Carolyn T. Rodgers v. Elizabeth Banks

*The Honorable David M. Lawson, United States District Judge for
the Eastern D istrict of M ichigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0329P (6th Cir.)
File Name: 03a0329p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
CAROLYN T. RODGERS,
Plaintiff-Appellant,
v.
ELIZABETH BANKS,
Defendant-Appellee.
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No. 01-4034
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 99-00780—Susan J. Dlott, District Judge.
Argued: March 12, 2003
Decided and Filed: September 17, 2003
Before: MOORE and CLAY, Circuit Judges; LAWSON,
District Judge.*
2 Rodgers v. Banks No. 01-4034
_________________
COUNSEL
ARGUED: William B. Singer, Cincinnati, Ohio, for
Appellant. Anne E. Thomson, OFFICE OF THE
ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
ON BRIEF: William B. Singer, Cincinnati, Ohio, for
Appellant. Anne E. Thomson, OFFICE OF THE
ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
_________________
OPINION
_________________
CLAY, Circuit Judge. Plaintiff Carolyn T. Rodgers
brought this action pursuant to 42 U.S.C. § 1983, alleging,
inter alia, that Defendant wrongfully terminated Plaintiff
from her employment in violation of Plaintiff’s First
Amendment right to free speech. Plaintiff appeals from the
district court’s granting of Defendant Elizabeth Banks’
motion for summary judgment and dismissal of Plaintiff’s
case. We hold that although the Eleventh Amendment bars
Plaintiff from seeking money damages from Defendant,
Plaintiff produced sufficient evidence of a First Amendment
retaliation claim to survive summary judgment, and that the
district court’s dismissal of this claim was inappropriate. We
therefore REVERSE the judgment of the district court.
I.
Plaintiff was employed by the Pauline Warfield Lewis
Center (“Lewis Center”), an Ohio state mental hospital in
Cincinnati. She began her employment at the Lewis Center
as a social worker and was eventually promoted to Director of
Quality Management, a position designated in the unclassified
civil service of Ohio. According to Plaintiff, the “principal
task” of this position was to “prepare the Center for surveys

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No. 01-4034 Rodgers v. Banks 3
by the Joint Commission on Accreditation of Hospitals
[JCAH] and other surveying organizations.” (J.A. at 7.)
Defendant was the CEO of the Lewis Center. Plaintiff
reported to Alice Gray, Director of Support Services, and
Gray reported to Defendant.
On January 21, 1999, Defendant revoked Plaintiff’s
unclassified appointment. In a memo informing Plaintiff of
the revocation, Defendant stated, “I no longer have
confidence in your ability to function as the hospitals [sic]
Quality Management Director, your verbal and written
communication skills are not conducive to a cooperative work
environment.” (J.A. at 53.)
Specifically, the dispute concerns various statements
Plaintiff made during her tenure at the Lewis Center.
Defendant maintains that Plaintiff’s manner and method of
communication had offended and inflamed her coworkers and
subordinates at the Lewis Center. In particular, Defendant
highlighted an incident which began when one of the Lewis
Center’s psychiatrists requested that his office be moved to
one of the patient units. Defendant granted the psychiatrist’s
request, ostensibly to encourage doctors to maintain closer
physical proximity to their patients. Plaintiff, who apparently
was concerned that the psychiatrist’s move had compromised
patient privacy in the unit, sent a memorandum to Defendant,
dated August 7, 1998, in which she discussed the allocation
of space in the Lewis Center’s psychiatric units as it related
to an upcoming JCAH survey. We reproduce the
memorandum below in its entirety:
DATE: August 7, 1998
TO: L. Banks, CEO
FROM: C. Rodgers, LISW
Director, Quality Management
4 Rodgers v. Banks No. 01-4034
SUBJECT: Survey Preparedness
Patient Rights and Ethics
In the Supplemental Recommendations last survey, we
had a recommendation regarding privacy for patients.
This area will be scrutinized in the coming survey with
a risk of a Type I.
Patient visiting in privacy is hindered by lack of space--
especially on Units 1 through 6. There are the dining
room and two days [sic] rooms. The day rooms are also
used for group process--we have worked very hard the
last three years to have more groups on the units.
In doing a walk-around during the Mock Survey, I was
amazed to see that a patient/program/visiting area had
been turned into an MD’s office on Unit 4.
- The forensic units need more space for patients who
have low level privileges and cannot leave the unit.
- The nature of Forensic patients on a confined unit
would indicate a need for as much “personal space” as
possible.
- This sets a precedent for the other psychiatrists to have
“special” needs that rationalize taking large patient and
visiting areas for office space.
Dr. Natarajan - Unit 1
Dr. Mannava - Unit 2
Dr. Holtman - Unit 5
The 1199 psychiatrist on Unit 5
Dr. Rodgers Wilson on Unit 6
In the new architectural plan there may be a space for the
unit psychiatrist, and no one is denying that this would
be optimal. However, the patient’s needs, including
space for visits with families and privacy for visiting
should be the most important factor.

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No. 01-4034 Rodgers v. Banks 5
1Although both P laintiff and D efendant are white females, Plaintiff
alleged in her original complaint that most of the employees at the Lewis
Center were b lack and that she, as a “m inority” in this employment
setting, experienced employment discrim ination.
R/pp/daw
cc: Alice Gray
Paul Blackwell
M. Russ
(J.A. at 139.)
According to Defendant, other communications Defendant
considered inappropriate included (1) arguing with the
housekeeping director about the cleanliness of the restrooms
in front of other Lewis Center employees, (2) arguing with
another employee and then detailing the incident in an e-mail
to the Lewis Center’s director of operations, and (3)
presenting a quality management report at an administrative
meeting in a “very angry and hostile manner” and accusing
management of not caring about quality standards. Plaintiff
acknowledges that these various “instances of
communication” occurred (J.A. at 10-11), but she contests the
manner and disruptive nature of her statements as
characterized by Defendant.
Following her termination, Plaintiff filed a complaint with
the district court, alleging “reverse” racial discrimination in
violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-2(a)(1). In this complaint she requested
injunctive relief ordering reinstatement of Plaintiff to her job,
as well as compensatory and punitive damages.1 Plaintiff
subsequently filed an amended complaint, alleging that
Defendant wrongfully terminated her for exercising her First
Amendment right to free speech, and requesting “damages
and other relief” provided under 42 U.S.C. § 1983. (J.A. at
10-12.)
6 Rodgers v. Banks No. 01-4034
Discovery ensued, during which the depositions of Plaintiff
and Defendant were taken. During Defendant’s deposition,
she was asked what factors contributed to Plaintiff’s
termination, Defendant pointed to, among other incidents,
Plaintiff’s August 7, 1998 memo regarding the upcoming
JCAH survey and patient privacy. Defendant characterized
the memo as offensive, overly critical, and inaccurate.
After discovery, Defendant filed a motion for summary
judgment on both of Plaintiff’s claims. Plaintiff filed a
memorandum in opposition, at which time she withdrew the
Title VII “reverse” racial discrimination claim but opposed
summary judgment on her §1983 First Amendment claim. In
support of her First Amendment claim, Plaintiff further
asserted that her termination was motivated by the August 7,
1998 memorandum she sent to Defendant.
On August 23, 2001, the district court granted summary
judgment to Defendant, reasoning that Plaintiff’s August 7,
1998 memo to Defendant did not touch upon a matter of
public concern and, therefore, Plaintiff’s First Amendment
claim necessarily failed. Plaintiff’s timely appeal followed.
II.
Defendant first argues that, pursuant to the Eleventh
Amendment, she is immune from Plaintiff’s § 1983 action to
the extent that the lawsuit seeks money damages. This
argument presents a legal question, which we review de novo.
Timmer v. Mich. Dep’t of Commerce, 104 F.3d 833, 836 (6th
Cir. 1997) (citing Williams v. Kentucky, 24 F.3d 1526, 1543
(6th Cir. 1994)). We agree with Defendant that, on this
record, the Eleventh Amendment precludes Plaintiff from
seeking money damages from Defendant.
In general, “[s]tate governments and entities that can be
considered arms of the state are immune from suits for money
damages under the Eleventh Amendment.” Alkire v. Irving,
330 F.3d 802, 814 (6th Cir. 2003) (citing Brotherton v.

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No. 01-4034 Rodgers v. Banks 7
Cleveland, 173 F.3d 552, 560 (6th Cir. 1999)). Specifically,
the Eleventh Amendment bars § 1983 suits seeking money
damages against states and against state employees sued in
their official capacities. Will v. Mich. Dep’t of State Police,
491 U.S. 58, 66 (1989). Therefore, § 1983 plaintiffs should
“set forth clearly in their pleading that they are suing the state
defendants in their individual capacity for damages, not
simply their capacity as state officials.” Shepherd v.
Wellman, 313 F.3d 963, 967 (6th Cir. 2002) (quoting Wells v.
Brown, 891 F.2d 591, 593 (6th Cir. 1989) (internal quotation
marks omitted)).
However, a plaintiff’s failure to explicitly state “individual
capacity” in the complaint is not necessarily fatal to the
lawsuit. Rather, in this situation we employ a “course of
proceedings” test to ascertain whether a § 1983 defendant was
on notice that the plaintiff intended to hold him or her
personally liable, notwithstanding the plaintiff’s failure to
provide explicit notice. Id. at 967-68 (citing Moore v. City of
Harriman, 272 F.3d 769, 772 (6th Cir. 2001) (en banc)).
Pursuant to this inquiry, “we consider the nature of the
plaintiff’s claims, requests for compensatory or punitive
damages, and the nature of any defenses raised in response to
the complaint, particularly claims for qualified immunity, to
determine whether the defendant had actual knowledge of the
potential for individual liability.” Id. at 968 (citing Moore,
272 F.3d at 772 n.1). Additionally, we “consider whether
subsequent pleadings put the defendant on notice of the
capacity in which he or she is being sued.” Id. (citing Moore,
272 F.3d at 772 n.1).
Like the plaintiff in Moore, Plaintiff did request
compensatory and punitive damages in the original complaint,
which we have held provides some notice of her intent to hold
Defendant personally liable. See Moore, 272 F.3d at 772 n.1.
However, unlike the plaintiff in Moore, the caption on
Plaintiff’s complaint listed Defendant’s name and her official
title, and specifically stated that Defendant was being sued in
8 Rodgers v. Banks No. 01-4034
her “official capacity as the representative of the State of Ohio
department of Mental Health.” (J.A. at 6 ¶ 2.)
We do note that the original complaint only alleged a Title
VII violation, and the complaint was subsequently amended
to add the § 1983 First Amendment claim. Although the
amended complaint presented an opportunity for Plaintiff to
clarify the issue, it failed to provide sufficient notice that
Defendant was being sued in her individual capacity, as
required by Moore. The amended complaint’s caption still
lists Defendant’s name and official title, and the amended
complaint incorporates by reference paragraphs 2-7 of the
original complaint, including the statement that Defendant
was being sued in her official capacity. The amended
complaint is otherwise silent as to whether Defendant is being
sued in her official or individual capacity. Moreover,
Defendant has not moved for summary judgment on the issue
of qualified immunity, yet another indication that Defendant
was not adequately notified that she was being sued in her
individual capacity. See Moore, 272 F.3d at 772 n.1.
Having applied the course of proceedings test, we hold that
insufficient indicia exists in the original complaint and
amended complaint suggesting that Defendant was on notice
that she was being sued in her individual capacity. Therefore,
the Eleventh Amendment bars Plaintiff’s suit to the extent
that she seeks money damages. Plaintiff’s claim is hereafter
limited to seeking other relief arising under 42 U.S.C. § 1983.
We will now proceed to the merits of Plaintiff’s First
Amendment claim.
III.
We review a district court’s order granting summary
judgment de novo. Johnson v. Univ. of Cincinnati, 215 F.3d
561, 572 (6th Cir. 2000). Summary judgment is appropriate
where there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law. See
Fed. R. Civ. P. 56(c).

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No. 01-4034 Rodgers v. Banks 9
The party bringing the summary judgment motion has the
initial burden of informing the district court of the basis for its
motion and identifying portions of the record that demonstrate
the absence of a genuine dispute over material facts. Mt.
Lebanon Pers. Care Home, Inc. v. Hoover Universal, Inc.,
276 F.3d 845, 848 (6th Cir. 2002). The moving party may
satisfy this burden by presenting affirmative evidence that
negates an element of the non-moving party’s claim or by
demonstrating “an absence of evidence to support the
nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986). If the moving party satisfies this initial
burden, the non-moving party must then “set forth the specific
facts showing that there is a genuine issue for trial.” Fed. R.
Civ. P. 56(e). That is, the non-moving party must “make a
showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear
the burden of proof at trial.” Celotex, 477 U.S. at 322.
In evaluating the evidence, we “draw all reasonable
inferences therefrom in a light most favorable to the
non-moving party.” PDV Midwest Ref., L.L.C. v. Armada Oil
& Gas Co., 305 F.3d 498, 505 (6th Cir. 2002) (citing
Williams v. Int’l Paper Co., 227 F.3d 706, 710 (6th Cir.
2000)). However, “[t]he mere existence of a scintilla of
evidence in support of the plaintiff’s position will be
insufficient” to survive summary judgment; rather, “there
must be evidence on which the jury could reasonably find for
the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
252 (1986).
Plaintiff argues on appeal that the district court erred in
granting Defendant’s motion for summary judgment because
the evidence in the record, if believed, establishes that
Defendant violated Plaintiff’s First Amendment rights. We
agree with Plaintiff and therefore reverse the district court’s
dismissal of this claim.
Section 1983 provides a federal cause of action for the
violations of federal statutory or constitutional rights by state
10 Rodgers v. Banks No. 01-4034
officials acting under color of law. Lomaz v. Hennosy, 151
F.3d 493, 500 (6th Cir. 1998). To assert a valid § 1983 cause
of action, a plaintiff must demonstrate that “1) [the plaintiff]
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.” Perry v. McGinnis,
209 F.3d 597, 603 (6th Cir. 2000) (citing West v. Atkins, 487
U.S. 42, 48 (1988)). The parties dispute only the first issue,
i.e., whether Plaintiff suffered a deprivation of a right secured
by the Constitution or federal law. Plaintiff bases her § 1983
claim on Defendant’s decision to terminate Plaintiff, allegedly
in retaliation for Plaintiff’s exercise of her First Amendment
right to speech.
While public employees may not be required to sacrifice
their First Amendment free speech rights in order to obtain or
continue their employment, Rankin v. McPherson, 483 U.S.
378, 383 (1987) (citing Perry v. Sindermann, 408 U.S. 593,
597 (1972)), a state is afforded greater leeway to control
speech that threatens to undermine the state’s ability to
perform its legitimate functions. See United States v. Nat’l
Treasury Employees Union, 513 U.S. 454, 475 n.21 (1995).
Therefore, in determining whether a public employer has
violated the First Amendment by firing a public employee for
engaging in speech, the Supreme Court has instructed courts
to engage in a three-step inquiry. First, a court must ascertain
whether the relevant speech addressed a matter of public
concern. See Connick v. Myers, 461 U.S. 138, 143 (1983). If
the answer is yes, then the court must balance the interests of
the public employee, “as a citizen, in commenting upon
matters of public concern and the interest of the State, as an
employer, in promoting the efficiency of the public services
it performs through its employees.” Pickering v. Bd. of
Educ., 391 U.S. 563, 568 (1968). Finally, the court must
determine whether the employee’s speech was a substantial or
motivating factor in the employer’s decision to take the
adverse employment action against the employee. Mt.
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,
287 (1977); Perry, 209 F.3d at 604.

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No. 01-4034 Rodgers v. Banks 11
A. Prong One: A Matter of Public Concern
The threshold inquiry is whether Plaintiff’s speech
addressed a matter of public concern. Rankin, 483 U.S. at
384; Dambrot v. Cent. Mich. Univ., 55 F.3d 1177, 1186 (6th
Cir. 1995). We review the district court’s determination on
this issue de novo. Dambrot, 55 F.3d at 1186 (citations
omitted). Our inquiry in this regard requires us to consider
“the content, form, and context of a given statement, as
revealed by the whole record.” Connick, 461 U.S. at 147-48.
Matters of public concern include speech that “relat[es] to
any matter of political, social, or other concern to the
community.” Connick, 461 U.S. at 146. In other words, we
must determine whether the relevant speech “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) (quoting
McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir.
1983)). Thus, speech falling into this category includes
informing the public that a governmental entity failed to
“discharg[e] its governmental responsibilities” or “bring[ing]
to light actual or potential wrongdoing or breach of public
trust [on the part of a governmental entity or any officials
therein].” Connick, 461 U.S. at 148.
Along these lines, the Supreme Court has emphasized that
the employee must be speaking as a citizen, not as an
employee for personal interest purposes. Connick, 461 U.S.
at 146-47. Thus, “internal personnel disputes or complaints
about an employer’s performance” do not touch upon a matter
of public concern and therefore fall outside the scope of First
Amendment-protected speech. Brandenburg, 253 F.3d at
898; see also Jackson v. Leighton, 168 F.3d 903, 910-11 (6th
Cir. 1999) (holding that the state hospital employee’s
statement advocating “that a letter be sent to the Board of
Trustees declaring the lack of confidence with [the
administrator] was nothing more than an example of the
12 Rodgers v. Banks No. 01-4034
2Because the district court found that Plaintiff failed to m eet this
thresho ld issue, it declined to reach the second and third prongs of the
inquiry.
‘quintessential employee beef’ of incompetent management”)
(quoting Barnes v. McDowell, 848 F.2d 725, 735 (6th Cir.
1988) (internal citation in Barnes omitted)).
Additionally, in distinguishing between matters of public
and private concern, we focus not on “what might incidentally
be conveyed by the fact that the employee spoke in a certain
way, [but] the point of the speech in question.” Dambrot, 55
F.3d at 1187 (quoting Linhart v. Glatfelter, 771 F.2d 1004,
1010 (7th Cir. 1985)) (alteration in original and internal
quotation marks omitted). Thus, “[c]ontroversial parts of
speech advancing only private interests do not necessarily
invoke First Amendment protection.” Id. However, the
employee’s entire speech does not have to focus on matters
of public concern, as long as some portion of the speech does
so. Rahn v. Drake Ctr., Inc., 31 F.3d 407, 412 (6th Cir. 1994)
(citing Connick, 461 U.S. at 146-49).
In granting summary judgment to Defendant on Plaintiff’s
First Amendment claim, the district court determined that
Plaintiff’s August 7, 1998 memo did not relate to an issue of
public interest or concern.2 The district court’s entire analysis
of this inquiry was as follows:
The Court does not find this letter to be of public
concern. “First Amendment protection extends to a
public employee’s speech when he speaks as a citizen on
a matter of public concern, but does not extend to speech
made in the course of acting as a public employee.”
Thomson v. Scheid, 977 F.2d 1017, 1021 (6th Cir. 1992).
The Court finds this letter to address internal [Lewis
Center] issues that were of concern to Rodgers as
Director of Qualify Management, not as a citizen. As the

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No. 01-4034 Rodgers v. Banks 13
letter does not address a matter of public concern, this
Court’s inquiry is at an end.
(J.A. at 17.) We disagree with the district court’s reasoning,
because this narrow interpretation of what speech addresses
a public concern misinterprets the guidelines enunciated by
the Supreme Court in Connick.
In Connick, 461 U.S. at 140-41, a district attorney proposed
to transfer Sheila Myers, an assistant district attorney. Myers
strongly opposed the transfer and expressed her opposition to
several supervisors. She then prepared and distributed a
questionnaire to other assistant district attorneys in the office,
soliciting their views on “office transfer policy, office morale,
the need for a grievance committee, the level of confidence in
supervisors, and whether employees felt pressured to work in
political campaigns.” Id. at 141. Perceiving the questionnaire
dissemination as insubordination, the district attorney fired
Myers. In holding that Myers’ First Amendment rights were
not violated, the Supreme Court emphasized that “when a
public employee speaks not as a citizen upon matters of
public concern, but instead as an employee upon matters only
of personal interest, absent the most unusual circumstances,
a federal court is not the appropriate forum in which to review
the wisdom of a personnel decision taken by a public agency
allegedly in reaction to the employee’s behavior.” Id. at 147.
The Court held that, aside from one question about pressure
from the district attorney to work on political campaigns, the
contents of the questionnaire were “mere extensions of
Myers’ dispute over her transfer” and thus did not involve
matters of public concern. Id. at 148. In so holding, the
Court reasoned that the questionnaire did not attempt to
“evaluat[e] the performance of the District Attorney as an
elected official,” inform the public that the district attorney’s
office was failing to discharge its governmental
responsibilities, or “bring to light actual or potential
wrongdoing or breach of public trust” occurring in that office.
Id. At no point in Connick did the Supreme Court suggest
that an employee’s speech made in the course of employment
14 Rodgers v. Banks No. 01-4034
is necessarily precluded from enjoying First Amendment
protection. Rather, Connick held that a court’s inquiry should
not focus on who made the statement, but rather on the point
of the speech itself.
Nevertheless, the district court relied on one sentence found
in our decision in Thomson v. Scheid, 977 F.2d 1017 (6th Cir.
1992), to wit, “First Amendment protection extends to a
public employee’s speech when he speaks as a citizen on a
matter of public concern, but does not extend to speech made
in the course of acting as a public employee.” Id. at 1020.
Such reliance was in error.
First of all, a review of the facts in Thomson reveal that the
Thomson court did not draw the narrow boundaries the
district court attributed to it. In Thomson, the plaintiff was
hired by the county to investigate suspected fraud by the
county commissioner. During the course of his investigation,
the plaintiff spoke with his supervisors about his desire to file
formal charges against the county commissioner, but the
supervisors warned the plaintiff not to proceed without
following the established department policies and procedures.
In the plaintiff’s subsequent lawsuit, he pointed to this
conversation with his supervisors and alleged that he was
retaliated against for the statements he made during that
conversation. Thomson began by observing that “[n]ot all
matters discussed within a government office are of public
concern, and thus internal office communication does not
necessarily give rise to a constitutional claim.” Id. at 1020-
21. Thomson then examined the speech at issue and
concluded that the conversation concerned how the plaintiff
would proceed with his investigation, and that the plaintiff
was not speaking out in that conversation about a topic of
public concern, for instance, whether or not an investigation
should proceed. In so doing, Thomson correctly applied the
principle that a conversation generally pertaining to an issue
of public concern (in Thomson, the investigation of allegedly
fraudulent activity) does not automatically convert all
statements made in that conversation into First-Amendment-

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No. 01-4034 Rodgers v. Banks 15
3W e previously have clarified that Thomson does not stand for the
proposition that the district court attributed to it. In Williams, 24 F.3d at
1530, the plaintiff spoke out in a meeting of office managers against
illegal political patronage employment prac tices and later advocated the
dismissal of a state political appointee who she believed was improperly
using government resources to conduc t private business. The plaintiff
subsequently was demoted, and she brought a § 1983 action against the
defendants. Id. Relying on Thomson, the defendants argued that her
speech was not protected because she was speaking as an emp loyee. Id.
at 153 5. W e disagreed, reasoning that Thomson merely drew a distinction
between “[d]iscussions about office policy and job duties,” which
generally “address m atters of only private concern,” and other speech
which “addresses matters of great public concern.” Id.
protected speech. Rather, the First Amendment inquiry
requires us to examine the point of the speech in question and
determine whether the point advances a public or private
interest. Dambrot, 55 F.3d at 1187.
Thus, the one sentence in Thomson on which the district
court relied –“First Amendment protection extends to a public
employee’s speech when he speaks as a citizen on a matter of
public concern, but does not extend to speech made in the
course of acting as a public employee,” id. at 1021–cannot
properly be read in isolation, for it could mislead courts into
believing that an employee who speaks out about a matter of
public concern, while in the course of his or her employment,
is never entitled to First Amendment protection. Such a
proposition is incorrect.3
Our subsequent First Amendment jurisprudence further
confirms that we have never applied such a narrow
interpretation of Connick. In Charvat v. Eastern Ohio
Regional Wastewater Authority, 246 F.3d 607 (6th Cir. 2001),
an employee brought suit, claiming he was fired for reporting
violations of environmental regulations. We held that the
employee’s speech related to a matter of public concern, even
though the employee made the relevant statements in his role
as an employee and the speech was not communicated to the
public. Id. at 617.
16 Rodgers v. Banks No. 01-4034
4Mo reover, other circuits have rejected the broader interpretation of
Connick emp loyed by the district court below. See, e.g., Kennedy v.
Tangipahoa Parish Libra ry Bd . of Co ntrol, 224 F.3d 3 59 (5th Cir. 2000);
Lew is v. Cowen, 165 F.3d 154 (2d Cir. 1999); Hulbert v. Wilhelm, 120
F.3d 648 (7th Cir. 199 7); Azzaro v. County of Allegheny, 110 F.3d 968
(3d Cir. 1997) (en banc); Int’l Soc’y for Krishna Consciousness, Inc. v.
Lee, 925 F.2d 576 (2d Cir. 19 91), aff’d, 505 U.S. 672 (1992).
Even more recently we have expressly eschewed applying
a “course of employment” gloss on the Connick analysis. In
Cockrel v. Shelby County School District, 270 F.3d 1036 (6th
Cir. 2001), a Kentucky elementary school teacher was fired
for inviting an actor to discuss the environmental benefits of
industrial hemp, a substance that was illegal in the state, with
her class. In determining that the speech pertained to a matter
of public concern, we rejected holdings from the Fourth and
Fifth Circuits that “a teacher, in choosing what he will teach
his students, is not speaking as a citizen, but rather as an
employee on matters of private interest.” Id. at 1051 (citing
Boring v. Buncombe County Bd. of Educ., 136 F.3d 364, 368-
69 (4th Cir. 1998) (en banc) and Kirkland v. Northwide
Indep. Sch. Dist., 890 F.2d 794, 800 (5th Cir. 1989)). We
reasoned that such an approach “essentially gives a teacher no
right to freedom of speech when teaching students in a
classroom, for the very act of teaching is what the employee
is paid to do,” and that “[i]f the Fourth and Fifth Circuits’
interpretation of Connick were correct, then any time a public
employee was speaking as an employee . . . the speech at
issue would not be protected.” Id. at 1051-52. We therefore
concluded that the content of the teacher’s speech touched
upon a matter of public concern, even though she was
speaking in her role as a school employee at the time. Id. at
1052.4
Thus, in analyzing whether an employee’s speech touches
upon a matter of public concern, we consistently have
observed the dichotomy Connick presented: speaking as a
citizen (albeit in the employee role) versus speaking as an
employee for personal interest. As Connick emphasized, the

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No. 01-4034 Rodgers v. Banks 17
focus of the speech is on the point of the speech as opposed
to the role of the speaker in saying it. See 461 U.S. at 148-49.
Having concluded that the district court inappropriately
interpreted Thomson in adjudicating this case, we now will
analyze Plaintiff’s August 7, 1998 memo to determine if the
speech therein merits First Amendment protection.
Specifically, we will consider (1) the point or focus of the
speech in question and (2) whether the point “relat[es] to any
matter of political, social, or other concern to the
community.” Id. at 146.
Citing Rahn, 31 F.3d at 412, as support, Defendant argues
that the point of Plaintiff’s August 7, 1998 memo was to
discuss management incompetency in allocating hospital
space and to complain about psychiatrists usurping patient
space; therefore, Defendant contends, the indirect references
to patient privacy did not constitute a matter of public
concern. Defendant’s reliance on Rahn is misplaced, and her
characterization of Plaintiff’s August 7, 1998 memo is
erroneous. In Rahn, the plaintiff-nurse organized a committee
and disseminated a press release stating various employment-
related grievances about new work rules, and suggesting that
the rules could adversely affect patient care. Id. at 410-11.
However, we found that the point of the plaintiff’s press
release was to air employment-related grievances, the fleeting
reference to patient care in the press release notwithstanding.
Id. at 412-13.
In contrast to the focus of the press release in Rahn, the
focus of Plaintiff’s August 7, 1998 memo is on patient care.
Plaintiff’s memo described its purpose as “Survey
Preparedness” and “Patient Rights and Ethics.” The memo
explained that the Lewis Center would be subject to an
upcoming JCAH survey, and that the last survey conducted
there had found a deficiency at the Lewis Center regarding
patient privacy. Plaintiff’s memo then commented that
patient privacy was hindered by a lack of space and that
Plaintiff was “amazed” to see that some of that scarce space
had been converted into a psychiatrist office. (J.A. at 139.)
18 Rodgers v. Banks No. 01-4034
The memo then listed three reasons as to why this conversion
was not a good decision. The first two reasons were
particularly patient-oriented (the forensic units needed more
space for patients who could not leave the unit and such
patients needed as much “personal space” as possible), and
the last reason was less patient-oriented (such a practice set a
precedent for other psychiatrists to use scarce patient space).
The memo concluded by emphasizing that “the patient’s
needs . . . should be the most important factor.” (J.A. at 139.)
Although Plaintiff’s underlying motive in writing the memo
might have been to complain about incompetent management,
our duty is not to discern her underlying motive, but rather to
evaluate her point as it is presented in the speech. Chappel v.
Montgomery County Fire Prot. Dist. No. 1, 131 F.3d 564,
575-76 (6th Cir. 1997). Plaintiff’s point, as we view the
memo’s contents, was to call Defendant’s attention to what
Plaintiff perceived as a disregard of patient privacy at the
Lewis Center, not to complain about management or other
internal disputes.
Furthermore, the focus of Plaintiff’s memo pertained to a
matter of political, social, or other concern. The parties do
not dispute that the JCAH’s finding in its previous survey that
the Lewis Center had failed to provide adequate patient space
and/or privacy constituted a deficiency, or that a finding of a
continuing deficiency by JCAH could mean eventual
decertification for the hospital. If the Lewis Center was in
danger of being decertified, this would be an indication that
the hospital (an arm of the state of Ohio) was operating with
substandard care for its patients. The quality of patient care
in state hospitals presents an issue of public concern. See
Jackson, 168 F.3d at 910 (holding that an employee’s
statements about a proposal to merge the state medical college
with a public hospital constituted a public concern because
“the continued existence of [the medical college] was
important to the locality due to the fact that [the medical
college] provide[d] health care to area residents” and further
reasoning that the “‘quality, availability, and cost of health
care are among the most important and debated issues of our

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No. 01-4034 Rodgers v. Banks 19
5Although Defendant insisted in her depo sition testimony that the
issue of space was irrelevant to the issue of patient privacy, she also
indicated that she did not think Plaintiff was lying; rather, she thought that
Plaintiff was simply wrong in her opinion. W e note that even if Plaintiff’s
opinion ultimately proved to be incorrect, this does not deprive her
statements of First Am endment protection. See Chapp el, 131 F.3d at 576
(“A public emplo yee is not required to prove the truth of his speech in
order to secure the protections of the First Amendm ent.”) (citations
omitted).
time’”) (quoting U.S. Healthcare, Inc. v. Blue Cross of
Greater Philadelphia, 898 F.2d 914, 937 (3d Cir.1990).5
Therefore, drawing all reasonable inferences from the
evidence in a light most favorable to Plaintiff, Williams, 227
F.3d at 710, we hold that Plaintiff has established the
threshold requirement that the contents of her August 7, 1998
memo addressed a matter of public concern.
B. Prong Two: A Balancing of the Parties’ Interests
Because Plaintiff has successfully established that her
speech touched upon an issue of public interest or concern,
we now must balance Plaintiff’s interest, as a citizen, in
making her speech against Defendant’s interest, “as an
employer, in promoting the efficiency of the public services”
performed at the Lewis Center. Rankin, 483 U.S. at 388
(quoting Pickering, 391 U.S. at 568).
We previously have observed that in balancing an
employee’s and an employer’s respective interests, we
“should consider whether an employee’s comments
meaningfully interfere with the performance of her duties,
undermine a legitimate goal or mission of the employer,
create disharmony among co-workers, impair discipline by
superiors, or destroy the relationship of loyalty and trust
required of confidential employees.” Williams, 24 F.3d at
1536 (citations omitted). Relevant factors in this regard
include “the manner, time, and place of the employee’s
20 Rodgers v. Banks No. 01-4034
6Furthermore, it is unclear how Dr. Harris received a copy of the
memo, inasmuch as Plaintiff’s listed recipients were Defendant, Alice
Gray, Paul B lackwell, and M . Russ. To the extent that Dr. Harris only
received it because one or more of the recip ients sent him a cop y,
Defendant could not have relied upon any disturbance that could not
reasonably be trac ed back to Plaintiff, who limited her audience. See
Cockrel v. Shelby C oun ty Sch . Dist., 270 F.3d 1 036, 105 4-55 (6th Cir.
2001) (rejecting the school’s argument that the teacher’s speech had
impacted the “efficient operation of the school and a harmonious
expression,” as well as “the context in which the dispute
arose.” Rankin, 483 U.S. at 388 (citations omitted).
Defendant bears the burden of demonstrating that legitimate
grounds existed justifying the termination. Id. (citing
Connick, 461 U.S. at 150).
Defendant argues that Plaintiff’s memo was “disruptive,
inflammatory and interfered with working relationships at the
Lewis Center,” and therefore the Lewis Center’s interest in
promoting its efficiency overrode Plaintiff’s First Amendment
interests. (Defendant’s Br. at 20.) Plaintiff counters that
Defendant has identified no evidence that Plaintiff’s memo
negatively impacted (or might have negatively impeached)
the smooth operation of the Lewis Center.
We first note that Plaintiff’s memo, on its face, does not
appear to be particularly inflammatory. Although the memo
is arguably critical of Defendant’s decision to use patient
space for doctor’s offices, no abusive language is apparent
and we do not discern any exceptionally insulting aspect of its
presentation. Defendant notes that Dr. Stewart Harris, the
psychiatrist who was referred to in the August 7, 1998 memo
by his union affiliation (i.e., as the “1199 psychiatrist”), filed
a grievance complaining of the memo’s designation of him in
this regard. However, other evidence in the record reflects
that the Lewis Center fired Dr. Harris shortly thereafter for
alleged sexual harassment, and there appears to be some sort
of history of acrimony between Dr. Harris and the hospital
which is unrelated to Plaintiff’s memo.6 Defendant’s general

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No. 01-4034 Rodgers v. Banks 21
environment” because her speech had been pre-approved by the school
board and, thus, the “disruptive consequences of the employee speech can
be traced back to the government's express decision permitting the
emp loyee to engag e in that speech”).
assertions that the memo was disruptive are essentially
conclusory.
Although it is possible that the August 7, 1998 memo,
which was carbon-copied to other employees in the
department, might have, to some extent, “undermine[d] a
legitimate goal or mission of the employer” in maintaining
efficient operation of the hospital or “create[d] disharmony
among co-workers,” Williams, 24 F.3d at 1536, we have
never held that the relatively minor associated risk of
disharmony as is present in this case would ordinarily
overcome an interest in making sure a state hospital maintains
its certification (and thus presumably maintains a minimum
standard of care for its patients). See id. at 1536-37 (rejecting
the argument that the state interest of avoiding disharmony
between the plaintiff-employee and those she reported
outweighed the public interest in reporting politically corrupt
practices in the governmental office); Marohnic v. Walker,
800 F.2d 613, 616 (6th Cir.1986) (“[W]hen an employee
exposes unscrupulous behavior in the workplace, his interests
are co-extensive with those of his employer; both want the
organization to function in a proper manner.”) Furthermore,
Defendant presents no evidence that Plaintiff’s August 7,
1998 memo disrupted the Lewis Center’s efficient
functioning, and we do not discern, on this record, any
meaningful threat to the hospital’s efficient functioning.
Rankin, 483 U.S. at 388-89. Thus, given our precedent on
this balancing inquiry, and on this record, Defendant has not
demonstrated a state interest that outweighs Plaintiff’s First
Amendment right to call Defendant’s attention to the quality
of the Lewis Center’s patient care. Id.
22 Rodgers v. Banks No. 01-4034
C. Prong Three: A Substantial or Motivating Factor
Finally, an employee must demonstrate that the speech at
issue represented a substantial or motivating factor in the
adverse employment action. Johnson, 215 F.3d at 584.
Specifically, the employee must “‘point to specific,
nonconclusory allegations reasonably linking her speech to
employer discipline.’” Farmer v. Cleveland Pub. Power, 295
F.3d 593, 602 (quoting Bailey v. Floyd County Bd. of Educ.,
106 F.3d 135, 144 (6th Cir. 1997)). If the employee meets
that burden, the employer may “show[] by a preponderance of
the evidence that it would have reached the same decision . . .
even in the absence of the protected conduct.” Mt. Healthy,
429 U.S. at 287. However, this latter burden “involves a
determination of fact” and ordinarily is “reserved for a jury or
the court in its fact-finding role.” Perry, 209 F.3d at 604 n.4
(citing Tao v. Freeh, 27 F.3d 635, 639 (D.C. Cir. 1994)).
The parties do not dispute that Plaintiff’s August 7, 1998
memo at least played a role in Defendant’s decision to
terminate Plaintiff. Indeed, Defendant identified that very
memo during her deposition as a motivating factor.
Therefore, Plaintiff has established a causal link between her
First Amendment protected activity and her subsequent
termination.
Defendant nevertheless argues that the August 7, 1998
memo could not have been a substantial or motivating factor
because (1) the time period between the memo and the
termination was almost six months (i.e., August 7, 1998 to
January 21, 1999); and (2) several intervening incidents
occurred, breaking the link. For support Defendant relies on
Wallscetti v. Fox, 258 F.3d 662, 669 (7th Cir. 2001), which
held that a four month long period of time “between the
protected speech and the adverse employment action . . .
without more, is too long to support a reasonable inference of
causation.” (citations omitted) (emphasis added). However,
Wallscetti is distinguishable inasmuch as in that case there
was no admission from the employer that the employee’s

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No. 01-4034 Rodgers v. Banks 23
speech played any role in his decision to fire the employee,
and therefore the employee could only rely on the four month
time gap to support a causal link. Conversely, in the present
case Defendant conceded that Plaintiff’s memo was a
motivating factor in her decision to fire Plaintiff. Therefore,
Plaintiff has met her burden of production with respect to
showing that her First Amendment protected activity was a
motivating factor in Defendant’s decision to fire Plaintiff.
The burden now shifts to Defendant to demonstrate that she
would have fired Plaintiff notwithstanding Plaintiff’s exercise
of First Amendment protected speech. As noted earlier, this
is generally a jury question. Perry, 209 F.3d at 604 n.4.
Thus, the parties may litigate at trial whether Defendant
would have terminated Plaintiff notwithstanding Plaintiff’s
dissemination of her August 7, 1998 memo. See Crawford-El
v. Britton, 523 U.S. 574, 593 (1998) (citing Mt. Healthy, 429
U.S. at 287).
IV.
For the foregoing reasons, we REVERSE the district
court’s grant of summary judgment to Defendant on
Plaintiff’s First Amendment claim and REMAND this case
to the district court for further proceedings consistent with
this opinion.

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