Melvin Kindle v. City of Jeffersontown, Kentucky ( 2010 )


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                              File Name: 10a0159n.06
    
                                              No. 09-5119                                 FILED
                                                                                       Mar 15, 2010
                                                                                 LEONARD GREEN, Clerk
                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
    
    MELVIN KINDLE; BRADLEY SILVERIA;
    DIEDRA ADKINS,
    
           Plaintiffs-Appellants,
                                                          ON APPEAL FROM THE UNITED
    v.                                                    STATES DISTRICT COURT FOR THE
                                                          WESTERN DISTRICT OF KENTUCKY
    CITY OF JEFFERSONTOWN, KENTUCKY;
    CLAY      FOREMAN,      MAYOR,
    INDIVIDUALLY AND IN HIS OFFICIAL
    CAPACITY; JEFFERSONTOWN CIVIL
    SERVICE COMMISSION,
    
           Defendants-Appellees.
    
                                                  /
    
    
    BEFORE:       GUY, CLAY, and WHITE, Circuit Judges.
    
           CLAY, Circuit Judge. Plaintiffs, Melvin Kindle, Bradley Silveria, and Diedra Handy,1
    
    appeal from the district court’s order granting summary judgment in favor of Defendants, City of
    
    Jeffersontown, Clay Foreman, and Jeffersontown Civil Service Commission, in this action alleging
    
    that the City violated Plaintiffs’ rights under the Kentucky Whistleblower Act, Ky. Rev. Stat. §§
    
    61.101-103, and that the City and the Mayor violated Plaintiffs’ rights under the First Amendment
    
    
    
    
           1
           At the time Plaintiffs filed this action, Handy was known as “Diedra Adkins.” She married
    and changed her name in the interim.
    
                                                      1
    pursuant to 42 U.S.C. § 1983. For the reasons set forth below, we VACATE the district court’s
    
    order and REMAND for further proceedings consistent with this opinion.
    
                                             BACKGROUND
    
           Plaintiffs worked for the Jeffersontown Police Department (“JPD”), Kindle as a police officer
    
    and Silveria and Handy as dispatchers. On January 25, 2007, Plaintiffs were fired following a
    
    proceeding before the Jeffersontown Civil Service Commission (“JCSC” or “the Commission”).
    
    Plaintiffs were brought before the Commission after drafting and circulating a report alleging various
    
    incidents of misconduct on the part of Lieutenant Colonel Peggy Emington of the JPD, in her official
    
    capacity. Plaintiffs tendered the report to Jeffersontown Mayor Clay S. Foreman, Jeffersontown
    
    Chief of Police Colonel Fred Roemele, Emington, and members of the Jeffersontown City Council
    
    (“JCC”) as an attachment to a letter addressed to the Jeffersontown Ethics Commission (“JEC”).
    
           In September 2006, prior to filing the report, Silveria and Handy informed Roemele that
    
    Emington had created a hostile work environment that had prompted them to go on medical leave.
    
    Roemele responded that he was unable to do anything with regard to Emington because his hands
    
    were “politically tied.” (Dist. Ct. R.E. 31 Ex. 1 at 13). On October 3, 2006, while both Silveria and
    
    Handy were on medical leave, seven JPD sergeants and two JPD corporals reported allegations of
    
    misconduct by Emington to Roemele, who told Foreman about the meeting.
    
           On October 10, 2006, Plaintiffs reported to Foreman alleged violations of police department
    
    policy by Emington. Plaintiffs indicated that they had consulted an attorney and were considering
    
    filing a report pursuant to the Kentucky Whistleblower Act. Foreman told Plaintiffs to delay taking
    
    any action until after election day, which was four weeks away, because the election was consuming
    
    much of his time. Foreman asked Roemele to monitor the situation closely.
    
    
                                                      2
           On October 27, 2006, Plaintiffs tendered the report pursuant to § 61.102 of the Kentucky
    
    Whistleblower Act2 alleging: “facts and information relative to actual and/or suspected violations
    
    of laws, ordinances, policies and procedures of the City of Jeffersontown and other authorities and
    
    jurisdictions . . . [and] actual incidents and ongoing practices of mismanagement, waste, and abuse
    
    of authority occurring within the Jeffersontown Police Department and perpetrated by Lt. Col. Peggy
    
    Emington.” (Dist. Ct. R.E. 53 Am. Compl. Ex. 3). Specifically, Plaintiffs’ report alleged that
    
    Emington: (1) violated federal and state wage and hour laws by requiring dispatchers to report for
    
    duty fifteen minutes early and not paying them overtime; (2) generated unnecessary overtime by
    
    forcing some dispatchers to work overtime so that others could attend social events with Emington;
    
    (3) violated staffing policy by leaving only one dispatcher on duty so that others could accompany
    
    Emington on Secretary’s Day; (4) failed to contribute to the retirement account of a part-time
    
    employee and then reduced that employee’s work schedule when she complained to the
    
    administration; (5) improperly used an online database to check on employees’ controlled substance
    
    prescriptions; (6) failed to qualify with her firearm; and (7) committed miscellaneous acts of
    
    mismanagement and/or abuse of authority.
    
           On October 31, 2006, Roemele notified Foreman that pursuant to JPD Standard Operating
    
    Procedures (“SOPs”) he felt obligated to have the JPD investigate the allegations and file a written
    
    
    
    
           2
            Ky. Rev. Stat. § 61.102 states: “No employer shall subject to reprisal . . . any employee who
    in good faith reports, discloses, divulges . . . any facts or information relative to an actual or
    suspected violation of any law, statue, executive order, administrative regulation, mandate, rule, or
    ordinance of the United States, the Commonwealth of Kentucky, or any of its political subdivisions,
    or any facts or information relative to actual or suspected mismanagement, waste, fraud, abuse of
    authority, or a substantial and specific danger to public health or safety.”
    
                                                     3
    report. On November 1, 2006, Foreman responded to Roemele that the matter had been referred to
    
    the JEC and that the JPD should not conduct an investigation.
    
            On November 20, 2006, Plaintiffs withdrew their complaint, citing retaliatory action that
    
    Jeffersontown had taken against them. Plaintiffs did not appear at the JEC hearing on November
    
    21, 2006, which was scheduled as a result of their report. Nonetheless, the JEC reviewed and
    
    dismissed Plaintiffs’ complaint with prejudice, citing a lack of evidence establishing jurisdiction.
    
            On November 28, 2006, Emington filed a formal complaint against Plaintiffs with Foreman,
    
    which Foreman forwarded to the JCSC. Emington’s complaint requested that Jeffersontown bring
    
    a formal personnel investigation and civil service charges against Plaintiffs and alleged that Plaintiffs
    
    violated several state laws and JPD SOPs by the manner in which they disclosed false information.
    
    On December 5, 2006, the JCSC issued a notice of hearing to Plaintiffs, advising them of their
    
    procedural due process rights under the civil service ordinance and scheduling a hearing for
    
    December 13, 2006. The hearing was continued at Plaintiffs’ request to January 25, 2007.
    
            After the Jefferson Circuit Court denied Plaintiffs’ motion to prohibit the JCSC from
    
    conducting the hearing, the Commission convened as scheduled. Plaintiffs appeared by counsel and
    
    informed the Commission that they had elected to pursue their claims in circuit court and would be
    
    presenting no evidence, calling no witnesses, and making no arguments. At that point, Silveria and
    
    Handy exited the hearing room; Kindle stayed in the room for the duration of the proceedings, but
    
    did not participate. After Emington completed her case and the Commission deliberated, the
    
    Commission found that Plaintiffs had violated three JPD rules and terminated Plaintiffs’ employment
    
    with the JPD. On February 5, 2009, the Commission issued written and particularized findings of
    
    fact as required under Kentucky law.
    
    
                                                       4
           On February 26, 2007, Plaintiffs filed this action in Kentucky state court, alleging causes of
    
    action pursuant to the Kentucky Whistleblower Act and 42 U.S.C. § 1983. On March 23, 2007,
    
    Defendants removed this case to the district court. On January 9, 2009, the district court granted
    
    summary judgment in favor of Defendants. The court held that: (1) Plaintiffs’ whistleblower claim
    
    failed as a matter of law because Jeffersontown is not an employer under the Kentucky
    
    Whistleblower Act; (2) Plaintiffs’ First Amendment claim failed as a matter of law because
    
    Plaintiffs’ speech was not on a matter of public concern; (3) Plaintiffs’ First Amendment claims
    
    against Defendant Foreman in his individual capacity failed because Foreman is entitled to qualified
    
    immunity from suit; and (4) Plaintiffs’ First Amendment claims against Foreman in his official
    
    capacity and the JCSC failed as duplicative of the claims against Jeffersontown. On January 29,
    
    2009, Plaintiffs filed a timely notice of appeal.
    
                                               DISCUSSION
    
    I. Standard of Review
    
           We review a district court’s grant of summary judgment de novo. Aloisi v. Lockheed Martin
    
    Energy Sys., Inc., 
    321 F.3d 551
    , 555 (6th Cir. 2003). Summary judgment is appropriate if the
    
    pleadings, depositions, answers to interrogatories, and admissions on file, together with the
    
    affidavits, if any, “show that there is no genuine issue as to any material fact and that the movant is
    
    entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). We must view the evidence in the
    
    light most favorable to Plaintiffs to determine whether a genuine issue of material fact exists. Birgell
    
    v. Bd. of Comm’rs of Butler County, Ohio, 
    125 F.3d 948
    , 950 (6th Cir. 1997). “The central issue is
    
    ‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether
    
    it is so one-sided that one party must prevail as a matter of law.’” In re Calumet Farm, Inc., 398
    
    
                                                        
    5 F.3d 555
    , 558 (6th Cir. 2005) (quoting Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 251-52, 
    106 S. Ct. 2505
    , 
    91 L. Ed. 2d 202
     (1986)).
    
    II. Kentucky Whistleblower Act Claims
    
           Ky. Rev. Stat. § 61.102 prohibits retaliation by an “employer” against an employee who
    
    engages in any whistleblowing activity as follows:
    
           No employer shall subject to reprisal . . . any employee who in good faith reports,
           discloses, [or] divulges . . . any facts or information relative to an actual or suspected
           violation of any law, statute, executive order, administrative regulation, mandate,
           rule, or ordinance of the United States, the Commonwealth of Kentucky, or any of
           its political subdivisions, or any facts or information relative to actual or suspected
           mismanagement, waste, fraud, abuse of authority, or a substantial and specific danger
           to public health or safety.
    
           Ky. Rev. Stat. § 61.102 goes on to define “employer” as: “. . . The Commonwealth of
    
    Kentucky or any of its political subdivisions.” However, the Whistleblower Act does not define
    
    “political subdivision.” The parties agree that Jeffersontown is a municipality, or municipal
    
    corporation. However, they dispute whether it is a political subdivision of the Commonwealth of
    
    Kentucky, and, thus, whether Jeffersontown is an employer under the statute.
    
           In Consolidated Infrastructure Mgmt. Auth., Inc. v. Allen, 
    269 S.W.3d 852
     (Ky. 2008), the
    
    Kentucky Supreme Court provided guidance as to whether a municipality is a political subdivision
    
    for purposes of the Whistleblower Act. In Allen, the Kentucky Supreme Court affirmed a jury trial
    
    award under the Whistleblower Act to a former Safety Director of the Consolidated Infrastructure
    
    Management Authority (“CIMA”) of the cities of Russellville and Auburn, who was fired after
    
    reporting numerous safety violations in the Auburn facility. Id. at 854. The former employee,
    
    Thomas Everette Allen, had worked as Safety Director for the City of Russellville before the city
    
    
    
    
                                                       6
    joined with the City of Auburn to form CIMA. Id. After Allen won his jury award, CIMA dissolved
    
    and was absorbed by the cities of Russellville and Auburn. Id. at 857.
    
            The court held that the judgment, which was entered against the municipal corporation
    
    CIMA, continued to be enforceable against the municipalities of Russellville and Auburn after
    
    CIMA dissolved. Id. (citing 56 Am. Jur. 2d, Municipal Corporations, Etc. § 80 (2008) (“if a
    
    municipal corporation goes out of existence by being annexed to, or merged in, another corporation,
    
    and if no legislative provision is made respecting the property and liabilities of the corporation which
    
    ceases to exist, the corporation to which it is annexed, or in which it is merged, is entitled to all its
    
    property and is answerable for all its liabilities”)). Thus, the court approved of applying the
    
    Whistleblower Act to a municipality by upholding the jury award. Regardless of whether the parties
    
    raised the issue, the court would have been obligated to overturn the award if the statute did not
    
    apply to the defendants.
    
            In addition, the Supreme Court of Kentucky has said that the Whistleblower Act must be
    
    liberally construed to serve its remedial purpose. Workforce Dev. Cabinet v. Gaines, 
    276 S.W.3d 789
    , 793 (Ky. 2008). In Gaines, the court indicated that the purpose of the Whistleblower Act is
    
    both “to protect employees who possess knowledge of wrongdoing that is concealed or not publicly
    
    known, and who step forward to help uncover and disclose that information” and to discourage
    
    wrongdoing in government. Id. at 792 (internal citations omitted). In the case at issue, Plaintiffs
    
    possessed knowledge of alleged misconduct at the police department that was not publicly known,
    
    and they stepped forward to help uncover and disclose that information. Thus, Plaintiffs are the type
    
    of employees that the statute was designed to protect.
    
    
    
    
                                                       7
           Defendants point to the doctrine of sovereign immunity, which Kentucky courts have
    
    extended to states and counties but not municipalities, to argue that municipalities are not political
    
    subdivisions of the state for purposes of the Whistleblower Act. See, e.g., Withers v. Univ. of Ky.,
    
    
    939 S.W.2d 340
     (Ky. 1997); Kentucky Ctr. for the Arts v. Berns, 
    801 S.W.2d 327
    , 331 (Ky. 1990).
    
    This Court acknowledges that Kentucky courts have recognized a distinction between municipalities
    
    and counties and agencies of the state for purposes of sovereign immunity. At the same time,
    
    Kentucky courts have both declined to extend sovereign immunity to a water district, see Calvert Inv.
    
    Inc. v. Louisville & Jefferson County Metro. Sewer Dist., 
    805 S.W.2d 133
    , 136-37 (Ky. 1991), and
    
    found that a water district may be classified as a political subdivision for purposes of the
    
    Whistleblower Act. See Davis v. Powell’s Valley Water Dist., 
    920 S.W.2d 75
    , 78 (Ky. App. 1995).
    
    Thus, whether an entity receives sovereign immunity in Kentucky does not appear to be dispositive
    
    of whether that entity is a political subdivision for purposes of the Kentucky Whistleblower Act.
    
           Two unpublished federal district court opinions holding that municipalities are not political
    
    subdivisions under the Whistleblower Act were decided before the Kentucky Supreme Court
    
    provided its guidance in Allen. See Baker v. McDaniel, No. 07 CV 379, 
    2008 WL 215241
     (E.D. Ky.
    
    Jan. 24, 2008); Nelson v. City of Somerset, et al., No. 03 CV 591, R.E. 13 (E.D. Ky. Apr. 5, 2004).
    
    Moreover, a federal district court decision is not binding on the Kentucky Supreme Court for
    
    purposes of resolving issues of Kentucky state law. Because the role of this Court is to attempt to
    
    predict what the Kentucky Supreme Court would do, we are obliged to follow the Kentucky Supreme
    
    Court’s guidance in Allen.
    
           Here, like in Allen, Plaintiffs were employed by a municipal corporation, and they were fired
    
    after reporting alleged violations committed by that employer. Consequently, like the plaintiffs in
    
    
                                                      8
    Allen, they seek to enforce the Kentucky Whistleblower Act against the municipal corporation that
    
    fired them. Because Plaintiffs engaged in precisely the type of behavior that the Whistleblower Act
    
    is designed to protect, and the Kentucky Supreme Court indicated in Allen that the statute is
    
    enforceable against municipal corporations, Plaintiffs may proceed with their claim under the
    
    Kentucky Whistleblower Act against the City of Jeffersontown.
    
            Accordingly, relying on the guidance provided by the Kentucky Supreme Court, we hold that
    
    the district court erred in holding that a municipality is not a political subdivision of the state, and,
    
    therefore, is not an employer for purposes of Kentucky’s Whistleblower Act, Ky. Rev. Stat. §§
    
    61.101-103.
    
    III. First Amendment Claim
    
            The Supreme Court has held that “statements by public officials on matters of public concern
    
    must be accorded First Amendment protection despite the fact that the statements are directed at their
    
    nominal superiors.” Pickering v. Bd. of Educ. of Township High Sch. Dist. 205, 
    391 U.S. 563
    , 574
    
    
    88 S. Ct. 1731
    , 1737, 
    20 L. Ed. 2d 811
     (1968) (citing Garrison v. State of Louisiana, 
    379 U.S. 64
    ,
    
    
    85 S. Ct. 209
    , 
    13 L. Ed. 2d 125
     (1964); Wood v. Georgia, 
    370 U.S. 375
    , 
    82 S. Ct. 1364
    , 
    8 L. Ed. 2d 569
     (1962)).
    
            In determining whether a public employer has violated an employee’s First Amendment
    
    rights of free speech, the Supreme Court has instructed courts to engage in a three-step inquiry. See
    
    Rodgers v. Banks, 
    344 F.3d 587
    , 596 (6th Cir. 2003) (citing Connick v. Myers, 
    461 U.S. 138
    , 143,
    
    
    103 S. Ct. 1684
    , 1688, 
    75 L. Ed. 2d 708
     (1983)). First, a court must determine whether the relevant
    
    speech addressed a matter of public concern. Connick, 461 U.S. at 143. If the answer is yes, the
    
    court must “balance between the interests of the [employee], as a citizen, in commenting upon
    
    
                                                       9
    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.” Pickering, 391 U.S. at 568. Finally, the
    
    court must ascertain whether the employee’s speech was a substantial or motivating factor in the
    
    employer’s decision to take the adverse employment action against the employee. Mt. Healthy City
    
    Sch. Dist. Bd. of Educ. v. Doyle, 
    429 U.S. 274
    , 287, 
    97 S. Ct. 568
    , 576, 
    50 L. Ed. 2d 471
     (1977).
    
           First, we must determine whether the relevant speech addressed a matter of public concern.
    
    Connick, 461 U.S. at 143. The court’s inquiry into “[w]hether an employee’s speech addresses a
    
    matter of public concern must be determined by the content, form, and context of a given statement,
    
    as revealed by the whole record.” Connick, 461 U.S. at 147-48. Matters of public concern include
    
    speech that “relate[s] to any matter of political, social, or other concern to the community.” Id. at
    
    146. However, speech dealing with “matters only of personal interest” to a public employee is
    
    generally not afforded constitutional protection. Id. at 147.
    
           The report alleges that Emington violated federal and state hour laws, generated unnecessary
    
    overtime, violated staffing policies of the JPD, failed to contribute to an employee’s retirement
    
    account, improperly checked employees’ controlled substance prescriptions, failed to qualify with
    
    her firearm, and committed various acts of mismanagement and abuse. Plaintiffs argue that the
    
    report at issue addresses a matter of public concern because it regards the efficiency and operations
    
    of the JPD, including violations of state and federal law and the misuse of taxpayer money, while
    
    Defendants argue that it does not touch on a matter of public concern because it is merely a litany
    
    of petty grievances and complaints rooted in Plaintiffs’ dissatisfaction with their supervisor.
    
           This court has consistently held that speech on the same topics as the report at issue–the
    
    efficacy and operations of public agencies and allegations of misconduct by public
    
    
                                                     10
    officials–addresses a matter of public concern. See, e.g., See v. City of Elyria, 
    502 F.3d 484
    , 493
    
    (6th Cir. 2007) (finding that statements involving “alleged corruption in police department
    
    investigations, grand jury procedures, funding, and dealing with the press” addressed matters of
    
    public concern); Graham v. City of Mentor, 118 F. App’x 27, 30 (6th Cir. 2004) (holding that speech
    
    regarding police chief’s fixing of parking tickets, undeserved bonus and improper comp time, and
    
    lack of qualification to carry a weapon addressed matters of public concern); Chapel v. Montgomery
    
    County Fire Prot. Dist. No. 1, 
    131 F.3d 564
    , 576-77 (6th Cir. 1997) (finding that speech regarding
    
    fire department’s financial mismanagement, nepotism, and need for SOPs and training addressed
    
    matters of public concern).
    
           In addition, the fact that seven JPD sergeants and two JPD corporals, in addition to Plaintiffs,
    
    had reported allegations of misconduct by Emington indicates that this speech cannot be written off
    
    as a “matter only of personal interest” or a few disgruntled employees’ “grievance[s] concerning
    
    internal office policy.” Connick, 461 U.S. at 147, 154. Even if the speech was motivated by
    
    Plaintiffs’ self-interest in affecting who would succeed Chief Roemele, as Defendants claim, this
    
    Court has rejected the notion that speech does not touch on a matter of public concern because it is
    
    predominantly motivated by self-interest. Chapel, 131 F.3d at 574-75. The fundamental issue “is
    
    the distinction between matters of public concern and matters only of personal interest, not
    
    civic-minded motives and self-serving motives.” Id. at 575 (emphasis in original) (internal citation
    
    omitted). Thus, Plaintiffs’ report addresses a matter of public concern.
    
           Next, under the framework laid out in Pickering, we must balance Plaintiffs’ interest in
    
    making their speech against Defendants’ interest in promoting the efficiency of the public services
    
    they perform. However, the parties have not briefed the issue and the district court has made no
    
    
                                                     11
    factual findings regarding the balance between Plaintiffs’ interest in making their speech and
    
    Defendants’ interest in efficiently running the JPD. The necessary findings include whether the
    
    speech “meaningfully interfere[d] with the performance of [Plaintiffs’] duties, undermine[d] a
    
    legitimate goal or mission of the employer, create[d] disharmony among co-workers, impair[ed]
    
    discipline by superiors, or destroy[ed] the relationship of loyalty and trust required of confidential
    
    employees.” Williams v. Commonwealth of Ky., 
    24 F.3d 1526
    , 1536 (6th Cir. 1994). Because the
    
    parties have presented this Court with no factual bases on which to determine how Plaintiffs’ report
    
    affected the working dynamic at the JPD, we must remand for the district court to make the findings
    
    necessary to determine whether Plaintiffs’ speech is protected under the First Amendment. We note
    
    that on remand Defendants bear the burden of proving that they had legitimate efficiency interests
    
    that outweigh Plaintiffs’ speech interests and that they would have reached the same decision even
    
    in the absence of the protected conduct. See Rodgers, 344 F.3d at 601; Mt. Healthy, 429 U.S. at 287.
    
            Accordingly, we hold that the district court erred in granting summary judgment to
    
    Defendants and finding that Plaintiffs’ speech was not protected by the First Amendment because
    
    it did not touch on a matter of public concern, and we remand to the district court to conduct the
    
    second and third prongs of the Pickering test in a manner consistent with this opinion.
    
     IV. Qualified Immunity
    
            We review a district court’s grant of summary judgment on qualified immunity de novo.
    
    Center for Bio-Ethical Reform, Inc. v. City of Springboro, 
    477 F.3d 807
    , 825 (6th Cir. 2007). In
    
    reviewing claims for qualified immunity, we conduct a two-step analysis. See Scott v. Harris, 
    550 U.S. 372
    , 377 
    127 S. Ct. 1769
    , 1774, 
    167 L. Ed. 2d 686
     (2007). First, we consider whether “[t]aken
    
    in the light most favorable to the party asserting the injury[,] . . . the facts alleged show the officer’s
    
    
                                                        12
    conduct violated a constitutional right.” Id. at 377 (quoting Saucier v. Katz, 
    533 U.S. 194
    , 201, 
    121 S. Ct. 2151
    , 2156, 
    150 L. Ed. 2d 272
     (2001)). If the answer is yes, we next ask “whether the right
    
    was clearly established . . . in light of the specific context of the case.” Id. (quoting Saucier, 533
    
    U.S. at 201). “For a right to be clearly established, the contours of the right must be sufficiently clear
    
    that a reasonable official would understand that what he is doing violates that right.” Feathers v.
    
    Aey, 
    319 F.3d 843
    , 848 (6th Cir. 2003) (internal citations omitted). While the sequence of this two-
    
    step inquiry is often appropriate, it is no longer regarded as mandatory. Pearson v. Callahan, 
    129 S. Ct. 808
    , 818 (2009).
    
            In the instant case, the inquiry into whether Mayor Foreman should receive qualified
    
    immunity asks whether Foreman violated Plaintiffs’ First Amendment rights and whether these
    
    rights were clearly established in light of the specific context of this case. Because the finding as
    
    to whether Plaintiffs’ speech was protected under the First Amendment is a necessary component
    
    of step one of the qualified immunity analysis, we must remand on the qualified immunity question
    
    in light of the remand on the Pickering analysis. After making the factual findings necessary to
    
    determine whether Plaintiffs’ speech was protected by the First Amendment, the district court shall
    
    conduct the qualified immunity analysis in a manner consistent with this opinion.3
    
    
            3
             The Court notes that, if the district court find that Plaintiffs’ speech was protected by the
    First Amendment and so Foreman’s conduct violated their free speech rights under prong one, the
    district court should also find that the right was clearly established under prong two. A public
    employee’s First Amendment protection against retaliation for speech on matters of public concern
    has been clearly established at least since this Court’s holding in Williams v. Commonwealth of Ky.,
    24 F.3d at 1533-38. Foreman himself even acknowledged in his deposition that Plaintiffs each had
    a constitutional right to speak on matters of public concern regarding police matters. Specifically,
    the topics of Plaintiffs’ speech–violations of state and federal law by a public official and the misuse
    of taxpayer money within a public agency–address issues that have long been clearly established as
    matters of public concern. Given that “[a]ll public officials have been charged with knowing that
    public employees may not be disciplined for engaging in speech on matters of public concern, and
    
                                                       13
    V. The JCSC As a Necessary Party
    
            We review a district court’s ruling as to whether a party is a necessary party for an abuse of
    
    discretion. PaineWebber, Inc. v. Cohen, 
    276 F.3d 197
    , 200 (6th Cir. 2001). Under an abuse of
    
    discretion standard, we must affirm the district court’s Rule 19(a) determination unless it is “left with
    
    a definite and firm conviction that the trial court committed a clear error of judgment.” Cincinnati
    
    Ins. Co. v. Byers, 
    151 F.3d 574
    , 578 (6th Cir. 1998) (internal citations omitted).
    
            Under Federal Rule of Civil Procedure 19, “whether a party is indispensable for a just
    
    adjudication requires a determination regarding whether the absent party is necessary to the
    
    litigation; if so, whether the absent party can be joined in the litigation; and if joinder is infeasible,
    
    whether the lawsuit can nevertheless proceed ‘in equity and good conscience.’” School Dist. of City
    
    of Pontiac v. Sec’y of U.S. Dep’t of Educ., 
    584 F.3d 253
    , 264 (6th Cir. 2009) (en banc) (citing
    
    Kickapoo Tribe v. Babbitt, 
    43 F.3d 1491
    , 1494 (D.C. Cir. 1995)). An absent party must be joined
    
    if “in that person’s absence, the court cannot accord complete relief among existing parties.” Fed.
    
    R. Civ. Pro. 19(a)(1)(A).
    
            Plaintiffs argue that they included the JCSC as a Defendant because it is a necessary and
    
    indispensable party for purposes of affording complete relief, given that Plaintiffs seek reinstatement
    
    to employment. The JCSC was created by ordinance § 35.01 of the City of Jeffersontown, pursuant
    
    
    no reasonable public official understanding this charge could conclude that [Plaintiffs’] speech did
    not address such matters,” Chappel, 131 F.3d at 580, it is clear that if Plaintiffs’ speech was
    protected by the First Amendment, Plaintiffs’ right was clearly established in the context of this case.
            Furthermore, the large number of factual disputes as to whether Foreman retaliated against
    Plaintiffs based on their First Amendment activity, as Plaintiffs claim, or was following the protocol
    that the law requires when investigating complaints directed at personnel of the JPD, as Foreman
    claims, are precisely the type of subordinate predicate factual questions that must be resolved by a
    factfinder at trial. See Johnson v. Jones, 
    515 U.S. 304
    , 313-15, 
    115 S. Ct. 2151
    , 
    132 L. Ed. 2d 238
    (1995).
    
                                                       14
    to Ky. Rev. Stat. § 95.761. According to § 35.06, Plaintiffs are employees who are “classified within
    
    and subject to the Civil Service Commission,” and Chapter 35 lays out the manner in which the
    
    Commission oversees the hiring and firing of these employees. (Dist. Ct. R.E. 30 Ex. M). Inasmuch
    
    as the JCSC has authority over the hiring of police officers and dispatchers, this Court agrees that
    
    the Commission is a necessary party for purposes of providing Plaintiffs with the relief of
    
    reinstatement.
    
            However, the district court did not determine whether the JCSC is a necessary party; rather,
    
    the district court held that the JCSC was created pursuant to Ky. Rev. Stat. § 95.761 and is not an
    
    entity that can be sued without providing any citations in support of this statement. Defendants cite
    
    to Matthews v. Jones, 
    35 F.3d 1046
    , 1049 (6th Cir. 1994) and Smallwood v. Jefferson County Gov’t,
    
    
    743 F. Supp. 502
    , 503 (W.D. Ky. 1990) in support of their claim that the Commission is not a proper
    
    party which may be sued under Plaintiffs’ theory of liability. In Matthews, the plaintiff sued the
    
    chief of police of Jefferson County in the chief’s official capacity. This Court first found that “[a]
    
    suit against an individual in his official capacity is the equivalent of a suit against the governmental
    
    entity,” and then held that “[s]ince the Police Department is not an entity which may be sued,
    
    Jefferson County is the proper party to address the allegations of [the plaintiff’s] complaint.” Id. at
    
    1049. For the latter holding, this Court cited to Smallwood, which held that a suit against the
    
    equivalent of the mayor and city council of Jefferson County in their official capacities was the same
    
    as a suit against Jefferson County itself because if “a suit against a state official in their [sic] official
    
    capacity is regarded as a suit against the state, it seems logical to regard a suit against a County
    
    official in their [sic] official capacity as a suit against a County.” 743 F. Supp. at 503 (citing Will
    
    v. Michigan Dep’t of State Police, 
    491 U.S. 58
    , 
    109 S. Ct. 2304
    , 2311, 
    105 L. Ed. 2d 45
     (1989)).
    
    
                                                         15
            Neither case involved a suit against a civil service commission, and neither case provides
    
    support for the assertion that the JCSC is not an entity that can be sued pursuant to Ky. Rev. Stat.
    
    § 95.761. Furthermore, neither Ky. Rev. Stat. § 95.761 nor Chapter 35 of the Jeffersontown
    
    ordinances prohibits suit against the JCSC.
    
            Additionally, authority from the Kentucky state courts indicates that a commission such as
    
    the JCSC is a different type of entity from a mayor or police department, and one that is properly
    
    party to a suit. See Timmons v. City of Louisville, No. 2003-CA-001631-MR, 
    2004 WL 1857363
    ,
    
    at *2 (Ky. Ct. App. June 8, 2005) (finding that Louisville Civil Service Board is “not merely a
    
    nominal party” because “the Board is vested with the authority to carry out specific legislative duties
    
    and with the responsibility of administering a fair civil service system”); Vaughn v. City of Paducah,
    
    No. 2008-CA-001549-MR, 
    2010 WL 135107
    , at *3-4 (Ky. Ct. App. Jan. 15, 2010) (remanding for
    
    joinder of the Civil Service Board of the City of Paducah where the board had sole authority over
    
    dismissal of civil service employees); see also Jeffersontown, Ky., Ordinances § 35.10(F) (“No
    
    employee shall be reprimanded, removed, suspended, or dismissed except as provided in this
    
    section.”).
    
            Accordingly, we find that the JCSC is a necessary party and hold that the district court abused
    
    its discretion in finding that the JCSC is not an entity that can be sued.
    
                                              CONCLUSION
    
            For the reasons set forth above, we VACATE the district court’s order and REMAND for
    
    further proceedings consistent with this opinion.
    
    
    
    
                                                      16
            RALPH B. GUY, JR., Circuit Judge, dissenting.                 I cannot join in the decision to
    
    resolve the question of whether the Kentucky Legislature intended that the Kentucky
    
    Whistleblower Act apply to cities like Jeffersontown, Kentucky. Our task is to apply
    
    Kentucky law, as determined by the Kentucky Supreme Court, to interpret the statute. Bovee
    
    v. Coopers & Lybrand CPA, 
    272 F.3d 356
    , 361 (6th Cir. 2001). When, as here, the state
    
    supreme court has not addressed the issue, we must “predict how it would rule, by looking
    
    to ‘all available data,’ including state appellate decisions.” Id. (citation omitted). Because
    
    the available data is inconclusive on this discrete question of statutory interpretation, I
    
    believe the best course of action would be to certify the question to the Kentucky Supreme
    
    Court. See K Y. R. C IV. P. 76.37.
    
            The Kentucky Supreme Court has both emphasized the broad remedial purposes of
    
    the Whistleblower Act in drawing claims within its coverage, Workforce Dev. Cabinet v.
    
    Gaines, 
    276 S.W.3d 789
    , 792-93 (Ky. 2008), and rejected a more expansive view of the
    
    second part of the definition of “employer” on the grounds that the Legislature did not intend
    
    to impose individual civil liability on policy makers and managers under the Act, Cabinet for
    
    Families and Children v. Cummings, 
    163 S.W.3d 425
    , 434 (Ky. 2005). Unlike the majority,
    
    I cannot conclude that the decision in Allen speaks to the issue before us.                     Consol.
    
    Infrastructure Mgmt. Auth., Inc. (CIMA) v. Allen, 
    2006 WL 335816
    , at *1 (Ky. Ct. App. Feb.
    
    3, 2006) (unpublished), aff’d 
    269 S.W.3d 852
    , 855 (Ky. 2008).1 For this reason, I also
    
            1
             Liability was established against the CIMA, a combined water/sewer district, for the termination
    of the plaintiff’s employment without any challenge to the CIMA’s status as an “employer” under the
    
                                                       17
    believe that Allen does not provide a sound basis to reject out-of-hand the federal district
    
    court decisions that have squarely addressed the issue. Indeed, a very recent Kentucky
    
    decision, albeit unpublished, did not mention the decision in Allen but found these same
    
    federal court decisions to be persuasive in concluding that a municipality is not an
    
    “employer” subject to the Whistleblower Act. See Wilson v. City of Central City, No. 2008-
    
    CA-001547-MR, 
    2010 WL 135105
     (Ky. Ct. App. Jan. 15, 2010).2
    
            With respect to the First Amendment retaliation claims, I cannot agree that the
    
    plaintiffs’ speech—namely, the “Report Pursuant to KRS 61.102”—touched on a matter of
    
    public concern. “Whether an employee’s speech addresses a matter of public concern must
    
    be determined by the content, form, and context of a given statement, as revealed by the
    
    whole record.” Connick v. Meyers, 
    461 U.S. 138
    , 147-48 (1983). Although the motivations
    
    of the speaker are relevant, “the pertinent question is not why the employee spoke, but what
    
    he said.” Farhat v. Jopke, 
    370 F.3d 580
    , 591 ( 6th Cir. 2004). A “passing” or “incidental”
    
    reference to an arguably public matter, however, does not elevate the speech to a matter of
    
    public concern “where the ‘focus’ or ‘point’ of the speech advances only a private interest.”
    
    Id. at 592-93.
    
    
    Whistleblower Act. The CIMA was dissolved shortly after the verdict was returned, and the Kentucky
    Supreme Court held that it was not error to refuse to require the CIMA to post a bond because the judgment
    remained enforceable against the cities that had absorbed the CIMA upon its dissolution.
    
    
            2
              In another case, the state trial court found, inter alia, that the defendant city was not an “employer”
    as defined by the Kentucky Whistleblower Act, but the appellate court did not reach the issue because the
    plaintiff’s claim failed for other reasons. Throneberry v. City of Audobon Park, No. 2007-CA-001033-MR,
    
    2008 WL 4530917
     (Ky. Ct. App. Oct. 10, 2008) (unpublished).
    
                                                           18
            Looking beyond the superficial assertion of violations of federal and state laws,
    
    violations of departmental policy, and acts of mismanagement and abuse of authority,
    
    plaintiffs specifically complained that dispatchers were required to report for duty 15 minutes
    
    early without receiving overtime pay, that some dispatchers were forced to work overtime
    
    so others could attend social events, and that only one dispatcher was left on duty so that
    
    everyone else could go out on Secretary’s Day. Another charge was that one part-time
    
    employee who was not receiving retirement account contributions was retaliated against in
    
    the scheduling of shifts for having made the error known. Plaintiffs also alleged improper
    
    use of the KASPAR system to monitor employee prescriptions for controlled substances, and
    
    challenged whether Emington had satisfied the firearms-qualification requirement. Finally,
    
    plaintiffs complained of miscellaneous incidents of both preferential and hostile treatment
    
    of employees by Emington.3
    
            I agree with the district court that the plaintiffs’ expression did not focus on corruption
    
    or fraud, which would address a matter of public concern. See, e.g., See v. City of Elyria, 
    502 F.3d 484
    , 493 (6th Cir. 2007). Rather, the plaintiffs’ expression focused on internal
    
    
    
            3
              The miscellaneous acts were described as including but not limited to: “accusing an employee of
    lying about her medical condition and threatening her with termination, deliberately giving an employee an
    adverse reference to a prospective new employer because she was ‘mad at him,’ berating officers at crime
    scenes for their proper actions and undermining the community’s respect for those officers and this
    department, showing favoritism to certain persons employed as clerks by allowing them to clock in late for
    work and from lunch with no corrective measures, allowing some clerks to not even clock in from lunch if
    they are extremely late, allowing some clerical person[ne]l to take extremely long lunches with her because
    they are social friends outside of work, accusing employees without any basis of hiding or obscuring
    information concerning their military pay, and violating department policies by failing to give civilian
    employees yearly evaluations.”
    
                                                        19
    personnel disputes over pay and scheduling, dissatisfaction with Emington’s performance,
    
    and complaints about her unfair treatment of subordinates, which are not matters of public
    
    concern. See Brandenberg v. Housing Auth. of Irvine, 
    253 F.3d 891
    , 898 (6th Cir. 2001);
    
    Brown v. City of Trenton, 
    867 F.2d 318
    , 322 (6th Cir. 1989). Accordingly, I would affirm
    
    the entry of summary judgment in favor of the defendants with respect to the plaintiffs’ First
    
    Amendment retaliation claims.
    
    
    
    
                                                 20
    

Document Info

DocketNumber: 09-5119

Filed Date: 3/15/2010

Precedential Status: Non-Precedential

Modified Date: 6/1/2017

Authorities (33)

Wood v. Georgia , 370 U.S. 375 ( 1962 )

Garrison v. Louisiana , 379 U.S. 64 ( 1964 )

Pickering v. Board of Ed. of Township High School Dist. 205,... , 391 U.S. 563 ( 1968 )

Mt. Healthy City Bd. of Ed. v. Doyle , 429 U.S. 274 ( 1977 )

Connick v. Myers , 461 U.S. 138 ( 1983 )

Anderson v. Liberty Lobby , 477 U.S. 242 ( 1986 )

Will v. Michigan Dept. of State Police , 491 U.S. 58 ( 1989 )

Johnson v. Jones , 515 U.S. 304 ( 1995 )

Scott v. Harris , 550 U.S. 372 ( 2007 )

Pearson v. Callahan , 555 U.S. 223 ( 2009 )

gerald-r-brown-james-menna-gregory-plagens-and-robert-menna-v-the-city-of , 867 F.2d 318 ( 1989 )

maggie-williams-v-commonwealth-of-kentucky-cabinet-for-human-resources , 24 F.3d 1526 ( 1994 )

Scott L. Matthews v. Leon E. Jones, Sr., Jefferson County ... , 35 F.3d 1046 ( 1994 )

Kickapoo Tribe of Indians of the Kickapoo Reservation in ... , 43 F.3d 1491 ( 1995 )

Donald R. Birgel v. Board of Commissioners of Butler County,... , 125 F.3d 948 ( 1997 )

robert-chappel-v-montgomery-county-fire-protection-district-no-1 , 131 F.3d 564 ( 1997 )

Cincinnati Insurance Company v. Fritz Byers , 151 F.3d 574 ( 1998 )

christine-brandenburg-plaintiff-appellantcross-appellee-v-housing , 253 F.3d 891 ( 2001 )

barry-f-bovee-wendy-l-bovee-brian-b-bovee-ronald-gerhart-wayne-langham , 272 F.3d 356 ( 2001 )

Painewebber, Inc. v. Alfred M. Cohen, of the Estate of ... , 276 F.3d 197 ( 2001 )

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