In Gillis, et al v. Miller, 2017 WL 65563 (6th Cir., January 6, 2017), plaintiffs Gillis and Walraven were correctional officers at the Bay County, Michigan jail. Walraven was a sergeant and Gillis was the President of the local Corrections Officers Union. In early 2014, an investigation began into alleged misconduct at the jail pertaining to drug trafficking, and Gillis began to receive complaints from officers regarding management’s conduct during the investigation, including threats and intimidation.  In response to the complaints, Gillis worked with Walraven to draft and post a memorandum informing the officers of their Weingarten rights. Specifically, the memo advised that if called for an interview, officers should request union representation. Additionally, the memo advised officers that if they were told during the interview not to later discuss the interview with others, they should nevertheless advise the union officers of what transpired. Walraven was terminated three months later for failure to supervise officers appropriately during his watch; and Gillis resigned in late February after being charged with inappropriate relations with an inmate, which he alleged amounted to a constructive discharge.

Both Gillis and Walraven filed suit under 42 USC § 1983, arguing that they were discharged in retaliation for posting the Weingarten memorandum in violation of the First Amendment. The district court granted summary judgment for the Sheriff’s Department, concluding the memorandum was not protected speech because it did not touch on a matter of public concern, and that even if the memo had addressed matters of public concern, the department’s investigatory interests outweighed the plaintiffs’ free speech interests. The Sixth Circuit affirmed, although on somewhat different grounds, with a dissent by Judge Moore.

The Sixth Circuit first set forth its majority opinion by setting out the prima facie case, that the plaintiff must establish: (1) that 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; and (3) there is causal connection between the two in the sense that the adverse action was in part motivated by the protected conduct. Applying the Supreme Court balancing test in Pickering v. Board of Education, 391 U.S. 563 (1968), the court indicated that it must determine whether the employee’s free speech interests outweigh the efficiency interests of the government as employer; weighing the employee’s interests in commenting on matters of public concern against the government’s interest in promoting the efficiency of the public services it performs through its employees.  The plaintiffs had argued that the defendant was required to submit evidence that the memo caused actual disruption to the jail’s operations and because the defendants failed to make that showing, the plaintiffs should prevail under Pickering. The majority disagreed.

Addressing first the balancing test, the court analyzed cases from several other circuits and concluded that there was no necessity for an employer to allow events to unfold to the extent that the disruption of the office and destruction of working relationships is clear before taking action. Rather, the court held that when the employer does not show such evidence, it must assess whether the employer could reasonably predict that the employee speech would cause disruption. In this case, the court found it reasonable that the employer could have predicted disruption of legitimate law enforcement interests. The court noted that the memo suggested to officers that they not speak with management without union representation; provided a script for officers to use; and encouraged the officers to disregard management’s instructions not to disclose the substance of their interviews with others. The court found that the defendants could have legitimately predicted that this advice would have hindered their ability to conduct a timely and efficient investigation regarding contraband in the jail in the face of potential harm or loss of life.

With respect to the issue of whether the memo addressed matters of public concern, the court found it to be close question, but in light of the failure of the plaintiffs’ claims under the Pickering test, there was no need to reach that issue.