1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206
ELECTRO NIC CIT

ATION: 2004 FED App . 0158P (6th C ir.) File Name: 04a01 58p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________ K ENNETH F ARHAT ,

Plaintiff- Appellant
,

v.

J ANET J OPKE , in her individual and official capaci ty; M AUREEN K ELLY , in he r i nd iv id ua l c ap ac it y; P AM H OOD , in her individual capaci ty; T ROY S CHOOL D ISTRICT , Defenda nts-Appe llees. X - - - -> , - - - - - - - - - - N No. 02-1896

Appeal from the United States District Court for the E astern D istrict of Michiga n at Detr oit. No. 01-72333—John Corbett O’Meara, District Judge.

Argued: December 11, 2003 Decided and Filed: May

28, 2004 2 Farhat v. Jopke, et al. No. 02-1896

* The Honorable Willi am O. Bertels man, Unit ed States Distr ict Judge for the Eastern Distri ct of Kentucky, si tting by designation. Befor e: ROGERS a

nd COOK, Ci

rcuit Judg es; BERTELSMAN, District Judge. *

_________________ COUNSEL
ARGUED: Timothy M. Holloway, Taylor, Michig an, for A p pellant. Ernest R. Bazzana, PLUNKETT & COONEY, Detroit, Michigan, William F . Young, WHITE , SCHNEI DER, BARI

D, YOUNG

& CHI ODI

NI, Okemos, Mic higan , for Appellees. ON BRI EF: Timothy M. Ho ll ow ay, Taylor, Michig an , for Appe llant. Er nest R. Bazzana, PLUNKETT & COONEY, D etroit, Michigan, Wil liam F. Yo ung, Jeffrey S. Donahue, WHITE, SCHNEI DER, BARI

D, YOUNG

& CHI ODI

NI, Okemos, Michiga n, for Ap pellees

.

_________________ OPINION

_________________ BERTELSMAN, District Judge. The Appellan t, Kenneth Farha t, appeals from the d

istrict court’s grant of summary judgment to the def

endants. This a ction arises from the terminationof Farhat from his position as a custodian for the Troy School Dis trict.
Farhat raises four issues on appeal: (1) he was discharg ed inretaliation for exercise of his First Amendment right s; (2) he was de

nied due p

rocesswhen the school board refused to grant a post-term inati on hearing in which he could deal directly with the board; (3) an order not to speak to other employees

was an invalid prior restrai nt on his speech; and (4 ) Appellee Hood is liable under a conspiracy theory forNo. 02-1896 Farhat v. Jopke, et al. 3

providing informationto Appellee Kelly to aid in un

lawfully depriving Farhat of his rights. The district court found that no constitutional violation s had occurred and gra nted defe ndants ’ motions fo r summary

judgmen t. For the

reasons set forth below, we

AFFI RM the judg

ment of the

district c ourt.
FACTUAL BACKGROUND Appellant Kenneth Farhat was employ

ed as a custodian by the Troy School Dis trict for

approxima

tely 15 years. H e was discharged

on September

18 , 2000 and

initiated this lawsu

it againstthe school district, its superintendent, a n as sistant principa l, and a fellow custodian who is also a union representative. Appellant brought this action pursuant to 42 U.S.C. § 1983. Appellan t ’s employment history is significant and factors into the asserted justification for th e actions of the school district. Appellant had

a check ered em ploy ment histor

y with the Troy School District. The re cord reflec t s that, from at least 1997 forward, Appellant had a history of confrontational b ehavior as well as hostile and accusatory communications directed toward the school d

istrict, it s officia

ls, co-employee s and toward persons affiliated with t he unio n. Appellant received numerous warnings and other discipline in respon se to specific behaviors tha t school officials found to be disruptive to, and inappropri ate for, th e workin g envir onment. Appellant typically responded to such corre c tive action with aletter, usually directed to the author of the warning or reprimand. All of Appellant’s responses containe d primari ly personal opinions and conc lusions tha t were di rected against specific individua ls with whom he had ha d a disag reemen t. For exam ple, A ppellant routinely ref erred to others as “sick and demen ted,” “ign o rant and abusive,” “mentally ill,” “mindless criminals,” “liars,” “lazy and pampered,” “alcoholic,” “insane,” “ignorant,” “dy sfunctional,” “mentall

y ill freak,” “jack ass,”

and similar terms. The context of such 4 Farhat v. Jopke, et al. No. 02-1896
epithets will be addressed later in this opinion in greater detail.
InJanuary 1997, Appellant, then a union stewa rd, attended
a grieva nce mee ting. Th e recor

d refle cts that his behavior at the meeting

was inap

propria te and thre atening

to others

. Appellant received a

warning letter

from the Superintendent that explicitly explained to him that this type of c onduct would not be tolerated and, if it continued in the future, that he could face more severe sanc tions, up to and including termination.
InApril 1998, Appellant received another written reprimand

for his conduct towar d th e school district’s executive di re ct or an d a se cr et ar y. His conduct was described
as obnoxious, loud and threatening. In response, A p pellan t claimed that the state ments of the executive director were lies and wer e intended

as discr imination a

gainst h im due to his affiliationwi th the u nion. He c laimed tha t he did not

lose control butthat

it was the school official who lost control at the me eting.
InMa y - June of 1999, officials of the Michigan Education Association(“MEA”

or “th e union”) corresponded and discussed their conce rns ab out an upcoming union meeting with Appel l ant and his potential for workplace violence. They expressed concern about their safety and stated that they
were se ek ing outside support and information about what optio ns they

had to protect them selves if Appellan t became violent.
InJanu ary

of 2000, Appellant wrote a letter to the Superintendent

claiming that he was going to sue the district for libel and slander. He also claimed that he was f orced in to a meeting where he wasthreatened with discipline for having
a weapon at a union meeting and at the workplac e. Appellant furt her asserted that these “liars” and “cowa rds” had continued to attack his reputation and that he intended to sue. A gain in January of 2000, Appellant threa tened to f

il eNo. 02-1896 Farhat v. Jopke, et al. 5

grievances and to take additional act ion because he did not get what he wanted.
Y et agai n, on February

24, 2000, Farhat wrote to the “incompetent

administration” claiming that h e was wrongf ully denied a position be cause he

threate ned laws uits and grieva nces. He also state d that he had been wrongf ully discip lined

for uncooperative behavior. He cla imed it wa s others who were

uncoope rative, not he, as he wa s “the be st custodianin Troy Schools . . .” an d “ the best union representative in Troy

Schools, bar none.”
OnFebrua

ry 24, 2000, t

here wa s a sig nificant incident b etween Appellan t a nd anothe r employ ee/unio n r epresentative, Appellee

Pam Hood. A

ppellant ’s action s in regard to this inci dent pre cipitate d his termi nation. O n this occasion, Appellant was clearly unhappy about

being denied
a position he wanted. Appellant phoned Hood, while she was at work, and claimed that

this was her fault. Within a short per iod of time, F arhat c alled Hoo d a secon d tim e an d allege dly threatened her. Hood interpreted Farhat’s threats as threats of violence. Appe llant allege dly made statements such as, “When I get throug

h with you, y

ou won’t be driving a bus
or doing c ustodial work.” Af

raid to le ave the room for fear that Appellant was coming t o the build

ing to follo w thro ugh
onhis threa

ts, Hood c ontacte d a school official who instructed her to contact

the polic e. Hood then locke d hersel f in a room until the police arrived.
The follow ing day , Appella nt was susp ended wi

th pay to allow for an investigation of the Fe bruary 24, 2000 in

cident.
OnMarch 21, 2000, a meeting was scheduled for Appellant to have an opportuni

ty to explain his

behavior. Present

at this meeting were Appellant, Assistant Principal Ma ur ee n K el ly, and AssistantSuperintendent Mike Williams. Appellantwas represented

at the meetingby u nion representatives Joe Cusmano, DominicAsaro and Mel Sledzinski. However, due to Appellant’s uncontrolled, explosive and rude behavior, the 6 Farhat v. Jopke, et al. No. 02-1896

1 The f ul l t ext of t hi s l ett er i s at

tac hed h ere to a s Appe ndi x A. meeting was recessed at the s ugg estion of his union representative. Appellant was given several opportuni

ties to speak privately with his repre sentative s befo re they de cided to end the me eting.
Another hearing was held on

Apr il 14, 2000. In a letter fromthe Super

intenden t, Appella nt was ad vised th at after two writtenreprima

nds for i nappropriate behavior and two disciplinary

hearings, he would

be given y

et another chance. However, becaus e the school district found Appellant’s behavior to be threatening, intimidating, and disruptive , it g av e him the option of attending an anger management course , plu s a 10 -d ay s us pe ns io n w it ho ut pa y, o r 1 5 d ays withoutpay if he did not attend the anger manageme

ntcourse. Appellant was instr

ucted not to speak t

o othe r employees during his suspension. In this letter, moreover, Appellant was specific ally

advised that

further conduct

of this na ture wou ld not be tolerated.
OnMay 11, 2000, Appellant re sponde d b y letter, stating that he considered the letter from the Superintendent to be a “joke,” and claiming that it was illegal. He claimedthat all the allegations against him were lies. He claimed that Hood, other employees, and the

school of

f icials had been plotting againsthim. He sta

ted that h e has th e flawe d chara cter tra it of tal king “fa st and loud” and that this trait was being used against him. 1

This letter is fi l led with vituperative remarks about the school district, specific

employ ees, the union and

specific union representatives, and claims of collusion and corruption. The same can be said of

his previous letters and conduct. The letter is not spec ific with reg ard to the charges of collusion or corruption.No. 02-1896 Farhat v. Jopke, et al. 7

2 The f ul l t ex t o f th is le tt eris atta ch ed h er et o as App en di x B. OnMay 18, 2000, Appellant sent a letter to Lu B attagl ieri, the uni on p res id ent . In this letter, Appellant complained that his union repres entative s did not investigate his complaints as he believed they should. He also claimed

th ey wer

e purposef ully not investigating because they were in collusion with the school district. He referred to Hood as a “demented ands ick human

being” and state d that he, Farha t, was th e “only honest union r epresent ative in the city .” He al so re fe rr ed to th e A ss is ta nt Pr in ci pa l, Ap pe ll ee Ma ur ee n K el ly, as “mentally ill.” Appellant further stat ed t hat he believed the union representatives were creating obstacles f or the expre s s purpose of covering up corru pt contract negoti ations; preferentialtreatment of the corrupt representatives resulting inprivatization, loss of

bidding r ights, lo ss of seni ority

rights, unwarranted

disc i pline, loss of medical benefits, and loss of sick days; and a

hostile environment of dissensionand cha os. He claimed t

hat he wa s disciplined beca use he ch

ose to expose the union’s and the representatives’ collusion with the employer. He did

not offer any

examples of his allegations of corruption

against the union except for what had happ ened to him. 2 Appel l ant copied this letter to three other union officia ls, including Hood. Hoo d, c oncerned about the statemen ts in the le

tter, tur ned it ove r to the Sup erinten

dent.
OnJune 1, 2000, App ellee Ma ureen K elly wrote to Joseph C usmano, a union representative, and stated, “We have serious concerns about what Mr. Farhat has w ritten and we need to meet wi

th him so tha

t he has a due proc ess hearing.” As Appellant was on medical leave, these of ficialsdecided

to wait un til he was released to return to work to continue the investigation and hold a due process hearing

. OnSeptember 18, 2000, Appellant was terminated from his employ ment. The letter of termination from the 8 Farhat v. Jopke, et al. No. 02-1896
Superinte ndent, Appellee Janet Jopke, stated that Appellant “crossed over the line” in h is letter of May 18, 2000, and that he is “simply incapable or refuse[s] to recognize the inap p ropriate

ness of [his] conduct.” The Superintendent specific ally

stated tha

t she was not c oncerne d with Appellant’s statemen

ts about the union o r unio n repres entative s. However, his statements and c ommen ts about school of

ficials a nd employees we

re “abusive,” “caustic,” and “grossly

insubordinate” to her

pr ior wa rnings and directives, specifically her April 17, 2000 letter.
OnNovember 1, 2000, following Appellant’s filing of a grievanceregarding his termination, a g rievance hearing

was held. Present for the hea ring were Appellee Kelly , Steven Amburgfor the union , the attorne y f or the school distri ct, Craig Lange, a nd the attorney for

Appellant, Jerry Hay

mond. Appellant failed t o appear at this hearing. The hea ring proceed e d

in his absence, however, and the gr ievance was denied.
OnNovember 6, 2000, Appellant demanded arbitration. Pursuant to his request and the collective ba rgain ing agree ment, the case

proceeded

to arbitration before a neutral arbitrator. The record before the cour t does no t prov ide the exact date of the arbitration. However, the record does show that Appellant

attended the arbitration, as did representatives of the school district and the union. The parties reached a tentative settlement on a l l claims, w ith Appell ant pres ent. However, the settlement was subsequently r ej e cted by Appellan t. Thereafter, the union

withdrewits representation of him. Appellant’s next challenge to the school dis trict wa s to file this lawsuit. The United States District Court for the Eastern District of Michigan, Southern Division, heard Appellant’s motion for par

tia l s ummary

judgmen t, Hood’s motion to dismiss or for summar y ju dgment, and the remaining defend ants ’ motions for summary judgment ( the school distric t and officia

ls named therein) . The distr ict cour t heldNo. 02-1896 Farhat v. Jopke, et al. 9

that Appellant’s speech

was not protected, that therewas no constitutional viola

tion up on which t

o base a § 1983 clai

m, and that all defendants were entitled to summary judgment. This appeal followed.
STANDARDOF REVIEW
As this case is before us on appeal from the district court’s grant of summar

y ju dgment, our revi ew is de novo

. Equitable LifeAssur. Soc’y v. Poe , 143 F.3d 1013, 1015 (6th

Cir. 1998). Summary judgmen t is appro

priate w here “t he plead ings, depositions, answer s t o interrogatories, and admissions on file, together

with the affidavit s, if

any, show that there

is no genuine issue as to

any materia l f act” as to an essential element of the n on-moving party ’s case. Fed. R. Ci v. P. 56(c). An issue of fact is “genuine” if a r easonable person could return a verdict for the non-moving party

. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (19 86). After the moving party

has satisf ied its burden, the burden shifts to the non-moving party

to set forth “specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co.
v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). Where there are no disputed, material facts, we de termine, de novo , whether the district court properly applied the substantive law. Se e Sutton v. Cleveland Bd. of Educ. , 958 F.2d 133 9 , 1345 (6th Cir. 1991).
FIRST AM

ENDMENT R

ETALIATION
To establish a prima facie case of First Ame ndment retaliation

under 42 U.S.C. § 1983, Appellant m ust demonstr ate that: (1) he was engage d in a cons t itutionall y protected activity; (2) he wa s subjected to a dverse action or deprived of some benefit; and (3) the protected speec h was a “substan tial” or “motivating factor” i n the adverse action. Leary v. Daeschner , 349 F.3d 8 88, 897 (6th Cir. 2000) (citations omitted). 10 Farhat v. Jopke, et al. No. 02-1896

The framework for analyzing a F irst Amendment retaliation
caseis wel l-e st abl is hed . In Rodgers v. Banks , 344 F.3d 587 (6th Cir. 2003), this court

recent ly s ummarized

this analy

sis:
While public employees may not be required

to sacrifice their First Amendmen

t free sp eech ri ghts in or der to obtain or continue their employme nt, Rankin v. McPherson , 483 U.S. 378 , 383 , 107 S.Ct. 2891, 97 L.Ed.2d 315 (1 987)(citing Pe rry v. Sindermann , 408 U.S. 593, 597, 92 S.Ct. 2694, 33 L.Ed 2d 570 (1972)), a state is afforded greater

leeway to control speech that threatens to undermine the sta

te’s abil ity t

o perfor m its legi timate function s. See United States v. Nat’l Treas ury Employees Union , 513 U.S. 454, 475 n. 21, 11 5 S .Ct. 1003, 130 L.Ed.2d 964 (199 5 ). There fore, in determiningwhether

a public employer has violate d the First Am end ment by firing

a public employee

for engaging in speech, t

he Sup reme Court has instructed courts to enga

ge in a t hree-s t ep in quiry. First, a c ourt must ascertain whether the relevant sp eech addressed a matter of public concern. See Connick v. Me yers , 461 U.S. 138, 143, 103 S.Ct. 1684, 75 L.Ed. 2d 708 (1983). If the answer is ye s, then the court must balance the interest s of the public employee , “ as a citize n, in commenting up on matters of public concern and the interest of the Sta

te, as an empl oyer, in promoting the efficiency of the public services it per form s throug h its employees

. ” Pickering v. Bd. of Educ. , 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed. 2d 881 (1968). Finally , the court must deter

min e whether th e employee ’s speech was
a substantial or motivating factor in the employer’ s decis ion t o take the

adverse employ ment acti on aga

inst the employee. Mt. Hea lthy City Sch. Dist. Bd. of Educ.
v. Doyle , 429 U.S. 274, 287, 97 S.Ct . 568, 50 L.Ed.2d 471 (1977 ); Perry , 209 F.3d at 604.
Id. at 596.No. 02-1896 Farhat v. Jopke, et al. 11

In th e case now before the court, it is not contested tha t Appellant’s letter of

May 18, 2000, c

ulmin ating the even

ts des c ribed above, w as a subst

antial an d motivatin

g fact or in his terminat i on. The letter of termination from the Superintendent

to Appella

nt spe cifically stated tha

t he was being terminated for the expression in that letter, as well as for other spe cific ins tances o f unacc eptable conduct. This meets the third step of the test as outlined above: that Appellant’s expression in the May 18 letter was a motivating factor in the adverse employ ment action.
There remain f

or our considera

tion th e other two steps of the inquiry, the public conce rn step and t

h e Pickering balanci ng test.
PUBLIC CONCERN
Whether the speech at issue involves a mat ter of public
concern is a question of law for the court, Bonnell v . Lorenzo , 241 F.3d 800, 809-10 (6 thCir.), cer t . denied , 534 U.S. 951 (2001), althoug h there may be some fa ctual questions for a jury if it is disputed whether the expression occurred or what words were specifically

stated. See gen erally Waters v. Churchill, 511 U.S. 661 (1994). Our rev iew of the lower court’s decisionon this issue is de novo

. Dambrot v. Central Mich. Univ. , 55 F.3d 1177, 1182 (6th Cir. 1995).
The district court

here did not expressly rule on the public
concern issue, but

seemed t

o base its decision on the Pickering balanci n g inquiry noted a bove. However, this issue has been raised by a

ll partie s to this app eal.
Indetermining whether expression is a matter of pu bli c concern, we are g

u id ed by Connick v

. Myers, 461 U.S. 138 (1983) , wh ich we ha

ve noted i s “the Supr

eme Court ’s most instructive case on this issue.” See Cockrel v. Shelby County Sch. Dist. , 270 F.3d 1036, 1050 (6th Cir. 2001), cert. denied, 537 U.S. 813 (2002). 12 Farhat v. Jopke, et al. No. 02-1896

In Connick , an assistant prosecutor, upset over her pending transfer within t he New Orleans District Attorney ’s office, circulated a

questionnaire to her fellow employ ees soliciting their views on various issues. These issues included “office transfer poli cy, office moral e, the need fo r a gr ie vance co mmittee, the level of confidence in supervisors, and whether employ ees fel t pressur ed to wo rk in political campaigns.” Id. at 141. The Court hel d that, o f the several topics raised by the

questionnaire, only the

matter of pressure to work in po litical c ampaig ns was a matter of public concern. The Court observed:
When employee e

xpression cannotbe fairly considered
as relating to

any matte

r of politi cal, social, or other
concern to the commun ity , gover nment off icials sho uld enjoy wide latitude in managing their offices, w ithout intrusive oversight by

the judiciary in the name of t he First Amendment. Perhaps the government e mployer’s d i smissal of the worker may not be fair, but ordinary dismissals

from government service which violate no fixedte nur e or applicable statute or regulation ar e not subject to judicia

l r ev iew even if the reasons for the dismissal are alleged to be mistaken or unreasona ble.
Id. at 146 (internal citations omitted) (emphasis added).
The Court further instructed that “[w]hether an

employee’s speech address es a ma

tter of public concern must be d etermined

by t he conte nt, form, and conte

xt of a giv e n statemen t, as revealed by

the whol e record .” Id. at 147-48. Moreover, the entire speech does not have to address matters of public concern, as long

as some portion of the speech does
so. Id. at 149. Applying this content-based test, the Court concluded that the “focus”

of the as sistant pr

osecutor ’s questionnaire, with the exception

of the que st ion per taining to pressure on employees

to work on political campaigns, was her personalNo. 02-1896 Farhat v. Jopke, et al. 13

3 The Co urt held that the o ne is sue it f ound to be a

matt er of pub lic concern was not act ionab le bec ause plaintiff’s case failed to pass the Picker ing balan cing test. Id. at 15 4. See discus sion, infra

. dispute with her superiors over

the proposed transfer and thus was not a matter of public concern:
While discipline and morale in the workplace arerelated to an agency ’s efficient performance of its duties , t he foc us o f [plaintiff’

s] questions [in the

ques tionnaire ] is not to evalua te the pe

rformanc e of the of

fice but ra th e r to gather am munition fo r another r ound of controversy with her superiors. These questions reflect one employee’s

dissatisfaction with a transfer and an attempt to turn that displeasure into a cause celèbre.
Id. at 148 (emphasis added). Summarizing this ruling, the Court stated:
We hold only that when a

public employee spea

ks not as
a citizen upon matt ers of public concern, but instead as
anemployee upon matters o nly of personal inter

est, absent the most unusual circumstances, a federa l court is notthe appropriate forum in which to review the wisdom of a person

nel deci sion ta

ke n b y a public agency allegedly in reaction to the employe e’s behavior.
Id. at 147. 3

Inthe twenty-one yea

rs since Connick , this court has had
numerous opportuni

ties to app ly that decis ion to dete rmin e when a public employee ’s speech is a mat ter o f “public
co ncern.” In so doing, we have recognized that the mos t difficul tcases to adjudicate are “mixe d speech” cases, i.e., those in whichthe speech for which the employ ee clai ms First Amendment

protection arises in the context of an employment

grievance or other personnel dispute, but where 14 Farhat v. Jopke, et al. No. 02-1896

4 See, e.g. , Bank

s v. Wolfe County Bd. of Educ. , 330 F. 3d 888, 894 (6th C ir. 200 3); Vau ghn v. Law renceb urg Pow er Sys. , 269 F.3d 703, 716 (6th C ir. 200 1); Bon nell v. Loren zo , 241 F. 3d 800, 812 ( 6t h Cir.) , cert. denied , 534 U.S . 951 (20 01)

. See also Leary v. Daeschner , 349 F. 3d 888, 899 (6th Cir. 2003). Indeed, as we noted in Bo nne ll , Connick itself
was a “mixe d spe ech” case b ecau se, a lt hough the Court did not use that label, it looke d at e very

actof expr ession on the emp loyee’s questionnaire and, af te r conc ludi ng that one of the quest ions touc hed upon a matt er of pub lic concern, proceeded to th e Picker ing balan cing test. See Bo nne ll , 241 F.3d at

811 n. 7.

5 Rod gers v. Banks , 344 F. 3d 587, 596 (6th Cir. 2003) (citati ons omitted); Banks v. Wolfe County Bd. of Educ. , 330 F.3d 888, 893 (6th Cir. 200 3).

6 Rod gers, 344 F.3d at 598-99 (eschewing the “cour se of
e mpl oyment gloss ” on the Connick analysis); Co ckrel v . She lby C oun ty Sch. Dist. , 270 F.3d 103 6, 10 52 ( 6th C ir. 200 1) (ho lding tha t althoug h teacher wa s speaki ng in h er role as an employ ee when sh e present ed inf ormat ion on the en vironment al benefi ts of indust rial hemp, th e speech nonetheless rel ated to matters of poli tical and socialconcern to the
com munity), cert. denied , 537 U.S. 813 (2002). the employee c laims thatsome part of the speech also touches upon matters of public concern. 4

The difficul

ty of deter mining whether sp eech is o f “public concern” is compounded by the fa ct that these cases tend, as
one might expect, to be highly fact-specific. However, ou r closereview of Connick and this circuit’s subsequent decision s yi elds the f

ollowing principle s: 1. Speech

is of “public concern” if it involves issues about which information is needed or appro priate to enable the members of society to make infor med decisions about the oper ation of their gov ernment

. 5

2. The fact that the public employe e engages in the speech while in the course of his or her e mploy me nt does notpreclude a finding that the speech touc h es upon a matter of public concern. 6No. 02-1896 Farhat v. Jopke, et al. 15

7 R odg ers , 344 F.3d at 60 0 (“Although Plainti ff’ s underlying motive in writ ing the memo might have been to complain about incompetent manage ment, our d uty is n ot t o discern her underlying motive, but rat

her to ev aluat e her poin t as it is presented in the speech.”); Taylor v. Keith , 33 8 F

. 3d 639 , 64 5 ( 6t h C i r. 20 03) (“ Th e inq uiry is prim arily conc erned with wha t t h e spe aker in tende d to c omm unicate through his statem ent, and not his re ason s fo r speak ing .”) (ci tat ion omitted); Coc kre l , 270 F. 3d at 1052 (“Thus, even if a public employee
were actin g out o f a privat e motive w ithno int ent t o air her speech p ublicly, as was the case with M yers, so long as the spee ch relates t o matters of ‘polit ical, s ocial, or other concern to t he communi ty ,’ a s opposed to matt ers ‘ only of personal int erest ,’ i t shal l be consi dered as touching upon mat

ter s of pub li c concern.”) (quoting Connick , 461 U.S. at 146-49); Bo nne ll , 241 F.3d at 81 2; Cha ppel v. M ontgo mery Cty. Fire Pro t. Dist. No . 1 , 131 F.3d 564 , 575 -76 (6 th Cir. 1997).

8 Rod gers , 344 F.3d at 601 n. 5 (“We note that even if P laintiff’s opini on ultimately proved to be incorre ct, this does n ot dep rive h er sta temen ts of

First Am end men t prote ction.” ); Chappel , 131 F.3d at 576- 77 (rejec ti ng defendants’ argument t hat employee’s speech all eging
corru pti on and uneth ical conduct canno t add ress m atters o f pub lic concern absent proo f of the truthfulness of his spee ch); Williams v. Kentucky. , 24 F.3d 152 6, 15 35-3 6 (6 th Cir.) (re jecting argum ent that p laintiff’s admissi on that

she “coul dn’t pr ove” her al legat ions of unethi cal conduct forecl osed conc lusion tha t her sp eech was o f pub lic concern), cert. denied
su b no m Al le n v. Wi llia ms , 513 U.S . 947 (19 94)

.

We emphasize here, a s we d id in Chappel , that this prin ciple is not in c onfl ict

wit h our op inion in Ba rnes v . Mc Do well , 848 F. 2d 725, 734-35 (6th Cir. 19 88)

. In Barnes , the employ ee al lege d in hi s complaint 3. The employ

ee’s moti ve for e ngag ing in the

sp eechin question is a r elevant, but not dispositive, factor when consideringwhether an employ ee’s expression

is of public
concern. 7

4. Alth ough First Amendment protection might not be
av ai lableif the emp loyer can show that the public employee knowingly or r

eck lessly made fa lse state ments, a public employee is not require d to pr ov e the tru th of his
or her spee ch in

order to secure the prote ctions of

the Firs t Amendmen

t. 8 16 Farhat v. Jopke, et al. No. 02-1896

that he had made accusations of corruption against his public employer, but disco very re veale d that his actual speech incl uded no such allegations, only com plaints o f misma nage men t. Id. Thus, because t he employee h ad fail ed to substantiate the allegations of hi s complaint , i.e., to produce evidence that he actual ly accused his employer of cor ruption, we found proper t he di str ict

court ’s concl usi on th at t he spe ech i n ques ti on was not
a matt er of p ubli c concern. As we explained in Chappel , this does not
mean that an employee who does, in fact , engage in speech all eging pub lic corru

pti on has to prove the truthfulness of that speech in ord er to show it touche s upo n a pu blic co ncern

. Chappel , 131 F.3d at 57 6-77

. In“mixed spe ech” ca ses, appl icatio n of the second and third principles is often diff

icult . That is, if the employee speaks only

in the cou

rse of hi s employ

ment and do es so solely for personal reasons, when w ill the speech be of
co nc er n t o t he co mm un it y? Taking the motive issue first, our opi nions are cle ar that, consistent with the “content” test of Connick , the pe rtine nt question i s not whythe employe e spoke, but what he said:
The defenda

nts’ most sweepingargume

nt is that none of Chappel’s speech

may be consider

ed speech on

a matter of public concern

because all

of his speech was fundame ntally and predominately

motivated by his selfinterest in obtaining a position as a paramedic with the
ambulanc e district. . . . They also suggest that Chappel “lashed out against Chief Welch andthe rest o f his family,” al l eging misappropriations, nepotism, and a conflict of intere st , on ly because “he believed that they were standing in his way .”
The defendants’ argument, t hat Chappel’s subjective motivations are disp ositive when dete rmi ning whether his speech addresses a matter of purely personal concern, is in direc t conflict with the Su preme Court’s holding in Connick

. In Connick , a

public employee disseminated a questionnaire “to gat

her ammu niti on for ano ther round of controve rsy with he r superiors” because she was “dissatisf[ied] with a transfer.” Connick , 461 U.S. atNo. 02-1896 Farhat v. Jopke, et al. 17

148, 103 S.Ct. at 1691. Notwithstanding the fact tha t this pers onal grievance motivated the entire questionnaire , the Court concluded that “[o]ne qu estio n in [ the] questionnaire

. . . touc h[ed] upon a matter of

public concern.” Id. at 149, 103 S.Ct. at 1691. We agree, as a majority of the Thi

rd Circui t rec ently concluded, tha t “[i]f mot ive w ere disp ositive, the [Court’s ] inquiry [in Connick ] could only

have re sulted in f

inding e ither th a t all of [the employee’s] speec h was public concern speech
or that none of it was.” Azzaro v. Co unty of Allegheny , 110 F.3d 968, 978 (3d Cir. 1997) ( en banc ). . . . [T] he inquiry in to what a spe aker inte

nds t o communic

a te remains fundamentally different from an inquiry into why the s

peaker intends that communication. Th e for mer inquir

y is of muc

h greater significan ce in determining

whether speech a ddresses

a matter of

public
concern. Chappel , 131 F.3d at

574-75 (i talics in original; underlining added). See also Bonne ll , 241 F.3d at 817 (“However, even assuming that

Plaintiff was motivated by persona l animus in circulatingthe Apology , the fact remains that in doing so, he addressed a matter occurring at the colleg e whi ch w as of public concern.”).
As for the “ course o f employ ment” issu

e, this cir cuit has flatly rejecte d the arg

ument tha

t the fact that a public employee’s

speech occur s wh ile he is carry ing out his job duties renders the speech of only private conc ern, noting that sucha rule would eviscerate First Amendm ent prote ction in pub lic employment. See Rodgers, 344 F.3d at 598-99; Cockrel v. Shelby County Sch. Dist. , 270 F.3d 1036, 1052 (6th Cir. 2001), cert. denied , 537 U.S. 813 (2002). Cf. Banks v. Wo lfe Count

y Bd. of Educ. , 330 F.3d 888, 898-99 (6th Cir. 2003) (Gibbons, J., concurring). Agains tthe background of Connick and these

principle s, our circuit has distilled the “public concern” test by stating 18 Farhat v. Jopke, et al. No. 02-1896

that the court must determine: the “focus” of the speech; “the pointof the spe ech in que st ion”; “ to what purpose the employee spoke”; “the intent of the spe ech”; o r “the
comm unic ative purpose of the speaker.” See Rodgers, 344 F .3d at 600 (holding that pertinent inquiry is “the point or focus of the spe ech in que stion”); Taylor v. Keith , 338 F.3d 639, 645 (6th Cir. 2003) (noting that proper inqu ir y i s the “po intof the speech” and “what the speake r intended t o communicate”); Buckley v. City of Portage , No . 9 8-1783, 1999 WL 777542, at *4 (6th Cir. Sept. 16, 1999) (examining “primary focus” of speech), cer t. denied , 530 U.S. 1262 (2000); Dambrot v. Central Mich. Univ. , 55 F.3d

1177, 1187- 88 (6th Cir. 1995) (court mus t l ook to the “point” of the speech and the “communicative purpose” of the speake r); Rahn v. DrakeCtr., Inc. , 31 F.3d 407, 412-13 (6th Cir. 1994) (court must ex amine “complete record” and determine “focus” of statement for which employ ee claims protection), cert. denied, 515 U.S. 1142 (1995).
As a corollary

to this “focus” test, we have held th at the proper i nquiry is not what might be “incidentally conve yed” by the spee ch, and that “pass ing” or “fleeti ng” re ferenc es to anargua b ly public matter do not elevate the speech to a matter of “public concern” where the “ focus” or “point” of the speech advances only

a private int erest. See Rodg ers , 344 F.3d at 597-9 8; Taylor , 338 F.3d at 645-46 ; Buckley , 1999 WL 7 77542, at *4-5; Dambrot , 55 F.3d a t 1187; Rahn , 31 F.3d at 412-13. Turning to the emp loyee’s spe ech in the case at bar, viewed incontext of the complete record, webelieve that the primaryNo. 02-1896 Farhat v. Jopke, et al. 19

9 See Rod gers, 344 F.3d at 59 9-60 0; Buckley , 1999 WL 777542, at *4; Rahn , 31 F. 3d at 413.

10 See Ro dge rs, 344 F.3d at 598- 600 ; Tayl or , 338 F. 3d at 645; Dambrot , 55 F. 3d at 1187.

11 See Dambrot , 55 F. 3d at 1188.

12 See Ba rnes v . Mc Do well , 848 F.2d 725 , 735 (6th Cir . 1988 ) (citation omitted ), cert. denied , 488 U.S. 100 7 (1989 ).

13 See Rahn , 31 F. 3d at 412- 13

. 14 See R odg ers , 344 F.3d at 59 7; Dambrot , 55 F. 3d at 1187. “focus,” 9 “point,” 10 o r “communicative purpose” 11 of Appellant’s letters was his own persona l “ beef” 12 with the union and the school district concerning his deteriorating job situation, and his references to collusion or corruption wer e “pass ing” 13 refer

ences that were “ incid ental to th e mess age conveye d.” 14 Thus his le tters we re not matter s of “publ ic concern.” Moreover, even if A

ppellant had satis fied this

prongof the First Amendment retaliation analy sis, we conclude that applicationof the Pickering balancing test still requires that the summary

judgmen

ts entere d by the court below be affirmed.
PICKE RING BAL ANCING TEST Applicationof the Pickering balancing test is a matter of lawfor the court to decide . Leary v. Daeschner, 349 F.3d 888, 898 (6th Cir. 2000) (citation omitted)

. In P icker ing v. Bd. of Educ., 391 U.S. 563 (1968), the Courtheld

that the firing of a teacher for writing a letter to a newspaper, opposing a tax incre ase a dvocated by the defendant Board of E ducation , was a vi olation of the Firs t 20 Farhat v. Jopke, et al. No. 02-1896

15 We read the distri ct court’s succinct remarks at the summary judgment hearing as a stat em ent that t he summary judgments were gran ted on thi s gr ound. Amendment

because the issue was a mat ter of pu blic concern. I d. at 570-71. The letter was personally critical of the members of the Board. The Supreme Court noted, however, that there were no close working r elationships between the t eacher and the members of the Board and, there fo re, th e protected expression did not violate the Board’s “interests as
anemployer in re gulating the speech of its employ ees that differ significantly f

rom those it possesses in connection with
re gulation

of the speech of the citizenry in general.” Id. a t 568-70.
T he Court further enunciated what has come to be known
as the “ Pickering balanci ng test” : “The pr

oblem in a

ny c ase is to arrive at a balance betwee n the int e rests of the [empl oyee], as a citizen, in commen ting upon matters of public concern and the interest of the Stat e, as an employer, inpromoting the efficiency of the pub lic servi ces it pe rforms through its employee s.” Id. at 568. Applying this test, we conclude that, even if portions of Appellant’s expression did address matters of public concern, the disruptive

ness of his speech in the workplace outweighed any valu e his ex pression might have had. Thus, summary judgment was properly

granted. 15 Authority for this conc lusion is found in Waters v. Churchill, 511 U.S. 661 (1994). There, a nurse was repor ted to her empl oye

r as h avi ng made critical remarks conc erning the o p eration

of one of

the depa rtments of

the hospit

al in whichshe was employe d

. She also made highly derogatory remarks concern ing h er supervisor, a phy sician. Id. at 665- 66.No. 02-1896 Farhat v. Jopke, et al. 21

Some of the re

marks the nursewas alleged to have made
were di sput ed by her. T he Court held that her firing was justified, even though the employ er had based

its decision on the reporte d remarks without having determine d what remark s were actually made

. Id. at 677 ( plurality opinion by O’Connor, J.), 686 (concurring opinion by Scalia, J.).
The C ourt recognized the right of even a governmental employer to deal wit h di sru pt io n i n t he w ork pl ace . It emphas ized t hat the government as employ er has efficiency
concerns tha t give it greater discre tion in dealing with a disru ptive employee, more discretion than it would have t o deter speech by a

privat e citiz en. Id. at 674-75. “[S]urely,” th e p lu ra li ty o bs er ve d, “a pu bl ic em pl oye r m ay, consiste ntly with the First Ame

ndment, pr

ohibit its employees from being rude to customers,” as wellas to other employee s, including the supervising physician. Id. at 673 (internal quotations and citations omitted).
Inlangua ge par ticularl y a pplicabl e to the in stant ca se , t he plurality stated: [T]he extra power

the government has in this area comes fromthe natur

e of th e gov ernment’s mission as an employer. Government agenciesare charged by l aw with doing particular tasks. Agencies hire employ ees to he lp do those tasks as effectively and efficiently

as possible. Wh en someo ne who is p aid a sal ary so that she

will contribu te to an agency ’s effective operation begins t o do
or say things that de

tract from the agency ’s effective operation, the gov ernment employ er must ha

ve some power to restrai nher. The reason the governor may

. . . fire [a robustly critical high-ranking] deputy is not that this dismissal would somehow be narrowly tailored to a compe lli ng government interest. I t is that the governor and the go vernor’ s staff have a job to do, and the governor justifiably feels that a q uie ter subor

dinate
wo ul d a ll ow th em to do th is jo b m or e e ff ec ti ve ly. 22 Farhat v. Jopke, et al. No. 02-1896

The key t o First Amendment analysis of government employment

decisions, then, is this: The gov er nment’s interest in achieving its goals as effectively and efficien tly as possible

is eleva te d from a rela tively subordinat

e i n terest when it acts as sovereign to a signif i cant one when i t acts as e mployer

. The government

cannot r estrict t h e speech of the public at large just in the n ame of efficiency . But where the government

is employing

someone for

the very purpose of effectively

achieving its goals, such res trict ions may well be appropriate.
Id. at 674-675 (emphasis added).
The same principles have been recog nized in our own opinions. See, e.g., Leary v. Daeschner, 349 F. 3d 888, 897 (6th Cir. 2000) ; Rodgers, 34 4 F.3 d at 596 ; Hoover v. Radabaugh, 307 F.3d 460, 466 (6th Cir. 2002) ; Strouss v. Mich. Dep’t of Corrections, 250 F.3d 336
, 34 6 (6th Cir. 2001) ; Bonnell, 241 F.3d at 810-811 ; Charvat v . Eastern Ohio Reg’l Wastewater Auth., 246 F.3d 607, 617 (6th Cir. 2000) ; Chappel, 131 F.2d at 573-574. Thus, we find that Appell ant’s speech, e ven if of public
concer n, is not prote cted. Ap

pellant’ s “speec

h” was hi ghly disruptive to the point that it interfered with the effe ct ive
o peration of t he s cho ol di st ric t’s cus to di al s taf f. In deed, a t times th ey f

eared fo r their physical sa fety in the workpla

ce due to Appella

nt’s beha vior. As the plur ality

stated in Wate rs: “As a matter of law, this potential disruptiveness was enough to outweigh whatever First Amendmen t val ue the speech might have had.” Waters, 511 U.S. at 681. Therefore,
onthis ground also we find that the distr ict cour t proper ly held that there was no First Amendment violation. Thus, theNo. 02-1896 Farhat v. Jopke, et al. 23

16 Ap pellan t’s clai ms that his t erminat ion vi olat ed his First Amendm ent rights to as sociation and to petit ion the government are without meri t. Appell ant’ s as soci ati on claim must f ail because he did not adduce any evi den ce tha t he was t ermi nate d becaus e of h is uni on activities. His petition claim fails beca use the “p etition” h e relied on in his complaint - - his contac ts with the T roy C ity gove rnme nt - - wa s made afte r he was t erminat ed, an d thus c ould not have been a factor in the deci si on t o te rmi nat e hi m. low er court’s grant o f summary

judgmen t on the re

taliatio n claims must be affirmed. 16

DUE PRO CESS
The next issue p

resente d is Appell ant’s cla im th at he was denied proceduraldue process

because the schoo l district d

id notmeet the Constitutional due process requirements for pretermination

and post-terminationhearings. In suppor t of theseclaims, Appellant states that he never received a hearing before a neutral decisionmaker. He further state s that he was notpermitte d to prese

nt his gr ievance directly to the school board which, he asserts, is required by Michigan statute.
Due process

requires some s ort of

preter minat ion h earing, the formality of which de pends upon the importance of the interest and the nature of t

h e subsequent proceedings. See Duchesnev. Williams , 849 F.2d 1004, 100 6-07 (6th Cir. 1988), cert. denied, 489 U.S. 108 1 (19 89). For public employees

who can only be f

ired for cause, t he Supre me Courtha s h el d, sp ec if

ic al ly, that a pretermination proceeding is required. Id. (discussing Cleveland Board of Education v. Loudermil

l , 470 U.S. 532 (1985)).
In Loudermil

l , the Sup reme Court held that a fu

ll evidentiary

hearing is not required prior to termination. Rather, the pret

erminati o n h earing is to provide an initial check against mistaken con c lusions, “essentially, a determination

of wheth er th er e are r

easonab le grou

nds to believe th at th e c ha rg es ag ai ns t t he em pl oye e ar e true and 24 Farhat v. Jopke, et al. No. 02-1896

support the proposed action.” Lo ude rmill , 470 U.S. at 545- 46. The essential elements require d for due

process are notice and an opportunity to respond, either in writing

or in person. Id. at 546.
Inthe Sixth Circuit, we have held that prior totermination of a public employee

who has a property

interest in hi s employ ment, t he due process clause requires that the employee be given “oral or written notice of the c harge s againsthim or her, an explanation of the employer’ s evidence, and an opportunity to present his or her side of

the story to the employer.” Buckne

r v. City of

Highland P

ark , 901 F.2d 491, 494 (6th Cir.) (ci tin g Loudermill v. Cleveland Bd. of Educ., 844 F .2d 30 4 (6th Cir. 1988)), cert. denied, 498 U.S. 848 (1990). “To require more tha n this prior

to termina

tion would intrude to an unwarranted extent on the gov ernment ’s intere st in quickly removi ng an uns atisfactory employee. ” Loudermil

l , 470 U.S. at 546.
We also have

held that

in the pre

te r mination stage, the employee does not have a right to, and the Constitution does notrequire, a

neutral and impartial decisionmaker. The “rig ht of reply” be fore the o ffici al responsible for the disc harge is sufficie nt. Duchesne, 849 F.2d at 1006

. It is at the postdeprivation

stage w here a neutral d

ecisionma

ker is ne eded to adj udica te the evide

nce. Wher

e there is a system of po stterminationprocedur es av ailable to the employee that includes a

neutral decisionmaker and/or arbitration, coupled with a pretermination “right of reply ” heari ng, then the employee has received all the pro cess due under the Constitution. See Duchesne, 819 F.2d at 1006; Buckne

r, 901 F.2d at 494; Loudermill, 470 U.S. at 545.
The law is well-es tab lished that it is the opportunit yfor a post-deprivation

hearing before a

neutral decisionmaker

that is required for due process. As long a s the procedur al require ments are reasonable and give the employ ee notice and
anopp o rtunity to participate mea ningfully, they

are cons t itutionall

y adequate. See Hennigh v. City of Shawnee ,No. 02-1896 Farhat v. Jopke, et al. 25

155 F.3d 1249 , 1256 (10 thCir. 1998). As su ccinctly stated by th e S ev en th Ci rc ui t, th e “ av ai la bi li ty of re course to a constituti onally

sufficie nt administ

rative procedur

e sa tis fies due process

requirements if the complainant merely de clines
o rfail s to take advantage of the administrative proce dure. ” Dusanek v. Hannon , 677 F. 2d 538, 542-4 3 (7t h Cir.) (ci tation s omitted), cert. denied sub nom Dusanek v. O’Donne ll , 459 U.S. 1017 (1982). Consequently, wher e the employee refuse s to partic ipate or

chooses n

ot to parti cipate inthe post-termination proceedings, t hen the employee ha s waived his procedural due process claim. See Krentz v. Robertson Fire Prot. Dist. , 228 F.3d 8 97, 904 (8 thCir. 2000) (citations omitted).

“ The law is als o clear

that gr ievance procedu res prov id e d by a collective bargaining agreement can satisfy

a plaintiff’s entitlement

to post-deprivation due process.” He nnig h , 155 F.3d at 125 6; A merican Postal Workers Union Columbus Are a Loc al AFL-CIO v. U.S. Postal Service , 736 F. 2d 317, 319 (6th Cir. 1984). As

we state d in

Buckner , the opportunity to challen

ge the t erminati on in a mor

e detaile d p ostterminationproceeding, under the collective ba rgaining agree ment, satisfi es the employee’s con stitutiona l due proc ess rights. Buckner , 901 F.2d at 497.
In Duchesne, the employe e cla ime d that he was denied proce dural due process because his preterm ination procee din g was bi ased. Duchesne , 849 F.2d at 1005. The proceeding
was presided over by

the person who ultimately fire d the employee, who was also the person about whom the employee had complained to the city c ouncil. Id. We held that ev e n if the decisionmaker at the pretermination hearing
was b iased, due process is fulfilled by a post-termination, trial-type proceeding

where an oppor

tunity to “fer ret out bia s, pr et ext, decepti on and corruption by t he employ

er in disc harging

the employee”

is provided. Id. at 1008

. Duchesne held that the employee was not entitled to a pre te rmination hearing before a neutr al decisionmaker, and 26 Farhat v. Jopke, et al. No. 02-1896

the injunction granted by

the district court was vacated. Id. at 1007-1008.
In Buckner , a

terminated

police officer alleged that he ha d been denied due process because no hea ring was held prior

to his discharge. Theofficer further allege d that the termination violated a state st

atute be cause he

was an a

lcoholic i n tre atment at the time of his discharge and believed he wa s fire d becau se of that condition. Buckner, 901 F.2d at 493. We held that the facts of the case established that the officer
was given notice and

an opportunity to respond, eve nthou gh he was in the hospital and ther e was no t a formal pretermination

hearing in the standard format. Id. at 495-496.
Si mi la rl y, in Loudermil

l , the Court held that “all the process that was due is provide d b y a pretermination opportuni ty to re sp ond, coupled with post-termination administrative procedu

res . . . .” Loudermil

l , 470 U.S. at 547- 548.
In the case be fore us, we find that Appellant was giv en all the pr oce ss due and that his constitutional rights were protected. Appellant was provided wi th two pretermination procee dings that were attended b y himsel f as well as his chosen union representa

tives. Post-termination, he was given the op po rt un it y f

or a full hearing before a ne utral arbitrator,
as provided

for in the collective bargaining a greement. At

the arbitration, the part

ies rea ched a te

ntative se

ttlement. However, after

a few day s, Appellant rejected the settle ment. Foll owing this rejection, the union withdre w its repres entatio n of him. The record re fle cts that Appellant made no further attemptsto pursue this issue directly with the scho ol bo ard. Inste ad, Appe llant file d this laws uit.
Under the authority cited above , due process has not been de nied in this case. Appellant was given pretermination notice and an op

portunity to be hear

d. That is a

ll that is required prior to termination, even if the person

against whom he made the

allega tions w as the s ame person who presidedNo. 02-1896 Farhat v. Jopke, et al. 27

over the he aring. It is the post-termination proceeding where bias and corruption are ferreted out. See Buckner, 901 F. 2 d at 494; Duchesne, 849 F.2d at 1006.
We also fi nd th at post-deprivation due process was adequate. Appellan

t was prov

ided a post-terminatio n arbitration

that he requested, attended, and at which he reached a settlement, albeit one he later rejected. The fact that Appellant was given the opportuni ty fora postterminationprocee ding, before a neutral arbitra tor, belie s his claim that due process was denied. See Buckner, 901 F.2d at 494-5; Hennigh , 155 F.3d at 1256 ; America n Postal W orkers, 7 36 F.2d at 319. B eing dis satisfie d with the r esult of the arbitration

does n ot giv e rise to a constitutional violation. Moreover, we find that Appellant waived his p ost-deprivation due process when, after

rejecting the settlement, hefailed to pursue further a

rbi tral proceedings. See Krentz, 228 F.3d at 904

. Appellant’s claim that Michigan law requir es that he be given a hearing directly

before the boar d, lest he be denied due process , als o fails. The applicable Michigan statute, M.C.L.A. 423.211, states that an employee may negotia te directly with the employer and

present grieva nces dir ectly to the employer. B y its plain lang ua ge, this

action is discreti o n ar y. Especially whe re other procedural measures
are available for

the employee to pre sent his case, due proc ess is not denie d if the e

mploy er relie s on th e collective bargaining

agreement to providethat proc ess. See Hennigh, 155 F.3d at

1256 ; American Postal

Workers, 736 F.2d at 319. Therefore, as a matter of

law, we find that

the district court
correctly held that Appellan t was provided procedural due process

. The employer provided not one, but two, pretermination

hearings whe re Appellant was given notice and an opportunity to be hear d. Moreover, he was provided the opportunity for a post-ter mination arb itrat ion presided
over by a neutra

l arbitrator. The Constitution re quire s nothing further. 28 Farhat v. Jopke, et al. No. 02-1896
Further, App ellant has failed to allege and prove the inadequacy

of st ate remedie s, which f ailure is fatal to h

is proceduraldue proc ess claim

. See Jefferson v . Jefferson County Pub. Sch. , 360 F.3d

583, 588 ( 6th Cir. 2004 ) (citing various cases). Inde ed, he concedes that state law permitted him to arb itrate with the defendants even after the union declined to represent him. Nonetheless, Appellant f ailed to continue the arbitration after the un ion’s withdrawal and elected to file this lawsuit instead.
PRIOR RESTRAINT
The third issue Appellant presents for r ev iew is his allegation that the school district placed a n unconstitutional prior or o ve rbroad restraint on his speech when, as part of the15-day suspension and investigation, he was instructe d to refra infromspe aking to other employ ees about the investigation. Appellant dedicates approximately one page of his a rgumen

t to this issue, which

is thin on a

naly sis

. Appellant simply alleges

that ther e was no l egitima

te reason for this restriction, with no supporting evidence or arg ument.
The Sixth Circuit addressed the issue of a prior restraint on speech of a go vernmen

t e mploy ee in Jackson v. City of Columbus , 194 F.3d 7 37 (6th Cir. 1999) (abrogated

on other grounds by Swierkiewicz v. Sorema N.A. , 53 4 U.S. 506 (2002)). Jackson involved the termination of a police chief who allege d that hisdi smissal was racially motivated. He further allege d that a “ gag order” n ot to spea k to th e media pending inve stigat ion o f his a llege d misconduc t unconstit utionally restrai ned his s peech. Id. at 74 6. We recogniz ed

that the Pickering

balancing test applied to the analy sis of such a

lleged ly im proper prior restr a ints on the speech of a public employ ee. Id. Thus, the same process applies here as it did with the first issue we addr

essed in this appeal. That is, we first determine if the issue is one of private or publ ic concern. Second, we bala nce the inter

ests of the

gover nment emp loyer inNo. 02-1896 Farhat v. Jopke, et al. 29

maintaining a functioning and cohesive working e nvironmen t against the employ

ee’s interest in speaking. Id.
We find that

the balance of interests on this issue weighs in favor of the employer . As we stated previ ous ly, even if Appellant’s speech

had been of public concern, it is clear that the interests of the employe r outweigh the i nterests of the employee, for this li

m i ted purpo se. The s chool dist rict only restricted Appellan

t’s spee ch for 15 day s, pending its investigation

o f alle ga tions about him and by him. Further, he was restricted in his speech only as to co-employe es. He
was not restricted from speaking to t he pu blic or his union. As stated by Appellee

Kelly in her deposition, the reason for this restri ctio n was to prevent further disruption of the workplace and potential interruption of the i nvestigation by Appellant’s abusive and threatening behavior. The record is replete with Appellant’s history

of this very ty

pe of behavior. Appellant has not presented any

evidence of how he was limitedby this allege d restraint. Thus, we have nothi ng to pla ce on t he Pickering scale to measure against the employer’s inter

ests. As such, we find that the alleged prior restraint on Appellant’s speech was reasonable in lig ht of the employer’s

interest in completing its i

nvesti gation a

nd in protectingthe workplace. The district court properly g ranted summary judgme

nt on this issue.
CONSPIRACY Appellant’s final all egation is that Ap pellees are liab le for civilconspiracy

for unlawfully c ausing his termination. He bases this allegation on the theory that the “general objective whichHo od a nd Kelly share d was to cause some ty pe of adverse action concer ning Fa rhat’s c areer .” Appel lant clai ms that because Hood w en t to her supervisor to advise the
su pe rv is or of

Ap pe ll an t’ s c on du ct , t he re wa s a co ns pi ra cy. A civi l conspi racy is “ an agreement between two or more persons to injure a

nother by unlawfu l actio n .” Weberg v. 30 Farhat v. Jopke, et al. No. 02-1896

Franks , 229 F.3d 514 , 526 (6th Cir. 2000). Claims of conspiracy

must be pled wi th some specificity: vag ue and conclusory

allegations that are unsupported by material facts
are not sufficient

to state a §1983 claim. Gutierrez v. Lynch , 826 F.2d 1534, 1538 (6th Cir. 1987) (citation omitted).

Quite simply, Appellant

has faile d to estab lish

that he was injured by

any unlawful

action. As we have held here, there
were no constitutional deprivations by Appellees, thus there is no unlawful action. Without an unlawful action causing in ju ry, Appellan

t cannot prove the

elements

require d to support a claim for

conspiracy . Accordingly , the district court correctly grante d summary

judgmen t to Appell ees on this issue.
CONCLUSION
For the reasons set

forth herein, we AFFI

RM the judgment of the United States District Court for the Eastern

District of Michiga n, Souther

n Division, as to all c laims.No. 02-1896 Farhat v. Jopke, et al. 31
Appendix A
Date: 5-11-00 To: J. Jopke, Supe

rintende nt Troy Schools From: Ken Far

hat, Custod

ial Stewa rd, Troy Schools Re: Rebuttal to Letter dated 4-17-00

Ihave be en off w ork since 2-25-00, because

of t he ever increa si n g violations of my civil rights, that has led to a suspension based on

a false police r eport by an in c ompetent and corrupt union representative, Pam Hood. Iwas placed off work because I wa s exposing Pam Hood for her collusion and coercion, and failure to represent members of this bargaining unit, in cooperation with your a dministration. This situation is nothing more than a

fabrication by

administrators who are unwilling to be accou

ntabl e for their abuse, discrimination, and incompetence.
Since you illega

lly removed me, I have

been forced to attend illegal meeting s with the p urpose to create fabricated charge s of inappropriate be

havior, t ypi cal of th e administ

rators in Troy Sch ool s. I a m s upp ose d t o be doc il e wh il e I a m harassed, lied about, in t he mo st boring and redundant
manner. If I

show opposition to these lies, more lies are produced. The most telling ability of Kel ly and her persec utio n of me, is the statement she made to the fact that Iwas filing charges against Pam Hoo d t hrough proper channe ls of MEA. K

elly refer red to me as a threat. Since she made mention to this in an angry a nd h os tile manner, I
assume I wa s disciplined for my legal a ctions w ithin th e union infrastructure. Kelly must believe I

am a priso

ner with no civil ri ghts. During a heari

ng on 4- 14-00, I

was a s ked how I felt about your let ter dat ed 1 -28 -97 , ap pl ied to me. It was a joke since i t was illegal to begin with. You stated that day, when you gave m e the lett er, that it would not go in my file, it is not designated

“personnel file,” I w as not offered a union representative and it is not noted that I was. I di d not f ile a 32 Farhat v. Jopke, et al. No. 02-1896
grievancebecause y

ousaid at the

time it was not a discipline action, buta concern. Furthermore, Maur een Kelly now say s, inregard to thatmeeting that y

our letter pertains to, that I was pounding my fist on the table and lea pt out of my chair, y

our letter does not describe this at all. Your letter is a joke, in the factit i sn’t wort

h the pape

r it’s wri tten on. Also, Kelly

is lying in claiming Harry

Sahourieh and Lloy

d Stage suppor t her statements in regards to that day, and th at they will provide testimony

, testi m ony that y

ou at the time did not pursue. Stage’s exact

quote was “I

was not paying

attention,”
seems odd if I had pounded my fist and l eaptout of a chair that he didn’t notice that, being one seat over. Harr y flat out denie s that he agrees with Kelly, or has provided any testimony in agreement. Now that I am aware of this letter being illegally put

in my file, I will file the prope r grie vances. The second so called discipl ine from Mike Williams, was grieved, but the grievances were not proc essed because Mary Watson r efuse d to file them in the transition to the MEA, since I now

know she i s in collusi on with the employ er I will re-file these. Mike Williams’s letter is an ou trage ous and coward ly tactic to camoufl ag e his har assment, and abus e in claiming that I was commit ting medical fraud and illegal union organizing. When he could not pro ve this by entrapment, he lied and said he was thr eat ened, typica l of Williams. Also I wrot e a r ebuttal to all school board members an d never really got a reply , so his letter is not worth the pape r is [ sic ] written on. And again, Harry was present and ready to testify

that there was no threat. So much for those.

Inregards to Pam Hood, the Troy Police don’t believe her, andcl osed the case. She concealed the fa ct that she wa s coerced by Mike Williams prior to calling the police, that she has been plotting this for some time, and has been slandering
me in the wor

k place f or y ears. A s a matter

of fact , I made a complaint to Carol Miller, Asst. Principle [ sic ] at Troy High,
some weeks earlier

in regar ds t o Ho od’ s at tac ks o n m e. It
was the same day I

asked that

something be done with BeckyNo. 02-1896 Farhat v. Jopke, et al. 33

Makowski , another employe e that you have allowed to attack
me in the work place, along wi th B utler-B ull and Loretta Witkowski. Hood’s a

ctions were of reta

liation an d defens e because she reali zed I was going to expose he

r, and fi le
c harges for collusion, and I would not submit to collus io n mys elf inregards to a member I

was representing. A situation that Pam Hood states, “I’m

doing what Mau

reen Ke lly wants me to do, I’m doing what I ’m told to do.” My pattern of behavior

is of hone sty

and integrity , traits that
are sol ely m is si ng i n Tr oy Sc hoo ls . It is your administration that is feared not me. My

characterization of t

hose suc h as Jack Britton is completely war ranted, he is an inco mpe tent supervisor

that retaliated ag ai ns t m e b y ab us e o f h is au th or it y, sanctioned

by y ou. When I exposed his abuse and threatening behavior towards members of this barg ainin g unit, I was illega lly demoted and further slandered and libeled. You also claim my c o-worke

rs fear me, if they fear me it is because of the conspira

cy of this ad

ministrati o n and corrupt union reps that h ave been allowed to spread this slander and libel of threats against people. Furthermore, a s always in Kelly ’s warped investig ations, she never

names who these

frightened co-workers are, or of th eir testi mony , and has

refuse d to pr ov id e t hi s t es ti mo ny.
Iwill only admit I talk fast and loud, every

body knowsthis as
a natural trait. Even

if it is a fl awed characte

r trait, i t is not a threat. This is being exploitedby t his adminis tration to

avoid the grieva

nces I have fil ed, and w

ill file up on retur

ning to work.

Iexpect this administration to produce more than rhetoric as evidence.

Ialso req uest that a

copy of the medic al report be sent to my residence, this is in re gards t o th e appointmen

t with Dr . S he in er . C on ta ct Ma ur ee n K el ly. 34 Farhat v. Jopke, et al. No. 02-1896

Las tl y, I ha

ve made a

n appointment to atte

nd counse ling at the Evergre en Cou nseli ng Cent er, alt hough this may change, because of PPOM require

ments. Not because of my behavior, but because of this administration’s behavior.
Si nc er el y, Kenneth Farhat
Cc. J. Cusmano M. Kelly M. Williams L. Boehmns J. BrittonNo. 02-1896 Farhat v. Jopke, et al. 35
Appendix B
Date: 5-18-00 To: Lu Battag lieri, President MEA From: Ken Far

hat, Custod

ial Rep Tr

oy Sc hools, TESPA Re: Failure to represent
On 5-16-00, I met with Tom Fette, Joe Cusmano, and Jef f Nyquist, yo u know who they are. Als o presen

t was Tim Hagan, my a

ttorney . During

this me et ing and by

Mr. Nyquist’s direction it was agre ed that an in vestiga tion, into the alle g ations and incidents leading up to my suspension, would be conducted. Apparentl y Mr. Ny quist has no influence over

Cusmano, or Fette , to motivat e them to follow up on this. I believe Mr. Ny quist t o be in g ood faith at this time, Fette and Cusma

no are not. Instead the

y c ontinue to avoid their responsibility, to cover up fo r Pam Hood, and protect the employer, this corr

uptlocal, and

the incompetence of the MEA reps up to date. Today at approximately 9:30 a.m., I called Cusmano a

bout a
concern more recent that the May 16 meeting . He ref

uses to investigate. It o nl y i n volves the President of my loca l, Pam H ood, claiming that I stopped her bus w ith students aboard. Ibelieve that offe nce woul d get me

life in pr ison, if tr ue. It is a deme nted accusation from a demented and sick human being. Cusmano r efused to contact Hood, and stated it was not his concern.
Fu rth ermore, in regards to the other matters of a nee ded investigation, he now flatly re fuses to do anything to uncover ev idence. Evidence and testimony tha t will prove beyond a shadowof a doubt

of the conspiracy

behind Hood’s behavior, and my being victimized for being the only honest union rep in Tr oy w

ith the ab ility

and cour

age to stand up to t

his ignora nt and abu sive admin

istration in Troy Schools.

Ican only conc lude Cusmano, Fette, Mott, and Gay Shaw ar e intentiona

lly creating obstacles, innuendo and lies, to c over 36 Farhat v. Jopke, et al. No. 02-1896

up for the corrupt contract negotiation, the ongoing collusion of the loca l repre sentative s, and the prefer ential tr eatme n t they receiv e. Of co

urse at the expe

nse of the barga ining uni t. Anexpense that has led to privatization, loss of senior ity rights, loss of

bidding rights, unwarranted discipline, loss of medical benefits, loss of sick days, the implementa tion of a medical exam articl e that violates our civil rights, and a hostileenvironm ent o f dissension and chaos. Least I am remiss, I should includethe main component here, Maureen Kelly’sgood friend Mary Watson. A MEA staff rep who has
no prob le m l yi ng in front of nearly 200 people about all the above. This to enhance her ment ally ill friend Kelly, and to
use this barg aining u

nit as a conces sion for the teachers negotiation.
On 5-17- 00, my

attorney wa s contacted by Mr. Nyquist. He stated a representative woul d be assigned to conduct an investigation

into my situ ation. On 5-18-00, I contacte d Fette, he claimed no knowled ge o f a rep other then an advoca te i n a distant arbitration. I need a ction now. I don’t know what Cusma

no intends

to prese nt at t his ar bitration other tha n begging like

a dog. I will not do t

his.
The MEA has committed total failure in this matter and others of this bargaining unit, y et Mark Middlewood is being allowed to parade around the state c laiming t his contr act is a good con tra ct. It

is, if you’re a

mindless animal, which Maureen Kelly has done

a good j ob in hirin

g mindle ss, criminal s as employe es. Well now you’ve be en told, somewhat that is. I invite y

outo a union meeting

to hear o ur discus sion. Oh excuse me that’s right we don’t have meetings any more. They ar

e canceled when our local reps are exposed for t heir incompetence and col lusi on, and ref

use to answer que stions of their cond uct. Lik e o ur la st me et in g l as t F eb ru ar y.
Ihave been disciplined

because I choose to expose MEA and lo cal reps in complete collusion with the employer

. To th eNo. 02-1896 Farhat v. Jopke, et al. 37

pointthese liars ar e g iv in g t es ti mo ny, illegal testimony, to the employer. De spicable.

It is your resp onsib il it y to assign staff that is honest and
un biased. Where is the agg ressive repres entation

that wa s promised dur ing the orga niz ing ef fo rt? Where is the legal teamthat was s

upposed to

protect our civil r

ights? You have
no answer because it was all a lie, and y ou were not Presid

ent. This was orchestrate d by Mary Wa tson and carried on by every ME A rep since. Fix it please. Believe me, I wi l l contact newspapers and politici ans til l something is done. I will not be deterred, by

any threa t or conspiracy . Iintend to
sue. Si nc er el y, Ken Farhat
CC. Fette Shaw Hood