845 F.3d 677 (6th Cir. 2017), 16-1245/1249, Gillis v. Miller

Docket Nº:16-1245/1249
Citation:845 F.3d 677
Opinion Judge:CLAY, Circuit Judge.
Party Name:MATTHEW GILLIS (16-1245); FRED WALRAVEN (16-1249), Plaintiffs-Appellants, v. JOHN MILLER; in his official and individual capacities; BAY COUNTY SHERIFF'S DEPARTMENT, Defendants-Appellees
Attorney:Russell C. Babcock, THE MASTROMARCO FIRM, Saginaw, Michigan, for Appellants. Kenneth G. Galica, Daniel A. Klemptner, JOHNSON, ROSATI, SCHULTZ & JOPPICH, P.C., Farmington Hills, Michigan, for Appellees.
Judge Panel:Before: MOORE and CLAY, Circuit Judges; HOOD, District Judge.[*] CLAY, J., delivered the opinion of the court in which HOOD, D.J., joined. MOORE, J. (pp. 16-23), delivered a separate dissenting opinion. KAREN NELSON MOORE, Circuit Judge, dissenting. KAREN NELSON MOORE, Circuit Judge, dissenting.
Case Date:January 06, 2017
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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845 F.3d 677 (6th Cir. 2017)

MATTHEW GILLIS (16-1245); FRED WALRAVEN (16-1249), Plaintiffs-Appellants,

v.

JOHN MILLER; in his official and individual capacities; BAY COUNTY SHERIFF'S DEPARTMENT, Defendants-Appellees

Nos. 16-1245/1249

United States Court of Appeals, Sixth Circuit

January 6, 2017

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Eastern District of Michigan at Bay City. No. 1:14-cv-12518-Thomas L. Ludington, District Judge.

ON BRIEF:

Russell C. Babcock, THE MASTROMARCO FIRM, Saginaw, Michigan, for Appellants.

Kenneth G. Galica, Daniel A. Klemptner, JOHNSON, ROSATI, SCHULTZ & JOPPICH, P.C., Farmington Hills, Michigan, for Appellees.

Before: MOORE and CLAY, Circuit Judges; HOOD, District Judge.[*] CLAY, J., delivered the opinion of the court in which HOOD, D.J., joined. MOORE, J. (pp. 16-23), delivered a separate dissenting opinion. KAREN NELSON MOORE, Circuit Judge, dissenting.

OPINION

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CLAY, Circuit Judge.

Plaintiffs Matthew Gillis and Fred Walraven, former correctional officers at the Bay County Jail in Bay City, Michigan, appeal from the district court's adverse grant of summary judgment on their First Amendment retaliation claims against Defendants, the Bay County Sheriff and Sheriff's Department. Plaintiffs allege that they were terminated from their positions at the jail in retaliation

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for posting a memorandum notifying their fellow correctional officers of their right to union representation during an investigation into prescription drug trafficking at the jail. The district court concluded that Plaintiffs' memorandum was not protected speech because it did not touch on matters of public concern, and that even if it had, Plaintiffs' speech interests were outweighed by Defendants' interest in obtaining compliance from the correctional officers with their investigation. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. For the reasons set forth below, we AFFIRM the district court's judgment.

BACKGROUND

I. Factual Background

Plaintiffs Matthew Gillis and Fred Walraven were Correctional Facility Officers at the Bay County Jail. Walraven was also a sergeant at the jail, and Gillis was the President of the Bay County Corrections Officers Union. Gillis resigned his employment with the Bay County Jail on February 27, 2014, and Walraven's employment was terminated on April 15, 2014.

Defendant John Miller is the Sheriff of the Bay County Sheriff's Department, the other named defendant in this case. The Bay County Sheriff's Department is the law enforcement agency tasked with administering the Bay County Jail.

In early 2014, an investigation began into alleged misconduct at the jail. Sheriff Miller learned that one of his deputies had procured prescription mouthwash for an inmate. The inmate suffered from severe halitosis and periodontal disease, and was unable to receive treatment for the condition at the jail. The deputy's wife worked as a dental assistant and procured a prescription in her name for a periodontal mouth rinse. The deputy then picked up the prescription that had been written for his wife, scratched off her name and their home address, and placed the prescription in a jail office with specific instructions about giving the medicine to the inmate.

News quickly spread around the jail that an inmate had been given this prescription mouthwash, and several inmates began to speculate that the mouthwash contained codeine, a controlled substance. This news prompted prison management to conduct an investigation into potential prescription drug trafficking at the jail, which concluded on February 27, 2014.

During the investigation, Gillis began receiving complaints from staff regarding management's conduct during the investigation. At least five individuals complained to Gillis about management's interrogations. Two individuals reported that management threatened them and said " [i]f you don't have anything to hide, why would you need union representation[?]" (R. 29-14, Gillis Deposition, PageID #2957.)1 The record reflects that some of the jail's staff felt intimidated by management's investigation tactics.

In response to the complaints he received from other jail staff, Gillis worked with Walraven to draft and post a memorandum informing jail staff of their rights under NLRB v. J. Weingarten, Inc., 420 U.S. 251, 95 S.Ct. 959, 43 L.Ed.2d 171 (1975). Walraven drafted the initial notice, and Gillis performed the final edits. The Weingarten memorandum is central to both Walraven's and Gillis' cases. Both plaintiffs allege that they were retaliated against by Defendants because they were

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involved with posting the memorandum. The memorandum was addressed to the " Bargaining Unit" from " President Matt Gillis" and stated: Re: Weingarten Rights

Hello everyone I would like to express my gratitude in being your Union President. I feel there is a very important issue that needs to be discussed. Many deputies have been notified they need to report to a superior officer for some type of investigatory interview or investigation. When you are summoned before a superior officer, I strongly suggest you state these words before you say anything else. " If this discussion could in any way lead to me being disciplined or discharged, I request that my Union representative be present at the meeting. Without representation, I choose not to answer any questions." These rights also cover yourself in the event someone else may be disciplined due to your statement. I am in no way advising you not to cooperate with management, just advising you of your rights.

It is your responsibility to ask for the representation. It is not the responsibility of management to advise you of this. Attached are the actual Weingarten Rights. Please review them as they are extremely important for yourself and everyone else. Even if you don't think you need representation, it has been proven it is better to have another set of ears as sometimes words are taken out of context.

In conclusion you have the right to discuss union matters with your Union President and Vice President. Some of you may have been ordered not to discuss what was said in a meeting with your superiors. I strongly recommend you advise us of what happened for your protection and others. Again, thank you for your time and I look forward to working with everyone.

Respectfully,

Matt Gillis (POLC LOCAL)

(R. 29-15, Weingarten Memorandum, PageID #3106 (emphasis in original).) Sheriff Miller summoned Gillis to the Undersheriff's office on February 13, 2014, the day after Gillis posted the Weingarten memorandum. Sheriff Miller threw the notice across the table, asked who wrote it, and declared to Gillis that " I will have you know I can have you prosecuted for interfering with an ongoing investigation for posting this memo." (R. 29-14 PageID #2960.)

The investigation into Walraven began after an anonymous note, known in the jail as a " kite" was slipped under the Undersheriff's door in January 2014. The note suggested that the jail administrators review certain security camera footage from the evening shifts, when Walraven was the supervisor. The footage revealed that the corrections officers " engaged in numerous unacceptable activities, including cell phones in the jail, playing cards for extended periods of time, damaging jail property, conducting outside business when in the jail[,] not monitoring video security cameras as necessary[,] and various other violations of department policy." (R. 25-14, Cunningham Affidavit, PageID #2286.)

Walraven was placed on administrative leave on February 18, 2014. Walraven was told that he was being placed on leave because of " an investigation of allegations of misconduct by you." (R. 29-16, Walraven Record, Administrative Leave Letter, PageID #3107.) Walraven's employment was terminated on April 15, 2014.

An investigation into Gillis began on February 26, 2014. A former inmate at the Bay County Jail alleged that Gillis engaged in a sexual relationship with her

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during her time in custody and after her release but while under court supervision. Gillis initially denied involvement with the individual, but ultimately admitted involvement and resigned as a corrections officer. Gillis alleges that he was constructively discharged on February 27, 2014, one and a half weeks after he posted the Weingarten memorandum.

II. Procedural History

Both Plaintiffs brought suit against Defendants in the United States District Court for the Eastern District of Michigan. Plaintiffs assert claims under 42 U.S.C. § 1983, and argue that they were discharged in retaliation for posting the Weingarten memorandum in violation of the First...

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