Everett Perry v. Kenneth McGinnis

24 Perry v. McGinnis, et al. No. 98-1607
raised the matters repeatedly in public fora (although the court
noted that Chappel’s private speech was also protected), his
“speech on these matters was almost entirely undiluted by
speech indicating purely personal interests,” and there was
strong public interest in his speech. Id. at 578. Unlike
Chappel, however, Perry’s speech addresses only his personal
interests.
For these reasons, I would affirm the district court’s
dismissal of Perry’s free speech claim arising from his
workplace complaints of race discrimination because his
speech involved only a personal employment dispute, not a
matter of public concern.
Finally, because I would affirm the dismissal of Perry’s
First Amendment allegations, I would also affirm the
dismissal of his substantive due process claim.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0133P (6th Cir.)
File Name: 00a0133p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
EVERETT P ERRY ,
Plaintiff-Appellant,
v.
KENNETH M CGINNIS, et al.,
Defendants-Appellees.
;>

1
No. 98-1607
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 96-71373—Patrick J. Duggan, District Judge.
Argued: November 4, 1999
Decided and Filed: April 13, 2000
Before: KEITH, NORRIS, and CLAY, Circuit Judges.
_________________
COUNSEL
ARGUED: William Goodman, CENTER FOR
CONSTITUTIONAL RIGHTS, New York, New York, for
Appellant. Frank J. Monticello, OFFICE OF THE
ATTORNEY GENERAL, PUBLIC EMPLOYMENT AND
ELECTIONS DIVISION, Lansing, Michigan, for Appellees.
ON BRIEF: Julia Ila Sherwin, HADDAD & SHERWIN,

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2 Perry v. McGinnis, et al. No. 98-1607
1Defendants-Appellees are Kenneth McGinnis, Director of the
Michigan Department of Corrections (the “MDOC”); Richard Stapleton,
Manager of the Hearings and Appeals Division of the Office of Policy
and Hearings for the MDOC; Marjorie Van Ochten, Administrator of the
Office of Policy and Hearings for the MDOC; and Leonard Den Houter,
Supervisor of the Office of Policy and Hearings for the MDOC.
Oakland, California, for Appellant. Frank J. Monticello,
OFFICE OF THE ATTORNEY GENERAL, PUBLIC
EMPLOYMENT AND ELECTIONS DIVISION, Lansing,
Michigan, for Appellees. Frederick M. Baker, Jr.,
HONIGMAN, MILLER, SCHWARTZ & COHN, Lansing,
Michigan, for Amicus Curiae.
KEITH, J., delivered the opinion of the court, in which
CLAY, J., joined. NORRIS, J. (pp. 21-24), delivered a
separate opinion concurring in part and dissenting in part.
_________________
OPINION
_________________
DAMON J. KEITH, Circuit Judge. Plaintiff-Appellant
Everett Perry (“Perry”) appeals from the district court’s
decisions on Defendants-Appellees’1 (the “prison officials”)
motion for summary judgment pursuant to Federal Rule of
Civil Procedure (“FRCP”) 56(c) and motion to dismiss for
failure to state a claim upon which relief can be granted
pursuant to FRCP 12(b)(6). We REVERSE the district
court’s decisions and REMAND for further consideration
consistent with this opinion.
I. Background
On October 30, 1988, Perry, a Black man, was hired by the
Michigan Department of Corrections (the “MDOC”) as an
Administrative Law Examiner (“ALE”). Specifically, he
worked for the MDOC’s Office of Policy and Hearings as a
hearing officer and decision maker in major misconduct
No. 98-1607 Perry v. McGinnis, et al. 23
inherently of public concern.” Connick, 461 U.S. at 148 n.8.
The Court also noted, however, that the speech at issue in
Givhan was “not tied to a personal employment dispute.” Id.
Furthermore, this court has determined that “[t]he fact that an
employee alleges discrimination on the part of a public
employer is not itself sufficient to transform the dispute into
a matter of public concern.” Jackson v. City of Columbus,
194 F.3d 737, 746 (6th Cir. 1999). In Jackson, a public
employee alleged that his right to freedom of speech was
violated when the city imposed a gag order on him,
forbidding him from speaking with the news media about an
investigation into his alleged misconduct while the
investigation was pending. See id. The court focused on
several points when holding that Jackson had sufficiently
alleged that his speech involved a matter of public concern.
First, the court noted that Jackson was not an ordinary
employee, but a high-profile member of the community. Id.
at 747. Furthermore, the court indicated that “[b]ecause the
investigation involved allegations of corruption and abuse of
power within the Division of Police, as well as the City’s
allegedly racial motivations, the gag order could be construed
as covering more than a private employment dispute.” Id.
(emphasis added). Unlike the plaintiff in Jackson, there is no
indication that Perry is alleging speech regarding anything
other than his personal employment dispute.
The case relied upon by the majority, Chappel v.
Montgomery County Fire Protection District No. 1, 131 F.3d
564 (6th Cir. 1997), does not alter my conclusion. In
Chappel, the public employee spoke about his concerns as to
serious problems with the finances and management of the
fire and ambulance districts in his area. Chappel had a
personal motivation for the speech: if enough people agreed
with his concerns, his career could benefit. However, this
court did not deem Chappel’s desire to gain from his speech
as dispositive, even assuming that his predominant motivation
for the speech was to secure a job for himself. See id. at 578.
Instead, the court determined that the context showed
Chappel’s speech was on a matter of public concern because
he addressed matters “near the zenith” of public concern, he

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22 Perry v. McGinnis, et al. No. 98-1607
While MDOC’s alleged guilty verdict quota may be improper,
the First Amendment is not an appropriate means to address
the problem.
I also disagree with the majority’s reliance upon Parate v.
Isibor, 868 F.2d 821 (6th Cir. 1989). In Parate, this court
determined that the assignment of a letter grade is symbolic
communication intended to send a specific message to a
student, noting that “[t]he message communicated by the
letter grade ‘A’ is virtually indistinguishable from the
message communicated by a formal written evaluation
indicating ‘excellent work.’” Id. at 827. In the present case,
an analogous message is not at issue. Perry has not suggested
that appellees have interfered with the message of his
opinions to individual prisoners that they were or were not
guilty of misconduct. Instead, Perry focuses on alleged
speech about MDOC’s requirements for numbers of guilty
verdicts. This purported message cannot be implied from
Perry’s ALE findings with the ease that a message of
“excellent work” can be implied from the assignment of a
letter grade “A.” Nor do I find the question of academic
freedom analogous to the present situation.
For these reasons, I disagree with the majority’s
determination that Perry engaged in speech on a matter of
public concern through his ALE findings. Therefore, I would
affirm the district court’s dismissal of Perry’s First
Amendment claim premised on speech in his ALE findings,
albeit on a different ground than that articulated by the district
court.
The majority also holds that Perry’s internal grievance of
racially disparate treatment is a matter of public concern. I
disagree. A determination of whether speech involves a
matter of public concern must be based on the content, form,
and context of a given statement, as revealed by the whole
record. Connick v. Myers, 461 U.S. 138, 147-48 (1983).
While discussing Givhan v. Western Line Consolidated
School District, 439 U.S. 410, 415-16 (1979), the Supreme
Court has indicated that racial discrimination is “a matter
No. 98-1607 Perry v. McGinnis, et al. 3
disciplinary hearings in Michigan state prisons. On
November 5, 1993, Perry was fired.
Perry filed his initial complaint on March 27, 1996. After
a volley of motions to dismiss and amended complaints, Perry
filed his final amended complaint on September 20, 1996,
bringing First and Fifth Amendment claims as well as a
Fourteenth Amendment equal protection claim, a claim of
equal protection violations in contravention of the Michigan
Constitution, and a claim of race discrimination in violation
of Michigan’s Elliott-Larsen Civil Rights Act (the
“ELCRA”). The prison officials subsequently filed a motion
to dismiss for failure to state a claim upon which relief can be
granted under FRCP 12(b)(6). On March 14, 1997, the court
dismissed Perry’s First and Fifth Amendment claims, but
denied the prison officials’ motion with respect to the equal
protection and ELCRA claims. Perry, soon thereafter,
voluntarily dismissed his equal protection claim brought
under the Michigan Constitution. On September 16, 1997,
the prison officials filed a motion for summary judgment, and
on April 15, 1998, the district court granted summary
judgment on the remaining claims. Perry appeals the lower
court’s grant of summary judgment for the prison officials as
well as its grant of the prison officials’ motion to dismiss.
II. Race Discrimination
Perry argues that the district court erred in determining that
he failed to raise genuine issues of material fact as to his race
discrimination claims under the Fourteenth Amendment and
the ELCRA. We agree.
This Court reviews grants of summary judgment de novo,
and applies the same standard that the district courts apply.
That test is set out in FRCP 56(c): “Summary Judgment is
only 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 moving party is entitled to judgment
as a matter of law.” In applying this test, it is well settled that
“[t]he evidence of the non-movant is to be believed, and that

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4 Perry v. McGinnis, et al. No. 98-1607
all justifiable inferences are to be drawn in his favor.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Furthermore, summary judgment is generally not well suited
for cases in which motive and intent are at issue and in which
one party is in control of the proof. See Cooper v. North
Olmsted, 795 F.2d 1265, 1272 (6th Cir. 1986). In Gutzwiller
v. Fenik, 860 F.2d 1317, 1325 (6th Cir. 1988), this Court
established that a plaintiff asserting a Fourteenth Amendment
equal protection claim under 42 U.S.C. §1983 must prove the
same elements required to establish a disparate treatment
claim under Title VII of the Civil Rights Act of 1964. Both
parties agree that in order to establish a prima facie case, the
plaintiff must set forth the following elements: “1) he was a
member of a protected class; 2) he was subject to an adverse
employment action; 3) he was qualified for the job; and 4) for
the same or similar conduct, he was treated differently from
similarly situated non-minority employees.” Perkins v.
University of Mich., 934 F.Supp. 857, 861 (E.D. Mich. 1996);
see Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir.
1992). It should be noted that the plaintiff’s race need only be
a motivating factor – not necessarily the sole factor – in order
for the plaintiff to succeed in his claim. See Gutzwiller, 860
F.2d at 1328.
Both parties agree that Perry has satisfied prongs one and
two of this test. The parties, however, disagree with respect
to prongs three and four. Perry argues that he was qualified
for his job and that he was treated differently from his
similarly situated White colleagues. The prison officials
disagree.
After reviewing the record, it is clear that genuine issues of
material fact exist as to whether Perry was qualified and
whether he was treated differently from similarly situated
colleagues. As such, the district court inappropriately granted
summary judgment for the prison officials. We first address
the issue of Perry’s disparate treatment and then address his
qualifications.
No. 98-1607 Perry v. McGinnis, et al. 21
1If I were to consider the issue in Part III.A.2.b, however, I would
agree with the majority opinion to the extent that it suggests the district
court erred in determining that application of the Pickering test could only
favor appellees.
_______________________________________________
CONCURRING IN PART, DISSENTING IN PART
_______________________________________________
ALAN E. NORRIS, Circuit Judge, concurring in part and
dissenting in part. I concur with the majority’s decision in
Part II and agree that the grant of summary judgment should
be reversed with respect to Perry’s race discrimination claims
under the Fourteenth Amendment and Michigan’s Elliott-
Larsen Civil Rights Act. However, because Perry did not
allege that he engaged in speech involving a matter of public
concern, I respectfully dissent from Parts III.A.1, III.A.2.a,
III.B, and IV of the majority’s opinion and would not reach
the issue addressed in Part III.A.2.b.1
The majority opinion indicates that Perry’s “insistence
through his decisions that he be impartial and operate within
the confines of constitutional law, constitutes speech on a
matter of public concern.” I disagree with this conclusion and
the implications upon which it relies. In his complaint, Perry
alleges that he was terminated because of his “speech and/or
conscience in opposing, failing and/or refusing to find a
higher percentage of prisoners guilty of misconduct.” The
complaint later indicates that Perry was deprived of his First
Amendment rights when he was disciplined and terminated
for “his speech in opposition to . . . unlawful pressure to find
more prisoners guilty.” In my opinion, it is too great a stretch
to imply from Perry’s findings as an ALE that he was
engaging in speech about MDOC’s alleged quotas for guilty
verdicts. Perry never alleges that in his ALE findings he
discussed his opinion about MDOC’s alleged policies or
desire for him to find more prisoners guilty and more prison
guards credible. Instead, the first time Perry states his opinion
of the alleged quotas is in his complaint to the district court.

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20 Perry v. McGinnis, et al. No. 98-1607
6At one point, Perry pressed a substantive due process claim based
on his right to equal protection, but the prison officials accurately note
that Perry agreed below to voluntarily dismiss that claim. As such, Perry
has forfeited the claim and cannot advance it now.
decision to dismiss Perry’s substantive due process claim
relating to the fundamental right of free expression is reversed
and remanded for further consideration.6
V. Conclusion
For the foregoing reasons, the district court’s judgment is
REVERSED, and the case is REMANDED.
No. 98-1607 Perry v. McGinnis, et al. 5
Considering that under summary judgment analysis all
justifiable inferences are to be drawn in favor of the non-
movant and the non-movant’s evidence is to be believed, it is
surprising that the district court decided as it did. This Court
has held that to qualify as “similarly-situated” in the
disciplinary context, the plaintiff and the colleagues to whom
he seeks to compare himself “must have dealt with the same
supervisor, have been subject to the same standards and have
engaged in the same conduct without such differentiating or
mitigating circumstances that would distinguish their conduct
or the employer's treatment of them for it.” Mitchell, 964 F.2d
at 583. In addition, this Court has asserted that in applying
the standard courts should not demand exact correlation, but
should instead seek relevant similarity. See Ercegovich v.
Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir.
1998). Here, all hearing officers were supervised by the same
officials, subject to the same standards, and charged with the
same duties. They were indeed similarly situated.
Abundant record evidence demonstrates that the prison
officials treated Perry differently than these similarly situated
non-minority employees. The depositions of non-minority
hearing officers, as well as other portions of the record, are
replete with instances of disparate treatment. The following
represent just a few examples.
The prison officials disciplined Perry on several occasions
for typographical errors. Hearing Officer Thomas Craig
testified in his deposition that he commits a typographical
error in every hearing report that he does. The prison
officials, however, have never disciplined Craig for such
errors. Similarly, Hearing Officer Miriam Bullock testified in
her deposition that she commits a typographical error in all of
her hearing reports. Like Craig, Bullock has never been cited
for such errors.
Perry failed to correct an incorrect inmate number (that a
corrections officer wrote) on a disciplinary ticket, and was
disciplined. Officer Bullock herself once typed the wrong
inmate number for a prisoner, resulting in the wrong prisoner

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6 Perry v. McGinnis, et al. No. 98-1607
receiving a guilty finding in his record. The prison officials,
however, did not discipline her.
The prison officials disciplined Perry for stating the charge
of “Destruction or Misuse of Property with a Value of $10.00
or More” as “Destruction: Misuse of Property with a Value of
$10.00 or More.” In other words, they disciplined him for
replacing the word “or” with a colon. Officer Bullock,
however, testified that she has frequently failed to type the
proper name of a charge on the corresponding report, and yet
Bullock has never been disciplined for failing to do so.
The prison officials disciplined Perry for re-listing a case to
get physical evidence or a photograph of physical evidence
that he deemed relevant. Hearing Officer Ann Baerwalde has
re-listed cases to get physical evidence or a photograph of
physical evidence that she deemed relevant, but has never
been disciplined for doing so.
The prison officials disciplined Perry for failing to state in
his hearing record that a door is worth more than $10 (when
an element of the crime demanded that the property be worth
more than $10). Leonard Den Houter, Supervisor of the
Office of Policy and Hearings and Perry’s direct supervisor,
admits that other hearing officers have made the same
mistake, but he does not recall disciplining them.
Perry’s infractions and those of his colleagues were
obviously of “comparable seriousness,” as is required under
the standard. Mitchell, 964 F.2d at 583 n.5. As such, it is
abundantly clear that genuine issues of material fact exist as
to whether the prison officials treated Perry differently from
similarly situated non-minority employees. Consequently, we
conclude that the district court erred in finding that Perry did
not satisfy prong four of the test.
The court erred as to prong three as well. The prison
officials accept that Perry would seem qualified for the job in
that he has a law degree and is a member of the Michigan Bar,
but they argue that his job performance was poor. In doing
so, the prison officials rely almost exclusively on Perry’s
No. 98-1607 Perry v. McGinnis, et al. 19
distinction between matters of public concern and matters
only of personal interest, not civic-minded motives and self-
serving motives.” Chappell, 131 F.3d at 575. Thus, whether
Perry’s racial discrimination complaint was borne of civic-
minded motives or of an individual employment concern is
irrelevant. What is relevant is that the subject of Perry’s
complaint was racial discrimination – a matter inherently of
public concern, according to the Supreme Court. See Connick,
461 U.S. at 148 n.8.
We find that Perry’s complaint of racially disparate
treatment, which consisted of an internal grievance, is a
matter of public concern, and as such, we remand the issue to
the district court for further consideration in line with this
opinion.
IV. Substantive Due Process
Perry asserts that the district court erred in granting the
prison officials’ FRCP 12(b)(6) motion to dismiss his
substantive due process claim. A substantive due process right
may be implicated when a public employee is discharged for
reasons that shock the conscience. See McMaster v. Cabinet
for Human Resources, 824 F.2d 518, 522 (6th Cir. 1987).
The violation of a fundamental right, however, is necessary
for a successful substantive due process claim. See Sutton v.
Cleveland Bd. of Educ., 958 F.2d 1339, 1350 (6th Cir. 1992).
Therefore, the crux of the question is whether the prison
officials violated one of Perry’s fundamental rights.
Just as the district court found that Perry’s right to freedom
of expression was not abused, the court found that his right to
freedom of expression could not serve as the fundamental
right necessary for due process analysis. On that basis, the
court dismissed Perry’s substantive due process claim.
Because Perry’s First Amendment claim was incorrectly
dismissed, it logically follows that his substantive due process
claim based on the First Amendment claim should not have
been dismissed – in that the right to freedom of expression
should have been viewed as a fundamental right in the
substantive due process analysis. As such, the district court’s

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18 Perry v. McGinnis, et al. No. 98-1607
complaint is, as a matter of law, a matter of public concern.
A review of the case law reveals that Perry is correct.
In Connick, discussed above, the Supreme Court clearly
established that racial discrimination is inherently a matter of
public concern. See Connick, 461 U.S. at 148 n.8.
Furthermore, in Givhan v. Western Line Consolidated School
District, 439 U.S. 410 (1979), the Supreme Court established
that an employee’s choice to communicate privately with an
employer does not strip the concern of its public nature.
“Neither the [First] Amendment itself nor our decisions
indicate that [freedom of speech] is lost to the public
employee who arranges to communicate privately with his
employer rather than to spread his views before the public.”
Givhan, 439 U.S. at 415-16. Here, it is undisputed that Perry
complained about racial discrimination and that he did so in
a private conversation with supervisors.
The prison officials, however, argue that although Perry
complained of racial discrimination and did not lose his First
Amendment protection by communicating privately, Perry’s
claim is not a matter of public concern. The prison officials
rely on Rice v. Ohio Department of Transportation, 887 F.2d
716 (6th Cir. 1989), for the proposition that if an employee is
not speaking out as a citizen, but is instead advancing his own
personal employment dispute, that employee’s complaint may
not be deemed a matter of public concern. See Rice, 887 F.2d
at 721. The prison officials note that Perry was complaining
in the course of his personal employment dispute, and that the
district court, citing Rice, decided that Perry’s complaint was
not a matter of public concern.
The district court, however, made its decision in the instant
case on September 11, 1996, over a year before the Sixth
Circuit decided Chappell v. Montgomery County Fire
Protection, 131 F.3d 564 (6th Cir. 1997). Chappell, a case in
which this Court examined what is a matter of public concern,
clears up any confusion resulting from Connick, and disposes
of the issue. In Chappell, this Court plainly states that “[t]he
fundamental distinction recognized in Connick is the
No. 98-1607 Perry v. McGinnis, et al. 7
2On December 10, 1992, Perry was disciplined for failing to state
why a razor blade is dangerous in his report regarding a charge of
Possession of Dangerous Contraband.
3Claims for race discrimination in violation of the ELCRA, like
Fourteenth Amendment equal protection claims, are interpreted in
accordance with Title VII of the Civil Rights Act of 1964. See Kitchen v.
Chippewa Valley Sch., 825 F.2d 1004, 1012 (6th Cir. 1987). As such, the
numerous citations for the alleged substandard disposition of
cases during his tenure. The discussion of prong four above,
however, is enough to derail the prison officials’ argument.
From the beginning, Perry has insisted that the citations he
received were pretextual. Evidence indicating that Perry was
often cited for errors for which other hearing officers were not
cited and was cited for omissions that seem trivial,2 supports
Perry’s contention. There is, therefore, clearly a genuine issue
of material fact regarding Perry’s qualifications.
The district court erred in failing to draw inferences in
favor of Perry and consequently determining that Perry failed
to satisfy prongs three and four of the aforementioned test.
This error led the district court to grant summary judgment for
the prison officials.
We acknowledge the possibility that the prison officials’
disparate treatment of Perry had nothing to do with race.
Perhaps, the prison officials were upset that his not-
guilty/dismissal rate was so high relative to the norm
(discussed infra). And perhaps, as the prison officials argue,
Perry was not carrying his weight as a hearing officer. On the
other hand, it is possible that the prison officials disciplined
and ultimately terminated Perry because of the color of his
skin. Trials exist to resolve such issues of fact, and summary
judgment is to be used only when there is no question as to
such issues of fact. Here, many questions are left unresolved.
These questions must be resolved at trial.
The grant of summary judgment is reversed and the case is
remanded for further consideration.3

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8 Perry v. McGinnis, et al. No. 98-1607
discussion in Part II of this opinion is completely applicable to the
ELCRA claim, and the conclusion is the same – the grant of summary
judgment is reversed and the case is remanded.
III. Freedom of Expression
Perry further argues that the district court erred in granting
the prison officials’ motion to dismiss his §1983 claim for
violation of his right to freedom of expression under the First
Amendment, made applicable to the states by the Fourteenth
Amendment. We agree.
An FRCP 12(b)(6) motion to dismiss for failure to state a
claim may only be granted if it is clear beyond a doubt that
the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief. See Hishon v. King &
Spaulding, 467 U.S. 69, 73 (1984). In determining how to
handle the motion, the court must accept all of the plaintiff’s
factual allegations as true and must construe the complaint in
the light most favorable to the plaintiff. See Sistrunk v. City of
Strongsville, 99 F.3d 194, 197 (6th Cir. 1996). Further, “this
court will scrutinize with special care any dismissal of a
complaint filed under a civil rights statute.” Brooks v. Seiter,
779 F.2d 1177, 1180 (6th Cir. 1985). Finally, this Court must
review the district court’s dismissal de novo. See Cameron v.
Seitz, 38 F.3d 264, 270 (6th Cir. 1994).
In order to have stated a claim under §1983, Perry must
have alleged in his complaint that 1) he was deprived of a
right secured by the Constitution or laws of the United States
and that 2) the deprivation was caused by someone acting
under color of state law. See West v. Atkins, 487 U.S. 42, 48
(1988).
In the instant matter, there is no debate as to the second
prong. The prison officials do not dispute that while working
under the authority of the MDOC they were acting under
color of state law. The question is whether Perry was
deprived of a right secured by the Constitution. Perry asserts
that he was deprived of his First Amendment right to freedom
No. 98-1607 Perry v. McGinnis, et al. 17
that he was disciplined and terminated because of the
MDOC’s interest in ensuring guilty findings for no less than
90% of defendants. Drawing all inferences in favor of the
plaintiff, as is required under FRCP 12(b)(6), would
seemingly lead the district court to the conclusion that part of
the government’s interest – if not its entire interest – in
disciplining and terminating Perry was in maintaining a guilty
rate of 90%. As explained above, adherence to a particular
guilty rate necessarily results in arbitrary justice for innocent
inmates adjudged guilty in the pursuit of this interest.
Insistence upon a 90% guilty rate flies in the face of due
process as mandated by Wolff, and is thus not a legitimate
organizational interest.
At the very least, the record is not thorough enough to
determine whether the MDOC’s interest in impairing Perry’s
First Amendment right through discipline and termination
was based on a desire to maintain accountability or a desire to
maintain a 90% guilty rate. As such, the district court erred
in determining that the Pickering balance could only favor the
prison officials and in consequently granting the prison
officials’ motion to dismiss. Therefore, the issue is remanded
to the district court for further consideration in line with this
opinion.
B.
In his complaint, Perry states that while working for the
MDOC, he made an internal grievance, asserting that he was
being disciplined because of his race, and that he was further
disciplined and ultimately terminated, in part, because of
those complaints. The Pickering test applied in Part III(A) of
this opinion governs this analysis as well. In this instance,
however, the district court used the first prong of the test to
dispose of the issue – determining at the FRCP 12(b)(6) stage
that Perry’s complaint of racially disparate treatment, which
consisted of an internal grievance, did not constitute a matter
of public concern.
On appeal, Perry argues that the court simply
misunderstood the governing precedent, and that Perry’s

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16 Perry v. McGinnis, et al. No. 98-1607
against proceeding to the fact-finding stage of the trial. It
erred in doing so.
Moreover, the district court struck the balance in an
impermissible manner. Both the Supreme Court in Rankin
and this Court in Meyers v. City of Cincinnati, 934 F.2d 726
(6th Cir. 1991), have outlined the considerations which a
court must take into account when utilizing the balancing test.
Taking its cue from Rankin, this Court wrote:
In order to justify a restriction on speech of public
concern by a public employee, plaintiff’s speech must
impair discipline by superiors, have a detrimental impact
on close working relationships, undermine a legitimate
goal or mission of the employer, impede the performance
of the speaker’s duties, or impair harmony among co-
workers. The state bears the burden of showing a
legitimate justification for discipline. As in Rankin, we
look for evidence of the impact of the statement on the
city’s legitimate organizational interests.
Meyers, 934 F.2d at 730 (citations omitted) (emphasis added).
MDOC’s organizational interest, therefore, must be legitimate
if the court is to effectuate a meaningful balancing. The
district court concluded that the MDOC’s interest was
legitimate. We disagree.
The district court asserted that “[t]he MDOC has to be able
to discipline its hearing officers for findings and credibility
determinations made in prison misconduct hearing reports;
otherwise all ALEs would be insulated from accountability
for any statements made in that context.” Thus, the district
court determined that the organizational interest at stake was
the MDOC’s interest in maintaining accountability among
hearing officers. We acknowledge that maintaining
accountability is a legitimate interest. Whether the
government’s interest in maintaining accountability led to
Perry’s disciplining and ultimate termination, however, is far
less clear. Perry has produced substantial evidence suggesting
that the MDOC implores its hearing officers to find no less
than 90% of the defendant’s before them guilty, and he insists
No. 98-1607 Perry v. McGinnis, et al. 9
of expression in two ways: 1) he suffered retaliatory
termination because of his findings made as an ALE in
prisoner misconduct hearings; and 2) he suffered retaliatory
termination because of his complaints of race discrimination.
We will deal with the two in turn.
A.
1.
As a threshold matter, we must determine whether Perry’s
decisions made in inmate disciplinary hearings constitute
expression as protected by the First Amendment. We find that
they do. The Supreme Court has long held that
communicative action is protected by the First Amendment.
See Tinker v. Des Moines Indep. Community Sch. Dist., 393
U.S. 503, 505-506 (1969) (holding that the act of wearing a
black armband constitutes expressive conduct and is protected
by the First Amendment); Brown v. Louisiana, 383 U.S. 131,
141-42 (1966) (holding that a sit-in by Black students
constitutes symbolic speech).
This Circuit has done the same – most notably and
relevantly in Parate v. Isibor, 868 F.2d 821 (6th Cir. 1989).
Parate involved an engineering professor at Tennessee State
University, Natthu Parate, who refused to alter his evaluation
of a student and was subsequently subjected to discipline and
threats of termination. Parate assigned the student a “B”
while the Dean of Tennessee State’s School of Engineering
and Technology – whom the Court suggests had a particular
affinity for the student involved because of a shared national
heritage – insisted that the student receive an “A”. When
Parate refused, the Dean disciplined Parate and threatened to
fire him.
The Court explained that because “the assignment of a
letter grade is symbolic communication intended to send a
specific message to the student, the individual professor’s
communicative act” falls within the bounds of the First
Amendment. Parate, 868 F.2d at 827. The Court then held
that the Dean’s act of forcing Parate to choose between

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10 Perry v. McGinnis, et al. No. 98-1607
changing the grade against his professional judgment and
keeping his job “unconstitutionally compelled Parate’s
speech.” Id. at 830.
Although Parate and the instant case involve different
sectors of the state’s machinery – an educational institution
and a correctional institution – the cases involve nearly
identical communicative acts protected by the First
Amendment. In the instant case, as in Parate, the state
entrusted one of its employees with the task of reviewing
facts, evaluating a set of circumstances, and making a
decision. In Parate, the decision was handed down in the
form of a letter grade. In the case at bar, the decisions came
in the form of guilty/not-guilty determinations. Perry’s
decisions, like Parate’s, are communicative acts – acts aimed
squarely at the inmates in question with the goal of
reemphasizing the parameters of acceptable behavior in
prison.
In Parate, this Court decided that the attempt to pervert the
communicative acts with discipline and threatened
termination was the essence of coerced expression. Such
compulsion in the academic realm is certainly of concern. It
is, however, particularly unsettling in the instant case because,
here, the interference results in the heavy hand of the state’s
disciplinary authority being brought to bear on inmates who
may have done nothing to deserve the invocation of that
authority.
We find that a disciplinary hearing decision, like the
assignment of a letter grade, is a communicative act entitled
to First Amendment protection.
2.
A determination that First Amendment-protected
expression is involved is, of course, only a preliminary issue
in the analysis of a First Amendment retaliatory discharge
claim.
No. 98-1607 Perry v. McGinnis, et al. 15
or another. Just a couple that I haven’t heard ever say
that.
If hearing officers focus on finding 90% of the defendants
before them guilty, as the evidence adduced thus far suggests,
they cannot possibly be impartial, as is required by Wolff.
The prisoner whose case merits a not-guilty finding, but
whose case would result in the eleventh not-guilty finding in
one hundred decisions, is sunk. His fate is sealed before his
file is opened. Such a system reeks of arbitrary justice, which
can only be injustice.
Because Perry’s speech served to ensure that the MDOC,
an arm of the state, was operating in accordance with the law
as established in Wolff, it concerns the most public of matters.
b.
As noted above, the district court surpassed prong one of
the Pickering test altogether, and based its disposition of the
case on prong two, concluding that the MDOC’s interest in
disciplining ALEs outweighed Perry’s right to speak on a
matter of public concern. In concluding as such, the court
erred.
In many cases, due to inadequate factual development, the
prong two balancing test “cannot be performed on a 12(b)(6)
motion.” Weisbuch v. County of Los Angeles, 119 F.3d 778,
783 (9th Cir. 1997). This is such a case. Because the facts
were not well enough developed in the pleadings, the court
should not have performed the test. The court, however,
performed the test by going beyond the pleadings and
engaging in fact finding, which is impermissible at the FRCP
12(b)(6) stage. Reaching beyond the pleadings, the court
determined that the MDOC’s interests outweighed Perry’s
rights. The court based its decision on the proposition that the
MDOC must be able to discipline its hearing officers for their
decisions in order to prevent all ALEs from being insulated
from accountability. Nothing in the pleadings could have led
the court to such a conclusion. Such a conclusion required
the finding of facts. The district court, however, decided

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14 Perry v. McGinnis, et al. No. 98-1607
Here, Perry asserts that pursuant to the Supreme Court’s
mandate in Wolff, he acted non-arbitrarily and as an impartial
and independent fact finder. He further asserts that through
his disciplinary hearing decisions, made with an eye toward
justice and impartiality, he was ensuring – at least to the
extent of the cases for which he was responsible – that the
MDOC was operating in accordance with the law as
established by Wolff.
Perry alleges that the MDOC, however, was contravening
the law by demanding that ALEs find 90% of inmates
appearing before them guilty. Van Ochten denies that she or
any of the hearing officers under her supervision (of whom
Perry was one) were ever formally limited to a particular not-
guilty/dismissal rate. Regardless of whether she and her
hearing officers were beholden to a formal regulation
demanding a certain not-guilty/dismissal rate, overwhelming
evidence suggests that there was, at the very least, a strong
expectation that the not-guilty/dismissal rate should not rise
above 10%. In her own deposition, Van Ochten admits that
Deputy Director Bolden of the Correctional Facilities
Administration decided “that if the not-guilty/dismissal rate
at a facility went above a certain percentage, that he was
going to view that as a trouble signal.” The critical rate was
20% in the early 1980's, but Bolden reduced it to 10% in the
early 1990's, noting that he “thought [the MDOC] should be
doing better.” Van Ochten concedes that the rate was
discussed at meetings and that, when not-guilty/dismissal
rates got high, there was pressure “put on wardens to bring
those rates down.” Further still, at trial, Hearing Officer
Arvid Perrin testified specifically about the ubiquity of that
coercion when asked to recite the names of every hearing
officer who complained about the pressure to find inmates
guilty:
I’ve heard complaints from Hearing Officers about times
they were criticized for finding somebody not guilty or
dismissing a case. . . . I think the exception would be,
you know, easier. . . . [P]eople I have seen and talked to,
I would say just about all of them I had heard at one time
No. 98-1607 Perry v. McGinnis, et al. 11
4Because prong three of the Pickering test involves a determination
of fact, normally reserved for a jury or the court in its fact-finding role,
see Tao v. Freeh, 27 F.3d 635, 639 (D.C. Cir. 1994), the district court
rightfully did not reach it.
It is well established that a government employer cannot
“condition public employment on a basis that infringes the
employee’s constitutionally protected interest in freedom of
expression.” Connick v. Myers, 461 U.S. 138, 142 (1983). As
a logical consequence, retaliation by a government employer
against an individual who exercises his First Amendment
rights constitutes a First Amendment violation. See Zilich v.
Longo, 34 F.3d 359, 365 (6th Cir. 1994). This is the case
even if the employee could have been terminated for any
reason. See Rankin v. McPherson, 483 U.S. 378, 383 (1987).
The Supreme Court has established a three-pronged test for
determining whether a plaintiff can prevail on a First
Amendment retaliatory discharge claim. Under the test,
commonly called the Pickering test, the plaintiff must set
forth three elements: 1) the speech involved a matter of public
concern, see Connick, 461 U.S. at 143; 2) the interest of the
employee “as a citizen, in commenting upon matters of public
concern,” outweighs the employer’s interest “in promoting the
efficiency of the public services it performs through its
employees,” Pickering v. Board of Education, 391 U.S. 563,
568 (1968); and 3) the speech was a substantial or motivating
factor in the denial of the benefit that was sought. See Mt.
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,
287 (1977). If the employee satisfies this test, he has
established a prima facie case.4
Here, Perry argues that he was fair and impartial in his
disposition of disciplinary cases, and that each of his
decisions was a communicative act protected by the First
Amendment. He further argues that in disciplining and
terminating him for that expression, the MDOC infringed
upon his freedom of expression. Perry presents the following
facts in support of his assertion.

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12 Perry v. McGinnis, et al. No. 98-1607
The MDOC conducts probationary evaluations of all new
ALEs after three months on the job and again after six
months. Perry received satisfactory ratings at both
probationary evaluations and continued to receive good
reviews for the first year-and-a-half of his tenure. On March
8, 1990, Perry received his first citation from his direct
supervisor, Den Houter, regarding a problem with his
disposition of a case. During the twenty-seven months
between Den Houter’s original complaint about Perry’s work
and June 22, 1992, Perry received only four additional
citations regarding his disposition of cases. The rate at which
Perry disposed of cases through finding inmates not-guilty
and issuing dismissals, however, was higher than the norm.
Perry’s not-guilty/dismissal rate hovered between 17% and
18%, which was well above the institutional standard of 10%.
When Perry’s supervisors noticed his not-guilty/dismissal
rate, the frequency with which they cited him for substandard
disposition of cases increased dramatically.
On June 18, 1992, Den Houter wrote a memorandum to
Marjorie Van Ochten, the Administrator of the Office of
Policy and Hearings and Den Houter’s direct supervisor,
noting that pursuant to her request he had reviewed all of
Perry’s not guilty and dismissed hearing reports, and found
that Perry was prone to finding prisoners not guilty.
Beginning on June 22, 1992, four days after Den Houter’s
memorandum to Van Ochten, Perry received the first of
nineteen memoranda that he would receive over the course of
the following sixteen months citing him for mistakes in his
disposition of cases. As noted above, Perry’s colleagues
made many of the same mistakes, but were not cited. Perry
was terminated two weeks after receiving the last of those
nineteen memoranda.
a.
The district court assumed, arguendo, that Perry’s decisions
in inmate disciplinary hearings constituted matters of public
concern, and then proceeded to base its disposition of the case
on prong two of the Pickering test – the balancing prong.
No. 98-1607 Perry v. McGinnis, et al. 13
5The state of Michigan is just as resolute in its prohibition of
arbitrary or impartial decision making in prison disciplinary cases. See
Mich. Comp. Laws § 791.252(i) (1979).
When fleshed out, it is clear that Perry’s insistence through
his decisions that he be impartial and operate within the
confines of constitutional law, constitutes speech on a matter
of public concern. When Perry conducts hearings, he is doing
so at the behest of the Michigan legislature, see Mich. Comp.
Laws § 791.252 (1979), and is making decisions that can
result in a greater or lesser period of incarceration for an
inmate. These are intensely public matters.
Furthermore, the public undoubtedly has an interest in a
public employee’s efforts to remain undeterred by a public
employer’s policy that seeks to limit constitutionally
mandated fairness in inmate disciplinary hearings. See
Marohnic v. Walker, 800 F.2d 613, 616 (6th Cir. 1986). In
Marohnic, a case in which this Court examined what
constitutes a matter of public concern, the Court concluded
that “[p]ublic interest is near its zenith when ensuring that
public organizations are being operated in accordance with
the law.” Id.
Public interest is certainly near its zenith here. In 1974, in
the case of Wolff v. McDonnell, 418 U.S. 539 (1974), the
Supreme Court mandated the establishment of prison
disciplinary hearings, demanding that inmates be afforded due
process before being disciplined for major misconduct. The
Court acknowledged that “the full panoply of rights due a
defendant [in a criminal prosecution] does not apply” with
regard to inmate disciplinary hearings, and that the contours
of the due process guaranteed an inmate depends to some
extent on context. Id. at 556. The Court clearly articulated,
however, that due process can only be finessed so much
before it ceases to be due process. “The touchstone of due
process is protection of the individual against arbitrary action
of government.” Id. at 558.5

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