                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 16a0414n.06

                                        Case No. 15-2594

                          UNITED STATES COURT OF APPEALS                           FILED
                               FOR THE SIXTH CIRCUIT                           Jul 22, 2016
                                                                          DEBORAH S. HUNT, Clerk


THERESA ELY,                                          )
                                                      )
       Plaintiff-Appellee,                            )
                                                      )        ON APPEAL FROM THE
v.                                                    )        UNITED STATES DISTRICT
                                                      )        COURT FOR THE EASTERN
DEARBORN HEIGHTS SCHOOL DISTRICT                      )        DISTRICT OF MICHIGAN
NO. 7,                                                )
                                                      )
       Defendant                                      )
                                                      )                         OPINION
and                                                   )
                                                      )
TODD THIEKEN; JEFFREY BARTOLD,                        )
                                                      )
       Defendants-Appellants.                         )


BEFORE:        COLE, Chief Judge; BATCHELDER and COOK, Circuit Judges.

       COLE, Chief Judge. Plaintiff-Appellant Theresa Ely, a school custodian, sued Defendant

Dearborn Heights School District No. 7 and Defendants-Appellants Todd Thieken and Jeffrey L.

Bartold (collectively “Defendants”) pursuant to 42 U.S.C. § 1983. Ely alleges the Defendants

violated her First Amendment rights by (1) engaging in prior restraint of her protected speech

and (2) issuing two written reprimands after she spoke to coworkers and the public about

asbestos exposure in a district school and its subsequent cover up.
Case No. 15-2594
Ely v. Dearborn Heights Sch. Dist.

       The district court denied Thieken and Bartold’s motion for summary judgment on the

basis of qualified immunity. Noting that the analysis for a First Amendment retaliation and prior

restraint claim are the same, the district court applied the balancing test set forth in Pickering v.

Board of Education, 391 U.S. 563, 568 (1968). First, the district court held that Ely engaged in

protected conduct by speaking as a private citizen on matters of public concern. Second, the

reprimand letters were adverse actions for purposes of a First Amendment Retaliation suit

because the second “plainly stated that continuing to engage in the ‘inappropriate’ conduct

described in the letter of reprimand could lead to further discipline including discharge.” Ely v.

Dearborn Heights Sch. Dist. No. 7, No. 14-14500, 2015 WL 8608493, at *7 (E.D. Mich. Dec.

14, 2015).   Third, even if Ely was motivated by personal interest or her complaints were

exaggerated, “[t]he record contains sufficient evidence to support a conclusion that . . . the

balance of the Pickering factors still weighs in favor of allowing rather than suppressing her

speech about asbestos hazards in the defendants’ schools.” Id. at *6. Finally, the district court

concluded that Ely’s First Amendment rights in this particular context were clearly established at

the time the reprimand letters were issued. This appeal followed.

       After carefully reviewing the district court’s opinion, the briefs, and the record in this

case, we conclude that the district court did not err in denying qualified immunity to Thieken and

Bartold. As the district court correctly set out the applicable law and correctly applied that law

to the facts contained in the record, issuance of a full written opinion by this court would serve

no jurisprudential purpose and would be duplicative. Accordingly, on the grounds stated in the

district court’s well-reasoned opinion, we AFFIRM.




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