Case 2:17-cv-02873-JPM-dkv Document 122 Filed 06/14/19 Page 1 of 39 PageID 2282
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TENNESSEE
`WESTERN DIVISION
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` Case No. 2:17-cv-2873-JPM-dkv
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`MICHAEL GOZA,
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`Plaintiff,
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`v.
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`MEMPHIS LIGHT, GAS AND WATER
`DIVISION,
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`Defendant.
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`
`
`ORDER AND OPINION
`AND
`ORDER DENYING LEAVE TO AMEND PLEADINGS TO CONFORM WITH THE
`EVIDENCE
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`
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`This matter came before the Court for a nonjury trial from February 25 to February 27,
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`2019. (ECF Nos. 99-101; see O. Granting Mot. Strike, ECF No. 91.) Plaintiff Michael Goza
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`alleges that Defendant Memphis Light, Gas and Water Division (“MLGW” or the “Division”)
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`discriminated against him on the basis of his protected speech and on the basis of his race when
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`it demoted and terminated him in October, 2017. (Pretrial O., ECF No. 98 at PageID 1491.)
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`For the reasons set forth below, the Court finds that Goza succeeds on both claims.
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`The government does not have to turn a blind eye to the speech of its employees, but
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`MLGW’s decisions in this case were based on unconstitutional factors. As the Court explains
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`below, the proof at trial showed that MLGW did not actually believe that Goza would hurt
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`customers or treat anyone unfairly on account of their race. Instead, the Court finds that MLGW
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`fired Goza because he expressed unpopular opinions and created a perception problem for the
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`Division.
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`Public perception alone cannot justify a restriction on free speech – the First
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`Amendment, after all, restricts the government even though the government is chosen by the
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`people. See Don Herzog, The Kerr Principle, State Action, and Legal Rights, 105 Mich. L.
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`Rev. 1 (2006) (“Ordinarily, the state should do what citizens want… But sometimes the law
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`bars that responsiveness.”). Some of Goza’s statements may have been insensitive, offensive,
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`and even bigoted, but they were protected by the Constitution nonetheless. MLGW thus
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`violated Goza’s First Amendment rights when it demoted and fired him.
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`The Court also finds that MLGW terminated Goza in part because of his race. MLGW
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`decisionmakers explicitly mentioned Goza’s race as a reason for his termination. MLGW also
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`acted differently in the case of Deandre Stewart, a similarly situated African-American
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`employee, who received only a three-day suspension after he advocated killing Asian-
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`Americans because of their race. MLGW then took the unusual step of directing a subordinate
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`to write a report with the implicit goal of exonerating Stewart and downplaying his remarks.
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`The Court finds this to be an affirmative attempt to undermine the even-handed application of
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`MLGW policy. The Court considers this to be particularly strong evidence that MLGW’s
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`policies as applied to Goza were a pretext for discrimination.
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`I.
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`Background
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`Michael Goza worked as a Customer Service Tech III (a “Tech III”) for MLGW, a
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`division of the City of Memphis and the utility provider for electricity, gas, and water service
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`for Memphis and Shelby County. (Pl.’s Resp. Def.’s Statement of Material Facts, ECF 45-1 at
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`585-86.) Goza’s responsibilities included investigating and repairing problems with utility
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`services in customers’ homes. (Id. at 586.) Over thirty-two years of employment, Goza
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`received customer compliments and good reviews but no customer complaints. (Def.’s Resp.
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`Pl.’s Statement of Material Facts, ECF No. 48-1 at 803-804.)
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`On August 15, 2017, protesters gathered to support the removal of a statue of Jefferson
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`Davis from a public park in Memphis. (Trial Exhibits 6, 7.) Goza did not have work that day
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`and attended the rally to voice his opposition to the removal efforts. (Id.; Testimony of Michael
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`Goza, ECF No. 115 at PageID 2149.) Footage of Goza appeared on the nightly news and some
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`statements he made at the protest were reported in The Commercial Appeal the next day. (Trial
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`Exhibits 6, 7.) The Commercial Appeal quoted Goza as saying, “What I'm tired of is being
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`portrayed as KKK or a white supremacist simply because I'm a white guy who wants to preserve
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`my heritage.” (Trial Exhibit 7.)
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`On Facebook, Goza had made the following statements before the August 15, 2017 rally:
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`Lincoln himself wanted to send all of you back to Africa. Segregation? That’s a
`whole other topic. What has it accomplished other than to cause more division
`between the whites and blacks. You want to be with your kind. I want to be with
`mine. Blacks make up 13% of the population, but yet are responsible for almost
`80% of violent crime. Every city that’s a third world crap whole [sic] is a
`majority black and ran by blacks. I could not agree more about what the federal
`government has done to blacks however. They’re my enemy. I look at them as
`an enemy of Christianity. Planned Parenthood is defended by democrats mostly,
`but yet has murdered more blacks than all violent crime combined. I agree on
`the war on drugs. Its been used as an excuse to destroy our liberty while the
`government ships the drugs into our country and profits from it. Why else do
`you think that Heroin is epidemic while our troops guard the poppy fields in
`Afghanistan? So we may not agree on the South, but we can sure agree on the
`criminality of the federal government.
`(Trial Exhibit 2.)
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`You want to be with your kind. I want to be with mine, There’s no wrong it that.
`You celebrate your history, but you want to destroy mine. You have black history
`month, but being proud of white history is racist. That’s the hypocrisy I will
`never be at peace with. I work the streets of Memphis daily. The real racists are
`blacks. 90% of the blacks who are murdered are done so at the hands of other
`blacks. So if black lives matter, why don’t you clean up your own damn house
`before complaining about my history and blaming your problems on whitey.
`(Id.) When an individual on Facebook stated, “Signing won’t do shit. Until Southern supporters
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`get to the streets and riot like the ones pushing for removal. Eye for an[] eye,” Goza replied:
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`I couldn’t agree more. We at the League of the South are doing much more. We
`are getting in the streets. New Orleans was only a beginning. Charlottesville is
`this weekend and over a thousand [are] planning on going. We’re planning these
`all over South. The attacks have awakened more and more.
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`(Id.)
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`Goza’s appearance at the rally attracted the attention of individuals who began to
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`investigate Goza’s social media activity. (See generally Trial Exhibit 5.) At some point, these
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`persons learned that Goza worked for MLGW, perhaps because other MLGW employees told
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`them or perhaps because one of Goza’s Facebook pictures shows him in an MLGW truck. (See
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`Trial Exhibit 2, Trial Exhibit 5.) One complaint about Goza’s employment was shared twenty-
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`one times on Facebook. (Trial Exhibit 5.) Stacey Greenberg, MLGW Community Relations
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`Coordinator, testified that another post had been shared eighty-one times, although she was
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`unable to produce documentation supporting her assertion at trial. (See Testimony of Stacey
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`Greenberg, ECF No. 116 at PageID 2217.) Ten customers submitted complaints to MLGW
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`about Goza, but MLGW received no complaints after August 29, 2017. (Id. at PageID 2224.)
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`Goza’s appearance at the rally and his social media statements came to MLGW’s
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`attention as early as August 17, 2017. (Trial Exhibit 1.) Richard Thompson, an MLGW Senior
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`Communications Specialist, wrote in an August 17 email to Gale Carson, Vice President of
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`Communications, that “There is a vibrant movement to ‘out’ employees who are posting racist
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`memes, etc. on social media. Stacey [Greenberg] and I have encountered posts from folks who
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`come to our FB page to inform us because these employees self-identify themselves on FB.
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`This hasn’t turned into a story yet but it’s only a matter of time.” (Id.) On August 18, Carson
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`forwarded this email and the Facebook picture of Goza in an MLGW truck to: MLGW CEO
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`and President Jerry Collins, MLGW General Counsel and Vice President Cheryl Patterson, Vice
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`President of Customer Services Christopher Bieber, Vice President of Construction and
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`Maintenance Nicholas Newman, and Vice President of Human Resources Von Goodloe. (Trial
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`Exhibit 43.) Collins directed Goodloe to conduct a human resources investigation, and Goodloe
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`in turn delegated this task to Virginia Leonard, the Acting Manager of Employment Services.
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`(Trial Exhibit 1; Testimony of Virginia Leonard, ECF No. 114 at PageID 1670.) Leonard began
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`her investigation on August 18, 2017. (Testimony of Virginia Leonard, ECF No. 114 at PageID
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`1677.)
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`Goza resumed work on August 17, 2017, two days after the Jefferson Davis protest, and
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`worked without incident until August 21, 2017, when MLGW suspended him. (Testimony of
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`Virginia Leonard, ECF No. 114 at PageID 1758; Pretrial O., ECF No. 98 at PageID 1506.) By
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`August 21, MLGW had decided that Goza would be moved to a position in which he would not
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`have any potential contact with customers, despite, at that time, being unable to articulate an
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`MLGW policy that Goza had violated. (See Pl.’s Resp. Def.’s Statement of Material Facts,
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`ECF 45-1 at 585-86; see also Testimony of Virginia Leonard, ECF No. 114 at PageID 1692;
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`and see Emails, Trial Exhibit 31 (offering Collins’s opinion that Goza should be removed from
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`all customer contact).) On September 8, 2017, MLGW offered Goza the choice of working as
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`a Material Handler or being terminated. (Pretrial O., ECF No. 98 at PageID 1506.) The Material
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`Handler position had a twenty-two percent lower hourly pay rate than Goza’s Tech III position
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`and offered far less potential for overtime pay. (Id.) Under MLGW’s offer, Goza would be
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`forever unable to bid for any position that had any potential for customer contact. (Id.) At trial,
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`Goza testified that, after accounting for lost overtime, the demotion would constitute a fifty
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`percent pay cut. (Testimony of Michael Goza, ECF No. 116 at PageID 2165.) Goza refused
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`the Material Handler position on September 22, 2017 and was terminated on October 3, 2017.
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`(Pretrial O., ECF No. 98 at PageID 1506.)
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`Goza filed this lawsuit on December 1, 2017. (Complaint, ECF No. 1.) He alleges that
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`MLGW violated his right to free speech when it took disciplinary action against him. (Id. at
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`PageID 5-6.) Goza also claims that MLGW fired him because he is white. (Id.) Goza pursues
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`these claims under 42 U.S.C. §§ 1981 and 1983, which allow individuals to sue government
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`actors for violations of civil rights. (Complaint, ECF No. 1.) Goza asks for reinstatement as a
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`Customer Service Tech III, for backpay and lost benefits, and for compensatory damages. (Id.
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`at PageID 6-7; Pl.’s Post-Trial Mem., ECF No. 107 at PageID 1579-80.)
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`II.
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`Finality of Determination
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`A. Substantive Law
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`Before analyzing the merits of Goza’s claim, the Court considers the threshold question
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`of whether MLGW can be held liable in this case at all. A municipal defendant “cannot be held
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`liable under § 1983 on a respondeat superior theory.” Monell v. Dep’t of Soc. Servs., 436 U.S.
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`658, 691 (1978). Instead, a municipality is liable under § 1983 “only if a custom, policy, or
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`practice attributable to the municipality was the moving force behind the violation of the
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`plaintiff’s constitutional rights.” Gohl v. Livonia Pub. Sch. Sch. Dist., 836 F.3d 672, 685 (6th
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`Cir. 2016), cert. denied, No. 16-1001, 2017 WL 635927 (U.S. Oct. 2, 2017) (quoting Heyerman
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`v. Cty. of Calhoun, 680 F.3d 642, 648 (6th Cir. 2012)) (internal quotation marks omitted).
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` “[P]olicy or custom does not have to be written law; it can be created ‘by those whose
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`edicts or acts may fairly be said to represent official policy.’” Paige v. Coyner, 614 F.3d 273,
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`284 (6th Cir. 2010) (quoting Monell, 436 U.S. at 694 and citing Pembaur v. City of Cincinnati,
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`475 U.S. 469, 483 (1986)). The Sixth Circuit has held that:
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`A municipality can also be held liable for a single decision by a policymaker if
`the official is the one who has the final authority to establish municipal policy
`with respect to the action ordered. Similarly, a municipality can be liable for a
`decision made by a subordinate if the decision was ratified by a final
`policymaker. However, mere acquiescence in a single discretionary decision by
`a subordinate is not sufficient to show ratification.
`Arnold v. City of Columbus, 515 F. App'x 524, 538 (6th Cir. 2013) (internal citations and
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`quotation marks omitted) (quoting Feliciano v. City of Cleveland, 988 F.2d 649, 655 (6th Cir.
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`1993)). “Whether an official has final policy making authority is a question of state and local
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`law.” O'Brien v. City of Grand Rapids, 23 F.3d 990, 1001 (6th Cir. 1994).
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`B. Discussion
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`As a division of the City of Memphis, MLGW is a municipal defendant and may
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`therefore be liable in this case only if its actions were the result of a custom, policy, or practice.
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`Monell, 436 U.S. at 691. (Pl.’s Resp. Def.’s Statement of Material Facts, ECF 45-1 at 585-86.)
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`MLGW argues that no custom, policy, or practice caused Goza’s termination in this case. (ECF
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`No. 112 at PageID 1595-96.) MLGW further claims that even if the decisions at issue in this
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`case were “made or supported” by MLGW President Collins and Vice President of Human
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`Resources Goodloe, they are not attributable to MLGW itself as a government entity. (Id. at
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`PageID 1599.)
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`1.MLGW CEO and President Collins had the power to
`discipline employees
`MLGW claims that its policies do not allow Collins or Goodloe to make final and
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`unreviewable employment decisions. (ECF No. 112 at PageID 1599.) See Arnold, 515 F. App'x
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`at 538. Instead, MLGW argues that the Board of Directors “with the powers granted to it by
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`the City Charter” established a grievance resolution process as part of a Memorandum of
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`Understanding between MLGW and its labor union. (ECF No. 112 at PageID 1599.) MLGW
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`claims that in doing so “the Board created a custom” under which MLGW’s employment
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`decisions would not be final until the conclusion of this grievance process. (Id.)
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`“A federal court would not be justified in assuming that municipal policymaking
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`authority lies somewhere other than where the applicable law purports to put it.” City of St.
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`Louis v. Praprotnik, 485 U.S. 112, 126 (1988). To determine whether the law delegates final
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`and unreviewable authority to Collins, the Court considers the City Charter and the
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`Memorandum of Understanding. The Court need not consider testimony regarding MLGW
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`employees’ understanding of who the final decisionmaker is. See Id. (“[A] a federal court
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`would not be justified in assuming that municipal policymaking authority lies somewhere other
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`than where the applicable law purports to put it. And certainly there can be no justification for
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`giving a jury the discretion to determine which officials are high enough in the government that
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`their actions can be said to represent a decision of the government itself.”) (See ECF No. 112
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`at PageID 1597, 1599.)
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`The Article of the City Charter that establishes MLGW also charges the MLGW
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`President, “subject to the regulations of the board of Light, Gas and Water Commissioners,”
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`with the duty of “general supervision over the operation of said light, gas and water division
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`and of all officers and employees of said light, gas and water division.” Memphis City Charter,
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`Part I, Art. 65, § 672. The Charter also requires that “the powers hereby granted,” including the
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`powers granted to the President, “be liberally construed to effectuate the purposes hereof.” Id.
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`at § 699. “Liberally construed,” the President’s power of general supervision over employees
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`includes the authority to make final disciplinary decisions. See id. at § 672, 699. Although the
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`President is required to make regular reports to the Board of Commissioners, the City Charter
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`does not require that the Board ratify, review or approve individual operational decisions. Id.
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`at § 672. The City Charter empowers the President to make municipal policy related to
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`employee supervision and discipline. See Feliciano, 988 F.2d at 655; Pusey v. City of
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`Youngstown, 11 F.3d 652, 659 (6th Cir.1993).
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`MLGW argues that the President’s powers as set out by the Charter are subject to the
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`Board’s “exclusive authority to engage, determine the number of, and fix the duties and salaries
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`of all employees.” (Mem. of Understanding, Trial Exhibit 48 at 4.) MLGW claims that the
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`Board exercised this authority when it entered into the Memorandum of Understanding with its
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`labor union. (ECF No. 112 at PageID 1599.) MLGW contends that Collin’s decisions are not
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`municipal policy, because under the Memorandum the President’s decisions are subject to
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`review through a grievance resolution process. (Id.)
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`MLGW asks the Court to apply the Supreme Court’s reasoning in Praprotnik, 485 U.S.
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`at 126, as the Court considers the issue of final policymaking authority. (ECF No. 112 at PageID
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`1597.) In Praprotnik, the Supreme Court found that St. Louis’s City Charter established a Civil
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`Service Commission “[t]o consider and determine” employment matters upon reference or
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`appeal. 485 U.S. at 129. The Charter provision relied on by the Supreme Court stated that the
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`Civil Service Commission had the power:
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`To consider and determine any matter involved in the administration and
`enforcement of this [Civil Service] article and the rules and ordinances adopted
`in accordance therewith that may be referred to it for decision by the director [of
`personnel], or on appeal by any appointing authority, employee, or taxpayer of
`the city, from any act of the director or of any appointing authority. The decision
`of the commission in all such matters shall be final, subject, however, to any
`right of action under any law of the state or of the United States.
`Praprotnik, 485 U.S. at 129 (insertions in original) (quoting St. Louis City Charter, Art. XVIII,
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`§ 7(d) (1988)). The Supreme Court concluded that the plaintiff had not been terminated through
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`operation of an official policy, because, in light of the Civil Service Commission’s powers, the
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`City Charter did not empower his immediate supervisor or his department head to make final
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`decisions. Praprotnik, 485 U.S. at 129.
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`The Memorandum of Understanding’s grievance resolution process differs significantly
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`from the St. Louis City Charter reviewed in Praprotnik and from the review boards examined
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`in other cases. Praprotnik, 485 U.S. at 129; see Meyers v. City of Cincinnati, 14 F.3d 1115,
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`1118 (6th Cir. 1994) (discussing powers of the Civil Service Commission established under
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`Ohio law). In this case, the Memorandum does not empower any person or entity to “consider
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`and determine” issues. See Praprotnik, 485 U.S. at 129. To the contrary, the express goal of
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`the Memorandum’s grievance procedure is “to reach an understanding” and to ensure that
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`“grievances [are] settled in an orderly, prompt and equitable manner.” (Mem. of Understanding,
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`Exhibit 43 at 35.)
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`The Memorandum of Understanding’s grievance process is thus not an appeal nor a
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`determination, but rather a mechanism for facilitating settlement between the labor union and
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`MLGW. (Mem. of Understanding, Exhibit 43 at 4.) Step 1 of the grievance process is an “oral
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`discussion” between the employee and his supervisor “to encourage a cooperative and direct
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`resolution of differences.” (Id. at 36.) The employee’s supervisor is required to give an oral
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`answer at Step 1, but any resolution at this phase is a “settlement” rather than a determination
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`or a finding. (Id.) At Step 2, the employee provides a written grievance and then has a
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`“meeting” with his Department Head and other members of management “in an effort to settle
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`the grievance.” (Id.) The Department Head is required to issue a “written decision” after the
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`meeting, but this document is a “settlement” or an “answer” rather than an MLGW
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`determination. (Id.)
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`Step 3 allows for a discretionary referral of unresolved grievances to the Manager of
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`Labor and Employee Relations. (Mem. of Understanding, Trial Exhibit 48 at 36.) After this
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`referral, the employee, the Manager of Labor and Employee Relations, and the Union Business
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`Manager meet “for the purpose of adjusting the grievance to the satisfaction of the parties.” (Id.
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`at 36.) Witnesses may be called during Step 3 for a “hearing phase” during which the goal
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`remains “to resolve the grievance” rather than to make any factual determinations or review
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`previous decisions. (Id. at 37.) If no settlement is reached, the Manager (or Assistant Manager)
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`of Labor and Employee Relations and the Union Business Manager are to convene and make
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`“every effort” “to review the facts objectively and to dispose of the grievance. Any agreement
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`reached will be the final disposition of the grievance.” (Id.) The emphasis remains on
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`negotiation rather than determination. Compare with Praprotnik, 485 U.S. at 129 (discussing
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`the power “to consider and determine” issues). MLGW is required to provide “an answer in
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`writing to the Union” but is not otherwise called upon to make a determination or decision.
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`(Mem. of Understanding, Exhibit 43 at 37.)
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`Step 4 provides for arbitration, at which the arbitrator will hear evidence and provide a
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`written decision. (Id.) The Memorandum of Understanding limits the arbitrator’s jurisdiction,
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`however, to issues involving working conditions and the “interpretation, application or
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`performance of specific provisions of this Memorandum of Understanding.” (Id. at 38.) The
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`outside arbitrator is not empowered to decide what MLGW’s decision is, but rather to determine
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`whether MLGW’s final decision complies with the terms of the Memorandum. (Id.)
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`This case does not resemble Praprotnik or Meyers because the Memorandum of
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`Understanding establishes no mechanism for determining issues.1 Praprotnik, 485 U.S. at 129;
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`Meyers, 14 F.3d at 1118. Instead, the Memorandum creates an environment for settlement and
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`negotiation. (See Mem. of Understanding, Exhibit 43 at 4, 35-38.) The creation of a settlement
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`negotiation process does not affect the finality of the underlying decisions under Praprotnik.
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`485 U.S. at 129. The City of St. Louis could have always offered to rehire the plaintiff as part
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`of a settlement agreement, but that does not affect the finality of the termination decision. See
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`id. The Memorandum of Understanding’s grievance settlement process does not limit the power
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`of the MLGW President/CEO to make final and unreviewable employment determinations as
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`set out by the Charter. Collins’s decisions as to individual disciplinary issues are therefore
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`MLGW policy.
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`2.Collins ratified the disciplinary decision in this case
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`MLGW also argues that, even if MLGW policy allowed Collins to make final
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`employment decisions or to ratify the employment decisions of subordinates, no such decision
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`or ratification occurred in this case. (ECF No. 112 at PageID 1599.) MLGW further contends
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`that “Mr. Collins and Mr. Goodloe merely acquiesced to decisions rendered by Ms. Leonard,
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`and per Supreme Court precedent, mere acquiescence [is] not sufficient to show ratification.”
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`1 In a separate section governing discharge, the Memorandum of Understanding states that a discharged
`employee may be reinstated if the “discharge is found to be wholly unjustified.” (Exhibit 43 at 18.) Notably, the
`grievance resolution procedure does not allow for such a finding to be made at any stage. (Id. at 35-38.)
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`(Id.) See Praprotnik, 485 U.S. at 130. “Ratification… requires affirmative approval of a
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`particular decision made by a subordinate.” Feliciano v. City of Cleveland, 988 F.2d 649, 656
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`(6th Cir. 1993).
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`Virginia Leonard, the Acting Manager of Employment Services and MLGW’s
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`investigator in this case, testified at trial that she alone made the decision to demote Goza to the
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`Material Handler position. (Testimony of Virginia Leonard, ECF No. 114 at PageID 1719,
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`1800-01.) After considering Leonard’s prior statements, the Court did not find Leonard’s
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`testimony on this point to be credible. (See id.) Leonard had testified during an earlier
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`deposition that the decision to demote Goza was made in concert with Goodloe and Bieber and
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`that Collins preferred that Goza be terminated. (Dep. of Virginia Leonard, ECF No. 39-4 at
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`PageID 232; see Testimony of Virginia Leonard, ECF No. 114 at PageID 1720.) At trial,
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`Leonard testified that Goodloe, Bieber, and Collins all “signed off” on the decision to demote.
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`(Testimony of Virginia Leonard, ECF No. 114 at 1721.)
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`In addition to Leonard’s deposition testimony, the Court heard other evidence that
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`Collins ratified the decision to demote and terminate Goza. During Leonard’s August 21, 2017
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`investigatory hearing with Goza, Union Representative Patrick Epps asked why Goza was being
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`treated differently than a past employee: “The reason why I guess I question this… 7, 8 years
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`ago I was in a similar hearing with David Hoxsey (phonetic) who had questions brought up
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`about him celebrating the sons of confederate veterans.” (Hearing Transcript, Trial Exhibit 9
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`at 20; Hearing Recording, Trial Exhibit 8.) Leonard responded, “What we didn’t have in David
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`Hoxsey’s day was this level of social media. We didn’t have this level of interactions with
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`people in the public that have already taken their concerns to Jerry Collins and to the Mayor.”
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`(Id. at 21.) After receiving complaints from the public, Collins instructed Goodloe to investigate
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`Goza’s protest and Facebook activity. (Trial Exhibit 44.) On September 7, 2017, Collins
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`emailed Leonard, Goodloe, and Bieber to say that he “would rather [Goza] be in contact with
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`contractors than customers.” (Emails, Trial Exhibit 31.) MLGW offered Goza the choice of
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`working as a Material Handler or being terminated the next day. (Pretrial O., ECF No. 98 at
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`PageID 1506.)
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`Together, the evidence preponderates in favor of a finding that Collins suggested and
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`then ratified the decision to demote and terminate Goza. Collins knew about the initial
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`complaints about Goza, which caused him to order Goodloe to conduct an investigation. (Trial
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`Exhibit 44.) Leonard stated that she treated Goza differently in part because Collins was aware
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`of Goza’s conduct. (Trial Exhibit 9 at 20.) Collins provided his opinion as to the proper
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`consequences for Goza’s conduct on the last day of the decision-making process. (Trial Exhibit
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`31.) Collins was involved at the inception of the investigation and its conclusion. The decision
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`to demote and discharge Goza was affirmatively approved and ratified by Collins; it was
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`therefore MLGW’s policy. See Arnold, 515 F. App'x at 538; Feliciano, 988 F.2d at 656;
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`Praprotnik, 485 U.S. at 130.
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`III.
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`First Amendment
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`A. General Substantive Law
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` “[R]etaliation under color of law for the exercise of First Amendment rights is
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`unconstitutional…” Zilich v. Longo, 34 F.3d 359, 365 (6th Cir.1994), cert. denied, 514 U.S.
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`1036 (1995). “[P]ublic employers may not condition employment on the relinquishment of
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`constitutional rights.” Lane v. Franks, 134 S. Ct. 2369, 2377 (2014); see also Holbrook v.
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`Dumas, 658 Fed. Appx. 280, 282-83 (6th Cir. 2016). A public employee may therefore bring a
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`First Amendment retaliation claim under 42 U.S.C. § 1983. See, e.g., Valot v. Southeast Local
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`Sch. Dist. Bd. of Educ., 107 F.3d 1220, 1226 (6th Cir. 1997), cert. denied, 522 U.S. 861 (1997).
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`A claim of free speech retaliation by a public employer under § 1983 requires proof of
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`three elements: “(1) the plaintiff engaged in protected conduct; (2) an adverse action was taken
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`against the plaintiff that would deter a person of ordinary firmness from continuing to engage
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`in that conduct; and (3) the adverse action was motivated at least in part by the plaintiff’s
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`protected conduct.” Bickerstaff v. Lucarelli, 830 F.3d 388, 399 (6th Cir. 2016) (alteration
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`omitted). The first two elements are “threshold” questions which, if answered in the affirmative,
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`lead to the third. Miller v. City of Canton, 319 Fed. Appx. 411, 416 (6th Cir. 2009).
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`The third element of a § 1983 First Amendment retaliation claim requires the plaintiff
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`to “demonstrate that the speech at issue represented a substantial or motivating factor in the
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`adverse employment action.” Rodgers v. Banks, 344 F.3d 587, 602 (6th Cir. 2003). To do so,
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`the plaintiff “must produce enough evidence of a retaliatory motive such that a reasonable juror
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`could conclude that the [adverse action] would not have occurred but for [the plaintiff’s]
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`engagement in protected activity.” See Eckerman v. Tennessee Dep’t of Safety, 636 F.3d 202,
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`209 (6th Cir. 2010). The plaintiff “must point to specific, nonconclusory allegations reasonably
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`linking her speech to employer discipline.” Rodgers, 344 F.3d at 602 (quoting Bailey v. Floyd
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`Cty. Bd. of Educ. By & Through Towler, 106 F.3d 135, 144 (6th Cir. 1997)).
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`B. Goza Spoke as a Private Citizen on Matters of Public Concern
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`The Court begins by considering whether Goza engaged in constitutionally protected
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`speech. Bickerstaff, 830 F.3d at 399. To show “that his speech was constitutionally protected,
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`a public employee must show (1) that he was speaking as a private citizen, rather than pursuant
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`to his official duties; (2) that his speech involved a matter of public concern; and, (3) if so, that
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`his interest as a citizen in commenting on the matter outweighed the interest of the State, as an
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`employer, in promoting the efficiency of the public services it performs through its employees.”
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`Westmoreland v. Sutherland, 662 F.3d 714, 718–19 (6th Cir. 2011) (internal citations and
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`quotation marks omitted) (numerals added).
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`Goza attended the August 15, 2017 Jefferson Davis protest on his day off, so his
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`statements at the rally were made as a private citizen. (Testimony of Michael Goza, ECF No.
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`116 at PageID 2149.) MLGW introduced no evidence to suggest that Goza made his Facebook
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`posts while at work. Goza’s Facebook profile did include a picture of him and his daughter in
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`an MLGW truck, but this picture does not establish his Facebook statements were made
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`“pursuant to official duties.” Miller v. City of Canton, 319 F. App'x at 417 (explaining that
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`speech is “pursuant to official duties” if making such statements is what the individual is
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`“employed to do”). (Trial Exhibit 1.) While Goza’s statements on Facebook may have been
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`offensive, he expressed opinions on matters of public concern, including race, abortion, federal
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`policy, and monuments to Confederate