Ehrlich v. Kovack et al
Filing
113
Memorandum of Opinion and Order: This matter is before the Court upon Defendants Medina County, Ohio and Medina County, Ohio Commissioners' Motion for Summary Judgment (Doc. 93 ) and Defendants Michael Kovak and Joan Heller's Motio n for Summary Judgment (Doc. 94 ). Also pending is the Auditor Defendants' Motion to Strike Evidence (Doc. 107 ). This case arises out of plaintiff's termination from employment. For the reasons that follow, summary judgment is granted in favor of Kovack with respect to count two. The Court declines to exercise supplemental jurisdiction over the remaining state law claims. The motion to strike is MOOT, with the exception of evidence regarding pornography, which the Court will consider. Judge Patricia A. Gaughan on 11/30/16. (LC,S) re 93 , 94 , 107
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
Annette Ehrlich,
Plaintiff,
Vs.
Medina County Auditor, et al.,
Defendant.
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CASE NO. 1:14 CV 2560
JUDGE PATRICIA A. GAUGHAN
Memorandum of Opinion and Order
INTRODUCTION
This matter is before the Court upon Defendants Medina County, Ohio and Medina
County, Ohio Commissioners’ Motion for Summary Judgment (Doc. 93) and Defendants
Michael Kovak and Joan Heller’s Motion for Summary Judgment (Doc. 94). Also pending is the
Auditor Defendants’ Motion to Strike Evidence (Doc. 107). This case arises out of plaintiff’s
termination from employment. For the reasons that follow, summary judgment is granted in
favor of Kovack with respect to count two. The Court declines to exercise supplemental
jurisdiction over the remaining state law claims. The motion to strike is MOOT, with the
1
exception of evidence regarding pornography, which the Court will consider.
FACTS
Plaintiff, Annette Ehrlich, brings this lawsuit against defendants, Medina County, Ohio
(“Medina County”), Medina County, Ohio County Commissioners (“County Commissioners”),
Medina County Auditor Michael Kovack, and Joan Heller, alleging wrongdoing in connection
with plaintiff’s termination from employment.
Kovack is the duly elected Auditor of Medina County and defendant Heller was
Kovack’s chief deputy during the relevant time period. Plaintiff was employed by the Medina
County Auditor’s Office (“Auditor’s Office”) as a network administrator. Plaintiff began
working in that position on January 31, 2005. The position is exempt from competitive
classified service and is considered a “fiduciary” position. Plaintiff was principally responsible
for the efficient and secure operation of the network at the Auditor’s Office. Plaintiff’s job
duties also included maintaining the passwords to all Auditor’s Office employees’ email
accounts. In addition, plaintiff’s job duties included reporting any security breach to a
supervisor, i.e., Lisa Nichols. Plaintiff also had the authority to speak on behalf of the Auditor’s
Office on issues related to information technology (“IT”) and further made IT-related
recommendations to Kovack to assist him in his decision-making process.
In September of 2013, plaintiff learned that Kovack was using the printer in the Auditor’s
Office to print fliers for a campaign event in October of 2013. Subsequently, in February of
2014, plaintiff reviewed the print logs for the Auditor’s Office and discovered that Kovack had
used the Auditor’s Office printers to print approximately 150 copies related to Kovack’s chili
cook-off. She then reviewed the print logs for October of 2013 and learned that Kovack made
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approximately 200 copies related to his 2013 campaign. In all, plaintiff estimates that Kovack
made 1,000 copies for personal reasons.
In March of 2014, plaintiff asked if she could attend a training session related to a
software program called Pictometry. According to Kovack, Pictometry was a simple end user
software program that the Auditor’s Office had used for years. Kovack and Heller believed that
Kovack should not attend the training session and, as such, they denied her request. On March
7, 2014, plaintiff wrote Kovack the following email:
I will be taking vacation to attend this training that I helped set up. I am unsure why you
are so vehemently adamant that I be banned from this training. This has happened before
with pricing in MVP. I was denied the opportunity for training right here at our office but
then I had to answer pricing questions first from Kathy who had the training and then
from Jim. In fact, he was asking me questions about pricing just this week.
Kovack believed the tone of the email was insubordinate and decided to discipline
plaintiff. On March 14, 2014, Heller prepared a Notice of Pre-Disciplinary Hearing. In the
meantime, on March 19, 2014, plaintiff hand delivered a lengthy letter to Kovack. The letter
raises a number of issues and primarily focuses on the “hostile” work environment that plaintiff
believes exists at the Auditor’s Office. Plaintiff claims that both Kovack and Heller have shut
her out of meetings and refused to allow her to perform her job. She claims that work is causing
her intense anxiety and that she can no longer eat at work. In addition, the letter provides:
I also wanted to point out that in February, through checking of the print logs on the print
server, which I do regularly to make sure the printers are working properly, I noticed that
you were printing your Chilli Cook off campaign literature from the printers here in the
office. I have been so upset over it and I don't know how to address it considering how I
have been treated by both you and Joan. I constantly fear for my job and so I did not
disclose this to anyone. However, I believe it is wrong to do that. This must be
addressed, as this knowledge is causing me so much emotional distress.
On March 20, 2014, the Notice of Pre-Disciplinary Hearing was hand delivered to
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plaintiff and a meeting occurred. At the meeting plaintiff questioned whether Heller would
retire, and Heller responded that she was never going to leave. Heller recommended that
plaintiff contact the employee assistance program because of her stress. According to Heller,
plaintiff signed the form and threw it at Heller. Lisa Nichols was also present at this event. Her
written account contains no mention of plaintiff having thrown the notice at Heller. That same
day, plaintiff contacted the Sheriff’s Office via letter regarding Kovack’s use of the printers for
his campaign. The letter also mentions the fact that in 2011, plaintiff discovered pornography on
Kovack’s county laptop.1
Subsequently, Heller sent plaintiff an email later that day in which Heller requested that
plaintiff change Heller’s password to “never leave.” Heller testified that her actions were mean
and were intended to taunt plaintiff. Heller claims that on the following day, she gave plaintiff
her pay stub and plaintiff “violently grabbed” it from Heller’s hand. Heller claimed that she felt
threatened by plaintiff’s outbursts.
Ultimately, plaintiff received a written reprimand for her conduct regarding the March
7th email she sent to Kovack concerning the Pictometry training. Pursuant to the personnel
manual, the written reprimand was expunged from her personnel file after six months.
According to plaintiff, after getting yelled at by Heller regarding the training, plaintiff
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Plaintiff notes in her brief that she believes that Kovack misused
his position as Auditor by switching the stickers on the gasoline
pumps in an effort to help Heller win an election. There is simply
no indication, however, that plaintiff engaged in any speech on this
issue. Therefore, the Court need not reach defendants’ argument
that this evidence should be stricken as impermissible prior bad
acts. The Court will, however, consider evidence regarding the
pornography to the extent plaintiff reported this “misuse” to the
Sheriff.
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reviewed the network and discovered that Kovack maintained a number of files related to his
campaign, including “chili cook-off files and donor lists and campaign lists and letters to the
editor.” Plaintiff contacted “a couple of different lawyers” regarding her concerns that Kovack
was committing a felony by misusing county resources. At her deposition, plaintiff testified that
she did not report her concerns regarding Kovack’s use of the county printers to anyone else at
the Auditor’s Office because she was afraid of Kovack and Heller.2 She did testify, however,
that she informed Holly Muren and Chris Jakab, who are not employed by the Auditor’s Office.
In response to plaintiff’s March 19th letter raising allegations of a hostile work
environment, Kovack formed a committee to investigate plaintiff’s claims. The three-member
committee, which consisted of Auditor’s Office employees, determined that plaintiff had not
been subjected to a hostile work environment. Rather, the committee met with plaintiff and
plaintiff provided a list of events that she believed resulted in a hostile work environment. All of
these issues relate to interactions with Heller on various personnel matters, including the
Pictometery training and the password change. Although acknowledging that the events give
rise to an “unpleasant or undesirable work environment,” and stem from a personality conflict
between plaintiff and Heller, they did not rise to the level of creating a hostile work environment.
Kovack testified that he also informed the sheriff of plaintiff’s allegations.
2
In apparent contradiction to her deposition testimony, plaintiff
offers her own affidavit in which she now purports to aver that on
either March 7th or 8th, plaintiff orally notified Lisa Nichols about
Kovack’s use of county resources for personal and campaign
purposes. Defendants move to strike plaintiff’s affidavit. The
Court need not reach this issue because the reporting of the
“wrongful acts” relates to plaintiff’s state law whistleblower claim,
over which this Court declines to exercise supplemental
jurisdiction.
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On June 6, 2014, Kovack contacted Michael D. Warner, who works with computer
servers. In response, Warner sent the following email:
I apologize for missing your voicemail regarding assisting with the transition of your IT
administrator. If the opportunity is still available, please let me know and I would be
happy to help in any way that I can. We are more than happy to be a resource to our
clients in any way that we can support them either on a full time or part time basis.
Kovack testified that, although he had no plan to terminate plaintiff at this point, he was
concerned that if she left employment, the Auditor’s Office would need a contingency plan.
Kovack testified that he believed he had an “unstable” personnel situation.
In July of 2014 plaintiff requested leave under the Family Medical Leave Act (“FMLA”).
The physician’s note accompanying the request indicates that leave is required as a result of
stress-related symptoms and because plaintiff’s mother required care stemming from her cancer
diagnosis.
At some point, Kovack became concerned that a leak existed in the Auditor’s Office. He
claims that a press release was issued by Medina County Commissioner Pat Geissman. The
press release contained a “whole host” of allegations against Kovack, including allegations
surrounding his use of county resources in relation to the chili cook-off. Kovack could not recall
when this occurred and could not say whether it occurred before or after plaintiff began FMLA
leave. Plaintiff was scheduled to return to work on August 25, 2014. On that date, Kovack
prepared a letter placing plaintiff on paid administrative leave:
Due to Amy Murray’s scheduled vacation time last week we are not quite prepared for
you to return to work this week. Accordingly, I am granting you one week of paid
administrative leave to allow us to complete preparations for your return....
Kovack testified that he was concerned about the leaking of information, specifically the
chili cook-off information. He testified that he wanted Amy Murray to limit plaintiff’s access to
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the computer system before plaintiff’s return to work. Kovack later extended her leave via letter
dated August 29, 2014:
Based on several Incidents which occurred immediately prior to your FMLA leave, I
have some concerns I would like to address prior to granting you access to the data center
and our network. Accordingly, I am placing you on paid administrative leave until further
notice.
Please report to the auditor's office conference room on Friday, September 5th at 9:00
am. At that time I hope to discuss some of those concerns with you.
Plaintiff and Kovack met on September 5th, at which point Kovack claims that plaintiff
admitted that she provided information from the Auditor’s Office to Commissioner Geissman.
It is not clear whether plaintiff provided the information directly. Anne Murphy, an individual
formerly employed by the Auditor’s Office, testified that plaintiff gave her a copy of Kovack’s
hard drive in the form of a disc over “the summer” of 2014. Murphy then informed plaintiff that
Murphy would provide the copy of the hard drive to Geissman. It appears that Geissman may
have been Kovack’s political adversary. At the time plaintiff provided the disc to Murphy,
Murphy no longer worked for the Auditor’s Office. Following the meeting, plaintiff remained
on paid administrative leave, but was not given a return to work date.
On September 17, 2014, plaintiff was contacted by a newspaper reporter. According to
plaintiff, the reporter had a discussion with Heller. Heller informed the reporter that plaintiff had
badly injured Heller’s hand and further indicated that Heller was afraid of plaintiff. According
to plaintiff, the reporter learned this information as a result of reviewing plaintiff’s personnel
file. According to Heller, she provided plaintiff’s personnel file to the reporter in response to a
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records request.3
The following day, plaintiff came to the Auditor’s Office along with her muzzled dog and
requested a copy of her personnel file. Heller testified that plaintiff’s behavior was “off balance,
agitated, angry.” She indicated that plaintiff sat in a chair approximately eight feet from Heller
and occasionally became loud and disruptive. Then, plaintiff would pet her dog, which had a
calming effect on plaintiff and the pattern would repeat itself. There were a significant number
of witnesses to this incident. Kovack received text messages and cell phone calls from
employees regarding the incident. The employees reported to Kovack that plaintiff was “causing
a scene and threatening” Heller. Kovack instructed the witnesses to prepare statements
regarding the incident. In connection with this case, sixteen witnesses offer affidavits describing
the incident. The majority of witnesses testified that they felt threatened by plaintiff’s behavior,
although no witness points to a particular act that plaintiff committed. In addition, a number of
witnesses indicated they were afraid of the muzzled dog that plaintiff brought with her to the
Auditor’s Office. The vast majority further described plaintiff’s behavior as “loud, demanding,
agitated, angry, scary or discourteous.” All witnesses indicated that they believe her behavior
warranted immediate dismissal. These affidavits are consistent with the statements that many of
the affiants prepared on the day of the incident. On the other hand, plaintiff denies that she
engaged in any threatening behavior. Rather, plaintiff claims that Heller was verbally attacking
her. In addition, plaintiff testified that at one point plaintiff became fearful that Heller would hit
3
These facts are relied on for background purposes only.
Defendants move to strike this testimony on the grounds that it is
hearsay and cannot be relied on to establish plaintiff’s defamation
claim. As set forth below, the Court declines to exercise
supplemental jurisdiction over the defamation claim.
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her. Plaintiff further disputes the statements made by the affiants and further indicates that she
believes at least one affiant was not actually present when the incident occurred.
Later that afternoon, Heller applied for a civil stalking order against plaintiff. According
to Heller, the Magistrate informed her that the incident could become a public record and
plaintiff’s medical records could be part of that record. Heller testified that she did not want
plaintiff’s medical files released and, as such, Heller voluntarily dismissed her request.
After reviewing the statements and discussing the incident, Kovack determined that
plaintiff’s conduct warranted discipline. Kovack sent a Pre-Disciplinary Hearing letter to
plaintiff on September 19, 2014, which set a hearing for September 25, 2014. In the letter,
Kovack indicated that during the incident with Heller, plaintiff “became irate, confrontational,
loud and disruptive.” Kovack described plaintiff’s conduct as a category 3 violation which may
subject her to termination. Plaintiff notes that Kovack did not indicate in the letter that plaintiff
acted in a threatening manner. Plaintiff further notes that this is the same type of misconduct for
which plaintiff was previously disciplined. It is unclear what transpired at the hearing on
September 25th. On September 26, 2014, Kovack determined that plaintiff’s conduct warranted
termination.
This lawsuit followed. Plaintiff filed five claims for relief. Count one is a claim for
violation of Ohio’s Whistleblower Act and is asserted against all defendants. Count two is a
claim for violation of 42 U.S.C. § 1983 for terminating plaintiff in violation of the First
Amendment. This claim was asserted against all defendants with the exception of Heller. The
Court previously granted judgment on the pleadings in favor of all defendants except Kovack in
his individual capacity. Thus, count two remains pending against Kovack only. Count three is a
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claim for defamation, which is asserted against Heller only. The Court previously determined
that plaintiff could not assert a claim for defamation for statements made by Heller to the Medina
Court of Common Pleas in connection with the filing of her stalking petition. Count four is a
claim for malicious prosecution and is asserted against Heller and count five is a claim against
all defendants for intentional infliction of emotional distress.
Defendants now move for summary judgment with respect to all claims and plaintiff
opposes the motions.
STANDARD OF REVIEW
Rule 56(a) of the Federal Rules of Civil Procedure, as amended on December 1, 2010,
provides in relevant part that:
A party may move for summary judgment, identifying each claim or defense—or the part
of each claim or defense—on which summary judgment is sought. The 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.
Fed .R.Civ.P. 56(a).
Rule 56(e) provides in relevant part that “[i]f a party fails to properly support an assertion
of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the
court may ... consider the fact undisputed for purposes of the motion ... [and] grant summary
judgment if the motion and supporting materials—including the facts considered
undisputed-show that the movant is entitled to it.” Fed.R.Civ.P. 56(e).
Although Congress amended the summary judgment rule, the “standard for granting
summary judgment remain unchanged” and the amendment “will not affect continuing
development of the decisional law construing and applying” the standard. See, Fed.R.Civ.P. 56,
Committee Notes at 31.
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Accordingly, summary judgment is appropriate when no genuine issues of material fact
exist and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986) (citing Fed. R. Civ. P. 56(c)); see also LaPointe v. UAW, Local
600, 8 F.3d 376, 378 (6th Cir. 1993). The burden of showing the absence of any such genuine
issues of material facts rests with the moving party:
[A] party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its
motion, and identifying those portions of “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with affidavits,” if any, which it believes demonstrates the
absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323 (citing Fed. R. Civ. P. 56(c)). A fact is “material only if its resolution
will affect the outcome of the lawsuit.” Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).
Once the moving party has satisfied its burden of proof, the burden then shifts to the
nonmoving party. The court must afford all reasonable inferences and construe the evidence in
the light most favorable to the nonmoving party. Cox v. Kentucky Dep’t. of Transp., 53 F.3d
146, 150 (6th Cir. 1995) (citation omitted); see also United States v. Hodges X-Ray, Inc., 759
F.2d 557, 562 (6th Cir. 1985). However, the nonmoving party may not simply rely on its
pleading, but must “produce evidence that results in a conflict of material fact to be solved by a
jury.” Cox, 53 F.3d at 150.
Summary judgment should be granted if a party who bears the burden of proof at trial
does not establish an essential element of his case. Tolton v. American Biodyne, Inc., 48 F.3d
937, 941 (6th Cir. 1995) (citing Celotex, 477 U.S. at 322). Accordingly, “the mere existence of a
scintilla of evidence in support of plaintiff’s position will be insufficient; there must be evidence
on which the jury could reasonably find for the plaintiff.” Copeland v. Machulis, 57 F.3d 476,
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479 (6th Cir. 1995) (quoting Anderson, 477 U.S. at 52 (1986)). Moreover, if the evidence is
“merely colorable” and not “significantly probative,” the court may decide the legal issue and
grant summary judgment. Anderson, 477 U.S. at 249-50 (citation omitted).
ANALYSIS
A. Count two (Section 1983 First Amendment retaliation claim)
To maintain a claim under Section 1983, a plaintiff must establish that she was deprived
of a right secured by the Constitution or the laws of the United States, and that the deprivation
was caused by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48, 108
S.Ct 2250, 101 L.Ed.2d 40 (1988); Simescu v. Emmet County Dep’t of Soc. Services, 942 F.2d
372, 374 (6th Cir. 1991). Section 1983 “is not itself a source of substantive rights,” but merely
provides “a method for vindicating federal rights elsewhere conferred.” Baker v. McCollan, 443
U.S. 137, 144 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). The first step in any such claim is to
identify the specific constitutional right allegedly infringed. Graham v. Connor, 490 U.S. 386,
394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Baker, 443 U.S. at 140.
When a Section 1983 claim is based on First Amendment retaliation, a plaintiff must
establish that she: (1) engaged in constitutionally protected conduct; (2) suffered an adverse
action that would deter a person of ordinary firmness from continuing to engage in the conduct;
and (3) the adverse action was motivated at least in part by the conduct. Fritz v. Charter Twp. Of
Comstock, 592 F.3d 718, 723 (6th Cir. 2010).
Defendant argues that he is entitled to summary judgment on this claim because plaintiff
cannot establish that she engaged in constitutionally protected conduct. According to defendant,
plaintiff’s position qualifies under the Elrod/Branti exception. Defendant also argues that
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plaintiff’s speech is “duty speech” and, as such, plaintiff has no First Amendment claim. To the
extent plaintiff engaged in constitutionally protected conduct, defendant argues that plaintiff
cannot show a casual connection between her termination and the protected conduct.
1. Constitutionally protected conduct
a. Elrod/Branti4
In her complaint, plaintiff alleges that she engaged in protected speech by sending the
March 19th letter to Kovack in which she informed him that she knew he was using the
Auditor’s Office printers for his campaign. In addition, she claims that her March 20th letter to
the Sheriff’s Office constitutes protected speech.
The Sixth Circuit employs a two-part inquiry to determine whether the employee
engaged in protected First Amendment conduct. See e.g., Rose v. Stephens, 291 F.3d 917, 920
(6th
Cir. 2002); Latham v. Office of the Attorney General of the State of Ohio, 395 F.3d 261, 265 (6th
Cir. 2005). The threshold question is “whether the employee’s ‘speech may be fairly
characterized as constituting speech on a matter of public concern.’” Rose, 291 F.3d at 920
4
The Court notes that this case was previously assigned by the
consent of the parties to Magistrate Judge White, who issued a
thorough Opinion in connection with defendants’ motion for
judgment on the pleadings. Upon the retirement of Magistrate
Judge White, the parties declined to consent to the jurisdiction of
the newly assigned Magistrate Judge. Therefore, the case is now
before this Court. The Court notes, however, that much of the
relevant law set forth herein was previously set forth in the
Opinion issued by Judge White. The analysis differs, however, in
that Magistrate Judge White was limited to the allegations in the
pleadings. This Court is not so limited and will consider the
factual matter presented to the Court in connection with the
parties’ briefing.
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(quoting Dambrot v. Central Michigan University, 55 F.3d 1177, 1186 (6th Cir. 1995)). See also
Silberstein v. City of Dayton, 440 F.3d 306, 318 (6th Cir. 2006). If the speech relates to a matter
of public concern, the court employs the balancing test set forth in Pickering v. Board of
Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), “to determine if the employee’s
free speech interests outweigh the efficiency interests of the government as an employer.” Rose,
291 F.3d at 920.
However, “[w]hile Pickering provides the basic framework for analyzing a § 1983 First
Amendment claim, this circuit employs a different test when a claim is brought by an employee
who held a policymaking or confidential position.” Silberstein, 440 F.3d at 319. Specifically, in
Rose the Sixth Circuit held that “where a confidential or policymaking public employee is
discharged on the basis of speech related to [her] political or policy views, the
Pickering balance favors the government as a matter of law.” Rose, 291 F.3d at 921. As another
Court in this District observed, “[t]his holding is an extension of the Elrod/Branti line of cases,
in which the Supreme Court recognized that, although patronage dismissals ordinarily are
unconstitutional, a public employer may terminate a public employee in a policymaking or
confidential position solely because of her political affiliation without violating the First
Amendment.” Marsilio v. Vigluicci, 924 F.Supp.2d 837, 849 (N.D. Ohio 2013). Pursuant to
Rose, the presumption in favor of the government in the Pickering analysis applies not only to
patronage dismissals but also when “a confidential or policymaking public employee is
discharged on the basis of speech related to his political or policy views.”
The Supreme Court has observed that “no clear line can be drawn between policymaking
and non-policymaking positions.” Elrod, 427 U.S. at 367. In an effort to clarify this
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determination, the Sixth Circuit has articulated four categories of employees who will always fall
within the Elrod/Branti policymaking or confidential employees exception. Defendants argue
that plaintiff’s position falls under category three, which consists of:
confidential advisors who spend a significant portion of their time on the job advising
category one or category two position-holders on how to exercise their statutory or
delegated policymaking authority or other confidential employees who control the lines
of communications to category one positions, category two positions or confidential
advisors.
Latham, 395 F.3d at 267 (citing McCloud v. Testa, 97 F.3d 1536, 1557-1558 (6th Cir. 1996)).
“The Elrod–Branti exception is to be construed broadly, so as presumptively to
encompass positions placed by the legislature outside of the ‘merit’ civil service. Peterson v.
Dean, 777 F.3d 334, 342 (6th Cir. 2015)(internal quotation and citation omitted).
“Consequently, if there is any ambiguity about whether a particular position falls into any of [the
four categories] (and so also within the Branti exception), it is to be construed in favor of the
governmental defendants when the position at issue is unclassified or non-merit under state
law....” Id.
Defendant claims that plaintiff was a network administrator, which is a “policymaking or
confidential” position. According to defendant, Kovack is a category one employee and plaintiff
is an employee who “controls the lines of communication” to Kovack. Defendant points out that
plaintiff had the passwords for Kovack’s email account and had the ability to access his email.
Kovack further had the ability to access Kovack’s network files and copy the contents thereof.
In addition, defendant notes that plaintiff’s position was necessary to ensure that the network at
the Auditor’s Office operated securely and efficiently. As such, defendant claims that plaintiff
controlled the means of Kovack’s electronic communication. Because plaintiff had unfettered
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access to all files and emails on the network, she constitutes a “confidential” employee and,
therefore, her speech was not protected under Elrod/Branti.
In response, plaintiff argues that the network administrator has no authority to make
policy decisions on behalf of the Auditor’s Office. Plaintiff further notes that she never advised
Kovack on how to exercise his policymaking authority.5 According to plaintiff, she had no
authority to control the lines of communication to or from Kovack. She did not control his
calendar or email. Plaintiff did not answer the phone or maintain any other similar duties.
Plaintiff testified that, although she maintained the passwords to Kovack’s email address, the
only way she could access his email was by accessing Kovack’s actual computer. In other
words, plaintiff claims that although she could theoretically access Kovack’s email, this access
does not rise to the level of “controlling” lines of communication found sufficient to be
considered a “confidential” employee for purposes of Elrod/Branti.
Upon review, the Court finds that plaintiff is a category three employee and, therefore,
she is subject to the Elrod/Branti exception. As defendant points out, plaintiff maintained the
passwords for and could access Kovack’s email account, as well as all of the network files. The
Court further notes that the testimony demonstrated that plaintiff read the contents of Kovack’s
laptop and “cleaned” his computer of viruses and other materials as part of her job duties.
5
Defendants move to strike this aspect of plaintiff’s affidavit.
According to defendants, plaintiff’s deposition testimony provides
that she participated on the County Data Board and, as such, she
held a “policymaking” position. The Court need not reach
defendants’ argument in that defendant did not rely on plaintiff’s
role as a “policymaker” in his motion for summary judgment.
Rather, the argument was limited to plaintiff’s role as an employee
who “controlled the lines of communication.”
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Plaintiff testified that she bore responsibility for ensuring that the network at the Auditor’s
Office operated securely and efficiently.6 In this position, plaintiff had ultimate control over the
electronic lines of communication and, therefore, qualifies as a category three employee.
Although the Court agrees with plaintiff that the issue presents a close call in that
plaintiff does not appear to routinely “control” lines of communication in the traditional sense,
the Court notes that pursuant to Rose, the balance weighs in favor of the government. Although
there may be some ambiguity as to whether a network administrator who maintains complete
control over the efficient workings of an elected official’s computer network, including email
communication, rises to the level of a category three employee, the classification of plaintiff’s
position tips the scale in favor of the government. As noted above, “ if there is any ambiguity
about whether a particular position falls into any of [the four categories] (and so also within the
Branti exception), it is to be construed in favor of the governmental defendants when the
position at issue is unclassified or non-merit under state law....” Id. Here, plaintiff’s offer letter
indicated that her position qualified for non-classified service pursuant to O.R.C. § 124.11(A)(9),
which provides:
(A) The unclassified service shall comprise the following positions, which shall not be
included in the classified service, and which shall be exempt from all examinations
required by this chapter:
(9) The deputies and assistants of state agencies authorized to act for and on behalf of the
agency, or holding a fiduciary or administrative relation to that agency and those persons
employed by and directly responsible to elected county officials or a county administrator
and holding a fiduciary or administrative relationship to such elected county officials or
county administrator, and the employees of such county officials whose fitness would be
6
The Court notes that plaintiff did in fact copy Kovack’s hard drive
and disseminate the contents thereof outside of the Auditor’s
Office.
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impracticable to determine by competitive examination....
Thus, assuming arguendo that some ambiguity exists as to whether plaintiff’s position
qualified as a category three position, the Court is to construe the Elrod–Branti exception
broadly, “so as presumptively [] encompass positions placed by the legislature outside of the
‘merit’ civil service.” Peterson v. Dean, 777 F.3d 334, 342 (6th Cir. 2015)(internal quotation
and citation omitted). Here, any ambiguity is resolved in favor of the government in that the
Ohio legislature denoted the position to be non-classified.
Having concluded that plaintiff’s position falls within the Elrod/Branti exception, the
Court turns to whether plaintiff engaged in speech related to “political or policy views.” In Rose,
the Sixth Circuit analyzed three approaches taken among the circuits in connection with this
issue. The first approach, i.e., the narrowest, affords a presumption in favor of the government
based on political affiliation only. The presumption therefore does not apply to speech. Under
the second approach, the presumption applies to political affiliation and speech, but only speech
that is “political or policy-based.” Courts following the third approach determine only whether
the employee holds a “policymaking or confidential” position. If so, the inquiry ends and the
government is entitled to the presumption. The Sixth Circuit adopted the second approach.
In Rose, the Court described the purpose of this element:
When such an employee speaks in a manner that undermines the trust and confidence that
are central to his position, the balance definitively tips in the government's favor because
an overt act of disloyalty necessarily causes significant disruption in the working
relationship between a confidential employee and his superiors. The additional restriction
that this presumption applies only to cases where the employee speaks on political or
policy issues ensures that the content of the employee's speech directly implicates the
loyalty requirements of the position and thus will adversely affect a central aspect of the
working relationship in all cases.
Although a close call, the Court finds that plaintiff’s speech directed at the misuse of
18
governmental property is not speech related to “political or policy” issues. Speech related to the
misuse of governmental property, which may constitute criminal activity, is not speech that
relates to a “political or policy” issue that would require political loyalty. Plaintiff is not
criticizing or expressing disagreement with policies implemented by Kovack or positions he
takes as County Auditor. Because plaintiff’s speech does not implicate either her political
position or her substantive policy views, the Elrod/Branti exception does not afford a
presumption in favor of the government. See, Marshall v. Porter County Plan Commission, 32
F.3d 1215 (7th Cir. 1994)(government not entitled to presumption where plaintiff spoke out
regarding defendant’s excessive mileage and failure to conduct inspections)7; Roupe v. Bay
County, 268 F.Supp.2d 825 (E.D. Mich. 2003)(speech regarding whether County Commissioner
attended work was not “political or policy” speech). As such, the traditional Pickering analysis
applies to plaintiff’s claim and summary judgment is not appropriate based on Elrod/Branti.
b. Duty speech
The Supreme Court has explained that “the First Amendment protects a public
employee’s right, in certain circumstances, to speak as a citizen addressing matters of public
concern.” Garcetti v. Ceballos, 547 U.S. 410, 417, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). See
also Connick v. Myers, 461 U.S. 138, 143, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). To establish
that speech is constitutionally protected, a public employee must show, among other things that
her speech was made as a private citizen, rather than pursuant to her official duties. Handy-Clay
v. City of Memphis, Tenn., 695 F.3d 531, 540 (6th Cir. 2012).
7
In Rose, the Sixth Circuit cited the Seventh Circuit’s approach
with approval. Accordingly, the Court relies on these cases in
addressing this element.
19
...[W]hen public employees make statements pursuant to their official duties, the
employees are not speaking as citizens for First Amendment purposes, and the
Constitution does not insulate their communications from employer discipline.
Defendant argues that plaintiff’s speech was “duty speech” and, therefore, protected by
the First Amendment. According to defendant, plaintiff testified that part of her job duties
include reporting any misuse of the network by anyone employed at the Auditor’s Office. On
the other hand, plaintiff argues that although her discovery of defendant’s misuse of the network
came as a result of her job duties, her reporting the misuse to the Sheriff was outside the “chain
of command,” and thus constitutes protected speech.
Upon review, the Court agrees with defendant in part. Here, plaintiff unequivocally
testified that part of her job duties included reporting misuse of the Auditor’s network:
Q Okay. So it is -- so a part and parcel of your duties at the auditor's office when you
worked there was to report inappropriate use of the network by auditor employees?
A Yes.
Q Thank you. And when we're talking about, just so that I make sure that I understand
what you're saying, inappropriate use of the network would be any use, whether you're
using the hardware or the software, right?
A Yes.
Thus, plaintiff’s March 19th letter in which she reported to Kovack her belief that he
misused the printers in the Auditor’s Office is “duty speech” as her job duties required her to
engage in such speech.8 As such, plaintiff cannot base a First Amendment claim on the letter she
sent to Kovack.
On the other hand, the Court agrees with plaintiff that her March 20th letter to the Sheriff
8
There is no evidence that Kovack’s printer was not part of the
network.
20
regarding the potential criminal misuse of the network does not qualify as “duty speech.” There
is simply no indication that plaintiff’s job duties required her to report on the misuse of the
network to individuals outside the chain of command. To the contrary, plaintiff testified that her
job duties required her to report any misuse to her supervisor:
Q. I see. Okay. If you found as the network administrator inappropriate use of the
network by one or more of the Medina County Auditor employees, would you report that
to the engineers' office or would you report that to Joan or Mike or someone else?
A I would report it to my supervisor as I was required.
Because there is no indication that plaintiff’s letter to the Sheriff was written as part of
her duties as the network administrator of the Auditor’s Office, summary judgment is not
warranted on this aspect of plaintiff’s claim. See, e.g. Handy-Clay, 695 F.3d at 542 (noting that
speech undertaken to individuals outside of plaintiff’s department were “clearly” not part of
plaintiff’s official duties).
2. Adverse action
The parties do not dispute that plaintiff’s termination from employment constitutes an
adverse action.
3. Causal connection
Plaintiff must demonstrate that the speech at issue “represented a substantial or
motivating factor in the adverse employment action.” Vereecke v. Huron Valley School Dist.,
609 F.3d. 392 (6th Cir. 2010)(citations and quotations omitted)(emphasis supplied). The Sixth
Circuit has interpreted this “inquiry to mean that a motivating factor is essentially but-for
cause–without which the action being challenged simply would not have been taken.” Id. A
burden shifting analysis applies in assessing this aspect of plaintiff’s claim:
21
Once the plaintiff has met his burden of establishing that his protected conduct was a
motivating factor behind any harm, the burden of production shifts to the defendant. If
the defendant can show that he would have taken the same action in the absence of the
protected activity, he is entitled to prevail on summary judgment.
Leonard v. Robinson, 477 F.3d 347, 366 (6th Cir. 2007).
Bare allegations of malice are insufficient to establish a constitutional claim.
Circumstantial evidence, however, including the “timing of events or the disparate treatment of
similarly situated individuals is appropriate.” Thaddeus-X v. Blatter, 175 F.3d 378, 399 (6th Cir.
1999).
With regard to temporal proximity, “substantial case law from this circuit cautions about
the permissibility of drawing an inference of causation from temporal proximity alone.”
Vereecke, 609 F.3d at 400. “The more time that elapses between the protected activity and the
adverse employment action, the more the plaintiff must supplement his claim with other
evidence of retaliatory conduct to establish causation.” Id. (Citations and quotations omitted).
“Incidents of misconduct that do not rise to the level of an adverse employment action may be
relevant at trial to show a pattern of mistreatment on the job based on plaintiff's protected
activities.” Dye v. Office of the Racing Comm’n, 702 F.3d 286, 305 (6th Cir. 2012).
Here defendant argues that there is no evidence that plaintiff’s speech was the “but for”
cause of her termination. Rather, the evidence establishes that plaintiff was terminated for her
own misconduct stemming from the September 18th incident. Defendant further notes that
plaintiff’s termination occurred six months after her protected speech, which is not closely
related in time for purposes of establishing causation. With respect to causation, plaintiff’s
response in its entirety consists of the following:
Kovack was seeking to replace [plaintiff] as early as June, 2014 after [plaintiff] reported
22
Kovack’s illegal actions. In addition, Kovack did not allow [plaintiff] to come back to
work after [plaintiff’s] FMLA leave citing [plaintiff’s] alleged wrongdoing regarding the
release of [Auditor Office] computer information. However, Kovack did nothing to
substantiate his unfounded assumptions.
Upon review, the Court agrees with defendant and finds that Kovack is entitled to
summary judgment. Here, plaintiff’s speech occurred in March of 2014 and she was terminated
in September. Because a six month time lapse is on the outer edges with regard to temporal
proximity, plaintiff must supplement her claim with other evidence of retaliatory conduct. See,
Benison v. Ross, 765 F.3d 649, 661 (6th Cir. 2014). Here, plaintiff points to two facts that she
claims sufficiently establish that her speech was a motivating factor in the decision to terminate
her employment. The Court finds that these facts, coupled with the six month time lapse, are
insufficient to satisfy plaintiff’s burden. As an initial matter, plaintiff notes that Kovack was
“seeking” to replace plaintiff shortly after she engaged in protected speech. Kovack, however,
testified that he sought possible assistance from an individual named Michael D. Warner
regarding the Network Administrator position because of concerns that plaintiff would leave
employment. There is simply no other evidence pertaining to this issue before the Court.
Plaintiff does not claim that Warner ever performed any work for defendant at any point in time.
Thus, the Court does not find this email to be particularly relevant to whether plaintiff’s speech
was a factor motivating her termination.
Plaintiff further relies on the fact that Kovack placed plaintiff on paid leave after she
sought to return from FMLA leave. Plaintiff, however, cites no specific testimony in support of
her position. Rather, plaintiff cites the Magistrate Judge’s ruling. In that Opinion, however, the
Magistrate Judge relied on plaintiff’s allegation that Kovack placed her on leave because she
“had collected the information regarding Kovack that [plaintiff] previously provided to the
23
Medina County Sheriff.” Plaintiff cites no testimony, however, supporting the allegation that
Kovack placed plaintiff on leave because she “collected” information that was reported to the
Sheriff.
Rather, Kovack’s testimony discloses his concern that information was being “leaked”
from his office by plaintiff. Press releases were issued that contained information from the
Auditor’s Office. Although this information did relate to, among other things, the misuse of the
office printer, Kovack’s concerns were justified. Anne Murphy, an individual formerly
employed by the Auditor’s Office,9 testified that plaintiff gave her a copy of Kovack’s hard drive
in the form of a disc over “the summer” of 2014. Murphy then informed plaintiff that Murphy
would provide the copy of the hard drive to County Commissioner Geissman. It appears that
Geissman may have been Kovack’s political adversary. According to Kovack, he met with
plaintiff on September 5, 2014, to discuss his concerns regarding the release of information to
Geissman. Kovack testified that plaintiff admitted that she provided information to Geissman
from the Auditor Office’s computers. Notably, plaintiff does not dispute that she disseminated
the entire contents of Kovack’s laptop outside the confines of the Auditor’s Office.
Plaintiff summarily indicates that this is “direct” evidence. The Court disagrees. Kovack
very clearly testified that he was concerned about a leak in his office because information fell
into the hands of Geissman and ultimately the newspapers. Because one would need to infer
that plaintiff was placed on leave for her speech–as opposed to leaking information outside the
office– the testimony requires an inference and, therefore, it is not direct evidence. Stansberry v.
9
Murphy was not employed at the Auditor’s Office at the time
plaintiff provided Murphy with a disc containing a copy of the
entire contents of Kovack’s laptop.
24
Air Wisconsin Airlines Corp., 651 F.3d 482 (6th Cir. 2011) (A statement is not direct evidence of
discrimination if it requires an inference.); Stockman v. Oakcrest Dental Center, P.C., 480 F.3d
791 (6th Cir. 2007) (same).
Following the September 5th meeting, it is undisputed that plaintiff brought her muzzled
dog to the Auditor’s Office with her on September 18th to request her personnel file. As noted
above, although the witnesses to the incident detail the account in varying ways, all of them
indicate that plaintiff’s behavior amounted to a terminable offense. A number of witnesses
testified that they feared both plaintiff and her dog, while others testified that they were
concerned for their personal safety and felt threatened. The vast majority described plaintiff’s
behavior as “loud, demanding, agitated, angry, scary or discourteous.”
Plaintiff denies that she acted in a verbally or physically threatening manner. She further
points out that some employees, including Heller, were not fearful of her dog. Plaintiff also
notes that Heller could not point to a specific threat plaintiff made that day. In addition, Heller
did not accuse plaintiff of “threatening or menacing” Heller in connection with the civil stalking
petition filed later that day. Plaintiff also notes that Heller was able to complete the job of
copying plaintiff’s personnel file.
The Court finds that plaintiff’s disagreement with the events on September 18th do not
create a genuine issue of material fact. As an initial matter, plaintiff offers only a simple denial
with respect to the nature of her behavior that day. This denial is insufficient to create a genuine
issue of material fact given that all 15 witnesses to the incident averred that plaintiff’s behavior
was insubordinate at best. Moreover, even assuming plaintiff believes she did not act in an
inappropriate manner, all of these witnesses perceived plaintiff’s behavior to warrant
25
termination. Although plaintiff notes that Heller did not point to a specific threat and was not
fearful of plaintiff’s muzzled dog, Heller testified that, “[i]n all the fifty years I’ve worked, I’ve
never been afraid of anyone, and I was afraid of her that day...she was loud...she was
disruptive...she was out of control.” In essence, the evidence overwhelming establishes that by
bringing her muzzled dog to the Auditor’s Office and engaging in behavior perceived by all
witnesses to range from discourteous or insubordinate to agitated, angry, or scary, plaintiff
engaged in an otherwise terminable offense.10
Based on a totality of the evidence, the Court finds that no genuine issue of material fact
exists with respect to causation. Here, like in Veerecke, “the absence of close temporal
proximity and the presence of an obviously nonretaliatory basis for the defendants’ decision
amount to insufficient evidence to permit an inference of retaliatory motive.”
B. Remaining claims
This Court, having dismissed all federal claims asserted in this case, declines to exercise
supplemental jurisdiction over the remaining state law claims. See Wellman v. Wheeling and L
10
Plaintiff claims that the misconduct plaintiff was charged with falls
under the same provision of the employee handbook at issue when
Kovack disciplined plaintiff for sending the email regarding
computer training. Notably, plaintiff does not dispute that her
behavior in connection with the first discipline was unwarranted.
To the extent plaintiff is claiming that her March speech must be a
motivating factor because more serious discipline was imposed
after the September 18 incident, the argument is rejected. Plaintiff
points to no provision in the handbook requiring Kovack to impose
the same discipline, or preventing him from terminating her for her
behavior. This is especially so in that the conduct at issue differs
significantly. In March, plaintiff received a written reprimand for
sending an insubordinate email, while in September, plaintiff
brought her muzzled dog to the office and behaved in a manner
that caused several coworkers to feel threatened or unsafe.
26
Lake Erie Railway Co., No. 97-3084, 1998 WL 25005, **4 (6th Cir. January 12, 1998)(citing
Gaff v. FDIC, 814 F.2d 311, 319 (6th Cir. 1987)) (“We have long recognized a general rule
disfavoring a district court’s exercise of pendent jurisdiction when federal issues are dismissed
before trial.”).
CONCLUSION
For the foregoing reasons, Defendants Michael Kovak and Joan Heller’s Motion for
Summary Judgment (Doc. 94) is GRANTED in PART. Defendant Kovack is entitled to
summary judgment with respect to count two. The Court declines to exercise supplemental
jurisdiction over the remaining state law claims. The motion to strike is MOOT, with the
exception of evidence regarding pornography, which the Court considered.
IT IS SO ORDERED.
/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
Dated: 11/30/16
27
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