Opinion
Case No. 5:98-CV-012.
March 30, 2001.
ORDER AND JUDGMENT
In accordance with the Findings of Fact and Conclusions of Law filed this date:
IT IS HEREBY ORDERED that JUDGMENT is entered in favor of the defendant, and plaintiff's action against him is DISMISSED in its entirety.
FINDINGS OF FACT AND CONCLUSIONS OF LAW I. Introduction.
In this action, plaintiff Herbert Magley claims that defendant Rufus Wright violated plaintiff's First Amendment free speech rights in two ways: first by taking retaliatory actions against plaintiff for plaintiff's exercise of those rights and second by censoring plaintiff's speech. Plaintiff seeks to impose liability on defendant for these violations pursuant to 42 U.S.C. § 1983.
This action was tried without a jury on April 17 and 18, 2000. Near the close of defendants' proofs on April 18, plaintiff raised an objection to defendant's offer of the deposition testimony of a particular witness, Charles Bianchi, by deposition. The issue was ultimately resolved by permitting the parties to again conduct the deposition of Bianchi. Defendant then submitted the deposition of Bianchi and plaintiff submitted additional rebuttal testimony by way of deposition. Thereafter, the Court heard final closing arguments.
Pursuant to Federal Rule of Civil Procedure 52(a), the court's findings of fact and conclusions of law with regard to these issues are set forth below.
II. Findings of Fact.
Resolution of this dispute requires analysis of a series of isolated incidents which occurred over a two-year period, several years prior to trial. For the most part, the parties did not contemporaneously memorialize these events in documents and the respective recollections of these events by plaintiff, defendant, and third parties is hopelessly inconsistent. As a result, the court has been forced to reconstruct in some detail events which the parties now recall in contradictory ways.
This dispute centers on events which occurred while plaintiff Magley was assigned by his employer, the Michigan Department of Corrections (the "MDOC"), to work at the MDOC's Camp Branch facility. During this same period of time, defendant Wright was also employed by the MDOC at the Camp Branch facility, as a sergeant in charge of the public works program.
The MDOC's security classification for Camp Branch is Level 1. That is the lowest possible level of security for MDOC correctional facilities. Camp Branch houses only women and the women housed there are typically close to being paroled or otherwise released. Through Camp Branch's public works program, the MDOC offers certain inmates the opportunity to work at public facilities outside the camp. The Hillsdale Community Health Center ("Hillsdale hospital") is one of the public facilities that contracts with Camp Branch for prisoner workers. The president of the hospital testified that the 15-year program has run without a problem. The hospital's director of environmental services, housekeeping and safety, Helen Bernath, who trained the prison workers, testified as to the training the workers received and said none had ever become ill because of hazardous materials, none had escaped, and none had been caught stealing. In fact, prisoners on occasion had turned in money they found.
Although the record is unclear as to when Magley started working in the public works program at Camp Branch, the court finds that Magley was in the public works department as supervisor for the prisoner crew that worked at the Hillsdale Community Health Center, and as such worked under the supervision of defendant Sgt. Wright, by September of 1995. Prior to this, plaintiff also worked at least at one other public works location.
As supervisor for the prisoner crew at the hospital, Magley was responsible for getting his work crew in the van for transportation to the work location, for transporting them to the location, for bringing each crew member to the area that the crew member would be working for the day, for directly supervising the crew working outside, for periodically checking on all crew members, for gathering the crew at the end of the work day, and for transporting them back to Camp Branch. In performing these tasks at the hospital, Magley had regular contact with Bernath and Mike Brink, the director of maintenance.
In November 1995, however, Magley was removed from this assignment when it was discovered he was using a cell phone in violation of MDOC rules. Three months later he went to see the president of the hospital and this unannounced visit led to a memo from defendant barring such behavior in the future. This lawsuit followed.
Many of the incidents raised in this case, however, occurred before Magley was ever assigned to supervise the crew at Hillsdale hospital. For example, a year before that assignment, Magley noted that the names and prisoner numbers of prisoners assigned to public works detail did not always match. Magley raised this as a security matter to Sgt. Wright's superior, Lt. Lowande.
Magley claims that Sgt. Wright chastised him for going over Magley's head and instructed Magley to come to defendant first with such issues.
Wright acknowledged that the public works program had suffered some problem with incorrect prisoner numbers and that this was a problem raised by other supervisors as well; however, Wright asserted that it was a matter of typographical errors by inmate clerks, that no prisoner had ever gone on a public works assignment when she was not supposed to go, and that the problem had been corrected.
Magley also claims that defendant wrote a false disciplinary memorandum against Magley for failing to return his logbook to the proper location after his shift. Defendant Wright offered into evidence a memorandum he had drafted to Magley reminding Magley that he was to turn in his logbook and meet with Wright at the end of each day. Magley admitted on cross-examination that he did not receive any sanctions as a result of this memo, nor did he grieve the matter. Although Magley claims he could not return his logbook to the proper location because there was a meeting going on in that room, Wright claims Magley is missing the point: the memorandum was not simply about the logbook but more importantly about missing a meeting with defendant Wright — Magley's superior — which was to occur when Magley turned in his logbook. A review of the memo supports Wright's contention that the logbook was only one aspect of the memo. In either event, there is no evidence of discipline relating to this incident. This incident occurred almost a year before Magley began working with the Hillsdale hospital crew and, I find, was unrelated to incidents occurring at that facility.
Magley further claims that the memorandum was typed by a prisoner thereby undermining plaintiff's authority with the prisoners. Magley conceded under cross-examination, however, that he did not see a prisoner type it, but only believed a prisoner did. Sgt. Wright, on the other hand, testified he typed the memo, and that inmate clerical help did not type memos to staff. Based on the testimony of Wright, the court finds that Wright typed the memorandum, not a prisoner.
Magley further alleges that Sgt. Wright pursued frivolous investigations of Magley. One related to a complaint by a prisoner named Thompkins and another involved waking prisoners in the middle of the night to question them. The evidence presented with regard to the Thompkins investigation revealed that Sgt. Wright conducted the investigation in September 1994 and that the complaint of the prisoner was frivolous. Documents admitted into evidence reveal that a prisoner named Thompkins complained that Magley had threatened her. Sgt. Wright was called upon to perform the investigation of the complaint. He interviewed several of the prisoners who were on the public works crew on the day the alleged incident occurred and received a written statement from Magley regarding the matter. Wright's conclusion, however, was that the prisoner had made up the allegation. Wright wrote a major misconduct ticket against the prisoner.
Although the complaint turned out to be frivolous, there is nothing in the record to suggest that the investigation itself was frivolous. There is also nothing in the record to support Magley's claim of an additional investigation which involved Wright's waking of prisoners in the middle of the night to question them about Magley. Wright did testify that the times he conducted investigations would depend on the work shifts. This incident occurred a year prior to Magley's assignment to the Hillsdale hospital detail.
Magley claims that Wright refused to permit Magley to wear certain clothing while he was working. Based on the evidence presented, I find Wright instructed Magley that a "cowboy coat" or leather duster, certain cowboy boots, and a leather cap were not appropriate attire under MDOC guidelines. With regard to the coat, Magley was denied reimbursement for the purchase of the coat. A counseling memorandum from Sgt. Wright to Magley was submitted into evidence. There was no evidence that Magley suffered any discipline as a result of the memorandum. The deposition testimony of Lt. Lowande reveals that Lowande was the driving force behind the memorandum and the reimbursement denial came from Assistant Deputy Warden Huffman. Again, this incident occurred prior to Magley being assigned to the Hillsdale hospital.
When Magley began working at the hospital, he maintains he encountered additional problems. Magley claimed the hospital ignored important safety and security issues, that prisoners working at the hospital were left unsupervised near needles, drugs, and patients, and that prisoners engaged in improper fraternization. Magley claims he raised these issues several times with Bernath and Brink but they did nothing to correct them. According to those individuals, however, Magley raised the issues only once, when he first started. When they explained to Magley how things were done at the hospital and the reasons for doing things those ways, he never raised the issues again. I find this testimony credible.
In November 1995, during a conversation with Sgt. Wright, Brink mentioned that Magley had been using a cellular phone on the job. Since the use of such a phone would violate MDOC policy, Sgt. Wright reported the matter to Lt. Lowande who started an investigation. The investigation revealed that Magley had such a phone in his possession and that the phone had been used repeatedly to call a number that reportedly belonged to the mother of a woman recently released from prison. Magley was removed from the public works assignment by the end of Novembcr 1995, and thereafter was subjected to disciplinary action for the violation.
The disciplinary action against Magley was still working its way through the procedures established by the collective bargaining agreement between the MDOC and Magley's union, in March of 1996. On March 22, 1996, Magley and a union steward, L. Hartle, made an unscheduled appearance at the hospital. Magley contended from the beginning of the trial that this meeting was for the purpose of reporting security violations at the hospital to the hospital's president. Therefore, Magley argues, it was speech of a public concern and led to retaliation against him. Wright, on the other hand, contends that the purpose of this meeting was simply to discuss a private employment matter concerning Magley's use of the cell phone and Brink's reporting this use. Based on the testimony of the various participants at the meeting, and the other evidence of record discussed below, I find that the purpose of the meeting was indeed to discuss the cell phone issue and Magley's belief that a hospital employee, Brink, was trying to get Magley fired.
Plaintiff and his union representative appeared at the office of Bianchi, president and chief executive officer of the hospital. Bianchi testified he found the meeting to be "disruptive", in that, "I usually don't have meetings such as that without A, consulting legal counsel, and B, without an appointment." (Bianchi Dep. at 12.) Bianchi promptly called additional hospital personnel, Mr. Larsen, the Chief Financial Officer (and Brink's Supervisor), and Brink into the meeting. The meeting lasted only a few minutes.
Bianchi , Larsen and Brink all testified that the only thing discussed at the meeting was the cellular telephone, and that issues of hospital safety and security were not discussed. Indeed, Bianchi testified that if any such issues had come up, he would have created a paper trail and there was none here.
Also of significance on this point are the written statements of Magley and his union representative made shortly after the meeting. Responding to written questions about this meeting in April 1996, Magley gave the following answers:
5. Did you have a meeting with Mr. Bianchi on March 22, 1996? If yes, who was present at this meeting?
Answer: Yes Union Steward Hartle. . . .
7. What was the purpose of your meeting with Mr. Bianchi?
Answer: Union business. . . .
10. Were any of the questions that you asked in this meeting directly related to the investigation done on you in November/1995?
Answer: Union Steward Hartle asked the questions. . . .
15. Did you question anyone in the meeting of 3/22/96? If yes, who?
Answer: No, the union did.
16. Who authorized you to contact Mr. Bianchi and conduct an investigation of his staff?
Answer: The union — no investigation of staff.
Exhibit — Page I-3, 1-4.
In answers to questions about the same meeting, union steward Hartle stated:
5. Did you set LIP this meeting with the hospital officials?
Answer: I asked c/o Magley to set tip this meeting with my knowledge because I didn't know who to contact. . . .
6. What was your role in this meeting? Be specific.
Answer: To ask whoever, a Mr. Brink as it turned out, if he made any statements about c/o Magley using a cellular phone because it was not on his memo but was on [R.W. Wright's] statement to Lt. Lowande . . .
7. Did you question Mr. Bianchi, Mr. Larsen, or Mr. Brink? If yes, what questions did you ask?
Answer: I asked the above questions to Mr. Brink. . . .
8. Have you been authorized to conduct investigations? If yes, by whom'?
Answer: Yes, by MCO union contract as in CDW Camp Steward. . . .
9. Did you identify yourself as DOC Employee representing c/o Magley as his MCO union representative?
Answer: I don't recall telling them I was a DOC Employee, but I did tell them I was representing c/o Magley as his union steward
. . . .
15. Did you say to anyone that c/o Magley had asked you to accompany him to the meeting of March 22, 1996? If yes, who?
Answer: Yes, to MCO officials and to Lieutenant Lowande. . . .
Exhibit I-5, I-6.
All of this testimony is consistent as well with Wright's testimony that the union at this point in time was trying to get the cellular phone charge pending against Magley thrown out.
I find the evidence is overwhelming that this short meeting was for the singular purpose of resolving Magley's question about whether an employee of the hospital (Mr. Brink) was trying to get him fired because of his use of a cellular telephone phone, and that was all that was discussed.
Brink testified that after the meeting, Bianchi made it very clear to Brink that he was very upset Magley had shown up unannounced. Brink, at the instruction of Bianchi, called Sgt. Wright and informed him of the meeting. Brink was emphatic that they expected that communications between the hospital and the MDOC would follow a chain of command and would come from Sgt. Wright and disclosed that Bianchi was not happy about the interruption in his day. Wright's testimony was consistent with this. Wright testified that he was told that the hospital personnel at the meeting were upset that they continued to have contact with Magley, and that Bianchi and Brink did not want Magley back at the hospital.
Wright reported the matter to Lt. Lowande, disclosing concern that the relationship between the hospital and the MDOC might be in jeopardy if Magley, who was no longer assigned to the hospital detail, was permitted to continue contacting hospital personnel.
It appears this fear was not unfounded. Following the meeting and Brink's call to Wright telling him about it, Wright spoke to Magley the same day. Magley stated that Brink's telephone call about the meeting was a form of harassment and he was not going to take it. Magley said he was going to call Bianchi and file a harassment and retaliation complaint against Brink because Brink had notified Wright of the meeting. According to Wright, it was when he told Lowande of this threat that he was instructed to tell Magley not to attempt further communications with the hospital staff.
Sgt. Wright was told to give Magley an instructional memorandum (Exhibit I-1) directing Magley not to have contact with hospital personnel unless he contacted Lt. Lowande or defendant first, which Wright did on March 27, 1996. Sgt. Wright was no longer Magley's supervisor, since Magley no longer handled work crews outside the camp, but he issued this memo because it concerned the public works section for which Wright was responsible. Although Magley interpreted this as a blanket prohibition, Wright also testified that he told Magley that the restriction. was because the cell phone disciplinary investigation was ongoing and Magley was interfering with it.
Wright was also instructed to conduct an investigation regarding Magley's meeting with hospital personnel and he informed Magley of the investigation. Wright conducted the investigation, completed a report, made no recommendation, took no action, and turned the matter over to Assistant Deputy Warden Huffman. (Exhibit I-15). There was no evidence that Magley was ever disciplined for the meeting.
III. Conclusions of Law
This section also contains some findings of fact which will be considered as such.
Magley claims that Wright violated Magley's First Amendment rights by retaliating against Magley for his exercise of those rights and by putting in place a gag order that precluded Magley from speaking to persons at the Hillsdale Community Health Center. Each claim is discussed below.
A. Retaliation
To succeed on a claim of retaliation in violation of the First Amendment, a public employee must prove the following elements: (1) that he was engaged in a constitutionally protected activity (here speech); (2) that an adverse action was taken against him that would defer a person of ordinary firmness from continuing to engage in that activity; and (3) that there was a causal connection between the speech and the adverse action — that is, the adverse action was motivated at least in part as a response to the exercise of plaintiffs constitutional right of free speech. Leary v Daeseher, 228 F.3d 729 (6th Cir. 2000) ; Sowards v. Loudon County, 203 F.3d 426, 431 (6th Cir. 2000); see also, Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287 (1977).
Moreover, since Magley was a public employee, he must make additional showings to demonstrate that his speech was protected. Leary, supra, at 736-37. First, he must show that his speech touched on matters of public concern. See, Connick v. Myers, 461 U.S. 138, 146 (1983). Second, Magley's interest as a public employee "in commenting upon matters of public concern" must be found to outweigh "the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering v. Board of Education, 391 U.S. 563, 568 (1968); see Connick, 461 U.S. at 149-52; Leary, supra: Bogey v. Wayne County, 950 F.2d 316, 322 (6th Cir. 1991). Here, Magley's claims fail because he has tailed to establish all of these elements with respect to any of his retaliation claims.
If plaintiff had been able to demonstrate the requisite elements set forth above, the burden would shift to defendant to show by a preponderance of the evidence that he would have taken the same action even in the absence of protected conduct. Leary, supra: Jackson v. Leighton. 168 F.3d 903, 909 (6th Cir. 1999). Based upon the evidence put before the court, I believe Wright would have carried that burden for the reasons discussed infra.
1. Adverse Employment Actions
"Before plaintiff can establish a First Amendment violation, [he] must show that [he] was subjected to a legally actionable personnel decision." Kreuzer v. Brown, 128 F.3d 359, 363 (6th Cir. 1997). The types of decisions are often terminations, failures to promote, or transfers; however, other less harsh actions may also be actionable. Rutan v. Republican Party of Illinois, 497 U.S. 62, 75 (1990). Indeed, the Supreme Court in dicta supported the suggestion that an adverse action "`as trivial as failing to hold a birthday party for a public employee . . . when intended to punish her for exercising her free speech rights[,]'" id. at 76, n. 8, might be sufficient to support a First Amendment retaliation claim. The Sixth Circuit has not accepted the Supreme Court dicta in Rutan as properly stating the level of adversity which must exist to give rise to a First Amendment retaliation claim. See Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999). In Thaddeus-X, the court indicated that, to be actionable, retaliation must be likely to "chill a person of ordinary firmness from continuing to engage" in activity protected by the First Amendment. Id. at 397-398.
Whether a particular action by an employer is sufficiently adverse as to rise to a First Amendment retaliation claim depends on the course of conduct between the parties in each case. Nonetheless, courts have not hesitated to identify certain actions which, without more, do not suffice. For example, the Fifth Circuit has held that an employer's commencement of an investigation is not enough. Pierce v. Texas Dept. of Criminal Justice, Institutional Div., 37 F.3d 1146 (5th Cir. 1994). Similarly, criticisms, accusations, threats, or "bad mouthing" are not enough. See, i.e., Suarez Corp. Ind. v. McGraw, 202 F.3d 676 686 (4th Cir. 2000); Harrington v. Harris, 118 F.3d 359, 366 (5th Cir. 1997); Breaux v. City of Garland, 205 F.3d 150, 157-8 (5th Cir. 2000); Thomsen v. Romeis, 198 F.3d 1022 (7th Cir. 2000); Gilbrook v. City of Westminster, 177 F.3d 839, 857 (9th Cir. 1999).
In his amended complaint (docket no. 27), Magley claimed that he was subjected to several adverse employment actions as a result of his exercise of his First Amendment free speech rights. Specifically, Magley claims that Wright:
1. brought a frivolous investigation against plaintiff relative to a prisoner named Thompkins
2. became upset and chewed him out for taking security issues over defendant's head to Lieutenant Lowande;
3. prosecuted a frivolous disciplinary memorandum relating to handling of plaintiff's logbook;
4. used a prisoner to type a disciplinary memorandum thereby demeaning plaintiff in the eyes of the prisoners and undermining his authority;
5. awakened prisoners in the middle of the night for the purpose of investigating plaintiff without authorization;
6. sent a disciplinary memorandum to plaintiff that was lacking in specifics so that plaintiff could not challenge it;
7. removed plaintiff from his work detail;
8. subjected plaintiff to five shift changes in less than six months;
9. denied plaintiff overtime;
10. deliberately removed a prisoner on plaintiff's shift so as to entrap plaintiff into missing a count;
11. required plaintiff to complete an investigatory questionnaire regarding the miscount;
12. threatened plaintiff with disciplinary action if he spoke to health center personnel;
13. brought false sleeping on the job charges against plaintiff;
14. denied plaintiff winter gear; and,
15. referred sexual misconduct charges against plaintiff to the Michigan State Police.
Due to the shotgun approach in claiming these adverse actions and the difficulty in determining what instances of free speech concerns they might relate to, the court will review these allegations to see if there is evidence to show these could even be considered adverse actions in the first place. As to several of the alleged actions, for example, Magley presented no evidence to support the allegations in the complaint. Specifically, Magley presented no evidence to support the adverse employment actions referenced in paragraphs 8-11, 13 and 15 above. Accordingly, to the extent Magley's retaliation claims are premised on these alleged adverse employment actions, judgment on the claims is properly entered in favor of Wright.
As to other claims. even though Magley presented some evidence with respect to the claims, he failed to carry his burden of establishing the existence of adverse employment actions, much less that they were motivated even in part by an exercise of Magley's right of free speech. For example, the first alleged adverse action identified by Magley relates to an allegedly frivolous investigation commenced in September 1994 with regard to a prisoner named Thompkins (#1). Wright found the claim of Thompkins against Magley was frivolous and recommended disciplinary action against Thompkins, not Magley. Although the evidence establishes that the investigation took place and that the allegation was ultimately determined to be frivolous, there is no evidence that the investigation was frivolous or unwarranted. Accordingly, I find that the investigation does not constitute an adverse employment action which might constitute retaliatory conduct.
Moreover, it appears that during trial plaintiff dropped his claim shat this investigation amounted to a retaliatory action by the defendant. Transcript. Vol. I, p. 101.
Magley's second alleged adverse employment action, criticism for taking an issue over Wright's head (#2), is simply not sufficiently adverse to constitute retaliatory conduct. Based on the evidence presented, it appears Magley complained to Wright's superior, Lt. Lowande, that the prisoner numbers on the written details did not match the prisoner numbers on their identification cards. The problem was not unknown. Defendant Wright was upset that Magley had not taken the matter to him first and instructed Magley in the future that he was to follow the chain of command by bringing such issues to Wright, Magley's immediate supervisor, first. Such counseling is not sufficiently adverse to warrant consideration as retaliatory conduct, and indeed is not even inappropriate.
Magley next complains that Wright prosecuted a frivolous disciplinary memorandum regarding plaintiff's logbook (#3). The evidence presented by the parties reveals that a memorandum was written regarding the incident; however, it appears to be instructional instead of disciplinary, not frivolous, and not limited to just the logbook. More importantly, it also reminded Magley not to miss meetings with his superior. I find no evidence that the memo represented any step in the disciplinary process. Rather, the memorandum was a reminder to Magley of how he was to perform his duty. Again, such corrective criticism is simply not sufficiently adverse to qualify as retaliatory conduct, particularly where no protected speech is implicated. And there was certainly no evidence of a causal connection between this incident, which occurred the year before Magley was assigned to the hospital, and Magley making complaints to the hospital.
Magley also complains that the memo regarding the logbook was typed by a prisoner thereby undermining Magley's authority with the prisoners and demeaning him in their eyes (#4). There is no evidence to support this. Based on the testimony of Wright as previously noted, the court finds the memorandum was typed by Wright and that Magley's claim of an adverse action is unsupported on the record. Again, there is no evidence to connect this incident to any constitutional issue.
Magley contends that Wright awakened prisoners in the middle of the night in connection with an unauthorized investigation of plaintiff (#5). Magley failed to present any evidence in support of this contention. Wright acknowledged that he would conduct investigations during night hours if he were working that shift, but the only investigation he conducted relating to Magley prior to the cell phone incident was the Thompkins incident. Moreover, Magley also testified that both this incident and the Thompkins incident occurred prior to Magley being placed on the Hillsdale hospital detail. There is, therefore, no evidence to support Magley's claim of an unauthorized investigation, much less one that was in retaliation for free speech issues.
Magley also complains that Wright prepared a memorandum against Magley in 1994, before Magley was assigned to the hospital crew, that included so few specifics that Magley could not challenge it (#6). Thus issue relates to a complaint made to the MDOC by a citizen that Magley was sitting in the public works van reading a newspaper while his crew worked. The Instructional Memorandum (Exhibit D) instructed Magley that if the complaint was true, he was to stop such conduct immediately. It also instructed Magley to again familiarize himself with provisions of the MDOC Handbook regarding inattention to duty as well as the operating procedures of the public works program. Magley testified that he simply told Sgt. Wright that he was not the corrections officer involved, and `that was the end of it.' This incident also occurred in the year prior to Magley being assigned to the hospital and is unrelated to events at that facility. Here, there is no material dispute of fact, nor is there any evidence that this was an action taken in retaliation for plaintiff exercising his right of free speech.
Magley also complains that he was denied winter gear in a personal style of his own choice (#14). The testimony at trial revealed that corrections officers overseeing the public works crews were permitted to purchase winter coats and, if they met certain guidelines, the MDOC would provide reimbursement. Magley purchased a long leather coat which was described by witnesses as a "duster" or "cowboy coat."
At the instruction of Lt. Lowande, Sgt. Wright informed Magley that the coat did not meet the guidelines for attire established by the MDOC. Wright instructed Magley that he was not permitted to wear the coat. On other occasions, Wright instructed Magley that he could not wear cowboy boots or an oversized belt buckle. Wright reduced these criticisms to a counseling memorandum that was placed in Magley's file. There is no indication in the record that these criticisms or the memorandum resulted in any disciplinary action. The court concludes that they do not rise to the level of adverse employment action that might support a First Amendment retaliation claim. Plaintiff also complained that he was not reimbursed for the coat; however, the refusal to reimburse came from Assistant Deputy Warden Huffman, not defendant. Like the other incidents described thus far, this one occurred prior to Magley's assignment to the Hillsdale hospital detail. None of these incidents (even if they could be considered to be adverse employment actions) have been shown to have been caused by retaliatory motives, or even related to the protected speech issues of which plaintiff complains.
Plaintiff's complaint that he was removed from his work detail (#7), on the other hand, is undisputed. There was no evidence, however, that Wright, the only defendant in this action, removed him, and Wright was not involved in the subsequent disciplinary proceeding. Accordingly, assuming the removal from the public works work detail constitutes an adverse employment action, it was not the action of this defendant.
Of Magley's fifteen alleged retaliatory adverse employment actions, the remaining one was defendant's threat of disciplinary action if Magley were to speak to hospital personnel (#12). This threat was contained in a written statement by Wright to Magley, made in response to plaintiff speaking to Bianchi at the March 22, 1996 meeting. As such, it satisfies the first three elements discussed in Leary, supra. Therefore, the court must determine if the speech at issue was protected speech.
2. Protected Speech.
As previously noted, for speech to be protected under the First Amendment in the context of a public employee, it must meet two tests: first, it must relate to a matter of public concern; and, second, it must outweigh the interests of the state as an employer in promoting the efficiencies of the public services it performs through its employees. Id.
a. Public Concern.
As the Sixth Circuit recently observed in Lucas v. Monroe County, 203 F.3d 964 (6th Cir. 2000):
The First Amendment protects speech that may be "fairly characterized as constituting speech on a matter of public concern." Chappel v. Montgomery County Fire Protection Dist. No. 1, 131 F.3d 564, 573 (6th Cir. 1997). "In order to conclude that speech addresses a matter of public concern, `this court must be able to fairly characterize the expression as relating to any matter of political. social, or other concern to the community.'" Id. at 574 (citation omitted).Lucas, 203 F.3d at 973. The Sixth Circuit elaborated on the public concern test in Jackson v. Leighton, 168 F.3d 903 (6th Cir. 1999):
In general, a matter of public concern is a "matter of political, social, or other concern to the community." Connick, 461 U.S. at 146, 103 S.Ct. 1684. It is important, however, to distinguish matters of public concern from internal office politics. Federal courts normally do not review personnel decisions reacting to an employee's behavior "when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters of only personal interest," Connick, 461 U.S. at 147, 103 S.Ct. 1684. "The mere fact that public monies and government efficiency are related to the subject of a public employee's speech do[es] not, by [itself], qualify that speech as being addressed to a matter of public concern." Barnes v. McDowell, 848 F.2d 725, 734 (6th Cir. 1988). If the speech is not related to a matter of public concern, we do not evaluate the reasons for the decision. As explained by the Supreme Court:
When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment. Perhaps the government employer's dismissal of the worker may not be fair, but ordinary dismissals from government service which violate no fixed tenure or applicable statute or regulation are not subject to judicial review even if the reasons for the dismissal are alleged to be mistaken or unreasonable.Connick, 461 U.S. at 146, 103 S.Ct. 1684 (citations omitted). To determine whether the speech involves a matter of public concern, we look to the content, form, and context of the statements in light of the record as a whole. Id. at 147-48, 103 S.Ct. 1684.
Jackson, 168 F.3d at 909-910.
Although the parties are in agreement that the meeting occurred at which the purported oral statements at issue here were made, they dispute the content and context of Magley's statements. Magley contends he approached hospital officials to discuss security and safety problems with the public works program at the hospital. Certainly these are matters of public concern that would typically enjoy First Amendment protection. The hospital personnel to whom Magley spoke, and even Magley's own union representative, however, say that Magley spoke not about safety and security, but about the role Michael Brink played in reporting Magley's use of a cellular phone on the job which resulted in discipline to Magley. Magley conceded at trial that his complaints to Bianchi vis-a-vis the cell phone were not protected activity. Transcript, Vol I-118.
Based on the documents created in connection with the investigation of Magley's contacts with the hospital officials and the testimony of the officials, the court, as noted, rejects Magley's testimony regarding the content of his speech and finds that Magley's speech related solely to the cell phone issue, a purely personal matter. Accordingly, Magley's speech was not protected by the First Amendment and his retaliation claim fails.
b. The interests of the state as an employer.
Even if Magley's speech included some passing reference to safety and security issues, he could not prevail on his claim given the interests of the state under the circumstances. In Jackson, 168 F.3d at 909-910, the Sixth Circuit explained:
Even if speech addresses a matter of public concern, however, "termination because of protected speech may be justified when legitimate countervailing government interests are sufficiently strong." Umbehr, 518 U.S. at 675, 116 S.Ct. 2342. The employee's interest must be balanced with the government's interest as an employer in maintaining an effective and efficient organization; the government need not "allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action." Connick, 461 U.S. at 151-52. 103 S.Ct. 1684. Indeed, "[t]he government's interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer." Waters, 511 U.S. at 675, 114 S.Ct. 1878.
Id.
In this instance, the government acted not only as employer, but also as a contractor. Thus, the MDOC was faced not only with preserving working relationships amongst its employees but also with preserving relationships with its customer: the hospital. The hospital was providing a valuable opportunity to the MDOC and to its inmates who were preparing to re-enter society. The documents created shortly after the incident and defendant's testimony reveal that the MDOC was concerned with preserving its partnership with Hillsdale hospital, a partnership jeopardized by Magley's uninvited and unwelcome conference with hospital officials.
According to the contemporaneous documentation, Michael Brink made clear to Wright that the hospital expected communications regarding all matters to come through Sgt. Wright or Lt. Lowande. Under these circumstances, where permitting a public employee to speak at will to the hospital officials jeopardized the MDOC's ability to continue the rehabilitative purpose of its public works program, the state's interests outweigh those of the plaintiff.
B. Censorship.
Plaintiff's second claim is closely related to his first. Magley's claim that Wright retaliated against Magley for speaking to hospital officials is, nonetheless, distinct from his claim that Wright censored any further speech by Magley to hospital officials. The analysis of such a prior restraint, however, involves many of the same legal inquiries that are part of the retaliation analysis. In Jackson v. City of Columbus, 194 F.3d 737 (6th Cir. 1999), the Sixth Circuit considered whether a "gag order" placed on an employee of the City of Columbus by the city violated the First Amendment. The court stated:
The Supreme Court has recognized that "the state has interests as an employer in regulating the speech of its employees." Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). In determining if restrictions on an employee's speech violate the First Amendment, a court must first decide whether the speech at issue can be "fairly characterized as constituting speech on a matter of public concern." Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). If not, there is generally no First Amendment violation. See id. On the other hand, if the court determines that the speech does involve a matter of public concern, then the court must consider whether the interest of the employee, as a citizen, in commenting on matters of public concern outweighs the interest of the state, as an employer, in promoting the efficiency of the public services it performs. Pickering, 391 U.S. at 568, 88 S.Ct. 1731.
Jackson, 194 F.3d at 746. Thus, as with plaintiff's retaliation claim, the content of the speech that was precluded, and the interests of the state, must be considered.
Here, the content of the speech precluded appears to be broad. The written instructions from Wright to Magley on March 27, 1996, stated "you are to refrain from any further contact with the staff of Hillsdale Hospital." (Exhibit I-1). The unrebutted testimony of Wright, however, revealed that he informed Magley that he was not to contact the hospital about any matter relating to the investigation or discipline for the cell phone issue. As discussed above, that is not a matter of public concern and, thus, not a matter entitled to First Amendment protection.
Plaintiff's counsel stated at trial that he was not interested in hearing the context in which this statement was made. But the context is important. Magley had been removed from the hospital detail several months earlier, in November 1995, while the memo in question immediately followed Magley's visit to the hospital president in late March 1996. The court has already found as a matter of fact that the purpose of this visit was to discuss the cell phone issue, which was the basis of the then-pending disciplinary proceeding. This was why Magley was accompanied by his union representative. Based on the testimony of the other four persons present, I have already determined that Magley did not attempt to discuss safety issues or security concerns while he was there. Nor had Magley made any such attempt during the intervening three months. Nor is there evidence to show Magley had ever attempted to go to the media about those matters prior to this time. Indeed, there is no contemporaneous evidence to suggest that Magley was even thinking about hospital security and safety concerns at this point in time. Taken in context, the purpose of the memo, as explained to Magley at the time by Wright, was to keep Magley from aggravating the client hospital by bothering hospital personnel with his own employment problems.
This conclusion is bolstered by the fact that a copy of the memo was sent to Magley's union representative.
Only long after the fact does Magley now claim, by taking the memo out of context and by stripping from it Wright's explanation to Magley, that this memo bars him from talking about safety and security matters, etc. I find this was not the purpose of the memo and that nobody at the time believed it to be the purpose.
But even if the memo is read in isolation, given the interests of the state in preserving its relationship with the hospital, the Court concludes that the interests of the state outweigh those of the plaintiff. Jackson, supra. This is not a case where Wright, acting on behalf of the state, attempted to prevent Magley from speaking out on matters of public concern generally. This is a case where the defendant attempted to prevent Magley from speaking to a particular listener, because the listener, an ongoing client which was providing a value service to the MDOC and its inmates, had unmistakably said it did not want to hear from Magley. This defendant did nothing to prevent Magley from raising safety and security issues, if, indeed, those were issues Magley had any intention of raising, to any other listener. Under either of these circumstances, there is not a First Amendment violation.
IV. Conclusion.
Magley first contends that Weight has violated his First Amendment rights by taking adverse employment actions against Magley in retaliation for Magley's exercise of his First Amendment rights. Of the fifteen alleged adverse employment actions, there is only one which was committed by the defendant which is sufficiently adverse to give rise to a cognizable retaliation claim, the March 27, 1996 memo. As to that one adverse employment action, the court finds that the speech that allegedly prompted the action was not on a matter of public concern. Furthermore, even if the speech included some element of public concern, Magley's right to pursue it was outweighed by the state's interest in preserving its working relationship with Hillsdale hospital.
Magley next contends that Wright violated his First Amendment rights by issuing a gag order that prevented him from speaking to hospital officials. Again, however, it does not appear that speech on matters of public concern was at issue. Moreover, on this record, the state's interest in preserving its relationship with the Hillsdale hospital outweighed Magley's interest in speaking to the hospital officials on this record.
For the foregoing reasons, I find that plaintiff has failed to prove by a preponderance of the evidence either his First Amendment retaliation claim or his claim of censorship under the First Amendment. Accordingly, defendant is entitled to a judgment of no cause of action, and the case is dismissed in its entirely.