Everett Perry v. Kenneth McGinnis

ALAN E. NORRIS, Circuit Judge,

concurring in part and dissenting in part.

I concur with the majority’s decision in Part II and agree that the grant of summary judgment should be reversed with respect to Perry’s race discrimination claims under the Fourteenth Amendment and Michigan’s Elliott-Larsen Civil Rights Act. However, because Perry did not allege that he engaged in speech involving a matter of public concern, I respectfully dissent from Parts III.A.1, III.A.2.a, III.B, and IV of the majority’s opinion and would not reach the issue addressed in Part III. A^.b.1

The majority opinion indicates that Perry’s “insistence through his decisions that he be impartial and operate within the confines of constitutional law, constitutes speech on a matter of public concern.” I disagree with this conclusion and the implications upon which it relies. In his complaint, Perry alleges that he was terminated because of his “speech and/or conscience in opposing, failing and/or refusing to find a higher percentage of prisoners guilty of misconduct.” The complaint later indicates that Perry was deprived of his First Amendment rights when he was disciplined and terminated for “his speech in opposition to ... unlawful pressure to find more prisoners guilty.” In my opinion, it is too great a stretch to imply from Perry’s findings as an ALE that he was engaging in speech about MDOC’s alleged quotas *610for guilty verdicts. Perry never alleges that in his ALE findings he discussed his opinion about MDOC’s alleged policies or desire for him to find more prisoners guilty and more prison guards credible. Instead, the first time Perry states his opinion of the alleged quotas is in his complaint to the district court. While MDOC’s alleged guilty verdict quota may be improper, the First Amendment is not an appropriate means to address the problem.

I also disagree with the majority’s reliance upon Parate v. Isibor, 868 F.2d 821 (6th Cir.1989). In Paróte, this court determined that the assignment of a letter grade is symbolic communication intended to send a specific message to a student, noting that “[t]he message communicated by the letter grade ‘A’ is virtually indistinguishable from the message communicated by a formal written evaluation indicating ‘excellent work.’ ” Id. at 827. In the present case, an analogous message is not at issue. Perry has not suggested that appellees have interfered with the message of his opinions to individual prisoners that they were or were not guilty of misconduct. Instead, Perry focuses on alleged speech about MDOC’s requirements for numbers of guilty verdicts. This purported message cannot be implied from Perry’s ALE findings with the ease that a message of “excellent work” can be implied from the assignment of a letter grade “A.” Nor do I find the question of academic freedom analogous to the present situation.

For these reasons, I disagree with the majority’s determination that Perry engaged in speech on a matter of public concern through his ALE findings. Therefore, I would affirm the district court’s dismissal of Perry’s First Amendment claim premised on speech in his ALE findings, albeit on a different ground than that articulated by the district court.

The majority also holds that Perry’s internal grievance of racially disparate treatment is a matter of public concern. I disagree. A determination of whether speech involves a matter of public concern must be based on the content, form, and context of a given statement, as revealed by the whole record. Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). While discussing Givhan v. Western Line Consolidated School District, 439 U.S. 410, 415-16, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979), the Supreme Court has indicated that racial discrimination is “a matter inherently of public concern.” Connick, 461 U.S. at 148 n. 8, 103 S.Ct. 1684. The Court also noted, however, that the speech at issue in Givhan was “not tied to a personal employment dispute.” Id. Furthermore, this court has determined that “[t]he fact that an employee alleges discrimination on the part of a public employer is not itself sufficient to transform the dispute into a matter of public concern.” Jackson v. City of Columbus, 194 F.3d 737, 746 (6th Cir. 1999). In Jackson, a public employee alleged that his right to freedom of speech was violated when the city imposed a gag order on him, forbidding him from speaking with the news media about an investigation into his alleged misconduct while the investigation was pending. See id. The court focused on several points when holding that Jackson had sufficiently alleged that his speech involved a matter of public concern. First, the court noted that Jackson was not an ordinary employee, but a high-profile member of the community. Id. at 747. Furthermore, the court indicated that “[bjecause the investigation involved allegations of corruption and abuse of power within the Division of Police, as well as the City’s allegedly racial motivations, the gag order could be construed as covering more than a private employment dispute.” Id. (emphasis added). Unlike the plaintiff in Jackson, there is no indication that Perry is alleging speech regarding anything other than his personal employment dispute.

The case relied upon by the majority, Chappel v. Montgomery County Fire Protection District No. 1, 131 F.3d 564 (6th *611Cir.1997), does not alter my conclusion. In Chappel, the public employee spoke about his concerns as to serious problems with the finances and management of the fire and ambulance districts in his area. Chappel had a personal motivation for the speech: if enough people agreed with his concerns, his career could benefit. However, this court did not deem Chappel’s desire to gain from his speech as disposi-tive, even assuming that his predominant motivation for the speech was to secure a job for himself. See id. at 578. Instead, the court determined that the context showed Chappel’s speech was on a matter of public concern because he addressed matters “near the zenith” of .public concern, he raised the matters repeatedly in public fora (although the court noted that Chappel’s private speech was also protected), his “speech on these .matters was almost entirely undiluted by speech indicating purely personal interests,” and there was strong public interest in his speech. Id. at 578. Unlike Chappel, however, Perry’s speech addresses only his personal interests.

For these reasons, I would affirm the district court’s dismissal of Perry’s free speech claim arising from his workplace complaints of race discrimination because his speech involved only a personal employment dispute, not a matter of public concern.

Finally, because I would affirm the dismissal of Perry’s First Amendment allegations, I would also affirm the dismissal of his substantive due process claim.

. If I were to consider the issue in Part III. A.2.b, however, I would agree with the majority opinion to the extent that it suggests the district court erred in determining that application of the Pickering test could only favor appellees.