RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0132p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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RUTH MOSHOLDER,
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Plaintiff-Appellant,
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No. 10-2586
v.
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Defendants-Appellees. -
PATRICIA BARNHARDT; DEWAYNE BURTON,
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Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 09-11829—Robert H. Cleland, District Judge.
Argued: March 1, 2012
Decided and Filed: May 11, 2012
Before: COLE and STRANCH, Circuit Judges; CARR, District Judge.*
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COUNSEL
ARGUED: Michael E. Freifeld, LAW OFFICE OF GLEN N. LENHOFF, Flint,
Michigan, for Appellant. Erik A. Grill, OFFICE OF THE ATTORNEY GENERAL,
Lansing, Michigan, for Appellees. ON BRIEF: Michael E. Freifeld, LAW OFFICE OF
GLEN N. LENHOFF, Flint, Michigan, for Appellant. Erik A. Grill, OFFICE OF THE
ATTORNEY GENERAL, Lansing, Michigan, for Appellees.
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OPINION
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JAMES G. CARR, District Judge. Plaintiff-Appellant Ruth Mosholder appeals
from a grant of summary judgment on her First Amendment retaliation claim to
*
The Honorable James G. Carr, Senior United States District Judge for the Northern District of
Ohio, sitting by designation.
1
No. 10-2586 Mosholder v. Barnhardt, et al. Page 2
Defendant-Appellees Patricia Barnhardt and Dewayne Burton, former and current
wardens, respectively, at the Thumb Correctional Facility, a state prison in Michigan.
For the following reasons, we REVERSE and REMAND the district court’s grant
of summary judgment.
Background
A. Mosholder’s Work History
Mosholder has held the position of Corrections Officer E-9 at the Michigan
Department of Corrections’ (MDOC) Thumb Correctional Facility (TCF) in Lapeer,
Michigan since February, 2001. She became the institution’s school officer in 2001.
Her primary duty was to maintain order and discipline within the school.1 Her
responsibilities included patrolling the school and, if necessary, disciplining inmates.
A school officer, by the nature of the school’s operations and schedule, is guaranteed
weekends and holidays off. In addition, that officer’s exposure to the overall prison
population is vastly reduced.2 Rotating corrections officers are not guaranteed weekends
and holidays off, and must come into contact with all or virtually all of the prison
population.
Mosholder received annual performance evaluations generally affirming her
competence and enthusiasm in performing her assigned duties. Assigned evaluators
performed each evaluation, and Warden Barnhardt or Warden Burton eventually signed
off on them.
1
The position was a “bid” position, which meant that whoever held it would receive the same
assignment every day rather than rotating through different assignments. TCF assigns employees to bid
positions based on a combination of seniority and, depending on the circumstances, interviews with
relevant supervisors or administrators. Mosholder interviewed with the then-principal of the school in 2001
before receiving the school officer assignment.
2
Mosholder states that she came in contact with less than half of TCF’s population during her
time as school officer.
No. 10-2586 Mosholder v. Barnhardt, et al. Page 3
B. The Rap Competition and Letter
In 2005, TCF began housing youthful offenders. Mosholder believed that these
offenders were a “different population” of prisoner, and one which prison management,
in her view, coddled.
TCF’s administrators, led by Deputy Warden Burton, held a rap competition for
youthful offenders on October 3, 2008. TCF partnered with Kettering University to hold
the event, the purpose of which was to steer the offenders toward productive expression
and possible careers outside of prison. Burton, a Prison Inspector and the head of the
correction officers’ union, judged the contest. Prison administrators screened the lyrics
beforehand and disqualified any competitors whose songs referenced gangs or used
profanity.
The parties disagree as to the conduct of the prisoners during the rap competition.
Mosholder claims she heard gang references and saw gang signs flashed during the
competition. The defendant wardens claim to have heard and seen nothing of the sort.
The event passed without incident.
On October 10, 2008, Mosholder sent a letter to several Michigan state
Representatives and Senators, including Representative Lee Gonzales:
On 10/3/08, Thumb Correctional Facility (TCF) held a “rap competition”
for the youthful offenders with ADW Burton (now acting Deputy
Warden) and Inspector Carter (now acting ADW) as judges. I observed
this competition periodically since it was being held in the gym below
me. Although only about 40 inmates were authorized to be at this
competition through the callout system, there were 60+ inmates in the
gym since ADW Burton had our Captain bring other inmates over.
Throughout this competition I observed the majority of these inmates
standing, dancing, and flashing gang signs frequently. The gang signs I
seen were Vice Lords, Latin Kings, and Bloods. Many of the “rappers”
that I heard made references to “Detroit west side”, “Detroit east side”,
“Detroit north side”, “Detroit south side”, “Joy Road” and “313”.
Although the MDOC doesn’t recognize these groups as gangs, we know
they are. The only restriction that was listed on the sign-up sheet was that
profanity will not be allowed; nothing about gangs. The general feel of
No. 10-2586 Mosholder v. Barnhardt, et al. Page 4
the atmosphere that many officers felt was that this was a very volatile
situation that was on the edge of exploding.
There was absolutely no compliance to the HOPE proper dress rules at
all. Pants sagging well below the waistline, some even below the
buttocks, shirts all untucked, hats on, thermal shirts worn underneath a
t-shirt. The very dress rules that Inspector Carter signed for as part of the
HOPE program, but chose to ignore during this competition.
It just amazes me that this is being allowed to happen. Management
allowing inmates to flash gang signs and make references to gangs in
their lyrics. What are they promoting? Is this MDOC’s way of
rehabilitating our youthful offenders? To have fun and hope to become
a rap star while in prison with the help of ADW Burton and Inspector
Carter, who weren’t just overseeing an activity, they were participating
in it, and chose to ignore policy and work rules that prohibit it. What
message is this sending to our youthful offenders?
There will be more of these “rap competitions”. It was announced at the
end of this competition that the next one will be Friday, October 17th, at
1800 hours. It is my understanding that these inmates are competing to
make the “finals” and a chance to have a “demo” made to be sent out to
local radio stations. I certainly hope this isn’t true, but even if it isn’t, to
allow our youthful offenders to behave in this manner is atrocious. I
don’t know all the details but many staff have spoken to me and have
expressed their disbelief and disapproval that this is being allowed to
happen. We have a music room program and several concerts are
scheduled during the year where groups/individuals are given the
opportunity to perform for the prisoner population. I have no problem
with providing inmates with the tools and knowledge necessary to
become successful in the music industry when they leave prison, but
NOT to have a competition with the hopes of having a demo made and
sent out to radio stations while they are still in prison. If I was a victim
of a crime and heard a rap song on the radio from the inmate in prison
that murdered or raped my child, and that MDOC promoted it, I would
be outraged.
There is no structure, organization, discipline, or accountability here for
these youthful offenders. I’ve said it before; this HOPE program is just
words on paper. After 3 years of having these youthful offenders you
would think there would have been some kind of improvement. It has
only gotten worse. We are losing more and more control every day.
Since we received these youthful offenders in October 2005 our critical
incidents have increased. In 2005 we had 31 critical incidents with only
2 employee assaults and 11 prisoner assaults. In 2006 we had 86 critical
incidents with 21 employee assaults and 21 prisoner assaults. In 2007 we
No. 10-2586 Mosholder v. Barnhardt, et al. Page 5
had 77 critical incidents with 21 employee assaults and 33 prisoner
assaults. These figures are all on the MDOC website under “Publications
and Information”, “Legislative Reports”.
Our segregation unit, which has only 22 cells, has become nothing more
than a unit with a revolving door. I started keeping track of the
segregation movement in June 2007 when I noticed policy being violated
with prisoners being released early for no legitimate reason as dictated
by this policy. From June to December 2007 we had about 213 prisoners
in segregation (about 16 of them were in for non-detention reasons).
Total detention days given were about 4140 with about 2069 days served
and 2071 days not served due to being released early. About 50% of days
given were served. We had about 79 fighting charges, 12 prisoner assault
charges, and 17 staff assault charges. Detention days for prisoners that
transferred (about 59) were not included in any of the total days
given/served/not served.
From January to September 2008 we’ve had approx. 569 prisoners in
segregation (about 108 were in for non-detention reasons). Total
detention days given were about 7468 with 2621 days served and 4847
days not served due to being released early. About 35% of days given
were served. We’ve had about 217 fight charges, 40 prisoner assaults, 35
staff assaults, 7 prisoner assaults resulting in serious injury, and about 53
prisoners released from segregation before their major misconduct
hearing. Detention days for prisoners that transferred (about 134) were
not included in any of the total days given/served/not served.
Already from 10/1/08 to 10/13/08, we have had about 68 prisoners in
segregation with 824 detention days given with only about 153 days
served (18%). About 19 prisoners have been released before their major
misconduct hearing. I have made every attempt to make my figures as
accurate as possible.
Some of the more serious incidents we’ve had so far this year are:
- 3 youthful offenders had their jaws broken
- A youthful offender committed suicide in July
- A group of youthful offenders incited to riot in March, another group
in September
- A youthful offender who assaulted another resulting in serious physical
injury. He received 30 days detention, has to pay $3715.20 restitution,
and after serving only 6 days of his detention he was sent to Essex Unit
instead of being sent to the Behavior Management Unit. Essex Unit is
where we house inmates that have worked their way into that unit
through positive behavior.
No. 10-2586 Mosholder v. Barnhardt, et al. Page 6
I urge you to come Oct. 17th to see this “rap competition” at 1800 hours,
or to another one at a later day. Before you pass me off as just being
disgruntled, please come and see for yourself.
Thank you for you time.
Sincerely,
Ruth A. Mosholder
Representative Gonzales contacted Warden Barnhardt to obtain a response to the
letter. Barnhardt investigated Mosholder’s claims, and drafted a response on October
24, 2008. Barnhardt’s office provided the response to Mosholder and Representative
Gonzales. Barnhardt’s letter reiterated the administrators’ view of the October 3, 2008
event. It explained what the administration considered to be the rehabilitative purpose
of the competition. There was no further communication between MDOC and
Representative Gonzales on this matter, or between MDOC and any other elected
official.
C. Conflict with the School Principal
In December, 2006, TCF hired Laquita Featherstone as the school’s principal.
Featherstone and Mosholder had multiple run-ins with each other, and Featherstone
viewed Mosholder as a too-strict disciplinarian.
In January, 2009, Mosholder and Featherstone had a confrontation over
Mosholder’s attempt to issue a Major Misconduct Ticket to an inmate. While in a
classroom, Mosholder seized paperwork which she believed contained gang-related
drawings from the prisoner. She attempted to issue a Major Misconduct Ticket for
Destruction or Misuse of State Property Over $10. Featherstone asked Mosholder not
to write the ticket, and leave the discipline to the classroom teacher. Mosholder refused,
and stated that she would only do so if instructed by her supervisor.3
3
It is not clear from the record to which supervisor Mosholder was referring; for our purposes it
is only necessary to know that she was referring to a supervisor distinct from and, in her opinion, superior
to Featherstone.
No. 10-2586 Mosholder v. Barnhardt, et al. Page 7
Moreover, inmates complained at a Warden’s Forum on January 27, 2009, about
Mosholder. Their complaints included a critique of Mosholder’s ejection of prisoners
from the music room. This, according to the wardens, created potential safety and
security problems.
D. Reassignment
On February 10, 2009, Burton transferred Mosholder from her school officer
position to a general corrections officer position. As a result of the transfer, Mosholder
would perform rotating duties at the prison in different assignments, come into contact
with more of the prison population, and no longer have a work schedule allowing for
consistent weekends and holidays off.
E. Procedural History
Mosholder initially filed suit in the Circuit Court in Genesee County, Michigan.
Appellees then removed the case to the Eastern District of Michigan on May 12, 2009.
On December 9, 2009, Appellees filed a motion for summary judgment, which the
district court subsequently denied. On October 4, 2010, Appellees filed a motion in
limine on the issue of whether Mosholder’s speech was on a matter of public concern.
The district court interpreted this motion as a renewed motion for summary judgment.
On November 30, 2010, the court granted that motion, ruling that Mosholder did not
engage in protected speech. Mosholder timely appealed that order.
Standard of Review
We review a district court's decision to grant summary judgment de novo. Pagan
v. Fruchey, 492 F.3d 766, 770 (6th Cir. 2007). A court may grant summary judgment
only if there are no genuine issues of material fact and one party is entitled to a judgment
as a matter of law. Fed. R. Civ. P. 56(c). The moving party bears the initial burden of
demonstrating the absence of any genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). To support its motion, the moving party may show
“that there is an absence of evidence to support the nonmoving party's case.” Id. at 325.
No. 10-2586 Mosholder v. Barnhardt, et al. Page 8
Once the moving party satisfies its initial burden, the burden shifts to the
nonmoving party to set forth specific facts showing a triable issue of material fact.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Fed. R.
Civ. P. 56(e). “The mere existence of a scintilla of evidence in support of the plaintiff's
position will be insufficient [to defeat a properly supported motion for summary
judgment]; there must be evidence on which the jury could reasonably find for the
plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In reviewing a
district court's decision to grant summary judgment, we view all facts and inferences
drawn from those facts in the light most favorable to the nonmoving party. Matsushita,
supra, 475 U.S. at 587.
Discussion
Mosholder brings a retaliation claim under the First Amendment. To prove her
claim, she must show: “1) she engaged in constitutionally protected conduct; 2) an
adverse action was taken against [her] that would deter a person of ordinary firmness
from continuing to engage in that conduct; and 3) the adverse action was motivated at
least in part by [her] protected conduct.” Mezibov v. Allen, 411 F.3d 712, 717 (6th Cir.
2005).
The district court’s summary judgment opinion concluded Mosholder’s speech
was not on a matter of public concern. It likewise weighed the competing interests of
the parties under Pickering v. Board of Education, 391 U.S. 563, 568 (1968), and found
that Appellees’ institutional interest in safety and security outweighed Mosholder’s free
speech interests. On appeal, the parties focus primarily on the district court’s
determination that Mosholder’s speech was not a matter of public concern, with some
argument on the Pickering analysis. We address both issues.4
4
As a threshold matter, both parties and the district court agree that Mosholder’s speech was not
pursuant to her official duties. Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). We see no reason to
disagree.
No. 10-2586 Mosholder v. Barnhardt, et al. Page 9
1. Mosholder’s Speech as a Matter of Public Concern
The First Amendment may afford protection to a public employee’s speech about
her employer’s activities where the speech relates to a matter of public concern. In
determining whether such speech has First Amendment protection, a court must, under
Pickering, 391 U.S. at 568, balance the individual’s interest in free expression with the
employer’s interest in effectively operating its public institutions.
The “boundaries of the public concern test are not well defined.” San Diego v.
Roe, 543 U.S. 77, 83 (2004). Generally, an employee speaking as a citizen is speaking
on a matter of public concern when that speech can “be fairly considered as relating to
any matter of political, social, or other concern to the community.” Connick v. Myers,
461 U.S. 138, 146 (1983). Another consideration is whether the speech involves “a
subject of general interest and of value and concern to the public.” Roe, 543 U.S. at
83-84.
We live in an age where individuals possess a near-limitless ability to speak to
audiences who might share their outrage at a particular controversy or allegation, turning
the “matter of concern” test into a simple test of whether the statement was made and
someone heard it. The more meaningful inquiry, then, calls for looking into “the
content, form, and context of a given statement, as revealed by the whole record,”
Connick, supra, 461 U.S. at 147-48, and determining whether the employee
predominantly spoke “upon matters only of personal interest” or upon matters of public
concern. Id. at 147.
The district court relied heavily on Brown v. City of Trenton, 867 F.2d 318, 322
(6th Cir. 1989), in reaching its finding that Mosholder did not speak on a matter of
public concern. In that case, a group of disgruntled police officers serving on the
Emergency Response Tactical Team sent a letter to the city’s police chief; they also sent
copies to several other public officials. The letter contained rather extensive complaints
about the management of their team, particular decisions by police administrators, and
accusations of administrative jealousy and betrayal. Id. at 319-20. The letter ended with
No. 10-2586 Mosholder v. Barnhardt, et al. Page 10
an implied endorsement of a change in administration and an offer to return all of their
gear and resign. Id. at 320. The officers later resigned. Id.
This court held that the letter concerned “a matter of limited interest to members
of the general public.” Id. at 322. Finding “no hint . . . of any actual or potential
wrongdoing or breach of public trust,” the court affirmed the district court’s grant of
summary judgment to the city. Id. at 322-25.
The district court determined that Mosholder’s letter was little more than a
“quintessential employee beef,” see Fox v. Traverse City Area Pub. Schs. Bd. of Educ.,
605 F.3d 345, 349 (6th Cir. 2010) (quoting Barnes v. McDowell, 848 F.2d 725, 735 (6th
Cir. 1988)), and, as such, did not touch on a matter of public concern. This analysis was
incorrect.
There are two ways of reading Mosholder’s letter. The first, which the district
court embraced, is as the airing of personal complaints about a management practice
with which Mosholder disagreed, albeit dressed up as a larger treatise on the prison’s
failure to rehabilitate inmates properly. The second is as a specific instance of the prison
failing to accomplish its rehabilitative goals, as manifest in inmate behavior during the
rap competition, accompanied by a series of statistics providing a wider view of the
problems.
The second reading more closely adheres to the content, form and context of the
letter. “[T]he pertinent question is not why the employee spoke, but what he said . . . .”
Farhat v. Jopke, 370 F.3d 580, 591 (6th Cir. 2004) (emphasis in original). We are
concerned with the distinction between matters of public concern and those only of
private interest, “not [between] civic-minded motives and self-serving motives.”
Chappel v. Montgomery Cnty. Fire Protection, 131 F.3d 564, 575 (6th Cir. 1997).
Mosholder disagreed with the operation of an institution charged with protecting
the public. She was almost certainly motivated, at least in part, by personal disagreement
with the manner in which the prison administration ran TCF. Correct operation of that
institution is a matter of public concern. Mattox v. City of Forest Park, 183 F.3d 515,
No. 10-2586 Mosholder v. Barnhardt, et al. Page 11
521 (6th Cir. 1999). This court’s evaluation of her letter, then, focuses on whether her
complaint is merely a matter of private interest – her personal offense at a rap
competition, decorated with appended statistics and expressing merely a token concern
for the community – or if it remains in the realm of public concern.
The relevant analysis here is whether the communication touches “upon matters
only of personal interest . . . .”Connick, 461 U.S. at 147 (emphasis added). A public
concern/private interest analysis does not require that a communication be utterly bereft
of private observations or even expressions of private interest. See, e.g., Perry v.
McGinnis, 209 F.3d 597 (6th Cir. 2000) (holding that an employee was speaking on a
matter of public concern even when airing a personal grievance about racial
discrimination).
In Brown, the purpose of the letter was to vent (rather extensively) personal
grievances with the administration of the officers’ unit, share the officers’ perception of
jealousy coming from other units, their sense of betrayal by their superiors, and
prospectively tender their resignations. No matter the arguable relationship between their
grievances and public safety, the complaints in Brown did not concern “actual or
potential wrongdoing or any breach of public trust . . . .” 867 F.2d at 322.
Mosholder, on the other hand, lodged complaints about the administration of a
public safety facility that, in her view, promoted behavior that could offend victims and
their families, and also potentially put prisoners and staff immediately, and the general
public eventually, at risk. Whatever her personal motivation, including her own desire
to see different policies enacted, she wrote primarily on a matter of public concern.
2. The Pickering Test
The Pickering test asks a court to arrive “at a balance between the interests of the
[employee], as a citizen, in commenting on matters of public concern and the interest of
the State, as an employer, in promoting the efficiency of the public services it performs
through its employees.” 391 U.S. at 568.
No. 10-2586 Mosholder v. Barnhardt, et al. Page 12
The district court again looked to Brown in determining that the interests of the
prison administration outweighed Mosholder’s interests. In Brown, the court referenced
“the importance of deference to the city’s judgment on the matter of discouraging public
dissension within its safety forces” in “tip[ping] the scales decisively in favor of the
[police department].” 867 F.2d at 322 (citing McMurphy v. City of Flushing, 802 F.2d
191 (6th Cir. 1986)). The district court found that, even if Mosholder were speaking on
a matter of public concern, the administration’s interests in maintaining order and
discipline in a prison setting would outweigh Mosholder’s interest.
This interpretation of Brown goes too far. Even where the speech criticizes the
operations of a public safety official or entity, the Pickering analysis requires a balancing
of the “public and social importance” of the speech against the dissension it would cause
in the workplace. McMurphy, supra, 802 F.2d at 198 (quoting Hughes v. Whitmer, 714
F.2d 1407, 1421 (8th Cir.1983)). It was not the purpose of Brown, nor is it the rule of
this Circuit, that public safety employers have a greater weight placed on their interests
in order and discipline than other employers have in their institutional interests.
This court is to “consider whether an employee’s comments meaningfully
interfere with the performance of her duties, undermine a legitimate goal or mission of
the employer, create disharmony among co-workers, impair discipline by superiors, or
destroy the relationship of loyalty and trust required of confidential employees.” Leary
v. Daeschner, 349 F.3d 888, 900 (6th Cir. 2003).
Mosholder claims an interest in expressing the need for safe, properly
rehabilitative spaces and programs to help prisoners. The wardens point to their interests
in promoting order and discipline. On balance, Mosholder’s letter did not undermine or
threaten to undermine the prison’s interests so substantially as to justify prohibiting or
punishing her speech. Mosholder’s speech did not interfere with her duties, advocate any
disruption or defiance on the part of employees, prevent discipline by superiors, and she
is not, in this regard, a confidential employee breaking a confidence. She simply raised
her concern about a matter of public importance – that the prison be run in a manner
No. 10-2586 Mosholder v. Barnhardt, et al. Page 13
more effectively providing for the safety and rehabilitation of prisoners. Her letter,
moreover, contains no request for any personal preference or exemption.
There is no indication that Mosholder’s letter would materially disrupt her work
environment or the performance of her duties. This is bolstered by the time Mosholder
served as school officer between the composition of the letter and her transfer to general
corrections officer duty, during which any issues that arose were continuations of issues
predating the composition of the letter.
The Pickering balancing test favors Mosholder.
Conclusion
For the foregoing reasons, we REVERSE the district court’s grant of summary
judgment to Appellees and REMAND for further proceedings.5
5
Mosholder claims that the district court’s denial of an earlier summary judgment motion by
Appellees on the issues of whether her transfer constituted an adverse employment action and whether her
letter was the cause of her transfer resolved those issues in her favor. Mosholder v. Barnhardt, 09-CV-
11829-DT, 2010 WL 5559406 (E.D. Mich. 2010). This is a misreading of the holding. In both cases, the
district court found that Mosholder met the pleading burdens sufficient to defeat summary judgment,
stating that “Plaintiff has therefore identified sufficient facts to create a triable issue on [the adverse
employment action issue],” id. at *6, and that “a jury question exists on whether Defendants would have
made the decision to transfer her in the absence of her letters.” Id. at *14. We concur in that assessment.
Those issues have been decided for purposes of summary judgment, but not for trial.