Patrick Devlin v. Richard Kalm

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 13a0760n.06

Nos. 12-2530, 12-2588

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PATRICK J. DEVLIN )

FILED

)

Aug 15, 2013

Plaintiff-Appellee, ) DEBORAH S. HUNT, Clerk

)

v. ) ON APPEAL FROM THE UNITED

) STATES DISTRICT COURT FOR

RICHARD S. KALM; FREDERICK F. ) THE EASTERN DISTRICT OF

CLELAND; ERIC T. BUSH; DALE E. ) MICHIGAN

BEACHNAU; MICHEAL DAVIS; )

DOMINICK P. ALAGNA, )

)

Defendants-Appellants. )

)

and )

)

JANET M. MCCLELLAND, )

)

Defendant. )

Before: GIBBONS, SUTTON, and KETHLEDGE, Circuit Judges.

JULIA SMITH GIBBONS, Circuit Judge. The Michigan Gaming Control Board

(“Board”) terminated Patrick Devlin after he filed “whistleblower” lawsuits and made comments in

the press accusing state officials of lax enforcement of liquor licensing laws against tribal casinos.

He filed suit pursuant to 42 U.S.C. § 1983 against officers from the Board, the Michigan Department

of the Treasury, and the Michigan Civil Service Commission, alleging violations of the First and

Fourteenth Amendments. In this appeal—the third in this case—the defendants challenge the district

court’s denial of their motion to dismiss certain claims on qualified immunity grounds. For the

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reasons that follow, we affirm the district court’s judgment with respect to Devlin’s First

Amendment retaliation claim, reverse its judgment with respect to Devlin’s procedural due process

claim, and remand for further proceedings.

I.

The facts relevant to this appeal are set forth in Devlin’s first amended complaint, which we

summarize below. Because this appeal arises from the denial of a motion to dismiss, we accept the

complaint’s well-pled facts as true. Erie Cnty., Ohio v. Morton Salt, Inc., 702 F.3d 860, 867 (6th

Cir. 2012).

Devlin joined the Board in September 2001 as the sole compliance officer for the Indian

Gaming Section, which monitors “the [nineteen] Michigan tribal casinos’ compliance with the

Tribal-State gambling Compacts, applicable federal law, and applicable tribal ordinances.” During

his tenure, Devlin grew concerned about the Board’s reluctance to address “violations of law” by

tribal casinos. He alleges that he cited casinos “for not posting card rules in each room and for

continuously conducting unauthorized promotional lotteries.” He also asserts that his supervisors

prevented him from investigating other violations of the law by tribal casinos, including failure to

comply with liquor licensing laws, and that the tribes had complained to the Governor’s Deputy

Legal Advisor for Indian Affairs and Eric Bush, Devlin’s supervisor at the Board, about Devlin’s

investigations. Devlin outlined these issues in a meeting with the recently appointed executive

director of the Board, Richard Kalm, on July 30, 2007. After the meeting, Devlin alleges that “Kalm

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sent [him] a [m]emo referring to pending grievance matters and threatening to find [him]

insubordinate, applying sanctions up to and including termination from employment.”

In “late 2007,” Kalm posted notice that the Board’s Licensing Division was looking for a new

Deputy Director. Devlin applied for the job, but the Board chose Kalm’s friend Fred Cleland for the

position instead. Devlin filed a grievance in response to being passed over for the position on

February 14, 2008. He filed another grievance on May 29, 2008, after Kalm and Cleland informed

him that they would be transferring him to the Board’s licensing division, which was in the process

of being moved from Lansing to Detroit.

On June 3, 2008, not long after he filed the second grievance, Devlin filed two

“whistleblower” lawsuits in Ingham County Circuit Court. The first was a mandamus action against

Michael Cox, Michigan’s Attorney General at the time. This lawsuit asked the court to order Cox

to “enforce the liquor laws against tribal casino management . . . either by bringing civil injunctive

lawsuits or by bringing felony prosecutions.” The second lawsuit was brought against the Board,

the Michigan Civil Service Commission, and the Michigan Department of the Treasury. It alleged

that officials in these departments did not comply with Michigan’s merit selection system for civil

servants when they selected Cleland for the Deputy Director position. Both suits were eventually

dismissed by the Michigan courts, but the court did not reach the substance of Devlin’s claims in

either case. Devlin v. Civil Service Comm’n, No. 287826, 2010 WL 480996, at *3–4 (Mich. Ct. App.

Feb. 11, 2010) (affirming lower court’s determination that it lacked subject-matter jurisdiction over

Devlin’s claim for failure to exhaust administrative remedies); Devlin v. Attorney Gen., No. 287827,

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2010 WL 199605, at *2–3 (Mich. Ct. App. Jan. 21, 2010) (denying mandamus for failure to show

a particularized right to enforcement of gaming laws against tribal casinos).

Devlin admits that he made comments about his state-court lawsuits to the print media,

including the Detroit Free Press, in stories that were published on June 4 and 5. On June 4, the Free

Press ran a story about the lawsuits that reported Devlin’s comments:

“Bars, restaurants and even the Detroit commercial casinos incur expenses for

applying for and obtaining a liquor license and supplying liquor liability insurance

or a bond,” Devlin said in a statement. “They are also subject to frequent law

enforcement checks and stings, and must pay fines and face liquor suspensions or

revocations and the costs associated therewith if they violate the law. Tribal casinos

incur none of these costs or sanctions.”

Devlin called Cox a “deadbeat” when it comes to enforcement actions against the

tribes.

“While the attorney general has ‘zero tolerance’ for all kinds of conduct, he

apparently has ‘unlimited tolerance’ for tribal casino violations: he just gives them

a free pass,” Devlin said.

Devlin said one tribal casino had not been audited by the state for nine years, and

Cox did little to force it to turn over operating records to the state for inspection.

Jennifer Dixon, Official Sues State AG Over Tribal Casino Liquor Sales, Detroit Free Press, June

4, 2008.

The Board suspended Devlin’s employment on June 6, the day after the defendants in the two

“whistleblower” suits were served and two days after the Free Press article ran. Bush, Devlin’s

supervisor, requested an investigation of Devlin and expressed concerns about confidential

information contained in the story and the caustic remarks about the Attorney General’s enforcement

of the law. He wrote that Devlin had been disciplined for inappropriate behavior on previous

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occasions and that these continued violations of Board policy were interfering with the Board’s

work.

Dale Beachnau, a human resources manager for the Department of Treasury and the Board,

sent a letter to Devlin on June 19, requesting his appearance at an investigatory conference on June

25 “to respond to questions related to your involvement and conduct in the access and release of

confidential information, failure to follow the chain of command, insubordinate behavior, [and]

disrespectful conduct.” The conference attendees were Devlin and his representative; Micheal Davis

of the Treasury Department; and Dominick Alagna of the Board. Devlin acknowledges that the

meeting took place but asserts he was asked “very few questions” by Alagna and Davis.

On July 11, Davis sent Devlin a “Notice of Disciplinary Conference.” This conference took

place on July 24. Before the conference, Devlin sent a detailed letter setting forth his views about

the disciplinary proceedings to all of the defendants in this action. In the letter, he acknowledged

that the content of the newspaper articles and the lawsuits was the basis for the Board’s disciplinary

actions and argued that the Board was acting unlawfully by terminating him in response to his

“whistleblower” lawsuits and comments to the press.

At the July 24 conference, Davis terminated Devlin’s employment and gave Devlin a letter

summarizing the reasons for that decision, along with a copy of Bush’s memorandum requesting an

investigation. When Devlin asked why he was being terminated, Davis told him it was because he

had told the press Cox was “a deadbeat when it came to enforcement of Indian related matters” and

had disclosed “confidential information” about law enforcement practices against the Indian casinos.

On January 31, 2008, Devlin had signed an “annual affirmation and disclosure statement” in which

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he promised he would “not disseminate or otherwise disclose any material or information in the

possession of the [Board] that is confidential under the [Michigan Gaming Control and Revenue Act]

or determined to be confidential by the [Board]” without prior authorization. Devlin denies that his

disclosures violated any confidentiality agreement.

II.

Devlin filed his federal court complaint on August 8, 2008, a few weeks after his formal

termination from the Board. The complaint named Kalm, Cleland, Bush, Beachnau, Davis, and

Alagna as defendants. It also named Janet McClelland, the State Personnel Director for the

Michigan Civil Service Commission, as a defendant. Devlin alleges that McClelland “had the final

appeal on personnel termination decisions.” On September 8, all of the defendants, with the

exception of McClelland, moved to dismiss the complaint for lack of jurisdiction on the basis of the

abstention doctrine of Younger v. Harris, 401 U.S. 37 (1971). Three days later, McClelland filed

her own motion to dismiss which argued that the complaint failed to make any substantive

allegations against her and, in the alternative, joined the Younger abstention argument made by the

other defendants. Neither motion raised the issue of qualified immunity. The district court granted

both motions on March 18, 2009 on the basis of Younger abstention. Devlin appealed, and we

vacated the district court’s judgment and remanded for further proceedings. Devlin v. Kalm, 594

F.3d 893 (6th Cir. 2010) (Devlin I).

On remand, the defendants renewed their motion to dismiss the complaint, with McClelland

again filing a separate motion. The motion joined by all of the defendants except McClelland argued

that the complaint should be dismissed on the basis of Eleventh Amendment immunity; qualified

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immunity; standing; inability to meet the requirements for injunctive relief; failure to exhaust

administrative remedies; abstention under Burford v. Sun Oil Co., 319 U.S. 315 (1943); and

abstention under Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976).

McClelland repeated the argument she made in her initial motion to dismiss about Devlin’s failure

to state a claim against her and otherwise joined in the arguments made by her co-defendants. After

responding to the motions, Devlin filed an amended complaint. The defendants moved to dismiss

the amended complaint, arguing that with the exception of some alterations in the factual allegations

against McClelland, there was no material difference between the amended complaint and the

original complaint. The district court granted the motions to dismiss on the basis of Burford and

Colorado River abstention. Devlin appealed again, and we again reversed. Devlin v. Kalm, 493 F.

App’x 678 (6th Cir. 2012) (Devlin II).

After the second remand, the defendants filed another round of motions to dismiss. These

motions sought relief for the reasons given in the second set of motions to dismiss with the exception

of the abstention theories. The district court denied both motions “without prejudice” and ordered

the parties to begin discovery without considering the merits of the defendants’ arguments. The

defendants filed a notice of appeal to challenge the district court’s denial of qualified immunity on

the same day the district court entered its order.

III.

We review a district court’s order denying a motion to dismiss based on qualified immunity

de novo. Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 680 (6th Cir. 2011). At this stage of

the case, we must “construe the complaint in the light most favorable to the plaintiff, accept its

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allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v.

Treesh, 487 F.3d 471, 476 (6th Cir. 2007). The plaintiff must “plead[] factual content that allows

the court to draw the reasonable inference that the defendant[s are] liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). If Devlin cannot “nudge[] [his] claims across

the line from conceivable to plausible, [his] complaint must be dismissed.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007).

Devlin’s complaint mentions a number of documents that are critical to a proper

understanding of his claims. The defendants attached many of these documents to their motions to

dismiss in the district court, and rely on these documents on appeal. Devlin asserts that such reliance

is improper, but he is incorrect. “When a court is presented with a Rule 12(b)(6) motion, it may

consider . . . exhibits attached to defendant’s motion to dismiss so long as they are referred to in the

[c]omplaint and are central to the claims contained therein.” Bassett v. Nat’l Collegiate Athletic

Ass’n, 528 F.3d 426, 430 (6th Cir. 2008); accord Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir.

2001). Devlin’s complaint refers to the Free Press story, Bush’s memorandum requesting an

investigation of Devlin, Beachnau’s letter requesting an investigative conference, Davis’s letter

regarding the disciplinary conference where he was terminated, Devlin’s seven-page letter to the

defendants responding to the charges against him, and Davis’s letter formally notifying Devlin of

his dismissal. We will therefore take these documents into account when evaluating Devlin’s

complaint.

IV.

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The defendants argue that the district court improperly denied their motions to dismiss on

qualified immunity grounds. The district court’s refusal to address the merits of this defense below

does not preclude us from considering it. On prior occasions, we have addressed qualified immunity

in the first instance after the district court declined to consider the defense on the grounds that further

discovery was necessary. See Summers v. Leis, 368 F.3d 881, 886–88 (6th Cir. 2004); Skousen v.

Brighton High Sch., 305 F.3d 520, 527–30 (6th Cir. 2002). Because the defendants’ appeal

presumes the truth of the plaintiffs’ allegations and the parties have fully briefed the qualified

immunity issues, we will take up the merits of the defendants’ entitlement to qualified immunity

In order to overcome the defendants’ assertion of qualified immunity, Devlin must show that

the defendants (1) violated his constitutional rights and (2) that those rights were clearly established

at the time the incidents described in the complaint took place. Saucier v. Katz, 533 U.S. 194, 201

(2001). We may decide that the defendants are entitled to qualified immunity by answering either

one of these questions in the negative. See Pearson v. Callahan, 555 U.S. 223, 236 (2009). “The

ultimate burden of proof is on the plaintiff to show that the defendant[s are] not entitled to qualified

immunity.” Gardenhire v. Schubert, 205 F.3d 303, 311 (6th Cir. 2000). “Clearly established” rights

must be defined at an “appropriate level of generality” to avoid “collapsing the two qualified-

immunity inquiries into one” without being so narrow that no violation can ever be found. Hagans

v. Franklin Cnty. Sheriff’s Office, 695 F.3d 505, 508–509 (6th Cir. 2012). The test “afford[s] . . .

‘ample protection to all but the plainly incompetent or those who knowingly violate the law.’”

Guercio v. Brody, 911 F.2d 1179, 1185 (6th Cir. 1990) (quoting Malley v. Briggs, 475 U.S. 335, 341

(1986)).

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A.

Devlin asserts that the defendants violated the First Amendment by terminating his

employment after he filed the “whistleblower” lawsuits and commented to the media about the

failure of the Board and the Attorney General to enforce liquor licensing law against tribal casinos.

In the context of public employment, “a state is afforded greater leeway to control speech that

threatens to undermine the state’s ability to perform its legitimate functions.” Rodgers v. Banks, 344

F.3d 587, 596 (6th Cir. 2003). There are four parts of a successful claim that “a public employer has

violated the First Amendment by firing a public employee for engaging in speech.” Id. First, the

plaintiff’s speech is only entitled to protection if it “addressed a matter of public concern.” Id.

(citing Connick v. Myers, 461 U.S. 138, 143 (1983)). Second, the plaintiff must show that the speech

was made “outside the duties of employment.” Garcetti v. Ceballos, 547 U.S. 410, 424 (2006).

Third, “the court must balance the interests of the public employee, ‘as a citizen, in commenting

upon matters of public concern and the interest of the State, as an employer, in promoting the

efficiency of the public services it performs through its employees.’” Rodgers, 344 F.3d at 596

(quoting Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)). Fourth, the plaintiff must show this

his “speech was a substantial or motivating factor” in the employer’s decision to terminate him. Id.

The defendants do not dispute that Devlin’s comments were “a substantial or motivating

factor” in his termination or that his comments were made outside his duties as an employee of the

Board. They argue on appeal that (1) Devlin’s comments were not directed to matters of public

concern and (2) to the extent they were, Devlin’s termination was still justified under Pickering’s

balancing test.

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1.

Speech touches an area of public concern when it “‘involves issues about which information

is needed or appropriate to enable the members of society to make informed decisions about the

operation of their government.’” Rodgers, 344 F.3d at 596 (quoting Brandenburg v. Hous. Auth. of

Irvine, 253 F.3d 891, 898 (6th Cir. 2001)) (internal quotation marks omitted); see also City of San

Diego v. Roe, 543 U.S. 77, 83–84 (2004) (per curiam) (“[P]ublic concern is something that is a

subject of legitimate news interest; that is, a subject of general interest and of value and concern to

the public at the time of publication.”). This test examines the content of speech, rather than its

motivations. Farhat v. Jopke, 370 F.3d 580, 591 (6th Cir. 2004). The speech in question does not

have to be entirely directed to a question of public concern in order to merit protection “as long as

some portion of the speech does so.” Id.

The defendants focus on Devlin’s reference to the Attorney General as a “deadbeat” and his

disclosure of confidential information about casino licensing and audit practice to show that his

speech did not address a “public concern.” This argument is problematic for two reasons. First,

subdividing Devlin’s comments and attacking them without reference to their overall context is not

the proper way to analyze whether those statements address matters of public concern. We must

review the “content, form, and context of a given statement, as revealed by the whole record,”

Connick, 461 U.S. at 147–48, and even speech that partially touches on matters of public concern

can form the basis of a retaliation claim, Farhat, 370 F.3d at 589. Second, Devlin’s speech does not

cease to be a matter of “public concern” because he used mildly abrasive language or violated a

confidentiality agreement. Placing undue weight on such considerations may lose “the essence of

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the inquiry,” which is to determine “the communicative purpose of the speaker.” Dambrot v. Cent.

Mich. Univ., 55 F.3d 1177, 1188 (6th Cir. 1995).

Read in full, Devlin’s comments to the Free Press constitute legitimate criticism of perceived

law enforcement shortcomings. “The public has a vital interest in the integrity of those

commissioned to enforce the law.” Brockell v. Norton, 732 F.2d 664, 668 (8th Cir. 1984); see also

Connick, 461 U.S. at 149 (recognizing that it is “essential that public employees be able to speak out

freely” about issues of integrity in government). We have held on numerous occasions that

allegations of impropriety by law enforcement officials satisfy the public concern test. See, e.g., See

v. City of Elyria, 502 F.3d 484, 487 (6th Cir. 2007) (finding plaintiff engaged in protected speech

when he “contacted the FBI to report alleged illegal or immoral activity within the police

department”); Marohnic v. Walker, 800 F.2d 613, 616 (6th Cir. 1986) (“Public interest is near its

zenith when ensuring that public organizations are being operated in accordance with the law.”).

These cases demonstrate that Devlin’s comments about the failure of the Board and the Attorney

General to enforce the law evenhandedly against tribal casinos address an issue of “public concern”

under clearly established federal law.

2.

Because Devlin’s comments were directed to an area of “public concern,” we must

“balance . . . the interests of the [employee], as a citizen, in commenting upon matters of public

concern and the interest of the State, as an employer, in promoting the efficiency of the public

services it performs through its employees.” Pickering, 391 U.S. at 568. Under Pickering, the court

“consider[s] whether an employee’s comments meaningfully interfere with the performance of [his]

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duties, undermine a legitimate goal or mission of the employer, create disharmony among co-

workers, impair discipline by superiors, or destroy the relationship of loyalty and trust required of

confidential employees.” Williams v. Kentucky, 24 F.3d 1526, 1536 (6th Cir. 1994). “In performing

the balancing, the statement[s] will not be considered in a vacuum; the manner, time, and place of

the employee’s expression are relevant, as is the context in which the dispute arose.” Rankin v.

McPherson, 483 U.S. 378, 388 (1987).

To answer this question in the qualified immunity context, we begin by asking whether the

complaint alleges a constitutional violation. The defendants do not dispute that “‘[s]tatements

exposing possible corruption in a [government agency] are exactly the type of statements that

demand strong First Amendment protection.” City of Elyria, 502 F.3d at 493 (collecting other Sixth

Circuit cases expressing this view). All whistleblowers create some disruption and “it would be

absurd to hold that the First Amendment generally authorizes corrupt officials to punish subordinates

who blow the whistle simply because the speech somewhat disrupted the office.” Porter v. Califano,

592 F.2d 770, 773–74 (5th Cir. 1979); see also Rivero v. City & Cnty. of San Francisco, 316 F.3d

857, 866 (9th Cir. 2002) (noting that a state’s interest in preventing workplace disruption “does not

weigh as heavily against whistleblowing speech as against other speech on matters of public

concern”); Lytle v. City of Haysville, Kansas, 138 F.3d 857, 865 (10th Cir. 1998). Moreover,

whistleblowing often brings to light troubling practices that might not otherwise be exposed to public

view and could actually serve “to aid the government’s interest in efficiency.” Akins v. Fulton Cnty.,

Georgia, 420 F.3d 1293, 1304 (11th Cir. 2005). Taking Devlin’s complaint at face value, his

interests in speaking appear to be quite strong under Pickering.

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In response, the defendants must demonstrate that the “potential disruptiveness” of Devlin’s

speech “was enough to outweigh whatever First Amendment value it might have had” in order to

overcome his right to engage in whistleblowing speech. Waters v. Churchill, 511 U.S. 661, 681

(1994); see also id. at 674 (“In many such situations the government may have to make a substantial

showing that the speech is, in fact, likely to be disruptive before it may be punished.”); Rankin, 483

U.S. at 389 (agreeing that plaintiff’s employment was unlawfully terminated, in part, because there

was “no evidence that [a statement plaintiff made] interfered with the efficient functioning of the

office”). This is a context-specific determination. Courts examine “whether the statement impairs

discipline by superiors or harmony among co-workers, has a detrimental impact on close working

relationships for which personal loyalty and confidence are necessary, or impedes the performance

of the speaker’s duties or interferes with the regular operation of the enterprise.” Rankin, 483 U.S.

at 388. On prior occasions, we have denied summary judgment to public employers for failure to

produce evidence of potential disruption.1 In addition, the government must make a “ particularly

strong showing that the employee’s speech interfered with workplace functioning” if the speech

1

Rodgers, 344 F.3d at 601 (“Defendant bears the burden of demonstrating that legitimate

grounds existed justifying the termination.”); Miller v. City of Canton, 319 F. App’x 411, 418 (6th

Cir. 2009) (“[T]here is no evidence that the plaintiff’s speech actually disrupted working

relationships or affected the Department’s proper functioning.”); City of Elyria, 502 F.3d at 493

(“Other than [the defendant’s] own statement to another officer . . . there is no evidence that

[plaintiff’s] complaints to the FBI actually impeded the police department’s general performance and

operation or affected loyalty . . . .”); Solomon v. Royal Oak Twp., 842 F.2d 862, 866 (6th Cir. 1988)

(holding that termination decision did not pass the Pickering balancing test because “[d]efendants

did not submit substantial evidence that [the plaintiff’s] statements caused conflict or disruption, or

that they impeded the department’s normal operation”).

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“‘substantially involved matters of public concern,’” as Devlin’s speech did. Leary v. Daeschner,

228 F.3d 729, 737–38 (6th Cir. 2000) (citing Connick, 461 U.S. at 150–52).

The defendants have failed to show that their interests in the efficient operation of

government outweighs Devlin’s First Amendment rights. In their brief, the defendants make highly

generalized and unsupported claims about the impact of Devlin’s statements. They assert that Devlin

interfered with the Board’s ability to work with the Attorney General, disobeyed orders from his

superiors, and violated the terms of his confidentiality agreement. In Pickering, the Supreme Court

recognized that when a public employee’s job requires significant confidentiality or “personal and

intimate relationships” between superiors and subordinates, the employer may have far greater

leeway to dismiss an employee even for completely truthful public statements. Pickering, 391 U.S.

at 570 n.3. But this court and the Supreme Court have demanded that employers put on evidence

that an employee’s comments actually compromised a significant need for confidentiality or

threatened to disrupt critical working relationships. See Rankin, 483 U.S. at 389; City of Elyria,

502 F.3d at 493 (rejecting claims of qualified immunity because defendants failed to produce

evidence of disruption at the summary judgment stage). The amended complaint and documents

mentioned therein do not provide enough information about the dynamics of the Board’s work or

the impact of Devlin’s statements to validate the defendants’ generalized concerns. Accordingly,

we find that the complaint adequately alleges a violation of Devlin’s constitutional rights.

We next consider whether Devlin’s complaint pled a violation of “clearly established” law.

Pickering requires a “context-intensive, case-by-case balancing analysis” from which it is difficult

to draw clearly established principles of law. Moran v. Washington, 147 F.3d 839, 847 (9th Cir.

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1998) (collecting cases and noting “the difficulty of divining clearly established law from multifactor

balancing tests”). Nonetheless, while officers will often be entitled to qualified immunity under

Pickering, this will only be evident after an opportunity for discovery so that the court can know

“what is being balanced against what.” Evans-Marshall v. Bd. of Educ., 428 F.3d 223, 235 (6th Cir.

2005) (Sutton, J., concurring). “Absent any factual development beyond the allegations in a

complaint, a court cannot fairly tell whether a case is ‘obvious’ or ‘squarely govern[ed]’ by

precedent, which prevents us from determining whether the facts of this case parallel a prior decision

or not.” Id. Defendants in this court are frequently denied summary judgment because of a failure

to produce evidence that would permit the court to strike the Pickering balance in their favor. See

supra note 1. This suggests that at the motion-to-dismiss stage—where facts outside the complaint

cannot be considered and the plaintiff’s allegations must be accepted as true—it will rarely be

possible to determine whether a defendant’s actions were clearly unlawful.

This is not to suggest that it will never be possible to recognize qualified immunity on a

Pickering claim at the pleadings stage. We did so in Guercio v. Brody, 911 F.2d 1179 (6th Cir.

1990). The plaintiff in Guercio, a judicial secretary, sent copies of old newspaper articles to various

federal authorities tasked with investigating judicial nominees that accused a new appointee to the

bankruptcy court of representing organized crime figures while in private practice. 911 F.2d at 1187.

The defendants, a bankruptcy judge and a chief district judge, acceded to the appointee’s demand

that the secretary be terminated. Id. We found that the defendants were entitled to qualified

immunity. Id. at 1190. In doing so, we relied upon highly detailed allegations in the plaintiff’s

complaint about the contents of her disclosures and the environment in which she worked, as well

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as the court’s awareness of the institutional dynamics of the bankruptcy court and the district court

at the time the events in the case took place. Id. at 1185–88. Although Guercio shows that it is

theoretically possible to recognize qualified immunity on the basis of Pickering at the pleading stage,

the decision is an outlier. In the typical case, a complaint will not provide the court with enough

detail and context to permit a legal conclusion that an employer violated an employee’s clearly

established rights under Pickering.

This case is not an exception to the general rule. Without a more complete record, we cannot

fairly weigh Devlin’s interest in whistleblowing against the defendants’ interest in operating the

Board efficiently. Discovery is necessary to develop these facts. Accordingly, we affirm the district

court’s judgment as to Devlin’s First Amendment retaliation claim.

B.

Devlin also claims that he did not receive appropriate pre-termination due process as required

by Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985). The parties do not dispute

that Devlin had a property interest in his civil service position sufficient to support a procedural due

process claim. See Farhat, 370 F.3d at 595. Prior to an employee’s termination from a protected

position, his employer must provide “oral or written notice of the charges against him, an

explanation of the employer’s evidence, and an opportunity to present his side of the story.”

Loudermill, 470 U.S. at 546. The employee “does not have a right to, and the Constitution does not

require, a neutral and impartial decisionmaker” at this stage. Farhat, 370 F.3d at 595. “Where there

is a system of post-termination procedures available to the employee that includes a neutral

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Devlin v. Kalm

decisionmaker and/or arbitration, coupled with a pretermination ‘right of reply’ hearing, then the

employee has received all the process due under the Constitution.” Id. at 596.

Devlin received the minimum level of process to which the Constitution entitled him. After

being suspended from work, he received written notice of an investigatory conference. The notice

told him he would be asked “questions related to your involvement and conduct in the access and

release of confidential information, failure to follow the chain of command, insubordinate behavior,

[and] disrespectful conduct.” The letter also listed the various department policies he had been

accused of violating and invited him to bring counsel to the conference. After the investigatory

conference, he received written notice of the disciplinary conference where he was eventually

terminated and replied with a letter defending his actions and arguing why termination was

inappropriate. Devlin does not dispute that he had an impartial, post-termination proceeding

available to him.

Devlin raises two objections to the pre-termination process the defendants afforded him.

First, he claims that the charges in the letters he received were not sufficiently specific to put him

on notice of the charges he faced. Loudermill does not require exacting specificity in the provision

of oral or written notice. It only requires sufficient notice “to prevent surprise at the termination and

its justification.” Bramley v. Knudson, 917 F.2d 1304 (table), 1990 WL 169661, at *3 (6th Cir.

1990). The communications Devlin received accomplished this minimal goal. Devlin’s argument

to the contrary is belied by the lengthy letter he sent to the defendants prior to his disciplinary

conference, which demonstrates his understanding of the reasons for his termination. Second,

Devlin claims that Davis, who conducted the disciplinary conference, had already made up his mind

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Devlin v. Kalm

before the conference began. This argument would have merit if Davis had been presiding over post-

termination proceedings, but the decision-maker at a pre-termination hearing does not have to be

unbiased. Farhat, 370 F.3d at 595. Because Devlin’s objections to the pre-termination process he

received lack merit, the defendants are entitled to qualified immunity on his procedural due process

claim.

V.

For these reasons, the judgment of the district court is affirmed with respect to Devlin’s First

Amendment retaliation claim and reversed with respect to his procedural due process claim. We

remand the case for further proceedings consistent with this opinion.

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