Scottie Bagi v. City of Parma , 714 F. App'x 480 ( 2017 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 17a0587n.06
No. 16-4011
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Oct 26, 2017
SCOTTIE A. BAGI; GARY C. VOJTUSH, ) DEBORAH S. HUNT, Clerk
)
Plaintiffs-Appellants, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE NORTHERN
CITY OF PARMA, OHIO, ) DISTRICT OF OHIO
)
Defendant-Appellee. )
)
BEFORE: CLAY, COOK and WHITE, Circuit Judges.
HELENE N. WHITE, Circuit Judge.
Plaintiffs-Appellants Scottie Bagi and Gary Vojtush (collectively “Plaintiffs”) appeal the
district court’s grant of summary judgment to Defendant-Appellee the City of Parma, Ohio. For
the reasons set forth below, we AFFIRM.
I. Background
Plaintiffs are firefighters and medics for the City of Parma Fire Department (PFD). Bagi
has held this employment since 1999, and Vojtush since 1995. The PFD maintains a “Tactical
Emergency Medical Specialist” (TEMS) unit consisting of specially trained firefighter medics
who provide emergency medical support to the city police department’s SWAT team in high-risk
situations. In the event of an injury, TEMS unit members treat the police first, then innocent
bystanders, then criminals. The record does not indicate the specific benefits, if any, that
accrued to members of the TEMS unit, but in the grievance letter at the center of this litigation
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Bagi asserted, “These SWAT positions are important to all of us. It is a way to both enjoy and
advance our careers.” (R. 54-3, PID 267.)
The TEMS unit was first formed sometime in the 1990s but was disbanded around 1999.
In 2004, Fire Chief French directed Captain Poznako to reinstate the TEMS unit. Poznako
adopted a test for interested candidates, drawn from a third-party test bank (2004 test). It was
not a civil service test and there is no allegation that it was required to be; ultimately, French had
discretion to appoint whomever he wanted to the TEMS unit. Poznako emailed the firefighters
on February 13, 2004, announcing the 2004 test. Among the minimum qualifications he
specified in the email was two years of service with the PFD. Poznako administered the 2004
test, which Bagi did not pass.
Some firefighters perceived unfairness in the way the 2004 test was administered, and in
support of Plaintiffs’ opposition to the City of Parma’s motion for summary judgment, Bagi
declared that Poznako told Bagi that members of the city’s SWAT team demanded that a certain
firefighter be chosen for the TEMS team. Firefighter Whelan testified that multiple firefighters
selected the same wrong answers for a number of questions on the 2004 test and therefore credit
was ultimately given for more than one answer to those questions. As a result, some firefighters’
scores rose and some passed who had not before. Bagi’s score increased, but he still did not
pass. In 2009, Bagi brought his concerns about the 2004 test to the attention of the new union
president, Patrick Lovejoy. Lovejoy investigated and found no improprieties in the
administration of the 2004 test.
A TEMS unit member was removed in 2009. In 2011 the PFD held a second TEMS unit
test (2011 test) to fill the empty spot and an additional position. Poznako emailed the PFD
firefighters on June 6, 2011 to announce the test. Among the minimum qualifications he
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specified in the email was three years of service with the PFD. (The years-of-service
requirement was increased by one year to match the police department’s years-of-service
requirement for membership on the SWAT team.) Bagi promptly responded that he would like
to take the test. On June 27, Poznako emailed all the firefighters who had expressed interest in
the test, including Bagi but not Vojtush, to notify them of an upcoming informational meeting.
Bagi did not attend, but he emailed Poznako the next day requesting any information he would
need to know for the test. Poznako set aside study materials for Bagi, but Bagi did not pick them
up. Bagi asked firefighter Fetter for the study materials and received those. On July 12, Bagi
emailed Poznako asking who would be creating the test. He later testified that he wanted to
ensure that there was no bias such as he had perceived in the past.
The test was held in August 2011. Again, it was not a civil service test. It consisted of
five sections: “a written, a practical, a physical, run report documentation, and then also an
interview,” as it had in 2004. (R. 56-1, PID 722–23.) The written “run reports” that were
evaluated were those that firefighters had previously prepared on the job following calls. The
written test was multiple choice. Whelan, who took the 2004 test, selected the written and
physical portions of the 2011 test, and scored those portions of the test. Firefighter Frantz
evaluated the run reports, as he had done in 2004. His grading apparently was not blind.
Firefighter Bazemore and a Dr. Schikowski graded the practical trauma assessment. The police
SWAT commander was in charge of the oral interview and only police were involved in grading
it. Whelan calculated the total scores. The interview portion involved some measure of
subjectivity. Poznako had a role in administering the test, although he does not appear to have
had any direct role. He was present in the room during interviews, but he did not take part. He
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did not take part in writing the written test, did not receive the answer key, and first saw it only a
day or two before it was given. Bagi did not take the test.
Before the test, on about July 8, 2011, Bagi began drafting a letter expressing his
concerns that the test would not be administered fairly. He had a friend who is a lawyer
proofread the letter. At the time he drafted the letter, the information Bagi had about the 2011
test included the materials Fetter provided him and Bagi’s email correspondence with Poznako
concerning the test. The letter states:
July 20, 2010
To Chief French,
In the near future, a member of this Parma Fire Dept will be selected for the SWAT team.
It is important that an issue regarding the selection process be brought to your attention.
The previous testing procedure for SWAT selection have [sic] given many of us great
pause. We were concerned previously that there was bias in the SWAT selection by
Captain Poznako. Specifically, friends or close associates with Captain Pozanko [sic]
seemed to be selected when they were universally believed not to be the best candidates
through both objective and subjective criteria. However, they made it onto the SWAT
team regardless.
Captain Poznako has created a test for the SWAT team. This is a test made up by
Captain Pozanko [sic] and is not a standardized test. Many of us have put significant
hours into studying for this test only to find we were not selected. All of us fully
understand there is a realistic high risk that we will not be the best performer on the test
and will not be accepted onto the SWAT team. That is acceptable to all of us.
However, there has been discontent within your ranks as many are under the belief that
Captain Poznako gave the answers, or at least identified the areas to specifically study, to
his friends and close associates so they could perform well on the test. This is horribly
improper and demoralizing for us.
This letter is being written in advance of the next test. Captain Poznako is a close friend
of FF Fetter. Enclosed you will find a picture of them together at FF Fetter’s daughter’s
graduation party. They openly acknowledge to be friends—which is not in any way
improper. FF Fetter is a good fireman and a likeable person. However, objectively he
only has five years experience with the Department. It is our belief that he will be
selected onto the SWAT team. Again, FF Fetter is a good person and is a good fireman.
What FF Fetter does not understand is that his credibility within the ranks of the Parma
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Fire Dept. will be depreciated significantly amongst us when he is selected due to bias of
Captain Poznako.
These SWAT positions are important to all of us. It is a way to both enjoy and advance
our careers. The selection of SWAT team members should be handled in a controlled
manner not subject to personal whims. If a less qualified person is selected for a SWAT
position due to improper selection (such as giving answers in advance), there becomes a
complete lack of interest in any of us putting forth the effort to become better
fireman/paramedics [sic]. Many of us have had to make a tough decision on whether to
even apply for, much less study for significant hours, for a test where the outcome is
predetermined. The motivation to excel in this department is diminishing due to such
improper bias at the Captain’s level.
Again, this letter is being written in advance of the selection of the SWAT team member.
You will find this letter has been sealed continually since it was mailed and it was sent on
the postmarked date. While all of us hope we are wrong, the fact that you have even
opened this letter and had to read it has shown that our prediction of the future has come
to fruition.
We ask for your intervention to stop such conduct in the future. . . .
(R. 70-2, PID 1171–72.) The letter included as an attachment a photograph of Poznako with
Fetter and others at Fetter’s daughter’s graduation party. The letter was signed by Bagi, Vojtush
and five others. Many of the signatories admitted they did not read the letter or only read part of
it, including Vojtush. The letter is dated July 20, 2011. Bagi mailed the letter to himself by
certified mail.
In October 2011, PFD selected firefighters Fetter and Iacoboni for the TEMS unit. On
October 15, Bagi presented his unopened letter to union vice president Marty Cooper, asking that
he deliver the letter to Chief French. Cooper showed it to union president Lovejoy, who was
unwilling to deliver the envelope to French without knowing its contents and therefore opened it
and read the letter. Lovejoy asked Bagi what basis he had for his allegations, and subsequently
refused his request to deliver the letter, noting that he had found no improprieties in the 2004 test
as Bagi had alleged. Bagi asked for the letter back. Lovejoy left the letter with the chief’s
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secretary for Bagi to collect. Bagi contacted the secretary and she delivered it to the chief. Bagi
also delivered a copy of the letter to the director of human resources.
Assistant Chief Ryan conducted an investigation into the allegations in Bagi’s letter.
Ryan interviewed the six signatories. The investigation found that the letter was incorrect in
numerous respects, including the years-of-service requirement and whether the test was created
by Poznako rather than standardized. Ryan also interviewed Poznako, Fetter and Iacoboni. In a
January 3, 2012 letter to Chief French, Ryan concluded that Bagi’s allegations concerning
sharing answers or areas to study were false. He added, “In fact not one of the [signatories]
could provide any evidence when interviewed. I believe the allegations are false and based on
rumor rather than any factual evidence.” (R. 54-30, PID 439.) The arbitrators in the proceedings
Bagi and Vojtush instituted challenging their discipline in response to the letter also concluded
that the allegations were false.
The signatories were disciplined. On April 16, 2012, Bagi and another signatory were
involuntarily transferred to other stations; Bagi’s shift was also changed. On August 12, 2012,
Vojtush was placed on paid administrative leave. The fire chief issued termination letters to
Bagi and Vojtush on August 14. The city then placed Bagi on paid administrative leave on
September 4. Bagi was given a thirty-four-shift suspension. He grieved the suspension and the
arbitrator reduced it to eight shifts. The arbitrator concluded that Bagi did not knowingly make
false statements, primarily because he could not believe that Bagi would do so knowing the
consequences. Vojtush was given a thirteen-day suspension, which was reduced in arbitration to
two days. All of the other firefighters who signed the letter were suspended for two days.
On March 13, 2014, Plaintiffs Bagi and Vojtush filed the instant lawsuit. Plaintiffs
brought one claim of First Amendment retaliation under 42 U.S.C. § 1983. Plaintiff Vojtush also
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brought a claim of Family and Medical Leave Act (FMLA) retaliation, which he voluntarily
dismissed.
After discovery, the City of Parma brought a motion for summary judgment. It argued
(1) that the letter is not First Amendment-protected speech because it was issued with reckless
indifference to the falsity of the statements it contained; (2) the statements were made by
Plaintiffs in their official capacities and thus they were not speaking as citizens for First
Amendment purposes; (3) the subject of the letter is not a matter of public concern; and (4) the
City of Parma’s interest in running the PFD outweighed Plaintiffs’ speech interests.
Plaintiffs argued that although the allegations in the letter turned out to be baseless, they
had reason to believe they were true. A number of firefighters harbored concerns over
Poznako’s administration of the 2004 test. Also, the interview portion of the 2011 test involved
some measure of subjectivity. In support of Plaintiffs’ opposition to the City of Parma’s motion
for summary judgment, Bagi declared that firefighters were confused about the number of years
of service required for eligibility for the TEMS unit.1 The testimony of a number of firefighters
demonstrated some uncertainty about the years-of-service requirement. Moreover, a number of
firefighters testified that Poznako has a difficult personality. Poznako told one firefighter he
“had a target on his back” for failing to decide to join Poznako’s shift quickly enough. (R. 59-1,
PID 865–66.) Another testified that Poznako could lose his temper over things that would cause
no other officer to do so. Bagi believed Poznako enforces rules as to some firefighters and not
others, but claimed to like him.
1
The letter indicates that Bagi (correctly) believed Fetter had five years of experience at the time
of the test, which would satisfy even the most stringent of the various years-of-service
requirements discussed. However, Bagi now claims he believed that Fetter had fewer than five
years of experience.
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The district court determined that the letter is not First Amendment-protected speech
because it was issued with reckless indifference to the falsity of the statements it contained. The
district court did not reach the City of Parma’s other arguments.
II. Discussion
The court reviews de novo the district court’s grant of summary judgment. Gillis v.
Miller, 845 F.3d 677, 683 (6th Cir. 2017). Summary judgment is appropriate only when “the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “In making that determination, a court
must view the evidence ‘in the light most favorable to the opposing party.’” Tolan v. Cotton,
134 S. Ct. 1861, 1866 (2014) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)).
“Where there are no disputed, material facts, we determine, de novo, whether the district court
properly applied the substantive law.” Gillis, 845 F.3d at 683–84 (quoting Farhat v. Jopke,
370 F.3d 580, 588 (6th Cir. 2004)).
Section 1983 provides, “Every person who, under color of [law], subjects, or causes to be
subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party injured . . . .”
42 U.S.C. § 1983. “Section 1983 creates a ‘species of tort liability’” for these violations.
Manuel v. City of Joliet, Ill., 137 S. Ct. 911, 916 (2017) (citation omitted). Accordingly, a prima
facie § 1983 claim has “the following two elements: (1) the defendant must be acting under the
color of state law, and (2) the offending conduct must deprive the plaintiff of rights secured by
federal law.” Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir. 1998).
The City of Parma does not dispute that it was acting under color of law. Accordingly,
we address only whether the City of Parma’s actions deprived Plaintiffs of federal rights.
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This court uses a burden-shifting framework to evaluate claims of First Amendment
retaliation. Benison v. Ross, 765 F.3d 649, 658 (6th Cir. 2014).
A plaintiff must first make a prima facie case of retaliation, which comprises the
following elements: (1) he engaged in constitutionally protected speech or conduct; (2) an
adverse action was taken against him that would deter a person of ordinary firmness from
continuing to engage in that conduct; (3) there is a causal connection between elements
one and two—that is, the adverse action was motivated at least in part by his protected
conduct. If the employee establishes a prima facie case, the burden then shifts to the
employer to demonstrate by a preponderance of the evidence that the employment
decision would have been the same absent the protected conduct. Once this shift has
occurred, summary judgment is warranted if, in light of the evidence viewed in the light
most favorable to the plaintiff, no reasonable juror could fail to return a verdict for the
defendant.
Id. (citation omitted); see also Charvat v. E. Ohio Reg’l Wastewater Auth., 246 F.3d 607, 616
(6th Cir. 2001).
The City of Parma does not dispute that the suspensions Plaintiffs suffered constituted
adverse actions. Nor does it dispute that the PFD’s disciplinary actions were motivated by
Bagi’s letter. Accordingly, we focus on whether Plaintiffs’ speech was protected, a question of
law, Mayhew v. Town of Smyrna, Tennessee, 856 F.3d 456, 464 (6th Cir. 2017), that we review
de novo, Leary v. Daeschner, 228 F.3d 729, 737 (6th Cir. 2000).
“When the plaintiff is a public employee, []he must make additional showings to
demonstrate that h[is] conduct was protected.” Id. First, “the employee must speak as a private
citizen and not as an employee pursuant to his official duties.” Mayhew, 856 F.3d at 462 (citing
Garcetti v. Ceballos, 547 U.S. 410, 421 (2006)). Second, the employee must speak on a matter
of public concern. Id. (citing Connick v. Myers, 461 U.S. 138, 146 (1983)). Third, the employee
must show that his interest in commenting on the matter of public concern outweighs the interest
of the state, as an employer, in promoting the efficiency of the public services it performs
through its employees. Id. (citing Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will Cty.,
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Illinois, 391 U.S. 563, 568 (1968)). Separately, an employee’s false statements are unprotected
if they were made with “intentional or reckless disregard for the truth.” Westmoreland v.
Sutherland, 662 F.3d 714, 722 (6th Cir. 2011). Because the second requirement is dispositive
here, we proceed to it directly.
“Whether or not a plaintiff’s speech touches on a matter of public concern is a question of
law.” Handy-Clay v. City of Memphis, Tenn., 695 F.3d 531, 543 (6th Cir. 2012). It “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. “Speech involves matters of public concern when it can
be fairly considered as relating to any matter of political, social, or other concern to the
community, or when it is a subject of legitimate news interest; that is, a subject of general
interest and of value and concern to the public.” Lane v. Franks, 134 S. Ct. 2369, 2380 (2014)
(citation and internal quotation marks omitted). “In general, speech involves matters of public
concern when it involves ‘issues about which information is needed or appropriate to enable the
members of society to make informed decisions about the operation of their government.’”
Brandenburg v. Hous. Auth. of Irvine, 253 F.3d 891, 898 (6th Cir. 2001) (citation omitted); see
also Chappel v. Montgomery Cnty. Fire Prot. Dist. No. 1, 131 F.3d 564, 574 (6th Cir. 1997)
(“[T]he First Amendment is concerned not only with a speaker’s interest in speaking, but also
with the public's interest in receiving information”).
“[M]atters of public concern are to be contrasted with internal personnel disputes or
complaints about an employer’s performance.” Brandenburg, 253 F.3d at 898. “Generally,
‘[p]ublic interest is near its zenith when ensuring that public organizations are being operated in
accordance with the law.’” Id. (citation omitted); see also Barnes v. McDowell, 848 F.2d 725,
735 (6th Cir. 1988) (employee grievances concerning managerial incompetence may raise issues
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of public concern if corruption involved); Mayhew, 856 F.3d at 469 (matters of public concern
not limited to illegal acts). This court has contrasted matters of public concern with “the
quintessential employee beef: management has acted incompetently.” Haynes v. City of
Circleville, Ohio, 474 F.3d 357, 365 (6th Cir. 2007) (quoting Barnes, 848 F.2d at 735). “It is not
‘necessary for the entire expression to address matters of public concern, as long as some portion
of the speech does.’” Mayhew, 856 F.3d at 467–68 (citation omitted). If the court finds “that the
employee’s personal interest qua employee predominates over any interest he might have as a
member of the general public, we are not to intercede.” Brown v. City of Trenton, 867 F.2d 318,
322 (6th Cir. 1989). However, the notion that the employee’s motivation could be dispositive is
“plainly illogical and contrary to the broader purposes of the First Amendment.” Chappel,
131 F.3d at 574; see also Banks v. Wolfe Cnty. Bd. of Educ., 330 F.3d 888, 894 (6th Cir. 2003)
(overturning district court that had found that employee’s motivation for speaking could
dominate the substance of the speech and render the communicative purpose purely a matter of
personal concern).
Under this test, Bagi’s letter concerned personnel and internal policy issues, not matters
of public concern. In essence, Bagi’s letter asserted that the candidates were not treated fairly
because a prior test was administered improperly and the upcoming test was likely to be equally
unfair because of Poznako supplying answers or study areas to Fetter, a form of personal
favoritism. Plaintiffs did not allege that Fetter was unqualified or that the administration of the
2011 test put the members of the SWAT team or the public at risk; Plaintiffs even stated that
Fetter is a good firefighter. Nor did they allege nepotism or corruption. Even if the allegations
were true, they would not alone show any violation of law because the position was not subject
to civil service rules and the fire chief had complete discretion in appointing members of the
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2
TEMS unit. The letter alleged “the quintessential employee beef: management has acted
[unfairly].” Haynes, 474 F.3d at 365. This is not a “subject of general interest and of value and
concern to the public,” Lane, 134 S. Ct. at 2380 (citation and internal quotation marks omitted),
or one “about which information is needed or appropriate to enable the members of society to
make informed decisions about the operation of their government,” Brandenburg, 253 F.3d at
898 (citation and internal quotation marks omitted). Finally, Bagi’s personal interest qua
employee appears plainly to predominate over his interest in the administration of the TEMS unit
test as a member of the public. The letter itself states that admission to the TEMS unit is
important to the signatories for their careers. After failing the test in 2004, Bagi complained
about the administration of that test to Lovejoy five years later, and Bagi emailed Poznako in
December 2010 seeking admission to the TEMS unit to “improve [his] career” at the PFD.
(R. 54-16, PID 406.)
Analogous cases in this circuit further support that Bagi’s letter did not address a matter
of public concern. In the cases in which this court has found speech about hiring to touch on
matters of public concern, the speech involved hiring for official positions, and concerned much
more serious allegations tending to show public corruption. In Mayhew, this court found that
speech concerning certain hiring decisions at a wastewater treatment facility touched on matters
of public concern, reversing the district court on this issue. 856 F.3d at 467–69. Mayhew was an
employee of the town’s wastewater treatment plant. Id. at 459. One of his fellow supervisors,
Noble, essentially was fabricating the results of water sampling and pressured Mayhew to do the
same. Id. Mayhew reported this to the plant manager. Id. at 460. But then the city manager
2
Theoretically, such a test could be illegal if applied in a discriminatory way or for other
reasons, but there are no such allegations here.
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promoted Noble to the plant-manager position and promoted the city manager’s nephew to the
chief-operator position. Id. Mayhew emailed the human resources department complaining that
neither new hire was qualified; both had been hired outside of normal hiring procedures; and
Noble had a history of bad practices. Id. at 460–61. Human resources unhelpfully forwarded the
email to the city manager and Mayhew eventually was fired. Id. at 461. This court held that
although Mayhew clearly had a personal interest in his emails, they touched on a matter of public
concern sufficient to qualify as protected speech because they concerned the hiring process in
general and alleged that the new hires were unqualified. Id. at 468–69. Although this allegation
is somewhat similar to the allegation in Bagi’s letter, the issues Mayhew raised are of much
greater public concern. First, Mayhew’s letter addressed hiring and promotion decisions,
whereas membership on the TEMS unit is not a position or rank. Second, Mayhew also asserted
based on first-hand knowledge that Noble carried out his wastewater-monitoring duties
dishonestly and pressured fellow employees to do so as well. Promoting such a person to plant
manager raises a matter of public safety and concern. Additionally, Mayhew implicitly alleged
that nepotism underlay the decision to hire the other unqualified applicant.
Similarly, in Banks, an applicant for a primary teaching position at an elementary school
who was not hired submitted a formal written complaint to the statewide office of education
accountability alleging that the school failed to follow its policies and procedures in hiring the
candidate who was selected, and that there had been irregularities in the hiring of three other
teachers. 330 F.3d at 891. This court found that the plaintiff’s complaint was “‘mixed speech’
involving both personal and public matters,” noting that in addition to the failure to follow hiring
procedures, the plaintiff alleged financial mismanagement, nepotism and improper certification
of staff. Id. at 895. The court held that the allegations touched on public concerns including
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(1) failure to follow state law; (2) hiring non-certified employees, which could negatively impact
the quality of student education; (3) failure to post vacancies, which could have deprived
qualified members of the community of the opportunity for employment;
(4) “favoritism/nepotism,” which might have deprived community members of the opportunity to
participate in an impartial interview; (5) the community’s general interest in knowing how its
teachers are hired and when the district does not follow its own hiring practices; and (6) paying
employees who are not qualified.3 Id. at 896–97. Again, the primary differences between these
concerns and the allegations in Bagi’s letter are that Bagi did not allege that unqualified
applicants were chosen or any violation of law, and membership on the TEMS unit is not a job or
rank conferred by law.4
3
As noted, the court in Banks overturned the district court, which had put too much emphasis on
the plaintiff’s personal motivations for speaking, but the court still relied on those motivations —
rather than the content of the speech—to find that the speech was “‘mixed speech’ involving
both personal and public matters.” Id. at 894.
4
See also Miller v. Admin. Office of Courts, 448 F.3d 887, 894 (6th Cir. 2006) (email
complaining of loss of funding for juror-orientation video did not touch on matters that could
affect the community, i.e., public concern); Johnson v. Univ. of Cincinnati, 215 F.3d 561, 584
(6th Cir. 2000) (university’s failure to comply with its own affirmative action employment policy
was matter of public concern); Buckley v. City of Portage, 191 F.3d 451 (6th Cir. 1999)
(newsletter addressing lack of availability of overtime pay, mishandling of property taken from
fire scene, and alleged failure to follow proper procedures in hiring an officer did not touch on
matters of public concern) (unpublished); Dambrot v. Cent. Michigan Univ., 55 F.3d 1177, 1186
n.8 (6th Cir. 1995) (collecting cases on matters of public concern); Williams v. Com. of Ky.,
24 F.3d 1526, 1536 (6th Cir. 1994) (political patronage hiring and promoting practices were
matters of public concern); Kindle v. City of Jeffersontown, Ky., 374 F. App’x 562, 568 (6th Cir.
2010) (plaintiffs police officer and dispatchers’ report that superior officer violated federal and
state wage and hour laws among many other alleged infractions, corroborated by other officers’
reports, touched on matter of public concern); Fitzpatrick v. City of Frankfort, Kentucky, 305 F.
App’x 258 (6th Cir. 2008) (accepting district court findings that firefighter’s speech concerning
hiring did not touch on matters of public concern); Serrato v. Bowling Green State Univ., 104 F.
App’x 509, 514 (6th Cir. 2004) (complaint to university human resources concerning alleged
death threat by co-applicant for job did not touch on matters of public concern).
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Plaintiffs argue that the letter addressed a matter of public concern because it related to
the workings of the PFD, relying primarily on Mattox v. City of Forest Park, 183 F.3d 515 (6th
Cir. 1999). In Mattox, this court stated, “The speech at issue in this case concerned the workings
of the Forest Park Fire Department and public safety, falling easily under the rubric of
‘comments on matters of public concern.’” 183 F.3d at 521 (quoting Pickering, 391 U.S. at
568). However, the plaintiff in Mattox raised concerns about the fire department that included
the “ransacking of a rescue unit, the placement of a lock on a hazardous materials truck, and the
theft of some morphine,” all of which resulted in an internal investigation by the fire department
as well as a criminal investigation by the police force. Id. at 518. These are much more serious
issues and more likely to affect the community’s decisions on how to run its government.
Mattox does not stand for the proposition that all aspects of the operations of a fire department
constitute matters of public concern.
Plaintiffs also cite Chappel. In that case, the plaintiff raised concerns that the
“ambulance district was not collecting billings; district funds were being misappropriated;
training and standard operating procedures (SOPs) for employees of the fire district were
inadequate; Welch was practicing nepotism; and Welch’s position as both fire chief and
chairman of the fire board created a conflict of interest.” 131 F.3d at 568. Again, these are far-
reaching and more serious concerns than the ones Bagi raised.
Bagi’s letter was exclusively addressed to personnel matters. The focus was on the
effects of the alleged unfairness in the test and selection procedure on the candidates, not the
community: the absence of a standardized test, and Poznako’s alleged assistance to and
favoritism towards friends, is “horribly improper and demoralizing for us”; if Fetter, who is
Poznako’s friend, is chosen, “his credibility within the ranks of the Parma Fire Dept. will be
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Bagi v. City of Parma, Ohio
depreciated significantly amongst us when he is selected due to bias of Captain Poznako,”
notwithstanding that Fetter is a good fireman and a good person; the TEMS positions are
important to the firefighters to both enjoy and advance their careers, and a predetermined test
outcome diminishes their motivation to excel in the department. These concerns are addressed to
management’s fairness in a personnel matter, not matters of public concern. In contrast to the
cases in which this court has found that hiring-related speech touched on matters of public
concern, Bagi’s letter is akin to the personnel matter in Naghtin v. Montague Fire District Board:
Even though Naghtin’s petition refers to ‘the long term good of the Fire District, Fire
Department, and its tax payers,’ the thrust of his petition involves a request to reinstate
Donald Roesler, whose removal from his post as Captain of the Department reeks of
precisely the same ‘internal office politics’ that we have consistently found to be outside
the scope of First Amendment protection.
674 F. App’x 475, 480 (6th Cir. 2016).
In sum, Bagi’s letter did not discuss matters of public concern and therefore was not
protected speech. Because we affirm on this alternative ground, we need not reach the question
the district court found dispositive, whether Plaintiffs spoke with reckless indifference to the
falsity of the content of their speech. Nor need we reach Pickering balancing.
III. Conclusion
For these reasons, we AFFIRM.
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