NOT RECOMMENDED FOR FULL
- TEXT PUBLICATION File Name: 16a0191n.06
Case No. 1 5

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UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

ROBERT TOMPOS , Plaintiff

- Appellant ,

v. CITY OF TAYLOR, et al

. , Defendant s
- Appellees

. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

BEFORE: BOGGS , SILER , and BATCHELDER , Circuit Judges.
SILER , Circuit Judge. Robert Tompos (“Tompos”), former fire chief for the City of Taylor, appeals the district court’s grant of summary judgment to his employers, the late Mayor Jeffrey Lamarand (“the Mayor”) and the City of Taylor (“the City,” collectively “Defendants”), on his First Amendment retaliation claim. For the following reasons, we AFFIRM

.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY Tompos served as fire chief for the City from 2011 until his termination in 2013. During that time, the Mayor made numerous budget reductions that, according to Defendants, were enacted to reduce the City’s almost $5,000,000 deficit . As a result of the budget cu ts, more than thirty employees in the F ire D epartment were laid off in 2011 and 2012.Case No. 15

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- Throughout his time as fire chief, Tompos made numerous complaints and reports to the Mayor, to the Taylor City Council, and to the local news media. In particular, he pe rsistently complained that: (a) Protective clothing and gear used by firefighters [were] out of date, out of compliance with applicable safety standards, dangerous to the firefighters using it, and could cause significant injury or death to firefighters; (b) Redu ced staffing of the Fire Department slowed response times and posed a danger to the public; (c) Reduced staffing of the Fire Department posed a danger to responders; (d) Reduced staffing meant that the Fire Department could not operate within applicable safety standards; and (e) Defendant Lamarand wrongfully removed $60,000 from the Fire Department’s portion of the City budget. Tompos claims that the Mayor, both personally and through his agents, warned Tompos to “watch what he said to the media”; repeatedly threa tened to terminate him; removed and reassigned his duties; intercepted his reports to the City Co uncil; and ultimately prevented him from reporting directly to the City Council. Defendants terminated Tompos in 2013, citing budgetary concerns a nd t he elimin ation of his position. Tompos filed suit against the Mayor and the City , alleging violation of the Michigan
Whistleblower Protection Act and First Amendment retaliation under 42 U.S.C. § 1983. T he
district court granted summary judgment to Defendants on Tompos’s § 1983 claim and remanded his state whistleblower claim to the Wayne County Circuit Court. Tompos now appeals the district court ’s holding that he was a “policymaker” under Rose v. Stephens , 291 F.3dCase No. 15

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- 917 , 921 (6th Cir. 2002), and thus was not enti tled to First Amendment protection for his policy

related statements. 1
STANDARD OF REVIEW
Th is court reviews a district court’s grant of summary judgment de novo

. Farhat v. Jopke , 370 F.3d 580, 587 (6th Cir. 2004)

. DISCUSSION
I. First Amendment Retaliation Un der § 1983
To make out a prima facie claim for First Amendment retaliation under § 1983, a plaintiff
must show that (1) he “ engaged in constitutionally protected speech, ” (2) he “ was subjected to adverse action or was deprived of some benefit, ” and (3) “ the protected speech was a

‘ substantial ’ or a ‘ motivating factor ’ in the adverse employment action. ” Brandenburg v. Hous. Auth. of Irvine , 253 F.3d 891, 897 (6th Cir. 2001) (quoting Mt. Healthy City Sch

. Dist. Bd. of Educ. v. Doyle , 429 U.S. 274, 287 (1977 ) ). Further, t o prove that first prima facie element

— that his speech was constitutionally protected

— a public employee must establish that (1) “he was speaking as a private citizen, rather than pursuant to his official duties ,” (2) “ his speech involved

a ma tter of public concern ,” and (3) “ his interest as a citizen in comme nting on the matter outweighed ‘ “ the interest of the State, as an employer, in promoting the efficiency of the public services it p erforms through its employees.”’ ” Westmoreland v. Sutherl and , 662 F.3d 714, 718

– 19 (6th Cir. 2011) (quoting Garcetti v. Ceballos , 547 U.S. 410, 417 (2006) (quoting Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205 , 391 U.S. 563, 568 (1968)) ).

1 The district court did not consider the Defendants’ arguments regarding causation and qualified immunity. Because of this, and because there are already ample grounds to affirm, this court need not address those arguments on appeal. See Stoudemire v. Mich igan Dep’ t of Corr. , 705 F.3d 560, 576 (6th Cir. 2013) (“Absent ‘exceptional circumstances,’ we normally decline to rule on an issue not decided below.” (quoting St. Marys Foundry, Inc. v. Emp’ rs Ins. of Wausau , 332 F.3d 989, 996 (6th Cir. 2003)).Case No. 15

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- In addition to this Pickering balancing of public employees’ interests against those of governmental employers, the Supreme Court “has recognized that the government has a[n]

. . . interest in securing employees who will loyally implement the policies of its democratically
elected off

icials.” Rose , 291 F.3d at 920

– 21 (citing Elrod v. Burns , 427 U.S. 347, 367 (1976)). Accordingly, “[a]lthough the Court determined that political patronage dismissals normally violate the First Amendment in this line of cases, it also created the exception that termination of public employees in policymaking or confidential positions may be based solely on their political affiliation without violating the First Amendment.” Id. at 921 (citing Elrod , 427 U.S. at 367 ; Branti v. Finkel , 445 U.S. 507 (1980) )

. In Rose , we “addressed the question of whether the Elrod / Branti exception applies to the situation where a policymaking or confidential employee is discharged on the basis of actual speech rather than political affiliation.” Id. 2 On that issue, we held that “where a confidential or policymaking public employee is discharged on the basis of speech related to his political or policy views, the Pickering balance favors the government as a matter of law.” Id. In reaching this conclusion, we reasoned that
the rul e we adopt today simply recognizes the fact that it is insubordination for an employee whose position requires loyalty to speak on job

- related issues in a manner contrary to the position of his employer, and, as the Supreme Court has recognized, “employees may always be discharged for good cause, such as insubordination

. . . .” Elrod , 427 U.S. at 366. In this situation an individualized balancing of interests is unnecessary.

2 Plain tiff argues that the Elrod / Branti exception does not apply since political affiliation is not required for an employee to be appointed fire chief. As will be further discussed below, however, the alleged irrelevancy of political affiliation to the fire chief position would not preclude its classification as a confidential or pol icymaking position to which the Rose presumption would apply. See Rose , 291 F.3d at 924.Case No. 15

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- Id. at 923. Thus, if a public employee’s policymaker status and policy

- related statements dispositively tip the Pickering balance in favor of the government as a matter of law, then that employee cannot establish the protected

- speech element of his prima facie claim for First
Amendment retaliation

— and his claim must fail. 3 In light of this framework, the district court correctly identified the two crucial issues in the instant case: “(1) whether Plaintiff occupied a policymaking or confidential position; and (2) whet her Plaintiff’s speech addressed matters related to politics or policy.”
II. Policymaker Status Under Rose
There are four general categories of positions to which the Elrod / Branti exception applies: Category One: positions specifically named in relevant federal, state, county or municipal law to which discretionary authority with respect to the enforcement of that law or the carrying out of some other policy of political concern is granted; Category Two: position s to which a significant portion of the total discretionary authority available to category one position

- holders has been delegated; or positions not named in law, possessing by virtue of the jurisdiction's pattern or practice the same quantum or type of d iscretionary authority commonly held by category one positions in other jurisdictions; Category Three : confidential advisors who spend a significant portion of their time on the job advising category one or category two position

- holders on how to exercise their statutory or delegated policymaking authority, or other confidential employees who control the lines of communication to category one positions, category two position s or confidential advisors;

3 In Stinebaugh v. City of Wapakoneta , No. 14

- 4262 , 2015 WL 7003757 (6th Cir. Nov. 10, 2015), we affirmed the district court’s denial of summary judgment to the public employer of a fire captain that spoke as a citizen on a matter of public concern. That case is not particularly relevant to the instant case, however

— nor is it cited by either party

— given that the Elrod / Branti exception was not implicated by the facts or the firefighter’s position in Stinebaugh

.Case No. 15

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- Category Four: positions that are part of a group of p ositions filled by balancing out political party representation, or that are filled by balancing out selections made by different governmental agents or bodies.

Rose , 291 F.3d at 924 (quoting McCloud v. Testa , 97 F.3d 1536, 1557 (6th Cir. 1996 ) ) . In light of the discretionary authority that the fire chief exercises with respect to the enforcement of fire prevention laws and the implementation of F ire D epartment policies, the district court correctly
classified fire chief as a C ategory T wo position, 4 and thus the Elrod / Branti exception applies. According to t he Fire Department rules and regulations , which Tompos admitted in his deposition was a description of the fire chief’s duties, the fire chief is charged with numerous responsibilities, including : (1) “control[ling]

. . . all assignments of all firefighters and employees in the Department”; (2) disciplining and removing firefighters; ( 3 ) “direct[ing] the observance and enforcement of all fire prevention laws of the State of Michigan, and the ordin ances of the City of Taylor”; (4) “keep[ing] the Mayor and City Council fully acquainted with

. . . all

. . . pertinent information to his/her office”; (5) investigating reports of “violations of law or ordinances, rules and regulations, or orders governin g the department ” ; and ( 6 ) “ visit [ ing ], or caus[ing] to be visited,

. . . all divisions of the Fire D epartment to inspect the efficiency of the
D epartment. ” Tompos has conceded that he was authorized to fulfill these responsibilities. This court has previo usly held that similar jobs entailing comparable responsibilities qualified as policymaking or confidential positions under the Elrod / Branti exception. For instance, in Dixon v. Univ. of Toledo , 702 F.3d 269 (6th Cir. 2012), the exception applied to the

4 Tompos mistakenly asserts that “[t]he trial court improperly held that Fire Chief was a category one position.” Actually, the district court noted that “the position is not named in law” (which rules out C ategory O ne as a possibility), but “the fire chief possesses the same discretionary authority as a Category One position

— mainly, the carrying out of policies of political concern” (which clearly echoes C ategory T wo’s “possessing

. . . the same quantum or type of discretionary authority commonly held by c ategory o ne positions” language).Case No. 15

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- As sociate Vice President for Human Resources who “was responsible for answering grievances, issuing disciplinary and corrective action,

. . . supervising approximately forty employees,

. . . making presentations at town

- hall meetings[,]

. . . . [and] recomme nding, implementing, and overseeing policy.” Id. at 276. In another case, an assistant chief examiner of the Civil Service Board whose “work appear[ed] to have had the potential to substantially impact the daily implementation of the city’s diversity polic ies” qualified as a policymaking position under
Elrod / Branti

. Silberstein v. City of Dayton , 440 F.3d 306, 320 (6th Cir. 2006). Surely, a fire chief empowered to “direct the observance and enforcement of all fire prevention laws of the State of Michigan, and the or dinances of the City of Taylor” similarly qualifies as a policymaking role. Tompos resists this characterization of his position, and repeatedly attempts to downplay his discretionary authority by describing how the Mayor or City Council may appr ove or repudiate certain of the fire chief’s decisions. However, the fact that the fire chief exercises authority delegated and circumscribed by the Mayor in no way precludes classifying the position of fire chief as a policymaking employee. See Latham v. Office of Att ’ y Gen. of Ohio , 395 F.3d 261, 269 (6th Cir. 2005) (“[W]here, as here, the employee exercises significant authority on behalf of a policymaker (even with close supervision), where the employee is responsible for making important policy impleme ntation recommendations to a policymaker, and where the inherent duties of the employee are broad and limited primarily by the discretion of the policymaker, it is likely that the employee is herself a confidential or policymaking employee
under Elrod .”). Were it otherwise, only the highest echelons of agency authority would be considered policymaking positions, and the Elrod / Branti exception would be largely eviscerated. Tompos’s weighty responsibilities clearly constitute “ discretionary authority with re s pect to the enforcement of th[e] law or the carrying out of some other policy of political concern”Case No. 15

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- ( C ategory O ne language), and thus the position of fire chief “possess[es]

. . . the same quantum or type of discretionary authority commonly held by [a] cat egory one position[] ” ( C ategory T wo language). Rose , 291 F.3d at 924 (quoting McCloud , 97 F.3d at 1557)

. And finally, even if there were any uncertainty about whether Tompos’s discretionary authority amounted to that of a C ategory T wo position, “[a] gover nment position is not required

. . . to fall neatly within one of the categories to be entitled to the Elrod

– Branti exception. ” Sowards v. Loudon C ounty , Tenn. , 203 F.3d 426, 436 (6th Cir. 2000) . “[I] f there is any ambiguity about whether a particular posi tion falls into any of [the four categories] , it is to be construed in favor of the governmental defendants when the position at issue is unclassified or

non
- merit under state law per the Rice canon. ” McCloud , 97 F.3d at 1557 (citing Rice v. Ohio Dep’t of Transp. , 14 F.3d 1133, 1143 (6th Cir. 1994) ) . Thus, the district court did not err in concluding that “it is clear that Plaintiff occupied a policy[] making position and the first requirement of the Rose analysis is met. ”
III. Policy
- Related Speech Next, we must determine whether Tompos’s speech addressed matters related to politics or policy . As in the Rose case, “[t]his inquiry is also easily satisfied in this case,” as his numerous statements to the media and City Council “clearly related to [fire] department [and mayoral] policies.” 291 F.3d at 924

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. Tompos protests that he “did not speak out on budget decisions or budgetary processes”; “his statements to the press and City Council [were] about safety issues affecting Taylor citizens,
e.g. , slower response times, defective turnout gear, and lack of firefighters to man trucks,

. . . not political or polic y views.” However, t he funding and staffing deficiencies that Tompos so tirelessly decried to the media and City C ouncil were inextricably bound up in the Mayor’sCase No. 15

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- budgetary policies. And as this court emphasized in Rose , “[w] hen such an employee speaks in a manner that undermines the trust and confidence that are central to his position, the balance
defi nitively tips in the government’ s favor because an overt act of disloyalty necessarily causes significant disruption in the working relationship between a c onfident ial [or policymaking] employee and his superiors.” 291 F.3d at 923. Accordingly, given Tompos’s status as a policymaking employee, and because Tompos’s statements were policy

- related, the district court did not err in granting summary judgment to the City

. AFFIRMED.