           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                     2    Rodgers v. Banks                           No. 01-4034
        ELECTRONIC CITATION: 2003 FED App. 0329P (6th Cir.)
                    File Name: 03a0329p.06                                                _________________
                                                                                               COUNSEL
UNITED STATES COURT OF APPEALS
                                                                       ARGUED: William B. Singer, Cincinnati, Ohio, for
                  FOR THE SIXTH CIRCUIT                                Appellant. Anne E. Thomson, OFFICE OF THE
                    _________________                                  ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
                                                                       ON BRIEF: William B. Singer, Cincinnati, Ohio, for
 CAROLYN T. RODGERS ,        X                                         Appellant. Anne E. Thomson, OFFICE OF THE
         Plaintiff-Appellant, -                                        ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
                              -
                              -             No. 01-4034                                   _________________
          v.                  -
                               >                                                              OPINION
                              ,                                                           _________________
 ELIZABETH BANKS ,            -
         Defendant-Appellee. -                                           CLAY, Circuit Judge. Plaintiff Carolyn T. Rodgers
                             N                                         brought this action pursuant to 42 U.S.C. § 1983, alleging,
                                                                       inter alia, that Defendant wrongfully terminated Plaintiff
                                                                       from her employment in violation of Plaintiff’s First
                                                                       Amendment right to free speech. Plaintiff appeals from the
          Appeal from the United States District Court                 district court’s granting of Defendant Elizabeth Banks’
         for the Southern District of Ohio at Cincinnati.              motion for summary judgment and dismissal of Plaintiff’s
         No. 99-00780—Susan J. Dlott, District Judge.                  case. We hold that although the Eleventh Amendment bars
                                                                       Plaintiff from seeking money damages from Defendant,
                    Argued: March 12, 2003                             Plaintiff produced sufficient evidence of a First Amendment
                                                                       retaliation claim to survive summary judgment, and that the
            Decided and Filed: September 17, 2003                      district court’s dismissal of this claim was inappropriate. We
                                                                       therefore REVERSE the judgment of the district court.
 Before: MOORE and CLAY, Circuit Judges; LAWSON,
                 District Judge.*                                                                    I.
                                                                         Plaintiff was employed by the Pauline Warfield Lewis
                                                                       Center (“Lewis Center”), an Ohio state mental hospital in
                                                                       Cincinnati. She began her employment at the Lewis Center
                                                                       as a social worker and was eventually promoted to Director of
                                                                       Quality Management, a position designated in the unclassified
                                                                       civil service of Ohio. According to Plaintiff, the “principal
    *
     The Honorable David M. Lawson, United States District Judge for   task” of this position was to “prepare the Center for surveys
the Eastern D istrict of M ichigan, sitting by de signation.

                                 1
No. 01-4034                           Rodgers v. Banks       3    4      Rodgers v. Banks                            No. 01-4034

by the Joint Commission on Accreditation of Hospitals                 SUBJECT: Survey Preparedness
[JCAH] and other surveying organizations.” (J.A. at 7.)                        Patient Rights and Ethics
Defendant was the CEO of the Lewis Center. Plaintiff
reported to Alice Gray, Director of Support Services, and             In the Supplemental Recommendations last survey, we
Gray reported to Defendant.                                           had a recommendation regarding privacy for patients.
                                                                      This area will be scrutinized in the coming survey with
  On January 21, 1999, Defendant revoked Plaintiff’s                  a risk of a Type I.
unclassified appointment. In a memo informing Plaintiff of
the revocation, Defendant stated, “I no longer have                   Patient visiting in privacy is hindered by lack of space--
confidence in your ability to function as the hospitals [sic]         especially on Units 1 through 6. There are the dining
Quality Management Director, your verbal and written                  room and two days [sic] rooms. The day rooms are also
communication skills are not conducive to a cooperative work          used for group process--we have worked very hard the
environment.” (J.A. at 53.)                                           last three years to have more groups on the units.

  Specifically, the dispute concerns various statements               In doing a walk-around during the Mock Survey, I was
Plaintiff made during her tenure at the Lewis Center.                 amazed to see that a patient/program/visiting area had
Defendant maintains that Plaintiff’s manner and method of             been turned into an MD’s office on Unit 4.
communication had offended and inflamed her coworkers and
subordinates at the Lewis Center. In particular, Defendant            - The forensic units need more space for patients who
highlighted an incident which began when one of the Lewis               have low level privileges and cannot leave the unit.
Center’s psychiatrists requested that his office be moved to
one of the patient units. Defendant granted the psychiatrist’s        - The nature of Forensic patients on a confined unit
request, ostensibly to encourage doctors to maintain closer             would indicate a need for as much “personal space” as
physical proximity to their patients. Plaintiff, who apparently         possible.
was concerned that the psychiatrist’s move had compromised
patient privacy in the unit, sent a memorandum to Defendant,          - This sets a precedent for the other psychiatrists to have
dated August 7, 1998, in which she discussed the allocation             “special” needs that rationalize taking large patient and
of space in the Lewis Center’s psychiatric units as it related          visiting areas for office space.
to an upcoming JCAH survey.               We reproduce the                          Dr. Natarajan - Unit 1
memorandum below in its entirety:                                                   Dr. Mannava - Unit 2
  DATE:         August 7, 1998                                                      Dr. Holtman - Unit 5
                                                                                    The 1199 psychiatrist on Unit 5
  TO:           L. Banks, CEO                                                       Dr. Rodgers Wilson on Unit 6

  FROM:         C. Rodgers, LISW                                      In the new architectural plan there may be a space for the
                Director, Quality Management                          unit psychiatrist, and no one is denying that this would
                                                                      be optimal. However, the patient’s needs, including
                                                                      space for visits with families and privacy for visiting
                                                                      should be the most important factor.
No. 01-4034                                   Rodgers v. Banks           5    6    Rodgers v. Banks                           No. 01-4034

  R/pp/daw                                                                       Discovery ensued, during which the depositions of Plaintiff
                                                                              and Defendant were taken. During Defendant’s deposition,
  cc: Alice Gray                                                              she was asked what factors contributed to Plaintiff’s
      Paul Blackwell                                                          termination, Defendant pointed to, among other incidents,
      M. Russ                                                                 Plaintiff’s August 7, 1998 memo regarding the upcoming
                                                                              JCAH survey and patient privacy. Defendant characterized
(J.A. at 139.)                                                                the memo as offensive, overly critical, and inaccurate.
  According to Defendant, other communications Defendant                        After discovery, Defendant filed a motion for summary
considered inappropriate included (1) arguing with the                        judgment on both of Plaintiff’s claims. Plaintiff filed a
housekeeping director about the cleanliness of the restrooms                  memorandum in opposition, at which time she withdrew the
in front of other Lewis Center employees, (2) arguing with                    Title VII “reverse” racial discrimination claim but opposed
another employee and then detailing the incident in an e-mail                 summary judgment on her §1983 First Amendment claim. In
to the Lewis Center’s director of operations, and (3)                         support of her First Amendment claim, Plaintiff further
presenting a quality management report at an administrative                   asserted that her termination was motivated by the August 7,
meeting in a “very angry and hostile manner” and accusing                     1998 memorandum she sent to Defendant.
management of not caring about quality standards. Plaintiff
acknowledges that these various “instances of                                   On August 23, 2001, the district court granted summary
communication” occurred (J.A. at 10-11), but she contests the                 judgment to Defendant, reasoning that Plaintiff’s August 7,
manner and disruptive nature of her statements as                             1998 memo to Defendant did not touch upon a matter of
characterized by Defendant.                                                   public concern and, therefore, Plaintiff’s First Amendment
                                                                              claim necessarily failed. Plaintiff’s timely appeal followed.
  Following her termination, Plaintiff filed a complaint with
the district court, alleging “reverse” racial discrimination in                                            II.
violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-2(a)(1). In this complaint she requested                         Defendant first argues that, pursuant to the Eleventh
injunctive relief ordering reinstatement of Plaintiff to her job,             Amendment, she is immune from Plaintiff’s § 1983 action to
as well as compensatory and punitive damages.1 Plaintiff                      the extent that the lawsuit seeks money damages. This
subsequently filed an amended complaint, alleging that                        argument presents a legal question, which we review de novo.
Defendant wrongfully terminated her for exercising her First                  Timmer v. Mich. Dep’t of Commerce, 104 F.3d 833, 836 (6th
Amendment right to free speech, and requesting “damages                       Cir. 1997) (citing Williams v. Kentucky, 24 F.3d 1526, 1543
and other relief” provided under 42 U.S.C. § 1983. (J.A. at                   (6th Cir. 1994)). We agree with Defendant that, on this
10-12.)                                                                       record, the Eleventh Amendment precludes Plaintiff from
                                                                              seeking money damages from Defendant.
                                                                                In general, “[s]tate governments and entities that can be
    1                                                                         considered arms of the state are immune from suits for money
      Although both P laintiff and D efendant are w hite females, Plaintiff
alleged in her original complaint that most of the employees at the Lewis     damages under the Eleventh Amendment.” Alkire v. Irving,
Center were b lack and that she, as a “m inority” in this employment          330 F.3d 802, 814 (6th Cir. 2003) (citing Brotherton v.
setting, experienced emp loyment discrim ination.
No. 01-4034                             Rodgers v. Banks        7    8     Rodgers v. Banks                             No. 01-4034

Cleveland, 173 F.3d 552, 560 (6th Cir. 1999)). Specifically,         her “official capacity as the representative of the State of Ohio
the Eleventh Amendment bars § 1983 suits seeking money               department of Mental Health.” (J.A. at 6 ¶ 2.)
damages against states and against state employees sued in
their official capacities. Will v. Mich. Dep’t of State Police,         We do note that the original complaint only alleged a Title
491 U.S. 58, 66 (1989). Therefore, § 1983 plaintiffs should          VII violation, and the complaint was subsequently amended
“set forth clearly in their pleading that they are suing the state   to add the § 1983 First Amendment claim. Although the
defendants in their individual capacity for damages, not             amended complaint presented an opportunity for Plaintiff to
simply their capacity as state officials.” Shepherd v.               clarify the issue, it failed to provide sufficient notice that
Wellman, 313 F.3d 963, 967 (6th Cir. 2002) (quoting Wells v.         Defendant was being sued in her individual capacity, as
Brown, 891 F.2d 591, 593 (6th Cir. 1989) (internal quotation         required by Moore. The amended complaint’s caption still
marks omitted)).                                                     lists Defendant’s name and official title, and the amended
                                                                     complaint incorporates by reference paragraphs 2-7 of the
  However, a plaintiff’s failure to explicitly state “individual     original complaint, including the statement that Defendant
capacity” in the complaint is not necessarily fatal to the           was being sued in her official capacity. The amended
lawsuit. Rather, in this situation we employ a “course of            complaint is otherwise silent as to whether Defendant is being
proceedings” test to ascertain whether a § 1983 defendant was        sued in her official or individual capacity. Moreover,
on notice that the plaintiff intended to hold him or her             Defendant has not moved for summary judgment on the issue
personally liable, notwithstanding the plaintiff’s failure to        of qualified immunity, yet another indication that Defendant
provide explicit notice. Id. at 967-68 (citing Moore v. City of      was not adequately notified that she was being sued in her
Harriman, 272 F.3d 769, 772 (6th Cir. 2001) (en banc)).              individual capacity. See Moore, 272 F.3d at 772 n.1.
Pursuant to this inquiry, “we consider the nature of the
plaintiff’s claims, requests for compensatory or punitive              Having applied the course of proceedings test, we hold that
damages, and the nature of any defenses raised in response to        insufficient indicia exists in the original complaint and
the complaint, particularly claims for qualified immunity, to        amended complaint suggesting that Defendant was on notice
determine whether the defendant had actual knowledge of the          that she was being sued in her individual capacity. Therefore,
potential for individual liability.” Id. at 968 (citing Moore,       the Eleventh Amendment bars Plaintiff’s suit to the extent
272 F.3d at 772 n.1). Additionally, we “consider whether             that she seeks money damages. Plaintiff’s claim is hereafter
subsequent pleadings put the defendant on notice of the              limited to seeking other relief arising under 42 U.S.C. § 1983.
capacity in which he or she is being sued.” Id. (citing Moore,       We will now proceed to the merits of Plaintiff’s First
272 F.3d at 772 n.1).                                                Amendment claim.

   Like the plaintiff in Moore, Plaintiff did request                                              III.
compensatory and punitive damages in the original complaint,
which we have held provides some notice of her intent to hold          We review a district court’s order granting summary
Defendant personally liable. See Moore, 272 F.3d at 772 n.1.         judgment de novo. Johnson v. Univ. of Cincinnati, 215 F.3d
However, unlike the plaintiff in Moore, the caption on               561, 572 (6th Cir. 2000). Summary judgment is appropriate
Plaintiff’s complaint listed Defendant’s name and her official       where there is no genuine issue as to any material fact and the
title, and specifically stated that Defendant was being sued in      moving party is entitled to judgment as a matter of law. See
                                                                     Fed. R. Civ. P. 56(c).
No. 01-4034                              Rodgers v. Banks        9    10    Rodgers v. Banks                             No. 01-4034

  The party bringing the summary judgment motion has the              officials acting under color of law. Lomaz v. Hennosy, 151
initial burden of informing the district court of the basis for its   F.3d 493, 500 (6th Cir. 1998). To assert a valid § 1983 cause
motion and identifying portions of the record that demonstrate        of action, a plaintiff must demonstrate that “1) [the plaintiff]
the absence of a genuine dispute over material facts. Mt.             was deprived of a right secured by the Constitution or laws of
Lebanon Pers. Care Home, Inc. v. Hoover Universal, Inc.,              the United States and that 2) the deprivation was caused by
276 F.3d 845, 848 (6th Cir. 2002). The moving party may               someone acting under color of state law.” Perry v. McGinnis,
satisfy this burden by presenting affirmative evidence that           209 F.3d 597, 603 (6th Cir. 2000) (citing West v. Atkins, 487
negates an element of the non-moving party’s claim or by              U.S. 42, 48 (1988)). The parties dispute only the first issue,
demonstrating “an absence of evidence to support the                  i.e., whether Plaintiff suffered a deprivation of a right secured
nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S.           by the Constitution or federal law. Plaintiff bases her § 1983
317, 325 (1986). If the moving party satisfies this initial           claim on Defendant’s decision to terminate Plaintiff, allegedly
burden, the non-moving party must then “set forth the specific        in retaliation for Plaintiff’s exercise of her First Amendment
facts showing that there is a genuine issue for trial.” Fed. R.       right to speech.
Civ. P. 56(e). That is, the non-moving party must “make a
showing sufficient to establish the existence of an element              While public employees may not be required to sacrifice
essential to that party’s case, and on which that party will bear     their First Amendment free speech rights in order to obtain or
the burden of proof at trial.” Celotex, 477 U.S. at 322.              continue their employment, Rankin v. McPherson, 483 U.S.
                                                                      378, 383 (1987) (citing Perry v. Sindermann, 408 U.S. 593,
  In evaluating the evidence, we “draw all reasonable                 597 (1972)), a state is afforded greater leeway to control
inferences therefrom in a light most favorable to the                 speech that threatens to undermine the state’s ability to
non-moving party.” PDV Midwest Ref., L.L.C. v. Armada Oil             perform its legitimate functions. See United States v. Nat’l
& Gas Co., 305 F.3d 498, 505 (6th Cir. 2002) (citing                  Treasury Employees Union, 513 U.S. 454, 475 n.21 (1995).
Williams v. Int’l Paper Co., 227 F.3d 706, 710 (6th Cir.              Therefore, in determining whether a public employer has
2000)). However, “[t]he mere existence of a scintilla of              violated the First Amendment by firing a public employee for
evidence in support of the plaintiff’s position will be               engaging in speech, the Supreme Court has instructed courts
insufficient” to survive summary judgment; rather, “there             to engage in a three-step inquiry. First, a court must ascertain
must be evidence on which the jury could reasonably find for          whether the relevant speech addressed a matter of public
the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,        concern. See Connick v. Myers, 461 U.S. 138, 143 (1983). If
252 (1986).                                                           the answer is yes, then the court must balance the interests of
                                                                      the public employee, “as a citizen, in commenting upon
  Plaintiff argues on appeal that the district court erred in         matters of public concern and the interest of the State, as an
granting Defendant’s motion for summary judgment because              employer, in promoting the efficiency of the public services
the evidence in the record, if believed, establishes that             it performs through its employees.” Pickering v. Bd. of
Defendant violated Plaintiff’s First Amendment rights. We             Educ., 391 U.S. 563, 568 (1968). Finally, the court must
agree with Plaintiff and therefore reverse the district court’s       determine whether the employee’s speech was a substantial or
dismissal of this claim.                                              motivating factor in the employer’s decision to take the
                                                                      adverse employment action against the employee. Mt.
  Section 1983 provides a federal cause of action for the             Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,
violations of federal statutory or constitutional rights by state     287 (1977); Perry, 209 F.3d at 604.
No. 01-4034                           Rodgers v. Banks      11    12       Rodgers v. Banks                                  No. 01-4034

A. Prong One: A Matter of Public Concern                          ‘quintessential employee beef’ of incompetent management”)
                                                                  (quoting Barnes v. McDowell, 848 F.2d 725, 735 (6th Cir.
  The threshold inquiry is whether Plaintiff’s speech             1988) (internal citation in Barnes omitted)).
addressed a matter of public concern. Rankin, 483 U.S. at
384; Dambrot v. Cent. Mich. Univ., 55 F.3d 1177, 1186 (6th           Additionally, in distinguishing between matters of public
Cir. 1995). We review the district court’s determination on       and private concern, we focus not on “what might incidentally
this issue de novo. Dambrot, 55 F.3d at 1186 (citations           be conveyed by the fact that the employee spoke in a certain
omitted). Our inquiry in this regard requires us to consider      way, [but] the point of the speech in question.” Dambrot, 55
“the content, form, and context of a given statement, as          F.3d at 1187 (quoting Linhart v. Glatfelter, 771 F.2d 1004,
revealed by the whole record.” Connick, 461 U.S. at 147-48.       1010 (7th Cir. 1985)) (alteration in original and internal
                                                                  quotation marks omitted). Thus, “[c]ontroversial parts of
   Matters of public concern include speech that “relat[es] to    speech advancing only private interests do not necessarily
any matter of political, social, or other concern to the          invoke First Amendment protection.” Id. However, the
community.” Connick, 461 U.S. at 146. In other words, we          employee’s entire speech does not have to focus on matters
must determine whether the relevant speech “involves ‘issues      of public concern, as long as some portion of the speech does
about which information is needed or appropriate to enable        so. Rahn v. Drake Ctr., Inc., 31 F.3d 407, 412 (6th Cir. 1994)
the members of society to make informed decisions about the       (citing Connick, 461 U.S. at 146-49).
operation of their government.’” Brandenburg v. Hous. Auth.
of Irvine, 253 F.3d 891, 898 (6th Cir. 2001) (quoting               In granting summary judgment to Defendant on Plaintiff’s
McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir.           First Amendment claim, the district court determined that
1983)). Thus, speech falling into this category includes          Plaintiff’s August 7, 1998 memo did not relate to an issue of
informing the public that a governmental entity failed to         public interest or concern.2 The district court’s entire analysis
“discharg[e] its governmental responsibilities” or “bring[ing]    of this inquiry was as follows:
to light actual or potential wrongdoing or breach of public
trust [on the part of a governmental entity or any officials          The Court does not find this letter to be of public
therein].” Connick, 461 U.S. at 148.                                concern. “First Amendment protection extends to a
                                                                    public employee’s speech when he speaks as a citizen on
   Along these lines, the Supreme Court has emphasized that         a matter of public concern, but does not extend to speech
the employee must be speaking as a citizen, not as an               made in the course of acting as a public employee.”
employee for personal interest purposes. Connick, 461 U.S.          Thomson v. Scheid, 977 F.2d 1017, 1021 (6th Cir. 1992).
at 146-47. Thus, “internal personnel disputes or complaints         The Court finds this letter to address internal [Lewis
about an employer’s performance” do not touch upon a matter         Center] issues that were of concern to Rodgers as
of public concern and therefore fall outside the scope of First     Director of Qualify Management, not as a citizen. As the
Amendment-protected speech. Brandenburg, 253 F.3d at
898; see also Jackson v. Leighton, 168 F.3d 903, 910-11 (6th
Cir. 1999) (holding that the state hospital employee’s
statement advocating “that a letter be sent to the Board of            2
Trustees declaring the lack of confidence with [the                     Because the district court fo und that Plaintiff failed to m eet this
administrator] was nothing more than an example of the            thresho ld issue, it declined to reach the second and third prongs of the
                                                                  inquiry.
No. 01-4034                             Rodgers v. Banks       13    14    Rodgers v. Banks                             No. 01-4034

  letter does not address a matter of public concern, this           is necessarily precluded from enjoying First Amendment
  Court’s inquiry is at an end.                                      protection. Rather, Connick held that a court’s inquiry should
                                                                     not focus on who made the statement, but rather on the point
(J.A. at 17.) We disagree with the district court’s reasoning,       of the speech itself.
because this narrow interpretation of what speech addresses
a public concern misinterprets the guidelines enunciated by             Nevertheless, the district court relied on one sentence found
the Supreme Court in Connick.                                        in our decision in Thomson v. Scheid, 977 F.2d 1017 (6th Cir.
                                                                     1992), to wit, “First Amendment protection extends to a
   In Connick, 461 U.S. at 140-41, a district attorney proposed      public employee’s speech when he speaks as a citizen on a
to transfer Sheila Myers, an assistant district attorney. Myers      matter of public concern, but does not extend to speech made
strongly opposed the transfer and expressed her opposition to        in the course of acting as a public employee.” Id. at 1020.
several supervisors. She then prepared and distributed a             Such reliance was in error.
questionnaire to other assistant district attorneys in the office,
soliciting their views on “office transfer policy, office morale,       First of all, a review of the facts in Thomson reveal that the
the need for a grievance committee, the level of confidence in       Thomson court did not draw the narrow boundaries the
supervisors, and whether employees felt pressured to work in         district court attributed to it. In Thomson, the plaintiff was
political campaigns.” Id. at 141. Perceiving the questionnaire       hired by the county to investigate suspected fraud by the
dissemination as insubordination, the district attorney fired        county commissioner. During the course of his investigation,
Myers. In holding that Myers’ First Amendment rights were            the plaintiff spoke with his supervisors about his desire to file
not violated, the Supreme Court emphasized that “when a              formal charges against the county commissioner, but the
public employee speaks not as a citizen upon matters of              supervisors warned the plaintiff not to proceed without
public concern, but instead as an employee upon matters only         following the established department policies and procedures.
of personal interest, absent the most unusual circumstances,         In the plaintiff’s subsequent lawsuit, he pointed to this
a federal court is not the appropriate forum in which to review      conversation with his supervisors and alleged that he was
the wisdom of a personnel decision taken by a public agency          retaliated against for the statements he made during that
allegedly in reaction to the employee’s behavior.” Id. at 147.       conversation. Thomson began by observing that “[n]ot all
The Court held that, aside from one question about pressure          matters discussed within a government office are of public
from the district attorney to work on political campaigns, the       concern, and thus internal office communication does not
contents of the questionnaire were “mere extensions of               necessarily give rise to a constitutional claim.” Id. at 1020-
Myers’ dispute over her transfer” and thus did not involve           21. Thomson then examined the speech at issue and
matters of public concern. Id. at 148. In so holding, the            concluded that the conversation concerned how the plaintiff
Court reasoned that the questionnaire did not attempt to             would proceed with his investigation, and that the plaintiff
“evaluat[e] the performance of the District Attorney as an           was not speaking out in that conversation about a topic of
elected official,” inform the public that the district attorney’s    public concern, for instance, whether or not an investigation
office was failing to discharge its governmental                     should proceed. In so doing, Thomson correctly applied the
responsibilities, or “bring to light actual or potential             principle that a conversation generally pertaining to an issue
wrongdoing or breach of public trust” occurring in that office.      of public concern (in Thomson, the investigation of allegedly
Id. At no point in Connick did the Supreme Court suggest             fraudulent activity) does not automatically convert all
that an employee’s speech made in the course of employment           statements made in that conversation into First-Amendment-
No. 01-4034                                    Rodgers v. Banks          15     16       Rodgers v. Banks                                  No. 01-4034

protected speech. Rather, the First Amendment inquiry                              Even more recently we have expressly eschewed applying
requires us to examine the point of the speech in question and                  a “course of employment” gloss on the Connick analysis. In
determine whether the point advances a public or private                        Cockrel v. Shelby County School District, 270 F.3d 1036 (6th
interest. Dambrot, 55 F.3d at 1187.                                             Cir. 2001), a Kentucky elementary school teacher was fired
                                                                                for inviting an actor to discuss the environmental benefits of
  Thus, the one sentence in Thomson on which the district                       industrial hemp, a substance that was illegal in the state, with
court relied –“First Amendment protection extends to a public                   her class. In determining that the speech pertained to a matter
employee’s speech when he speaks as a citizen on a matter of                    of public concern, we rejected holdings from the Fourth and
public concern, but does not extend to speech made in the                       Fifth Circuits that “a teacher, in choosing what he will teach
course of acting as a public employee,” id. at 1021–cannot                      his students, is not speaking as a citizen, but rather as an
properly be read in isolation, for it could mislead courts into                 employee on matters of private interest.” Id. at 1051 (citing
believing that an employee who speaks out about a matter of                     Boring v. Buncombe County Bd. of Educ., 136 F.3d 364, 368-
public concern, while in the course of his or her employment,                   69 (4th Cir. 1998) (en banc) and Kirkland v. Northwide
is never entitled to First Amendment protection. Such a                         Indep. Sch. Dist., 890 F.2d 794, 800 (5th Cir. 1989)). We
proposition is incorrect.3                                                      reasoned that such an approach “essentially gives a teacher no
                                                                                right to freedom of speech when teaching students in a
  Our subsequent First Amendment jurisprudence further                          classroom, for the very act of teaching is what the employee
confirms that we have never applied such a narrow                               is paid to do,” and that “[i]f the Fourth and Fifth Circuits’
interpretation of Connick. In Charvat v. Eastern Ohio                           interpretation of Connick were correct, then any time a public
Regional Wastewater Authority, 246 F.3d 607 (6th Cir. 2001),                    employee was speaking as an employee . . . the speech at
an employee brought suit, claiming he was fired for reporting                   issue would not be protected.” Id. at 1051-52. We therefore
violations of environmental regulations. We held that the                       concluded that the content of the teacher’s speech touched
employee’s speech related to a matter of public concern, even                   upon a matter of public concern, even though she was
though the employee made the relevant statements in his role                    speaking in her role as a school employee at the time. Id. at
as an employee and the speech was not communicated to the                       1052.4
public. Id. at 617.
                                                                                   Thus, in analyzing whether an employee’s speech touches
                                                                                upon a matter of public concern, we consistently have
    3
      W e previously have clarified that Thomson does not stand for the         observed the dichotomy Connick presented: speaking as a
proposition that the district court attributed to it. In Williams, 24 F.3d at   citizen (albeit in the employee role) versus speaking as an
1530, the plaintiff spoke out in a meeting of office managers against           employee for personal interest. As Connick emphasized, the
illegal political patronage emp loyment prac tices and later advocated the
dismissal of a state political appointee who she be lieved was improperly
using government resources to conduc t private business. The plaintiff               4
subsequently was demoted, and she brought a § 1983 action against the                 Mo reover, other circuits have rejected the broader interpretation of
defenda nts. Id. Relying on Thomson, the defendants argued that her             Connick emp loyed by the d istrict court below. See, e.g., Kennedy v.
speech was not protected because she was speaking as an emp loyee. Id.          Tangipahoa Parish Libra ry Bd . of Co ntrol, 224 F.3d 3 59 (5th Cir. 2000);
at 153 5. W e disag reed, reasoning that Thomson merely drew a distinction      Lew is v. Cowen, 165 F.3d 154 (2d Cir. 1999); Hulbert v. Wilhelm, 120
between “[d]iscussions about office policy and job duties,” which               F.3d 648 (7th C ir. 199 7); Azzaro v. County of Allegheny, 110 F.3d 968
generally “address m atters of only private concern,” and other speech          (3d Cir. 1997) (en banc); Int’l Soc’y for Krishna Consciousness, Inc. v.
which “addresses matters of great public concern.” Id.                          Lee, 925 F.2d 576 (2d Cir. 19 91), aff’d, 505 U.S. 672 (1992).
No. 01-4034                            Rodgers v. Banks      17    18   Rodgers v. Banks                             No. 01-4034

focus of the speech is on the point of the speech as opposed       The memo then listed three reasons as to why this conversion
to the role of the speaker in saying it. See 461 U.S. at 148-49.   was not a good decision. The first two reasons were
Having concluded that the district court inappropriately           particularly patient-oriented (the forensic units needed more
interpreted Thomson in adjudicating this case, we now will         space for patients who could not leave the unit and such
analyze Plaintiff’s August 7, 1998 memo to determine if the        patients needed as much “personal space” as possible), and
speech therein merits First Amendment protection.                  the last reason was less patient-oriented (such a practice set a
Specifically, we will consider (1) the point or focus of the       precedent for other psychiatrists to use scarce patient space).
speech in question and (2) whether the point “relat[es] to any     The memo concluded by emphasizing that “the patient’s
matter of political, social, or other concern to the               needs . . . should be the most important factor.” (J.A. at 139.)
community.” Id. at 146.                                            Although Plaintiff’s underlying motive in writing the memo
                                                                   might have been to complain about incompetent management,
  Citing Rahn, 31 F.3d at 412, as support, Defendant argues        our duty is not to discern her underlying motive, but rather to
that the point of Plaintiff’s August 7, 1998 memo was to           evaluate her point as it is presented in the speech. Chappel v.
discuss management incompetency in allocating hospital             Montgomery County Fire Prot. Dist. No. 1, 131 F.3d 564,
space and to complain about psychiatrists usurping patient         575-76 (6th Cir. 1997). Plaintiff’s point, as we view the
space; therefore, Defendant contends, the indirect references      memo’s contents, was to call Defendant’s attention to what
to patient privacy did not constitute a matter of public           Plaintiff perceived as a disregard of patient privacy at the
concern. Defendant’s reliance on Rahn is misplaced, and her        Lewis Center, not to complain about management or other
characterization of Plaintiff’s August 7, 1998 memo is             internal disputes.
erroneous. In Rahn, the plaintiff-nurse organized a committee
and disseminated a press release stating various employment-         Furthermore, the focus of Plaintiff’s memo pertained to a
related grievances about new work rules, and suggesting that       matter of political, social, or other concern. The parties do
the rules could adversely affect patient care. Id. at 410-11.      not dispute that the JCAH’s finding in its previous survey that
However, we found that the point of the plaintiff’s press          the Lewis Center had failed to provide adequate patient space
release was to air employment-related grievances, the fleeting     and/or privacy constituted a deficiency, or that a finding of a
reference to patient care in the press release notwithstanding.    continuing deficiency by JCAH could mean eventual
Id. at 412-13.                                                     decertification for the hospital. If the Lewis Center was in
                                                                   danger of being decertified, this would be an indication that
  In contrast to the focus of the press release in Rahn, the       the hospital (an arm of the state of Ohio) was operating with
focus of Plaintiff’s August 7, 1998 memo is on patient care.       substandard care for its patients. The quality of patient care
Plaintiff’s memo described its purpose as “Survey                  in state hospitals presents an issue of public concern. See
Preparedness” and “Patient Rights and Ethics.” The memo            Jackson, 168 F.3d at 910 (holding that an employee’s
explained that the Lewis Center would be subject to an             statements about a proposal to merge the state medical college
upcoming JCAH survey, and that the last survey conducted           with a public hospital constituted a public concern because
there had found a deficiency at the Lewis Center regarding         “the continued existence of [the medical college] was
patient privacy. Plaintiff’s memo then commented that              important to the locality due to the fact that [the medical
patient privacy was hindered by a lack of space and that           college] provide[d] health care to area residents” and further
Plaintiff was “amazed” to see that some of that scarce space       reasoning that the “‘quality, availability, and cost of health
had been converted into a psychiatrist office. (J.A. at 139.)      care are among the most important and debated issues of our
No. 01-4034                                     Rodgers v. Banks          19     20       Rodgers v. Banks                                 No. 01-4034

time’”) (quoting U.S. Healthcare, Inc. v. Blue Cross of                          expression,” as well as “the context in which the dispute
Greater Philadelphia, 898 F.2d 914, 937 (3d Cir.1990).5                          arose.” Rankin, 483 U.S. at 388 (citations omitted).
                                                                                 Defendant bears the burden of demonstrating that legitimate
  Therefore, drawing all reasonable inferences from the                          grounds existed justifying the termination. Id. (citing
evidence in a light most favorable to Plaintiff, Williams, 227                   Connick, 461 U.S. at 150).
F.3d at 710, we hold that Plaintiff has established the
threshold requirement that the contents of her August 7, 1998                      Defendant argues that Plaintiff’s memo was “disruptive,
memo addressed a matter of public concern.                                       inflammatory and interfered with working relationships at the
                                                                                 Lewis Center,” and therefore the Lewis Center’s interest in
B. Prong Two: A Balancing of the Parties’ Interests                              promoting its efficiency overrode Plaintiff’s First Amendment
                                                                                 interests. (Defendant’s Br. at 20.) Plaintiff counters that
  Because Plaintiff has successfully established that her                        Defendant has identified no evidence that Plaintiff’s memo
speech touched upon an issue of public interest or concern,                      negatively impacted (or might have negatively impeached)
we now must balance Plaintiff’s interest, as a citizen, in                       the smooth operation of the Lewis Center.
making her speech against Defendant’s interest, “as an
employer, in promoting the efficiency of the public services”                       We first note that Plaintiff’s memo, on its face, does not
performed at the Lewis Center. Rankin, 483 U.S. at 388                           appear to be particularly inflammatory. Although the memo
(quoting Pickering, 391 U.S. at 568).                                            is arguably critical of Defendant’s decision to use patient
                                                                                 space for doctor’s offices, no abusive language is apparent
  We previously have observed that in balancing an                               and we do not discern any exceptionally insulting aspect of its
employee’s and an employer’s respective interests, we                            presentation. Defendant notes that Dr. Stewart Harris, the
“should consider whether an employee’s comments                                  psychiatrist who was referred to in the August 7, 1998 memo
meaningfully interfere with the performance of her duties,                       by his union affiliation (i.e., as the “1199 psychiatrist”), filed
undermine a legitimate goal or mission of the employer,                          a grievance complaining of the memo’s designation of him in
create disharmony among co-workers, impair discipline by                         this regard. However, other evidence in the record reflects
superiors, or destroy the relationship of loyalty and trust                      that the Lewis Center fired Dr. Harris shortly thereafter for
required of confidential employees.” Williams, 24 F.3d at                        alleged sexual harassment, and there appears to be some sort
1536 (citations omitted). Relevant factors in this regard                        of history of acrimony between Dr. Harris and the hospital
include “the manner, time, and place of the employee’s                           which is unrelated to Plaintiff’s memo.6 Defendant’s general


    5                                                                                 6
      Although Defendant insisted in her depo sition testimony that the                Furthermore, it is unclear how Dr. Harris received a copy of the
issue of space was irrelevant to the issue of patient privacy, she also          memo, inasmuch as Plaintiff’s listed recipients were Defendant, Alice
indicated that she did not think Plaintiff was lying; rather, she thought that   Gra y, Paul B lackwell, and M . Russ. To the extent that Dr. Harris only
Plaintiff was simply wrong in her opinion. W e note that even if Plaintiff’s     received it because one or more of the recip ients sent him a cop y,
opinion ultimately proved to be incorrect, this does not deprive her             Defendant could not have relied upon any disturbance that could not
statements of First Am endment protection. See Chapp el, 131 F.3d at 576         reasonably be trac ed back to Plaintiff, who limited her audienc e. See
(“A public emplo yee is not required to prove the truth of his speech in         Cockrel v. Shelby C oun ty Sch . Dist., 270 F.3d 1 036, 105 4-55 (6th Cir.
order to secure the protections of the First Amendm ent.”) (citations            2001) (rejecting the school’s argument that the teacher’s speech had
omitted).                                                                        impacted the “efficient operation of the school and a harmonious
No. 01-4034                                 Rodgers v. Banks         21    22   Rodgers v. Banks                             No. 01-4034

assertions that the memo was disruptive are essentially                    C. Prong Three: A Substantial or Motivating Factor
conclusory.
                                                                              Finally, an employee must demonstrate that the speech at
   Although it is possible that the August 7, 1998 memo,                   issue represented a substantial or motivating factor in the
which was carbon-copied to other employees in the                          adverse employment action. Johnson, 215 F.3d at 584.
department, might have, to some extent, “undermine[d] a                    Specifically, the employee must “‘point to specific,
legitimate goal or mission of the employer” in maintaining                 nonconclusory allegations reasonably linking her speech to
efficient operation of the hospital or “create[d] disharmony               employer discipline.’” Farmer v. Cleveland Pub. Power, 295
among co-workers,” Williams, 24 F.3d at 1536, we have                      F.3d 593, 602 (quoting Bailey v. Floyd County Bd. of Educ.,
never held that the relatively minor associated risk of                    106 F.3d 135, 144 (6th Cir. 1997)). If the employee meets
disharmony as is present in this case would ordinarily                     that burden, the employer may “show[] by a preponderance of
overcome an interest in making sure a state hospital maintains             the evidence that it would have reached the same decision . . .
its certification (and thus presumably maintains a minimum                 even in the absence of the protected conduct.” Mt. Healthy,
standard of care for its patients). See id. at 1536-37 (rejecting          429 U.S. at 287. However, this latter burden “involves a
the argument that the state interest of avoiding disharmony                determination of fact” and ordinarily is “reserved for a jury or
between the plaintiff-employee and those she reported                      the court in its fact-finding role.” Perry, 209 F.3d at 604 n.4
outweighed the public interest in reporting politically corrupt            (citing Tao v. Freeh, 27 F.3d 635, 639 (D.C. Cir. 1994)).
practices in the governmental office); Marohnic v. Walker,
800 F.2d 613, 616 (6th Cir.1986) (“[W]hen an employee                         The parties do not dispute that Plaintiff’s August 7, 1998
exposes unscrupulous behavior in the workplace, his interests              memo at least played a role in Defendant’s decision to
are co-extensive with those of his employer; both want the                 terminate Plaintiff. Indeed, Defendant identified that very
organization to function in a proper manner.”) Furthermore,                memo during her deposition as a motivating factor.
Defendant presents no evidence that Plaintiff’s August 7,                  Therefore, Plaintiff has established a causal link between her
1998 memo disrupted the Lewis Center’s efficient                           First Amendment protected activity and her subsequent
functioning, and we do not discern, on this record, any                    termination.
meaningful threat to the hospital’s efficient functioning.
Rankin, 483 U.S. at 388-89. Thus, given our precedent on                      Defendant nevertheless argues that the August 7, 1998
this balancing inquiry, and on this record, Defendant has not              memo could not have been a substantial or motivating factor
demonstrated a state interest that outweighs Plaintiff’s First             because (1) the time period between the memo and the
Amendment right to call Defendant’s attention to the quality               termination was almost six months (i.e., August 7, 1998 to
of the Lewis Center’s patient care. Id.                                    January 21, 1999); and (2) several intervening incidents
                                                                           occurred, breaking the link. For support Defendant relies on
                                                                           Wallscetti v. Fox, 258 F.3d 662, 669 (7th Cir. 2001), which
                                                                           held that a four month long period of time “between the
                                                                           protected speech and the adverse employment action . . .
                                                                           without more, is too long to support a reasonable inference of
environment” because her speech had been pre-approved by the school        causation.” (citations omitted) (emphasis added). However,
board and, thus, the “disruptive consequences of the employee speech can   Wallscetti is distinguishable inasmuch as in that case there
be traced back to the government's express decision permitting the         was no admission from the employer that the employee’s
emp loyee to engag e in that speech”).
No. 01-4034                           Rodgers v. Banks      23

speech played any role in his decision to fire the employee,
and therefore the employee could only rely on the four month
time gap to support a causal link. Conversely, in the present
case Defendant conceded that Plaintiff’s memo was a
motivating factor in her decision to fire Plaintiff. Therefore,
Plaintiff has met her burden of production with respect to
showing that her First Amendment protected activity was a
motivating factor in Defendant’s decision to fire Plaintiff.
The burden now shifts to Defendant to demonstrate that she
would have fired Plaintiff notwithstanding Plaintiff’s exercise
of First Amendment protected speech. As noted earlier, this
is generally a jury question. Perry, 209 F.3d at 604 n.4.
Thus, the parties may litigate at trial whether Defendant
would have terminated Plaintiff notwithstanding Plaintiff’s
dissemination of her August 7, 1998 memo. See Crawford-El
v. Britton, 523 U.S. 574, 593 (1998) (citing Mt. Healthy, 429
U.S. at 287).
                             IV.
  For the foregoing reasons, we REVERSE the district
court’s grant of summary judgment to Defendant on
Plaintiff’s First Amendment claim and REMAND this case
to the district court for further proceedings consistent with
this opinion.
