RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 17a0103p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

M ARK W. M AYHEW , Plaintiff-Appellant ,

v

.

T OWN OF S MYRNA , T ENNESSEE ; H ARRY G ILL , Defendants-Appellees

. ┐ │ │ │ │ │ │ │ ┘ No. 16-5103

Appeal from the United St ates District Court for the Middle District of Tennessee at Nashville. No. 3:14-cv-01653—Aleta Arthur Trauger, District Judge. Argued: January 25, 2017 Decided and Filed: May 11, 2017
Before: GILMAN, GRIFFIN, and STRANCH, Circuit Judges.

_________________ COUNSEL

ARGUED: Douglas B. Janney III, Nashville, Tenness ee, for Appellant. Robert M. Burns, HOWELL & FISHER, PLLC, Nashvill e, Tennessee, for Appellees. ON BRIEF: Douglas B. Janney III, Nashville, Tennessee, for Appellant. Robert M. Burns, Brooke McLeod Coplon, HOWELL & FISHER, PLLC, Nashvill e, Tennessee, for Appellees.

_________________ OPINION

_________________ GRIFFIN, Circuit Judge. Mark Mayhew alle ges the Town of Smyrna, Tennessee, and its city manager, Harry Gill, terminated his employ ment in retaliation for e ngaging in two distinct acts protected by the First Amendment: reporting violations of federa l and state regulatory requirements at the town’s wastewater-treatment plant; and voicing concerns regarding Smyrna’s 

### >No. 16-5103 Mayhew v. Town of Smyrna, Tenn., et al. Page 2

hiring practices. The districtcourt disagreed and entered su mmary judgment in defendants’ favor. We affirm in part, reverse in part, a nd remand for proceedings consistent with this opinion.

I.
Plaintiff was a long-time employee of Smyrna’s wastewater-treatment plant. The plant is subject to extensive regulation by the Enviro nmental Protection Agency (“EPA”) and the Tennessee Department of Environment and C onservation (“TDEC”), in cluding various waterquality permit and reporting requirements under the Clean Water Act’s National Pollutant Discharge Elimination System (“NPDES”). See generally 33 U.S.C. § 1342. TDEC administers the plant’s NPDES permit, which sets the parameters for the limits on certain agents or chemical compounds that the plant is allowe d to discharge into public wate rways. The regulatory regime requires the plant to conduct vari ous water and other treatment by -products tests, provide these results to the EPA (by way of an “annual slud ge report”) and TDEC (by way of a “monthly operating report” (“MOR”) and a “monthly discharge monitoring report” (“DMR”)), and report any discharges in violation of its permit’s parameters to TDEC.
Mayhew was the plant’s lab s upervisor, overseeing the collect ion and analysis of test samples as part of the plant’s reporting requirements. His du ties included: (1) ensuring lab activities met EPA and TDEC quality-control standards and followed “proper procedures and documentation”; (2) performing all work necessary to maintain the plant’s NPDES permit; (3) maintaining records in compliance with applicable regulations; (4) reviewing daily records “to ensure accuracy and comple teness”; (5) completing MORs and DMRs; and (6) reviewing and documenting “all OSHA, Federal, State and City regul ations, as they impact the wastewater plant laboratory and report[ing] any appr opriate situations and accidents immediately to management.”
Smyrna also mandated that Mayhew obtain a TDEC “Grade IV” wastewater-treatment certification. This certification required Mayhewto “comply with the laws, rules, permit requirements, or orders of any governmental ag ency or court which govern the water supply system or the wastewater system he/she ope rates.” TDEC Rule 0400-49-01-.11(2). Under TDEC’s certification requirements, Mayhew could have hi s certification revoked if he failed toNo. 16-5103 Mayhew v. Town of Smyrna, Tenn., et al. Page 3

“comply with the monitoring, sampling, analysis, or reporting requirement s for a water supply system facility or wastewater sy stem facility,” failed to “notif y” TDEC of conditions that are “violative of a standard of water quality prom ulgated by any government agency,” or prepared “laboratory analysis results for the system that . . . [c]ontain inaccurate data and are known or
should be known . . . to be false.” TD EC Rule 0400-49-01-.11(2 )(b-d), (4)(c).
As lab supervisor, Mayhew learned that one of the plant’s fellow supervisors, chief operator Leland Noble, was engaging in questionabl e conduct related to th e plant’s collection, recording, and reporting of its wa ter samples. This conduct incl uded: (1) pressuring Mayhew to either not report certain results or change results to be submitted to the EPA and TDEC; (2) refusing to allow Mayhew to sample on certain days based on plant conditions to avoid bad results, thus “cherry picking” data; (3) changing Mayhew’s collect ed test results; (4) expanding sample sizes to “throw out any bad numbers,” butreporting as if the sample size was smaller; and (5) logging incomplete tests as complete.
Mayhew reported his concerns about Noble’s actions to then-plant manager Mike Roberts beginning in February 2014. He went to Roberts first because he wanted to “work[]
within the chain of command.” Roberts responded to these c oncerns by looking into them himself. Noble’s conduct “increas ed in intensity and activity” to almost a “daily basis” from February to June 2014.
Following Roberts’s resignation in June 2014 af ter an investigation by Smyrna officials on an unrelated matter, Mayhew began reporting his concerns to Roberts’s supervisors, the
assistant director of utilitie s Mike Parker, utilities operation manager Aubrey Blanks, and director of utilities Mike Strange. Strange and Parker relayed Mayhew’s complaints to Smyrna’s city manager, defendant Harry Gill. Strange and Parker also conducted follow-up conversations with several employees at the plant who raised vari ous concerns about ma nagement (including about Noble) during their initia l investigation into Roberts’s misconduct. When Mayhew raised
his concerns about Noble in these conversati ons, Strange and Parker responded by telling him that “they would take care of this matter.” Ac cording to Mayhew, Strange and Parker “ma[de] some progress” in this regard.No. 16-5103 Mayhew v. Town of Smyrna, Tenn., et al. Page 4

But then, Gill promoted Noble to plant manage r, and promoted Gill’s nephew, Kyle Gill, to chief operator. He did so wi thout advertising the pos itions to the public, requiring the two to apply, or permitting anyone else to apply, interview, or be considered for the positions. And he did so, according to Mayhew, despite them failing to possess certain qualif ications set forth in the respective job descriptions.
Following these promotions in the face of Mayhew’s reports about Noble’s conduct, Mayhew “felt [he] had no other alternative” but to “document this with [Smyrna Human Resources Director] Jeff Craig” and with Gill. In his words, it was “imperative to escalate my documentation activities that management was alerte d to.” Accordingly, he emailed Strange and Parker on July 1, 2014, complaining about Noble’s and Kyle Gill’s lack of qualifications, their hiring outside of “normal hiring pr otocol,” and commenting that he found “it disturbing that the Town Manager would promote someone [(Noble)] that [sic] is clearly responsible for the present working conditions of having to work in an environment of po ssible retaliation which include hostilities in the workplace, the very same person that [sic] put pressure on [him] to hide violations, of which [he] refused to do.” Mayhew characterized Noble’s hiring as putting Mayhew “in a precarious positio n,” based on his concern that Noble would attempt to manipulate, retaliate agai nst, or fire him.
Strange forwarded Mayhew’s email to Gill , who was “furious,” and “offended that [Mayhew] was questioning [his] ethics with respect to who[m he] hired.” Gill found the email to be “insubordinate” and “disrespectful,” as it “ implied that [Mayhew] would be unwilling to work with [Noble],” and directed Strange to suspend Mayhew.
Mayhew, Gill, Strange, Craig, and Smyrna’s town attorney, Jeff Peach, met on July 7, 2014. The parties significantly disp ute who said what at this meeting, but we view the facts in the light most favorable to Mayhe w. Gill “started right off” by telling Mayhew how “upset he was” about the email and that “[w]e will see if you still have a job today.” When asked whether Mayhew could work with Noble, Mayhew stated “Yes , I would – I’m able to work with him, and I will do my very best, sir.” Gill then accuse d Mayhew of being insubordinate and “bitter against Leland Noble,” to which Mayhew responded: “No, sir. I’m not bitte r towards him. This has nothing to do with personal issues. It has to do with what I reported.” Gill also told MayhewNo. 16-5103 Mayhew v. Town of Smyrna, Tenn., et al. Page 5

that he could “hire any way he sees fit.” Gill terminated Mayhew’s employment at the end of the meeting. He did so for two reason s: (1) “there wasn’t really a full declaration that he was willing to work with [Noble]. He said, I would do my best”; and (2) “his work ethics could be [compromised] if he had to work with [Noble].”
Mayhew commenced this litigation shortly th ereafter, alleging defe ndants violated the
First Amendment and Tennessee’s Public Protect ion Act by terminating his employment in retaliation for his reporting activities. Following discovery, the district court granted summary judgment in favor of defendants as to plaintiff’ s First Amendment retaliation claim and declined to exercise supplemental jurisdiction over his state-law claim. Having refiled his Public Protection Act claim in Tennessee state court, Ma yhew appeals only the district court’s dismissal
of his First Amendment claim.

II.
We review the district court’s gr ant of summary judgment de novo. Rogers v. O’Donnell , 737 F.3d 1026, 1030 (6th Cir. 2013). Summary judgment is proper when there is no genuine dispute as to any material fact and the mova nt is entitled to judgmen t as a matter of law. Fed. R. Civ. P. 56(a). Although we view the ev idence in a light most favorable to the nonmovant, Rogers , 737 F.3d at 1030, “the plain language of Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a show ing sufficient to establish the
existence of an element essentia l to that party’s cas e, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986).

III.

A.
It is long “settled that a state cannot condition public employment on a basis that infringes the employee’s constitutionally protec ted interest in freed om of expression.” Connick v. Myers , 461 U.S. 138, 142 (1983). However, because “government offices could not function if every employment decision b ecame a constitutional matter,” id. at 143, a public employee’s First Amendment rights are narrower than the citizenry at large. See, e.g. , Pickering v. Bd. ofNo. 16-5103 Mayhew v. Town of Smyrna, Tenn., et al. Page 6

Educ. , 391 U.S. 563, 568 (1968). That is, “the Firs t Amendment protects a public employee’s right, in certain circumstances , to speak as a citizen addressing matters of public concern.”
Garcetti v. Ceballos , 547 U.S. 410, 417 (2006) (emphasis added).
A public employee alleging First Amendment reta liation must satisfy three requirements. Evans-Marshall v. Bd. of Educ. , 624 F.3d 332, 337–38 (6th Cir. 2010). First, the employee must speak on “matters of public concern.” Id. at 337 (citing Connick , 461 U.S. at 143). Second, the employee must speak as a private citizen and not as an employee pursuant to his official duties.
Id. at 338 (citing Garcetti , 547 U.S. at 421). Third, the employee must show that his speech interest outweighs “the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Id. (quoting Pickering , 391 U.S. at 568).

B.
We begin with a procedural question: whether the Supreme Court’s most recent First Amendment public employment case, Lane v. Franks , 134 S. Ct. 2369 (2014), abrogated
Connick and our circuit’s subsequent cas e law holding that the questi on of “whether . . . a public employee’s speech is protected [i]s one of law, not one of both fact and law.” Fox v. Traverse City Area Pub. Sch. Bd. of Educ. , 605 F.3d 345, 350 (6th Cir. 2010).

In Connick , the Supreme Court unequivocally stated th at “[t]he inquiry into the protected status of speech is one of law, not fact.” 461 U.S. at 148 n.7. However, the Supreme Court’s holding in Garcetti “that the question of whether a statem ent was spoken as a public employee or as a private citizen for First Amendment purposes was ‘a practical one,’ requiring a fact-specific inquiry into the ‘du ties an employee actually is expected to perform,’” re sulted in a circuit split as to “whether the inquiry into the protected stat us of speech remains one purely of law as stated
in Connick, or if instead Garcetti has transformed it into a mixed question of fact and law.” Fox , 605 F.3d at 350 (quoting Garcetti , 547 U.S. at 424–25 and Posey v. Lake Pend Oreille Sch. Dist.
No. 84 , 546 F.3d 1121, 1127 (9th Cir. 2008)).

As we summarized in Fox , the Third, Seventh, Eighth, and Ninth Circuits have concluded that “whether the speech in question was spoken as a public employee or a private citizen presents a mixed question of fact and law,” while the D.C., Fifth, and Tenth Circuits have stayedNo. 16-5103 Mayhew v. Town of Smyrna, Tenn., et al. Page 7

true to Connick ’s holding. Id. (citations omitted). We found this circuit split to be “ultimately
irrelevant” in Fox because “[i]n our post- Garcetti opinions we have consistently described the question of whether, in a First Amendment re taliation action, a public employee’s speech is protected as one of law, not one of both fact and law.” Id. at 350. We also noted, given the summary judgment standard, a distri ct court is required to take the plaintiff’s factual allegations
as true. In Fox , however, there were not any genuine issues of material fact regarding the scope of the plaintiff’s employment. Id. at 351 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986)). Following Fox , we have consistently analyzed the protected status of an employee’s conduc t as solely one of law. See, e.g. , Dixon v. Univ. of Toledo , 702 F.3d 269, 274 (6th Cir. 2012); Westmoreland v. Sutherland , 662 F.3d 714, 718 (6th Cir. 2011); see also Rorrer v. City of Stow , 743 F.3d 1025, 1047 (6th Cir. 2014) (relying on Connick , among others, for this proposition).
Mayhew argues Lane changes this landscape. The issue before the Court in Lane was “whether the First Amendment protects a pub lic employee who provides truthful sworn testimony, compelled by subpoena, outside the scope of his ordinary job re sponsibilities.” 134 S. Ct. at 2378. The Eleventh Circuit concluded th at, because the employee testified in a public corruption trial about matters “l earned of . . . in the course of his employment . . . , Garcetti requires that his testimony be treated as the speech of an employee rather than that of a citizen.”
Id. at 2379. The Supreme Court reject ed this broad reading, emphasizing Garcetti ’s focus on the

scope of an employee’s duties, not where an employee learns of the content of his speech:

But Garcetti said nothing about speech that simply relates to public employment or concerns information learned in the course of public employment. . . . [T]he mere fact th at a citizen’s speech concerns information acquired by virtue of his public employment does not transform that speech into employee— rather than citizen—speech. The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties

. Id. (emphasis added). We have subsequently characterized Lane as “narrowing” Garcetti by reason of the Supreme Court’s addition of “‘or dinary’ as a modifier to the scope of an employer’s job duties, and by Lane ’s admonishment that speech is not transformed into employee—rather than citizen—speech simply because it concerns information acquired byNo. 16-5103 Mayhew v. Town of Smyrna, Tenn., et al. Page 8

virtue of the speaker’s public employment.” Boulton v. Swanson , 795 F.3d 526, 534 (6th Cir. 2015) (brackets, citations, and quotation marks omitted).
Seizing upon Lane ’s repeated references to “ordinar y job responsibilities” and “ordinary job duties,” 134 S. Ct. at 2375, 2377–78, 2381, and Boulton ’s “narrowing” characterization, Mayhew argues “ Lane necessarily requires fact finding into whether parts of speech are within the scope of an employee’s ‘ordinary’ or usual dutie s.” To this end, he asks that we revisit our
determination in Fox and follow some of our sister circuits’ application of the mixed question of
facts and law standard. 1 See, e.g. , Flora v. Cty. of Luzerne , 776 F.3d 169 (3d Cir. 2015); Dahlia v. Rodriguez , 735 F.3d 1060 (9th Cir. 2013) (en banc); Posey , 546 F.3d at 1127.
We have consistently applied the question of law standard post- Lane , see, e.g. , Holbrook
v. Dumas , 658 F. App’x 280, 284 n.3 (6th Cir. 2016); Devlin v. Kalm , 630 F. App’x 534, 537 (6th Cir. 2015) (per curiam), and see no reason to accept Mayhew’s request. Lane neither acknowledged Connick ’s statement that “[t]he inquiry into the protected status of speech is one of law, not fact,” 461 U.S. at 148 n.7, nor referenced the ci rcuit split we identified in Fox

. Simply, Lane did not address the issue and did not overrule Connick . It is not our prerogative to set this binding precedent aside until the Supreme Court tells us we must. See Bosse v.
Oklahoma , 137 S. Ct. 1, 2 (2016) (per curiam); see also Agostini v. Felton , 521 U.S. 203, 237 (1997) (admonishing lower courts against “conclud[ing the Suprem e Court’s] more recent cases have, by implication, overruled an earlier preceden t”). Nor do Mayhew’s ci tations to decisions
from our sister circuits s upport the extension he requests— they either rely upon pre- Lane authority for the mixed question of law and fact standard , see, e.g. , Coomes v. Edmonds Sch.
Dist. No. 15 , 816 F.3d 1255, 1260–61 (9th Cir. 2016); Flora , 776 F.3d at 175, or were decided
before Lane

. See, e.g. , Dahlia , 735 F.3d at 1072; Posey , 546 F.3d at 1129. See also Fox , 605 F.3d at 350 (collecting authorities).

1 Mayhew first raised this argument before the district court in his sur-reply. Ordinarily, we would not address this untimely argument. See, e.g. , Travelers Prop. Cas. Co. of Am. v. Hillerich & Bradsby Co. , 598 F.3d 257, 275 (6th Cir. 2010). However, because the districtcourt permitted the sur-reply and addressed the merits of Mayhew’s argument, and because the parties have fully addressed the merits on appeal, we make an exception to our general rule. See Salling v. Budget Rent-A-Car Sys., Inc. , 672 F.3d 442, 444 (6th Cir. 2012).No. 16-5103 Mayhew v. Town of Smyrna, Tenn., et al. Page 9

In sum, the district court did not err by c oncluding that the determination as to whether Mayhew engaged in protected speech was one of law.

IV.
With this preliminary question resolved, we turn to whether Mayhew’s complaints about Noble’s misconduct fell outside the scope of hi s ordinary job respons ibilities pursuant to Lane , thus constituting speech as a citizen fo r First Amendment purposes. In construing Lane , we have commented that although Garcetti carves out an exception to First Amendment protection for speech that “owes its existence to a public em ployee’s professional re sponsibilities,” this exception “must be read narrowly as speech that an employee made in furtherance of the ordinary responsibilities of his employment.” Boulton , 795 F.3d at 534. Or, in Lane ’s words, “[t]he critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it me rely concerns those duties.” 134 S. Ct. at 2379.
Determining whether an employee speaks as a private citizen or as a public employee can be challenging. See Boulton , 795 F.3d at 533. The Supreme C ourt has not “articulate[d] a comprehensive framework for defining the scope of an employee’s duties in cases where there is
room for serious debate.” Garcetti , 547 U.S. at 424. Instead, the “p roper inquiry is a practical
one.” Id. To aid in the assessment of a public empl oyee’s statement, “we must consider both its
content and context.” Fox , 605 F.3d at 348. In our pre- Lane case law, we recognized several
non-exhaustive factors to consider , including: the speech ’s impetus; its setti ng; its audience; and its general subject matter. Handy-Clay v. City of Memphis , 695 F.3d 531, 540 (6th Cir. 2012). We have continued to utiliz e these “who, where, what, whe n, why, and how” considerations post- Lane , see, e.g. , Holbrook , 658 F. App’x at 288; Stinebaugh v. City of Wapakoneta , 630 F. App’x 522, 527 (6th Cir. 2015); Alomari v. Ohio Dep’t of Pub. Safety , 626 F. App’x 558, 567 (6th Cir. 2015), which inform the answer to Lane ’s “critical question”: “whether the speech at issue is itself ordinarily with in the scope of an employee’s duties.” 134 S. Ct. at 2379.
Mayhew’s reporting of Noble’s misconduct to Robe rts and then to those in City Hall falls within his “ordinary job responsibilities.” Af ter all, his job was to oversee all water-sample testing required by state and fe deral regulations, including the plant’s recording and reportingNo. 16-5103 Mayhew v. Town of Smyrna, Tenn., et al. Page 10

requirements. Most notably, he was required to “review and document all OSHA, Federal, State and City regulations, as they impact the wastewater plant laboratory and report any appropriate
situations and accidents immediately to management. ” (Emphasis added.) And report to management he did.
Mayhew’s rebuttal is not persuasive. In hi s deposition, Mayhew took the position that

any reporting of illegal activity was outside the scope of his job duties because he had never done so before and his job was to ensure the a ccuracy of reports, not to submit reports about others’ misconduct. Mayhew thus contends his complaints about Noble’s conduct were borne out of his civic and “moral respons ibility,” not his job functions.
This crabbed reading of his admitted job duties does not comport with Lane ’s instruction
that we focus on his “ordinar y job responsib ilities” and Garcetti ’s mandate that we look at job
duties practically . Mayhew’s entire function at the plant was to ensure water-testing standards were in compliance with federal and state regulat ory mandates. Yes, his job description did not specifically call upon him to report illegal conduct to management. But, in the context of “all OSHA, Federal, State and City regulations,” it re quired him to “report any appropriate situations and accidents immediately to management.” Mayhew does not dispute this—he admits he reported up the chain of command and did so b ecause Noble’s conduct “interfer[ed] with [his] ability to do []his job.” He also acknowledged that his TDEC certification required him to additionally report violations (t o TDEC, which he did not).

Nor does Garcetti ’s caution against parsi ng job descriptions in order to determine the scope of an employee’s professional dutie s assist Mayhew, 547 U.S. at 424–25, for job descriptions are not irrelevant. Indeed, we have repeatedly recognized the converse: “ad hoc or de facto duties can fall within the scope of an employee’s official resp onsibilities despite not appearing in any written job description.” Weisbarth v. Geauga Park Dist. , 499 F.3d 538, 544 (6th Cir. 2007). It would certain ly be an anomaly to altogether ignore the role job descriptions play for purposes of defining an employee’s job duties—especially in a case like this, where the employee does not contest any of the formal aspects of the job description requiring the employee to report issues to management. It would also be in discord with our recent reiteration
in Boulton that “most jobs carry with them an i nherent duty of intern al communication.”No. 16-5103 Mayhew v. Town of Smyrna, Tenn., et al. Page 11

795 F.3d at 533; see also Housey v. Macomb Cty. , 534 F. App’x 316, 322 (6th Cir. 2013) (rejecting the argument that an employee’s job du ties did not include reporting misconduct when his responsibilities included en suring compliance with policies, reporting “trouble spots and recommending corrective actions”); Haynes v. City of Circleville , 474 F.3d 357, 364 (6th Cir. 2007) (police officer tasked with training po lice dogs was “carrying out his professional responsibilities” and not speaking as a priv ate citizen when he complained—without any obligation to do so—about the eff ects of reduced training).
We also do not agree with Ma yhew that his reporting outside the plant to others within the city government fell outside his ordinary job responsibilities. This argument runs headlong into our precedent involving es calating reports up the organizati onal chart: “[W]hen a public employee raises complaints or concerns up the chain of command at hi s workplace about his job duties, that speech is undertaken in the course of performing his job.” Fox , 605 F.3d at 350 (citation omitted). It also asks us to view his job impractically : he was required to report “to management,” which is not limite d to those at the plant. Mayhew admitted his reports outside the plant went to “upper management,” were al l within his chain of command, and were about matters that were part of his ordinary job responsibilities. Handy-Clay ’s distinction between reports in and outside that employee’s depa rtment—a case Mayhew tells us is on point—is therefore not helpful to him. 695 F.3d at 542.
Allegations of violations of federal and state regulations should be taken seriously, especially when they involve the possibi lity of risk to the general public. Lane highlights the value we place on permitting public employees to comment on matters concerning their employment as they are “uniquely qualified to comment on matters concerning government policies that are of interest to the pub lic at large.” 134 S. Ct. at 2380 (quoting San Diego v. Roe , 543 U.S. 77, 80 (2004)). Our holding that Mayhew did not engage in protected speech when he complained about Noble’s misconduct should not be construed as author izing public employers to terminate employees complaining about illegal conduct. But given pl aintiff’s explicit job responsibilities to overse e the plant’s water-sampling regime a nd report any issues regarding that regime, the district court correctly granted su mmary judgment in favor of defendants as toNo. 16-5103 Mayhew v. Town of Smyrna, Tenn., et al. Page 12

Mayhew’s First Amendment claim to the extent that it was grounded in his reports of Noble’s
misconduct.

V.
Mayhew’s last issue on appeal is whether the district court erred in concluding he failed to advance a claim that he engaged in protect ed conduct when he complained about Smyrna promoting Noble and Kyle Gill, irrespective of its typical hiring practices and their qualifications (or lack thereof). We agree with Mayhew that the district court committed reversible error by holding Mayhew’s complaint never pled this ground in support of his First Amendment claim, and that even if he did, it failed on the merits.

A.
The district court first dismissed Mayhew’s claim on a procedural ground: “Mayhew did not explicitly argue that these complaints cons titute a basis for his cl aim of First Amendment retaliation that is separate from, and independent of, his reporting of violations at the Plant until he improperly raised this argument in his Su r-Reply.” Rather, despite acknowledging “the factual allegations regarding Mayhew’s concer ns about the promotions are detailed in the Complaint,” the district court read Mayhew’s First Amendment claim to encompass only his complaints about Noble’s conduct:
The gravamen of the Complaint is that the plaintiff was retaliated against for speaking out about water treatment processing and reporti ng violations, not about failure to adhere to hiring and promotion policies. This new theory truly tortures the language of the Complaint and the plaint iff’s articulation of his theory of the case set out in the Initial Case Manageme nt Order and may not be injected into the case this late in the game. We do not read Mayhew’s complaint so narrowly.
The complaint more than adequately put defendants on notice of a First Amendment claim grounded in Smyrna’s hiri ng practices within the meaning of Federal Rule of Civil Procedure 8. Paragraphs 10-13 de tail Mayhew’s very specific c oncerns regarding the manner in which Gill promoted Noble and Kyle Gill, including that they did not meet minimum qualifications for their respective promotions, and that Smyrna did not follow its normal job-No. 16-5103 Mayhew v. Town of Smyrna, Tenn., et al. Page 13

posting process in awarding these promotions. The next paragraph then sets forth the complaint’s central theory: Gill fired Mayhew fo r sending his July 1, 2014, email. As described in Paragraph 14, that email documen ts Mayhew’s three concerns:
On July 1, 2014, at 3:43 p.m., Mr. Mayhew sent an email to Mr. Strange and Mr. Parker documenting Defendant Gill’s circ umvention of “normal hiring protocol” and practice; reiterating that he had re ported concerns aboutMr. Noble’s conduct that “management was alerted to,” incl uding Mr. Noble’s pressuring him to “hide violations, which Mr. Mayhew refused to do”; and reiterating his fear of “retaliation” for reporting, opposing, and re fusing to remain silent about illegal activities. (Brackets omitted.) Given this factual specifici ty connecting Mayhew’s allegation that Smyrna did not properly follow hiri ng protocol, to complain ing about this in his email, and to being fired for sending his email, the complaint unambiguouslyprovided defendants w ith notice of a First Amendment claim based on these factual grounds. See Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007) (a complaint need only “give the defendant fair notice of what the claim is and the grounds upon which it rests”) (c itation and ellipsis omitted); cf. Johnson v. City of Shelby , 135 S. Ct. 346, 346 (2014) (per curiam) (the Fe deral Rules of Civil Procedure “do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted”). The district court e rred in concluding to the contrary.

B.

We review the district court’s alternativ e holding—that “even if the court were to consider Mayhew’s statements about the promoti ons to be a separate basis for Mayhew’s claim of retaliation, they are not actiona ble under the First Amendment”—de novo. Gillis v. Miller , 845 F.3d 677, 689 (6th Cir. 2017). The district c ourt concluded Mayhew’s email represented a “personal concern regarding his job security” a nd his “dissatisfaction with Gill’s decision to promote Noble,” and was therefore best characte rized as “an internal employee grievance.” It also reasoned that Mayhew’s complaints did not address a matter of public concern because he raised them only internally, as opposed to selecting a “mode of communication . . . that would ‘bring to light actual or potential wrongdoi ng or breach of public trust.’” (quoting Connick , 461 U.S. at 148). The districtcourt reasoned improperly.No. 16-5103 Mayhew v. Town of Smyrna, Tenn., et al. Page 14

“Speech involves matters of public concern whenit can be fairly cons idered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of ge neral interest and of value and concern to the public.” Lane , 134 S. Ct. at 2380 (internal quotation ma rks and citation omitted). “Whether an employee’s speech addresses a matter of public c oncern must be determined by the content, form, and context of a given statement, as revealed by the whole record.” Connick , 461 U.S. at 147–48. We examine “the point of the speech in question,” Boulton , 795 F.3d at 534 (citation omitted), as “the pertinent question is not why the employee spoke, but what he said.”
Westmoreland , 662 F.3d at 719 (citation omitted). It is not “necessary for the entire expression to address matters of public concern, as l ong as some portion of the speech does.” Id. (citing
Connick , 461 U.S. at 149).
We have “recognized that the most difficult cas es to adjudicate are ‘mixed speech’ cases, i.e., those in which the speech for which the em ployee claims First Ame ndment protection arises in the context of an employment grievance or other personnel dispute, but where the employee claims that some part of the speech also touches upon matters of public concern.” Farhat v. Jopke , 370 F.3d 580, 590 (6th Cir. 2004). And, follo wing the Supreme Court’s lead, we have consistently reiterated that alle gations of public corrupt ion “are exactly the type of statements that demand strong First Amendment protections.” Handy-Clay , 695 F.3d at 543–44 (collecting cases). This was a tenet of Lane as well, where the Court stat ed “[t]he content of Lane’s testimony—corruption in a public program and misuse of state funds—obviously involves a matter of significant public conc ern.” 134 S. Ct. at 2380.
There is no doubting Mayhew’s complaints sound like an employee raising a personal grievance about a disliked superv isor and bleak future job prosp ects. One need look no further, as the district court did, to some of the content of his email:
I’m going to do the best I can but after this most recent activity of bypassing hiring protocol and who was promoted and in the manner they were promoted, I don’t feel my position with the Town of Smyrna is secure. This latest activity of placing Leland in a position over me has suddenly placed me in a precarious position. I feel Leland will attempt to get rid of me and replace me with someone he can control and manipulate. I feel he will hide NPDES violations if he thinks he can get away with it, as evidenced by the last 5 monthsNo. 16-5103 Mayhew v. Town of Smyrna, Tenn., et al. Page 15

of activity. I’ve seen how Leland has done other people in the past . I feel he will retaliate against me as it is just his nature. This is why I feel it necessary to document. (Emphasis added.)
Yet, the email also extensively documents his co ncerns with the hiring process in general, raising Noble’s misconduct (and Sm yrna’s alleged disregard for th ese actions) as an example for why Smyrna should have followed its normal hiring procedures:
It appears the Town of Smyrna has applied unfair and unequal practices in filling the two highest paid positions at the Smyrna Wastewater Treatment Plant on 6/27/14. It appears the Town Manager ha s bypassed normal hiring procedures to promote his nephew, Kyle Gill, as well as align him for the [plant] Manager position, by not allowing a nyone else to apply for these two positions and circumventing normal hiring protocol. The final catalyst that ignited this type [of] email being generated, was Leland Noble being placed in position of authority over me as the new [plant] Manager, of which he didn’t have to apply for or meet qualifications. Leland Noble does not meet the qualifications for this ne w position, as he does not have a college degree. I was disqualified for not having a degree when I applied for the [plant manager] position in 2004. I stated I have no interest in the Manager position this time but these positions should have been posted like every other position ever was, requiring same qualifications. Als o, our department started using interview panels last year which obviously was not done this time either. Bypassing normal hiring protocol, especially after management was alerted to issu es with Mr. Noble magnifies this hiring action. I find it disturbing that the Town Manager would promote someone that is clearly responsib le for the present working conditions of having to work in an environment of possi ble retaliation which include hostilities in the workplace, the very same person that put pressure on me to hide violations, of which I refused to do. (Emphasis added.)
In short, Mayhew may have had personal reasons for saying some of what he said, but his allegation that Smyrna failed to follow its ow n hiring policies when it allegedly promoted two unqualified individuals—one being the subject of Mayhew’s co mplaints, and the other the decisionmaker’s nephew who was complicit inNoble’s illegal activities—reflects his
“communications were not made merely for personal reasons.” Handy-Clay , 695 F.3d at 544 (emphasis added); see also Banks v. Wolfe Cty. Bd. of Educ. , 330 F.3d 388, 895 (6th Cir. 2003)No. 16-5103 Mayhew v. Town of Smyrna, Tenn., et al. Page 16

(holding complaints about “favoritism/nepotism in hiring, the lack of posting and interviewing for job vacancies, and the improper certification of staff” were speech on matters of public concern).
Defendants resist this conclusion by argui ng Mayhew’s statements went solely up the chain of command, and that he did not allege any violations of the law when raising concerns about the hiring practices. It is on this primar y basis they distinguish Banks , contending (as did the district court) that our statement in Banks about reporting nepotism a nd violations of hiring protocol being matters of public concern are dist inguishable because, there, the plaintiff reported out to a state agency about vi olations of state law. 330 F .3d at 896–97. But we have never
drawn such a narrow distinction when examining the public-concern prong because “constitutional protection for speech on matter s of public concern is not premised on the communication of that speech to the public.” Handy-Clay , 695 F.3d at 544 (citation omitted). Nor must courts limit reports of wrongdoing to illegal acts, for a pub lic concern includes “ any matter of political, social, or ot her concern to the community.” Connick , 461 U.S. at 146 (emphasis added).
For these reasons, the district court erred in holding Mayhew’s complaints regarding Smyrna’s promotions practices did not c onstitute speech about a public concern.

VI.
Accordingly, we affirm in part, reverse in part, and remand for pr oceedings consistent with this opinion. 2

2 Defendants did not contest below (or on appeal) Mayhew’s contention that (a) Noble’s misconduct constituted a matter of public concern, and (b) his complaints regarding Smyrna’s hiring practices were made in his capacity as a private citizen. Nor di d defendants assert that, under the Pickering balancing test, their interests would nonetheless trump Mayhew’s protected conduct. Having failed to preserve these issues for appellate review, we express no opinion on them.