GEORGE C. SMITH, District Judge.
This matter is before the Court on Plaintiff's Motion for Partial Summary Judgment (Doc. 47), Defendants' Motion for Summary Judgment (Doc. 50), and what is fairly characterized as a motion by Defendants for leave to supplement their motion for summary judgment (Doc. 54). All motions are fully briefed and ripe for decision. For the reasons that follow, the Court
Plaintiff, Jason Gross, was employed by the Village of Minerva Park as a police officer. (Doc. 47, Ex. 1, Adm. by Def. at 5). Defendant, Lynn Eisentrout, is Mayor of the Village. (Doc. 51, Ex. 3, Eisentrout Depo. at 7:7-7:9). Defendant, Kimberly Nuesse, is the Chief of Police for the Village. (Doc. 27, 2d. Amend. Compl. at ¶ 6; Doc. 28, 4th Answer at ¶ 6).
On July 18, 2011, following allegations that, among other things, Gross had misrepresented department policy to other organizations, Eisentrout wrote a letter to Gross in which she purported to terminate Gross' employment as a police officer. Eisentrout wrote:
(Doc. 53, Ex. A, Eisentrout Ltr. 07/18/11). Gross was served with this letter on July 18, 2011, by hand delivery at the same time he was first given notice of the charges against him. (Doc. 51, Ex. 3, Eisentrout Depo. at 47:4-47:9; Doc. 47, Ex. 2, Eisentrout Council Testimony at 200:11-200:22; Doc. 56, Ex. 2, Nuesse Council Testimony at 172:9-172:20). A few days later, through counsel, Gross expressed his intention to appeal.
Eight days after Eisentrout's letter, on July 26, 2011, Jennifer Croghan, Solicitor/Law Director for the Village of Minerva Park, sent a letter to Gross' counsel explaining that, in light of his decision to appeal, Gross would be placed on paid administrative leave with pay and benefits dating back to July 18, 2011, pending the appeal. (Doc. 53, Ex. B, Croghan Aff. at ¶ 4). This letter spawned a series of communications between Croghan and Gross' counsel, Grant Shoub, regarding whether the termination by Eisentrout was indeed a termination or merely a "proposed termination" or "recommendation to terminate." (See Doc. 53, Exs. B1-B4, Croghan/Shoub Ltrs. 07/26/11). With neither side agreeing on the appropriate nomenclature, the appeal Gross sought went forward, with hearings before the Village Council on the matter of Gross' continued
Following deliberations in the wake of the September 26th hearing, the Council "modifie[d] the Mayor's termination of Jason Gross as a police officer for the Village of Minerva Park" and instead "set[] forth [] discipline for the violation(s)" which took the form of "a three-week suspension without pay ...." Id. at 6. The suspension began on September 27, 2011. Id.
Following the suspension, and his reinstatement, on December 7, 2011, Gross filed a lawsuit in the Franklin County Court of Common Pleas. (Doc. 3, Compl.). That case, once removed by Defendants, became this case, number 2:12-cv-12. (Doc. 2, Not. of Remov.). In the course of litigating, the parties participated in mediation sessions on June 29, 2012, and July 25, 2012, before a magistrate judge of the United States District Court for the Southern District of Ohio. Neither mediation resulted in the settlement of the lawsuit.
On August 1, 2012, Gross received a "Memo" informing him that he was being placed on "paid administrative leave pending an investigation of [his] recent conduct which may result in disciplinary action." (Doc. 27, Ex. D, Nuesse Memo. 08/01/12 at 1). This was followed, on August 10, by a 12-page letter from Nuesse (that copied Eisentrout) alleging a "continued pattern of incompetence, neglect of duty and failure to obey orders" and recommending that the Mayor terminate Gross' employment with the police. (Doc. 27, Ex. E, Nuesse Ltr. 08/10/12 at 1, 12). Nuesse's letter advised Gross that within five days, the Mayor would "inquire into the matter and render judgment on it." Id. at 12. He could, Nuesse's letter said, advise the Mayor within those five days that he would like to meet with the Mayor to "discuss the[] charges as part of her inquiry ...." Id.
The same day, August 10, Gross gave the letter to his attorney. (Doc. 51, Ex. 1, Gross Depo. at 63:4-63:21, 145:19-146:9; see also Doc. 51, Ex. 4, Depo. Ex. A, Nuesse Ltr. 08/10/12). Within the 5-day window, on August 13, 2012, Gross' attorney requested a "pre-disciplinary hearing" and copies of several documents in order to prepare. (Doc. 51, Ex. 4, Depo. Ex. E, Shoub Ltr. 08/13/12). The Village responded the next morning with the requested documents and a letter. (Doc. 51, Ex. 4, Depo. Ex. F, Croghan Ltr. 08/14/12). In the letter, the Village Law Director opined that the Mayor was not required by law to grant Gross a "pre-disciplinary hearing" but did offer a meeting with the Mayor at 6:15 p.m. that day or any time between 7:30 a.m. and 10:00 a.m. the next day. Id. at 1. Gross' counsel responded that same day by letter. (Doc. 51, Ex. 4, Depo. Ex. G, Shoub Ltr. 08/14/12). He explained that neither he nor Gross were available during the offered times and that, in any case, such short notice would not give him time to review materials in preparation for the meeting. Id. Neither Gross nor his attorney met with the Mayor. (Doc. 51, Ex. 1, Gross Depo. at 146:17-150:12). Thus, on August 15, the Mayor again issued a letter (substantially identical to that issued in July of 2011) purporting to terminate Gross' employment. (Doc. 51, Ex. 4, Depo. Ex. C, Eisentrout Ltr. 08/15/12). However, unlike the July event, Gross did not appeal this action to the Village Council. (Doc. 51, Ex. 1, Gross Depo. at 34:18-41:4) (Gross explaining that he did not appeal). Thus, on August 15, Gross was terminated and this time, he remained so.
In this lawsuit, Plaintiff, Jason Gross, sues Defendants, Lynn Eisentrout and Kimberly Nuesse, both in their individual capacities and in their capacities as Mayor and Chief of Police of the Village of Minerva Park, respectively. (Doc. 27, 2d.
Plaintiff has moved for partial summary judgment on his due process claim against Eisentrout arising out of her failure to provide him with a pre-disciplinary hearing before allegedly terminating his employment on July 18, 2011. (Doc. 47, P. Mot. for Part. SMJ). Defendants have also moved for summary judgment as to all claims. (Doc. 50, D. Mot. for SMJ).
The standard governing summary judgment is set forth in Rule 56(a) of the Federal Rules of Civil Procedure, which provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."
Summary judgment will not lie if the dispute about a material fact is genuine; "that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is appropriate, however, if the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. See Muncie Power Prods., Inc. v. United Techs. Auto., Inc., 328 F.3d 870, 873 (6th Cir.2003) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
When reviewing a summary judgment motion, the Court must view all the facts, evidence and any reasonable inferences that may permissibly be drawn from the facts, in favor of the nonmoving party. See, e.g., Crawford v. Metro. Gov't, 555 U.S. 271, 274 n. 1, 129 S.Ct. 846, 172 L.Ed.2d 650 (2009) (quoting Brosseau v. Haugen, 543 U.S. 194, 195, n. 2, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004)); Muncie Power Prods., Inc., 328 F.3d at 873 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). The Court will ultimately determine whether "the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Lobby, 477 U.S. at 251-52, 106 S.Ct. 2505. Moreover, the purpose of the procedure is not to resolve factual issues, but to determine if there are genuine issues of fact to be tried. Lashlee v. Sumner, 570 F.2d 107, 111 (6th Cir. 1978). The Court's duty is to determine only whether sufficient evidence has been presented to make the issue of fact a proper question for the jury; it does not weigh the evidence, judge the credibility of witnesses, or determine the truth of the matter. Liberty Lobby, 477 U.S. at 249, 106 S.Ct. 2505; Weaver v. Shadoan, 340 F.3d 398, 405 (6th Cir.2003).
For the reasons that follow, the Court shall
Defendants, shortly after filing their motion for summary judgment, and before Plaintiff responded, moved to supplement their summary judgment motion with facts not originally submitted in support of their motion. (Doc. 54, D. Mot. to Supp.). Plaintiff opposes this motion. (Doc. 55, P. Re. in Opp. to Mot. to Supp.). However, the evidence establishing the facts was attached to Defendants' response to Plaintiff's Motion for Partial Summary Judgment. (Doc. 53, Ex. A). Thus, the evidence is already within the summary judgment record and the motion, therefore, is of little remaining import. Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (citing First Nat. Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)) ("Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'").
To establish a claim for a Fourteenth Amendment due process violation, a would-be claimant must first prove a property right of constitutional significance. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985); (see also Doc. 47, P. Mot. for SMJ at 1; Doc. 50, D. Mot. for SMJ at 9). Second, the claimant must prove that he was deprived of this right without "constitutionally adequate procedures" to justify the deprivation. Loudermill, 470 U.S. at 541, 105 S.Ct. 1487; (Doc. 47, P. Mot. for SMJ at 7-9; Doc. 50, D. Mot. for SMJ at
Both sides agree, correctly, that Gross had a constitutionally protected property right in his continued employment. (Doc. 47, P. Mot. for SMJ at 5-6; Doc. 50, D. Mot. for SMJ at 9). Indeed, this Court has previously considered the exact question at bar and concluded that village police officers in Ohio have a property interest in their employment:
Neither party disputes what was said and done in relation to the alleged firing on July 18, 2011. The parties agree, for instance, that, on July 18, 2011, Eisentrout sent a letter to Gross stating:
(Doc. 53, Ex. A, Eisentrout Ltr. 7/18/11). Neither side disputes that, on July 26, 2011, Jennifer Croghan, Solicitor/Law Director for the Village of Minerva Park, sent a letter to Gross' counsel explaining that, in light of his decision to appeal, Gross would be placed on paid administrative leave with pay and benefits dating back to July 18, 2011, pending the appeal of the termination. (Doc. 53, Ex. B, Croghan Aff. at ¶ 4). Neither side disputes that the Village solicitor and Gross' counsel exchanged correspondence about whether the termination by Eisentrout was indeed a termination or merely a "proposed termination" or "recommendation to terminate." (See Doc. 53, Exs. B1-B4, Croghan/Shoub Ltrs. 07/26/11). Records confirm that Gross was treated (after deciding to appeal) as if he were on administrative leave and neither side has argued with this fact. (Doc. 53, Ex. C-1, Gross Timesheets/Pay Recs. in passim).
The question, however, is: On these undisputed facts, was Jason Gross terminated or placed on administrative leave on July 18, 2011? Making such a factual characterization might, under some circumstances, be perceived as inappropriate in deciding summary judgment. However, a number of factors (not least that there is no dispute about what happened — only how to characterize what happened) convince the Court that, in this case, it is not inappropriate.
First, Defendants have repeatedly admitted in this litigation that Eisentrout's action, on July 18, 2011, was a termination. Plaintiff alleged in each of his three complaints that Gross' employment was terminated by Eisentrout on July 18, 2011, and Defendants, in four corresponding answers — including the currently operative complaint and answer — admitted the fact. (See Doc. 3, Compl. at ¶ 15 and Doc. 6, Answer at ¶ 12 and Doc. 7, Amend. Answer at ¶ 12; Doc. 15, Amend. Compl. at ¶ 16 and Doc. 16 3d. Answer at ¶ 16; Doc. 27 2d. Amend. Compl. at ¶ 8 and Doc. 28, 4th Answer at ¶ 8); see also Hughes v. Vanderbilt Univ., 215 F.3d 543, 549 (6th Cir.2000) ("Plaintiffs are bound by admissions in their pleadings...."); Ferguson v. Neighborhood Hous. Servs., Inc., 780 F.2d 549, 551 (6th Cir.1986) (quoting Brown v. Tennessee Gas Pipeline Co., 623 F.2d 450, 454 (6th Cir.1980)) ("This court has observed
Second, there are facts in the summary judgment record that suggest that Defendant's original characterization of the July 18, 2011 action is the correct one. For instance, although Plaintiff was awarded pay and considered placed on administrative leave as of July 18, 2011, this action did not occur until days after his firing — and only then, at the prompting of Plaintiff's counsel. (Doc. 53, Ex. B-2, Croghan Ltr. 07/26/11). That is, only on July 21, 2011, did Gross' attorney write to the Village Law Director "appealing the termination of Jason Gross to [sic] Village Council." Id. And only days after that, did the Law Director say, "Pending his appeal, Jason Gross will be on paid administrative leave." Id. That is, from July 18, 2011, until appealing, Plaintiff was fired and, had he not appealed, it is clear he would have remained so. In addition, Mayor Eisentrout admitted, both in testimony before the Village Council and in deposition in this case, that she had, as of her letter on July 18, 2011, made the decision to fire Gross. (Doc. 47, Ex. 2, Eisentrout Council Testimony at 198:24-199:6; Doc. 51, Ex. 3, Eisentrout Depo. at 46:15-47:13). Moreover, the Village (as spoken for by the Village Council) clearly recognized that Gross had been terminated when, following the September 26th appeal hearing, the Council wrote that it "hereby modifies the Mayor's termination of Jason Gross as a police officer for the Village of Minerva Park...." (Doc. 27, Ex. B, Council Rpt. at 6).
On July 18, 2011, Jason Gross was fired. That he was retroactively placed on administrative leave, or that his appeal was ultimately successful, does not alter the fact that on July 18, 2011, he was fired. Moreover, as should be clear from the factual recitation above, the mayor, Eisentrout, is the defendant who made the decision to fire Gross. As Eisentrout says in her July 18 letter, Chief Nuesse merely recommended the firing. (Doc. 53, Ex. A, Eisentrout Ltr. 7/18/11). In short, Gross was fired, on July 18, by Eisentrout. Thus, the question now is: Did he receive the process that was due to him before being firing?
Plaintiff was entitled to some kind of hearing prior to being fired. Indeed, the Supreme Court has "described `the root requirement' of the Due Process Clause as being `that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.'" Loudermill, 470 U.S. at 542, 105 S.Ct. 1487 (emphasis in original) (quoting Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971)). "This principle," the Court specified, "requires `some kind of a hearing' prior to the discharge of an employee who has a constitutionally protected property interest in his employment." Id. (citing Board of Regents
Loudermill, 470 U.S. at 542-43, 105 S.Ct. 1487. In other words, it is too late to present one's side of the story once the decision-maker has already announced a decision. Thus, if the constitutional guarantee of due process is to be respected, a person must have an opportunity to present his side of the story before a decision is rendered.
Not only does Loudermill provide the law in this matter, it also provides an edifying factual example. In Loudermill, one of the plaintiffs was Richard Donnelly — a bus mechanic. 470 U.S. at 536, 105 S.Ct. 1487. He alleged in his complaint that he was fired, without any pre-discipline hearing, after failing an eye exam, but was reinstated following an appeal. Id. at 536-37, 105 S.Ct. 1487. Because Donnelly alleged that he had no chance to tell his side of the story prior to the firing, the U.S. Supreme Court agreed with the Sixth Circuit Court of Appeals in reversing the district court's dismissal. Id. at 547-48, 105 S.Ct. 1487. Although Donnelly had a full chance to appeal the termination and although he was ultimately successful (and thus, in some sense, not fired at all) Donnelly had stated a claim for violation of his due process rights. Id. at 536-37, 546-48, 105 S.Ct. 1487.
In this case, it is apparent that, with respect to the July 18, 2011 firing, Gross was not afforded any opportunity to tell his side of the story before Eisentrout announced the termination. Indeed, Defendants have admitted as much and Eisentrout expressly explained, twice, that she did not provide any such opportunity to Gross because she believed he was not entitled to it. (Doc. 47, Ex. 1, Adm. by Def. at 5). In her deposition, she said:
(Doc. 51, Ex. 3, Eisentrout Depo. at 46:15-47:13). In a hearing before the Village Council she said:
(Doc. 47, Ex. 2, Eisentrout Council Testimony at 199:19-200:22).
Gross had a property right in his employment. He was fired from that employment by Eisentrout without "any sort of opportunity to have a pre-disciplinary hearing" with the decision-maker prior to the rendering of that decision. (Doc. 51, Ex. 3, Eisentrout Depo. at 46:21). Thus, Gross has shown that he is entitled to summary judgment on the issue of liability against the defendant, Eisentrout, with respect to that claim. Conversely, because, on the undisputed facts, Defendant Nuesse did not fire Gross (and thus did not deprive him of property rights), she is entitled to summary judgment on this claim.
Due process requires notice and an opportunity to respond. "The opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement." Loudermill, 470 U.S. at 546, 105 S.Ct. 1487 (citing Henry Friendly, Some Kind of Hearing, 123 U. Pa. L.Rev. 1267, 1281 (1975)). Where above, the analysis centered on the timing of the hearing — before a discipline decision is rendered — here it focuses on what sort of hearing is required.
The Court has discussed, throughout this opinion, (and Loudermill used such phrases also) the concept of a pre-termination or pre-disciplinary "hearing." See, e.g., Loudermill, 470 U.S. at 546, 105 S.Ct. 1487 (commenting that "the pretermination `hearing,' though necessary, need not be elaborate"). This should not, however, be confused with a formal court hearing, which often connotes evidence, witnesses, and the like. See Black's Law Dictionary (9th ed. 2009) (defining "hearing" as "[a] judicial session, usu. open to the public, held for the purpose of deciding issues of fact or of law, sometimes with witnesses testifying"). Rather, by "hearing" the Court merely means a time and place at which to be "heard." See Id. (defining "hearing" in the administrative context as "[a]ny setting in which an affected person
470 U.S. at 546, 105 S.Ct. 1487 (citations omitted) (citing Arnett v. Kennedy, 416 U.S. 134, 170-71, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) (Powell, J., concurring in part and concurring in the result); id. at 195-96, 94 S.Ct. 1633 (White, J., concurring in part and dissenting in part); Goss, 419 U.S. at 581, 95 S.Ct. 729).
On August 1, 2012, Nuesse informed Gross that he was, effective immediately, placed on "paid administrative leave pending an investigation of [his] recent conduct which may result in disciplinary action." (Doc. 27, Ex. D, Nuesse Memo. 08/01/12 at 1). On August 10, Nuesse followed up with 12-pages of allegations charging a "continued pattern of incompetence, neglect of duty and failure to obey orders" and recommending to Eisentrout that she terminate Gross' employment with the police. (Doc. 27, Ex. E, Nuesse Ltr. 08/10/12 at 1, 12). Nuesse's letter advised Gross that within five days, the Mayor would "inquire into the matter and render judgment on it." Id. at 12. He could, Nuesse's letter said, advise the Mayor within those five days that he would like to meet with the Mayor to "discuss the[] charges as part of her inquiry ...." Id.
On August 13, 2012, Gross' attorney requested a "pre-disciplinary hearing" and copies of several documents in order to prepare. (Doc. 51, Ex. 4, Depo. Ex. E, Shoub Ltr. 08/13/12). The Village responded the next morning with the requested documents and a letter. (Doc. 51, Ex. 4, Depo. Ex. F, Croghan Ltr. 08/14/12). In the letter, the Village Law Director opined that the Mayor was not required by law to grant Gross a "pre-disciplinary hearing" but did offer a meeting with the Mayor at 6:15 p.m. that day or any time between 7:30 a.m. and 10:00 a.m. the next day. Id. Gross' counsel responded that same day by letter and asserted that neither he nor Gross were available during the offered times and, in any case, that the short period of time before the
Because, with respect to the August 15 firing, Gross was given notice and an opportunity to respond, he cannot prevail on this claim as a matter of law and Defendants' motion for summary judgment is granted.
Defendants argue that where there is no deprivation of pay, there can be no due process violation. (Doc. 53, D. Re. in Opp. to Mot. for Part. SMJ at 4-5). Defendants' argument, however, goes too far. The cases Defendant cites stand only for the proposition that an employer who suspends an employee with pay or places the employee on administrative leave with pay, has not deprived the Plaintiff of his property rights sufficiently to necessitate a pre-discipline hearing. See, e.g., Loudermill, 470 U.S. at 545, 105 S.Ct. 1487 (explaining that an employer "can avoid the [due process] problem by suspending with pay"); Eggers v. Moore, 257 Fed.Appx. 993, 995 (6th Cir.2007) (stating "paid leave is not an adverse employment action"); Peltier v. United States, 388 F.3d 984, 988 (6th Cir. 2004) (holding that "a suspension with pay and full benefits pending a timely investigation into suspected wrongdoing is not an adverse employment action"); Joseph v. City of Columbus, Case No. 2:04-cv-754, 2006 WL 2795195, *7, 2006 U.S. Dist. LEXIS 69962, *22 (S.D.Ohio Sept. 27, 2006) (Sargus, J.) (remarking, "employers may avoid due process concerns in cases in which immediate suspension of an employee is necessary by placing that employee on paid, rather than unpaid, leave").
In this case, however, Gross was not placed on administrative leave on July 18, 2011 — he was fired. The fact that he was later placed on administrative leave with back pay, retroactively effective as of July 18, 2011, does not mean that he was not deprived of his property in the first place; to the contrary, it means he was deprived of his property and then, later, it was restored to him. Gross does, in short, have a valid claim for being deprived of his property without due process of law; he just may have difficulty proving any significant damages.
Defendants claim that compliance with Ohio Revised Code, section 737.19 means that "Plaintiff's due process claim must fail as a matter of law." (Doc. 53, D. Re. in Opp. to Mot. for Part. SMJ at 7-8). However, this is not the case. As Loudermill shows, the constitutionally required
Review of section 737.19 shows that it does not, explicitly, require such an opportunity. It does provide that the marshal (or, presumably, chief) having determined to recommend that an officer be disciplined, "shall certify this fact in writing, together with the cause for the suspension, to the mayor of the village and immediately shall serve a true copy of the charges upon the person against whom they are made." Ohio Rev.Code § 737.19(B) (emphasis added). The mayor then, "[w]ithin five days after receiving th[e] certification" will "inquire into the cause of the suspension and shall render a judgment on it. If the mayor sustains the charges, the judgment of the mayor may be for the person's suspension, reduction in rank, or removal from the department." Id. From this review of the text, two conclusions are apparent:
First, though section 737.19 does obliquely suggest the provision of a pre-disciplinary opportunity to be heard, it does not explicitly require one. Hence, bare compliance with the letter of section 737.19, may not satisfy Fourteenth Amendment due process. That is, section 737.19 does require immediate service of notice of impending discipline upon the allegedly offending officer and then subsequent review by the mayor within a five-day window. Id. Thus, unless the mayor acts immediately, there will usually be some window in which an officer could request to meet with the mayor to discuss the charges before a decision is rendered. However, there is no explicit requirement in section 737.19 that a mayor agree to meet with an officer and, of course, the mayor could, in theory, act almost immediately upon receiving notice of the proposed discipline (because immediate action would also be "[w]ithin five days"). Id. Section 737.19 also requires that the mayor "inquire into the cause" and "render a judgment on it" and this suggests that the mayor should investigate, presumably hearing both sides of the story, and then exercise her own judgment. However, again, there is no explicit requirement that a mayor entertain both sides of a dispute and thus there is no hard requirement of a pre-discipline hearing to be found in section 737.19.
(Doc. 51, Ex. 3, Eisentrout Depo. at 47:4-47:9). In other words:
(Doc. 47, Ex. 2, Eisentrout Council Testimony at 200:11-200:22). Nuesse also confirms the chain of events:
(Doc. 56, Ex. 2, Nuesse Council Testimony at 172:9-172:20). Eisentrout got the charges against Gross on the 14th, spent some time with Chief Nuesse "inquir[ing] into the cause" for them, and then both Nuesse's letter and Eisentrout's judgment were simultaneously hand-delivered to Gross on the 18th. Ohio Rev.Code. § 737.19(B). This is not what section 737.19 requires.
Defendants, in short, did not fully comply with section 737.19, but even if they had, that would not be, in itself, sufficient to show that they had complied with the Due Process Clause of the Fourteenth Amendment because section 737.19 makes no explicit provision for an opportunity to be heard prior to a discipline decision being rendered.
To establish a prima facie case of First Amendment retaliation a would-be claimant must prove "that: (1) he was engaged in a constitutionally protected activity; (2) he was subjected to adverse action or deprived of some benefit; and (3) the protected speech was a `substantial' or `motivating factor' in the adverse action." Farhat v. Jopke, 370 F.3d 580, 588 (6th Cir.2004); (citing Leary v. Daeschner, 349 F.3d 888, 897 (6th Cir.2003)).
At this point in the litigation, Gross argues two potentially protected acts. First, and primarily, he argues that his firing was in retaliation for his filing and then failing to settle, on Defendants' terms, this lawsuit. (Doc. 56, P. Re. in Opp. to Mot. for SMJ at 6-11). Second, Gross argues that certain comments he made while off duty (which were allegedly erroneous) regarding department policy to the Executive Director of the Ohio chapter of MADD, precipitated his July 18, 2011 firing. Id. at 3-4, 10-11; (see also Doc. 27, 2d. Compl. at ¶ 26).
To be protected activity under the First Amendment, Gross must prove that his acts in relation to the lawsuit and his alleged comments to MADD constitute speech "as a citizen on a matter of public concern," Borough of Duryea v. Guarnieri, ___ U.S. ___, 131 S.Ct. 2488, 2493, 180 L.Ed.2d 408 (2011) (citing Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)), and that his "interest as a citizen in speaking on the matter outweighed the state's interest, as an employer, in `promoting the efficiency of the public services it performs through its employees.'" Handy-Clay v. City of Memphis, 695 F.3d 531, 540 (6th Cir.2012) (quoting Garcetti v. Ceballos, 547 U.S. 410, 417-18, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006)).
With respect to the retaliation claim based on the maintenance of this lawsuit, the protected activity element is not dispositive of the issue. Hence the Court will assume, without deciding, that bringing and maintaining a lawsuit alleging that an Ohio mayor has a policy of failing to provide due process to terminated employees is speech by Gross, in his capacity as a
With respect to the retaliation claim based on his allegedly erroneous off-duty comments to MADD, taking the view of the evidence most favorable to Plaintiff, the following facts are undisputed: Gross was at home and off duty when he received a telephone call from the Executive Director of MADD regarding a written reprimand that he had been issued in May of 2011. (Doc. 56, Ex. 1, Gross Aff. at ¶ 6). Gross read the reprimand aloud to the caller. Id. at ¶ 7. In pertinent part, he read:
(Doc. 50, Ex. B, Gross Reprimand 05/04/11 at 1). During deposition, Gross testified about the interaction:
(Doc. 51, Ex. 1, Gross Depo. at 153:22-155:13). Based on this interaction, MADD sent a strongly-worded letter to Defendants in which it extrapolated Minerva Park policy from Gross' reprimand and expressed strong disagreement therewith. (Doc. 51, Ex. 4, Ex. S, Scoles Ltr.). Defendants argue, apparently cherishing the belief that it helps their case, that Plaintiff "misrepresent[ed] General Order # 1" in this conversation with MADD. (Doc. 50, D. Mot. for SMJ at 4). However, notwithstanding Defendants' assertions, the evidence in the record clearly reflects that Gross did not discuss or analyze General Order # 1 or any other departmental policy.
Gross was speaking as a private citizen when he made the statements at issue. He was at home, off-duty, speaking on his personal cell phone and there is no indication or evidence in the record that he was purporting to speak as a member of the police department. (Doc. 51, Ex. 1, Gross Depo. at 153:22-155:13). Thus, this situation is markedly different from cases where employees wrote memoranda, made statements, or authored reports during work hours and within the general scope of their employment. See, e.g., Garcetti, 547 U.S. at 420-25, 126 S.Ct. 1951, Keeling v. Coffee County, 541 Fed.Appx. 522, 526-28 (6th Cir.2013), Weisbarth v. Geauga Park Dist., 499 F.3d 538, 543-46 (6th Cir.2007). However, Gross was not speaking on a matter of public concern.
As discussed above, Gross did not discuss police policy with MADD or seek to give them information to effect public changes in the way drunk drivers were treated in the Village of Minerva Park. (Doc. 51, Ex. 1, Gross Depo. at 153:22-155:13). Rather, MADD asked Gross why he was disciplined and he answered honestly and directly by reading his written reprimand to the caller. Id. Though MADD then undertook First Amendment speech by writing a letter criticizing what it perceived to be the policy of the Village, Gross did nothing of the kind. (Doc. 51, Ex. 4, Ex. S, Scoles Ltr.). Gross' only act was reading his reprimand to MADD (upon MADD's solicitation, no less) and this speech therefore constituted "nothing more than an example of the quintessential employee beef: management has acted incompetently." Buckley v. City of Portage, No. 98-1783, 1999 WL 777542, *4, 1999 U.S.App. LEXIS 23254, *11 (6th Cir. Sept. 16, 1999) (quoting Rahn v. Drake Ctr., 31 F.3d 407, 413 (6th Cir.1994)). In fact, Gross even testified about the tenor of the conversation with MADD:
(Doc. 51, Ex. 1, Gross Depo. at 160:22-161:10). Gross spoke not upon "matters of public concern" Garcetti, 547 U.S. at 417, 126 S.Ct. 1951, but rather "on matters of personal interest." Handy-Clay, 695 F.3d at 539.
Buckley, cited above, bears an instructive factual resemblance to this case. In Buckley, a police officer was publishing, anonymously, a newspaper (distributed to the department and public, including
Buckley, 1999 WL 777542, *3-4, 1999 U.S.App. LEXIS 23254, *10-12.
Gross' communication with MADD was primarily about his having been reprimanded for stopping a drunk driver. The
As Gross was fired (twice, in fact), there is no doubt that he was "subjected to adverse action or deprived of some benefit" that "would deter a person of ordinary firmness from continuing to engage in th[e] [protected] conduct." Farhat, 370 F.3d at 588; Thaddeus-X, 175 F.3d at 394; accord Pucci v. 19th Dist. Ct., 628 F.3d 752, 768 (6th Cir.2010) (holding that firing would "deter a person of ordinary firmness").
On the undisputed summary judgment record in this case, and even construing the facts in the light most favorable to Plaintiff, Gross was not fired because he either brought or maintained this lawsuit. Several factors convince the Court that this is so.
First, the timing is problematic. This lawsuit was first filed in the Franklin County Court of Common Pleas on December 7, 2011, but Gross was fired on July 18, 2011. (Doc. 3, Compl.) (timestamp on original complaint shows date and court of filing). When asked about the Village Council's decision to modify her July 18 termination order, Mayor Eisentrout said she would have preferred that they affirm her order and that Gross had remained terminated. (Doc. 51, Ex. 3, Eisentrout Depo. at 47:17-48:2). In addition, Eisentrout testified that, after Gross returned to work on October 19, 2011, she had discussions with Chief Nuesse regarding disciplining or terminating Gross. Id. at 60:2-63:22; (see also, e.g., Doc. 51, Ex. 4, Depo. Ex. U, Nuesse Memo. 04/10/12). Chief Nuesse confirmed that after Gross returned to work on October 19, 2011, she had such conversations with Eisentrout. (Doc. 51, Ex. 2, Nuesse Depo. at 6:22-7:11). In short, leaving aside the adequacy of legitimate reasons for terminating Gross, it is apparent that Eisentrout and Nuesse desired Gross' termination both before and during this lawsuit. Or, to put it more plainly, since they wished to fire him before the lawsuit was filed and before settlement was rejected, it is unlikely that the lawsuit was the cause of (or even a major factor in) the firing.
Second, Gross does not submit any proof that Defendants were actually motivated to fire him by the lawsuit. Gross argues that Eisentrout's statement, in deposition, that Defendants were waiting to fire Gross because they wanted to see what happened at the mediation, means that they fired him as a result of his refusal to settle the case. (Doc. 56, P. Re. in Opp. to Mot. for SMJ at 9-11; see also Doc. 51, Ex. 3, Eisentrout Depo. at 60:22-62:8). However, taken in context of the timing observation discussed above, Plaintiff's argument is not a reasonable one and the Court is only required, when deciding summary
Third, Ohio Revised Code, section 737.19(B) is relatively permissive in its list of reasons for which a police officer may be fired. That is, in addition to rather serious reasons such as "gross neglect of duty, gross immorality, [and] habitual drunkenness," the section provides that an officer may be fired "for any other reasonable or just cause." Ohio Rev.Code § 737.19(B). This Court has reviewed the materials submitted by the parties detailing the job performance of Officer Gross. These documents primarily complain of Gross' failure to conduct a sufficient number of traffic stops, failure to properly interpret jurisdictional limitations, failure to properly collect evidence, report writing deficiencies, and failure to, on one occasion, use appropriate apprehension techniques. (Doc. 51, Ex. 4, Depo. Exs. J, K, L, M, U). The Court does not believe that, as Defendant put it, "[t]his case is about a police officer who thinks the rules do not apply to him." (Doc. 50, D. Mot. for SMJ at 2). Nevertheless, this Court cannot say that the Village was without "any ... reasonable ... cause" for terminating Gross. Ohio Rev.Code § 737.19(B). Indeed, Gross himself admitted that there may have been reasonable cause to terminate him:
(Doc. 51, Ex. 1, Gross Depo. at 27:6-27:11).
On summary judgment, as the party who will bear the burden of proof at trial, Gross has the responsibility to present evidence that this lawsuit was a "substantial" or "motivating factor" in his firing. Farhat, 370 F.3d at 588; Celotex, 477 U.S. at 322, 106 S.Ct. 2548. The demonstrably persistent desire by Defendants to fire Gross predated this lawsuit and Gross does not present any evidence, given that timing context, that could meet his burden. Accordingly summary judgment is granted to both Defendants Eisentrout and Nuesse on Plaintiff's First Amendment claims.
The Court has explained that summary judgment is granted to Nuesse on all of Gross' claims and Eisentrout on all of Gross' claims except the claim for denial of due process with respect to the July 18, 2011 firing. Therefore, the Court need not consider whether qualified immunity is due to Nuesse nor need it consider its application to Eisentrout with respect to Gross' First Amendment claims. However, in regards to Gross' due process claim against Eisentrout, this Court believes Plaintiff has met his burden and shown that summary judgment would, in the absence of some valid defense by Eisentrout, issue in his favor. Therefore, the Court must consider whether qualified immunity provides Eisentrout with a valid defense. For the reasons that follow, the Court decides that it does not.
"[The Sixth Circuit] applies a two-step inquiry to determine qualified immunity,
As discussed above, the Court has already determined that Eisentrout violated Gross' right to due process when she terminated him, without providing him with a pre-termination hearing of some kind. The remaining question, then, is whether that right was clearly established at the time of Gross' firing in July of 2011.
The right to "some kind of hearing" was clearly established by July 2011. Loudermill, which "described `the root requirement' of the Due Process Clause as being `that an individual be given an opportunity for a hearing before he is deprived of any significant property interest,'" was decided by the United States Supreme Court in 1985 — more than two decades before Eisentrout, without providing Gross with a hearing of any kind, terminated him. 470 U.S. at 542, 105 S.Ct. 1487 (quoting Boddie, 401 U.S. at 379, 91 S.Ct. 780). If this were not enough, the Sixth Circuit has expressly stated, in reliance upon Loudermill, that the requirement of a pre-termination hearing is clearly established:
Silberstein v. City of Dayton, 440 F.3d 306, 316 (2006); see also Pucci, 628 F.3d at 767. Eisentrout is not entitled to qualified immunity.
Plaintiff's motion for partial summary judgment is
Defendants' motion to supplement their summary judgment motion is
The Clerk is directed to
The parties are
If, in light of this opinion, the parties wish to engage in mediation or other settlement-related activities, the Court will, upon joint motion of the parties, suspend briefing on the issue of damages.
