William Ashford v. Univ. of Mich.

RECOMMENDED FOR PUBLICATION

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

File Name: 24a0007p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

WILLIAM ELLIOTT ASHFORD,

│

Plaintiff-Appellee, │

> No. 22-2057

│

v. │

│

UNIVERSITY OF MICHIGAN; UNIVERSITY OF MICHIGAN- │

DEARBORN; GARY GORSKI; JEFFREY EVANS, │

Defendants-Appellants. │

┘

Appeal from the United States District Court for the Eastern District of Michigan at Detroit.

No. 2:20-cv-10561—Terrence George Berg, District Judge.

Argued: October 25, 2023

Decided and Filed: January 9, 2024

Before: MOORE, GIBBONS, and STRANCH, Circuit Judges.

_________________

COUNSEL

ARGUED: Brian M. Schwartz, MILLER, CANFIELD, PADDOCK, AND STONE, P.L.C.,

Detroit, Michigan, for Appellants. Elizabeth Marzotto Taylor, DEBORAH GORDON LAW,

Bloomfield Hills, Michigan, for Appellee. ON BRIEF: Brian M. Schwartz, Schuyler A.

Ferguson, MILLER, CANFIELD, PADDOCK, AND STONE, P.L.C., Detroit, Michigan, for

Appellants. Elizabeth Marzotto Taylor, Deborah L. Gordon, DEBORAH GORDON LAW,

Bloomfield Hills, Michigan, for Appellee.

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. In late 2019, William Ashford (“Ashford”),

a police officer employed by the University of Michigan-Dearborn (“UM-D”), spoke with a

No. 22-2057 Ashford v. Univ. of Mich. et al. Page 2

reporter at The Detroit Times about his concerns that the UM-D police department was

mishandling a student’s allegation that one of her professors had sexually assaulted her. After

his supervisors at the University, including then-Vice Chancellor Jeffrey Evans (“Evans”) and

UM-D Police Chief Gary Gorski (“Gorski”), learned that he had taken his thoughts about the

case to the media, they launched an inquiry into his actions in November 2019. At the

conclusion of their investigation, UM-D suspended Ashford for ten days without pay. Ashford

sued UM-D, the University of Michigan, Evans (in his individual and official capacities) and

Gorski (in his individual and official capacities), bringing a 42 U.S.C. § 1983 First Amendment

claim1 that he had been unconstitutionally retaliated against for engaging in protected speech.

Ashford sought to have the suspension removed from his employment record, as well as

monetary damages.

The defendants argued in a motion for summary judgment that Ashford’s suit against the

university and its officers in their official capacities was barred by Eleventh Amendment

sovereign immunity, and that the officers in their individual capacities were entitled to qualified

immunity. The district court denied their motion with respect to both sovereign and qualified

immunity. In this interlocutory appeal, the defendants ask this court to reverse the district

court’s decision. We AFFIRM the district court’s ruling on sovereign and qualified immunity.

I. BACKGROUND

A. Factual Background

Ashford started working for UM-D as a police officer on May 22, 2017. R. 23-18

(Ashford Offer Letter at 1) (Page ID #1133). He had previously worked at the Detroit Police

Department since 1995 and had been a detective in the sex-crimes unit since June 2015. R. 26-3

(Ashford Resume at 1) (Page ID #1247). After a probationary year with UM-D, Ashford

received full university benefits, as well as a copy of the department’s collective bargaining

agreement, which included the discrimination and harassment policy, the standard of conduct

policy, and the professional standards investigation (“PSI”) policy. R. 23-2 (Ashford Dep. at 69–

1

Ashford raised other claims in his complaint, but the only issue before us on appeal is his § 1983 First

Amendment retaliation claim.

No. 22-2057 Ashford v. Univ. of Mich. et al. Page 3

70) (Page ID #249–50). UM-D never provided him with any formal training about

nondiscrimination, non-harassment, or nonretaliation, and he was not aware of the specific

policies in place regarding public statements, endorsements, and/or appearances by UM-D

employees. Id. at 74 (Page ID #254). Other than the discipline at issue in this case, Ashford has

not received any other formal discipline from UM-D. Id. at 88 (Page ID #268).

On February 28, 2019, a UM-D student reported to the UM-D Police Department that

Professor Jay Stasser (“Stasser”) had sexually assaulted her on February 25, 2019, and had

requested oral sex in exchange for a grade adjustment. R. 26-8 (Email—Info. on UM Dearborn

CSC) (Page ID #1374); R. 23-8 (Case Report at 3) (Page ID #1078). On March 1, 2019, Deputy

Chief Timothy Wiley (“Wiley”) gave Ashford an overview of the situation involving Stasser. R.

23-2 (Ashford Dep. at 108) (Page ID #288). Ashford asked if they had interviewed the victim,

and Wiley told him that they did not take statements from victims, because it can “come back to

haunt [the department] in court.” Id. at 109 (Page ID #289). Wiley informed Ashford that then-

Captain (now-Deputy Chief) James Knittel (“Knittel”) and Officer Fred Thompson

(“Thompson”) were going to interview Stasser at his home. Id. Ashford advised that an

interview like that should be done in a controlled atmosphere, although it does not appear that

Wiley heeded his advice. Id. at 109–10 (Page ID #289–90).

Ashford was not brought onto the case, because Wiley wanted to avoid “too many chefs

in the kitchen.” Id. Ashford also had not been involved in any other sexual-assault cases on

UM-D’s campus, nor did he have knowledge of the “usual procedures” that the UM-D Police

Department followed in such cases. Id. at 110–11 (Page ID #290–91). He was not asked “at any

point” to play any role in the investigation against Stasser. Id. at 111 (Page ID #291). He did

know that the UM-D Police interviewed Stasser, who admitted to engaging in “inappropriate

sexual contact” (fellatio that Stasser “deemed to be consensual”). Id. Knittel, Thompson, and a

University of Michigan-Ann Arbor officer conducted the interview. Id. at 112 (Page ID #292).

Ashford believed that the UM-D Police Department would be the lead on the sexual-

assault case against Stasser, based on their “investigative efforts” and obtaining of search

warrants. Id. at 116 (Page ID #296). In May 2019, at the UM-D Police Department’s annual

training in Ann Arbor, Wiley and Knittel announced that the “case was closed and . . . a warrant

No. 22-2057 Ashford v. Univ. of Mich. et al. Page 4

was submitted to the prosecutor’s office.” Id. at 116–17, 122 (Page ID #296–97, 302). Ashford

testified that this announcement “led [him] to believe they handled the investigation,” and, by

submitting the warrant package to the Wayne County Prosecutor’s Office (“WCPO”), that the

University had in fact completed the investigation. Id. at 117 (Page ID #297). The UM-D Police

Department’s Clery log2 reflected that the case’s status as of August 27, 2019 (Case No. 19-047)

was “Closed-Ref to WCPO.” R. 26-14 (Clery Log Aug. 2019) (Page ID #1518).

At some point after the May 2019 meeting, Ashford began to worry that the UM-D Police

Department was not doing anything with the information and evidence that they had collected in

this case. On September 4, 2019, he spoke with Assistant Prosecuting Attorney David Champine

(“Champine”), who heads the WCPO’s sexual-assault unit. R. 23-2 (Ashford Dep. at 141–42)

(Page ID #321–22). At this point, Champine informed Ashford that he had never received a

warrant package from UM-D’s police department regarding this sexual-assault case. Id.

Immediately after speaking with Champine, Ashford brought his concerns to Gorski. Id. at 143

(Page ID #323). Gorski was relatively new to the department and had not been chief at the time

of the sexual assault or at the time of the meeting where Wiley and Knittel reported that the

matter had been referred to WCPO. Id. at 168–69 (Page ID #348–49). During this conversation,

Ashford asked Gorski about any agreement between the UM-D and City of Dearborn police

departments, and Gorski told him there was “no such agreement” and that each entity handled its

own cases. Id. at 143 (Page ID #323). Gorski also confirmed he had a “case update” from

Knittel “informing him that the case was closed and submitted to” the WCPO. Id. at 143–44

(Page ID #323–24). Ashford expressed his concerns that the sexual-assault statistic would not be

“reported accurately” at this time based on what the Clery log reflected, id. at 145 (Page ID

#325), and told Gorski that he believed Knittel was part of a “coverup,” R. 23-4 (Gorski Dep. at

56) (Page ID #605).

Shortly after this September 4, 2019 meeting between Gorski and Ashford, Gorski told

Ashford he had spoken with Knittel, who had acknowledged that the warrant was not with the

2

The Clery Act requires all colleges and universities receiving federal funding to “prepare, publish, and

distribute” public annual safety reports (Clery logs), which must include statistics of campus crime, including sex

offenses, for “the most recent calendar year, and during the 2 preceding calendar years[.]” 20 U.S.C. § 1092(f).

No. 22-2057 Ashford v. Univ. of Mich. et al. Page 5

WCPO. R. 23-2 (Ashford Dep. at 152) (Page ID #332). Gorski testified that when he looked

into the issue, he found that the evidence was “turned over to the Dearborn Police Department,

and that they were the lead,” and that they were waiting for DNA results. R. 23-4 (Gorski Dep.

at 62) (Page ID #611). This struck Ashford as odd, because he did not think they needed to wait

for the DNA results when Stasser had already admitted to the sexual contact and other evidence

had been collected. R. 23-2 (Ashford Dep. at 152–53) (Page ID #332–33). On September 10,

2019, Ashford went to Alana Dillard-Slaughter in the UM-D human resources department with

his concerns. Id. at 154 (Page ID #334). On or around September 16, 2019, he also sent an

anonymous letter to the University of Michigan Board of Regents, in hopes that it would “stoke

the fires” and make them address the matter. Id. at 165 (Page ID #345). He did not receive any

follow-up from the Board of Regents. Id. at 171–72 (Page ID #351–52). Additionally, on

October 24, 2019, Ashford sent an email to the WCPO, expressing his concerns that nearly six

months had passed since the assault had occurred and no warrant had been submitted yet. R. 27-

28 (Ashford Letter to WCPO) (Page ID #2118–20).

At some point between September 4, 2019, and October 11, 2019, an undisclosed person

contacted George Hunter (“Hunter”), a reporter for The Detroit News, about the Stasser case.

R. 23-2 (Ashford Dep. at 172–73) (Page ID #352–53). On October 11, 2019, Hunter submitted

a Michigan Freedom of Information Act (“FOIA”) request to the University of Michigan for:

(1) information about Jay Stasser; and (2) “all University of Michigan-Dearborn Cleary [sic] logs

for 2019.” R. 26-25 (Hunter FOIA Request) (Page ID #1585). On or around October 16, 2019,

and after Hunter had submitted his FOIA request, Gorski instructed Knittel to change the status

of the Stasser case in UM-D’s Clery log to “open investigation” by both the UM-D Police

Department and the Dearborn police. R. 23-4 (Gorski Dep. at 133–34) (Page ID #682–83);

R. 26-26 (Clery Log Oct. 18, 2019) (Page ID #1587). Ashford claims that it “should have never

been changed” and was updated only because he had brought it to their attention by speaking

with Gorski, Alana Dillard-Slaughter, the Board of Regents, and the WCPO. R. 23-2 (Ashford

Dep. at 186–87) (Page ID #366–67). On October 25, 2019, the WCPO received a warrant

request on the case—nearly two months after Ashford had brought his concerns to Gorski.

R. 23-4 (Gorski Dep. at 215–16) (Page ID #764–65).

No. 22-2057 Ashford v. Univ. of Mich. et al. Page 6

In late October 2019, Hunter, having already spoken with the undisclosed individual,

contacted Ashford and asked to speak with him. R. 23-2 (Ashford Dep. at 172–74) (Page ID

#352–54). Ashford provided Hunter with the date the case was reported, the log (that was

ultimately published in the paper), the letter that Ashford had submitted to the Board of Regents,

along with other information about the case (including information that Ashford states “could not

be attained by the public,” although he goes on to say that he did not provide Hunter with the

witness interview reports or the investigative file, and that there was “nothing . . . in that police

report” that the public could not get). Id. at 174–76 (Page ID #354–56).

On November 3, 2019, Hunter published an article in The Detroit News, reporting that a

staffer had accused UM-D of attempting to cover up a student’s claims that they were sexually

assaulted by a UM-D professor. R. 27-23 (The Detroit News Article) (Page ID #2102–09). The

article does not identify Stasser, the student, or Ashford by name or any other features. Id. On

November 4, 2019, Ashford met with Gorski and acknowledged that he had been the person who

provided the information to the paper. R. 23-2 (Ashford Dep. at 195–98) (Page ID #375–78).

During this meeting, Gorski also told Ashford that they needed to “circle [their] wagons around

the university,” because it could not look like the university had an “unsafe campus

environment.” Id. at 197 (Page ID #377). Gorski told Ashford that his job was not in jeopardy.

Id. at 201 (Page ID #380). Gorski also asked Ashford to prepare a memo with more specifics,

but the UM-D union representative informed Gorski that he first would have to perform a PSI

investigation. R. 23-4 (Gorski Dep. at 164–65) (Page ID #713–14). Gorski contacted the

University’s Division of Public Safety and Security Administration Unit, and concluded on

November 6, 2019 that the “best way to move forward” would be to initiate a PSI process.

R. 26-34 (Discussion with Oesterle and Ede) (Page ID #1622). On November 25, 2019, Gorski

submitted his complaint against Ashford for “divulg[ing] information obtained from an open

UMD . . . investigation” that was “not authorized to be released.” R. 26-35 (Compl. Against

Ashford) (Page ID #1624). Ashford received notice of the PSI the same day. R. 26-36 (Ashford

PSI Notice) (Page ID #1626).

Chief Robert Neumann (“Neumann”) from the University of Michigan-Ann Arbor Police

Department conducted Ashford’s PSI, R. 27-37 (PSI Narrative Summ.) (Page ID #2155–76), and

No. 22-2057 Ashford v. Univ. of Mich. et al. Page 7

submitted his final report to Gorski, see R. 23-7 (Final Disposition of PSI, Jan. 29, 2020) (Page

ID #1034–35). Gorski sustained the allegation that Ashford had violated the UM-D Department

of Police and Public Safety Policy for the Standards of Conduct by making statements that could

“be interpreted as intending to have an adverse effect upon department morale, discipline,

operation . . . , or perception of the public,” and “[d]ivulg[ing] . . . information gained by reason

of [his] position for anything other than its official authorized purpose.” Id. at 1 (Page ID

#1034). That same day, Ashford had a meeting with Gorski, Alana Dillard-Slaughter, and

Wayne Bierbower, at which they informed him that the allegations were sustained. R. 23-2

(Ashford Dep. at 211–12) (Page ID #391–92). He was given a ten-day Disciplinary Layoff

without pay, R. 23-7 (Final Disposition of PSI, Jan. 29, 2020) (Page ID #1034–35), during which

his UM-D email privileges and access to the office were suspended, id. (Notice of Disciplinary

Layoff, Jan. 29, 2020) (Page ID #1033). Others had recommended termination. R. 23-4 (Gorski

Dep. at 194–95) (Page ID #743–44). Ashford served out his suspension and continues to work at

the UM-D Police Department.

B. Procedural Background

Ashford sued the University of Michigan-Dearborn and University of Michigan

(collectively, “the University”), Gorski, and Evans (who was serving as Vice Chancellor during

the relevant time period, but has since left that post), the latter two in both their individual and

official capacities. He seeks legal relief in the form of compensatory, economic, and

noneconomic damages; a judgment for lost wages and benefits (past and future); exemplary

damages; punitive damages; and attorney fees and costs. He also seeks declaratory and equitable

relief in the form of an order requiring the Defendants to remove from his record any discipline

related to the claims in this case (namely, the ten-day suspension), an injunction prohibiting any

further acts of discrimination, intimidation, or retaliation, and attorney fees. R. 1 (Compl. at 26)

(Page ID #26).

The Defendants filed a motion for summary judgment on all of Ashford’s claims. R. 22

(Def. Mot. Summ. J.) (Page ID #131). Relevant on appeal, the Defendants argued: (1) that

Ashford’s claims against the University, and the university officers in their official capacities,

are barred by sovereign immunity; and (2) that Gorski and Evans have qualified immunity for

No. 22-2057 Ashford v. Univ. of Mich. et al. Page 8

the claims against them in their individual capacities. Id. at 12, 14 (Page ID #155, 157). The

district court found that sovereign immunity does not bar Ashford’s claim, because he seeks

prospective relief from the appropriate parties (the University and the university officials in their

official capacities). Ashford v. Univ. of Mich., 635 F. Supp. 3d 593, 600 (E.D. Mich. 2022). In

their argument that Gorski and Evans are entitled to qualified immunity, the Defendants asserted

that Ashford had not specifically alleged that Gorski and Evans were involved in retaliating

against him and had not sufficiently established that they had violated his clearly established

constitutional rights. R. 22 (Def. Mot. Summ. J. at 14–15) (Page ID #157–58). The district court

noted that Gorski and Evans had both testified about their involvement with or knowledge of

Ashford’s investigation and suspension, stated that there was at least “a factual question about

whether their direct actions were sufficiently connected to [Ashford’s] discipline,” and

concluded that the court could not find Gorski and Evans were entitled to qualified immunity

because their actions clearly violated Ashford’s well-established constitutional right to free

speech. Ashford, 635 F. Supp. 3d at 603. The University, Gorski, and Evans now bring an

interlocutory appeal of the district court’s denial of sovereign and qualified immunity.

II. DISCUSSION

A. Sovereign Immunity

1. Summary-Judgment Standard

Generally, interlocutory rulings like a denial of summary judgment are not immediately

appealable, and parties must wait for the district court to issue a final judgment before appealing.

Brown v. Chapman, 814 F.3d 436, 444 (6th Cir. 2016). Denials of qualified immunity to public

officials, however, are immediately appealable under the “collateral order” doctrine, “to the

extent they raise legal questions.” In re Flint Water Cases, 960 F.3d 303, 322 (6th Cir. 2020);

see also Chappell v. City of Cleveland, 585 F.3d 901, 905–06 (6th Cir. 2009). The collateral-

order doctrine also grants us jurisdiction over a district court’s denial of sovereign immunity.

In re Flint Water Cases, 960 F.3d at 322.

We review de novo a district court’s legal decision to grant or deny a motion for

summary judgment on the basis of sovereign (absolute) or qualified immunity. Barnes v.

No. 22-2057 Ashford v. Univ. of Mich. et al. Page 9

Wright, 449 F.3d 709, 714 (6th Cir. 2006). Summary judgment is proper where “there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). When considering a motion for summary judgment, we must view

the “inferences to be drawn from the underlying facts . . . in the light most favorable to the party

opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); see also Barnes,

449 F.3d at 714.

2. Sovereign immunity does not bar Ashford’s claim for prospective relief

The Eleventh Amendment prohibits suits against states unless they consent to be sued or

Congress, pursuant to a valid exercise of its power, unequivocally expresses its intent to abrogate

sovereign immunity. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98–99 (1984);

Morgan v. Bd. of Prof. Resp. of the Sup. Ct. of Tenn., 63 F.4th 510, 515 (6th Cir. 2023). The

doctrine of sovereign immunity extends to entities acting on behalf of the state, as well as to state

officers acting in their official capacity. Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per

curiam); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). We have previously held

that the University of Michigan is a state agency and is therefore entitled to claim sovereign

immunity. Estate of Ritter by Ritter v. Univ. of Mich., 851 F.2d 846, 851 (6th Cir. 1988).

Sovereign immunity precludes suits against states and their entities or officers for

monetary damages or retrospective relief but permits claims for prospective relief when brought

against state officers in their official capacities. Ex parte Young, 209 U.S. 123, 159–60 (1908);

Edelman v. Jordan, 415 U.S. 651, 668 (1974). “[T]he bottom line” in determining if sovereign

immunity bars a suit is whether granting the relief being sought would “impose a liability which

must be paid from public funds in the state treasury.” Thomson v. Harmony, 65 F.3d 1314, 1320

(6th Cir. 1995) (quoting Edelman, 415 U.S. at 663).

Here, Ashford is suing Gorski and Evans (state actors) in their official capacities for an

injunction against future retaliation and discrimination and for an expungement of his record.

Gorski and Evans claim that sovereign immunity precludes Ashford from prevailing on this

claim, because he seeks retrospective relief.

No. 22-2057 Ashford v. Univ. of Mich. et al. Page 10

We have held that expunging disciplinary records is, as a practical matter, prospective

relief. See Morgan, 63 F.4th at 516–17; Wolfel v. Morris, 972 F.2d 712, 719 (6th Cir. 1992). In

this part of his claim, Ashford does not seek monetary damages or any type of retrospective

relief. Rather, he requests an injunction against any future retaliation and discrimination, and for

all discipline related to the claims in this case to be removed from his record at a job he

continues to hold. He alleges that he has been instructed that “further behaviors of this nature”

will result in escalating discipline, including termination, R. 1 (Compl. at ¶ 83) (Page ID #16),

indicating that, without relief, the constitutional violation alleged will continue to affect him at

his place of work. Looking to the “bottom line” in our Eleventh Amendment jurisprudence,

granting Ashford his requested relief would incur expenses that are, at most, “minimal and

ancillary” to Ashford’s main goals of preventing future discrimination and retaliation and

removing negative disciplinary entries from his record. Thomson, 65 F.3d at 1320–21. The

district court did not err in denying the Defendants’ motion for summary judgment based on

sovereign immunity.

Gorski and Evans also reiterate their argument on appeal that Evans “cannot be sued for

injunctive relief as he is no longer an employee of the University.” Appellants Br. at 20.

However, with respect to a claim against an officer in their official capacity, the suit may

proceed against whoever has replaced Evans in his role as Vice Chancellor. See Kentucky v.

Graham, 473 U.S. 159, 166 n.11 (1985); Fed. R. Civ. P. 25(d); Fed. R. App. P. 43(c). We leave

it to the district court on remand to enter an appropriate order of substitution.

B. Qualified Immunity

1. Standard of Review

As with sovereign immunity, the collateral-order doctrine grants us jurisdiction to

consider an interlocutory appeal for the denial of qualified immunity to public officials, to the

extent that an issue involves a pure question of law. In re Flint Water Cases, 960 F.3d at 322. In

determining whether an official is entitled to qualified immunity, we look at: “(1) whether,

considering the allegations in a light most favorable to the party injured, a constitutional right has

been violated, and (2) whether that right was clearly established” at the time of the violation.

No. 22-2057 Ashford v. Univ. of Mich. et al. Page 11

Bazzi v. City of Dearborn, 658 F.3d 598, 606–07 (6th Cir. 2011) (quoting Smoak v. Hall, 460

F.3d 768, 777 (6th Cir. 2006)); see also Saucier v. Katz, 533 U.S. 194, 200 (2001). We have

discretion over which of the two questions we answer first. Pearson v. Callahan, 555 U.S. 223,

236 (2009). In appeals of rulings on motions for summary judgment, we “adopt the district

court’s recitation of the facts,” Gillispie v. Miami Township, 18 F.4th 909, 912 (6th Cir. 2021)

(citing Adams v. Blount County, 946 F.3d 940, 948 (6th Cir. 2020)), and “cast[] them in the light

most favorable to” the non-moving party, id. (citing Jackson v. City of Cleveland, 925 F.3d 793,

803 (6th Cir. 2019)).

Before we turn to the merits of the district court’s ruling on qualified immunity, though,

we must ensure that we have jurisdiction to hear an appeal of this issue. Gorski and Evans claim

that Ashford failed to establish with the requisite specificity that they were involved in his

suspension. Appellants Br. at 16, 23–24. The district court noted that both individuals appeared

to have testified about at least enough involvement in penalizing Ashford for there to be “a

factual question,” before it denied their qualified-immunity claims. Ashford, 635 F. Supp. 3d at

603. To the extent that there does exist a factual dispute regarding Gorski’s and/or Evans’s

involvement in penalizing Ashford, we lack the jurisdiction to resolve that issue, and leave it to

the district court on remand. See, e.g., Gillispie, 18 F.4th at 917. On appeal, however, Gorski

and Evans also argue that they are entitled to qualified immunity because penalizing Ashford for

his actions did not violate clearly established law. Appellants Br. at 21–23. Because addressing

this issue will not require us to resolve any genuine dispute of material fact, we have jurisdiction

to consider this purely legal question, and we do so below. See, e.g., United Pet Supply, Inc. v.

City of Chattanooga, 768 F.3d 464, 472 (6th Cir. 2014) (stating that even when an individual

raises impermissible disputes of fact, if they “also raise[] the purely legal issue of whether the

plaintiff’s facts show that [an individual] violated clearly established law, ‘then there is an issue

over which this court has jurisdiction[]’” (quoting Quigley v. Tuong Vinh Thai, 707 F.3d 675,

680 (6th Cir. 2013))).

No. 22-2057 Ashford v. Univ. of Mich. et al. Page 12

2. Ashford engaged in private protected speech when he spoke with the

reporter, and was retaliated against for doing so

Before turning to our qualified-immunity analysis, we must determine: (1) whether

Ashford engaged in protected speech as a private citizen when he spoke with The Detroit News;

and (2) whether a reasonable jury could find that he was retaliated against for doing so.

To determine whether a public employee like Ashford has engaged in private protected

speech, we engage in a three-part inquiry: (1) was the relevant speech on a matter of public

concern; (2) was the employee’s speech made pursuant to their official duties; and (3) did the

employee’s interest in speaking, on balance, outweigh the government’s interest in promoting an

efficient workplace and providing public services (“Pickering” balancing). DeCrane v. Eckart,

12 F.4th 586, 594 (6th Cir. 2021). Applying these three factors to Ashford’s speech to The

Detroit News, we conclude that our precedent clearly establishes that speech like Ashford’s

constitutes protected speech.

a. Ashford’s speech was on a matter of public concern

Determining whether speech was on a matter of public concern requires us to examine its

“content, form, and context.” Connick v. Myers, 461 U.S. 138, 147–48 (1983). We have held

that statements reporting “instances of maladministration, to authorities both within and outside

of [an employee’s] chain of command[,]” constitute speech on a matter of public concern.

Buddenberg v. Weisdack, 939 F.3d 732, 739 (6th Cir. 2019). Within the public’s interest in the

government’s effectiveness, how police departments operate is an “obvious[]” public concern.

Solomon v. Royal Oak Township, 842 F.2d 862, 865 (6th Cir. 1988) (citing McMurphy v. City of

Flushing, 802 F.2d 191, 196 (6th Cir. 1986)). We have noted in the past that a public employee

“simply respond[ing] to questions regarding an existing controversy,” rather than soliciting the

media’s attention, can serve as a strong indicator that their speech was on a matter of public

concern. Matulin v. Village of Lodi, 862 F.2d 609, 613 (6th Cir. 1988).

Ashford’s speech to Hunter was about Ashford’s perception that the UM-D Police

Department was covering up a UM-D student’s sexual-assault allegations against one of her

professors. This type of speech, concerning a police department’s apparent mishandling of a

No. 22-2057 Ashford v. Univ. of Mich. et al. Page 13

sexual-assault case, falls squarely within what we have deemed a matter of public concern.

Ashford also did not actively reach out to a news outlet. Rather, he agreed to speak with reporter

Hunter after an unnamed individual gave Ashford’s information to Hunter, and Hunter in turn

called Ashford to see if he would be willing to talk about the matter. The content and context of

the speech suggest that Ashford’s speech to The Detroit News was about a matter of public

concern. See Buddenberg, 939 F.3d at 739.

b. Ashford’s speech was not made pursuant to his ordinary official duties

Employee speech made on a matter of public concern is still unprotected if it was “made

pursuant to [an employee’s] official responsibilities.” Garcetti v. Ceballos, 547 U.S. 410, 424

(2006). Whether speech falls within a public employee’s official duties does not turn solely on

whether the speech contained information they obtained as a result of their employment, Lane v.

Franks, 573 U.S. 228, 239–40 (2014), but depends primarily on whether the speech is

“ordinarily within the scope of an employee’s duties,” Boulton v. Swanson, 795 F.3d 526, 533–

34 (6th Cir. 2015) (quoting Lane, 573 U.S. at 240). To determine whether speech was made

pursuant to a public employee’s ordinary job duties, we look to factors like the speech’s

“impetus,” setting, audience, and general subject matter. Weisbarth v. Geauga Park Dist., 499

F.3d 538, 546 (6th Cir. 2007).

Speech made outside an individual’s chain of command is less likely to be within an

employee’s ordinary job responsibilities, as is speech that an employee’s ordinary job

responsibilities would not require them to make. Buddenberg, 939 F.3d at 740 (stating that an

individual who reported employee conduct outside of her chain of command when her ordinary

duties did not require her to do so was “less likely to be [speaking] within” the scope of her

ordinary job responsibilities); Westmoreland v. Sutherland, 662 F.3d 714, 716, 719–20, 722 (6th

Cir. 2011) (noting that a firefighter’s speech was not made “pursuant to a task that was within the

scope of his official duties,” but rather “as a citizen on a matter of public concern,” when he

spoke as an expert while out of uniform and off-duty at a town meeting about the city’s decision

to cut funding for certain safety devices). Conversely, we have viewed internal escalations of

concerns or grievances as insufficient to establish private speech when the speech directly relates

to or otherwise concerns an employee’s day-to-day duties. Mayhew v. Town of Smyrna,

No. 22-2057 Ashford v. Univ. of Mich. et al. Page 14

856 F.3d 456, 464–65 (6th Cir. 2017) (emphasizing that an individual’s job description required

them to report certain situations and accidents to management in finding that his reporting of

misconduct up his chain of command was speech within the scope of his ordinary

responsibilities); Haynes v. City of Circleville, 474 F.3d 357, 364 (6th Cir. 2007) (ruling that a

handler for the police department’s canine unit spoke pursuant to his official duties when he

submitted an internal memo solely to his supervisor, criticizing cutbacks in canine training).

In Ashford’s case, he was hired by the UM-D Police Department as a general police

officer. Although he had experience on a sex-crimes unit from his time with the Dearborn Police

Department, R. 26-3 (Ashford Resume) (Page ID #1247), UM-D did not hire him as any type of

specialist in that area. His job duties also never involved liaising or otherwise interacting with

the media, reporters, or individuals outside of the UM-D Police Department (and, in fact, he

stated he never received training in this area). See R. 23-18 (Ashford Offer Letter) (Page ID

#1133); R. 23-2 (Ashford Dep. at 74, 228) (Page ID #254, 408) (stating, in part, that he decided

to speak with Hunter because his attempts to bring the investigation’s failures to his supervisors’

attention were unsuccessful, and his duty as a civilian had stepped in). At no point was Ashford

brought in to work on the Stasser case, nor was he involved in any other way. R. 23-7 (PSI

Follow-Up, Interview of Ashford, Dec. 11, 2019 at 2) (Page ID #1053). The greatest exposures

Ashford had to the case before he brought his concerns to Gorski were receiving information

from Wiley that the matter existed on March 1, 2019, and hearing the update in May 2019 that

the case was “closed.” At the point that Ashford agreed to speak with The Detroit News, his

audience was not his supervisors at UM-D, but the general public—and he was speaking about

the police department’s efficiency, an issue that we have identified as one of great public

interest. See Solomon, 842 F.2d at 865; McMurphy, 802 F.2d at 196.

In their motion for summary judgment and on appeal, Gorski and Evans focused their

attention on the fact that Ashford was speaking about information that “owed its existence to his

professional responsibilities and role as a DPS police officer.” R. 22 (Def. Mot. Summ. J. at 18)

(Page ID #161); Appellants Reply Br. at 9. However, Lane v. Franks makes clear that this is not

dispositive of whether speech was made within the scope of employment. 573 U.S. at 240. On

appeal, Gorski and Evans make no additional argument that Ashford was put on or otherwise

No. 22-2057 Ashford v. Univ. of Mich. et al. Page 15

involved with the investigation, nor do they assert that his ordinary job responsibilities included

speaking with the media, reporters, or other external actors. In fact, they allege in their brief that

Ashford “did not, at any point, play a role in the Investigation,” and instead “inserted himself

into the Investigation.” Appellants Br. at 9–10. The district court did not err, based on the

evidence presented on summary judgment, in finding that Ashford’s speech to Hunter was made

outside of his ordinary job responsibilities. Ashford, 635 F. Supp. 3d at 601–02.

c. Pickering balancing favors Ashford’s interest over the government’s

Finally, we must weigh whether Ashford’s interest in speaking with the media about his

concerns outweighs “the interest of the State, as an employer, in promoting the efficiency of the

public services it performs through its employees.” Buddenberg, 939 F.3d at 739 (quoting

Mayhew, 856 F.3d at 462). Here, Gorski and Evans claim that “police departments have ‘an

interest in maintaining an effective police force, free from internal division,’” quoting our

unpublished opinion in Graham v. City of Mentor, 118 F. App’x 27, 30 (6th Cir. 2004).

Appellants Reply Br. at 11. However, we have also stated that “public safety employers [do not]

have a greater weight placed on their interests in order and discipline than other employers have

in their institutional interests.” Mosholder v. Barnhardt, 679 F.3d 443, 451 (6th Cir. 2012).

Gorski and Evans do not, pursuant to our precedent, have any greater interest in regulating

employee speech to promote their force’s efficiency than does any other government employer.

Ashford has an interest in engaging in speech on matters of public concern, and the

public additionally has an interest in hearing speech about how their police departments are

handling cases. See, e.g., Myers v. City of Centerville, 41 F.4th 746, 760–61 (6th Cir. 2022). No

one in the UM-D Police Department reported that “their morale was adversely affected” by

Ashford’s actions. R. 23-4 (Gorski Dep. at 201) (Page ID #750). Nor did anyone say that

Ashford talking with Hunter “had an adverse effect upon Departmental discipline or operation.”

Id. at 201–02 (Page ID #750–51). Absent a significantly stronger showing by Gorski and Evans

that Ashford’s speech has burdened the UM-D Police Department, Pickering balancing supports

Ashford’s free speech interests.

No. 22-2057 Ashford v. Univ. of Mich. et al. Page 16

The evidence on summary judgment suggests that Ashford’s speech was on a matter of

public concern, was not made pursuant to his official or day-to-day duties, and was not shown to

disrupt any important governmental interests. Gorski and Evans do little to argue that Ashford’s

speech was not protected, other than alleging that this right was not clearly established at the

time Ashford spoke to Hunter, Appellants Br. at 21–23, which we address in further detail

below.

3. Ashford’s retaliation claims survive summary judgment

In light of the showing that Ashford engaged in protected speech as a private citizen

when he spoke with Hunter, we now turn to whether he has sufficiently established that he was

retaliated against for doing so. Making a prima facie case of retaliation requires showing that:

“(1) [Ashford] engaged in constitutionally protected speech or conduct; (2) an adverse action

was taken against him that would deter a person of ordinary firmness from continuing to engage

in that conduct; [and] (3) there is a causal connection between elements one and two—that is, the

adverse action was motivated at least in part by his protected conduct.” Dye v. Off. of the Racing

Comm’n, 702 F.3d 286, 294 (6th Cir. 2012) (quoting Scarbrough v. Morgan Cnty. Bd. of Educ.,

470 F.3d 250, 255 (6th Cir. 2006)). Once the prima facie case is made out, the burden shifts to

the defendants to show, by a preponderance of the evidence, that Ashford would have been

suspended even if he had not spoken with Hunter. Id.

Ashford engaged in constitutionally protected speech in talking with The Detroit News.

As a result, UM-D subjected him to an investigation and ultimately suspended him for ten days

without pay. R. 23-7 (Notice of Disciplinary Layoff) (Page ID #1033). Ashford has expressed

the belief that he faced “the threat that [he] would be terminated if [he] continued this matter or

took it any further than what they did.” R. 23-2 (Ashford Dep. at 227) (Page ID #407). On

appeal, Gorski and Evans do not contest that Ashford received a suspension. A person of

“ordinary firmness” would view a ten-day suspension without pay as an adverse action that

deters future, similar speech. See Dye, 702 F.3d at 304 (“The lack of a steady income . . . could

certainly chill or silence a person of ordinary firmness.”)); see also Benison v. Ross, 765 F.3d

649, 660 (6th Cir. 2014) (stating that penalties that “‘impose[] a . . . financial burden’ on the

plaintiffs” constitute adverse action (quoting Dye, 702 F.3d at 304)). Finally, there is a sufficient

No. 22-2057 Ashford v. Univ. of Mich. et al. Page 17

causal link between Ashford’s protected conduct and his suspension, given the fact that the PSI’s

Final Disposition cites Ashford speaking with The Detroit News as the support for UM-D’s

decision to suspend him. R. 23-7 (Final Disposition of PSI) (Page ID #1034).

The burden then shifts to Gorski and Evans to show by a preponderance of the evidence

that they would have suspended Ashford without pay regardless of whether he had spoken to

Hunter. Gorski and Evans fall well short of carrying this burden, because they concede on

appeal that Ashford’s suspension was motivated by his speaking with Hunter. See Appellants

Br. at 21–24; see also R. 23-7 (Final Disposition of PSI) (Page ID #1034). Because Ashford has

made a sufficient showing that he engaged in protected speech and was penalized for doing so, a

jury could find in his favor on his retaliation claims.

4. It is clearly established law in this circuit that public employers cannot

retaliate against their employees for engaging in protected speech

The district court found that Gorski and Evans did not “dispute that Ashford had a clearly

established right to exercise his free speech rights without retaliation,” and subsequently denied

their motion for summary judgment based on qualified immunity. Ashford, 635 F. Supp. 3d at

603. On appeal, Ashford argues that the Defendants have now forfeited their argument that his

right was not clearly established under our precedent. Appellee Br. at 39–40 (citing McPherson

v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997) (holding that “issues adverted to in a perfunctory

manner, unaccompanied by some effort at developed argumentation, are deemed waived”

(quoting Citizens Awareness Network, Inc. v. U.S. Nuclear Regul. Comm’n, 59 F.3d 284, 293–94

(1st Cir. 1995)))).

In their motion for summary judgment, Gorski and Evans made little effort to connect the

facts in the record to our two-pronged test for qualified immunity. See R. 22 (Def. Mot. Summ.

J. at 14–15) (Page ID #157–58). Although they argued that Ashford’s speech was not

constitutionally protected, addressing Saucier’s first prong, they did not appear to relate this

argument to qualified immunity’s second step: whether a reasonable officer would have known

that retaliation in this context would violate clearly established law. Id. at 15–20 (Page ID #158–

63); see Saucier, 533 U.S. at 202. On appeal, they do little more than assert that in this very

specific context (a police officer receiving a ten-day suspension without pay for “violat[ing]

No. 22-2057 Ashford v. Univ. of Mich. et al. Page 18

department policy by leaking confidential information about an active investigation and by

refusing to comply with an order from a superior officer”), Gorski and Evans “acted reasonably

in believing that” Ashford had not engaged in protected speech. Appellants Br. at 22; see also

Appellants Reply Br. at 8–9. Given the Defendants’ scant treatment of this issue, both before the

district court and now on appeal, we hold that they forfeited the argument that our precedent had

not clearly established that Ashford was engaging in constitutionally protected speech.

Even if this argument were not forfeited, though, there is no doubt that there is a clearly

established constitutional right to speak, even as a government employee, 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. Buddenberg, 939 F.3d at 739–40 (finding speech alleging “public corruption . . . [and]

not within [the employee’s] ordinary job responsibilities” was “protected by the First

Amendment” when “‘the relevant government entity [did not have] an adequate justification for

treating the employee differently from any other member of the general public’” (quoting

Garcetti, 547 U.S. at 418)); Westmoreland, 662 F.3d at 718–19. And it is well settled in our

circuit that retaliating against an employee for exercising this free speech right violates the

Constitution. Buddenberg, 939 F.3d at 741 (“We have long recognized that a public employer

may not retaliate against an employee for her exercise of constitutionally protected speech.”);

See v. City of Elyria, 502 F.3d 484, 495 (6th Cir. 2007) (stating that at the time of an employee’s

discipline in 2002, it was “settled” that a public employee had the “right to speak on matters of

public concern without facing improper government retaliation”); Hoover v. Radabaugh, 307

F.3d 460, 469 (6th Cir. 2002) (“[A]s a matter of pure law, the rights here are clearly established:

a reasonable official would know that terminating an employee with the motivation, even in part,

of quieting the plaintiff’s public speech about the illegal activities of the Department violates the

Constitution.”).

Viewing the facts in the light most favorable to Ashford, as the non-moving party,

Ashford has shown that he was engaging in protected speech when he spoke to Hunter about the

UM-D’s missteps in handling a sexual-assault case. Reasonable officers should have known that

penalizing him for doing so would violate his First Amendment rights. Because Ashford’s rights

No. 22-2057 Ashford v. Univ. of Mich. et al. Page 19

were clearly established at the time he was suspended without pay, we hold that the officers

involved in his suspension are not shielded by qualified immunity.

III. CONCLUSION

On the record before us, Ashford engaged in protected private speech when he agreed to

speak with a reporter about the UM-D Police Department’s handling of a sexual assault. He has

made out a sufficient showing that he was retaliated against for doing so, which violated a

clearly established right under our precedent. In seeking a remedy for his suspension now,

Ashford has requested prospective relief from the state officers in their official capacities, in the

form of an expungement of his record and an injunction preventing them from engaging in any

future retaliation or discrimination. Sovereign immunity does not bar this claim from

proceeding. Likewise, qualified immunity does not shield from liability the individual officers

involved in violating Ashford’s constitutional rights, because it is clearly established law that

public employees speaking outside of the scope of their responsibilities on a matter of public

concern are engaging in protected speech as private citizens. For the foregoing reasons, we

AFFIRM the district court’s denial of the Defendants’ motion for summary judgment based on

sovereign and qualified immunity.