Nair v. Oakland Cnty

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0118p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellant, -
D. SREEDHARAN NAIR,
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No. 05-1177
v.
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OAKLAND COUNTY COMMUNITY MENTAL HEALTH -
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Defendants-Appellees. -
AUTHORITY and WILLIAM J. ALLEN,
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Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 03-71590—Avern Cohn, District Judge.
Argued: January 26, 2006
Decided and Filed: April 4, 2006
Before: GUY, SUTTON, and McKEAGUE, Circuit Judges.
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COUNSEL
ARGUED: Barry S. Fagan, DIB, FAGAN & BRAULT, Royal Oak, Michigan, for Appellant.
Eileen K. Husband, CUMMINGS, McCLOREY, DAVIS & ACHO, Livonia, Michigan, for
Appellees. ON BRIEF: Barry S. Fagan, DIB, FAGAN & BRAULT, Royal Oak, Michigan, for
Appellant. Eileen K. Husband, Thomas J. Laginess, CUMMINGS, McCLOREY, DAVIS & ACHO,
Livonia, Michigan, for Appellees.
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OPINION
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SUTTON, Circuit Judge. Dr. Sreedharan Nair challenges the district court’s entry of
summary judgment against him in this lawsuit claiming (1) First Amendment retaliation under
42 U.S.C. § 1983 and (2) a violation of Michigan’s whistleblower statute. Because Nair’s speech
did not touch on a matter of public concern, we reject his First Amendment claim, and because his
speech did not threaten to report a violation of law, we reject his state-law claim. And because the
defendants have raised a sovereign-immunity defense to these claims as an alternative ground for
affirmance, we need not decide whether their sovereign-immunity defense otherwise restricts our
authority to reach the merits of this case. We affirm.
1
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I.
The Oakland County Community Mental Health Authority “provide[s] a comprehensive
array of mental health services appropriate to . . . individuals who are located within its geographic
service area, regardless of an individual’s ability to pay.” Mich. Comp. Laws § 330.1206(1). A
county-appointed board oversees the Authority, id. § 330.1212, and the executive director has day-
to-day control over the Authority, id. § 330.1230.
The executive director “function[s] as the chief executive” of the program. Id. In
“supervising all employees,” id., the executive director has authority to appoint a psychiatrist as
“medical director” to “advise the executive director on medical policy and treatment issues,”
id. § 330.1231.
In 2000, the Authority restructured its organization, which among other things entailed out-
sourcing its patient-care responsibilities. By October 1, 2000, the Authority had completed the
restructuring so that private contractors provided all patient care.
In November 2000, the Authority elevated Dr. Nair from a position as the interim medical
director, which he had held since January 2000, to that of the permanent medical director. And in
November 2001, the Authority hired William Allen as its executive director.
In early 2002, to trim administrative expenses, Allen proposed reducing the medical-director
position, which was paid $110 per hour, from full-time to half-time. Nair disagreed with the
proposal, believing that it would “further erode the role of the Medical Director to the detriment of
the agency.” JA 293. He sent Allen e-mails, faxes and other documents to convince him the
position required full-time hours. Notwithstanding Nair’s objections, the reduction took effect in
June 2002.
One month later, Nair raised the issue with a pre-accreditation survey team, which displeased
Allen. In October, Allen reviewed Nair’s performance. While “[o]verall, Dr. Nair’s performance
ha[d] met the conditions of his position,” JA 145, Allen found that “more effort was needed in terms
of providing assertive medical leadership,” JA 148.
On November 8, 2002, still bothered by the reduction in his hours, Nair sent a letter to the
board outlining his concerns about his diminished responsibilities. “[S]teadily and deliberately,”
he complained, “the responsibilities of the Medical Director have been curtailed and recently the
position has been downgraded to halftime level.” JA 380. Nair requested that the board “set up a
committee to study the role of the Medical Director in an agency like this.” Id. The letter concluded
by asking the board to “consider this matter urgent” and “have a response as soon as possible, as I
have serious concerns about my legal, ethical and moral obligations.” JA 381.
Allen viewed the letter as an insubordinate act on Nair’s part and informed him on November
19 that “this will have serious consequences to it.” JA 280, 465. “[A]ny future efforts to go to the
Board before addressing issues with me,” Allen noted, “will not be tolerated.” JA 280. On
November 20, Allen sent Nair a memo stating, “I continue to be concerned about [your] lack of
leadership with regard to medical director responsibilities and your constant concern about being
re-assigned to half-time rather than assertively handling your responsibilities.” JA 165.
On November 30, Clifford Johnson, the chairman of the board, responded to Nair’s letter.
Johnson pointed out that the elimination of the Authority’s “direct care” responsibilities had
“necessarily altered the function of [the] Medical Director.” JA 384. He also noted that the medical
director “is selected and hired by, and supervised by, the Executive Director.” JA 385. As “a direct
subordinate” without patient-care duties, Nair’s sole purpose was to add his “professional expertise
No. 05-1177 Nair v. Oakland County Cmty. Mental Auth. et al. Page 3
and perspective to the overall management effort.” Id. Johnson thus saw “no legitimate basis for
the board action you request.” Id.
On February 4, 2003, Allen terminated Nair, telling him that “[i]t just wasn’t working out.”
JA 212. In response, Nair filed a complaint in federal court against the Authority and Allen, alleging
that they had terminated him in retaliation for exercising his First Amendment rights and in violation
of Michigan’s Whistleblowers’ Protection Act. Claiming that it was an arm of the State because it
received over 55% of its budget from the State and because state money ultimately would be used
to satisfy any judgment against it, the Authority claimed that the Eleventh Amendment barred the
lawsuit from being heard in federal court.
The district court granted the defendants’ motion for summary judgment. In doing so, it did
not address the Authority’s sovereign-immunity defense but instead ruled (1) that because Nair’s
speech did not touch on a matter of public concern, it could not form the basis of a First Amendment
retaliation claim, and (2) that because Nair was not attempting to report a hidden violation of law,
he could not bring a claim under Michigan’s whistleblower statute.
II.
While the Authority has raised a sovereign-immunity defense to this lawsuit, it has not urged
us to address the defense at the outset and indeed has presented the defense as an alternative ground
for affirmance. This litigation stance prompts us to consider a jurisdictional question that the parties
have not argued or identified: Is a sovereign-immunity defense more akin to an absence of subject-
matter jurisdiction, which must be addressed at the outset and which may not be affected by the
parties’ litigation conduct, or more akin to other affirmative defenses, which need not be addressed
at the outset and which a defendant may waive?
From one vantage point, the defense looks like a contention that subject-matter jurisdiction
is missing. While the Tenth Amendment does not speak in subject-matter-jurisdictional terms, see
Alden v. Maine, 527 U.S. 706, 712–14 (1999) (noting that a State’s sovereign immunity arises under
the Tenth and Eleventh Amendments), and while the United States’ sovereign immunity is not
described in the Constitution at all, Keifer & Keifer v. Reconstruction Fin. Corp., 306 U.S. 381, 388
(1939), the Eleventh Amendment speaks in classic jurisdictional terms. “The Judicial power of the
United States,” it says, “shall not be construed to extend to any suit in law or equity, commenced
or prosecuted against one of the United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.” U.S. Const. amend. XI. Except for capitalizing “Power” rather than
“judicial,” the Article III description of judicial authority and of limitations on that authority is
strikingly similar to the Eleventh Amendment’s. In section one of Article III, the Constitution
creates “[t]he judicial Power of the United States,” and in section two it describes the subject-matter
jurisdiction of the federal courts, namely that “[t]he judicial Power shall extend to all Cases, in Law
and Equity, arising under this Constitution . . . .” In addition to this similarity in language, there are
other parallels between the two jurisdictional limitations. Like subject-matter jurisdiction, a
sovereign-immunity defense may be asserted for the first time on appeal, Edelman v. Jordan, 415
U.S. 651, 678 (1974), and it may (and should) be raised by federal courts on their own initiative,
Wisc. Dep’t of Corr. v. Schacht, 524 U.S. 381, 389 (1998).
But “[w]hile the Eleventh Amendment is jurisdictional in the sense that it is a limitation on
the federal court’s judicial power,” the defense “is not coextensive with the limitations on judicial
power in Article III.” Calderon v. Ashmus, 523 U.S. 740, 745 n.2 (1998). Unlike subject-matter
jurisdiction, a State may waive Eleventh Amendment immunity through its own conduct: by
legislation, Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305 (1990); by removing an
action to federal court, Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 616 (2002);
or by “appearing without objection and defending on the merits,” Ku v. Tennessee, 322 F.3d 431,
No. 05-1177 Nair v. Oakland County Cmty. Mental Auth. et al. Page 4
435 (6th Cir. 2003); cf. Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxite de Guinee, 456 U.S.
694, 702 (1982) (“[N]o action of the parties can confer subject-matter jurisdiction upon a federal
court. Thus, the consent of the parties is irrelevant.”). Unlike subject-matter jurisdiction, federal
courts have no obligation to raise an Eleventh Amendment issue on their own, even though they may
do so if they wish. Schacht, 524 U.S. at 389 (“Nor need a court raise [an Eleventh Amendment]
defect on its own. Unless the State raises the matter, a court can ignore it.”); cf. Ins. Corp. of
Ireland, 456 U.S. at 702 (“[A] court, including an appellate court, will raise lack of subject-matter
jurisdiction on its own motion.”). And unlike subject-matter jurisdiction, “the entity asserting
Eleventh Amendment immunity has the burden to show that it is entitled to immunity.” Gragg v.
Ky. Cabinet for Workforce Dev., 289 F.3d 958, 963 (6th Cir. 2002); cf. Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 104 (1998) (“[T]he party invoking federal jurisdiction bears the burden
of establishing its existence.”).
We have not spoken with one voice on whether we must, or whether we may, resolve a
sovereign-immunity defense before addressing the merits. The most thorough discussion of the
issue appears in Wilson-Jones v. Caviness, 99 F.3d 203, 206 (6th Cir. 1997), which reasoned that
“state immunity is jurisdictional in the same sense as the complete diversity requirement or the well-
pleaded complaint rule” and concluded that a sovereign-immunity defense had to be addressed
before the merits. But Wilson-Jones was decided before Schacht, which held that federal courts
need not raise a sovereign-immunity defense on their own initiative, and was decided before
Lapides, which held that a State’s voluntary removal of a case from state court waives the defense.
In view of these intervening Supreme Court decisions, we have said that Wilson-Caviness “is no
longer good law” when it comes to its statement that sovereign immunity is jurisdictional “in the
same sense” as subject-matter jurisdiction. Kovacevich v. Kent State Univ., 224 F.3d 806, 816 (6th
Cir. 2000). Kovacevich, however, proceeded to address the jurisdictional issue first and did not
explain a court’s obligation in this area, even if (as the court concluded) sovereign immunity does
not parallel subject-matter jurisdiction.
Both before and after Kovacevich, we have issued several opinions saying that we must
address the sovereign-immunity issue first. See, e.g., Angel v. Kentucky, 314 F.3d 262, 265 (6th Cir.
2002) (“We must therefore address the jurisdictional [Eleventh Amendment] question that clearly
exists, even though it was not addressed by the court below.”); Match-E-Be-Nash-She-Wish Band
of Pottawatomi Indians v. Engler, 304 F.3d 616, 618 (6th Cir. 2002) (stating that “jurisdictional
issues,” including an Eleventh Amendment defense, must “be addressed prior to reaching the
merits”); Rossborough Mfg. Co. v. Trimble, 301 F.3d 482, 489 (6th Cir. 2002) (“As a threshold
matter, we must determine whether the Treasurer and the Administrator are entitled to Eleventh
Amendment immunity.”); Johnson v. Univ. of Cincinnati, 215 F.3d 561, 570 (6th Cir. 2000) (“We
first address Defendants’ Eleventh Amendment immunity defense because this defense raises a
question of federal jurisdiction.”); Wells v. Brown, 891 F.2d 591, 592–93 (6th Cir. 1989) (“We are
required to decide [the Eleventh Amendment] issue before we decide the merits.”); Childs v.
Koosed, No. 90-3449, 1991 WL 33133, at *4 (6th Cir. Mar. 13, 1991) (“In view of the District
Court’s disposition of the claims on eleventh amendment grounds, the District Court was without
jurisdiction to make the alternative ruling on the merits.”); see also Haas v. Quest Recovery Servs.,
Inc., 338 F. Supp. 2d 797, 799 (N.D. Ohio 2004) (“Although Ohio couches its Eleventh Amendment
argument as an alternative basis for dismissal, the Court addresses jurisdictional arguments first.”).
And both before and after Kovacevich, we have issued several opinions saying that we need
not address the sovereign-immunity issue first. See, e.g., Alkire v. Irving, 330 F.3d 802, 813 (6th
Cir. 2003) (deciding to “[p]ut[] the issue of sovereign immunity to the side” and proceeding to
“consider the merits of Alkire’s claims”); Brindley v. Best, 192 F.3d 525, 531 (6th Cir. 1999) (“[W]e
need not decide [whether the Eleventh Amendment bars plaintiff’s claims] because the defendants”
should prevail on the merits.); Vandiver v. Hardin County Bd. of Educ., 925 F.2d 927, 935 (6th Cir.
1991) (“The parties . . . raise [ ] arguments regarding . . . sovereign immunity for the Commonwealth
No. 05-1177 Nair v. Oakland County Cmty. Mental Auth. et al. Page 5
of Kentucky. In light of our disposition on the merits, it is unnecessary to address these points.”);
Linser v. Ohio Dep’t of Mental Health, No. 99-3887, 2000 WL 1529809, at *1 n.1 (6th Cir. Oct. 6,
2000) (“Given the unsettled nature of the law regarding states’ Eleventh Amendment immunity as
to Titles I and II of the ADA, we do not address the question of whether Linser’s claims . . . are
barred by the Eleventh Amendment. Instead we address only the merits of Linser’s claims.”);
Rowlands v. Pointe Mouille Shooting Club, No. 98-1514, 1999 WL 520110, at *3 n.3 (6th Cir. July
14, 1999) (“Because [plaintiff’s] claim fails on [procedural] grounds, we need not decide the issue
of whether the Eleventh Amendment bars a qui tam suit.”); cf. Tri-State Steel Constr. Co. v. Herman,
164 F.3d 973, 980 (6th Cir. 1999) (“Having concluded that Rule 11 sanctions may not be
incorporated into the Commission Rules, we need not decide whether the doctrine of sovereign
immunity also precludes an award of Rule 11 sanctions against the United States in proceedings
before the Commission.”).
Our sister courts of appeals have reached different conclusions on the point. Four courts of
appeals have held that the immunity question, like the Article III question, must be resolved before
the merits. See United States v. Tex. Tech Univ., 171 F.3d 279, 285–86 (5th Cir. 1999); In re
Jackson, 184 F.3d 1046, 1048 (9th Cir. 1999); Martin v. Kansas, 190 F.3d 1120, 1126 (10th Cir.
1999); Seaborn v. Fla. Dep’t of Corr., 143 F.3d 1405, 1407 (11th Cir. 1998). And six courts of
appeals have held that the immunity question need not be addressed before the merits. See In re
Hechinger Inv. Co. of Del., Inc., 335 F.3d 243, 250 (3d Cir. 2003); Strawser v. Atkins, 290 F.3d 720,
730 (4th Cir. 2002); Gordon v. City of Kansas City, Mo., 241 F.3d 997, 1005 n.7 (8th Cir. 2001);
United States ex rel. Long v. SCS Bus. & Tech. Inst., Inc., 173 F.3d 890, 898 (D.C. Cir. 1999);
Parella v. Ret. Bd. of the R.I. Employee Ret. Sys., 173 F.3d 46, 53–57 (1st Cir. 1999); compare
Kennedy v. Nat’l Juvenile Det. Ass’n, 187 F.3d 690, 696 (7th Cir. 1999) with Floyd v. Thompson,
227 F.3d 1029, 1035 (7th Cir. 2000). Another circuit appears to have reached conflicting
conclusions on the issue. Compare Ret. Sys. of Ala. v. J.P. Morgan Chase & Co., 386 F.3d 419, 431
(2d Cir. 2004) and Tyler v. Douglas, 280 F.3d 116, 121 (2d Cir. 2001) (holding that the court may
avoid the sovereign-immunity question) with Dotson v. Griesa, 398 F.3d 156, 177 (2d Cir. 2005)
and Hale v. Mann, 219 F.3d 61, 66–67 (2d Cir. 2000) (holding that the court must address the
sovereign-immunity question at the outset because it is jurisdictional).
While the trend in this area seems to favor giving federal courts discretion over the issue, we
need not decide the point because there is a narrower ground for decision, one that (we suspect) will
account for most situations in which the issue arises. The most salient difference between sovereign
immunity and subject-matter jurisdiction is that the former may be altered by the parties’ litigation
conduct while the latter may not be. And it is just one party’s litigation conduct—the
sovereign’s—that may alter the existence of federal-court jurisdiction. If it is true that sovereign
immunity may be waived and if it is true that just one party (the State) may waive the defense, the
State would seem to be free to express whatever preference it wishes about whether the defense is
a threshold issue or one that arises only if the sovereign would otherwise lose on the merits. Surely
a State that has authority to waive the broader question (of whether it is amenable to suit at all),
Alden, 527 U.S. at 737, has authority to waive the narrower question (of whether a court must
address a sovereign-immunity defense before the merits). Because sovereign immunity “grants the
State a legal power to assert a sovereign immunity defense should it choose to do so,” Schacht, 524
U.S. at 389, it is hard to say that this right has been diminished when a State “choose[s]” whether
to express a mercenary interest only in prevailing (by any order of decision) or to express a “dignity”
interest in immediately divesting the federal courts of jurisdiction over the dispute. See Fed. Mar.
Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 760 (2002) (stating that a critical “purpose of state
sovereign immunity is to accord States the dignity that is consistent with their status as sovereign
entities”). If a State refuses to invoke its sovereign immunity as a threshold defense, usually by way
of a motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure, it cannot
credibly be heard to complain about the indignity of the federal courts resolving the merits of its
case—and in its favor no less.
No. 05-1177 Nair v. Oakland County Cmty. Mental Auth. et al. Page 6
In a related setting, the Supreme Court has given States some control over the order in which
federal courts address sovereign-immunity defenses. In Puerto Rico Aqueduct and Sewer Authority
v. Metcalf & Eddy, Inc., 506 U.S. 139, 147 (1993), the Court held “that States and state entities that
claim to be ‘arms of the State’ may take advantage of the collateral order doctrine to appeal a district
court order denying a claim of Eleventh Amendment immunity.” But in doing so the Court did not
require States immediately to appeal the denial of immunity. If a State may allow a district court
to consider the merits before an appellate court considers its sovereign-immunity defense, it is
difficult to see why a State should be prevented from allowing an appellate court to consider these
same questions in the same order.
The defendants in this instance raised sovereign immunity as an “alternative” ground for
rejecting Nair’s claims. See Def. Br. at 23 (“The Eleventh Amendment bar is applicable on an
alternative basis for dismissal of plaintiff’s § 1983 claim.”). Under these circumstances and under
any circumstances in which the State (or the United States) declines to raise sovereign immunity as
a threshold defense, we conclude that the federal courts have discretion to address the sovereign-
immunity defense and the merits in whichever order they prefer. To our knowledge, no court of
appeals to consider this question has held to the contrary, and several have explicitly or implicitly
embraced this approach. See Bowers v. NCAA, 346 F.3d 402, 418 n.15 (3d Cir. 2003) (“Inasmuch
as [the defendant] does not urge that we resolve the Eleventh Amendment questions before we
decide the statutory contribution questions, conceptually, at least, we could hold that it has waived
its Eleventh Amendment immunity to that very limited extent.”); Strawser, 290 F.3d at 729 (“[T]he
officials here argue the merits and rely upon [the Eleventh Amendment] defense only if it is
necessary to prevent judgment against them on the merits.”) (internal quotation marks omitted);
McClendon v. Ga. Dep’t of Cmty. Health, 261 F.3d 1252, 1258 (11th Cir. 2001) (“[T]he defendants
are free to conditionally assert [the Eleventh Amendment] defense in order to allow a federal court
to decide in their favor on the merits.”); SCS Bus. & Tech. Inst., 173 F.3d at 893 (“New York’s
litigation strategy—an Eleventh Amendment argument in the alternative—suggests that, at least, we
are entitled to reverse the Steel Co. order. After all, Steel Co.’s rule is premised on a court’s lack
of power to reach the merits without establishing its jurisdiction. In the Eleventh Amendment
context, where a court lacks power only if a state claims that it does, it is arguable that we have no
obligation to decide the Eleventh Amendment issue first if the state does not demand that we do
so.”).
Because the defendants have raised sovereign immunity as an alternative defense, because
the district court addressed only the merits and because the merits offer a more straightforward way
for resolving this case, we bypass the sovereign-immunity question and proceed to Nair’s claims
under the First Amendment and Michigan’s Whistleblowers’ Protection Act. We leave for another
day the question whether a federal court must decide the immunity question before the merits when
a State raises it as a threshold defense.
III.
To establish a cognizable claim of retaliatory discharge in violation of the First (and
Fourteenth) Amendment, Nair must demonstrate: “(1) that he was engaged in a constitutionally
protected activity; (2) that the defendant’s adverse action caused him to suffer an injury that would
likely chill a person of ordinary firmness from continuing to engage in that activity; and (3) that the
adverse action was motivated at least in part as a response to the exercise of his constitutional
rights.” Vaughn v. Lawrenceburg Power Sys., 269 F.3d 703, 715 (6th Cir. 2001). In establishing
the first prong of the test—whether the speech is “protected”—a claimant must show that the speech
involved “a matter of public concern,” Waters v. Churchill, 511 U.S. 661, 668 (1994), as established
by “the content, form, and context of [the] given statement,” Evans-Marshall v. Bd. of Educ., 428
F.3d 223, 229 (6th Cir. 2005) (internal quotation marks omitted). Whether Nair engaged in
No. 05-1177 Nair v. Oakland County Cmty. Mental Auth. et al. Page 7
protected speech is a question of law for the court. Brandenburg v. Hous. Auth. of Irvine, 253 F.3d
891, 897 (6th Cir. 2001).
One “context[ual]” clue for determining whether speech deals with “a matter of public
concern” is whether the claimant is a public employee speaking in his official capacity about his
employment. “[W]hen 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.”
Connick v. Myers, 461 U.S. 138, 147 (1983). In drawing a dichotomy between a public employee’s
speech “as a citizen” and his speech “as an employee,” the Court has indicated that the latter is less
likely to be treated as protected speech. Connick, 461 U.S. at 147; see also id. at 143 (“The repeated
emphasis . . . on the right of a public employee ‘as a citizen . . . ,’ [is] not accidental.”); see also
Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968) (“The problem in any case is to arrive at a
balance between 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 [ ] efficiency.”)
(emphasis added). Otherwise, “virtually every remark” within a government office “would plant
the seed of a constitutional case,” Connick, 461 U.S. at 149, and “government offices could not
function if every employment decision became a constitutional matter,” id. at 143.
As a public employee speaking about his own job responsibilities and hours, Nair has not
shown that his speech addressed “a matter of public concern.” The sole speech at issue, the parties
agree, is Nair’s November 8 letter to the board, which he wrote in his official capacity as a public
employee, not in his capacity as a private citizen. JA 380 (“I need to make you . . . aware of some
of my concerns as the Medical Director.”) (emphasis added). The letter focuses on the reduction
of Nair’s responsibilities and hours, not those of anyone else employed by the Authority.
(“[S]teadily and deliberately the responsibilities of the Medical Director have been curtailed and [ ]
the position has been downgraded to a halftime level.”). The interim requested remedy—the
appointment of a committee to study his role—would directly affect Nair alone. And the ultimate
remedy—the return of the Medical Director to a full-time position—would double just Nair’s hours
and his compensation. Even his concluding expression of concern about the legal and other
obligations of the job is phrased personally rather than publicly, as he ends the letter by saying, “I
have serious concerns about my legal, ethical and moral obligations.” JA 381 (emphasis added).
Nor did the dialogue prompted by Nair’s letter address public matters. Like Nair’s letter,
the response by the chairman of the board focuses on the Authority’s administrative structure, the
relationship of the medical and executive directors, and the medical director’s limited
responsibilities. It discusses patient care only to observe that the Authority’s and medical director’s
role in directly providing it has ceased. No mention is made of public health. And no follow-up by
Nair shows that the board chairman failed to grasp the point of his letter.
While it may not be fair to characterize Nair’s letter and the underlying debate about the role
of the medical director as solipsistic, it also would not be fair to characterize the letter as a public-
spirited missive about health policy or patient care. Any connection the letter has with the public
interest is incidental and arises only because Nair’s job dealt with public health, which in a general
sense concerns the public. As in Gragg, “while some of the issues raised in the letter . . . may have
implications beyond [Nair], that fact alone does not make them issues of public concern. . . . If it
were otherwise, an employee could characterize any internal dispute or grievance as relating to a
matter of public concern.” 289 F.3d at 967. See also Rahn, 31 F.3d at 414 (“In almost every public
employee case brought under the First Amendment, the employee could contend that the public
might wish to air [its] views on the goals of any public institution.”).
No. 05-1177 Nair v. Oakland County Cmty. Mental Auth. et al. Page 8
Our cases resolving disputes between medical bodies and their employees confirm that
Nair’s speech does not fall on the protected side of the line. In Rahn, the plaintiff published a press
release that criticized the hospital administrator and called for “a new, progressive, positive and
capable Administrator.” Id. at 411. A single sentence in the multi-page press release mentioned that
newly promulgated work rules had “created a high absenteeism, possibly developing a patient
endangerment situation.” Id. at 410. This comment did not alter the letter’s status as “an example
of the quintessential employee beef” because the focus was “not on patient endangerment” but “on
the employees’ discontent.” Id. at 413 (internal quotation marks and brackets omitted). By contrast,
in Rodgers v. Banks, we analyzed an internal memorandum questioning the conversion of patient-
care space into office space. 344 F.3d 587 (6th Cir. 2003). We noted that two-thirds of the memo
focused on the needs of patients and ended with the statement that “the patient’s needs . . . should
be the most important factor.” Id. at 600 (internal quotation marks omitted). Because the memo
focused on patient care, a public concern, we granted the memo First Amendment protection. The
statements in Nair’s letter represent a far cry from the protected speech in Rodgers and are even less
public spirited than the unprotected speech in Rahn.
Also unavailing is Nair’s reliance on background information pre-dating this dispute. In
August 2002, Nair points out, his predecessor expressed a concern to the board about the reduction
of the medical director’s hours from full-time to half-time. And a July 2002 accreditation review
of the Authority, he adds, stated, “Documented proof that the Medical Director actively participates
in management decisions that affect the scope and Quality of the delivery system’s care and service
providers was minimal. An interview with the Medical Director confirmed this observation.”
JA 372. To the extent Nair means to use this evidence to explain his motive for writing the letter
to the board, that does not help his claim. “[O]ur opinions are clear that, consistent with the
‘content’ test of Connick, the pertinent question is not why the employee spoke, but what he said.”
Farhat v. Jopke, 370 F.3d 580, 591 (6th Cir. 2004); see also Rodgers, 344 F.3d at 600 (noting that
“our duty is not to discern [the plaintiff’s] underlying motive, but rather to evaluate her point as it
is presented in the speech”).
Nor do these two pieces of information otherwise advance the claim. That the previous
medical director opposed reducing the position to half-time status shows only that medical directors
in general, not the public at large, preferred the position to be full-time. That the accreditation
review opined that the medical director showed only minimal participation in management decisions
“that affect the scope and Quality of the delivery system’s care and service providers” does not
establish that the review board thought that the position should be full-time. Indeed, the comment
more naturally supports the executive director’s criticism of Nair that “more effort [was] needed”
in taking “assertive medical leadership.” JA 148. It bears adding that even though these two
documents pre-dated Nair’s November 8 letter to the board, he did not mention either of them in the
letter. This claim accordingly fails as a matter of law.
IV.
Nair’s claim under Michigan’s Whistleblowers’ Protection Act also fails as a matter of law.
“An employer,” the Act says, “shall not discharge . . . an employee . . . because the employee . . .
reports or is about to report, verbally or in writing, a violation or a suspected violation” of the law.
Mich. Comp. Laws § 15.362. To establish a prima facie case under the Act, Nair thus had to show
that he had reported or imminently was going to report a violation of law to a public body. Dolan
v. Cont’l Airlines/Cont’l Express, 563 N.W.2d 23, 26–27 (Mich. 1997); see also id. at 27 (“The act
was intended to protect employees who alert the public to corruption or criminally irresponsible
behavior in the conduct of government or large businesses.”) (internal quotation marks omitted).
Nair cannot satisfy this requirement. As with the retaliation claim, the only evidence on
which he relies is the November 8 letter to the board. Nowhere in the letter does he report a
No. 05-1177 Nair v. Oakland County Cmty. Mental Auth. et al. Page 9
violation or suspected violation of the law, and nowhere does he suggest that he is about to report
such a violation. That he concludes the letter by generically mentioning “my legal, ethical and moral
obligations,” JA 381 (emphasis added), does not show that the Authority has violated any law or that
Nair intended to report any such violation. This claim accordingly fails as well.
V.
For these reasons, we affirm.