Sean DeCrane v. Edward Eckart ( 2021 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0204p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
SEAN DECRANE,
│
Plaintiff-Appellee, │
> No. 20-3620
│
v. │
│
EDWARD ECKART, in his official and individual │
capacities; CITY OF CLEVELAND, OHIO, │
Defendants-Appellants. │
┘
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 1:16-cv-02647—Christopher A. Boyko, District Judge.
Argued: April 29, 2021
Decided and Filed: September 1, 2021
Before: GUY, DONALD, and MURPHY, Circuit Judges.
_________________
COUNSEL
ARGUED: David R. Vance, ZASHIN & RICH CO., L.P.A., Cleveland, Ohio, for Appellants.
Subodh Chandra, THE CHANDRA LAW FIRM LLC, Cleveland, Ohio, for Appellee.
ON BRIEF: David R. Vance, Jon M. Dileno, ZASHIN & RICH CO., L.P.A., Cleveland, Ohio,
William Menzalora, CITY OF CLEVELAND, Cleveland, Ohio, for Appellants. Subodh
Chandra, Donald Screen, Patrick Haney, THE CHANDRA LAW FIRM LLC, Cleveland, Ohio,
for Appellee.
_________________
OPINION
_________________
MURPHY, Circuit Judge. Someone in the City of Cleveland’s fire department leaked
embarrassing information to the media about its chief’s insufficient training hours.
No. 20-3620 DeCrane v. Eckart, et al. Page 2
Sean DeCrane, the director of the Fire Training Academy, was not that person. But, according to
DeCrane, Edward Eckart thought he was. DeCrane alleges that Eckart facilitated several
harmful personnel actions against him because of this mistaken belief—all in violation of the
First Amendment. Eckart’s response? He argues that the First Amendment does not protect
speech made as part of an employee’s government job, see Garcetti v. Ceballos, 547 U.S. 410,
421–22 (2006), and that DeCrane would have leaked the information pursuant to his job duties as
the training director. The district court denied Eckart qualified immunity on this argument,
holding that our precedent clearly established that DeCrane would have tipped off the media as a
private citizen rather than a public employee. We agree and affirm this part of the court’s
decision. We dismiss Eckart’s other two arguments for lack of jurisdiction in this appeal’s
interlocutory posture.
I
Given this case’s procedural posture, we recite the facts (many of which are disputed) in
the light most favorable to DeCrane. See Beck v. Hamblen County, 969 F.3d 592, 598 (6th Cir.
2020). DeCrane started as a firefighter with the City of Cleveland’s Division of Fire in the
1990s, eventually working his way up to battalion chief. In August 2012, DeCrane became the
director of training at the city’s Fire Training Academy.
The same year, DeCrane applied to be the chief of the Division of Fire. He went through
a two-step interview process—an interview with a panel followed by one with the mayor. The
panel included Eckart, an assistant director in the Department of Public Safety that oversees the
Division of Fire. After the panel rated DeCrane second behind Daryl McGinnis, the mayor
chose McGinnis to be the next chief. In early 2013, Eckart informed DeCrane of the decision.
During their call, DeCrane said he was surprised by this choice. He told Eckart that McGinnis
had fallen behind in his required continuing-education hours. When confronted with this claim,
McGinnis assured Eckart that his training was up to snuff.
McGinnis was lying. Someone tipped off the media about McGinnis’s deficient training.
Six months after his promotion, a reporter asked for his training records. McGinnis then came
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clean that his training was, in fact, inadequate. The city put him on leave the next month; he
resigned a day or two later. The ensuing media coverage reflected poorly on the city.
DeCrane did not leak the tip about McGinnis’s deficient training, which was an open
secret in the Division of Fire. According to DeCrane, however, Eckart mistakenly believed that
he was the leak’s source. DeCrane contends that Eckart (among others) subjected him to a three-
year campaign of retaliation for this misperceived leak. DeCrane was not disciplined or
demoted. But he says that he endured four types of retaliatory actions.
1. Lack of Promotions. DeCrane alleges that he received no further promotions because
of the mistaken belief that he was the leaker. Chief McGinnis’s abrupt departure left a vacancy
at the top. Although DeCrane applied for the position, Patrick Kelly began serving as the interim
chief in August 2013. Kelly received the promotion even though DeCrane’s interview score
from a few months earlier had been higher. In late 2013, DeCrane interviewed to be the
permanent chief, but Kelly received that appointment too.
DeCrane was next passed over for assistant chief in early 2015. A panel ranked him last
of eleven candidates. In May 2015, DeCrane confronted Eckart about his lack of promotions.
When DeCrane suggested that Eckart thought that he had disclosed McGinnis’s training
deficiencies to the media nearly two years earlier, Eckart allegedly slammed his fist on a table
and shouted “[y]ou have to admit it’s pretty coincidental” that the leak occurred a few months
after DeCrane alerted him of the issue. DeCrane Dep., R.145, Page 260. (Eckart disputes this
account.)
Chief Kelly resigned later that year. DeCrane interviewed to be the interim chief.
Angelo Calvillo was appointed instead. DeCrane was passed over a final time when the city
named Calvillo the permanent chief in April 2016.
2. Misconduct Charges. DeCrane next alleges that he faced unfounded misconduct
charges because of the mistaken belief that he leaked McGinnis’s training deficiencies. In
January 2015, a firefighter named Larry Moore filed a complaint alleging that, on DeCrane’s
orders, a captain asked him to record Training Academy information inaccurately. Eckart
directed the Office of Integrity Control, Compliance, and Employee Accountability (which goes
No. 20-3620 DeCrane v. Eckart, et al. Page 4
by “OIC”) to investigate the complaint. He tasked the OIC with reviewing not just Moore’s
specific allegations but also the Training Academy’s general recordkeeping practices.
The OIC recommended that the city bring charges against DeCrane (among others) for
the wrongdoing alleged by Moore and the failure to keep accurate records. Yet, after the OIC
interviewed DeCrane in October 2015, Jim Votypka, the OIC head, informed Eckart that
Moore’s allegations of intentional wrongdoing “could not be substantiated.” Mem., R.139-17,
PageID 9309. DeCrane was nevertheless brought in for a second interview (an unusual
occurrence) about two months later in December 2015. Eckart questioned DeCrane about
McGinnis: “How/why did you know Daryl McGinnis was deficient at continuing education for
EMT?” Eckart Dep., R.140, PageID 9641.
The same month as this interview, state auditors reviewed the Training Academy’s
records and concluded that they were “exceptionally well kept and complete.” Review,
R.147-19, PageID 11693. Given the Academy’s history of sloppy recordkeeping, this finding
came as good news. A short time later, Votypka told Eckart that the Academy’s recordkeeping
was “now efficient, organized and in keeping with a professional organization.” Mem., R.139-
18, PageID 9320. Rather than dismiss the charges against DeCrane, however, Eckart sat on
them. He did not notify DeCrane of their dismissal until December 2016, a year after the
favorable audit.
3. Other Academy Issues. DeCrane next suggests that the city undermined his work at
the Training Academy in retaliation for the alleged leak of McGinnis’s deficient training. After
news broke of the issue in August 2013, the mayor ordered an audit of all training records for all
firefighters. On the day of the order, a group that included Eckart seized the Academy’s records.
The city had never before confiscated records in such dramatic fashion. Despite requests that the
records be returned, the Academy also did not receive them back for months. DeCrane claims
that the seizure slowed his efforts to improve the Academy’s poor recordkeeping.
In 2014, the city also tried (but failed) to outsource firefighter training to a local college.
Eckart initiated and oversaw that process. According to a declaration from Chief Kelly, Eckart
offered to drop the outsourcing efforts if Kelly replaced DeCrane as the Training Academy’s
No. 20-3620 DeCrane v. Eckart, et al. Page 5
director. (Kelly disputed his own account in a second declaration, but we must resolve this
conflict in DeCrane’s favor.)
4. Last-Day Event. DeCrane alleges a final retirement-related slight tied to the belief
that he was the leaker. When he retired from the Division of Fire in September 2016, his
coworkers threw him the standard last-day party. Calvillo, who by then was the chief, had a
policy requiring certain events to receive prior approval. DeCrane’s party was shut down
because it purportedly did not comply with this policy.
* * *
A month later, DeCrane sued Eckart, Votypka (the OIC head), Christopher Chumita (an
OIC investigator), and the City of Cleveland. As relevant for this appeal, DeCrane brought
constitutional claims under 42 U.S.C. § 1983. He alleged that the individual defendants
retaliated against him in violation of the First Amendment, and he sought to hold the city liable
for this retaliation under Monell v. Department of Social Services, 436 U.S. 658 (1978). The
district court granted summary judgment to Votypka and Chumita on the First Amendment
retaliation claim and to the city on the Monell claim. DeCrane v. Eckart, 2020 WL 2475357, at
*6–11 (N.D. Ohio May 13, 2020). But it denied summary judgment to Eckart on the First
Amendment claim. Id. at *7–11. Eckart now appeals this part of the court’s decision.
II
DeCrane’s complaint alleged that Eckart violated the First Amendment by retaliating
against him because of the media leak about Chief McGinnis’s deficient training. To hold Eckart
liable under § 1983, DeCrane needed to establish two things. See District of Columbia v. Wesby,
138 S. Ct. 577, 589 (2018). He first needed to make out a constitutional violation by establishing
the three elements for his claim: that the First Amendment protected the media leak, that Eckart
took an adverse action against him, and that a causal connection existed between the leak and the
action. See Rudd v. City of Norton Shores, 977 F.3d 503, 513 (6th Cir. 2020). He next needed to
overcome Eckart’s qualified-immunity defense by showing that Eckart’s conduct violated clearly
established law. See Wesby, 138 S. Ct. at 589. The district court held that DeCrane created a
No. 20-3620 DeCrane v. Eckart, et al. Page 6
jury question on his First Amendment claim against Eckart and that Eckart’s conduct, if proved,
would satisfy qualified immunity’s demanding test. See DeCrane, 2020 WL 2475357, at *6–11.
Eckart raises three challenges to the court’s reasoning, one for each element of DeCrane’s
First Amendment claim. He asserts that the media leak was not protected speech and that he is at
least entitled to qualified immunity on the issue. He also asserts that DeCrane has sued over
adverse actions that fall outside the statute of limitations. He lastly asserts that any suspicion
that DeCrane tipped off the media did not cause any alleged adverse action. We find that
Eckart’s first argument fails on its merits and that his other two arguments fall outside our
jurisdiction.
A. Protected Speech
A First Amendment claim requires DeCrane to identify protected speech. See Rudd,
977 F.3d at 513. DeCrane faces what might look like an obvious problem in this regard: he did
not engage in the media leak that he claims to be protected. Instead, he alleges that Eckart
wrongly believed that he was the leaker. Do public employees have a right not to be disciplined
for perceived speech that they do not engage in? The Supreme Court recently answered “yes.”
If an official punishes an employee for speech protected by the First Amendment, the employee
may sue under § 1983 even if the official made a mistake about the speaker’s identity. See
Heffernan v. City of Paterson, 136 S. Ct. 1412, 1418 (2016); see also Dye v. Off. of Racing
Comm’n, 702 F.3d 286, 299–300 (6th Cir. 2012). Eckart thus does not contend that DeCrane’s
claim fails because DeCrane did not tip off the media. Nor does Eckart seek qualified immunity
on this basis.
But that threshold answer merely begins the analysis. DeCrane must still show that the
tip to the media would have been protected if he had, in fact, provided it. See Heffernan,
136 S. Ct. at 1419. Public-employee speech must survive three inquiries to fall within the First
Amendment. See Buddenberg v. Weisdack, 939 F.3d 732, 739 (6th Cir. 2019). The First
Amendment protects this speech only if it addresses a matter of public (rather than private)
concern. Connick v. Myers, 461 U.S. 138, 146–47 (1983). The amendment also protects the
speech only if an employee speaks as a private citizen rather than pursuant to the employee’s job
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duties. Garcetti v. Ceballos, 547 U.S. 410, 421–22 (2006). And even if the speech survives
these two steps, the First Amendment protects the speech only if the employee’s interest in
speaking outweighs the employer’s interest in operating—a test that has come to be called
“Pickering balancing.” Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 568
(1968).
Eckart makes no arguments under the first or third of these steps. We thus may assume
that the media leak addressed a matter of public concern under Connick and that the speech
interest in airing McGinnis’s training problems outweighed the city’s interest in operating under
Pickering. Eckart relies only on the second inquiry under Garcetti. He asserts that DeCrane’s
claim fails because DeCrane would have been speaking as part of his job if he had aired
McGinnis’s deficient training with the media. At the least, Eckart says, qualified immunity
should shield him from liability on this issue. We take his arguments in turn.
1. Would the media leak have been part of DeCrane’s job duties under Garcetti?
In Garcetti, the Supreme Court held that the government did not “abridg[e]” the
“freedom of speech” when it fired an employee for a memo he wrote as part of the job it paid
him to perform. U.S. Const. amend. I; Garcetti, 547 U.S. at 421–22. This rule follows from
basic First Amendment principles. The government has a broad right to control its own
“government speech.” Pleasant Grove City v. Summum, 555 U.S. 460, 467 (2009). When
speaking itself, it may even engage in what would otherwise be the most pernicious of First
Amendment sins—the “viewpoint discrimination” that allows one perspective on a subject but
prohibits others. See Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 576 U.S. 200,
207–08 (2015). The Supreme Court has suggested that this discrimination is automatically
invalid when the government regulates private speech. See Rosenberger v. Rector & Visitors of
Univ. of Va., 515 U.S. 819, 829 (1995). But how could the government accomplish anything if it
could not favor its own views in its public programs? Summum, 555 U.S. at 468. That would
mean, for example, that the government could not run ads encouraging COVID-19 vaccines
without running ads discouraging them. See Walker, 576 U.S. at 207–08. Unlike government
coercion, this government speech does not trigger the First Amendment because it does not
“abridge” the speech of others. See id.
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Yet the “government” is an inanimate entity that cannot “speak” itself. It must rely on
human agents to convey its messages—whether those agents are private contractors chosen to
undertake discrete initiatives, see Rust v. Sullivan, 500 U.S. 173, 193 (1991), or public
employees chosen to perform recurring tasks, see Garcetti, 547 U.S. at 422. When these agents
undertake the programs that they are assigned to perform, the government may require them to
stick to its message rather than express their own without offending the First Amendment. See
Rust, 500 U.S. at 196. Conversely, the Supreme Court’s “unconstitutional-conditions doctrine”
leaves the government with less room to regulate a government agent’s “off the job” private
speech as a condition of the agent receiving a public contract or public job. See Agency for Int’l
Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205, 214 (2013); Pickering, 391 U.S. at 568.
Garcetti implements the distinction between the government engaging in its own speech
(which does not trigger the First Amendment) and the government regulating private speech
(which does). When public employees speak as agents of public employers, the employers may
discipline the employees for saying something unacceptable because this speech is effectively
the government’s. See Garcetti, 547 U.S. at 421–22. When, by contrast, employees speak “as
private citizens” on issues of public concern, employers may discipline employees for the speech
only if they satisfy Pickering because that discipline is effectively regulating private speech. Id.
at 419.
This test requires courts to distinguish an individual’s speech as a public employee from
the individual’s speech as a private citizen. Yet it can be unclear whether an employee spoke
while wearing a “public” or “private” hat. See Mayhew v. Town of Smyrna, 856 F.3d 456, 464
(6th Cir. 2017). After all, employees regularly speak on their own time about events that happen
during their workday or matters that relate to their job. See Lane v. Franks, 573 U.S. 228, 238–
40 (2014). So how should courts decide whether expression falls within the public or private
bucket? Similar to the common law’s “scope of employment” test, courts have looked to all of
the circumstances surrounding the speech. See Fledderjohann v. Celina City Sch. Bd. of Educ.,
825 F. App’x 289, 293–98 (6th Cir. 2020); cf. Restatement (Second) of Agency §§ 228–37 (Am.
L. Inst. 1958).
No. 20-3620 DeCrane v. Eckart, et al. Page 9
When doing so, courts have asked several recurring questions. Most notably, what was
the “impetus” for or “motivation[]” behind the speech? See Fledderjohann, 825 F. App’x at 294
(citation omitted); Handy-Clay v. City of Memphis, 695 F.3d 531, 540 (6th Cir. 2012). If an
employee speaks to fulfill a job duty (say, the employee is conducting a government audit), the
speech is more likely as a government agent. See DeWyse v. Federspiel, 831 F. App’x 759, 763
(6th Cir. 2020). If, by contrast, the employee speaks to fulfill an unrelated goal (say, the
employee is acting as a union rep to obtain better terms), the speech is more likely as a private
citizen. See Boulton v. Swanson, 795 F.3d 526, 534 (6th Cir. 2015). This question, of necessity,
requires us to identify the employee’s job duties. Because the test is a “practical one,” Garcetti,
547 U.S. at 424, courts should consider the duties that the employee actually performs on a day-
to-day basis, Buddenberg, 939 F.3d at 740. That said, an employee’s official duties listed in a
formal job description are relevant too. See Mayhew, 856 F.3d at 465.
Another common question: What was the speech’s setting? On-the-clock speech at the
employer’s place of business is more likely to be speech as a government agent as compared to
off-the-clock speech away from the office. See Handy-Clay, 695 F.3d at 540–42. So a fire chief
acted as a government agent when emailing firefighters about a job-related issue from his official
account using his official title. See Holbrook v. Dumas, 658 F. App’x 280, 288–89 (6th Cir.
2016). But a fire captain acted as a private citizen when he called city council members from
his home as a concerned taxpayer. See Stinebaugh v. City of Wapakoneta, 630 F. App’x 522,
527–28 (6th Cir. 2015); see also Westmoreland v. Sutherland, 662 F.3d 714, 719 (6th Cir. 2011).
A third common question: Who was the speech’s audience? Speech to supervisors is
more likely to be speech as a government agent as compared to speech to outside individuals. So
a police officer acted as a public employee when he complained to his chief about training
cutbacks, as did a public-records employee when she complained to supervisors about obstacles
to obtaining records. See Haynes v. City of Circleville, 474 F.3d 357, 364 (6th Cir. 2007);
Handy-Clay, 695 F.3d at 541–42; see also Bushong v. Delaware City Sch. Dist., 851 F. App’x
541, 544 (6th Cir. 2021); Fox v. Traverse City Area Pub. Schs. Bd. of Educ., 605 F.3d 345, 349
(6th Cir. 2010). Yet a police officer acted as a concerned citizen when he talked to the FBI about
corruption in the ranks, as did an officer who issued his own “press release” about discrimination
No. 20-3620 DeCrane v. Eckart, et al. Page 10
in the department. See Barrow v. City of Hillview, 775 F. App’x 801, 813 (6th Cir. 2019); Miller
v. City of Canton, 319 F. App’x 411, 413, 417 (6th Cir. 2009); see also See v. City of Elyria, 502
F.3d 484, 493 (6th Cir. 2007).
When considering these questions in the course of resolving an employer’s summary-
judgment motion, we take any disputed historical facts in the light most favorable to the
employee. See Pucci v. Nineteenth Dist. Ct., 628 F.3d 752, 768 (6th Cir. 2010). After doing so,
however, we treat the ultimate question whether the employee spoke as a government agent or
private citizen as a legal one to be decided without deference to the factfinder. See Mayhew, 856
F.3d at 462–64.
*
Invoking Garcetti here, Eckart argues that DeCrane would have been acting as the
director of the Training Academy if he had informed the media about McGinnis’s training issues.
DeCrane responds that he would have been acting as a private citizen. Both parties thus assume
that the usual Garcetti test fully applies even when, as in this case, an employee is allegedly
punished for speech that the employee did not undertake and so must rely on Heffernan’s
protections for perceived speech. See 136 S. Ct. at 1418. Given that the parties do not disagree
on this point, we can simply assume that the ordinary Garcetti test applies in this context.
Yet we flag one issue with this assumption. As noted, Garcetti requires us to consider
the “impetus” for or “motivations” behind the employee’s speech. Fledderjohann, 825 F. App’x
at 294 (citation omitted). Is this a subjective test that depends on the employee’s state of mind or
an objective test that asks what a reasonable person would identify as the speaker’s intent? The
common law of agency would suggest a subjective approach, as the Restatement notes that the
“state of the servant’s mind” is “material” and that the “external manifestations” of that mindset
are only “evidence” of an intent to serve the employer. Restatement (Second) of Agency § 235
cmt. a. Yet this understanding would make no sense here. How can we identify DeCrane’s
intent behind the leak when he was not the leaker? So the parties assume that Garcetti
establishes an objective test asking what a reasonable person would take to be the intent behind
the speech. Cf. United States. v. Leon, 468 U.S. 897, 919 n.20 (1984). This view might better
No. 20-3620 DeCrane v. Eckart, et al. Page 11
comport with our cases given that they treat Garcetti as raising a legal issue. See Mayhew, 856
F.3d at 462–64. But we have not expressly addressed this objective-versus-subjective debate and
can save it for another day here too. Because the parties apply an objective approach, we can do
the same for this appeal.
Objectively speaking, then, what would have been the reason for the leak if DeCrane had
been the one who tipped off the media? Would he have been fulfilling one of his job duties? Or
would he have been furthering a personal goal? The factors on which we have relied in other
cases all lead to the same conclusion: DeCrane would have been acting as a private citizen. His
official duties (which are relevant but not dispositive) are a good place to start. See Mayhew,
856 F.3d at 463. As the director of the Training Academy, he was “responsible for all training
activities within the Division of Fire including maintaining appropriate training records” as well
as “oversee[ing] and coordinat[ing] all required internal and external reporting related to
training.” Gen. Order, R.145-3, PageID 11115. Nothing in this description lists speaking to the
media, let alone secretly doing so. What is more, the order that contains the training director’s
duties identifies a different employee—the public information officer—as bearing the
responsibility to “act[] as the liaison between the Division of Fire and the Media.” Id., PageID
11107.
DeCrane’s “de facto” duties point in the same direction. Weisbarth v. Geauga Park Dist.,
499 F.3d 538, 544 (6th Cir. 2007). No evidence shows that DeCrane’s superiors ever gave him
any secret orders to speak with the media off the record about the Division of Fire. Nor is there
any evidence that he ever engaged in such “authorized” leaks. Eckart even admitted that
“[p]roviding information outside the chain of command is forbidden” and that employees must
“receive permission from their appointing authority or direct supervisor” to speak to the media.
Eckart Dep., R.140, PageID 9512. DeCrane shared the same understanding that the city barred
him from making disclosures to the media without approval. If DeCrane had tipped off the
media, then, he would have been acting against the directions of his public employer—not
pursuant to them. See Garcetti, 547 U.S. at 421.
The leak’s audience and setting confirm that DeCrane would have provided it as a private
citizen, not a public employee. Unlike when he informed Eckart about McGinnis’s training
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issues, he would have been going well outside the chain of command by giving this information
to a journalist. Cf. Mayhew, 856 F.3d at 465. That type of disclosure looks a lot more like the
officer’s personal “press release” to the media about discrimination in the police department, see
Miller, 319 F. App’x at 417, than the officer’s complaint to his chief about training cutbacks, see
Haynes, 474 F.3d at 364. The leak’s secretive nature reinforces that it was not an official
communique. Cf. Barrow, 775 F. App’x at 813. Unlike the fire chief who sent an email using
his official title, see Holbrook, 658 F. App’x at 288–89, this type of leak would presumably
occur without official imprimatur. All told, then, the relevant factors show that DeCrane would
have been acting as a private citizen—not a government agent—if he had secretly spoken to the
media.
*
Eckart’s responses do not change things. He argues that the leak would have fallen
within DeCrane’s job duties because it concerned training and DeCrane was the director of
training. This argument flouts precedent. The Supreme Court has made clear that employees do
not speak “on the job” simply because they speak about the job. See Lane, 573 U.S. at 239–40.
Indeed, “speech by public employees on subject matter related to their employment holds special
value precisely because those employees gain knowledge of matters of public concern through
their employment.” Id. at 240. That this media leak concerned training thus does nothing to
bring it within Garcetti’s rule so long as it would not have been conveyed in DeCrane’s capacity
as the director of training.
Citing our cases holding that even “ad hoc” (that is, atypical) duties can fall within
Garcetti’s rule, Eckart next argues that DeCrane occasionally spoke to journalists about the
Division of Fire. Weisbarth, 499 F.3d at 544. DeCrane responds by suggesting that Lane
overruled our cases extending Garcetti to ad hoc duties. Lane described the “critical question”
as “whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not
whether it merely concerns those duties.” 573 U.S. at 240 (emphasis added); cf. Boulton,
795 F.3d at 534. An “ad hoc” duty, DeCrane’s argument goes, is the opposite of an “ordinary”
duty. Even after Lane, however, we have held that speech pursuant to a “special” duty falls
outside the First Amendment when the duty (and speech) arose within the scope of the public
No. 20-3620 DeCrane v. Eckart, et al. Page 13
job. See DeWyse, 831 F. App’x at 763; see also Davidson v. Arlington Cmty. Schs. Bd. of Educ.,
847 F. App’x 304, 309 (6th Cir. 2021); Henderson v. City of Flint, 751 F. App’x 618, 623–24
(6th Cir. 2018) (lead opinion). Garcetti’s premise—that speech as a public employee effectively
qualifies as government speech—also does not hinge on whether the speech arose pursuant to a
regular or atypical duty. It hinges on whether the speech “owes its existence to a public
employee’s professional responsibilities[.]” Garcetti, 547 U.S. at 421.
Regardless, we need not decide Lane’s effect on our precedent because leaking
information to the media cannot even be described as one of DeCrane’s “ad hoc” duties. True
enough, DeCrane occasionally spoke to the media. In 2012, for example, the Division of Fire
hosted an event for politicians and journalists at which DeCrane’s supervisors asked him to give
a presentation on modern firefighting. He later got permission to follow up with journalists
about news articles on the subject. Yet these occurrences—in which he conversed with the
media in his official capacity with approval from his superiors—do not suggest that he would
have been acting officially by leaking embarrassing information about the chief. If anything,
they prove the contrary: he spoke to the media pursuant to his duties only when he got approval
to do so.
Eckart lastly highlights DeCrane’s testimony that, in later years, he got permission to
speak with a journalist about training issues. But this authorization came from Chief Patrick
Kelly—who became the chief only after the leak. This testimony says nothing about DeCrane’s
authorization to speak to the media at the correct time—the time of the leak. So none of Eckart’s
arguments alter our conclusion that DeCrane would have spoken as a private citizen.
2. Did the media leak fall clearly outside DeCrane’s duties under Garcetti?
Even so, Eckart responds, qualified immunity should still shield him from liability. This
defense protects a public official so long as the official does not violate “clearly established” law.
Wesby, 138 S. Ct. at 589. An official’s conduct flunks this “clearly established” test only if the
conduct’s unconstitutionality was “beyond debate” when the official acted, such that any
reasonable person would have known that it exceeded constitutional bounds. See id. (citation
omitted). While qualified immunity does not force plaintiffs to have a “case directly on point,”
No. 20-3620 DeCrane v. Eckart, et al. Page 14
Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011), its “demanding” test nevertheless requires them to
define the “clearly established” constitutional rule on which they rely with a “high ‘degree of
specificity.’” Wesby, 138 S. Ct. at 589–90 (citation omitted); see also Reichle v. Howards,
566 U.S. 658, 665 (2012). A plaintiff has defined the legal rule too generically whenever “the
unlawfulness of the [defendant’s] conduct ‘does not follow immediately from the conclusion that
[the rule] was firmly established.’” Wesby, 138 S. Ct. at 590 (citation omitted).
In this speech context, for example, plaintiffs generally cannot defeat qualified immunity
simply by arguing that they have a clearly established right not to suffer an “abridgment” of the
“freedom of speech.” U.S. Const. amend. I. Such a rule (defined at the highest possible level of
generality) would not have immediately alerted public officials of the First Amendment’s limits
in the specific situations that they confronted. See Lane, 573 U.S. at 243–45; Reichle, 566 U.S.
at 664–70. Even Garcetti’s rule (that speech can receive protection if taken as a citizen rather
than employee) sometimes cannot provide sufficient guidance because we have recognized that it
can be “challenging” to distinguish public from private speech. Mayhew, 856 F.3d at 464.
Eckart thinks that this fact resolves the qualified-immunity issue in his favor. He argues that the
then-existing caselaw did not clearly establish that the media leak would have fallen outside
DeCrane’s job duties within the meaning of Garcetti. See Wesby, 138 S. Ct. at 589.
Eckart is mistaken because our cases at the relevant time had already set more specific
ground rules to distinguish public from private speech. We had held that employees speak as
private citizens (not public employees) at least when they speak on their own initiative to those
outside their chains of command and when their speech was not part of their official or de facto
duties. See Handy-Clay, 695 F.3d 542–43; see also Westmoreland, 662 F.3d at 719; Pucci,
628 F.3d at 768–69; See, 502 F.3d at 493–94; cf. Devlin v. Kalm, 630 F. App’x 534, 539 (6th Cir.
2015) (per curiam). Would this “firmly established” rule have “immediately” alerted a
reasonable person that the media leak would have been in DeCrane’s private capacity? Wesby,
138 S. Ct. at 590 (citation omitted). We think so. Such a leak would have fallen outside his
duties. The speech also would have been to journalists, not supervisors. For these reasons, we
had already held that a police officer’s disclosure to the media fell outside Garcetti precisely
No. 20-3620 DeCrane v. Eckart, et al. Page 15
because the officer engaged in the speech on his own time and had no media-related duties. See
Miller, 319 F. App’x at 417.
Nor do the two circuit cases on which Eckart relies—Haddad v. Gregg, 910 F.3d 237(6th Cir. 2018) (per curiam), and Hurst v. Lee County, 764 F.3d 480 (5th Cir. 2014)—muddy the
waters. Haddad, a two-paragraph opinion that merely attached the district court’s decision as an
appendix, looks nothing like this case. 910 F.3d at 240. A state department of insurance fired an
employee allegedly for speech that was designed to end “what he believed to be an unfair insurer
practice.” Id. at 241. Yet the employee conceded “that he was acting pursuant to his official
duties” when he engaged in the speech. Id. Although he consulted with individuals outside his
office about the challenged practice, he did so as part of an “investigation” to fulfill a “central
function” of his job. Id. at 249. Here, by contrast, the leak furthered no function of DeCrane’s
job.
In Hurst, by comparison, a sheriff fired an officer for statements made to a journalist
about an arrested college football player. 764 F.3d at 482–83. The Fifth Circuit held that the
officer was speaking as a public employee when he spoke to the journalist. Id. at 485. The
journalist had traveled to the jail to get information about the player, and the officer had
conversed with him in an official capacity while working there. Id. at 482–83. The sheriff’s
media policy authorized the officer to reveal certain information to this journalist, but the officer
disclosed more than the policy permitted. Id. at 482–83, 485. The speech thus was part of the
officer’s job, and he performed that job poorly by exceeding the parameters that the sheriff had
given him. Id. at 485. Here, by contrast, the leak to the media cannot be characterized as part of
DeCrane’s duties.
Eckart lastly cites two district-court decisions that found speech unprotected when the
plaintiff spoke either to the media or to a county board about matters learned on the job. See
Meggison v. Charlevoix County, 2008 WL 5411896, at *7–9 (W.D. Mich. Dec. 23, 2008);
Omokehinde v. Detroit Bd. of Educ., 563 F. Supp. 2d 717, 730 (E.D. Mich. 2008). It is not
obvious that we should even consider these district-court decisions when identifying the rules
that our cases have clearly established. See Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011).
Nor is it obvious that the cases survived Lane’s clarification that speech does not fall within
No. 20-3620 DeCrane v. Eckart, et al. Page 16
Garcetti’s rule merely because it relates to an employee’s job. See 573 U.S. at 240. Be that as it
may, the decisions have sufficiently distinguishable facts that they would not have allowed
Eckart to reasonably conclude that DeCrane’s job duties included leaking information to the
media.
* * *
We close by reiterating our ruling’s narrow scope. Eckart made just one argument as to
why the media leak was not protected speech: because it would have fallen within DeCrane’s job
duties. Eckart did not argue that he could reasonably believe that he could discipline
employees for violating a seemingly neutral policy banning unauthorized speech to the media.
Cf. Heffernan, 136 S. Ct. at 1419. Nor did he ask us to consider the circumstances in which a
public employer may have such a media policy or the manner in which to analyze this
constitutional question. We thus do not consider these issues; we resolve only the Garcetti
argument presented to us.
B. Adverse Action
After DeCrane identifies protected speech, he next must show that Eckart took an
“adverse action” against him. See Rudd, 977 F.3d at 514–15. The district court identified a
medley of harmful actions, ranging from the denial of promotions and the misconduct charges to
the attempt to outsource training and the lack of a last-day party. Eckart does not dispute that
these actions were sufficiently “adverse” to trigger the First Amendment’s protections. He
instead raises an affirmative defense different from qualified immunity, arguing that § 1983’s
two-year statute of limitations bars relief for some of these actions. See Browning v. Pendleton,
869 F.2d 989, 992 (6th Cir. 1989) (en banc).
His argument has a fatal jurisdictional problem. We would normally lack jurisdiction
over the district court’s decision to proceed to trial on DeCrane’s retaliation claim because we
typically have jurisdiction only over “final decisions” that end a case. 28 U.S.C. § 1291;
Stojcevski v. Macomb County, 827 F. App’x 515, 520–21 (6th Cir. 2020). Yet, under the
collateral-order doctrine, the Supreme Court allows parties to appeal decisions that are “final” on
certain collateral issues even if the entire case is not over. Stojcevski, 827 F. App’x at 520–21.
No. 20-3620 DeCrane v. Eckart, et al. Page 17
This doctrine permits an official like Eckart to appeal a decision denying qualified immunity.
See id. at 521 (citing Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)). Qualified immunity is a
defense not just against having to pay a judgment but also against having to litigate the dispute at
all. Mitchell, 472 U.S. at 526–29. If officials could not immediately appeal the denial of
immunity, the defense would be lost because they would have to litigate the case in order to
appeal the right not to litigate it. Id. at 526–27. That is why we have jurisdiction over Eckart’s
claim that he is entitled to qualified immunity on the legal question whether DeCrane identified
protected speech under Garcetti.
Yet this logic does not extend to Eckart’s separate claim about the statute of limitations.
A statute of limitations is not an immunity from suit; it is a defense to liability. A defendant thus
usually may not use the collateral-order doctrine to appeal an otherwise nonfinal decision
denying a statute-of-limitations defense. See United States v. Davis, 873 F.2d 900, 908–09 (6th
Cir. 1989); see also Watkins v. Healy, 986 F.3d 648, 659 (6th Cir. 2021).
Does it change things, though, that this statute-of-limitations issue arose from the same
order that denied Eckart qualified immunity? We do not see why. The collateral-order
doctrine’s interpretation of the word “final” in 28 U.S.C. § 1291 does not bring up the entire
decision for appeal. Cf. BP P.L.C. v. Mayor & City Council of Baltimore, 141 S. Ct. 1532,
1537–40 (2021). Rather, it allows us to review the legal issues that the decision resolves in the
course of denying qualified immunity—not other unrelated issues. See Swint v. Chambers Cnty.
Comm’n, 514 U.S. 35, 43–51 (1995); cf. Ashcroft v. Iqbal, 556 U.S. 662, 672–75 (2009). Put
another way, the resolution of the qualified-immunity issue is “final” within the meaning of
28 U.S.C. § 1291 in a way that the resolution of unrelated issues is not. And a statute-of-
limitations defense (which asks whether a plaintiff timely sued) has nothing to do with a
qualified-immunity defense (which asks whether a defendant’s conduct violated clearly
established law). See Watkins, 986 F.3d at 658–59; see also Johnson v. Johnson, 694 F. App’x
945, 947 (5th Cir. 2017) (per curiam); Sanchez v. Hartley, 810 F.3d 750, 761 (10th Cir. 2016);
Ochoa Lizarbe v. Rivera Rondon, 402 F. App’x 834, 837 (4th Cir. 2010) (per curiam); Garnier v.
Rodríguez, 506 F.3d 22, 25 (1st Cir. 2007).
No. 20-3620 DeCrane v. Eckart, et al. Page 18
That said, we sometimes have exercised what has been dubbed “pendent appellate
jurisdiction” over other issues if they are “inextricably intertwined” with qualified immunity.
See Watkins, 986 F.3d at 659–60; Stojcevski, 827 F. App’x at 523–24. But we have also held
that a statute-of-limitations defense does not satisfy this “intertwined” test because our resolution
of the immunity issue will not affect the defense’s viability. See Watkins, 986 F.3d at 659–60.
In any event, Eckart did not even invoke our discretionary pendent appellate jurisdiction or claim
that the statute of limitations was intertwined with his immunity defense. We thus need not
address this jurisdictional theory. Because we lack jurisdiction to consider Eckart’s statute-of-
limitations argument in this appeal’s interlocutory setting, we dismiss this portion of his appeal.
C. Causation
This conclusion leaves DeCrane with a final task—to show a link between the media leak
and the adverse actions. See Rudd, 977 F.3d at 513, 515. A First Amendment retaliation claim
under § 1983 ultimately requires a “but-for” causal connection—meaning that the public
employer would not have taken the harmful action “but for” the protected speech. See Nieves v.
Bartlett, 139 S. Ct. 1715, 1722 (2019). Our cases include seemingly conflicting statements on
who bears the burden to prove but-for causation. Some say that the employee must prove that
the employer would not have taken the adverse action absent the protected speech; others say the
employer must prove that it would have still taken the action even absent the speech once the
employee shows that the speech was a motivating factor for it. See Spithaler v. Smith,
803 F. App’x 826, 829–30 (6th Cir. 2020) (collecting cases); cf. Nieves, 139 S. Ct. at 1722–23.
Either way, our cases leave no doubt that this causation element (unlike the protected-speech
element) presents a pure fact question about the reason(s) for the adverse action. See Farkhoury
v. O’Reilly, 837 F. App’x 333, 341 (6th Cir. 2020); Hartsel v. Keys, 87 F.3d 795, 803 (6th Cir.
1996); Matulin v. Village of Lodi, 862 F.2d 609, 613 (6th Cir. 1988). Eckart argues on appeal
that DeCrane introduced insufficient evidence to allow a reasonable jury to decide this fact
question in his favor.
His argument has a different (but similarly fatal) jurisdictional problem. We lack
jurisdiction not just over legal arguments unrelated to qualified immunity (like Eckart’s statute-
of-limitations argument) but also over pure sufficiency-of-the-evidence arguments (like this
No. 20-3620 DeCrane v. Eckart, et al. Page 19
causation argument). The Supreme Court has held that qualified immunity falls within the
collateral-order doctrine, in part, because the question whether existing precedent would have
“clearly established” that a defendant’s conduct violated the Constitution is collateral to the
plaintiff’s claim on the merits. Mitchell, 472 U.S. at 527–28. And it has held that this “clearly
established” inquiry necessarily encompasses an initial inquiry into related legal questions, such
as whether the defendant’s conduct even violated the Constitution at all. See Iqbal, 556 U.S. at673–74; Hartman v. Moore, 547 U.S. 250, 257 n.5 (2006). So, for example, the collateral-order
doctrine allows us to consider whether a given set of facts amounts to “excessive force” under
the Fourth Amendment or whether the existing caselaw would clearly establish that conclusion.
See Liogghio v. Township of Salem, 766 F. App’x 323, 326 (6th Cir. 2019); DiLuzio v. Village of
Yorkville, 796 F.3d 604, 609 (6th Cir. 2015). In the process of deciding these legal questions,
moreover, courts must also identify the facts that the record would allow a reasonable jury to
find. See DiLuzio, 796 F.3d at 611; cf. Ouza v. City of Dearborn Heights, 969 F.3d 265, 276–77
(6th Cir. 2020).
That said, the Supreme Court has held that the theory for treating qualified immunity as
collateral to the merits does not cover a defendant who seeks to appeal merely the district court’s
decision that a plaintiff has presented enough evidence to prove a factual element of the claim.
DiLuzio, 796 F.3d at 609 (quoting Johnson v. Jones, 515 U.S. 304, 313 (1995)); see Bey v. Falk,
946 F.3d 304, 319 (6th Cir. 2019). Admittedly, an argument that the summary-judgment record
does not create a “genuine dispute” as to a “material fact” raises a legal question—hence, why
we review that ubiquitous issue de novo. Fed. R. Civ. P. 56(a); see Iqbal, 556 U.S. at 674;
Hartsel, 87 F.3d at 799. For better or worse, however, this question about “which facts a party
may, or may not, be able to prove at trial” is not the type of legal issue over which our
interlocutory jurisdiction independently extends. DiLuzio, 796 F.3d at 609 (quoting Johnson,
515 U.S. at 313).
Eckart’s challenge falls on the wrong side of this line. He argues only that the summary-
judgment record would not permit a reasonable jury to find a causal connection between the
media leak and the adverse actions. He thus raises a pure “evidence sufficiency” challenge of
the sort that falls outside our jurisdiction. Bey, 946 F.3d at 319–20. Indeed, in this interlocutory
No. 20-3620 DeCrane v. Eckart, et al. Page 20
setting, we have repeatedly refused to consider whether a plaintiff presented enough evidence to
create a genuine dispute of fact on the causation element of a First Amendment retaliation claim.
See, e.g., Farkhoury, 837 F. App’x at 340–41; Liogghio, 766 F. App’x at 325–26; Sigler v. City
of Englewood, 424 F. App’x 449, 454–55 (6th Cir. 2011). Many other courts have issued similar
decisions. See, e.g., Hunter v. Town of Mocksville, 789 F.3d 389, 400 (4th Cir. 2015); Cooley v.
Grimm, 272 F. App’x 386, 392 (5th Cir. 2008) (per curiam); Brown v. Town of LaBarge,
97 F. App’x 216, 227 (10th Cir. 2004); Herts v. Smith, 345 F.3d 581, 586 (8th Cir. 2003);
Locurto v. Safir, 264 F.3d 154, 168 (2d Cir. 2001); Stella v. Kelley, 63 F.3d 71, 77 (1st Cir.
1995).
To be sure, legal arguments about the proper meaning of the First Amendment’s
causation element would fall within our jurisdiction if raised in a qualified-immunity defense.
The Supreme Court, for example, held that it had jurisdiction to consider the legal question
whether this causation element contains a “lack-of-probable-cause” requirement when a plaintiff
alleged that officials engineered a criminal prosecution in retaliation for protected speech. See
Hartman, 547 U.S. at 257 n.5. And Eckart makes a passing head fake at a potential legal issue.
He argues that his supposed retaliatory animus could not have caused many of the adverse
actions because he was not the official with the final decisionmaking authority for them. Our
caselaw makes clear that § 1983 defendants can be held liable only for their own conduct, Rudd,
977 F.3d at 512, so a plaintiff must show that a defendant was sufficiently involved in the
adverse action, cf. Spithaler, 803 F. App’x at 830; Sigler, 424 F. App’x at 455. What
involvement is required? Does § 1983 permit a so-called “cat’s paw” theory of liability for non-
decisionmakers? Cf. Staub v. Proctor Hosp., 562 U.S. 411, 419 (2011); Bose v. Bea, 947 F.3d
983, 991 n.4 (6th Cir. 2020). These inquiries ask legal questions. The problem for Eckart is that
he does not raise them. He simply asserts that “DeCrane can cite to no credible evidence that
Eckart influenced [the relevant] decisions[.]” Appellants’ Br. 35. He nowhere suggests that the
district court failed to apply the proper law on causation. For that matter, he does not cite any
law on this issue. Eckart thus raises a pure sufficiency-of-the-evidence challenge of the kind that
we lack jurisdiction to consider. See Bey, 946 F.3d at 319.
No. 20-3620 DeCrane v. Eckart, et al. Page 21
* * *
We affirm the district court’s decision in part and dismiss Eckart’s appeal in part for lack
of appellate jurisdiction.