Allan Josephson v. Toni Ganzel

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 24a0217p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

ALLAN M. JOSEPHSON,

│

Plaintiff-Appellee, │

│

v. │

> No. 23-5293

│

TONI M. GANZEL, Interim Executive Dean of Health Affairs │

and Dean of the School of Medicine at the University of │

Louisville, in her official and individual capacities; KIMBERLY │

A. BOLAND, Interim Chair of the Department of Pediatrics at │

the University of Louisville, in her official and individual │

capacities; CHARLES R. WOODS, former Chair of the │

Department of Pediatrics at the University of Louisville, in his │

individual capacity; JENNIFER F. LE, former Interim Division │

Co-Chief of the Division of Child and Adolescent Psychiatry │

and Psychology and current Chief of the Division of Child and │

Adolescent Psychiatry and Psychology at the University of │

Louisville, in her official and individual capacities; BRYAN D. │

CARTER, former Interim Division Co-Chief of the Division of │

Child and Adolescent Psychiatry and Psychology and Chief of │

the Division of Psychology at the University of Louisville, in │

his official and individual capacities; WILLIAM D. LOHR, │

former Interim Division Co-Chief of the Division of Child and │

Adolescent Psychiatry and Psychology at the University of │

Louisville, in his official and individual capacities, │

Defendants-Appellants. │

┘

Appeal from the United States District Court for the Western District of Kentucky at Louisville.

No. 3:19-cv-00230—Rebecca Grady Jennings, District Judge.

Argued: July 23, 2024

Decided and Filed: September 10, 2024

Before: GILMAN, GRIFFIN, and MATHIS, Circuit Judges.

No. 23-5293 Josephson v. Ganzel, et al. Page 2

_________________

COUNSEL

ARGUED: Jeremy S. Rogers, DINSMORE & SHOHL LLP, Louisville, Kentucky, for

Appellants. Travis C. Barham, ALLIANCE DEFENDING FREEDOM, Lawrenceville, Georgia,

for Appellee. ON BRIEF: Jeremy S. Rogers, Donna King Perry, Matthew Barszcz,

DINSMORE & SHOHL LLP, Louisville, Kentucky, for Appellants. Travis C. Barham,

ALLIANCE DEFENDING FREEDOM, Lawrenceville, Georgia, Tyson C. Langhofer, P. Logan

Spena, ALLIANCE DEFENDING FREEDOM, Lansdowne, Virginia, for Appellee. William E.

Trachman, MOUNTAIN STATES LEGAL FOUNDATION, Lakewood, Colorado, Edward M.

Wenger, Shawn Toomey Sheehy, HOLTZMAN VOGEL BARAN TORCHINSKY &

JOSEFIAK PLLC, Washington, D.C., for Amici Curiae.

_________________

OPINION

_________________

MATHIS, Circuit Judge. The First Amendment protects popular and unpopular speech

alike. Allan Josephson worked as a professor of psychiatry at a public university’s medical

school. After developing an interest in the medical treatment of childhood gender dysphoria, he

began publicly discussing his views on that topic. In October 2017, he expressed his thoughts on

treating childhood gender dysphoria during a panel discussion sponsored by a conservative think

tank. His commentary was unpopular with his coworkers and supervisors. Josephson believes

that his superiors retaliated against him for the views he expressed during the panel discussion,

ultimately culminating in the nonrenewal of his contract with the university after more than

fifteen years of employment. So he sued the individuals that he says violated the First

Amendment by retaliating against him.

The defendants argue that they are entitled to Eleventh Amendment immunity and

qualified immunity. The district court disagreed, and so do we. For the reasons explained

below, we affirm.

No. 23-5293 Josephson v. Ganzel, et al. Page 3

I.

In 2003, Josephson, a psychiatrist, joined the University of Louisville School of

Medicine’s (the “Medical School”) faculty.1 Several separate departments make up the Medical

School. Josephson worked in the Department of Pediatrics (the “Department”). The Department

is further divided into divisions, including the Division of Child and Adolescent Psychiatry and

Psychology (the “Division”). The Medical School hired Josephson to lead the Division as its

chief.

Josephson served as Division chief without issue until 2017. This changed after he

participated in a panel discussion on childhood gender dysphoria with the Heritage Foundation.

After Josephson made his panel remarks, the Medical School demoted him and eventually chose

not to renew his contract. Then, Josephson sued several Medical School officials, alleging they

retaliated against him for exercising his First Amendment rights. Six of those individuals are

relevant to this appeal—Toni Ganzel, Kimberly Boland, Charles Woods, Jennifer Le, Bryan

Carter, and William Lohr. They each supervised Josephson at points during the relevant time.

A.

Ganzel became the dean of the Medical School in May 2013. In that role, Ganzel

oversaw the Medical School’s academic mission and the achievement of its objectives. This

included her oversight of the Department.

Boland joined the Medical School’s faculty in 1997. By 2017, she was the Department’s

executive vice chair. Her responsibilities included, among other things, assisting with some of

the division chiefs’ annual reviews and generally assisting the Department’s chair as needed.

Eventually, she recommended the nonrenewal of Josephson’s contract.

Woods, a pediatrician, joined the Medical School faculty in 2006. By October 2017,

Woods was the Department’s chair. As chair, Woods oversaw the Department’s various

divisions. He stayed in that role until he left the Medical School in late June 2018.

1

Because this case comes to us on interlocutory appeal from the denial of Defendants’ motions for

summary judgment, we recite the facts in the light most favorable to Josephson. See Wilkie v. Robbins, 551 U.S.

537, 543 n.2 (2007).

No. 23-5293 Josephson v. Ganzel, et al. Page 4

Le, a psychiatrist, joined the Division faculty in August 2008. She reported to Josephson

when he was Division chief. In December 2017, Woods appointed Le to serve as one of three

interim co-chiefs of the Division, along with Carter and Lohr. In October 2018, Le became the

permanent Division chief, making her Josephson’s direct supervisor.

Carter, a psychologist, was also a Division faculty member. Carter reported to Josephson

until December 2017, when he was appointed to serve as one of the Division’s three interim co-

chiefs. He worked in that role until October 2018 when Le was appointed the permanent

Division chief.

Lohr was also a Division faculty member who reported to Josephson. Lohr became one

of the Division’s three interim co-chiefs in December 2017. Like Carter, Lohr worked in that

role until October 2018 when Le became the Division chief.

B.

Josephson became concerned about the “new treatment for youth experiencing gender

dysphoria” through his academic work. R. 19, PageID 219. He began vocalizing these concerns

in 2014 by consulting in several lawsuits involving public school children seeking “to use the

showers, restrooms, and locker rooms” of those different from their sex assigned at birth. Id. In

2016 and 2017, he served as an expert witness in several similar lawsuits involving issues related

to childhood gender dysphoria. In those cases, Josephson opined on the causes of gender

dysphoria, children’s ability to make major medical decisions, the tendency for gender dysphoria

to subside by late adolescence, and, as he described it, “a more conservative, comprehensive,

developmentally-based treatment for” gender dysphoria in minors. Id. at 220.

Sometime in October 2017, the Heritage Foundation invited Josephson to speak on a

panel titled: “Gender Dysphoria in Children: Understanding the Science and the Medicine.”

Josephson accepted, and—on the Heritage Foundation’s dime—he traveled to Washington, D.C.,

to participate in the panel discussion. The panel’s moderator explained that each panelist spoke

“in his or her individual capacity” and not “on behalf of any organization.” R. 66-16, PageID

2304. Still, Josephson was recognized as a professor at the Medical School. Among other

statements made during the panel, Josephson explained that “gender dysphoria is a socio-

No. 23-5293 Josephson v. Ganzel, et al. Page 5

cultural, psychological phenomenon that cannot be fully addressed with drugs and surgery.

Thus, doctors and others should explore what causes this confusion and help the child learn how

to meet this developmental challenge.” The panel discussion was published online.

Brian Buford, the director of the University of Louisville’s LGBT Executive Center,

learned about Josephson’s remarks a few days later. Buford emailed Ganzel, suspecting

Josephson “might be violating the ethical standards for psychiatry.” R. 64-5, PageID 1869.

Buford also worried that Josephson might be “getting additional national attention” for an

opinion “that puts our reputation at risk and runs counter to the messages of inclusion and

welcome that we have been sending.” Id. Ganzel noted that Josephson’s remarks did not

“reflect the culture” the Medical School was “trying so hard to promote.” Id. at 1868. She

directed Buford to speak with Woods to discuss next steps. Woods agreed that they needed to

address this issue, and he referenced “concerning conversations” he had already had with other

Department faculty “about this in general.” Id.

News of Josephson’s remarks spread. For example, Carter testified that he learned about

what Josephson said during the Heritage Foundation panel from “about three different sources,”

including Dr. Christine Brady—another faculty member in the Division. R. 59-2, PageID 1102.

According to Carter, people were calling the dean to ask if the Medical School’s stance on

gender dysphoria aligned with Josephson’s remarks. Carter further testified that Division faculty

became concerned they were “being lumped under [Josephson’s] beliefs.” Id. at 1106.

The concern of Josephson’s colleagues continued to grow. In an email to Woods and

another Medical School official, Carter worried Josephson’s views might “reflect negatively on

our division, the department, the university, our training programs (including accreditation,

recruitment and retention), and most importantly on the patients and families with whom we

provide clinical services.” R. 64-7, PageID 1875. Carter further expressed that he was

“committed to ensuring” that Josephson’s “highly conservative position” did not affect the

Medical School’s reputation or the work he and his colleagues provided. Id. at 1873. He also

noted that he would “not stand by and allow [Josephson’s] activities” to “go unchallenged.” Id.

at 1874. Officials in the LGBT Center shared similar concerns. Soon, “[v]irtually all” Division

faculty learned of and shared concerns about Josephson’s activities. R. 64-9, PageID 1881.

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According to Carter, all Division faculty agreed that Josephson “must cease and desist in these

activities in his role as our division chief” and as a Medical School faculty member. R. 64-8,

PageID 1877.

By early November 2017, Josephson’s colleagues and supervisors were ready to confront

him. Woods met with Josephson to discuss, among other things, Josephson’s involvement as an

expert witness in a case in Florida. Woods told Josephson that he had heard about Josephson’s

activities from “different corners of campus.” R. 58-3, PageID 998. Woods reminded Josephson

to do his expert-witness work on his own time and in a way that made it clear that Josephson’s

opinions were his own and not the Medical School’s. When Josephson mentioned his work with

the Heritage Foundation, Woods challenged him to consider how the public might perceive his

work as an “expert” on these issues. R. 58-4, PageID 1024. This was because, according to

Woods, “those on the religious right (who see themselves fighting a culture war and who do not

generally exhibit compassion for those with whom they disagree)” could “promote[]” Josephson

“in ways he might not anticipate” and in ways that might “be hard to disconnect” from

Josephson’s “day job.” Id.

In the days that followed, Carter tried to convince Josephson to address the growing

tension in the Division at an upcoming faculty meeting. Josephson led that faculty meeting on

November 15, 2017. The meeting was contentious.

During the meeting, a few faculty members voiced their concerns about Josephson’s

conduct. Josephson recalled his colleagues raising “a laundry list” of concerns about his

behavior. R. 58-5, PageID 1027. Le, Carter, and other faculty members demanded that

Josephson either apologize for his remarks or issue a statement explaining that his opinions were

his own and not the Medical School’s. Attendees recall Josephson yelling and accusing his

colleagues of staging “a coup” against him before abruptly ending the meeting. R. 59-2, PageID

1114.

Woods met with Josephson the next day to discuss his concerns about the rift between

Josephson and the Division faculty. Josephson felt confident that his decades of leadership

experience would allow him to effectively handle the conflict. Josephson asked if Woods

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wanted him to step down as Division chief. Woods indicated that he did not want that. Even so,

Woods left that meeting thinking Josephson did “not understand how upset everyone is around

him on this issue.” R. 58-8, PageID 1042.

Woods continued to ponder whether Josephson should continue leading the Division.

The day following his meeting with Josephson, Woods met with two Division faculty members

to discuss their concerns about Josephson. By that point, Woods no longer believed that

Josephson could remain Division chief. A few days after that, on November 22, 2017, Woods

requested to meet with Josephson once more. Among other things, Woods again mentioned the

rift between Josephson and his colleagues. Josephson assured Woods that he would meet with

the faculty to address the tension in the Division.

In a letter dated November 28, 2017, Woods asked Josephson to resign as Division chief.

Woods made this request because most Division faculty “disagree[d] with [Josephson’s]

approach to management of children and adolescents with gender dysphoria.” R. 58-9, PageID

1044. Although Woods made the ultimate decision to request Josephson’s resignation, he did

not do so alone. Boland was a “sounding board” for Woods’s decision. R. 63-2, PageID 1615.

Boland also recalled attending a meeting with Woods and Josephson where they discussed

Woods’s request for Josephson to step down. And Ganzel testified that she also approved

Woods’s decision to send his letter.

Josephson agreed to resign as Division chief the next day, effective early December

2017. Woods and Boland selected three faculty members to serve as interim co-chiefs in his

stead—Le, Carter, and Lohr. In their role as interim co-chiefs, Le, Carter, and Lohr were

responsible for developing Josephson’s new work assignment. They began doing so soon after

stepping into their new positions. Because Josephson no longer had Division chief duties, they

knew he needed to increase his clinical load. But it was unclear where to go from there.

Le, Carter, and Lohr floated several ideas about how to craft Josephson’s new work

assignment. As they planned, Lohr discussed his inclination “to challenge [Josephson’s]

inductive reasoning as unscientific and ask how much he’s earned as an expert witness over the

last 2 years on sexuality issues. Gloves could be coming off.” R. 65-43, PageID 2138.

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And during a meeting on December 7, 2017, Woods and Boland instructed Josephson not to treat

LGBTQ patients. By February 2018, Josephson was expected, each week, to complete three

telepsychiatry shifts, spend sixteen hours seeing patients in person, and bill thirteen hours of

patient care.

Apart from planning Josephson’s work assignment, Le, Carter, and Lohr also monitored

his behavior. In fact, they began tracking Josephson’s conduct even before they officially

stepped into their roles as interim co-chiefs. Le created what she dubbed her “Allan tracking

document,” with its first entry made on November 27, 2017—the day before Woods requested

Josephson’s resignation. Entries recording “concerns and productivity issues” about Josephson

were added to this document from November 2017 until at least March 2019. In mid-February

2018, Carter received information that Josephson potentially misreported his legal consultation

revenue for Medical School tax purposes. Worried that reporting this issue would make it seem

like he was “intentionally looking for” ways “to target” Josephson, Carter sought Le and Lohr’s

advice. R. 66-29, PageID 2837. Le encouraged Carter to report the issue to Woods, likening it

to making a report to Child Protective Services.

Some evidence suggests that Le, Carter, and Lohr monitored Josephson’s work

performance before they finalized his assignment. A late January 2018 email from Boland stated

that Josephson’s work assignment was “still a work in progress” and “should be finalized in the

next few weeks.” R. 66-28, PageID 2834. Nevertheless, in an early February 2018 email sent

before they finalized Josephson’s new role, the interim co-chiefs noted that Josephson billed only

2.5 hours of patient care per week the month before.

Once finalized, Le, Carter, and Lohr met with Josephson to further refine his work duties

and to discuss his performance. In a tense meeting at the end of March 2018, they agreed to

reduce Josephson’s weekly clinic hours to twelve based on his increased telepsychiatry caseload.

They met with Josephson a few months later, in July 2018, to discuss his apparently insufficient

work performance. In a letter memorializing this meeting, Le, Carter, and Lohr noted, among

other things, Josephson’s failure to meet his outpatient clinical and telepsychiatry hours, attend

faculty meetings, and otherwise show up for work. Josephson claims that this letter was the

“only formal productivity warning [he] received throughout [his] career in academic medicine.”

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R. 64-3, PageID 1856. And although he “immediately increased [his] productivity,” Josephson

contends that his superiors “never discussed this improvement with [him] or indicated that it was

insufficient between” July 2018 and February 2019, when his contract was not renewed. Id.

Although Carter, Le, and Lohr continued to record complaints about Josephson after their July

2018 meeting, other evidence confirms they never met with him to discuss those complaints.

The Medical School generally used performance-improvement plans to address employee

concerns. Medical School employees were typically placed on an improvement plan when:

(1) their performance was “recognized as not meeting expectations and informal discussion ha[d]

not brought resolution,” or (2) “when an employee receive[d] a ‘needs improvement’ on a

written performance evaluation.” See Univ. of Louisville Human Resources, Improvement

Plans, https://louisville.edu/hr/employeerelations/improvement-plans (last accessed June 8,

2024). It seems Boland planned to speak with Josephson about “a timeline for a Performance

Improvement Plan,” R. 65-26, PageID 2031, but she never did. As Josephson explained,

“Defendants did not place [him] on a performance improvement plan or even mention one. They

did not suggest that any expressed productivity concerns would be cause for probation, let alone

termination without any subsequent discussion.” R. 64-3, PageID 1851–52.

By February 2019, Medical School officials had decided to not renew Josephson’s

contract. At Boland’s instruction, Le told Josephson they needed to meet with him to discuss his

annual review. Once at that meeting, Boland and Le told Josephson the “Department was

moving in a different direction.” R. 65-35, PageID 2055. And they let Josephson know that

Ganzel would send him a letter confirming his nonrenewal. Le testified that this news “probably

did come off as a little bit of an ambush, but it wasn’t [her] decision.” R. 68-36, PageID 3796.

About a month later, Josephson filed suit under 42 U.S.C. § 1983. He alleged that

Defendants violated his First and Fourteenth Amendment rights by, among other things,

retaliating against him for the views he expressed on gender dysphoria. Each Defendant moved

for summary judgment, arguing that both sovereign immunity and qualified immunity protected

them from suit. Josephson also moved for summary judgment against Defendants. The district

court denied all of these motions, finding material fact disputes remained.

No. 23-5293 Josephson v. Ganzel, et al. Page 10

Defendants then brought this interlocutory appeal. After that, Josephson moved to

dismiss the appeal for lack of jurisdiction.

II.

Defendants Ganzel, Le, Lohr, Carter, and Boland argue first that the district court erred

by finding that they were not entitled to sovereign immunity. Denials of sovereign immunity to

public officials are immediately appealable under the collateral-order doctrine. Ashford v. Univ.

of Mich., 89 F.4th 960, 968–69 (6th Cir. 2024) (citing In re Flint Water Cases, 960 F.3d 303, 322

(6th Cir. 2020)). We review the district court’s sovereign-immunity determination de novo.

T.M. ex rel. H.C. v. DeWine, 49 F.4th 1082, 1087 (6th Cir. 2022).

The Eleventh Amendment makes States immune from private civil actions. U.S. Const.

amend. XI; Whole Woman’s Health v. Jackson, 595 U.S. 30, 39 (2021). This immunity “also

extends to departments and agencies that are arms of the state” and “state officers acting in their

official capacity.” Morgan v. Bd. of Pro. Resp. of the Sup. Ct. of Tenn., 63 F.4th 510, 515 (6th

Cir. 2023).

Still, there are exceptions. Relevant here is the “narrow exception” the Supreme Court

first recognized in Ex parte Young, 209 U.S. 123 (1908). See Whole Woman’s Health, 595 U.S.

at 39. This exception provides that “suits against state officials seeking equitable relief for

ongoing violations of federal law are not barred by the Eleventh Amendment.” Morgan, 63

F.4th at 515 (quotation omitted). But the Ex parte Young exception applies only when a plaintiff

seeks and clearly alleges “prospective” equitable relief to stop “a continuing violation of federal

law.” Id. (quotation omitted). “Nor does the exception exist for injunctive relief based entirely

upon past acts and not continuing conduct that, if stopped would provide a remedy to the

plaintiff.” Id. (internal quotation marks omitted). Considering these principles, we “need only

conduct a straightforward inquiry into whether the complaint alleges an ongoing violation of

federal law and seeks relief properly characterized as prospective.” Verizon Md., Inc. v. Pub.

Serv. Comm’n of Md., 535 U.S. 635, 645 (2002) (internal quotation marks and brackets omitted).

Josephson has cleared this straightforward inquiry. Josephson contends Defendants

violated his First Amendment rights by retaliating against him for his arguably protected speech.

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In response to Defendants’ actions, he seeks: (1) reinstatement to his position as a faculty

member, and (2) to expunge his personnel file of any reference to the nonrenewal of his contract.

We have held that “claims for reinstatement are prospective in nature and appropriate subjects

for Ex parte Young actions.” Carten v. Kent State Univ., 282 F.3d 391, 396 (6th Cir. 2002)

(citation omitted). We have also “held that expunging disciplinary records is, as a practical

matter, prospective relief.” Ashford, 89 F.4th at 969 (citations omitted). Because Josephson

seeks equitable, prospective relief, the Eleventh Amendment does not bar his claims against

Defendants. See Diaz v. Mich. Dep’t of Corr., 703 F.3d 956, 964 (6th Cir. 2013).

III.

Defendants also argue that qualified immunity protects them from suit. “Qualified

immunity shields government officials in the performance of discretionary functions from

standing trial for civil liability unless their actions violate clearly established rights.” McDonald

v. Flake, 814 F.3d 804, 812 (6th Cir. 2016) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). At the summary-judgment stage, the plaintiff bears the burden of showing that: (1) the

defendants violated his constitutional right that was (2) clearly established. Id. (citation

omitted).

We review de novo the district court’s decision to deny qualified immunity. Sterling

Hotels, LLC v. McKay, 71 F.4th 463, 466 (6th Cir. 2023). We view the evidence in the light

most favorable to Josephson and draw all reasonable inferences in his favor. See Raimey v. City

of Niles, 77 F.4th 441, 447 (6th Cir. 2023). Our jurisdiction is limited to deciding whether the

district court correctly answered the legal questions inherent in its denial of qualified immunity.

See DiLuzio v. Village of Yorkville, 796 F.3d 604, 609 (6th Cir. 2015).

A. Did Defendants Violate Josephson’s First Amendment Rights?

Josephson argues that Defendants violated his First Amendment rights when they

retaliated against him based on his remarks at the Heritage Foundation event. To prove a First

Amendment retaliation claim, a plaintiff must show: (1) he engaged in protected speech; (2) the

defendant took an adverse action against him; and (3) there is a causal connection between the

No. 23-5293 Josephson v. Ganzel, et al. Page 12

protected speech and the adverse action. Richards v. Perttu, 96 F.4th 911, 917 (6th Cir. 2024).

We examine each element below.

1. Protected Speech

We must first decide whether Josephson, a public employee, engaged in protected speech

when he spoke as a Heritage Foundation panelist. See DeCrane v. Eckart, 12 F.4th 586, 593 (6th

Cir. 2021). The First Amendment, applicable to the States through the Fourteenth Amendment,

prohibits the government from “abridging the freedom of speech.” U.S. Const. amend. I;

Stromberg v. California, 283 U.S. 359, 368 (1931). That freedom is, of course, not unlimited.

For any violation to have occurred, Josephson must have engaged in protected speech when he

spoke at the Heritage Foundation panel. DeCrane, 12 F.4th at 593. Determining the protected

status of speech is a question of law that we review de novo. Barger v. United Bhd. of

Carpenters & Joiners of Am., 3 F.4th 254, 263 (6th Cir. 2021).

Public employers can permissibly limit the speech of their employees in certain

circumstances. That is so because when a public employee speaks, “such speech pits the

employee’s interests in speaking freely against the employer’s interests in running an efficient

workplace.” Myers v. City of Centerville, 41 F.4th 746, 760 (6th Cir. 2022). Generally, the First

Amendment protects a public employee’s speech if: (1) the speech was on a matter of public

concern, Connick v. Myers, 461 U.S. 138, 146 (1983); (2) the speech was not made pursuant to

the employee’s official duties, Garcetti v. Ceballos, 547 U.S. 410, 421 (2006); and, assuming the

employee can satisfy the first two elements, (3) the employee’s interest in speaking on a matter

of public concern outweighs the employer’s interest “in promoting the efficiency of the public

services it performs through its employees,” Pickering v. Bd. of Educ. of Twp. High Sch. Dist.

205, 391 U.S. 563, 568 (1968).

Josephson spoke on a matter of public concern when he participated in the Heritage

Foundation panel. Specifically, he spoke about the treatment of children with gender dysphoria.

“[C]ontroversial subjects” like “sexual orientation and gender identity” are “sensitive political

topics” that “undoubtedly” involve “matters of profound value and concern to the public.”

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Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31, 585 U.S. 878, 913–14 (2018)

(internal quotation marks omitted).

Josephson did not participate in the Heritage Foundation panel as part of his official

duties with the Medical School. The Heritage Foundation invited Josephson to speak off campus

and paid for his travel expenses to participate. And the moderator advised the audience that

Josephson spoke in his individual capacity and not on behalf of an organization. Although

Josephson’s Division chief duties included giving academic presentations at other universities

and before various professional groups, he always did so to “spread the good news” about the

Medical School; his panel remarks were therefore unlike his other invited presentations. His

panel remarks did not involve meeting with other university leaders or discussing the Medical

School. He was not lecturing about his work at another university, nor did he submit his work to

the Heritage Foundation for evaluation before receiving an invitation to speak. Simply put, the

evidence suggests that the impetus or motivation behind Josephson’s panel remarks was the

Heritage Foundation’s desire for Josephson to share his own opinions on gender dysphoria and

not those of the Medical School.

The Pickering balancing inquiry favors Josephson as well. Start with Josephson’s

interests. He presented his ideas and opinions on gender dysphoria, an issue of substantial public

concern. The Supreme Court has “often recognized that such speech occupies the highest rung

of the hierarchy of First Amendment values and merits special protection.” Id. at 914 (internal

quotation marks omitted). Josephson was a professor at the Medical School. His panel remarks

on gender dysphoria related to his teaching and scholarship as a child psychiatrist.

What about the Medical School’s interest in punishing Josephson for interfering with its

efficient performance of public services? To answer this question, we consider several factors,

including “whether an employee’s comments [1] meaningfully interfere[d] with the performance

of [his] duties, [2] undermine[d] a legitimate goal or mission of the employer, [3] create[d]

disharmony among co-workers, [4] impair[ed] discipline by superiors, or [5] destroy[ed] the

relationship of loyalty and trust required of confidential employees.” Rodgers v. Banks, 344 F.3d

587, 601 (6th Cir. 2003) (quotation omitted). “[A] stronger showing [of government interests]

may be necessary if the employee’s speech more substantially involve[s] matters of public

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concern.” Lane v. Franks, 573 U.S. 228, 242 (2014) (second and third alterations in original)

(quoting Connick, 461 U.S. at 152).

Limited evidence suggests Josephson’s panel remarks interfered with the Medical

School’s operation. As chief, Josephson had to, among other things, manage the Division’s

clinical activities, recruit faculty, assist in training directors, serve on boards and task forces, and

mentor faculty. The evidence shows Josephson’s remarks inhibited his ability to mentor and

lead his Division colleagues. For example, he led and eventually stormed out of a contentious

faculty meeting after some attendees voiced their concerns about Josephson’s recent remarks.

And there is no doubt that Josephson’s remarks caused disharmony between him and his

colleagues. But outside of this, the evidence does not suggest that Josephson’s panel remarks

hampered the Medical School’s effective operation.

The other factors tip the balance in Josephson’s favor. Outside of his ability to mentor

and lead Division faculty, there is nothing to suggest that Josephson’s remarks interfered with his

remaining chief duties or his duties as a psychiatry professor. No doubt, his colleagues voiced

their concerns that Josephson’s remarks would affect patient care, faculty recruitment and

retention, accreditation, and the Medical School’s reputation in general. But Defendants could

point to no evidence that their concerns were realized or likely to occur. For example, they could

not identify any actual impact Josephson’s remarks had on patient care. Nor could they identify

any person who left the Medical School or turned down an offer to join the faculty based on

Josephson’s activities. Defendants also conceded that one professor’s remarks rarely affected

the Medical School’s accreditation, and they did not provide any evidence that the Medical

School’s accreditation was, in fact, affected by Josephson’s activities. So Defendants only had

concerns, and “[t]he mere ‘fear or apprehension of disturbance is not enough to overcome the

right to freedom of expression.’” Meriwether v. Hartop, 992 F.3d 492, 511 (6th Cir. 2021)

(quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 508 (1969)).

Further still, Josephson’s remarks did not impair discipline by his superiors. While he

was chief, Woods, Boland, and Ganzel were among his superiors. Woods’s November 2017

letter asking Josephson to resign as Division chief—a letter approved by Boland and Ganzel—

demonstrates his panel remarks did not hamper his superiors’ ability to discipline him.

No. 23-5293 Josephson v. Ganzel, et al. Page 15

Following his demotion, Le, Lohr, and Carter became Josephson’s direct superiors. Despite

Josephson’s remarks, they were able to address his allegedly inadequate work performance in

July 2018. Josephson contends that the July 2018 letter was the “only formal productivity

warning” he ever received during his career and that, after this warning, his productivity

immediately improved. This too demonstrates that his panel remarks did not interfere with his

superiors’ ability to issue discipline to him.

Josephson’s remarks do not appear to have destroyed a relationship of loyalty and trust

required of confidential employees either. State-run employers generally have more discretion to

sanction an employee in a “confidential, policymaking, or public contact role” than one who

performs ministerial functions. Rankin v. McPherson, 483 U.S. 378, 390–91 (1987). This is

because employees in such roles often have responsibilities that might allow their statements to

“somehow undermine[] the mission of the public employer.” Id. Defendants, however, have not

shown that Josephson, by virtue of his position as Division chief, had the power to make policy.

When Woods asked Josephson to resign, moreover, Woods focused on the Division faculty’s

“limited confidence” in Josephson’s continued leadership. R. 58-9, PageID 1044. True, Woods

also examined how Josephson’s “increasingly public promotion of [his] approach as an expert

witness” and “the growing national recognition” of his views on gender dysphoria might affect

the Division. Id. But this does not demonstrate that Division chiefs had different loyalty or

confidentiality duties than that of an ordinary faculty member. Even if Division chiefs had such

unique duties or public contact, Josephson resigned as Division chief by December 2017 and

continued working as a regular faculty member. Greater discretion therefore does not apply to

the Medical School’s actions after that time.

Considering this, Defendants have provided insufficient evidence that Josephson’s

remarks had a significant disruptive effect on the Medical School’s operations. And any

disruptions that followed Josephson’s panel remarks were eliminated once Josephson resigned as

chief. Given that Josephson spoke on an academic matter of substantial public concern, the

Medical School’s burden in justifying his February 2019 discharge is heavy. See Connick, 461

U.S. at 152. Accordingly, “the Pickering balance strongly favors” Josephson. See Meriwether,

992 F.3d at 511.

No. 23-5293 Josephson v. Ganzel, et al. Page 16

Defendants do not meaningfully challenge that Josephson spoke on a matter of public

concern during the Heritage Foundation panel or that the Pickering balance favors him. Instead,

they contend that Josephson’s participation at the event was “pursuant to” his official duties with

the Medical School and was thus unprotected speech. See Garcetti, 547 U.S. at 421. Even if

Josephson’s participation in the Heritage Foundation panel were part of his official duties, that

would not alter our conclusion that he engaged in protected speech at that event.

In Garcetti, the Supreme Court held that “when public employees make statements

pursuant to their official duties, the employees are not speaking as citizens for First Amendment

purposes, and the Constitution does not insulate their communications from employer

discipline.” Id. Still, Garcetti left open the possibility of an exception to this rule, as the Court

declined to address if its analysis “would apply in the same manner to a case involving speech

related to scholarship or teaching.” Id. at 425.

In Meriwether, we answered the question that Garcetti left open. We held that

“professors at public universities retain First Amendment protections at least when engaged in

core academic functions, such as teaching and scholarship.” Meriwether, 992 F.3d at 505.

Defendants argue that Josephson’s Heritage Foundation presentation was made pursuant

to his official duties because he discussed his work at the Medical School and the patients he

treated there. Although he was not teaching a class, Josephson’s panel remarks were on a topic

he taught and wrote about as a child-psychiatry expert. Put differently, Josephson’s speech

stemmed from his scholarship and thus related to scholarship or teaching. As such, Josephson

engaged in protected speech because it related to core academic functions.

2. Adverse Action and Causal Connection

We next consider whether Defendants took adverse actions against Josephson because of

his protected speech. The district court concluded that genuine factual disputes remained

regarding whether each Defendant retaliated against Josephson because of his protected speech.

Specifically, it found:

Ganzel stated that Josephson’s speech . . . did not reflect the University’s culture

and ultimately approved his termination. Woods instructed Josephson to give

No. 23-5293 Josephson v. Ganzel, et al. Page 17

disclaimers when teaching on matters related to gender dysphoria. Boland

recommended Josephson’s non-renewal. Le collected complaints against

Josephson and included them in a tracking document. Carter also collected

complaints for the Josephson tracking document and requested Josephson stop

treating LGBTQ patients. Lohr referred to Josephson’s opinions about gender

dysphoria as “unscientific.”

R. 99, PageID 5764. Despite this analysis, Defendants argue that the district court made “no

effort” to demonstrate how each official took an adverse action against Josephson based on his

protected speech.

To succeed on his First Amendment retaliation claim, Josephson must prove that each

Defendant took an adverse action against him “motivated at least in part” by his protected

speech. See Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998). An adverse action in the First

Amendment retaliation context is an action that “would chill or silence a person of ordinary

firmness from future First Amendment activities.” Benison v. Ross, 765 F.3d 649, 659 (6th Cir.

2014) (quotation omitted). “It is well established that government actions, which standing alone

do not violate the Constitution, may nonetheless be constitutional torts if motivated in substantial

part by a desire to punish an individual for exercise of a constitutional right.” Thaddeus-X v.

Blatter, 175 F.3d 378, 386 (6th Cir. 1999) (en banc). Any adverse actions, other than “those that

create only de minimis negative consequences,” can “offend the Constitution.” Kubala v. Smith,

984 F.3d 1132, 1139 (6th Cir. 2021). The adverse nature of a particular action “will depend on

context.” Bell v. Johnson, 308 F.3d 594, 602–03 (6th Cir. 2002) (quoting Thaddeus-X, 175 F.3d

at 388).

The adverse-action inquiry is a question of fact. Wurzelbacher v. Jones-Kelley, 675 F.3d

580, 583–84 (6th Cir. 2012). As a result, retaliation claims based on all but genuinely

“inconsequential” official actions “should go to the jury.” Bell, 308 F.3d at 603.

Josephson has asserted two potential adverse acts: (1) a “hostile, humiliating work

environment” designed to silence his speech on gender dysphoria and threaten his job with the

Medical School; and (2) the Medical School’s decision not to renew his contract. Not only must

Josephson provide evidence that these actions would have chilled an ordinary person’s speech,

No. 23-5293 Josephson v. Ganzel, et al. Page 18

but he must also show that all Defendants acted on his or her own to violate Josephson’s First

Amendment rights. Heyne v. Metro. Nashville Pub. Schs., 655 F.3d 556, 564 (6th Cir. 2011).

Starting with the decision to not renew Josephson’s contract, this conduct is a traditional

example of an adverse action. See Fritz v. Charter Township of Comstock, 592 F.3d 718, 724

(6th Cir. 2010). Josephson has presented evidence that Ganzel, Boland, and Le made the

nonrenewal decision.

But what about Woods, Carter, and Lohr? A reasonable jury could conclude that they

also took adverse actions against Josephson. Woods told Josephson that he had a “duty” to tell

students when he was “knowingly espousing approaches and views that differ[ed] from the

official curricula.” R. 58-9, PageID 1045. Essentially, Woods tried to impact what Josephson

said to his students. Carter and Lohr began tracking Josephson’s behavior after his Heritage

Foundation presentation. A February 2018 email indicates that they monitored Josephson’s

performance before finalizing his work assignment following his resignation as chief. As early

as March 2018, there is evidence that Carter and Lohr were planning for Josephson to leave the

Division. For example, Lohr noted in an email that Josephson might be “leaving soon.” R. 65-

44, PageID 2140. And an email from Carter to Le, Lohr, Woods, and Boland suggested that

their tracking was the “strong documentation” they needed “to avoid [Josephson’s]

reappointment.” R. 65-36, PageID 2057. To this, Boland added that “the Dean is supportive of

what we and you are doing.” Id. at 2056. The monitoring led to Le, Carter, and Lohr giving

Josephson his first ever “formal productivity warning” in July 2018. R. 64-3, PageID 1856.

Although Le was named Division chair in October 2018, Carter and Lohr continued to help her

monitor Josephson that fall and winter. By February 2019, the decision had been made to not

renew Josephson’s contract.

Our analysis in Fritz is instructive. There, we held that “[a] person of ordinary firmness

would be deterred from engaging in protected conduct, if as a result, a public official encouraged

[his] employer to terminate the person’s contract or to have [him] change [his] behavior.” Fritz,

592 F.3d at 726. The public official’s ability to terminate the employment is not dispositive. Id.

The “power to substantially affect” a public employee’s livelihood could be enough to establish

an adverse action. Id. Similarly, actions “designed to threaten” a person’s “economic

No. 23-5293 Josephson v. Ganzel, et al. Page 19

livelihood” are likely to deter a person of ordinary firmness from engaging in protected speech.

Id. at 728. Simply put, “a credible threat to the nature and existence of one’s ongoing

employment is of a similar character to the other recognized forms of adverse action—

termination, refusal to hire, etc.—even if perpetrated by a third party who is not the employer.”

Id.

A reasonable jury could also find that each Defendant was motivated to act, at least in

part, by Josephson’s panel remarks. Each Defendant knew about those remarks by November

2017. Within weeks of Josephson’s remarks, Le, Lohr, and Carter began tracking his behavior.

And Woods, with Ganzel and Boland’s support, asked him to resign, in part because of “the

growing national recognition” of Josephson’s views on gender dysphoria. R. 58-9, PageID 1044.

True, Defendants adduced evidence from which a jury could find they demoted and

eventually terminated him for reasons unrelated to his speech. Consider Defendants’ evidence of

Josephson’s deficient work performance. Although poor productivity could be a permissible

basis to terminate an employee, other evidence indicates that Defendants pursued Josephson’s

termination because of his Heritage Foundation panel remarks. For example, during discussions

in March 2018 about losing funding if faculty “retire or resign,” Le predicted that the Division

would “likely be losing” Josephson “this year.” R. 66-7, PageID 2255. As the interim co-chiefs

crafted their July 2018 letter, Carter noted in an email received by Le, Lohr, Woods, and Boland

that they needed “strong documentation if” they wanted “to avoid [Josephson’s] reappointment

next summer.” R. 65-36, PageID 2057. And Defendants did not place Josephson on a

performance-improvement plan, even though Boland planned to do so, and such plans were

“generally part of the way that the university deal[t] with employee concerns.” There is also

evidence to suggest that, for professors with as much experience as Josephson, contract

nonrenewals were rare. See Paterek v. Village of Armada, 801 F.3d 630, 647 (6th Cir. 2015)

(“Circumstantial evidence, like the timing of events or the disparate treatment of similar

individuals, may support [the] inference [of a retaliatory motive].” (alterations in original)).

Considering this evidence, a reasonable jury could find that each Defendant retaliated

against Josephson because he engaged in speech protected by the First Amendment.

No. 23-5293 Josephson v. Ganzel, et al. Page 20

See Richards, 96 F.4th at 917. We therefore proceed to the next step in our qualified-immunity

analysis. See McDonald, 814 F.3d at 812.

B. Were Josephson’s Rights Clearly Established?

Defendants argue that they are entitled to qualified immunity for two main reasons. First,

they argue it was not clearly established that each Defendant’s conduct, in isolation, was an

adverse action sufficient to show retaliation against a professor because of his protected speech.

Second, they argue it was not clearly established that the First Amendment protected statements

like those Josephson made in October 2017.

Resolving Defendants’ first argument is not complicated. Defendants argue that

Josephson’s rights were not clearly established because no court had specifically addressed

whether isolated actions against a professor because of his speech were adverse actions. In other

words, Defendants believe they can act as they choose until there is a case on all fours. We

disagree. As we have explained, “we do not require an earlier decision that is ‘directly on

point.’” McElhaney v. Williams, 81 F.4th 550, 556–57 (6th Cir. 2023) (quoting Mullenix v.

Luna, 577 U.S. 7, 12 (2015)). At the same time, “‘existing precedent’ must place the contours of

the right ‘beyond debate.’” Id. (quoting Mullenix, 577 U.S. at 12).

During the relevant period, it was beyond debate that “the First Amendment bar[red]

retaliation for protected speech.” Crawford-El v. Britton, 523 U.S. 574, 592 (1998). By the fall

of 2017, both the Supreme Court and this court had held that, absent a disruption of government

operations, a public university may not retaliate against a professor for speaking on issues of

social or political concern. Pickering, 391 U.S. at 574; Hardy v. Jefferson Cmty. Coll., 260 F.3d

671, 682 (6th Cir. 2001). And we had established that a retaliatory “adverse action” is one that

“would deter a person of ordinary firmness from continuing to engage in that conduct.”

Thaddeus-X, 175 F.3d at 394. We had further established that campaigns of harassment, when

considered as a whole, may amount to adverse actions. See Fritz, 592 F.3d at 724; Thaddeus-X,

175 F.3d at 398; Bloch, 156 F.3d at 678. It was also established that legitimate threats “to the

nature and existence of one’s ongoing employment is of a similar character to the other

recognized forms of adverse action—termination, refusal to hire, etc.—even if perpetrated by a

No. 23-5293 Josephson v. Ganzel, et al. Page 21

third party who is not the employer.” Fritz, 592 F.3d at 728. We have, moreover, “repeatedly

held that ‘[a]n act taken in retaliation for the exercise of a constitutionally protected right is

actionable under § 1983 even if the act, when taken for a different reason, would have been

proper.’” Wenk v. O’Reilly, 783 F.3d 585, 595 (6th Cir. 2015) (alteration in original) (emphasis

omitted) (quoting Bloch, 156 F.3d at 681–82). Thus, a reasonable university official during the

relevant period would have understood that he could not lawfully terminate or threaten the

economic livelihood of a professor because of his protected speech.

Defendants’ second argument does not fare much better. That is because the protected

nature of Josephson’s speech was also clearly established. “To be clearly established, a legal

principle must have a sufficiently clear foundation in then-existing precedent.” District of

Columbia v. Wesby, 583 U.S. 48, 63 (2018). The principle “must be settled law.” Id. (internal

quotation marks omitted). Settled law “means it is dictated by controlling authority or a robust

consensus of cases of persuasive authority.” Id. (internal quotation marks omitted).

In the First Amendment retaliation context, “we ask whether any reasonable official

would have understood that [Josephson’s] speech was protected, and thus that the official could

not retaliate against him.” McElhaney, 81 F.4th at 557. The answer: It is, and has been, clearly

established that public employees have a right to speak “on a matter of public concern regarding

issues outside of one’s day-to-day job responsibilities, absent a showing that Pickering balancing

favors the government’s particular interest in promoting efficiency or public safety.” Ashford,

89 F.4th at 975 (first citing Buddenberg v. Weisdack, 939 F.3d 732, 739–40 (6th Cir. 2019); then

citing Westmoreland v. Sutherland, 662 F.3d 714, 718–19 (6th Cir. 2011)).

It can no doubt be difficult to determine if speech is public or private. See DeCrane,

12 F.4th at 599 (“[W]e have recognized that it can be ‘challenging’ to distinguish public from

private speech.” (citation omitted)). Even so, by 2012, “[w]e had held that employees speak as

private citizens (not public employees) at least when they speak on their own initiative to those

outside their chains of command and when their speech was not part of their official or de facto

duties.” Id. at 599–600 (citing Handy-Clay v. City of Memphis, 695 F.3d 531, 542–43 (6th Cir.

2012)). “Would this ‘firmly established’ rule have ‘immediately’ alerted a reasonable person

No. 23-5293 Josephson v. Ganzel, et al. Page 22

that” Josephson spoke in his private capacity? See id. at 600 (quoting Wesby, 583 U.S. at 64).

We think so.

Defendants also argue that Josephson’s Heritage Foundation panel remarks were a part of

his official duties. Even if that were the case, it was clearly established that such speech is

protected. See Meriwether, 992 F.3d at 505; Hardy, 260 F.3d at 680; Bonnell v. Lorenzo, 241

F.3d 800, 823 (6th Cir. 2001) (“[A] professor’s rights to academic freedom and freedom of

expression are paramount in the academic setting.”).

* * *

Viewing the evidence in the light most favorable to Josephson, as we must, Josephson

has shown that he engaged in protected speech when he spoke as part of the Heritage Foundation

panel. Defendants should have known that Josephson’s speech was protected and that retaliating

against Josephson for his speech would violate his First Amendment rights. Therefore,

Defendants are not entitled to qualified immunity.

IV.

For these reasons, we AFFIRM the district court’s denial of Defendants’ motions for

summary judgment. We DENY as moot Josephson’s motion to dismiss for lack of jurisdiction.