Bridgett Handy-Clay v. City of Memphis, Tennessee

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0346p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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BRIDGETT HANDY-CLAY,

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Plaintiff-Appellant,

v. -

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No. 11-5518

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CITY OF MEMPHIS, TENNESSEE; MAYOR AC

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WHARTON, in his official capacity; HERMAN

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MORRIS, JR., individually and in his official

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capacity as City Attorney; CATHY PORTER,

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individually and in her official capacity as

Defendants-Appellees. -

Senior Legal Administrator,

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Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

No. 2:10-cv-2927—S. Thomas Anderson, District Judge.

Argued: May 29, 2012

Decided and Filed: September 25, 2012

Before: DAUGHTREY and CLAY, Circuit Judges; CLELAND, District Judge.*

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COUNSEL

ARGUED: Carol J. Chumney, CAROL CHUMNEY LAW PLLC, Memphis, Tennessee,

for Appellant. Elijah Noel, Jr., HARRIS, SHELTON, HANOVER WALSH, PLLC,

Memphis, Tennessee, for Appellees. ON BRIEF: Carol J. Chumney, CAROL

CHUMNEY LAW PLLC, Memphis, Tennessee, for Appellant. Elijah Noel, Jr., Laura

Martin, HARRIS, SHELTON, HANOVER WALSH, PLLC, Memphis, Tennessee, J.

Michael Fletcher, Memphis, Tennessee, Donald A. Donati, William B. Ryan, Bryce W.

Ashby, DONATI LAW FIRM, LLP, Memphis, Tennessee, for Appellees.

*

The Honorable Robert H. Cleland, United States District Judge for the Eastern District of

Michigan, sitting by designation.

1

No. 11-5518 Handy-Clay v. City of Memphis, et al. Page 2

_________________

OPINION

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MARTHA CRAIG DAUGHTREY, Circuit Judge. Plaintiff Bridgett Handy-Clay

filed this civil rights action under 42 U.S.C. § 1983, charging that the defendants

unlawfully terminated her from her position in the Memphis City Attorney’s Office in

retaliation for her allegations about corruption and mismanagement of public funds in

that office. The district court dismissed Handy-Clay’s complaint under Federal Rule of

Civil Procedure 12(b)(6) for failure to state a claim upon which relief could be granted.

She now appeals, contending that in dismissing her claims the district court failed to

construe the allegations in the complaint in the light most favorable to her. We conclude

that the district court erred in dismissing Handy-Clay’s First Amendment retaliation

claim. However, we agree that Handy-Clay did not allege sufficient facts to support her

other § 1983 claim, alleging a denial of due process. As a result, we affirm the district

court’s judgment in part, reverse in part, and remand the case for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

Because we are reviewing the district court’s order of dismissal under Rule

12(b)(6), we accept as true the facts set out in the complaint. Those facts allege that in

July 2007, Bridgett Handy-Clay was appointed by Mayor W. W. Herenton as the public

records coordinator for the City of Memphis. Pursuant to the City’s Charter and the

Code of Ordinances, the public records coordinator was classified as an exempt

employee, working out of the City Attorney’s Office. Handy-Clay’s duties included,

among others, ensuring that record requests from the public were “routed to the

appropriate records custodian and responded to in a timely manner,” reviewing the

documents released to “prevent[ ] the disclosure of confidential information,” and

supporting the recording and transcription of the minutes of the Memphis Charter

Commission.

No. 11-5518 Handy-Clay v. City of Memphis, et al. Page 3

The volume of public-record requests increased substantially after Handy-Clay

accepted the position, and they continued to increase throughout her tenure, due at least

in part to an ongoing FBI investigation into the awarding of city contracts. Initially,

Handy-Clay met with City Attorney Elbert Jefferson to process the requests, but

Jefferson’s administrative assistant, defendant Cathy Porter, began to manipulate Handy-

Clay’s meetings with Jefferson, and ultimately Handy-Clay began submitting the

requests directly to Porter, who would then bring them to Jefferson’s attention.

Eventually, Porter restructured the office organizational chart so that she had direct

supervision over Handy-Clay.

As a result of the change in protocol, Handy-Clay alleged, she began receiving

complaints regarding delay from the local daily newspaper and other would-be

recipients. According to the complaint, Porter would frequently route requested records

through another employee, preventing Handy-Clay from undertaking the review required

by her position and, in some cases, altogether failing to produce requested records. In

sum, Handy-Clay’s efforts to comply with requests for public records were thwarted by

“delays in response from various division directors, delays in response from the City

Attorney, denial of access to meet with the City Attorney by Porter, and even delays in

simple requests for office supplies and a place for the public to review the documents.”

She asserted that there was an entrenched culture at City Hall that led to the concealment

of information from the public and disclosure of only the “bare minimum needed to

comply with any given public records requests.”

Handy-Clay was also concerned with the conduct of various other employees in

the City Attorney’s Office. For example, she alleged that there was a “general practice

of some employees violating city policies by not reporting absences from the office” that

amounted to “abuse of city leave and payment policies,” as well as the improper use of

city funds. Also, she was informed that she was not entitled to overtime pay, but she

became aware that other employees received compensation for overtime work.

Moreover, she alleged, there were “issues regarding nepotism and favoritism based upon

personal relationships in the City Attorney’s Office.” As a result, Handy-Clay sought

No. 11-5518 Handy-Clay v. City of Memphis, et al. Page 4

to develop “across the board policies and procedures to regulate office protocol and

avoid disparate treatment.”

Handy-Clay repeatedly approached Jefferson regarding both her concerns about

widescale resistance from city officials in producing records and about corruption and

malfeasance in the City Attorney’s Office. She also raised her concerns to Senior Legal

Attorney Gerald Thornton, acting Deputy City Attorney Veronica Coleman-Davis, City

payroll employee Julian Mabry, and Chief Administrative Officer George Little, through

his assistant, Demar Roberts. Handy-Clay alleged that as a result of her reports, she

suffered “continuing interference, retaliation, and disparate treatment.”

On October 10, 2009, the newly-elected mayor, defendant A. C. Wharton, issued

an executive order establishing standards of performance designed to produce a more

transparent and open city government. On October 21, defendant Herman Morris was

sworn in as the new City Attorney. The next day, Handy-Clay sent Morris an e-mail

raising her concerns about the misuse of time by employees in the City Attorney’s office,

citing “misrepresentation of job functions and positions, among other things.” Handy-

Clay met with Morris five days later to discuss these issues but, she alleged in her

complaint, Morris never took any action in response. Over the next year, she

nevertheless continued to contact Morris regarding her suspicions. At some point,

Handy-Clay alleged, she “became aware of emails that gave her reasonable cause to

believe” that Morris himself was abusing city leave and pay policies. She communicated

her concerns to city councilman Myron Lowery and Antonio Adams with the “City’s

EEOC office.”

On August 26, 2010, Handy-Clay submitted two requests for records under the

Tennessee Open Records Act, asking for “documents regarding vacation, sick and bonus

time, time sheets, docked pay, personnel files, and payroll check requests for City

Attorney’s office employees, including City Attorney Morris.” She sent the request by

e-mail to Jill Madajczyk, a senior assistant in the City Attorney’s Office, and copied

Morris, Little, Bobby White, the Mayor’s chief of staff, and Tonya Meeks, the Mayor’s

public relations staff member, on the e-mail. Madajczyk and Morris acknowledged

No. 11-5518 Handy-Clay v. City of Memphis, et al. Page 5

receipt of her message. That same day, Handy-Clay met with Meeks to discuss her

records request and her complaints about the City Attorney’s Office. The next day,

August 27, Handy-Clay met with Human Resources employee Quinton Robinson and

“reported the abuse of city leave policies,” alleged that some employees were “‘stealing’

city time” by being paid for hours they did not work, and requested an investigation.

She submitted a third records request the next day for payroll records of all City

Attorney’s Office employees and, again, sent copies of her requests to the same group

of people.

Later that same day, August 27, 2010, Morris handed Handy-Clay a termination

letter signed by Wharton. Three days later, on August 30, Little held a press conference

and announced that Handy-Clay had been terminated for what Handy-Clay described in

her complaint as “failure to adhere to unspecified polices and procedures” and an

“alleged poor attendance and leave record.” Little’s comments appeared in various print

and television media reports in the Memphis area.

Some four months later, on December 22, 2010, Handy-Clay filed the complaint

in this case, asserting claims for violation of the Tennessee Public Protection Act,

common law retaliatory discharge and wrongful termination, tortious interference with

at-will employment, breach of the duty of good faith and fair dealing, deprivation of

constitutional rights in violation of 42 U.S.C. § 1983 under the First and Fourteenth

Amendments, and violation of the Tennessee Governmental Tort Liability Act. The

defendants responded with motions to dismiss.

The district court dismissed the § 1983 claims for failure to state a claim upon

which relief could be granted and declined to exercise supplemental jurisdiction over the

state law claims, dismissing them without prejudice. With regard to the claim of

retaliation in violation of the First Amendment, the district court found that the plaintiff

had failed to plead with sufficient particularity that she had spoken as a private citizen

addressing matters of public concern and not merely as an employee concerned with

internal office issues. The court noted that Handy-Clay’s complaints “addressed

problems related to delay in complying with open records laws . . . undertaken in the

No. 11-5518 Handy-Clay v. City of Memphis, et al. Page 6

course of performing her job,” and that “other problems she suffered in the workplace

[were also] a direct result of carrying out her job duties.” The district court further noted

that “[a]lthough the fact that the employee’s speech arises in the workplace is not

dispositive, a public employee’s complaints or concerns up the chain of command at his

workplace about his job duties amounts to speech undertaken in the course of performing

his job.” Having determined that Handy-Clay’s speech was not protected, the district

court also commented on the “conclusory legal labels” used by the plaintiff in describing

the retaliatory treatment she suffered: “continuing interference, retaliation, and disparate

treatment.” Such “general allegations,” the court held, “fail to state a claim for First

Amendment retaliation.”

Turning to the plaintiff’s due-process claim, the district court noted that the

liberty interests guaranteed by the Fourteenth Amendment include an individual’s

interest in her reputation, good name, honor, and integrity, and that a public employee

is entitled to an opportunity to clear her name if she can show that she has been

stigmatized by the public dissemination of false information in connection with a

decision to terminate her employment, citing Burkhart v. Randles, 764 F.2d 1196, 1201

(6th Cir. 1985). The district court then held that the plaintiff had failed to request a

name-clearing hearing and had not pleaded any harm other than a statement alleging that

she had been terminated for allegedly “improper or inadequate performance,” which, the

court held, was inadequate to state a due process claim.

Handy-Clay now appeals the dismissal of her § 1983 claims under Rule 12(b)(6).

II. DISCUSSION

A. Standard of Review

We review de novo a district court’s grant of a motion to dismiss under Federal

Rule of Civil Procedure 12(b)(6). Jones v. City of Cincinnati, 521 F.3d 555, 559

(6th Cir. 2008). We may affirm the district court’s determination on any grounds,

“including grounds not relied upon by the district court.” Hensley Mfg. v. ProPride,

No. 11-5518 Handy-Clay v. City of Memphis, et al. Page 7

Inc., 579 F.3d 603, 609 (6th Cir. 2009) (citing Zaluski v. United Am. Healthcare Corp.,

527 F.3d 564, 570 (6th Cir. 2008)).

Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain “a short

and plain statement of the claim showing that the pleader is entitled to relief.” It will

survive a motion to dismiss if the plaintiff alleges facts that “state a claim to relief that

is plausible on its face” and that, if accepted as true, are sufficient to “raise a right to

relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570

(2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint must thus

“contain either direct or inferential allegations respecting all material elements to sustain

a recovery under some viable legal theory.” Eidson v. Tenn. Dep’t of Children’s Servs.,

510 F.3d 631, 634 (6th Cir. 2007) (citing Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir.

2005)).

In analyzing the sufficiency and plausibility of the claim, “we construe the

complaint in the light most favorable to the plaintiff, accept its 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) (citation omitted). We will affirm the district court’s dismissal

only if “it appears beyond doubt that the plaintiff can prove no set of facts in support of

his claim which would entitle him to relief.” Guzman v. U. S. Dep’t of Homeland Sec.,

679 F.3d 425, 429 (6th Cir. 2012) (citation and internal quotation marks omitted). We

need not accept as true “a legal conclusion couched as a factual allegation,” Twombly,

550 U.S. at 555 (citation and internal quotation marks omitted), or an “unwarranted

factual inference[ ]," Treesh, 487 F.3d at 476 (citation and internal quotation marks

omitted).

B. Section 1983 Claims

Handy-Clay’s only cause of action under federal law is her claim against all

defendants under 42 U.S.C. § 1983. There are two elements to a § 1983 claim. First,

a plaintiff must allege that a defendant acted under color of state law. Second, a plaintiff

must allege that the defendant’s conduct deprived the plaintiff of rights secured under

federal law. Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010)

No. 11-5518 Handy-Clay v. City of Memphis, et al. Page 8

(citing Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir. 1998)). The district court assumed

that Handy-Clay had adequately alleged state action. The defendants do not contest this

issue on appeal, and we also may assume that Handy-Clay met this requirement. Id. at

723 (“[I]t does not appear from the pleadings to be in dispute whether Defendant Hudson

acted under color of state law, and so it will be assumed that Plaintiff sufficiently pled

state action for purposes of evaluating the motion to dismiss.”). The dispositive question

then is whether Handy-Clay has stated any plausible claim that the defendants deprived

her of her rights under the First and Fourteenth Amendments, “including but not limited

to” her “right to free speech[ ] and liberty.”

1. First Amendment Claim: Free Speech

Handy-Clay alleged that she suffered discrimination, harassment and, ultimately,

termination of her employment in retaliation for the exercise of her constitutional right

to free speech. Such claims have three elements. A § 1983 plaintiff must plead factual

allegations sufficient to establish that “(1) the plaintiff engaged in constitutionally

protected conduct; (2) an adverse action was taken against the plaintiff that would deter

a person of ordinary firmness from continuing to engage in that conduct; and (3) the

adverse action was motivated at least in part by the plaintiff’s protected conduct.” Fritz,

592 F.3d at 723 (citing Mezibov, 411 F.3d at 717).

a. Constitutionally Protected Conduct

“When a citizen enters government service, the citizen by necessity must accept

certain limitations on his or her freedom.” Garcetti v. Ceballos, 547 U.S. 410, 418

(2006) (citation omitted). However, public employees do not forfeit all their First

Amendment rights simply because they are employed by the state or a municipality. See

id. at 417; see also Connick v. Myers, 461 U.S. 138, 142 (1983) (noting that it is well

established “that a state cannot condition public employment on a basis that infringes the

employee’s constitutionally protected interest in freedom of expression”) (citations

omitted). The Supreme Court has determined that the First Amendment protects a public

employee’s right, under certain circumstances, to speak as a citizen on matters of public

No. 11-5518 Handy-Clay v. City of Memphis, et al. Page 9

concern. Garcetti, 547 U.S. at 417. However, when a public employee speaks as an

employee on matters of personal interest, “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, 461 U.S. at 147 (citation

omitted).

We note that these principles are meant to protect not only the constitutional

rights of public employees but also “the public’s interest in receiving the well-informed

views of government employees engaging in civic discussion.” Garcetti, 547 U.S. at

419; see also San Diego v. Roe, 543 U.S. 77, 82 (2004) (“The interest at stake is as much

the public's interest in receiving informed opinion as it is the employee’s own right to

disseminate it.”). Thus, in reviewing a claim such as Handy-Clay’s, a court must seek

a balance between promoting “the individual and societal interests that are served when

employees speak as citizens on matters of public concern,” and respecting “the needs of

government employers attempting to perform their important public functions.”

Garcetti, 547 U.S. at 420 (citation omitted).

To properly balance these interests, the Supreme Court has established a three-

part test for evaluating whether a public employee’s speech is constitutionally protected.

Under Garcetti, Handy-Clay must show (1) that her speech was made as a private

citizen, rather than pursuant to her official duties; (2) that her speech involved a matter

of public concern; and (3) that her interest as a citizen in speaking on the matter

outweighed the state’s interest, as an employer, in “promoting the efficiency of the

public services it performs through its employees.” See id. at 417-18 (citation and

internal quotation marks omitted); see also Westmoreland v. Sutherland, 662 F.3d 714,

718-19 (6th Cir. 2011) (citing Garcetti, 547 U.S. at 417). We address these requirements

in turn below.

i. Speaking as a “Citizen”

The Supreme Court recently clarified what it means for a public employee to

speak as a “citizen” for First Amendment purposes in Garcetti. The Court observed that

“when public employees make statements pursuant to their official duties, the employees

No. 11-5518 Handy-Clay v. City of Memphis, et al. Page 10

are not speaking as citizens for First Amendment purposes.” Garcetti, 547 U.S. at 421.

Justice Kennedy explained:

Restricting speech that owes its existence to a public employee’s

professional responsibilities does not infringe any liberties the employee

might have enjoyed as a private citizen. It simply reflects the exercise of

employer control over what the employer itself has commissioned or

created.

Id. at 421-22 (citation omitted). We thus look to the content and context of the

plaintiff’s speech to determine whether her statements were made pursuant merely to her

professional duties. Fox v. Traverse City Area Pub. Sch. Bd. of Educ., 605 F.3d 345, 348

(6th Cir.), cert. denied, 131 S.Ct. 643 (2010).

We have identified a number of factors to consider in this determination,

including “the impetus for her speech, the setting of her speech, the speech’s audience,

and its general subject matter.” Weisbarth v. Geauga Park Dist., 499 F.3d 538, 546

(6th Cir. 2007). Relevant considerations include whether the statements were made to

individuals “up the chain of command,” Fox, 605 F.3d at 350 (quoting Davis v.

McKinney, 518 F.3d 304, 313 (5th Cir. 2008)), and whether the content of the speech is

“nothing more than ‘the quintessential employee beef: management has acted

incompetently.’” Haynes v. City of Circleville, 474 F.3d 357, 365 (6th Cir. 2007)

(quoting Barnes v. McDowell, 848 F.2d 725, 735 (6th Cir. 1998)). Factors that may be

relevant but are not dispositive include whether the speech was made inside or outside

of the workplace and whether it concerned the subject-matter of the speaker’s

employment. See Garcetti, 547 U.S. at 420 (“Employees in some cases may receive

First Amendment protection for expressions made at work.”); id. at 421 (“The First

Amendment protects some expressions related to the speaker’s job.”).

The district court concluded that Handy-Clay’s complaints were not made in her

capacity as a private citizen. It separated her speech acts into five categories: complaints

of interference by others with her efforts to respond to record requests; generalized

complaints regarding “retaliation” and disparate treatment; specific allegations regarding

denial of office space, the lack of policies and procedures, and misrepresentation of job

No. 11-5518 Handy-Clay v. City of Memphis, et al. Page 11

functions and positions; generalized complaints about abuse of city leave and pay

policies; and specific complaints about abuse of city leave and pay policies by Morris

himself. We characterize her speech acts in a slightly different way.

In our view, there are four categories of speech alleged by Handy-Clay. They

include allegations about obstacles to the completion of her record-production duties;

generalized allegations of disparate treatment and “workplace abuse” within the City

Attorney’s office; allegations related to violations of city policies related to absences,

leave, and pay; and allegations of “retaliation” without further definition.1

We can dispose of the fourth category, Handy-Clay’s “retaliation” complaints,

because they state a legal conclusion with insufficient factual context to evaluate the

plausibility of her claim. See Twombly, 550 U.S. at 555; see also Lillard v. Shelby Cnty.

Bd. of Educ., 76 F.3d 716, 726-27 (6th Cir. 1996) (dismissing First Amendment claims

where a complaint “states nothing more than the barest of conclusory allegations of

unspecified retaliation”). For similar reasons, we can dispose of the second category,

Handy-Clay’s general allegations of “workplace abuse” or “lack of policies and

procedures.”

Next, it is clear under Garcetti, as well as our subsequent opinions applying

Garcetti, that the first category of speech – complaints about obstacles interfering with

her ability to produce records – is not protected. Handy-Clay admitted that her primary

responsibilities included ensuring that record requests from the public were “routed to

the appropriate records custodian and responded to in a timely manner,” reviewing the

documents released, and “preventing the disclosure of confidential information.” Her

1

In addition, there are a number of allegations that are irrelevant to our analysis. As

recommended by Center for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 370 (6th Cir. 2011),

cert. denied, 132 S.Ct. 1583 (2012), we “disregard[ ] these irrelevant portions of the Amended Complaint,

so that we may focus our judicial inquiry on the precise issues to be decided.” For example, Handy-Clay

alleged that she heard Porter and another city employee shredding documents in the office one evening.

However, Handy-Clay does not say that she spoke to anyone about this incident, nor that Porter was aware

of her presence that evening. Thus, this allegation does not constitute speech, nor is it relevant to any

claims of retaliation. For similar reasons, we disregard her allegations about pushing for release of records

from a non-city entity, receiving record requests regarding potential public corruption related to the move

of the Greyhound bus station, Jefferson’s instructions to gather records related to an FBI investigation and

place them on his desk, her struggle to make contact with Morris regarding requests by the Memphis

Commercial Appeal related to an FBI investigation, and the state of Handy-Clay’s work when she was

terminated.

No. 11-5518 Handy-Clay v. City of Memphis, et al. Page 12

complaints were directly related to her alleged job responsibilities and, thus, her speech

was made in her capacity as an employee and not as a private citizen. See Garcetti,

547 U.S. at 421 (noting that disposition memo submitted by plaintiff, a deputy district

attorney, was written pursuant to his official duty to advise his supervisor about how to

proceed with pending cases); Fox, 605 F.3d at 349 (determining that teacher’s

complaints about class size owed their existence to her professional responsibilities);

Haynes, 474 F.3d at 364-65 (holding that police officer’s memorandum criticizing

changes to canine program was written pursuant to official duties as canine handler).

The third category of speech concerns Handy-Clay’s claim regarding violations

of particular city policies. She alleged that “some employees of the City Attorney’s

office were absent, but were not reporting their absence on the city attorney’s daily

attendance log,” and that she was “concerned that City funds were being improperly

used.” She began reporting her concerns as early as August 2009, to individuals both

inside and outside of her department. The day before she was terminated, Handy-Clay

submitted open-records requests asking for “documents regarding vacation, sick and

bonus time, time sheets, docked pay, personnel files, and payroll check requests for City

Attorney’s office employees.”

The district court determined that these complaints were also made pursuant to

Handy-Clay’s official duties. The district judge reasoned that Handy-Clay’s allegations

about abusive pay policies were motivated by her personal concern that other employees

in the City Attorney’s office were receiving preferential treatment and advantages that

she had not received, and that this discrimination was in retaliation for her other speech

acts. The court concluded that her speech on this topic was only a reflection of her

“private interests as Public Records Coordinator and an employee of the City Attorney’s

Office, not as a concerned citizen.”

We conclude that this interpretation does not read the complaint in the light most

favorable to Handy-Clay, as the district court was required to do. Handy-Clay alleged

that she was concerned with the improper use of city funds, and she spoke about her

concerns to a number of individuals both inside and outside her department. She was not

No. 11-5518 Handy-Clay v. City of Memphis, et al. Page 13

asked to investigate the alleged misconduct or to give her opinion on any violations.

This fact distinguishes her case from Weisbarth, in which a park ranger made critical

comments about her department’s “morale and performance issues” but made the

comments only in response to a paid consultant’s queries, at the behest of her employer.

499 F.3d at 543, 546. Like the plaintiff in Pucci v. Nineteenth Dist. Ct., 628 F.3d 752

(6th Cir. 2010), Handy-Clay’s comments were “extraordinary rather than everyday

communication.” Id. at 768 (determining that court administrator’s complaints about

judge’s religious references was not part of her official duties). In addition, we note that

her conversations with individuals outside her department were clearly not part of her

official duties as public records coordinator. For example, she spoke to an individual in

the city payroll department, a human resources employee, and a city councilman. These

facts, too, distinguish her case from Fox and Haynes, because their complaints were

made only to their immediate supervisors. Fox, 605 F.3d at 350 (quoting the Fifth

Circuit’s observation that “when a public employee raises complaints or concerns up the

chain of command at his workplace about his job duties, that speech is undertaken in the

course of performing his job.” (quoting Davis, 518 F.3d at 313)); Haynes, 474 F.3d at

364 (“The fact that Haynes communicated solely to his superior also indicates that he

was speaking ‘in [his] capacity as a public employee contributing to the formation and

execution of official policy,’ not as a member of the public . . . .” (alteration in original)

(quoting Mills v. City of Evansville, 452 F.3d 646, 648 (7th Cir. 2006))).

Hence, our review of the complaint, taking the allegations as true, leaves us with

the firm impression that Handy-Clay has alleged sufficient facts to justify an inference

that she spoke on these issues, both to her superiors and outside her chain of command,

as a concerned citizen addressing an issue of public corruption. We find nothing in the

complaint that suggests that the duties of her position as public records coordinator

included reporting on government corruption and mismanagement of public funds.

ii. On a Matter of Public Concern

Next we turn to the question of whether Handy-Clay’s speech touched on matters

of public concern, a decision that the district court did not address, having found that she

No. 11-5518 Handy-Clay v. City of Memphis, et al. Page 14

had not spoken as a private citizen. Whether or not a plaintiff’s speech touches on a

matter of public concern is a question of law. Hughes v. Region VII Area Agency on

Aging, 542 F.3d 169, 180 (6th Cir. 2008). In making this determination, we look to the

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

Rodgers v. Banks, 344 F.3d 587, 596 (6th Cir. 2003) (quoting Connick, 461 U.S. at 147-

48).

Speech touching on public concern includes speech on “any matter of political,

social, or other concern to the community.” Connick, 461 U.S. at 146; Westmoreland,

662 F.3d at 718. We have noted that “[t]he mere fact that public monies and government

efficiency are related to the subject of a public employee’s speech does not, by itself,

qualify that speech as being addressed to a matter of public concern.” Barnes, 848 F.2d

at 734. However, the Supreme Court, in citing examples of speech that would involve

matters of public concern, has specifically identified statements seeking to “bring to light

actual or potential wrongdoing or breach of public trust.” Connick, 461 U.S. at 148. The

Court reiterated this proposition recently in Garcetti, noting that “[e]xposing

governmental inefficiency and misconduct is a matter of considerable significance.”

547 U.S. at 425. In the wake of Garcetti, we likewise have determined that “statements

exposing possible corruption . . . are exactly the type of statements that demand strong

First Amendment protections.” See v. City of Elyria, 502 F.3d 484, 493 (6th Cir. 2007)

(citations omitted); see also Whitney v. City of Milan, 677 F.3d 292, 297 (6th Cir. 2012)

(“Allegations of public corruption and discrimination are, therefore, inherently of public

concern.”). In fact, we have gone so far as to say that “public interest is near its zenith

when ensuring that public organizations are being operated in accordance with the law,

when exposing graft and corruption, and when seeing that public funds are not purloined

or wasted.” Chappel v. Montgomery Cnty. Fire Prot. Dist. No. 1, 131 F.3d 564, 576 (6th

Cir. 1997) (alterations, citations, and internal quotation marks omitted).

The district court decided that Handy-Clay’s “alleged complaints ha[d] the ring

of internal office politics,” a finding that, if supported by the facts in the complaint,

would also support the district court’s order of dismissal. However, in making this

No. 11-5518 Handy-Clay v. City of Memphis, et al. Page 15

determination the district court should have looked not at the motivation for speaking but

at the content of the speech. See Nair v. Oakland Cnty. Cmty. Mental Health Auth., 443

F.3d 469, 479-80 (6th Cir. 2006) (identifying “the pertinent question” as “not why the

employee spoke, but what he said” (citations and internal quotation marks omitted)). As

we observed in Chappel, “[T]he argument that an individual’s personal motives for

speaking may dispositively determine whether that individual’s speech addresses a

matter of public concern is plainly illogical and contrary to the broader purposes of the

First Amendment.” 131 F.3d at 574. In that case, Chappel, a part-time emergency

medical technician, alleged that he was retaliated against because he criticized his

employer for “mismanagement, corruption, and unethical behavior.” Id. at 567. We

observed:

Even if we were to assume that Chappel’s predominant motivation for

speaking was securing a job for himself, we would not conclude that this

motivation so dominated the substance of Chappel's speech that the

“point” or “communicative purpose” of his speech was rendered merely

a matter of personal concern. Chappel directly addressed matters that are

rightly “near [the] zenith” of public concern--matters of public safety,

and the gross mismanagement and misappropriation of public monies.

Id. at 578 (alteration in original). Handy-Clay has alleged very similar acts of

misconduct, and the facts set out in her complaint support an inference that her

communications were not made merely for personal reasons. See Wooley v. Madison

Cty., 209 F. Supp. 2d 836, 843 (W.D. Tenn. 2002) (noting that speech regarding pay

practices of county employees was matter of public concern, explaining that “complaints

that Bond was granting employees more paid leave than they had earned went beyond

internal office politics, as these allegations of corruption involved the mismanagement

of public monies”).

In addition, we noted in Chappel that “[c]onstitutional protection for speech on

matters of public concern is not premised on the communication of that speech to the

public” and held that Chappel’s private conversations on these issues with members of

the fire department board were conversations on matters of public concern. 131 F.3d at

579. Similarly, although Handy-Clay did not present her concerns to the public at large,

No. 11-5518 Handy-Clay v. City of Memphis, et al. Page 16

her communications to individuals outside her department, including a city councilman,

were related to issues of public concern even though expressed in private discourse. We

thus conclude that Handy-Clay’s communications alleging corruption and

mismanagement by public employees must be construed at this stage of the litigation as

speech on a matter of public concern.

iii. Balancing Under Pickering

Once it is determined that an employee’s speech was made as a citizen on a

matter of public concern, Pickering v. Board of Education, 391 U.S. 563 (1968), requires

a court to 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.” Id. at 568; accord

Whitney, 677 F.3d at 298 (citation omitted). At this stage, the burden is on the defendant

to proffer legitimate grounds for the allegedly retaliatory action at issue. Hughes,

542 F.3d at 180 (citing Rodgers, 344 F.3d at 601).

Again, we review this claim on a motion to dismiss and, thus, must accept

Handy-Clay’s factual allegations as true. She alleged that her speech exposing public

corruption within the office was “a substantial or motivating factor” in the decision to

discharge her. This allegation is supported by the close temporal proximity between

Handy-Clay’s e-mails informing her superiors about her requests for various records and

her termination. Generally, if a plaintiff alleges that a “First Amendment violation was

a substantial or motivating factor in the termination, the employer may present evidence

the employee would have been terminated in the absence of protected conduct.”

Dambrot v. Cent. Mich. Univ., 55 F.3d 1177, 1186 (6th Cir. 1995). However, the

defendants in this case cannot support a claim that Handy-Clay’s termination was for

non-retaliatory reasons without “some factual discovery.” Evans-Marshall v. Bd. of

Educ. of Tipp City Exempted Vill. Sch. Dist., 428 F.3d 223, 231 (6th Cir. 2005); see also

Perry v. McGinnis, 209 F.3d 597, 607 (6th Cir. 2000) (“In many cases, due to inadequate

factual development, the . . . balancing test cannot be performed on a 12(b)(6) motion.”)

No. 11-5518 Handy-Clay v. City of Memphis, et al. Page 17

(citation and internal quotation marks omitted)). In any event, Handy-Clay’s allegations

under the First Amendment are, at this point, sufficient to survive a motion to dismiss.

b. Adverse Action

Handy-Clay has pleaded factual allegations sufficient to establish that she

engaged in constitutionally protected conduct when she spoke to various public officials

regarding allegations of misconduct and corruption in the City Attorney’s office. Next,

we must evaluate whether Handy-Clay has sufficiently alleged that an adverse action

was taken against her “that would deter a person of ordinary firmness from continuing

to engage in that conduct.” Mezibov, 411 F.3d at 717 (citation omitted). The term

“adverse action” has traditionally referred to “actions such as ‘discharge, demotions,

refusal to [h]ire, nonrenewal of contracts, and failure to promote.’” Fritz, 592 F.3d at

724 (quoting Thaddeus-X v. Blatter, 175 F.3d 378, 396 (6th Cir. 1999) (en banc)). We

have held that “[l]osing one’s job and accompanying benefits is certainly severe enough

to deter a person of ordinary firmness from speaking at public meetings.” Paige v.

Coyner, 614 F.3d 273, 281 (6th Cir. 2010); see also See, 502 F.3d at 494 (holding that

discharge is “undeniably . . . an adverse action that would chill the free speech rights of

an ordinary person”). Given this precedent, it is clear that Handy-Clay’s termination

constituted an adverse action.

c. Substantial or Motivating Factor

As a final requirement, Handy-Clay must demonstrate that her speech was “a

substantial or motivating factor in the employer’s decision to take the adverse

employment action against [her].” Hughes, 542 F.3d at 181 (citing Rodgers, 344 F.3d

at 596)). We have interpreted a motivating factor to mean “one without which the action

being challenged simply would not have been taken.” Holzemer v. City of Memphis,

621 F.3d 512, 525 (6th Cir. 2010) (citing Greene v. Barber, 310 F.3d 889, 897 (6th Cir.

2002)). Moreover, as previously noted, “[a] defendant’s motivation for taking action

against the plaintiff is usually a matter best suited for the jury.” Paige, 614 F.3d at 282;

see also Evans-Marshall, 428 F.3d at 232 (“[O]ur inquiry is . . . limited by the early

No. 11-5518 Handy-Clay v. City of Memphis, et al. Page 18

stage of this case.”). Nevertheless, we have identified two factors that support our

determination that Handy-Clay has adequately alleged that her speech was a substantial

factor in the decision to terminate her public employment, at least for purposes of Rule

12(b)(6).

First, there is enough evidence in the record to support the proposition that the

defendants knew of Handy-Clay’s protected speech. There is no question that Morris

knew about her complaints, because she spoke directly to him multiple times and copied

him on her e-mail regarding her final record requests. Although Handy-Clay did not

assert that she directly addressed Porter about misconduct and corruption in the City

Attorney’s office, copies of the record requests attached to the complaint reveal that

Porter was indeed included on that e-mail. Handy-Clay also does not allege that she

contacted Wharton directly with her concerns, but the sheer number of complaints

Handy-Clay made over a period of years to various members of the Mayor’s staff

certainly supports an inference that Wharton was aware that Handy-Clay was speaking

out on these issues. And while it might be difficult “for a plaintiff to have smoking gun

evidence that a defendant knew of her protected speech or for a defendant to admit such

knowledge,” Valentino v. Vill. of S. Chicago Hts., 575 F.3d 664, 672 (7th Cir. 2009),

given the entirety of the complaint, we conclude that Handy-Clay alleged sufficient facts

to support an inference that the defendants were aware of her speech.

Second, we note that the chronology of events supports an inference of causation,

particularly because Handy-Clay was terminated the day after she made her own records

requests. See Holzemer, 621 F.3d at 525-26 (holding that chronology of events

supported inferences about what factors motivated retaliation). In Paige, we noted that

temporal proximity between the protected conduct and the adverse action creates an

inference of retaliatory motive; there, the time between the conduct and the action was

one week. 614 F.3d at 283. Here, it was less than one day. This gives rise to a strong

inference that Handy-Clay’s speech to Morris and her e-mails regarding the requests on

August 25 and August 26 were motivating factors in her termination.

No. 11-5518 Handy-Clay v. City of Memphis, et al. Page 19

Because Handy-Clay has alleged sufficient facts to support her claim that she

engaged in constitutionally protected conduct that motivated her supervisors to engage

in an adverse action against her, the complaint is adequate to survive a Rule 12(b)(6)

motion to dismiss for failure to state the plaintiff’s First Amendment retaliation claim.

2. Fourteenth Amendment Claim: Due Process

Handy-Clay’s complaint also alleged that she was deprived of her rights under

the Fourteenth Amendment’s provision that no state shall “deprive any person of life,

liberty or property, without due process of law.” U.S. CONST. amend. XIV, § 1. We

separate claims alleging deprivation of due process into two categories: violations of

procedural due process and violations of substantive due process. Midkiff v. Adams

Cnty. Reg’l. Water Dist., 409 F.3d 758, 762 (6th Cir. 2005) (citation omitted).

Procedural due process claims are concerned not with the deprivation of a

constitutionally protected interest in “life, liberty, or property,” but deprivation of those

interests without due process of law. Eidson, 510 F.3d at 635 (citing Zinermon v. Burch,

494 U.S. 113, 125 (1990)). When reviewing a procedural due process claim, we must

determine whether a protected liberty or property right is at stake and, if so, what process

is due. Midkiff, 409 F.3d at 762-63 (citing Thomas v. Cohen, 304 F.3d 563, 576 (6th Cir.

2002)). Substantive due process claims, in comparison, “serve[] as a vehicle to limit

various aspects of potentially oppressive government action.” Howard v. Grinage,

82 F.3d 1343, 1349 (6th Cir. 1996)). They often fall into one of two categories – claims

that an individual has been deprived of a particular constitutional guarantee, or claims

that the government has acted in a way that “shock[s] the conscience.” Valot v. Se.

Local Sch. Dist. Bd. of Edu., 107 F.3d 1220, 1228 (6th Cir. 1992) (citations omitted).

“Where government action does not deprive a plaintiff of a particular constitutional

guarantee or shock the conscience, that action survives the scythe of substantive due

process so long as it is rationally related to a legitimate state interest.” Id. (citations

omitted).

Handy-Clay’s complaint does not specify what type of Fourteenth Amendment

violation occurred, other than to allege that she had a liberty interest in continued

No. 11-5518 Handy-Clay v. City of Memphis, et al. Page 20

employment that was taken from her without due process and in a manner that shocks

the conscience. But, she made no claim that she had been hired based on anything other

than an employment-at-will agreement or that she was promised termination only for

cause. Under state law, which defines what constitutes a property interest, Pucci,

628 F.3d at 765, an at-will employee “is subject to dismissal at any time and without

cause” and, thus, has no protectable interest in her continued employment. Bailey v.

Floyd Cnty. Bd. of Educ., 106 F.3d 135, 141 (6th Cir. 1997); see also Harney v.

Meadowbrook Nursing Ctr., 784 S.W.2d 921, 922 (Tenn. 1990) (“The long standing rule

in this State is that an employee-at-will may be discharged without breach of contract

for good cause, bad cause or no cause at all . . . . ”). It follows that Handy-Clay has

failed to set out facts that would constitute an actionable procedural due process

violation.

Nor do we find that the plaintiff has set out sufficient facts to constitute a

substantive due process violation, of which there may two types. As previously noted,

Thaddeus-X precludes reliance on substantive due process standards when evaluating

claims covered by explicit constitutional protections. 175 F.3d at 387 (discussing the

Supreme Court’s instruction that when a specific amendment “provides an explicit

textual source of constitutional protection . . . that Amendment, not the more generalized

notion of ‘substantive due process,’ must be the guide for analyzing these claims.”

(citing Albright v Oliver, 510 U.S. 266, 273 (1994))). Therefore, “[a]ny claim for a

violation of [a] substantive due process right to free speech is duplicative of [a] First

Amendment retaliation claim.” Brandenburg v. Hous. Auth., 253 F.3d 891, 900 (6th Cir.

2001) (citation omitted). We have adhered to this distinction. See, e.g., Bell v. Johnson,

308 F.3d 594, 610-12 (6th Cir. 2002) (applying legal standards from First Amendment

retaliation case to a § 1983 claim, rather than a fundamental rights analysis). Thus, to

the extent that Handy-Clay alleges that she has a substantive due process claim related

to her free speech claim, her claim is foreclosed by controlling precedent.

Handy-Clay could succeed in alleging a substantive due process claim only by

setting out conduct that, if true, would “shock the conscience.” When the conduct in

No. 11-5518 Handy-Clay v. City of Memphis, et al. Page 21

question has been taken by an executive officer, the action violates substantive due

process only if it can be characterized as “arbitrary, or conscience shocking, in a

constitutional sense.” Cty. of Sacramento v. Lewis, 523 U.S. 833, 847 (1998) (citation

and internal quotation marks omitted). Moreover, this characterization applies to “only

the most egregious official conduct,” id. at 846 (citation omitted), conduct that is “so

‘brutal’ and ‘offensive’ that it [does] not comport with traditional ideas of fair play and

decency.” Breithaupt v. Abram, 352 U.S. 432, 435 (1957) (citing Rochin v. California,

342 U.S. 165, 172 (1952)).

The thrust of Handy-Clay’s claim is that her supervisors grossly abused their

authority by terminating her after her repeated complaints about malfeasance and

corruption. As the Second Circuit observed in a similar case:

What is allegedly shocking about what the defendants’ did is . . . their

intent to violate plaintiff’s fundamental First Amendment rights . . . . In

other words, what would serve to raise defendant’s actions beyond the

wrongful to the unconscionable and shocking are facts which, if proven,

would constitute, in themselves, [a] specific constitutional violation[ ]

. . . . Because we believe that, as a matter of law, defendants’ purported

actions would not – but for the allegations of First Amendment violations

. . . – be sufficiently shocking to state substantive due process claims, we

conclude that plaintiff’s substantive due process claim is either subsumed

in her more particularized allegations, or must fail.

Velez v. Levy, 401 F.3d 75, 94 (2d Cir. 2005). Because there is likewise “an enumerated

constitutional right . . . available as a source of protection” available in Handy-Clay’s

case, we conclude that she has failed to allege sufficient facts to support a substantive

due process claim. Thaddeus-X, 175 F.3d at 387 (citing Graham v. Connor, 490 U.S.

386, 392-93 (1989)).

III. CONCLUSION

As we recently observed in a case involving a dismissal under Rule 12(b)(6),

“The district court’s construction of Fed R. Civ. P. 12(b)(6) – crediting the defendant’s,

rather than the plaintiff’s version of facts – unduly raises the pleading standard beyond

No. 11-5518 Handy-Clay v. City of Memphis, et al. Page 22

the heightened level of Iqbal and Twombly, forcing the plaintiff’s well-pleaded facts to

be not only plausible, but persuasive. That is not the appropriate burden at this stage of

the litigation.” Mediacom Se. LLC v. BellSouth Telecomms., Inc., 672 F.3d 396, 400

(6th Cir. 2012). Similarly, the district court in this case did not uniformly construe the

complaint in the light most favorable to the plaintiff in denying her First Amendment

claim. Our review indicates that the facts alleged in the complaint and the reasonable

inferences from those facts, when construed in Handy-Clay’s favor, support her

retaliation claim in the face of a motion to dismiss. We therefore REVERSE that portion

of the district court’s judgment dismissing that claim, AFFIRM the remainder of the

judgment, and REMAND the case to the district court for further proceedings.