HERMAN J. WEBER, Senior District Judge.
This matter is before the Court upon the defendants' "Motion for Summary Judgment" (doc. no. 46), which plaintiff opposes (doc. no. 70). The Magistrate Judge entered a Report and Recommendation (doc. no. 76), recommending that summary judgment be granted to the defendants on Counts One and Two, and that Counts Three and Four be dismissed for lack of jurisdiction. Plaintiff filed lengthy objections (doc. no. 82), and defendants responded (doc. no. 85). This Court held a hearing on April 25, 2012, at which counsel presented oral arguments. Upon de novo review, and having carefully considered the pleadings, briefs, exhibits, objections and oral arguments, the Court will
The underlying facts have been fully set forth by the Magistrate Judge (see doc. no. 76 at 1-5), are incorporated herein, and need only be summarized. In 2000, plaintiff began working as a veterinarian for the University of Cincinnati ("UC") at its Laboratory Animal Medical Service ("LAMS") department. Plaintiff was named "Associate Director" of LAMS in 2005 by Director Bill Porter, D.V.M., and received a substantial pay raise. Beginning in February of 2006, Dr. Douglas Stone, D.V.M., replaced Porter as director of LAMS and became plaintiff's supervisor. Dr. Sandra Degen, Ph.D., Vice President of the Office of Research, was Dr. Stone's supervisor. Plaintiff was an unclassified at-will employee of UC. In subsequent years, two more staff veterinarians were hired at LAMS, Dr. Debbie Kemper and Dr. Joseph Matu.
Plaintiff became seriously ill and took extended sick leave in early 2008. According to plaintiff, Dr. Stone suspected he was "faking" his illness, became increasingly hostile toward him, and retaliated against him in a variety of ways. Upon returning from leave, Dr. Stone significantly reduced plaintiff's supervisory responsibilities, and subsequently, plaintiff's employment was terminated. Defendants contend that the two men simply did not get along and point to several incidents in 2007 that pre-date plaintiff's use of sick leave under the Family and Medical Leave Act ("FMLA").
For instance, in June 2007, Dr. Stone had asked plaintiff why UC had so many pharmacy licenses and told plaintiff he was going to review the issue (doc. no. 64 at 187, Stone Dep.). Plaintiff, who had up to that time handled the licensing for LAMS, contacted the Ohio Board of Pharmacy ("OBP") and then sent an email to all "Vet Techs and Vets at UC" indicating that he had resolved the matter. Dr. Stone reprimanded him (doc. nos. 45-11, Letter of June 15, 2007). Dr. Stone believed that Dr. Kurtzman's efforts undermined him and were an attempt to justify the "status quo" (doc. no. 46-2 at ¶¶ 4-7, Stone Aff.). Dr. Stone thereafter changed the licenses from Dr. Kurtzman's name to his own name (doc. no. 65 at 53-54, Stone Dep.). Plaintiff did not contact the OPB again without Dr. Stone's prior approval.
Plaintiff's work performance evaluation, dated August 27, 2007, was positive and indicated ""Mark has tremendous clinical skills. He is knowledgeable about regulatory compliance and strives to prevent problems from arising. He is hard working" (doc. no. 60 at 51-52, Kurtzman Dep. discussing Exhibit 5 "Evaluation").
In late 2007, Dr. Stone fired two LAMS veterinarian technicians who had brought their pet guinea pigs to work. Dr. Stone fired them for violating policy and risking contamination at the LAMS facility. Plaintiff felt termination was too harsh. By email of January 16, 2008, and in a meeting on January 25, 2008, he discussed his concerns with Dr. Degen. Dr. Stone, who was angry that plaintiff did not support his decision, then assigned plaintiff the duty of training staff about "not bringing pets to work."
From January 28 until March 5, 2008, plaintiff became seriously ill and took approximately six weeks off from work. Plaintiff's illness was difficult to diagnose, although he had debilitating symptoms and lost nearly fifty pounds while sick. During this time, plaintiff repeatedly spoke with LAMS personnel and left telephone messages at the LAMS department advising that he was very ill, but did not have a definite diagnosis yet. When he was finally diagnosed with "Atypical Ulcerative Colitis," he informed Dr. Degen via email on March 12, 2008. The parties do not dispute that plaintiff had a serious medical condition, that he asserted the need for sick leave, and that he was given all the leave he requested.
Plaintiff alleges that, after he returned from his illness in March 2008, Dr. Stone met with him and complained "How can I trust you, you've been gone so long?" (doc. no. 45-1 at 6-8, Kurtzman Dep.). Dr. Stone denies making this precise comment (Stone Aff. ¶ 15), but acknowledges that he was (in his own words) "puzzled" or "befuddled" by Dr. Kurtzman's illness and that he was skeptical of the plaintiff's messages about his tentative diagnosis (doc. no. 65, Stone Dep. at 116-118).
Meanwhile, Dr. Stone decided to restructure LAMS and the work of Drs. Kurtzman, Kemper and Matu. Dr. Stone assigned each one to a particular facility, indicating he wanted "clear lines of responsibility" (doc. no. 46-2 at 8, Stone Aff. ¶ 19). Plaintiff contends that, upon returning from leave, Dr. Stone demoted him by restricting him to a single facility, the Medical Sciences Building ("MSB"), and by removing his previous "management responsibility" for other facilities and personnel (doc. no. 60 at 9-10, Kurtzman Dep. explaining that "I was notified that I was no longer going to be in charge of everything and have Joe Matu or Deb Kemper underneath me"). Despite his reduced supervisory authority, plaintiff initially retained the same title and salary (doc. no. 45-1 at 1-5, Kurtzman Dep., discussing specific reduced responsibilities). This reassignment of duties officially took effect on April 2, 2008, although the plaintiff was advised of it earlier (doc. no. 60 at 8-10, Kurtzman Dep.).
In April of 2008, Dr. Stone also decided to purchase from the vendor "BMDS" a device for implanting microchips in research animals. The device was intended to speed the process of taking animals' temperatures. Dr. Kurtzman told Dr. Stone that the BMDS device was not effective and that a different company made a better unit (doc. no. 45-1 at 11, Kurtzman Dep.). Dr. Stone insisted that plaintiff make a good faith effort to use the BMDS device. Plaintiff indicates he fully complied and made numerous efforts to get the device to work properly but was unable to obtain good results (doc. no. 82 at 13-14, describing repeated efforts by plaintiff, along with Dr. Kemper and other individuals). Despite all these efforts, the device did not work well (doc. no. 65 at 123, 137, Stone Dep., acknowledging that although over a dozen chips had been implanted for testing, they were not able to obtain accurate results until they later used an improved "reader").
As part of these efforts, plaintiff arranged for BMDS to demonstrate its device, and on May 30, 2008, plaintiff notified his colleagues by email (doc. no. 44-27, copy of email). Dana Buesing, assistant for Dr. Roy-Chaudhury, notified plaintiff that the surgery intended for the demonstration was cancelled (doc. nos. 67-22 at ¶ 10, Buesing Aff.; 46-6 at 156-57, Kurtzman Dep.). When plaintiff contacted BMDS, the representative ("Hunt") indicated he would still come and go ahead with the demonstration by using a carcass (doc. no. 82 at 15, citing doc. no. 44-6, Kurtzman Dep. at 159). Plaintiff was unable to attend the scheduled demonstration on June 26, 2008, due to a recurrence of his illness through July 7, 2008. When Hunt did not show up for the demonstration, Dr. Stone believed that plaintiff (rather than BMDS) had cancelled and then misled him about it. In fact, BMDS had cancelled by email the evening before the demonstration. Although BMDS later acknowledged this to Dr. Stone (doc. no. 64, Stone Dep. at 178-82),
As already discussed, Dr. Stone had already limited Dr. Kurtzman to the MSB facility. In August of 2008, he then removed plaintiff's responsibilities for oversight of "Vet Tech" training, which further reduced plaintiff's supervisory responsibilities.
On February 3, 2009, Dr. Stone reprimanded him for alleged "inadequate veterinary care" (doc. no. 45-18). Dr. Stone accused plaintiff of not examining a dog, although plaintiff indicated he did in fact examine the dog. Dr. Stone then criticized him for not detecting a heart arrythmia during the examination, although the arrythmia had already been noted in an initial exam by a veterinary technician (doc. no. 45-1 at 18). Plaintiff denied any "inadequate veterinary care" and explains that arrythmias are common in dogs and did not affect the well-being of this animal (doc. no. 82 at 30). Evidence, including the testimony of Dr. Steele Mattingly, Professor Emeritus and Administrative Director of LAMS, and the affidavit of Bernard Doerning, D.V.M., supports plaintiff's contention (doc. no. 49 at 6, ¶ 31).
According to plaintiff, Dr. Stone was quick to reprimand him on flimsy grounds, but did not reprimand other UC veterinarians, even for serious mistakes. For instance, in September 2008, a research pig "intubated" by Dr. Matu suffered a lacerated trachea that became infected. The pig's injury was neglected, which led to the pig's respiratory distress and death (doc. no. 60 at 53, Kurtzman Dep.). Plaintiff spoke about this with Dr. Stone, who had performed a necropsy on the pig (doc. nos. 45-1 at 25; 64 at 248). When Dr. Stone did not follow up on the matter, plaintiff sent Dr. Degen an email on February 12, 2009 (doc. no. 45-1 at 21, "Dr. Degen, I have been advised to talk to you by both Dr. Mattingly and Theresa Murphy about health care issues in LAMS").
On February 17, 2009, plaintiff personally discussed his concerns about the incident with Dr. Degen, who merely indicated that she had already discussed it with Dr. Stone and did not want to see any documents, despite the fact that she was in charge of the Institutional Animal Care and Use Committee ("IACUC") (doc. no. 45-1 at 22-24, Kurtzman Dep.; doc. no. 56 at 16, Degen Dep., indicating that "Kurtzman was concerned that Stone wasn't following up in investigations regarding health issues . . . that's what I wrote"). The IACUC is an oversight committee responsible for UC's compliance with the rules and regulations for animal research (doc. 55 at 104-05, Degen Dep.). Dr. Stone did not reprimand Dr. Matu for "inadequate veterinary care" of the pig, nor do the IACUC minutes reflect that Dr. Stone ever reported the incident to the IACUC (doc. no. 82 at 34, citing doc. nos. 52 at 47, Anderson Dep.; 53 at 34-36, Babcock Dep.; 64 at 266, Stone Dep.).
Meanwhile, on February 16, 2009, plaintiff also made various complaints about Dr. Stone's ongoing hostility toward him in a letter to George Wharton, Director of Equal Employment Opportunity in UC's HR Department. Plaintiff indicated that Dr. Stone had "told my co-workers I was faking my illness," had restricted his movement to only the MSB animal facility, that he was under "constant scrutiny" by Dr. Stone, and that Dr. Stone treated him differently than the other UC veterinarians (doc. no. 44-29, Letter, ¶¶ 4, 6).
Several days later, on February 20, 2009, Dr. Stone removed plaintiff's supervisory authority over the remaining veterinary technicians (doc. no. 60 at 9, Kurtzman Dep.). Dr. Stone changed plaintiff's job title from "Associate Director" of LAMS to "Senior Veterinarian," which plaintiff considered to be a significant demotion. Dr. Stone then explored the possibility of eliminating plaintiff's position for financial reasons, as a significant budget cut was anticipated. This possibility was rejected by the HR Department (doc. nos. 62 at 118-119, Murphy Dep.; 46-2 at 8, ¶¶ 27-29, Stone Aff.). Dr. Stone indicates that he then intended to terminate plaintiff's employment "without cause" (which would have entitled plaintiff to six months' severance under UC policy), but then suffered a heart attack on April 23, 2009 before doing so (doc. nos. 46-2, Stone Aff. ¶¶ 27-31; 65 at 1512, Stone Dep.; 56 at 18-19, 30, Degen Dep.).
While Dr. Stone was on sick leave from April 23 until July 26, 2009, Dr. Kemper was named Interim Director of LAMS (doc. no. 46-3 at 8, Degen email).
On July 26, 2009, plaintiff's counsel sent a letter to Drs. Stone and Degen, setting forth plaintiff's complaints of allegedly retaliatory behavior by Dr. Stone and alleging that the defendants had violated plaintiff's FMLA and First Amendment rights (doc. no. 45-26, Letter). On August 11, 2009, plaintiff filed the present action, alleging that UC and Dr. Stone had discriminated and retaliated against him in violation of the FMLA and the First Amendment (doc. no. 1 at ¶ 2).
Plaintiff then received a letter dated August 27, 2009, terminating his employment for an alleged "pattern of unacceptable behavior." Dr. Degen's letter recited four reasons: 1) unsatisfactory contact with a vendor (i.e. the BMDS incident); (2) inappropriately interacting with the Ohio Board of Pharmacy; (3) improper conduct in obtaining records from Shriner's Hospital; and (4) "lack of adequate veterinary care" (doc. no. 46-3, Degen Aff., ¶ 8, Ex. 6 "Letter"). Except for the OPB incident in 2007, these reasons pertained to incidents that occurred after plaintiff' returned from extended sick leave in March 2008.
Plaintiff then amended his complaint to add Dr. Degen as a defendant. The amended complaint alleges that the defendants: 1) violated plaintiff's rights under the Family Medical Leave Act ("FMLA"), at 29 U.S.C. § 2601 et seq. (¶¶ 54-55); 2) violated his First Amendment rights (¶¶ 56-57); 3) published defamatory statements about him under Ohio common law (¶¶ 58-59); and 4) terminated him in violation of Ohio public policy (¶¶ 60-61). Plaintiff asks for: 1) a declaration that the defendants violated his rights under the FMLA, First Amendment, and Ohio law; 2) reinstatement to his former position; 3) "economic and non-economic" damages; 4) punitive damages; 5) attorney fees and costs; and 6) any other relief to which he is entitled (doc. no. 3 at 10).
The parties conducted discovery and filed numerous depositions and other exhibits in the record. The defendants moved for summary judgment (doc. no. 46), and plaintiff responded (doc. no. 70). The Magistrate Judge recommended that summary judgment be granted to defendants on the FMLA and First Amendment claims and that the state law claims be dismissed (doc. no. 76). Plaintiff made lengthy objections to certain recommendations regarding the FMLA and First Amendment claims (doc. no. 82). These matters are fully briefed and ripe for consideration.
Rule 56(a) of the Federal Rules of Civil provides in relevant part that:
Under Rule 56, the moving party bears the burden of proving that no genuine dispute of material fact exists.
In her Report and Recommendation, the Magistrate Judge initially observed that plaintiff had not disputed three meritorious issues raised by the defendants, namely 1) "that UC is immune for money damages under any theory based upon the doctrine of sovereign immunity, as are the two individual defendants sued in their official' capacities;" 2) that the two state law claims (Count Three for defamation and Count Four for termination in violation of public policy) must be dismissed for lack of jurisdiction; and 3) "that Degen and Stone cannot be held liable as individuals under the FMLA because neither can be considered to be Plaintiff's employer" as defined by the statute (doc. no. 76 at 9).
Plaintiff has not objected to these recommendations, and the Court agrees with them. First, the Eleventh Amendment to the United States Constitution bars plaintiff from bringing state law claims against a state university and its officials in their official capacity in federal court.
Second, plaintiff cannot pursue state law claims against Drs. Stone and Degen in their individual capacity because they are entitled to immunity from suit under state law. "Ohio law requires that, as a condition precedent to asserting a cause of action against a state employee in his individual capacity, the Court of Claims must first determine that the employee is not entitled to immunity provided for in Revised Code § 9.86."
Third, the individual defendants Drs. Degen and Stone are not "employers" for purposes of the FMLA and may not be held liable for monetary damages under the statute. See
The Magistrate Judge observed that the plaintiff's FMLA claims survive to the extent he seeks prospective injunctive relief, i.e. reinstatement and attorney fees, under
In Count One, plaintiff's amended complaint alleges "violation of the FMLA," but does not specify whether plaintiff is proceeding under the "interference/entitlement" theory arising from 29 U.S.C. § 2615(a)(1) or the "retaliation/discrimination" theory arising from 29 U.S.C. § 2615(a)(2). The Magistrate Judge recommended that under existing case law, the alleged facts would support a legally cognizable claim of retaliatory discharge under either theory (doc. no. 76 at 17-21). See
An employer's interference with an employee's right to reinstatement following FMLA leave violates the FMLA.
At the fourth element, defendants argue that plaintiff never exercised any rights under the FMLA because the printed forms for his extended sick leave do not expressly indicate "FMLA leave"(doc. no. 46 at 23). The Magistrate Judge correctly observed (doc. no. 76 at 14) that an employee does not have to "expressly invoke the FMLA" in order to claim protection under the Act.
The parties acknowledge that plaintiff requested, and was granted, approximately six weeks of leave for a serious medical condition. The "Time Off From Work" forms reflect that plaintiff's requests for extended sick leave (from January 28 to March 5, 2008, and again from June 26 to July 3, 2008) were approved (doc. nos. 44-21 "Form;" 44-15 email; 64 at 56-59, Stone Dep.). Plaintiff gave sufficient notice of his serious illness and his need for leave, and the Court agrees with the recommendation that plaintiff adequately invoked his rights under the FMLA. Defendants are not entitled to summary judgment on such basis.
At the fifth step, defendants correctly point out that there is no dispute that plaintiff was given all the leave he requested. The Magistrate Judge, however, observed that a plaintiff can also prove this element by showing that the defendants "used the leave against [the employee] and in an unlawful manner, as provided in either the statute or regulations" (doc. no. 76 at 15, citing
Plaintiff points out that upon his return from sick leave, Dr. Stone announced that he was removing plaintiff's supervisory responsibilities for all facilities except MSB (doc. no 45-7 at 194-196). Although the defendants argue that plaintiff did not immediately suffer a "loss of pay or title" upon his return, an employer cannot lower an employee's rank, job status and responsibility for a discriminatory reason and then insulate itself from liability "merely be maintaining the same pay level."
Upon plaintiff's return, he had significantly reduced responsibilities and authority. He was later relieved of additional supervisory authority over veterinary technicians and his job title was reduced from "Associate Director" to "Senior Veterinarian." See
Although the Magistrate Judge later suggests, based on Dr. Stone's own affidavit, that "the changes in plaintiff's job duties are easily attributed to legitimate restructuring" (doc. no. 76 at 23), the plaintiff specifically pointed to evidence suggesting that his demotion was in fact connected with his use of FMLA leave (doc. no. 70 at 18-21, asserting that "Kurtzman's long years of service, his excellent evaluation prior to FMLA, the timing of his demotion, and the negative comments by Stone all show that Kurtzman's demotions were `connected' to his FMLA leave"). While the evidence might permit differing inferences, the facts must be construed in favor of the plaintiff as non-moving party on summary judgment review. The Court may not weigh the evidence or make credibility determinations. This claim may proceed to trial.
To establish a prima facie case of FMLA retaliation, a plaintiff must show that: (1) he availed himself of a protected right under the FMLA by notifying his employer of his intent to take leave; (2) he experienced an adverse employment action; and (3) there is a causal connection between his exercise of FMLA rights and the adverse employment action.
At the third step, the defendants argued a "lack of causal connection" between plaintiff's use of FMLA leave and the adverse actions against him (doc. no. 46-1 at 7-8). In response, plaintiff pointed to his years of employment at UC (since 2000), his positive evaluation in 2007 prior to his FMLA leave, the timing of his demotion upon his return (followed by more adverse actions, including termination), Dr. Stone's comments that plaintiff had previously "never called in sick" and his discussions with others reflecting his suspicion that plaintiff was "faking" his illness, and Dr. Stone's alleged negative comment to plaintiff (i.e. "how can I trust you when you are gone so long?") (doc. no. 70 at 18-21). The Magistrate Judge recommended, and this Court agrees, that plaintiff has identified sufficient evidence to establish a prima facie case of FMLA retaliation, including causal connection (doc. no. 76 at 17-21). While burden shifting would not apply with direct evidence, much of the cited evidence is "indirect" circumstantial evidence, and the parties have not disputed that the burden-shifting analysis should apply.
A retaliation claim based on indirect evidence is subject to the
As the Magistrate Judge correctly observed (doc. no. 76 at 22), a plaintiff may establish pretext by showing that the defendant's stated reasons "(1) have no basis in fact; (2) did not actually motivate the action; or (3) were insufficient to warrant the action."
Under the burden-shifting analysis of
These objections all concern whether plaintiff has carried his burden of showing pretext and may logically be considered together. Plaintiff points out that the Magistrate Judge essentially ignored his lengthy explanations as to why the stated reasons for his termination were pretextual, and instead, merely accepted the defendants' contention that Drs. Stone and Kurtzman simply did not get along (doc. no. 76 at 22-23). The Magistrate Judge concluded that plaintiff had not overcome the "legitimate and nondiscriminatory" reasons for his termination. (
Plaintiff's response brief extensively discussed why the four stated reasons for his termination were pretextual (doc. no. 70 at 25-54). First, he contended that the general reason of "inappropriate conduct" was false because the four underlying examples were false. He points to evidence showing that he did
To show pretext, the reason must be shown to be "false, and that discrimination was the real reason."
The Magistrate Judge largely relied on a single alleged comment by Dr. Stone (i.e. "how can I trust you when you are gone so long") and recommended that this was insufficient evidence by itself to show pretext (doc. no. 76 at 22). Plaintiff, in his response and objections, referred to much more evidence than this. Plaintiff had a positive work evaluation prior to taking FMLA leave. Upon his return from leave, Dr. Stone (who was admittedly skeptical of plaintiff's illness) advised that he was demoting plaintiff, and later further reduced plaintiff's supervisory authority and title. Plaintiff reported to UC's EEO officer that Dr. Stone was hostile and disrespectful toward him in meetings, and was telling people that plaintiff had been "faking" his illness, despite the fact that plaintiff had been seriously ill with debilitating symptoms and had lost a remarkable amount of weight in a relatively short period of time. Construing the evidence and reasonable inferences in plaintiff's favor for purposes of summary judgment review, the evidence suggests that Dr. Stone's unfavorable attitude toward plaintiff may well have been influenced by plaintiff's use of FMLA leave. The record supports a reasonable inference that Dr. Stone held plaintiff's use of FMLA leave against him when Dr. Stone subsequently demoted him and laid the groundwork for his termination.
The timing of Dr. Stone's decision to demote plaintiff is suggestive, as it occurred immediately after his use of FMLA leave. The BMDS incident, which occurred shortly after plaintiff returned from extended leave for illness, also reflects Dr. Stone's inclination to distrust plaintiff's explanations. Plaintiff's letter to the EEO officer, his attorney's letter, and his subsequent lawsuit all complained of FMLA-related discrimination. Plaintiff was promptly terminated after raising such concerns. Construing the evidence in plaintiff's favor for purposes of summary judgment review, the Court finds that the plaintiff has shown sufficient evidence of pretext for his FMLA retaliation claim to proceed.
Although defendants point to several disagreements between Stone and plaintiff prior to plaintiff's illness and FMLA leave (i.e. the OPB and guinea pig incidents in 2007), some workplace conflicts are inevitable in the administration of a major research facility involving multiple veterinarians, staff, and over 35,000 animals. The existence of several prior disagreement does not mean that Dr. Stone did not later hold plaintiff's use of FMLA leave against him. Plaintiff points out that the OPB matter was resolved and that his work evaluation in 2007 was very positive.
The defendants also argue that Dr. Degen was "unaware" of Dr. Stone's alleged comment to plaintiff regarding his FMLA leave. Regardless, Dr. Degen was presumably aware of plaintiff's letter to UC's EEO officer, in which plaintiff had complained that Dr. Stone had told people that plaintiff was "faking" his illness. Dr. Stone reported his reasons for wanting to terminate plaintiff to Dr. Degen, whose subsequent letter recited four general reasons. If those reasons were rooted in Dr. Stone's impermissible antagonism toward plaintiff's use of FMLA leave, then the stated reasons for discharge may indeed be pretextual. In other words, although inability to get along with a supervisor is a legitimate reason for discharge, the supervisor's hostility toward an employee for that employee's use of FMLA leave is not a legitimate reason for discharge. The plaintiff has sufficiently shown "pretext" to withstand summary judgment on his FMLA retaliation claim.
Finally, plaintiff objects that the Magistrate Judge Improperly Invoked the "honest belief" defense sua sponte. The Magistrate Judge could certainly address this legal concept, but the record contains no evidence suggesting that Dr. Degen conducted any investigation, much less a "reasonable" one, of the four stated reasons for discharge. Although UC asserts that Dr. Degen was "fully informed," plaintiff contends that Dr. Degen was unaware of many relevant details and did not conduct a reasonable investigation of the reasons given for plaintiff's termination. For example, plaintiff points out that "between the June meeting and August 27, 2009, nobody complained about Kurtzman's work performance, nobody said he was disrupting work at LAMS, and nobody told her that Kurtzman had done anything to cause Stone not to trust him" (doc. no. 82 at 39, citing doc. no 56 at 66-67, Cox Dep.). Plaintiff's demotions and termination after taking FMLA leave were allegedly based on past incidents which his employer was already aware. See
For an employer to avoid a finding that its alleged nondiscriminatory reasons were pretextual, the employer "must be able to establish its reasonable reliance on the particularized facts that were before it at the time the decision was made."
Plaintiff has put forth sufficient evidence to establish that his employer did not make a reasonably informed and considered decision before taking the adverse employment actions against him, and thus, the defendants are not entitled to summary judgment on the basis of the "honest belief" rule.
In Count Two, plaintiff alleges that the defendants also retaliated against him in violation of his First Amendment rights via 42 U.S.C. § 1983, which allows a plaintiff to vindicate the deprivation of constitutional rights by a defendant acting under color of law.
The defendants correctly pointed out that the first five examples of speech directly concerned and were made pursuant to plaintiff's work responsibilities as a UC LAMS veterinarian. Defendants argued that the next three examples (i.e. his attorney's demand letter, the initial complaint, and the amended complaint) were all based on and "derivative of" plaintiff's workplace disputes (
In analyzing these arguments, the Magistrate Judge first observed that plaintiff is barred by sovereign immunity from obtaining monetary damages on this claim from UC (and the individual defendants in their official capacities) and that this claim, like the FMLA claims, would be limited to equitable relief (doc. no. 76 at 10, 26).
The Magistrate Judge then examined what "speech" is actually at issue. The Magistrate Judge noted the plaintiff's eight examples of speech (doc. no. 76 at 28), but then observed that plaintiff in his deposition and brief had identified only his attorney's letter of July 26, 2009 and the filing of this lawsuit as allegedly "protected speech" (doc. nos. 45-6 at 170-171, Kurtzman Dep.; 70 at 56-58, 62-63). The Magistrate Judge recommended that the first five examples "all occurred on his employer's time and in the context of his professional duties as a veterinarian" and that the last three examples (the letter and lawsuit) could not "bootstrap" non-protected speech into a First Amendment claim (doc. no. 76 at 28, 31).
The Magistrate Judge recommended that the plaintiff had to prove: (1) that his speech concerned "matters of public concern;" (2) that his interests outweighed the interests of the state employer; and (3) that his speech was not made pursuant to his official duties (doc. no. 76 at 26, citing
In his objections, plaintiff confirms that he is only contending that his counsel's letter and the filing of this lawsuit amounted to "protected speech" (doc. no. 82 at 61). He then argues that these were "outside his official duties" as a UC veterinarian and points to testimony acknowledging that the lawsuit was not part of his "official duties" and was "on his own time" (doc. no. 82 at 56-59).
The Magistrate Judge rejected the notion that the mere act of filing suit is protected activity (doc. no. 76 at 30-31). The Magistrate Judge cited
The United States Supreme Court's recent decision in
Plaintiff's claim here is brought under the Speech Clause, but in either case, the plaintiff must show that he was raising issues of public concern. In
Where a public employee raises a First Amendment retaliation claim based on either the Speech or Petition Clause, the employee must show that his "speech" involved a matter of public concern.
Under either the Speech or Petition Clause, plaintiff has not shown that he is raising issues of public concern here. Plaintiff mischaracterizes his attorney's letter and this lawsuit as raising "animal health care issues as a matter of public concern." While animal health care may indeed be a matter of public concern (as the Magistrate Judge correctly noted), plaintiff's attorney letter and lawsuit concern
The cases that plaintiff cites regarding speech of "public concern" are inapposite. For example, although plaintiff cites
Additionally, the Magistrate Judge recommended that, absent any sort of a constitutional violation, the individual defendants (Drs. Degen and Stone) would also be entitled to qualified immunity in their individual capacities. See
Plaintiff's state claims are subject to dismissal on the basis of Eleventh Amendment immunity and state law, O.R.C. § 9.86. With respect to his FMLA interference claim, plaintiff has pointed to sufficient evidence suggesting that he may have been demoted for reasons related to his FMLA leave. With respect to his FMLA retaliation claim, plaintiff has pointed to sufficient evidence of "pretext" to withstand summary judgment. Additionally, there are genuine disputes of fact whether Dr. Degen's investigation of the stated reasons for termination was sufficient to give protection under the "honest belief"rule. Plaintiff's FMLA claims may proceed to trial. With respect to plaintiff's First Amendment claim, plaintiff has not shown he was terminated for raising issues of public concern in his letter and lawsuit rather than workplace grievances regarding his own employment.
Accordingly, the Court will
IT IS SO ORDERED.