                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0280n.06
                            Filed: April 26, 2006

                                           No. 05-3015

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


    CHAPLAIN WILLIAM AKRIDGE                         )
                                                     )
             Plaintiff-Appellant,                    )   ON APPEAL FROM THE UNITED
                                                     )   STATES DISTRICT COURT FOR
                       v.                            )   THE SOUTHERN DISTRICT OF
                                                     )   OHIO
                                                     )
  REGINALD A. WILKINSON, ALAN J.                     )   OPINION
  LAZAROFF AND BOBBY J. BOGAN,                       )
                                                     )
           Defendants-Appellees.                     )
                                                     )
                                                     )
_____________________________________



       Before: DAUGHTREY and GILMAN, Circuit Judges; RUSSELL, District Judge*

       RUSSELL, District Judge. Chaplain William Akridge appeals the district court’s order

granting summary judgment in favor of Defendants Reginald A. Wilkinson, Alan J. Lazaroff and

Bobby J. Bogan on his First Amendment-based retaliation claim, as well as his federal due

process claim. Chaplain Akridge appeals the district court’s holdings on retaliation and due

process, as well as its alternative holding that the Defendants were entitled to qualified

immunity. For the following reasons, we AFFIRM the judgment of the district court.


       *
       Honorable Thomas B. Russell, United States District Judge for the Western District of
Kentucky, sitting by designation.

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                                      I. BACKGROUND

       Plaintiff Akridge has worked as a chaplain for the Ohio Department of Rehabilitation and

Correction (“ODRC”) since 1996. In April of 2002, he was assigned to the Madison

Correctional Institution (MCI), where he was the full-time chaplain until being transferred after

the events giving rise to this case. Akridge, an ordained minister of the American Baptist

Churches, was employed as a Protestant minister. Defendant Reginald Wilkinson was the

director of the ODRC, Defendant Alan Lazaroff was the warden at MCI, and Defendant Bobby

Bogan, Jr. was the deputy warden of special services at MCI. Mr. Bogan was Akridge’s

immediate supervisor, and Mr. Bogan reported to Mr. Lazaroff. Akridge named Defendant

Wilkinson in his official capacity only, and the other two defendants in both their official and

individual capacities. Akridge alleges that defendants Lazaroff and Bogan unconstitutionally

retaliated against him for refusing to allow an openly gay inmate to lead a choir or praise band

that was scheduled to participate in Protestant services at MCI. He further alleges that the

disciplinary action constituting the retaliation (a fine of two days’ pay) was a due process

violation because the regulations on which it was allegedly based were unconstitutionally vague.



       Akridge was assigned to “Zone A” inmates at MCI, a large percentage of whom were

sexual offenders. Prior to Akridge’s arrival at MCI, an inmate choir that had previously taken

part in the Protestant services was disbanded, apparently due to infighting. It had been replaced

by an inmate “praise band,” which was led by an inmate named Hatfield. About six months after

Akridge arrived at MCI, Hatfield approached him and told him that another group of inmates, led

by an inmate named Reed, had taken the musical instruments and was planning to play at the


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service. Akridge told Reed that he did not object to a new band, but that the band members

needed to approach him first for permission to play at the service. Akridge apparently told

inmate Reed that his concern was that the group might play “pagan music;” Akridge did not

know at that time that Reed was openly gay. Reed then became confrontational with Akridge,

telling Akridge that he believed Akridge was discriminating against him because he was gay.

Akridge responded: “I didn’t know you were gay. But since you tell me you are gay, then that is

reason enough for you not to ... lead the band.” (J.A. 134-35).

       Thereafter, on October 24, 2002, Reed filed a complaint with Bogan alleging that

Akridge was discriminating against him on the basis of his sexual orientation. Bogan contacted

Akridge by telephone on October 31 to discuss the complaint, and Akridge told Bogan that he

was not allowing Reed to lead the choir because Reed was a practicing homosexual. (J.A. 160).

Akridge also prepared a written response to Reed’s complaint in a memo to Reed dated

November 4, 2002. (J.A. 75). On November 5, Bogan conducted an investigatory interview

with Akridge in person, along with a union representative. (J.A. 59). Bogan then ordered

Akridge to allow Reed to “have an opportunity to be one of the choir directors.” (J.A. 266).

Akridge refused to do so, and on November 12, 2002, Lazaroff issued a notice for a pre-

disciplinary conference to be held before a Labor Relations Officer on November 19, 2002.

(J.A. 76). The notice informed Akridge that he was being charged with insubordination for his

refusal to comply with Bogan’s order. (Id.). After the conference, Akridge sent to the Labor

Relations Officer a written list of “arguments” that he felt he had not had the opportunity to

present orally. (J.A. 77). On November 20, 2002, Lazaroff fined Akridge two days’ pay. (J.A.

98). Thereafter, Akridge was voluntarily transferred to a different corrections institution within


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the ODRC.

                                   II. STANDARD OF REVIEW

       This court reviews de novo a district court’s award of summary judgment. Barrett v.

Harrington, 130 F.3d 246, 251 (6th Cir. 1997). Summary judgment is proper if the evidence

submitted shows that there is no genuine issue of material fact and that the moving party is

entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

This court must view the entire record in the light most favorable to the non-moving party.

Smith v. Chrysler Corp., 155 F. 3d 799, 804 (6th Cir. 1998).

                                       III. ANALYSIS

       A. The nature of Akridge’s speech

       As an initial matter, Appellant argues that the district court misconceived the nature of

       his

claim in that it misidentified the speech upon which his claims are predicated. Appellant argues

that his “refusal to place Inmate Reed in a position of leadership in the Protestant congregant

worship service” constitutes speech protected by the First Amendment. (Appellant’s Brief, at

27).

       The district court’s opinion does address this argument, though it also discusses other

speech by Akridge related to the issue, including his written and oral statements in the course of

the disciplinary procedures as well as his statements directly to Reed. As to the initial statements

by which Akridge denied Reed the opportunity to lead the musical portion of the services, the

district court said that Akridge

       was not commenting on the social or legal ramifications of homosexuality in
       general. His statements occurred in the limited context of a decision he made

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       within the scope of his employment as chaplain. Plaintiff's personal opinions on
       whether the Protestant faith condemns homosexuality as a sin, regardless of their
       validity, do not constitute matters of public concern. Plaintiff's views on whether
       permitting Reed, a homosexual, to participate in the prison services in a
       leadership capacity would be sending a message to other inmates of tolerance or
       accpetance of homosexuality incompatible with the Protestant faith and plaintiff's
       own beliefs do not involve matters of public concern. The ‘point’ or ‘focus’ of
       the statements was simply to explain and defend to his superiors his decision not
       to permit Reed to participate as a choir leader or band member in the services, and
       to establish the bounds of his authority as chaplain. Plaintiff's statements
       concerning his views on Reed's participation in the services in a leadership role
       and his refusal to permit Reed's participation were made to further a private
       purpose, that being plaintiff's own agenda as to how the services at MCI should
       be conducted.

(J.A. 38-39). With regard to the statements made by Akridge in response to Bogan's order, the

district court held that they were “not a comment by Plaintiff as a citizen, but rather a comment

made in his role as chaplain ... [P]laintiff was defending his authority as chaplain and arguing

that his decision on a matter within the scope of his employment should predominate over the

policy decisions of his supervisor on that same matter. These are internal employment matters,

not a subject of public concern." (J.A. 39). Similarly, as to Akridge's written response to the

insubordination charge, the district court held that it did not address a matter of public concern.

(J.A. 40). Therefore, Appellant's assertion that the district court failed to address the speech

upon which his claim was based is incorrect.

       Another of Akridge’s principal arguments before this court is that the district court

mischaracterized the nature of the speech that Akridge asserts is protected by the First

Amendment. Akridge argues that his complaint is properly read as alleging that the act of

refusing to permit Reed to lead the choral group is expressive conduct entitled to First

Amendment protection under the Supreme Court’s decisions in Hurley v. Irish-American Gay,

Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995) and Boy Scouts of America v. Dale,

                                                  5
530 U.S. 640 (2000). Before this court, the Defendants concede that “[a]t least in the context in

which it occurred ... Akridge’s conduct in refusing to instate Reed ... constituted ‘speech’ within

the meaning of the First Amendment.” (Appellee’s Br. at 26). We need not discuss this issue

further, however, because we agree with Defendants and the district court that, even if Akridge’s

conduct is speech, and even if that speech did address a matter of public concern, the Pickering

balancing test weights against Akridge in this case. See infra Part B.

       Appellant next argues that the district court mistakenly held that the speech in question

was not on a matter of public concern. He analogizes his speech, which he argues was on

“matters related to homosexuality discrimination” (Appellant's Brief, at 34), to speech on racial

discrimination, which he claims was held by the Supreme Court in Connick v. Myers to

inherently implicate matters of public concern. 461 U.S. 138, 148, n. 8 (1983). In that footnote,

the Connick court was summarizing the holding of Givhan v. Western Line Consol. Sch. Dist.,

439 U.S. 410, 99 S.Ct. 693 (1979). (Connick itself did not involve racial discrimination.) Also,

he analogizes the speech to that held by this court to be on a matter of public concern in Cockrel

v. Shelby County School District. 270 F.3d 1036 (6th Cir. 2001).

       In Cockrel, a public school teacher was dismissed due in part to her decisions to include

in her curriculum lessons about the environmental benefits of industrial hemp. Id. at 1046.

There, we said that “so long as the speech relates to matters of ‘political, social, or other concern

to the community,’ as opposed to matters ‘only of personal interest,’ it shall be considered as

touching upon matters of public concern.” Id. at 1052, quoting Connick, 461 U.S. at 146-49, 103

S.Ct. 1684. A better analogy to Chaplain Akridge’s speech in the case at bar, however, would be

the analysis used in a “mixed speech” case, which the Cockrel court describes but rejects for that


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case. 270 F.3d at 1052, n.5. “In mixed speech cases, the employee at issue speaks not only as

both a citizen and an employee, but the content of her speech involves both matters of public and

private concern.” Id., citing Bonnell v. Lorenzo, 241 F.3d 800, 811-12 (6th Cir. 2001). Here,

Akridge’s speech clearly contains elements of private concern (specifically, arguments about his

authority as chaplain to make final decisions about the worship services at MCI) but also

contains elements that, according to the reasoning in Cockrel, are of public concern.

       The Cockrel court, in addition to citing the district court opinion on the question of

whether industrial hemp was a matter of public concern, looked to the issue’s appearance in local

news and discussion by politicians to support the conclusion that it was. 270 F.3d 1051-52.

Similarly, a debate about the propriety of homosexuality has been the subject of news reports

and discussion by politicians on the local and national level. Where the speech in question is

mixed speech, “if any part of an employee’s speech, which contributes to the [adverse

employment action], relates to matters of public concern,” the analysis must proceed to the next

step: the balancing analysis required by the Supreme Court’s decision in Pickering v. Board of

Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Rahn v. Drake Center, Inc., 31

F.3d 407, 411 (6th Cir. 1994).

       B. The Pickering balancing test

       In its opinion, the district court held in the alternative that, even if Akridge’s statements

were on matters of public concern, the Pickering test weighed against affording them First

Amendment protection. (J.A. 46). The Pickering test, as the Cockrel court described it, requires

that “public employee speech, even if touching on matters of public concern, will not be

constitutionally protected unless the employee’s interest in speaking on these issues outweighs


                                                  7
the interest of the State, as an employer, in promoting the efficiency of the public services it

performs through its employees.” 270 F.3d at 1053 (internal quotation marks and citation

omitted).

       The district court identified essentially two categories of interests of the defendants: the

interests in preventing the discrimination inherent in Akridge’s conduct and the interests in

enforcing discipline among its employees. As to the first, it noted several facts that indicate

(though not conclusively) that the ODRC maintains a policy of non-discrimination on the basis

of sexual orientation when dealing with inmates. (J.A. 41). Even without such a policy,

however, the district court noted that possible constitutional concerns (specifically, free exercise

claims) would also legitimately motivate the ODRC to strictly limit actions regulating an

inmate’s religious practice. (J.A. 41-42). Relatedly, the district court noted that Lazaroff

believed that “it was bad penology to exclude an inmate from a program simply because of a

characteristic such as sexual orientation, thereby creating tensions among the prison population.”

(J.A. 42). The district court rejected Akridge’s counter-arguments on the grounds that (1) “no

evidence has been presented in this case that inmate Reed posed any kind of security threat

which would warrant barring his participation as a choir leader or band member,” and (2) “there

is no evidence that Reed’s participation as a leader of the choir or as a band participant would

interfere with the free exercise rights of other inmates.” (J.A. 43-44). The district court also

noted an earlier Sixth Circuit case in which this court held that “an inmate who alleged that a

chaplain denied the inmate the right to participate in religious services due to the inmate’s

homosexuality stated a claim under § 1983, and reversed the district court’s grant of summary

judgment in favor of the inmate.” (J.A. 42).


                                                  8
       As to the interests in enforcing discipline among employees, the district court cited our

decision in Perry v. McGinnis, 209 F.3d 597, 607 (6th Cir. 2000), for the proposition that

“maintaining employee accountability is a legitimate organizational interest.” (J.A. 44). In that

opinion, the court quoted the earlier case of Meyers v. City of Cincinnati, which held as follows:

       In order to justify a restriction on speech of public concern by a public employee,
       plaintiff's speech must impair discipline by superiors, have a detrimental impact
       on close working relationships, undermine a legitimate goal or mission of the
       employer, impede the performance of the speaker's duties, or impair harmony
       among co-workers. The state bears the burden of showing a legitimate
       justification for discipline. Rankin [v. McPherson], 483 U.S. [378] at 388 [1987],
       107 S.Ct. [2891] at 2899; Pickering, 391 U.S. at 570-573, 88 S.Ct. at 1735-1737.
       As in Rankin, we look for evidence of the impact of the statement on the city's
       legitimate organizational interests.

934 F.2d 726, 730 (6th Cir. 1991). The district court held that Akridge’s statements “did not

meaningfully interfere with the performance of his duties, create disharmony among co-workers

or destroy any relationship of loyalty and trust required of confidential employees.” (J.A. 45).

However, it also held that the statements undermined legitimate interests of the ODRC; namely,

the interests in preventing the discrimination inherent in Akridge’s actions and the consequences

thereof (Reed’s complaints, possible § 1983 liability, etc.). (Id.). The district court dismissed

Akridge’s argument that his statements did not impair discipline because no disciplinary

situation existed before Bogan’s intervention, stating that

       [t]his [argument] ignores the fact that plaintiff admittedly disobeyed a direct order
       by his supervisor. There is no evidence that Bogan or Lazaroff manufactured or
       colluded in the complaint filed by Reed which triggered Bogan’s inquiry and the
       later disciplinary proceedings. The fact that the defendants decided not to pursue
       plaintiff’s continued insubordination any further was due to the fact that plaintiff
       transferred to another institution soon thereafter. This does not diminish the
       threat which plaintiff’s actions posed to the ordered administration of the
       institution and its policies.

(J.A. 46).

                                                 9
        For these reasons, the district court said, “the balance tips in favor of the defendants on

the Pickering scale.” (Id.) On appeal, Akridge argues that “the ODRC has no interest

whatsoever in whether there even exists an inmate choir leader” and that, because the regulations

delegate primary responsibility for making such determinations to the chaplain, his speech does

not undermine a legitimate goal of the ODRC. (Appellant’s Brief at 42). The district court

addressed these issues in its opinion, noting the interest in preventing discrimination and the

supervisory relationship between Chaplain Akridge and Bogan and Lazaroff. Although it may

be that Akridge could have disbanded the choir and/or praise band entirely, the facts appear to be

that he did not do so; rather, he openly and intentionally excluded an inmate from such groups

(indeed, this is the basis for his claim that his speech was on a matter of public concern). Even if

the ODRC had no interest in the existence of the band, this would not vitiate its interest in

preventing discrimination and its consequences. Akridge’s arguments on the district court’s

application of the Pickering test, then, are unavailing.

        C. Vagueness of the ODRC’s anti-discrimination policy

        Akridge also seeks to have the ODRC’s anti-discrimination policy declared void for

vagueness. This request arises in the context of his claim that he suffered a denial of due

process. As the district court noted in its opinion, however, Akridge was not disciplined for a

violation of the anti-discrimination policy; rather, he was disciplined for insubordination. (J.A.

52). As the district court further noted, Akridge does not allege that the insubordination policy

was unconstitutionally vague or that, had the anti-discrimination policy been clearer, he would

have acted differently. (J.A. 53). The district court’s denial of Akridge’s due process claim was

not error.


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       D. Qualified immunity

       The district court alternatively held that the individual defendants, Bogan and Lazaroff,

were entitled to qualified immunity from suit for their actions in this case. (J.A. 51-52). The

district court identified the test for qualified immunity in a First Amendment retaliation case as

follows: “...if an employer in the position of the defendants at the time of the adverse job action,

measured objectively, could have disagreed as to (1) whether and to what extent the speech was

a matter of public concern, and (2) where the Pickering scale, with all of the parties’ competing

interests in the balance, would ultimately come to rest, then the protection of qualified immunity

should be granted.” (J.A. 50-51, citing Guercio v. Brody, 911 F.2d 1179, 1184 (6th Cir. 1990);

Moran v. State of Washington, 147 F.3d 839, 850 (9th Cir. 1998)). Akridge argues that

reasonable employers could not disagree about either of these elements; however, even if the

Pickering test did weigh in favor of Akridge, it would not be clear enough to prevent the

defendants from being entitled to qualified immunity.

                                      III. CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s order granting summary

judgment to the Defendants on all of Akridge’s claims.




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