James Taylor and Sheldon Scott were police officers in South Bend, Indiana. Taylor began in 1993 and was promoted to detective in 2005. He received numerous disciplinary actions, warnings, and reprimands throughout his career for an assortment of issues – mostly report writing. Scott began working as a police officer in 2003, spending most of his career as a task force officer with the ATF. Although Scott remained a city employee, his day-to-day responsibilities were largely dictated by the federal agency to which he was assigned. Scott maintained some responsibilities with the police department, including serving as assistant commander of the Drug Investigation Unit (DIU).
In 2012, the City Common Council sued the City for recording and disseminating phone calls made on the Department’s phone lines. In 2018, Taylor and Scott intervened in the lawsuit to stop the release of recorded conversations they had with another officer.
Taylor and Scott claim that the City began to retaliate against them after intervening in the lawsuit. In Taylor’s case, he was written up by both of his supervisors in 2020 for multiple issues relating to his written reports. He was placed on a Performance Improvement Plan and served a one-day suspension. While on the improvement plan, Taylor apparently disregarded a direct order and failed to submit a report. The chief of police became concerned about Taylor’s behavior and performance and suspected that he suffered from memory loss. At the recommendation of the City’s HR department, the chief placed Taylor on light duty status pending a fitness-for-duty evaluation. Taylor returned to full duty two weeks later, completed the improvement plan, and retired soon thereafter.
Meanwhile, Scott was investigated in late 2019 and 2020 along with multiple DIU officers. During that investigation, internal affairs learned that Scott was involved in a bar fight where he punched a local prosecutor. The DIU was disbanded due to a lack of oversight. Later in 2020, the City imposed term limits on task force assignments like Scott’s assignment with the ATF. Scott reapplied to his position but was not selected by the ATF, so he returned to ordinary patrol.
Taylor and Scott sued the City, arguing that they were retaliated against for exercising their First Amendment rights by participating in the phone-tap lawsuit. Taylor alleged that his discipline in 2020 was retaliatory while Scott alleged that the City’s decision to impose term limits and allow other officers to apply for his position with the ATF, were also retaliatory. The City moved for summary judgment, which the Court granted.
In reaching its conclusion, the Court analyzed whether Taylor and Scott’s participation in the lawsuit was the type of speech protected by the First Amendment: “For a public employee’s speech to be protected under the First Amendment, the employee must show that (1) he made the speech as a private citizen; (2) the speech addressed a matter of public concern; and (3) his interest in expressing that speech was not outweighed by the state’s interests as an employer in promoting effective and efficient service.” The parties agreed that Taylor and Scott entered the lawsuit as private citizens, so the relevant analysis was whether their speech addressed a matter of public concern.
“Whether speech addresses a matter of public concern depends upon ‘the content, form, and context of the speech as revealed by the whole record.’ Speech is a matter of public concern if it relates to a matter of political, social, or other concern to the community, rather than merely a personal grievance of interest only to the employee.” The Court determined that Taylor and Scott were not speaking on a matter of public concern while participating in the lawsuit, because they were exclusively concerned with protecting themselves from disclosure of their recorded phone conversations.
As the Court put it: “Their intervention concerned personal grievances of interest only to Taylor and Scott and not a matter of public concern – that is, their expression addressed only something of personal effect and interest to them. The form of expression was public, but the content and context of expression were personal. Though the suit may have concerned a subject of public interest – like many lawsuits do – their speech within this arena did not automatically make their remarks a matter of public concern, not when the content and context of their remarks, and their motive for making them, promoted only their private interests. When ‘the speech concerns a subject of public interest, but the expression addresses only the personal effect upon the employee, then as a matter of law the speech is not of public concern.’”
Scott v. City of South Bend, Cause No. 3:21-CV-223 DRL, 2024 WL 260703 (N.D. Ind.).