Wanda G. Sobieski, Diane
             v.                     >                     Marie Messer, SOBIESKI, MESSER & ASSOCIATES,
                                   ,                      Knoxville, Tennessee, for Appellants. John A. Lucas,
                                   -                      HUNTON & WILLIAMS, Knoxville, Tennessee, for
CHIEF OF POLICE PHILLIP            -                      Appellees.
KEITH , in his individual and      -
official capacity; DEPUTY          -                                           _________________
POLICE CHIEF JAMES R.              -
                                   -                                               OPINION
COKER, in his individual and
                                   -                                           _________________
official capacity; CAPT AIN        -
DAN DAVIS, in his individual       -                        SILER, Circuit Judge. Plaintiffs, Sergeant Dick I. Taylor
and official capacity;             -                      and Officer Robert J. Taylor, brought a civil rights action
SERGEANT GORDON CATLETT , -                               pursuant to 42 U.S.C. § 1983 against several City of
SR., in his individual and         -                      Knoxville supervisory police officers in their individual and
                                   -                      official capacities. The Taylors alleged that the defendants
official capacity,                 -                      retaliated against them for the exercise of their First
         Defendants-Appellees. -                          Amendment rights. The district court granted summary
                                   -                      judgment in favor of the defendants on the basis that the
                                   -                      Taylors did not engage in protected speech. For the reasons
                                  N                       that follow, we REVERSE the judgment of the district court
       Appeal from the United States District Court       and REMAND for further proceedings.
    for the Eastern District of Tennessee at Knoxville.                       I.   BACKGROUND
     No. 99-00057—James H. Jarvis, District Judge.
                                                            On December 14, 1997, police officers Robert Taylor and
                  Argued: May 6, 2003                     Toby Wells attempted to serve an arrest warrant on Jack
                                                          Longmire. Longmire resisted arrest and, in the course of the

                            1
No. 01-6460                 Taylor, et al. v. Keith, et al.   3   4      Taylor, et al. v. Keith, et al.             No. 01-6460

struggle, Officer Taylor called for emergency assistance and      been a problem with Szczepanowski and decided to conduct
was accidentally sprayed with pepper spray. The officers          their own investigation. Captain Davis instructed one of his
eventually succeeded in placing Longmire in handcuffs and         lieutenants to investigate the report. Sergeant White informed
forcing him to the ground next to the squad car.                  Internal Affairs that he had left Szczepanowski written
                                                                  instructions to make a statement about the incident.
  Shortly after Longmire was subdued, Officer John                Szczepanowski was not interviewed, however, because he
Szczepanowski arrived at the scene. Officers Taylor and           was on medical leave due to injuries sustained in connection
Wells left Longmire in the custody of Szczepanowski while         with an arrest made on December 17 wherein he broke the
they went to flush the pepper spray out of Taylor’s eyes.         suspect’s leg.
When they returned, the officers found Longmire lying face
down with blood flowing from the right side of his head.            On January 8, 1998, after Sergeant Taylor saw
                                                                  Szczepanowski at roll call, he approached his supervisor,
   Officer Taylor’s father, Sergeant Dick Taylor, who was         Lieutenant Gordon Catlett, Jr., to express concern about
covering for Sergeant Roger White, also responded to the          Szczepanowski’s returning to active duty. Sergeant Taylor
emergency call. Upon arriving at the scene, Sergeant Taylor       testified that he told Lieutenant Catlett:
was informed that Longmire resisted arrest. He proceeded to
treat Longmire’s wounds and directed another officer to wash          [S]ince you are a lieutenant, it may be a good idea for
Longmire’s blood from the asphalt. Sergeant Taylor briefed            you to use your influence, if this boy does have a
Sergeant White when he arrived, and the two questioned Mrs.           problem, to get him moved or to get him out of the area
Longmire about what she had witnessed during her husband’s            he was in. He was working in a high crime area and the
arrest. When Mrs. Longmire expressed concern about the                impression that I got was that he needed to be moved. . . .
beating her husband received, Sergeants Taylor and White
explained that she could file an abuse complaint with Internal    Sergeant Taylor’s inquiry prompted Internal Affairs to reopen
Affairs. Mr. Longmire was later advised about the procedure       the investigation.
for filing a complaint.
                                                                     The Taylors cooperated with the Internal Affairs
  The following day, Officer Taylor filled out the required       investigation and both implicated Szczepanowski in their
Use of Force Report wherein he implicated Szczepanowski in        formal statements. At the conclusion of the investigation,
the beating of Longmire. Taylor’s report stated that he could     however, the Taylors were terminated by Chief Keith at the
not explain how Longmire’s head injury occurred since             recommendation of Captain Davis, Deputy Chief Robert
Longmire was not bleeding when he was left in                     Coker, and Sergeant Catlett for allegedly covering up the
Szczepanowski’s custody. Upon review of this report, Chief        Szczepanowski incident. The City alleged that Officer Taylor
of Police Phillip Keith directed Sergeant Gordon Catlett, Sr.     intentionally falsified information in Longmire’s resisting-
of Internal Affairs to investigate the matter. Internal Affairs   arrest warrant. The arrest warrant stated that Longmire’s
contacted Longmire, who declined to give a statement, and         injuries occurred when he fell to the pavement while
the investigation was closed.                                     struggling with the officers, whereas the Use of Force Report
                                                                  indicated that Longmire’s injuries occurred while in the
  Captain Dan Davis and Sergeant White reviewed Officer           custody of Szczepanowski. Moreover, Wells testified that
Taylor’s Use of Force Report. They felt that there may have       Officer Taylor asked him whether he would cover for
No. 01-6460                 Taylor, et al. v. Keith, et al.   5   6    Taylor, et al. v. Keith, et al.              No. 01-6460

Szczepanowski. As for Sergeant Taylor, the City alleged that        The defendants moved for summary judgment on grounds
he failed to take appropriate action regarding allegations of     of qualified immunity, claiming that the evidence failed to
officer abuse and improperly processed evidence when he           show a violation of a clearly established right. The district
washed away Longmire’s blood without calling criminalistics       court granted the defendants’ motion for summary judgment,
to process the scene.                                             holding that the Taylors failed to state a claim of unlawful
                                                                  retaliation because they did not establish that they were
   The Taylors filed grievances regarding their terminations.     punished for speaking on a matter of “public concern.”
After a hearing, the Administrative Hearing Officer found
“overwhelming evidence” that the investigation was initiated                    II. STANDARD OF REVIEW
as a result of the Use of Force Report prepared by Officer
Taylor and renewed upon concerns expressed by Sergeant              This court reviews a grant of summary judgment de novo.
Taylor. This evidence, she concluded, was wholly                  Dambrot v. Cent. Michigan Univ., 55 F.3d 1177, 1182 (6th
inconsistent with the City’s allegation that the Taylors          Cir. 1995). Summary judgment should be granted when “the
attempted to cover up the Longmire incident. The Taylors          pleadings, depositions, answers to interrogatories, and
were ordered reinstated with full back pay.                       admissions on file, together with the affidavits if any, show
                                                                  that there is no genuine issue as to any material fact and that
  The defendants appealed to the Chancery Court for Knox          the moving party is entitled to a judgment as a matter of law.”
County, which set aside the decision of the Hearing Officer       Fed. R. Civ. P. 56(c). When reviewing a motion for summary
and ordered reinstatement with an oral reprimand for Officer      judgment, all inferences drawn from the facts must be
Taylor and reinstatement with a 30-day suspension for             reviewed in the light most favorable to the nonmoving party.
Sergeant Taylor. As a consequence, the Taylors appealed to        See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
the Tennessee Court of Appeals. The court of appeals              U.S. 574, 587 (1996).
reversed the chancery court judgment with respect to Sergeant
Taylor, reinstating him with full back pay and no suspension.                          III. DISCUSSION
The court upheld the Chancellor’s decision with respect to
Officer Taylor.                                                     A public employee has a constitutional right to comment on
                                                                  matters of public concern without fear of reprisal from the
   The Taylors filed the instant lawsuit against the defendants   government as employer. Connick v. Myers, 461 U.S. 138,
in their individual and official capacities. The complaint        140, 145-46 (1983); Pickering v. Bd. of Educ., 391 U.S. 563,
alleged that the defendants retaliated against them for the       574 (1968). Thus, even though the government has greater
exercise of their First Amendment Rights. Specifically, the       authority to regulate the speech of its employees than it has in
Taylors claimed they were wrongfully terminated for refusing      regulating the speech of the public at large, public employers
to remain silent and, upon reinstatement, were subjected to       cannot silence their employees simply because they
further retaliation (loss of clothing and equipment, increased    disapprove of their speech. See Rankin v. McPherson, 483
scheduling on holidays and weekends, and denial of training       U.S. 378, 384 (1987). “[R]etaliation by a government
and career advancement opportunities), which continues to         employer against an individual who exercises his First
this day.                                                         Amendment rights constitutes a First Amendment violation.”
                                                                  Perry v. McGinnis, 209 F.3d 597, 604 (6th Cir. 2000).
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  This circuit has a established a three-step process for          U.S. at 146; see also Charvat v. Eastern Ohio Reg’l
evaluating a public employee’s claim of unlawful retaliation.      Wastewater Auth., 246 F.3d 607, 617 (6th Cir. 2001);
First, the employee must establish that his speech is protected.   Chappel v. Montgomery County Fire Protection Dist. No. 1,
To accomplish this, the employee must show that his speech         131 F.3d 564, 579 (6th Cir. 1997) (“Constitutional protection
touches on a matter of public concern, Connick, 461 U.S. at        for speech on matters of public concern is not premised on the
147, and demonstrate that his interest in the speech outweighs     communication of that speech to the public.”). Speech
the government’s countervailing interest in promoting the          touches upon a matter of public concern if it can be “fairly
efficiency of the public service it provides as an employer.       considered as relating to any matter of political, social or
Pickering, 391 U.S. at 574. This determination is a question       other concern to the community.” Connick, 461 U.S. at 146.
of law for the court to decide. Connick, 461 U.S. at 148 n.10.     Absent unusual circumstances, however, “when a public
Second, the employee must show that the employer’s adverse         employee speaks not as a citizen upon matters of public
action would chill an ordinary person in the exercise of his       concern, but instead as an employee upon matters only of a
First Amendment rights. Cockrel v. Shelby County Sch. Dist.,       personal interest,” his speech is not afforded constitutional
270 F.3d 1036, 1048 (6th. Cir. 2001). Finally, the employee        protection. Id. at 147.
must present sufficient evidence to create a genuine issue as
to whether his speech was a substantial or motivating factor          “Whether an employee’s speech addresses a matter of
in the employer’s decision to discipline or dismiss. Mt.           public concern must be determined by the content, form, and
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,       context of a given statement, as revealed by the record as a
287 (1977).                                                        whole.” Id. at 147-48. The essence of the Taylors’ argument
                                                                   is that the content of their speech--alleged police brutality--
A. Matter of Public Concern                                        addresses a matter of inherent public concern. Moreover,
                                                                   they assert that their speech should be afforded constitutional
  The district court held that Officer Taylor’s speech did not     protection because its purpose was to “bring to light actual or
touch on a matter of public concern because his speech             potential wrongdoing or breach of public trust.” See Brown v.
merely consisted of a report made in the course of his             City of Trenton, 867 F.2d 318, 322 (6th Cir. 1988); Marohnic
employment. In so ruling, the court noted that the report          v. Walker, 800 F.2d 613, 616 (6th Cir. 1986) (holding that
contained no accusation of excessive force and was not             statements regarding the operation of public organizations in
disclosed to the public. Similarly, the court concluded that       accordance with law are matters of public concern).
Sergeant Taylor’s comment to Lieutenant Catlett was not
protected because it addressed an internal personnel matter           Relying on Thomson v. Scheid, 977 F.2d 1017 (6th Cir.
and did not express an opinion that Szczepanowski violated         1992), the defendants contend that, even if the Taylors’
Longmire’s rights. For reasons explained below, we reverse         speech indirectly implicates a matter of public concern, none
the decision of the district court.                                of their statements is protected because they were made in the
                                                                   course of their employment, not in their role as a private
  Although it was not necessary for the Taylors to have            citizen. In Thomson, the plaintiff, a fraud investigator, argued
spoken to the press or to the general public in order for their    that his conversation with a supervisor and his decision to
speech to be protected, Givhan v. Western Line Consol. Sch.        send a report detailing potential fraud involving a local
Dist., 439 U.S. 410, 412 (1979), some aspect of their speech       county official to the Inspector General were protected. Id. at
must touch upon a matter of public concern. Connick, 461           1020-21. In reviewing the plaintiff’s claim, this court
No. 01-6460                 Taylor, et al. v. Keith, et al.   9   10       Taylor, et al. v. Keith, et al.                  No. 01-6460

determined that the plaintiff’s conversation with his             of a classroom lesson, cannot touch upon a matter of public
supervisor about the investigation, her reminder to him that      concern because “a teacher, in choosing what he or she will
his investigation was confidential, and her warning not to        teach his students, is not speaking as a citizen, but rather as an
pursue the matter without following department procedures,        employee on matters of private interest.” Id. at 1051. Instead,
concerned his duties as an employee and addressed only            we held that a public teacher’s speech, made in the role of
matters of internal department policy. Therefore, his speech      employee, is protected so long as the speech itself addresses
could not be considered a matter of public concern. Id. We        a matter of public concern. Id. at 1052 (“[A]lthough
also concluded that the plaintiff’s decision to turn over his     [Cockrel] was speaking in her role as an employee when
report to the Office of the Inspector General was not protected   presenting information on the environmental benefits of
because the plaintiff’s contact was approved by his               industrial hemp, the content of her speech. . . most certainly
supervisors, which made his contact an action in the course of    involved matters related to the political and social concern of
his employment. Id. In making these determinations, this          the community, as opposed to mere matters of private
court stated that “First Amendment protection extends to a        interest.”). In doing so, we concluded that the Supreme Court
public employee’s speech when he speaks as a citizen, on a        made clear in Connick that “the key question is not whether
matter of public concern, but does not extend to speech made      a person is speaking in his role as an employee or citizen, but
in the course of acting as a public employee.” Id.                whether the employee’s speech in fact touches on a matter of
                                                                  public concern.”1 Id. at 1052.
  The defendants seize upon this language and argue that
when a public employee speaks in his role as a public                In this regard, the defendants argue that the Taylors’ speech
employee, his speech cannot touch on a matter of public           cannot be characterized as an attempt to “bring to light”
concern. This argument, in our opinion, relies on an overly       police brutality since neither officer unequivocally stated that
broad reading of Thomson. Immediately after stating the           Szczepanowski used excessive force. In their view, Officer
language relied upon by the defendants, the Thomson court         Taylor’s speech amounts to nothing more than recording the
explained that “[n]ot all matters discussed within a              arrest incident and advising Longmire’s wife of her husband’s
government office are of public concern, and thus internal        rights pursuant to police procedure. Further, they assert that
office communication does not necessarily give rise to a          Sergeant Taylor’s comments fall short of alleging potential
constitutional claim.” Id. at 1020-21 (emphasis added).           wrongdoing, since he merely suggested that “if
Thomson therefore did not purport to strip public employees
of the First Amendment’s protection for all speech that occurs
                                                                       1
in the course of employment. Rather, Thomson simply                     The decision in Connick does not preclude First Amendm ent
implies that the context of the speech (i.e., whether an          protection when an emp loyee sp eaks in the cou rse of his emplo yment if
employee speaks in the course of his employment) is relevant      the employee’s speech involve s a matter of pu blic co ncern. Connick went
to, but not determinative of, whether the speech touches on a     only so far as to hold tha t:
                                                                       [W]hen a public employee speaks not as a citizen upon matters
matter of public concern.                                              of public concern, but instead as an employee upon matters of
                                                                       only personal interest, absent the mo st unusua l circum stances, a
  Our recent decision in Cockrel, 270 F.3d 1036, which                 federal court is not the appropriate forum in which to review the
implicitly rejects a broad interpretation of Thomson, confirms         wisdom of a personnel decision taken by a public agency
this view. In Cockrel, we declined to follow other circuits            allegedly in reaction to the employee’s behavior.
that have held that a teacher’s statements, made in the course    Connick, 461 U.S. at 147 (emp hasis added).
No. 01-6460                 Taylor, et al. v. Keith, et al.   11   12   Taylor, et al. v. Keith, et al.              No. 01-6460

Szczepanowski did have a problem, it might be a good idea          Accordingly, the Taylors’ speech touches on a matter of
to move him out of a high crime area.”                             public concern.
   When examining the content of speech, “the proper inquiry       B. Causation
[is] not what might incidentally be conveyed by the fact that
the employee spoke in a certain way, [but] the point of the           Next, the defendants contend that the Taylors cannot
speech in question.” Dambrot, 55 F.3d at 1187 (emphasis in         establish that the decision to terminate them was motivated,
original). The point of the speech, however, is not to be          in part, by the exercise of their First Amendment rights. They
confused with the speaker’s motivation for speaking.               assert that the Taylors have failed to rebut the defendants’
Chappel, 131 F.3d at 575. The inquiry is primarily concerned       declarations stating that the Taylors were disciplined for
with what the speaker intended to communicate through his          reasons wholly unrelated to the free exercise of speech. The
statement, and not his reasons for speaking. Id. at 575 (“The      defendants further maintain that the Taylors cannot explain
motive which underlies an employee’s statements is a               how firing them would have resulted in silencing them about
relevant, but not necessarily dispositive factor when              the Longmire incident.
considering whether an employee’s statements may be fairly
characterized as relating to any matter of political, social, or     This circuit has held that “the nonmoving party cannot rely
other concern to the community.”).                                 on the mere fact that an adverse employment action followed
                                                                   speech that the employer would have liked to prevent.”
   The Taylors’ speech was intended to communicate the             Cockrel, 270 F.3d at 1055. Rather, to survive a motion for
potential wrongdoing of a fellow officer. Officer Taylor’s         summary judgment, the employee must present sufficient
report clearly implicated Szczepanowski in the use of              evidence linking his speech to the employer’s adverse
excessive force. And, although his report contained facts          decision so that a reasonable factfinder could conclude, by a
rather than accusations, the purpose of his report was to bring    preponderance of the evidence, that the speech, at least in
to light conduct that warranted further investigation to ensure    part, motivated the decision to discharge. Id.
that the arrests were being carried out according to law.
Similarly, Sergeant Taylor’s suggestion to Catlett to use his        The Taylors have presented adequate evidence suggesting
influence to get Szczepanowski moved if there was a problem        that the defendants’ actions were partially motivated by their
clearly implies that Taylor strongly believed that                 desire to silence them about the Longmire incident. First,
Szczepanowski had a problem with excessive force,                  aside from the temporal proximity between the Taylors’
particularly since the comment was made soon after Sergeant        speech and their termination, the Taylors were terminated for
Taylor learned that Szczepanowki had broken the leg of             acts that the department characterized as attempts to cover for
another arrestee. The fact that Sergeant Taylor couched his        Szczepanowski when in fact the Taylors were the impetus for
recommendation in terms of “if” does not lessen the                the investigation.
allegation of wrongdoing since Sergeant Taylor would not
have asked Catlett to use his “influence” if he did not intend        Second, several other police officers who participated in the
to communicate that he believed there was a serious problem.       Longmire arrest also failed to follow department procedures,
There is little doubt that, in this context, the Taylors’          yet they were not disciplined or even reprimanded. Officer
supervisors perceived their comments as communicating a            Taylor completed the required Use of Force Report and was
concern about a fellow officer’s potential for excessive force.    later terminated when Longmire’s resisting-arrest warrant
No. 01-6460                 Taylor, et al. v. Keith, et al.   13   14   Taylor, et al. v. Keith, et al.        No. 01-6460

contained facts that were inconsistent with this report.                               IV. CONCLUSION
Officer Wells, who like Taylor observed the Longmire’s
injuries, failed to file a report and was not reprimanded.           For the reasons stated herein, we REVERSE the decision
Sergeant White, Szczepanowski’s immediate supervisor, who          of the district court and REMAND for further proceedings.
was present on the scene with Sergeant Taylor, failed to file
a supervisor report or investigate Szczepanowski’s actions.
He received a demotion and a thirty-day suspension, but those
sanctions were later rescinded. The department proceeded
with charges against Sergeant Taylor for his failure to take
appropriate action regarding allegations of officer abuse
(remove Szczepanowski from his duties) and his failure to
have the evidence (blood) properly processed, despite the fact
that he was the only superior officer who pressed for further
investigation into Szczepanowski’s alleged abuse.
  After reviewing the evidence, a reasonable juror could
conclude that the disparate treatment of the officers involved
in the Longmire incident shows that the department targeted
the Taylors because of their speech. As such, the temporal
proximity between the Taylors’ speech, and the manner in
which the department disciplined the officers involved,
constitute sufficient evidence for the Taylors to create a
genuine issue that their speech was a substantial or motivating
factor in their termination.
C. Qualified Immunity
   Lastly, the defendants claim that, even if the Taylors
establish a violation of their constitutional rights, they are
entitled to qualified immunity. The district court did not
reach this issue and we decline to consider this claim in the
first instance. See Bauer v. Montgomery, 215 F.3d 656, 662
(6th Cir. 2000) (holding, under nearly identical
circumstances, that this court should not consider a qualified
immunity defense where the district court did not reach the
issue). Therefore, we remand this issue to the district court
for further consideration.
