by Christopher Zoukis

Joseph Boulton, a jail guard at the Genesee County, Michigan jail, lost his claim alleging unconstitutional retaliation for protected speech on July 29, 2015.

During union arbitration proceedings, Boulton testified that Sheriff Christopher Swanson had misrepresented the amount of Taser, firearm and CPR training that Sheriff's Office employees received. He also shared his concerns about the lack of training with "co-workers, colleagues, family, friends and members of Genesee County both during [his] time on duty and time off duty as a private citizen."

Boulton's critical comments put a bee in someone's bonnet. Immediately following his statements, Boulton found himself the subject of several investigations. He was suspended without pay, and ultimately demoted for creating a "hostile" and "unprofessional" environment for his subordinates and also for making derogatory and sexist comments to female pretrial detainees in the jail.

Most notably, however, Boulton was found to have violated a Sheriff's Department regulation, titled "Section 4.10 Criticism." This section allowed a Sheriff's Office employee to be disciplined for "criticizing or ridiculing" the Sheriff's Office.

This policy, and Boulton's alleged violation thereof, became the basis for a lawsuit against Sheriff Swanson and Genesee County. Boulton alleged that the policy, as well as the retaliatory nature of the investigations launched against him, were violations of his First Amendment right to free speech.

On appeal, the Sixth Circuit agreed with Boulton that his critical speech was protected. In order to reach this conclusion, the court analyzed whether Boulton was speaking as a citizen, and whether the topic was a matter of public concern. The court held that "speech in connection with union activities is speech 'as a citizen' for purposes of the First Amendment," and that commentary on the appropriate levels of police training relating to use of force is a matter of public concern. As such, Boulton's speech at the arbitration proceeding was clearly protected by the First Amendment.

Unfortunately for Boulton, the court also found that he failed to "adequately tie" the disciplinary action taken against him to the speech he made. In other words, the court did not believe that the disciplinary action taken against him was solely a result of criticizing the Sheriff. Instead, the court found that Boulton could not show that his discipline didn't result from the other alleged violations, including lying to supervisors, harassing prisoners, and interfering with an investigation.

The decision is important because it firmly establishes a public employee's right to be free from retaliation for making candid and critical remarks during union proceedings, when such remarks are related to a matter of public concern. But it also offers a lesson to future litigants: be sure that you can directly tie retaliatory action to your protected speech before you sue in the Sixth Circuit. 

See: Boulton v. Swanson, 795 F.3d 526 (6th Cir. 2015).

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