Michael Doherty v. City of Maryville , 431 F. App'x 381 ( 2011 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0397n.06
Case No. 09-5217
FILED
UNITED STATES COURT OF APPEALS Jun 13, 2011
FOR THE SIXTH CIRCUIT
LEONARD GREEN, Clerk
MICHAEL DOHERTY; ALAN HOLMES; )
LOCAL 4053, INTERNATIONAL )
ASSOCIATION OF FIRE FIGHTERS, )
) ON APPEAL FROM THE
Plaintiffs-Appellees, ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
v. ) DISTRICT OF TENNESSEE
)
CITY OF MARYVILLE, )
)
Defendant-Appellant, )
)
GREGORY MCCLAIN, individually and in )
his official capacity, )
)
Defendant. )
_______________________________________ )
BEFORE: BATCHELDER, Chief Judge; ROGERS and KETHLEDGE, Circuit Judges.
ALICE M. BATCHELDER, Chief Judge. Plaintiffs-Appellees Michael Doherty, Alan
Holmes, and Local 4053 International Association of Firefighters (“Local 4053”) (collectively,
“Plaintiffs”) filed this suit in federal district court alleging that the City of Maryville (“the City”)
violated their First and Fourteenth Amendment rights to free speech and free association. The City
filed a motion for summary judgment, which the district court denied. At the close of the Plaintiffs’
evidence, the City filed a motion for judgment as a matter of law, which the district court also
denied. The jury returned a verdict in favor of the Plaintiffs. The City now appeals, challenging the
district court’s denial of summary judgment or, in the alternative, its denial of the City’s motion for
No. 09-5217, Doherty v. City of Maryville
judgment as a matter of law. Because the Plaintiffs were not engaged in any constitutionally-
protected activity, we REVERSE.
I.
This case arises from events transpiring when the Plaintiffs contracted with FireCo, LLC
(“FireCo”), a third-party telemarketing organization, to assist in raising funds by selling tickets to
an oldies benefit concert. Doherty and Holmes, who are employed as firefighters with the City,
signed a services agreement on behalf of Local 4053 in their respective capacities as President and
Treasurer. FireCo fundraisers sold tickets to the benefit concert by calling local residents and
businesses, identifying themselves as callers acting on behalf of Local 4053, and explaining that the
purpose of the ticket sales was to raise money for the association and its activities. FireCo
fundraisers agreed to follow a script during their calls. After all expenses were paid, Local 4053 and
FireCo split the remaining funds equally. Local 4053 used its share of the proceeds to support the
gamut of its activities, from local fire education efforts to bolstering union membership.
Shortly after the telephone sales calls began, the City began receiving complaints from its
citizens regarding the calls. Citizens complained that callers were pushy, rude, abrasive, harassing,
misleading, confusing, and unprofessional. Some citizens reported that the callers used profanity,
and many citizens believed that it was actually the City or the City’s fire department that was placing
the sales calls. Citizens also complained that the callers threatened that if they did not buy tickets,
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No. 09-5217, Doherty v. City of Maryville
“fire hydrants would be turned on their homes,”1 Dalmatian puppies would starve, and firefighters
would have to come to citizens’ homes for dinner.
On August 9, 2005, Doherty was called to a meeting about the complaint calls with various
city and fire department officials, including Gary Hensley (Maryville City Manager at that time) and
Gregory McClain (Deputy City Manager at that time). Doherty was called to the meeting because
the City knew that he was the president of Local 4053 and was the person responsible for the
contract with FireCo. When Doherty informed the officials at the meeting that Holmes had also
signed the contract, Holmes was called into the meeting. Hensley told Doherty and Holmes that the
City had received complaints from citizens regarding FireCo’s fundraising efforts. Hensley warned
that if the complaints did not stop, Doherty and Holmes would be fired. Doherty asked for details
about the complaints, including the callers’ names, so that Local 4053 could investigate the
complaints, but Hensley provided no details. The City never instructed the Plaintiffs to cease the
telephone campaign altogether, but only to remedy the problem with the callers.
After the August 9, 2005, meeting, Doherty suspended FireCo’s fundraising efforts. About
a month later, Doherty signed a new agreement with FireCo on behalf of Local 4053 and resumed
the telephone calling campaign. Holmes did not sign this second agreement. The script used for
calls under this second agreement was modified from the original script in an effort to address the
City’s concerns.
1
W hile it is not clear to us what it would mean for a fire hydrant to be “turned on a home,” citizens claimed that
this was something that FireCo callers threatened would happen.
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No. 09-5217, Doherty v. City of Maryville
From August 5, 2005, through August 28, 2006, the City received six complaint calls
regarding FireCo’s fundraising efforts on behalf of Local 4053. Each of the calls was documented,
but no city official contacted Doherty, Holmes, or Local 4053 regarding the complaints until August
28, 2006, when McClain confronted Holmes with a tape recording of one of FireCo’s calls. The
recording reveals that the caller stated that he was “with the Maryville Fire Fighters” and that after
the person who answered the phone hung up, the caller stated “F— you.”2 Holmes told Doherty
about the tape recording, and Doherty once again instructed FireCo to cease all fundraising activities
on Local 4053’s behalf.
On September 5, 2006, city officials met with Doherty regarding the tape recording.
McClain, who had since been promoted to City Manager, reiterated that Doherty was subject to
termination because of the continued complaints from citizens. A second meeting was held on
September 15, 2006, and McClain again threatened to discipline Doherty if the complaints persisted.
McClain did not tell Doherty that he had to stop selling the concert tickets, but he did say that the
confusion and complaints from the citizens must stop.
On September 22, 2006, Doherty received a written reprimand which was placed in his
permanent personnel folder. Doherty was told that he could not appeal or otherwise challenge the
reprimand and that his only recourse was to file a response to be placed in the folder with the
reprimand. Neither Doherty nor Holmes lost his job, received a pay cut, was forced to work a
2
Apparently, the voicemail machine had picked up before the person answered the phone, and the voicemail
machine continued recording after the person hung up.
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No. 09-5217, Doherty v. City of Maryville
different shift, or incurred any out-of-pocket expenses as a result of the City’s response to the
complaint calls.
During the period that FireCo engaged in fundraising efforts on Local 4053’s behalf,
Maryville Fire Department’s delivery of fire services to the community continued as it always had,
and Doherty and Holmes continued to perform their firefighting duties without disruption.
The Plaintiffs filed this suit in federal district court alleging that the City violated their First
and Fourteenth Amendment rights to free speech and free association. The City filed a motion for
summary judgment. The district court denied the motion in part but granted it in part by dismissing
the Plaintiffs’ claim that Local 4053’s free speech rights had been violated. Three days later, on the
first day of trial, after an oral motion by the Plaintiffs, the district court reversed its ruling and
reinstated the claim by Local 4053.
At the close of the Plaintiffs’ presentation of evidence, the City moved for judgment as a
matter of law. The district court denied the motion. Following a stipulation to admit an exhibit, the
City then rested without calling any witnesses. The City did not renew its motion for judgment as
a matter of law after presenting its evidence, nor did it renew its motion after the jury issued its
verdict. The jury found in favor of the Plaintiffs and awarded over $90,000 in damages.3
The City now appeals, arguing that the district court erred as a matter of law when it denied
the City’s motion for summary judgment, or in the alternative, when it denied the City’s motion for
judgment as a matter of law. The City argues that the Plaintiffs were not engaged in a protected
activity, that they did not suffer any adverse action, and that any alleged adverse action was not
3
The jury awarded $15,000 to Doherty, $7,500 to Holmes, and $70,000 to Local 4053.
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No. 09-5217, Doherty v. City of Maryville
substantially motivated by the Plaintiffs’ constitutionally protected conduct. The City also
challenges the district court’s decision to reverse its partial grant of summary judgment, a decision
that the City alleges was unfairly prejudicial.
II.
The City frames its appeal as challenging the district court’s failure to grant summary
judgment “and/or” its failure to grant the City’s motion for judgment as a matter of law. The
Plaintiffs argue that neither issue has been preserved properly for appeal. They claim that a district
court’s denial of summary judgment is not appealable following a full trial on the merits. See
Garrison v. Cassens Transp. Co., 334 F.3d 528, 537 (6th Cir. 2003). They also argue that a motion
for judgment as a matter of law is not appealable unless the party renewed the motion both at the
close of evidence and after the jury’s verdict. The City concedes that it failed to renew its motion
for judgment as a matter of law. It argues, however, that (1) a denial of summary judgment is
appealable following a full trial on the merits when the question is a purely legal one; and (2) there
is no requirement to renew a Rule 50(a) motion when the issue is a purely legal question, rather than
a challenge to sufficiency of the evidence.
The City’s first argument is now clearly foreclosed in light of the Supreme Court’s recent
decision in Ortiz v. Jordan, 131 S. Ct. 884, 888-89 (2011) (holding that a party may not appeal an
order denying summary judgment after a full trial on the merits). Our jurisdiction in this case thus
turns on the City’s alternative argument, that it did not need to renew its Rule 50(a) motion because
the issue involved is a purely legal one.
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No. 09-5217, Doherty v. City of Maryville
It is well-established that a Rule 50(a) motion challenging the sufficiency of the evidence is
not properly preserved for appeal unless a party renews the motion following the jury verdict per
Rule 50(b). Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 400-01 (2006); Allison
v. City of E. Lansing, 484 F.3d 874, 876 (6th Cir. 2007). In Unitherm, 546 U.S. at 396, a party in
a civil case appealed an adverse jury verdict, alleging insufficiency of the evidence. Although the
appellant had sought judgment as a matter of law pursuant to Rule 50(a), it failed to renew the
motion after the verdict. Id. The Supreme Court held that the court of appeals could not review the
sufficiency of the evidence because the appellant had not preserved the question properly for appeal.
Id. at 400-06. In order to preserve the question for appeal, the Court explained, the appellant was
required to renew its motion per Rule 50(b) after the jury announced its verdict. Id. at 407.
The Plaintiffs in this case argue that Unitherm’s renewal requirement applies with equal force
when an appellant challenges pure questions of law. There is some broad language in Unitherm that
supports this proposition. See id. at 404 (“[T]he precise subject matter of a party’s Rule 50(a)
motion–namely, its entitlement to judgment as a matter of law–cannot be appealed unless that
motion is renewed pursuant to Rule 50(b).”). However, Unitherm itself dealt with a sufficiency-of-
the-evidence challenge, id. at 407, and the cases that enforce its renewal requirement also involve
sufficiency-of-the-evidence challenges, see, e.g., Ortiz, 131 S. Ct. at 892-93; Allison, 484 F.3d at
875.
Although this Court has not ruled explicitly on the question, we have suggested that the
renewal requirement applies only to sufficiency-of-the-evidence challenges and does not apply to
challenges raising purely legal questions. Bryant v. Dollar Gen. Corp., 538 F.3d 394, 397 n.2 (6th
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No. 09-5217, Doherty v. City of Maryville
Cir. 2008) (noting that “ample support exists for [appellant’s] interpretation that the Supreme
Court’s decision in Unitherm only addresses pre-verdict motions that are based upon sufficiency of
the evidence” (internal quotation marks and citation omitted)). Other circuits have explicitly held
that Unitherm is limited to sufficiency-of-the-evidence challenges. See Fuesting v. Zimmer, Inc., 448
F.3d 936, 939-41 (7th Cir. 2006) (explaining that Unitherm’s rule is limited to sufficiency-of-the-
evidence challenges); Metcalf v. Bocho, 200 F. App’x 635, 637 n.1 (9th Cir. 2006) (unpublished)
(“Unitherm . . . deals with the specific situation of a party’s failure to renew, post-verdict, a Rule 50
motion challenging the sufficiency of the evidence in a civil jury trial.”); accord 9A CHARLES
ALAN WRIGHT AND ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2540
(“If there have been errors at the trial, duly objected to, dealing with matters other than the
sufficiency of the evidence, they may be raised on appeal from the judgment even though there has
not been either a renewed motion for judgment as a matter of law or a motion for a new trial . . . .”).
Indeed, the rationale behind the renewal requirement supports its limited applicability. In
Unitherm, 546 U.S. at 401, the Supreme Court explained that,
A postverdict motion is necessary because determining whether a new trial should
be granted or a judgment entered under Rule 50(b) calls for the judgment in the first
instance of the judge who saw and heard the witnesses and has the feel of the case
which no appellate printed transcript can impart.
(internal quotation marks omitted). This rationale does not apply to challenges based on pure
questions of law. See Rothstein v. Carriere, 373 F.3d 275, 284 (2d Cir. 2004) (“[W]here the trial
court’s denial of a summary judgment motion is not based on the sufficiency of the evidence, but on
a question of law, the rationale behind Rule 50 does not apply, and the need for such an objection
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No. 09-5217, Doherty v. City of Maryville
is absent.”). The Supreme Court’s decision in Ortiz is not to the contrary because the Court
explicitly declined to address this question. See 131 S. Ct. at 892.
We now make clear that, in this circuit, Unitherm’s renewal requirement applies only to the
situations that the Supreme Court specifically addressed in that case: challenges to the sufficiency
of the evidence. Accordingly, the City’s failure to renew its Rule 50 motion following the jury’s
verdict poses no jurisdictional bar to our review of the purely legal questions raised on appeal.
We now turn to the merits of the appeal.
III.
We review de novo a district court’s denial of a motion for judgment as a matter of law.
Spengler v. Worthington Cyclinders, 615 F.3d 481, 488 (6th Cir. 2010). “[A] court may grant
judgment as a matter of law on a particular issue if ‘there is no legally sufficient evidentiary basis
for a reasonable jury to find for that party on that issue . . . .’” Mike’s Train House, Inc. v. Lionel,
L.L.C., 472 F.3d 398, 405 (6th Cir. 2006) (quoting Fed. R. Civ. P. 50(a)(1)). Judgment as a matter
of law is appropriate when, “viewing the evidence in the light most favorable to the non-moving
party, there is no genuine issue of material fact for the jury, and reasonable minds could come to but
one conclusion, in favor of the moving party.” Noble v. Brinker Int’l, Inc., 391 F.3d 715, 720 (6th
Cir. 2004).
In order to establish a prima facie case of First Amendment retaliation, a plaintiff must
demonstrate that (1) he engaged in constitutionally protected activity; (2) an adverse action was taken
against him by the defendant that would likely chill a person of ordinary firmness from continuing
to engage in that constitutionally protected activity; and (3) the adverse action was motivated at least
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No. 09-5217, Doherty v. City of Maryville
in part by that protected activity. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en
banc). This framework applies to claims alleging retaliation for either free speech or free
association. Id. at 390; Boals v. Gray, 775 F.2d 686, 692 (6th Cir. 1985).
The City’s primary argument on appeal is that the district court erred as a matter of law when
it concluded that the Plaintiffs were engaged in constitutionally protected activity. We agree with
the City.
A.
A plaintiff alleging retaliation for exercising a constitutional right must first show that he was
engaged in constitutionally protected activity. Thaddeus-X, 175 F.3d at 395. Because of its special
role as an employer, the government is granted some leeway to regulate its employees’ speech and
association. See Scarborough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 255 (6th Cir. 2006).
When a plaintiff is a public employee who is claiming retaliation by his employer (the government)
for his speech or his associations, his speech or association is protected only if (1) it touches on a
matter of public concern and (2) there is no overriding state interest that would be undermined by
the employee’s speech or association. See Evans-Marshall v. Bd. of Educ. of Tipp City Exempted
Vill. Sch. Dist., 624 F.3d 332, 337-38 (6th Cir. 2010). If a public employee’s conduct does not
involve a matter of public concern, then it is not constitutionally protected, and the court need not
evaluate the claim any further. See Connick v. Myers, 461 U.S. 138, 146 (1983).
Whether something is a matter of public concern is a question of law. Id. at 148 n.7; Chappel
v. Montgomery Cnty. Fire Prot. Dist. No. 1, 131 F.3d 564, 574 (6th Cir. 1997). Speech generally
involves a matter of public concern when it can “be fairly considered as relating to any matter of
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No. 09-5217, Doherty v. City of Maryville
political, social, or other concern to the community,” Connick, 461 U.S. at 146, as opposed to a
matter of private concern such as internal personal disputes or complaints about an employer’s
performance, see Brown v. City of Trenton, 867 F.2d 318, 322 (6th Cir. 1989). “Whether speech [or
association] addresses a matter of public concern . . . [is] determined by the content, form, and
context of a given statement, as revealed by the whole record.” Chappel, 131 F.3d at 574 (internal
quotation marks and citations omitted). We evaluate several factors to determine whether speech
is a matter of public concern, including “the focus of the speech; the point of the speech in question;
to what purpose the employee spoke; the intent of the speech; or the communicative purpose of the
speaker.” Farhat v. Jopke, 370 F.3d 580, 592 (6th Cir. 2004) (quotation marks and citation omitted).
B.
Applying this framework to the facts of this case, we must first identify the relevant conduct
and then analyze whether it touches a matter of public concern. The only activity that is relevant in
this case is the Plaintiffs’ act of contracting with a third-party telemarketing organization to make
fundraising phone calls. In their summary judgment pleadings, the Plaintiffs conceded that they
allege retaliation by the City solely because of their involvement with the phone calls. There is
absolutely no evidence in the record that the Plaintiffs were targeted because of their membership
in the union or because of the union’s other community activities.4 Rather, all the evidence shows
that they were targeted because they were in charge of this particular fundraising activity.
4
The only evidence that arguably demonstrates any underlying hostility to Local 4053 is the fire department’s
alleged refusal to let Local 4053 use the Maryville Fire Department boots in a “fill the boot” campaign for the Muscular
Dystrophy Association. Given the myriad reasons that a fire department might decline to loan out its equipment for non-
departmental purposes, this “evidence” hardly demonstrates an anti-union bias.
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No. 09-5217, Doherty v. City of Maryville
The district court erred by examining a much broader array of activity; it looked at everything
that the union did in the community,5 as well as the contract with FireCo and the phone calls that
FireCo made. The district court further erred by suggesting that the Plaintiffs may have been
disciplined for the positive aspects of the phone calls (as opposed to the threatening and misleading
aspects). Local 4053’s activity, other than the act of contracting with FireCo, is irrelevant to the
retaliation claim at hand.6
Having identified the relevant conduct at issue, we now turn to the question of whether it
touches on a matter of public concern. The Plaintiffs signed a contract with a telemarketing agency
to sell concert tickets. This was a business transaction, and the conduct had a commercial focus.
Furthermore, the subject of the contract, making phone calls, was also commercial in nature.
Doherty testified at trial that the purpose of the phone calls was to sell a product—tickets to a
concert. The act of signing a business contract does not fall within traditional understandings of
matters constituting a public concern. See Connick, 461 U.S. at 146 (explaining that “expression
[that] cannot be fairly considered as relating to any matter of political, social, or other concern to the
community” is not a matter of public concern).
The Plaintiffs argue that because the phone calls aimed to raise money for the union’s broad
activities, some of which are matters of public concern, the act of contracting with a telemarketer
5
These activities included fundraising for various community needs, teaching children and citizens about fire
safety, and informing the public about problems facing firefighters and paramedics.
6
Moreover, even if the district court properly analyzed Local 4053’s broad activities, no reasonable jury could
find that those other activities were a motivating factor behind the challenged disciplinary conduct; therefore the claim
would fail on the third prong of the First Amendment retaliation framework. See Thaddeus-X, 175 F.3d at 394 (stating
that a plaintiff alleging retaliation must show that the adverse action was motivated at least in part by the protected
activity).
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No. 09-5217, Doherty v. City of Maryville
to make those phone calls is also a matter of public concern. Even if we were to ignore the
attenuated nature of the link between the contract and potential issues of public concern, the fact that
the purpose of the FireCo contract was to raise money for union activities does not change the nature
of the contract itself. “[A]n employee’s speech, activity, or association, merely because it is union-
related, does not touch on a matter of public concern as a matter of law.” Boals, 775 F.2d at 693;
cf. Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 68 (1983) (“[A]dvertising which links a
product to a current public debate is not thereby entitled to the constitutional protection afforded
noncommercial speech.” (internal quotation marks and citation omitted)).7 Similarly, FireCo’s
passing references during the calls to some of the union’s protected activities do not transform the
nature of the calls (much less the contract to make the calls). We have held that “the proper inquiry
is not what might be incidentally conveyed by the speech, and that passing or fleeting references to
an arguably public matter do not elevate the speech to a matter of public concern where the focus
or point of the speech advances only a private interest.” Farhat, 370 F.3d at 592-93 (internal
quotation marks omitted). The Plaintiffs urge us to adopt a rule that would extend automatic First
Amendment protection to activities tangentially related to matters of public concern. We decline
their invitation to inflate the First Amendment into an amorphous and unbounded source of
protection.
As a matter of law, the conduct in question — i.e., the act of contracting with a third party
to make telemarketing calls — did not touch on a matter of public concern. The fact that FireCo
7
The distinction between the First Amendment protection afforded to commercial speech versus non-commercial
speech is well-settled. See Central Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 562-63 (1980) (“The
Constitution . . . accords a lesser protection to commercial speech than to other constitutionally guaranteed expression.”).
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No. 09-5217, Doherty v. City of Maryville
callers made incidental, fleeting references to the purpose behind the concert does not change the
overall character of the Plaintiffs’ conduct. Our inquiry therefore ends here, and we need not
determine whether an overriding state interest would be undermined by the Plaintiffs’ activity.8
IV.
Because the Plaintiffs failed to establish a prima facie case of First Amendment retaliation,
we need not address the City’s other arguments on appeal, and we REVERSE the judgment of the
district court.
8
Given the complaints and confusion generated by the calls, however, the City could meet its burden of showing
that the Plaintiffs’ activity undermined a legitimate goal of the City. See Meyers v. City of Cincinnati, 934 F.2d 726, 730
(6th Cir. 1991) (“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.”).
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No. 09-5217, Doherty v. City of Maryville
ROGERS, J., concurring. I concur in the result and in all but Part III.B of the majority
opinion. It is not clear to me that contracting with others to make fundraising calls is categorically
not protected under the First Amendment. However, reversal is required because the City’s interest
in efficient governance outweighed the plaintiffs’ interest in conducting fundraising activities via
telemarketing.
The action in question is not only the plaintiffs’ signing of a contract with FireCo, but also
includes the content of the calls made under that contract. The content of the calls is what, after all,
prompted city officials to meet with the plaintiffs and demand that all confusion resulting from the
calls cease. In Cockrel v. Shelby County School District, 270 F.3d 1036, 1048-50 (6th Cir. 2001),
by comparison, we held that a teacher who was sanctioned for the content of a classroom
presentation had engaged in speech in spite of the fact that she did not deliver the presentation.
Further, whether the activity is the contracting or the content of the calls, the activity was arguably
within the category of protected speech by virtue of being unrelated to government employment and
made on the employees’ own time. See Scarbrough v. Morgan Cty Bd. of Educ., 470 F.3d 250, 256-
57 (6th Cir. 2006).
Reversal is warranted at the second step of Pickering balancing, however, because the
plaintiffs’ interest in engaging in the fundraising campaign did not outweigh the City’s interest in
promoting efficient public services and preserving the reputation of city government. Pickering v.
Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cnty., Illinois, 391 U.S. 563, 568 (1968). The City
had to devote personnel hours to responding to complaints and confusion resulting from the calls,
and the plaintiffs were either unable or unwilling to resolve the confusion through a revised call
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No. 09-5217, Doherty v. City of Maryville
script or alternative campaign. Therefore, reversal is appropriate on the grounds that the plaintiffs’
interest in conducting fundraising in this manner did not outweigh the City’s interest in efficient use
of government resources or in preserving its municipal reputation.
16