Yinger v. City of Dearborn, 94-1225
| Decision Date | 19 September 1995 |
| Docket Number | No. 94-1225,94-1225 |
| Citation | 66 F.3d 327 |
| Parties | NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Brian YINGER, Plaintiff-Appellant, v. CITY OF DEARBORN, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before: JONES and RYAN, Circuit Judges; and MATIA, District Judge. *
Appellant Brian Yinger appeals, on federal and state constitutional free speech and due process grounds, the district court's grant of summary judgment in favor of defendants, City of Dearborn and Police Chief Ronald Deziel, in this action challenging the defendants' adverse employment decisions. On appeal, we are asked to decide (1) whether Yinger's discipline, lowered promotional score and forced medical leave without pay constitute retaliation for the exercise of his free speech rights, (2) whether Yinger's speech was a substantial and motivating factor leading to the imposition of an unpaid medical leave, (3) whether the defendants violated Yinger's substantive due process rights by placing him on unpaid medical leave, (4) whether Chief Deziel was entitled to qualified immunity on the First Amendment claim, (5) whether the city of Dearborn is liable under the Michigan Constitution for Yinger's free speech and due process claims and (6) whether the district court properly ruled that Yinger was not wrongfully discharged. For the reasons that follow, we affirm the district court's grant of summary judgment in defendants' favor.
Corporal Yinger began his employment with the City of Dearborn Police Department in 1977. In his sixteen-year career with the Police Department, Yinger was reprimanded on at least twelve occasions. The particular incident leading to the commencement of this lawsuit concerned Yinger's September, 1992 reprimand for the use of the international "7" in his handwritten reports.
The record shows that as early as 1983, Yinger was ordered to cease using the international "7" by a superior officer. Yinger failed to follow the order over the years, whether through inadvertence or intent, and apparently failed to follow the same order in 1992. A trial board hearing followed, at which time Chief Deziel found Yinger guilty of insubordination, imposed a three-day suspension without pay and ordered Yinger to be evaluated by an Employee Assistance Plan provider within ten days for fitness for duty. It is undisputed that the disciplinary action Yinger received generated a tremendous amount of media attention.
The basis for the suspension and referral is disputed. According to Yinger, the manner in which he wrote the number "7" was only a pretext for the real reason. Yinger alleges that he was the victim of retaliation for being suspected of informing the Detroit Free Press of a ten-month coverup by defendants of the drunk driving arrest of a Dearborn police inspector. However, it is Yinger's position that he never informed the press of the coverup, and it is the defendants' position that Chief Deziel never suspected him of informing the press. According to defendants, Yinger was referred to a psychologist because, inter alia, he had been the subject of more disciplinary action in eight years than any other officer on the force with up to twenty-five years of experience.
In accordance with the trial board judgment, Yinger submitted to an evaluation by psychologist Mary Ann Hamlin, Ph.D., who found Yinger fit for duty. Yinger was reimbursed for the three days of lost pay after the union filed a grievance on his behalf in the matter.
On May 13, 1993, Yinger appeared at a Civil Service Commission meeting to object to a performance evaluation score. Both Chief Deziel and the City of Dearborn Personnel Director became concerned about Yinger's behavior at the meeting and thus ordered Yinger to see Dr. Hamlin once again for an evaluation of his fitness for duty. Dr. Hamlin concluded that Yinger was not fit for duty.
The parties wanted a second opinion regarding Yinger's mental status. Union representatives recommended two doctors to Yinger for this evaluation, from which he selected Dr. Panyard. On June 4, 1993, Yinger was placed on leave with pay and benefits pending the examination by Dr. Panyard. In a report dated June 22, 1993, Dr. Panyard concluded that Yinger was not fit for duty. In response to this report, Yinger was placed on a sixty-day medical leave, with the proviso that he receive counseling from a qualified approved professional and furnish a report to defendants every thirty days. He has failed to do so, and remains on medical leave to this day.
During his leave, Yinger hired Doctor Abramsky to provide an opinion as to his mental status. Dr. Abramsky concluded that he saw no evidence that Yinger was not fit for duty. The defendants, in possession of three psychological reports, two finding Yinger unfit and one finding him fit, suggested that the matter be resolved by either Dr. Hamlin, Dr. Panyard or a third doctor to be agreed upon by Drs. Hamlin and Abramsky or appointed by the Court. The parties ultimately agreed on a doctor to perform the evaluation, which doctor found Yinger fit for duty. However, the information which Yinger provided to the doctor was incomplete regarding his military background. Consequently, the doctor stated that he was willing to reevaluate Yinger in light of Yinger's complete background, once Yinger provided verification of his military experience. To date, Yinger has produced nothing and remains on leave--with the ability to return to duty once he complies with the aforementioned requirements and is found fit for duty.
Review of a grant of summary judgment is de novo, using the same test utilized by the district court in determining whether summary judgment is appropriate. Deaton v. Montgomery County, Ohio, 989 F.2d 885, 887 (6th Cir.1993). Summary judgment is proper only if, after viewing the evidence in a light most favorable to the nonmovant, we find that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); White's Landing Fisheries, Inc. v. Buchholzer, 29 F.3d 229, 231 (6th Cir.1994).
Yinger's primary complaint is that the defendants violated his federal and state constitutional rights to speak freely on matters of public concern. It is clearly established that a public employer may not take adverse employment action against an employee on a basis that infringes that employee's constitutionally protected interest in freedom of speech. Williams v. Commonwealth of Kentucky, 24 F.3d 1526, 1534 (6th Cir.1994) citing Rankin v. McPherson, 483 U.S. 378, 383, 107 S.Ct. 2891, 1896, 97 L.Ed.2d 315 (1987).
Claims of retaliation for engaging in conduct protected by the First Amendment are evaluated pursuant to a multi-part test. Roberts v. Van Buren Public Schools, 773 F.2d 949, 953 (8th Cir.1985). First, the plaintiff must demonstrate that his speech was protected. Second, he must demonstrate that the protected speech was a substantial or motivating factor in the adverse employment decision. Third, the defendant employer will prevail if it can show that the employment action would have been taken even in the absence of the protected speech. Id. at 953-954, citing Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977); see also Thompson v. McDowell, 661 F.Supp. 498, 499-500 (E.D.Ky.1987).
Identification of protected speech is a two-step process in itself.
As a threshold matter, the speech must have addressed a "matter of public concern," (citations omitted); then, the interest of the employee in so speaking must be balanced against "the interest of the State, as an employer, in promoting the efficiency of the public service it performs through its employees." Pickering, 391 U.S. at 568, 88 S.Ct. at 1735. This "Pickering balance," as it has come to be known, looks to the following factors:
(1) the need for harmony in the office or work place; (2) whether the government's responsibilities require a close working relationship to exist between the plaintiff and co-workers when the speech in question has caused or could cause the relationship to deteriorate; (3) the time, manner, and place of speech; (4) the context in which the dispute arose; (5) the degree of public interest in the speech; and (6) whether the speech impeded the employee's ability to perform his or her duties. (citation omitted)
The threshold inquiry, whether the speech at issue addresses a matter of public concern, is a question of law. Williams, 24 F.3d at 1534; Brown v. City of Trenton, 867 F.2d 318, 321 (6th Cir.1989). If we find that the plaintiff's speech does not address a matter of public concern, no further inquiry is necessary. Brown, 867 F.2d at 321. If, on the other hand, we find that the plaintiff's speech does address a matter of legitimate public concern, then we must determine if the plaintiff's interest in speaking freely is outweighed by the state's interest in promoting the efficiency of its public services. Williams, 24 F.3d at 321 citing Rankin, 483 U.S. at 388.
In determining whether a plaintiff's speech relates to matters of public concern, we must examine both the content and context of the employee's speech. Connick v. Meyers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). If we find that "the employee's personal interest qua employee predominates over any interest he might have as a member of the general public," we must find that the speech is not protected. Brown, 867 F.2d at 322.
One of the significant factors to be initially considered in deciding whether the "speech" relates to "a matter of public concern" is the subject-matter of the speech or action. If the speech...
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