# Rice v. Ohio Department of Transportation

> Court of Appeals for the Sixth Circuit · October 13, 1989 · 887 F.2d 716

URL: https://www.frixlaw.com/law-library/cases/8974144

## Case

- **Full name:** Edward E. RICE v. OHIO DEPARTMENT OF TRANSPORTATION David L. Weir, Director, Ohio Department of Transportation and Patrick McCray, Deputy Director, Administrative Affairs, Ohio Department of Transportation
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** October 13, 1989
- **Citations:** 887 F.2d 716
- **Precedential status:** Published
- **Opinion:** Concurring in part by Martin
- **Judges:** Contie, Martin, Nelson
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Vacated on other grounds by INF, Ltd. v. Spectro Alloys Corp., 497 U.S. 1001 (1990).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8974144

## Opinion text

BOYCE F. MARTIN, JR., Circuit Judge,
concurring in part and
dissenting in part.
I reluctantly concur in the majority’s holding that, under the authority of Messer v. Curci, 881 F.2d 219 (6th Cir.1989) (en banc), the district court did not err in its dismissal on summary judgment of Rice’s § 1983 claim for failure to promote. Although I disagreed with the decision in Messer for the reasons stated in my dissenting opinion in that case, Messer is controlling here and mandates the affirmance of the district court’s judgment. 1
However, I dissent from the majority’s holding that the district court correctly dismissed Rice’s § 1983 claim that the defendants’ decision not to promote him, which was allegedly taken in retaliation for his filing a reverse sex discrimination charge, violated the first amendment. The Supreme Court has not yet explicitly decided whether the first amendment prohibits the withholding of promotion in retaliation for the filing of an employment discrimination charge against a governmental employer. In several previous cases, the Court has applied a general balancing test to determine whether a public employee’s speech requires constitutional protection. Rankin v. McPherson, 483 U.S. 378 , 107 S.Ct. 2891 , 97 L.Ed.2d 315 (1987). The threshold question in applying this balancing test is whether the public employee’s speech may be characterized as constituting speech on a matter of “public concern,” as determined by the content, form and context of the speech. Connick v. Myers, 461 U.S. 138, 146-48 , 103 S.Ct. 1684, 1689-91 , 75 L.Ed.2d 708 (1983). Thus, the question raised by this appeal is whether Rice’s speech, as evidenced by his employment discrimination charge against the defen *723 dants, constitutes speech on a matter of “public concern.”
I cannot agree with the majority’s decision that Rice’s retaliation claim does not constitute speech on a matter of public concern and therefore is not a claim arising under the first amendment. Admittedly, not every employment-related grievance of a public employee raises a matter of public concern under the first amendment; I consequently disagree with the Eighth Circuit’s broad rule that the filing of a civil rights lawsuit and discrimination charge with the Equal Employment Opportunity Commission are per se regarded as activities protected by the first amendment. Greenwood v. Ross, 778 F.2d 448, 456-57 (8th Cir.1985). However, I also disapprove of the majority’s summary dismissal of Rice’s claims of discriminatory conduct by a governmental employer. Allegations of race or sex discrimination by a public employer, even if such allegations are made by only a single employee, may frequently implicate matters of public concern and may therefore fall within the protection of the first amendment. See Connick, 461 U.S. at 149 n. 8, 103 S.Ct. at 1691 n. 8; Matulin v. Village of Lodi, 862 F.2d 609, 612-13 (6th Cir.1988). Because Rice’s employee grievance involved an allegation of reverse sex discrimination, I dissent from the majority’s affirmance of the district court’s summary dismissal of Rice’s first amendment retaliation claim.
The Supreme Court has suggested that allegations of discrimination by a public employer are “a matter inherently of public concern,” Connick, 461 U.S. at 149 n. 8, 103 S.Ct. at 1691 n. 8. While the granting of summary judgment in this case does not substantially reduce access to the federal courts, it does begin to erode this opportunity for plaintiffs such as Rice. 2 Accordingly, I dissent from the majority’s decision to uphold the district court’s grant of summary judgment to defendants on Rice’s first amendment claim.
. I also concur without comment on the majority’s affirmance of the district court's dismissal of Rice’s claim under Section 1985(3).
. Even in Yatvin v. Madison Metropolitan School District, 840 F.2d 412 (7th Cir.1988), the case primarily relied upon by the majority, the district court did not summarily dismiss the plaintiff’s first amendment retaliation claim. The dismissal of first amendment claims on summary judgment may effectively preclude plaintiffs, such as Rice, from establishing a viable first amendment claim by preventing them, as the Seventh Circuit required in Yatvin , from distinguishing their cases from the "run-of-the-mill single-plaintiff discrimination case." Yatvin, 840 F.2d at 420 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8974144. Public record. Not legal advice.