Buddenberg v. Weisdack, et al

Filing 297

Opinion and Order: The Court GRANTS IN PART AND DENIES IN PART Plaintiff's motion for partial summary judgment (ECF No. 218 ; ECF No. 221 ; ECF No. 221 1); GRANTS Mr. Budzik's motion for summary judgment (ECF No. 216 ); GRANTS the District Defendants' motion for summary judgment (ECF No. 217 ); GRANTS Defendants' joint motion for sanctions and will schedule further proceedings by separate order at a later date to determine the approp riate sanction (ECF No. 256 ); GRANTS the District Defendants' motion to strike (ECF No. 270 ); DENIES Plaintiff's motion for discovery of materials and information within the crime-fraud exception to attorney-client privile ge (ECF No. 283 ); and DENIES AS MOOT Defendants' joint motion to strike (ECF No. 292 ). Further, pursuant to 28 U.S.C. § 1292(b), the Court CERTIFIES its Order under Rule 37 for interlocutory review. Judge J. Philip Calabrese on January 16, 2024.(Y,A)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
REBECCA BUDDENBERG,
Plaintiff,
v.
ESTATE OF ROBERT K.
WEISDACK, et al.,
Defendants.

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Case No. 1:18-cv-00522
Judge J. Philip Calabrese
Magistrate Judge
Jennifer Dowdell Armstrong

OPINION AND ORDER
This case involves a fairly routine employment dispute between Plaintiff
Rebecca Buddenberg and her former employer, Defendant Geauga County Health
District, and its former Commissioner, the late Robert Weisdack. Describing as
routine any public-sector wrongful termination claim implicating the First
Amendment and allegations of retaliation for whistleblowing might not be fair. To
the extent it is, this action started out as such a case. Its litigation has been anything
but. After two interlocutory appeals, the parties engaged in contentious scorchedearth discovery that required intensive supervision and involvement by the Court,
culminating in competing allegations of spoliation and misconduct and a motion for
sanctions. Even that high-level summary does not do justice to the level of resources
the parties dedicated to litigation of what should have been a fairly straightforward
case.

Ruling on the parties’ competing motions for summary judgment presents the
primary task before the Court. Additional evidentiary issues complicate what the
Supreme Court characterizes under the best of circumstances as the difficult job of
balancing a public employee’s free speech rights and a public employer’s interest in
efficient operations, Garcetti v. Ceballos, 547 U.S. 410, 418 (2006); Connick v. Myers,
461 U.S. 138, 150 (1983), which will never be easy “unless one side of the scale is
relatively insubstantial,” United States v. National Treasury Emps. Union, 513 U.S.
454, 482 (1995) (O’Connor, J., concurring). This is not an easy case. Neither side of
the scale is insubstantial. On the one hand, Ms. Buddenberg brought matters of
public concern about her boss, a public official, to the District’s governing body. On
the other hand, she strategically pursued these issues, and the District has an
interest in efficiently managing its operations and providing governmental services
to the public.
To resolve the difficult issues bound up with these questions, the parties
compiled a massive record, particularly relative to the size of the case. And that
record applies not just to the primary claims of retaliation that have driven this
litigation but to the numerous claims and defenses under federal and State law that
the parties litigate. Beyond the inherently difficult questions on the merits, this case
presents additional challenges. There are several threshold questions regarding
certain evidentiary matters and other objections to the record on summary judgment.
These issues implicate, among other things, the testimony of three prominent lawyers
tendered as expert witnesses in this case. Then, the parties make competing requests

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to reopen discovery on the basis of the crime-fraud exception to the attorney-client
privilege and for sanctions based on alleged spoliation of evidence. In this omnibus
ruling, the Court addresses all these pending matters.
STATEMENT OF FACTS
Plaintiff and Defendants filed cross-motions for summary judgment. In this
procedural posture, the Court construes the facts in Defendants’ favor in ruling on
Plaintiff’s motion for summary judgment, and in Plaintiff’s favor in ruling on
Defendants’ motions for summary judgment. Where the record presents material
disputes or competing versions of the facts, the Court so notes. With that, the record
on summary judgment consists of over 425 pages of briefs and more than 10,500 pages
of evidentiary materials. It establishes the following facts.
A.

The Geauga County Health District

Ohio law divides the State into health districts made up of the political
subdivisions with certain geographical areas. See Ohio Rev. Code §§ 3709.01 &
3709.051. The Geauga County Health District is a public health district organized
under Ohio law located in Geauga County, Ohio, approximately 30 miles east of
Cleveland. (See ECF No. 31, ¶ 7, PageID #365.) It serves over 95,000 residents and
has as many as thirty employees. (ECF No. 206-1, PageID #9558.) The District is
responsible for “protecting and promoting the health of the residents of Geauga
County through programs and activities designed to address safety, health, and
general well-being.” (ECF No. 195-36, PageID # 5278; ECF No. 195-14, PageID
#5007.) Additionally, it maintains “wells, plumbing, sewage, and septic tanks.” (ECF
No. 195-36, PageID # 5278.)
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A board of health consisting of five members governs a health district. Ohio
Rev. Code § 3709.02(A). The board of health appoints a commissioner who operates
as the “executive officer of the board” and “enforce[s] all sanitary laws and regulations
in the district.” Id., § 3709.11.
On February 2, 2015, Plaintiff Rebecca Buddenberg began work as the Fiscal
Coordinator for Defendant Geauga County Health District. (ECF No. 203-1, PageID
#8477.) Defendant Robert Weisdack, the District’s Health Commissioner at the time,
hired Ms. Buddenberg. (ECF No. 180-1, PageID #1978.) For most of the time she
worked for the District, Dan Mix was Ms. Buddenberg’s direct supervisor. (ECF
No. 203-1, PageID #8482–83; ECF No. 180-1, PageID #1981, #1985–86.) Mix served
as the fiscal officer for the District, worked closely with Mr. Weisdack and, along with
Mr. Weisdack, reported to the volunteer Board of Health. (ECF No. 180-1, PageID
#1987.)
A.1.

Ms. Buddenberg’s Work at the District

Ms. Buddenberg’s official job description included duties like managing the
District’s accounts payable, handling payroll, preparing fiscal reports for the Board,
and maintaining personnel records. (ECF No. 194-38; ECF No. 180-1, PageID# 1980.)
But her daily duties differed from her job description. (ECF No. 204-1, PageID
#8847–54.) For example, she never met with the Health District Advisory Council or
registered birth and death records.

(ECF No. 204-1, PageID #8846 & #8848.)

Mr. Weisdack testified that Ms. Buddenberg’s “ordinary or ad hoc” job duties did not
include reporting to the Board possible ethics violations, perceived violations of
contracts or policies, or gender equity issues. (ECF No. 180-1 Page ID #1988.) Indeed,
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her formal job description does not include reporting ethical issues to the Board.
(ECF No. 194-38, PageID #4830–34.)

Moreover, Plaintiff maintains that

Ms. Buddenberg was not a policymaker for the District (ECF No. 221, PageID
#12036)—a fact Defendants do not dispute (ECF No. 258, PageID #14684).
Ms. Buddenberg received generally favorable performance reviews.

(See

generally ECF No. 194-39; ECF No. 195-36, PageID #5279.) Four months after she
started with the District, Mr. Weisdack conducted her first performance evaluation
and made positive comments. (ECF No. 194-39, PageID #4835–37.) An area needing
improvement was that Ms. Buddenberg should “not be so aggressive on policy issues.”
(Id., PageID #4836; ECF No. 180-1, PageID #1991.) In April 2016, Mr. Weisdack gave
Ms. Buddenberg another positive performance review.

(ECF No. 180-1, PageID

#1995–96.) After this review, Ms. Buddenberg received a raise in excess of the
average for other employees that year. (Id., PageID #1997–98.)
A.2.

Mr. Weisdack’s Alleged Mismanagement

At the center of Plaintiff’s claims lie three areas of alleged mismanagement on
the part of Mr. Weisdack: (1) a failure to correct a gender-pay gap; (2) an unapproved
personal labor contract; and (3) his general unprofessional and domineering
management style. At his deposition, Mr. Weisdack agreed that these issues present
matters of public concern. (ECF No. 180-1, PageID #2038.) These issues arose
against the backdrop of the end of Mr. Weisdack’s contract with the District in
November 2016, at which time he was expected to retire. (ECF No. 203-1, PageID
#8547–48.)

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A.2.a. Gender Pay Disparity
By June 2016, Ms. Buddenberg learned that a female District employee was
paid less than a male employee in the same position although the woman had better
credentials and experience. (ECF No. 203-1, PageID #8526–28.) After the employee
was hired, sometime between 2015 and October 24, 2016, Mix and the female
employee’s supervisor, Mike Tusick, complained to Mr. Weisdack about the unequal
pay between the two employees. (ECF No. 180-1, PageID #2089–90.) Mr. Weisdack
agreed that their concerns were reasonable (id., PageID #2090) and that he did not
handle the situation as well or as quickly as he should have (id., PageID #2133–34).
Sometime in June 2016, the female employee and Tusick came to
Ms. Buddenberg with their concerns about the pay disparity.

(ECF No. 203-1,

PageID #8527–29.) Ms. Buddenberg raised this issue with Mr. Weisdack, Mix, and
Tusick.

(ECF No. 203-1, PageID #8535.)

When confronted with the issue,

Mr. Weisdack said, “We are going to look at it” and that he “wasn’t a lawyer.” (ECF
No. 180-1, PageID #2095 & #2100.) Also, he told Ms. Buddenberg that she was not a
lawyer either. (Id.) Mr. Weisdack did not address the pay disparity with the Board
until a compliance review several months later, in December 2016. (ECF No. 180-1,
PageID# 2095.)

Eventually, the District corrected the disparity but only after

Ms. Buddenberg raised the issue with the Board. (ECF No. 180-1, PageID #2073–74;
ECF No. 197-42, PageID #6784.)
A.2.b. Unapproved Tire Contract
In the fall of 2016, Mr. Weisdack performed tire removal services for the
District without an approved contract. (ECF No. 180-1, PageID #2010–15.) By way
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of background, the District received a grant of approximately $23,000 from the Ohio
Environmental Protection Agency for tire removal. (Id., PageID #2010–11.) Without
a competitive bidding process, Mr. Weisdack and two other employees of the District
performed the work themselves, removing some 2,000 tires, without a contract from
the State. (Id., PageID #2013–15.) Mr. Weisdack personally paid the two employees
$500 each and compensated himself as well.

(Id., PageID #2014–15 & #2017.)

Because the three men performed the work before approval of a contract,
Mr. Weisdack claimed that they served as volunteers.

(Id., PageID #2013.)

Nonetheless, all three men expected to be paid for their work.
#2047–48.)

(Id., PageID

Even so, Mr. Weisdack knew that he was not permitted to benefit

personally from a contract that he oversaw. (Id., PageID #2031.)
Mr. Weisdack’s conduct concerned Ms. Buddenberg, because as the fiscal
coordinator, she had to seek outside approval to process certain payments when
Mr. Weisdack was paid for his services. (ECF No. 203-1, PageID #8504–05.) Without
an approved contract and other required paperwork, it would have been difficult for
her to deliver payment to Mr. Weisdack. (ECF No. 203-1, PageID #8566–67.)
A.2.c. Management Style and Commissioner Contract
Ms. Buddenberg testified that Mr. Weisdack treated staff in degrading and
demoralizing ways throughout her tenure with the District. (ECF No. 203-1, PageID
#8595–96.) She said that he yelled, threatened, intimidated, and ignored staff. (Id.;
id., PageID #8501–02; ECF No. 194-26, PageID #4749.) At one point, Mr. Weisdack
hung a pacifier on his office door with a sign that read “for those who disagree.” (ECF
No. 180-1, PageID #2154.)

Defendant Alta Wendell, Mr. Weisdack’s assistant,
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described Mr. Weisdack as having a “volatile temper.” (ECF No. 190-1, PageID
#4298.)
At the end of 2016, Mr. Weisdack’s contract was due to expire, and he
contemplated retiring. (ECF No. 203-1, PageID #8547–48.) Alternatively, he might
have retired and been immediately rehired into the same role—a generally lawful, if
unseemly, practice under Ohio law.

(ECF No. 180-1, PageID #1975–76.)

Ms. Buddenberg was interested in Mr. Weisdack’s removal or retirement—she
described him as the “main barrier” to the District’s functionality. (ECF 208-2,
PageID #10432.)

Also, Ms. Buddenberg expressed her personal antipathy for

Mr. Weisdack to Mix for months. For example, she described Mr. Weisdack in private
texts to Mix as “scum,” “evil,” and a “truly horrible human.” (ECF No. 208-2, Page
ID #10444, #10445, #10448, #10451, #10475, #10502 & #10505.) She testified that
she meant that she disliked the way Mr. Weisdack was treating her and his behavior.
(ECF No. 205-1, PageID #9118.)
At the same time, she “wanted to work in an environment that was ethical and
protected the citizens. . . . Whether or not it was him as the commissioner or not, it
was irrelevant.”

(ECF No. 203-1, PageID #8550–51.)

She “wanted a work

environment where [she] could be proud to attach [her] name to, where [she] knew
that taxpayer dollars were being used appropriately.”

(Id., PageID #8699.)

To

another employee, Ms. Buddenberg discussed how “lovely” it would be if
Mr. Weisdack left his position at the District.

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(ECF No. 205-5, PageID #9371.)

Mr. Weisdack knew that Ms. Buddenberg and Mix wanted him gone. (ECF No. 215-1,
PageID #11804.)
B.

Board Meeting (October 24, 2016)

Another central component of Plaintiff’s allegations in this case involves
Ms. Buddenberg’s report to the Geauga County Board of Health in an executive
session of a special meeting held on October 24, 2016 at which she presented her
grievances about Mr. Weisdack.

(See ECF No. 186-1, PageID #3268–70.)

Mr. Weisdack was scheduled to meet with the Board at that meeting to discuss his
employment contract. (ECF No. 203-1, PageID #8547–48.)
Ms. Buddenberg requested the opportunity to speak to the Board to raise
concerns about the District’s leadership. (ECF No. 186-1, PageID #3268–70; ECF
No. 188-1, PageID #3679; ECF No. 203-1, PageID #8542–43.)

According to

Ms. Buddenberg, Board member David Gragg, a Defendant in this case, asked her to
attend the meeting. (ECF No. 203-1, Page ID #8543–45.) Whether requested to speak
or affirmatively approaching the Board on her own initiative, Ms. Buddenberg had
not previously spoken directly to the Board. (ECF No. 188-1, PageID #3680–81.)
B.1.

Ms. Buddenberg’s Report to the Board

At the Board meeting, Ms. Buddenberg expressed concern about the tire
contract, specifically that Mr. Weisdack was benefitting from a public contract, which
might present a conflict of interest. (ECF No. 203-1, PageID #8483, #8508, #8521–22
& #8541.)

After discussing the tire contract, the Board asked Ms. Buddenberg

whether she had any other concerns to raise.

(Id., PageID #8541.)

Then,

Ms. Buddenberg presented the issue regarding the gender pay that she had learned
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about and raised with Mr. Weisdack several months earlier. (Id., PageID #8538.)
She “wanted to address the Board regarding [her] concerns and the liability that the
Health District might have in regards to an unequal pay.” (Id., PageID #8537–38.)
Although she first learned about the pay disparity five months earlier, she did not
immediately go to the Board because she felt like her supervisors should have
addressed it. (Id., PageID #8535.) Once prompted at the meeting, she thought it was
an appropriate time to discuss the issue. (Id., PageID #8541–42.)
Additionally, Ms. Buddenberg presented several other complaints about
Mr. Weisdack that she broadly categorized as “operational concerns.” (ECF No. 31,
PageID #370–71; ECF No. 194-26, PageID #4747–50.) These concerns included,
among other things, that: (1) Mr. Weisdack ignored her request to install GPS units
in agency vehicles to ensure that field staff were doing their jobs (ECF No. 179-1,
PageID #1596); (2) Mr. Weisdack refused to use the District’s progressive discipline
policy with employees (ECF No. 189-1, PageID #4011–12) or to enforce the District’s
policies for attendance, paid breaks, and background checks (ECF No. 179-1, PageID
1598–1600); and (3) Mr. Weisdack accepted gifts from contractors with whom the
District did business (ECF No. 189-1, PageID #4009).
This meeting marked the first time Ms. Buddenberg reported perceived ethical
violations to the Board. (ECF No. 188-1, PageID #3680–91.) In deciding whether to
bring Mr. Weisdack’s alleged mismanagement to the Board, Ms. Buddenberg stated
she had “nothing to lose . . . someone must be held accountable.” (ECF No. 208-2,
PageID #10433.)

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On November 10, 2016, one Board member asked Ms. Buddenberg to
summarize the issues she raised in a letter. (ECF No. 194-26, PageID #4744.) In
response, the letter Ms. Buddenberg drafted spans five pages and provides additional
detail regarding the issues involving District policies and procedures on which she
presented. (Id., PageID #4745–50.) It also identified issues of workplace morale and
staff wellbeing. (Id., PageID #4748.)
B.2.

Motivation and Immediate Reaction

After the meeting, Ms. Buddenberg told Mix that she hoped Mr. Weisdack
would leave his job.

(ECF No. 208-3, PageID #10533.)

Ms. Buddenberg also

suggested that she and Mix “build a proposal to present to [the] [B]oard” and “show
them some ideas on how we can function without [Mr. Weisdack].” (ECF No. 208-4,
PageID #10537.)

Ms. Buddenberg said that the District “will be fine without

[Mr. Weisdack] but the [B]oard does not know it until we show them.”

(ECF

No. 208-4, PageID #10537.) Referring to Mr. Weisdack’s contract nearing an end,
Ms. Buddenberg told another District employee: “Timing on these tires was perfect!”
(ECF No. 205-5, PageID #9366.) Still, Ms. Buddenberg told that employee that if the
Board decided to rehire Mr. Weisdack, he would accept and continue on in the
position. (Id., PageID #9368.) Such a possibility gave her doubts about such a
storybook ending. (Id.)
Ms. Buddenberg repeatedly described her decision to go to the Board as “just
doing [her] job.” (ECF No. 205-5, PageID #9366.) For example, she texted a co-worker
that her actions were “[n]ot vindictive . . . just doing my job.” (Id.) In a draft ethics
complaint, she wrote, “I was mandated to report his actions by law . . . [b]y neglecting
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to do so I would have placed myself subject to disciplinary proceedings.”

(ECF

No. 215-1, Page ID #11806.) In her letter responding to the Board’s request to put
the issues she raised in the executive session in writing, Ms. Buddenberg wrote that
she “felt it necessary to address the board” after “[w]eeks of attempting to do my job
and ensure we remained in compliance” with the policies governing the tire contract.
(Id., PageID #11814.) Later, she wrote to another Board member, “I came forward
and addressed the board because I was required to.” (ECF No. 195-35, PageID
#5275.)
In contrast, during her deposition, Ms. Buddenberg emphasized that she felt a
moral and ethical obligation to report Mr. Weisdack’s conduct to the Board. (See, e.g.,
ECF No. 203-1, Page ID #8538–42.)
C.

Retaliation

When Ms. Buddenberg appeared at the special Board meeting on October 24,
2016, Mr. Weisdack saw her walk into the meeting with one of the Board members—
an usual event. (ECF No. 181-1, PageID #2233–34.) At that point, Mr. Weisdack
knew that Ms. Buddenberg expressed concern about the gender pay gap issue, and
he believed that she brought some concern about him to the Board. (Id., PageID
#2236 & #2238–39.)
In speaking to the Board, Ms. Buddenberg expressed concern about potential
retaliation. (ECF No. 186-1, PageID #3297.) In response, the Board said that it
“would investigate the allegations and determine what was going on in the
department.” (Id., PageID #3329.) Also, it told Ms. Buddenberg that the Board
members “appreciated her honesty” and her willingness “to come to us in a private
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meeting to discuss workplace issues and her interactions with the Health
Commissioner and that she should not feel threatened.” (ECF No. 188-1, PageID
#3710.) Although the Board told Ms. Buddenberg not to worry about retaliation, one
Board member testified that it made no promises to her in that regard. (Id., PageID
#3712.)

Another testified that the Board gave assurances that members would

protect her. (ECF No. 189-1, PageID #4021.)
After Ms. Buddenberg’s appearance before the Board, she experienced what
she perceived to be retaliation from Mr. Weisdack and other employees. Within the
lengthy record, Plaintiff principally points to the following instances of retaliation.
C.1.

Change in Work Hours

Two days after the Board meeting, on October 26, 2016, Mr. Weisdack directed
Mix to change Ms. Buddenberg’s working hours. (ECF No. 194-47, PageID #4870.)
Previously, she worked from 7:00 am to 3:30 pm to accommodate care for a grandson
who had cancer. (Id.; ECF No. 179-1, PageID #1661; ECF No. 181-1, PageID #2271.)
Mr. Weisdack changed her hours to 8:00 am to 4:30 pm. (ECF No. 194-47, PageID
#4870.) He knew that this change affected care for Ms. Buddenberg’s grandchild.
(ECF No. 181-1, PageID #2271.) Also, it affected her ability to complete college course
credits.

(ECF No. 189-1, PageID #4030.)

Mr. Weisdack did not explain to

Ms. Buddenberg why her schedule changed. (Id., PageID #2264.) But she knew—
before her reports to the Board—that her schedule could change at any time. (ECF
No. 181-1, PageID #2271.)
As additional evidence of retaliation based on the change in her work hours,
Plaintiff points to an email (ECF No. 194-6, PageID #4611), which is the subject of
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some controversy between the parties. The email was sent on Sunday, October 30,
2016, and it appears that Mr. Weisdack sent it to another employee of the District,
Darla Andrews. (Id.) In the email, Mr. Weisdack says: “there has been a lot of BS
going on in the office and I think you know who is stirring it up. So, I said everyone
must start at 8:00 and I can explain when I see you face to face. This needs to remain
between you and [me]. . . . Do not mention anything to anyone until you and I talk.”
(Id.)
At his deposition, Mr. Weisdack disputed the authenticity of this email,
testifying, “I’m certain I didn’t write it.” (ECF No. 181-1, PageID #2278.) Defendants
did not produce this email in discovery. (ECF No. 221, PageID #12045.) Instead,
Andrews provided it. (ECF No. 194-6, ¶ 15, PageID #4608.) Defendants maintain
that they “could stipulate that the email came off [the District’s] server” but they do
not concede that Mr. Weisdack wrote it. (ECF No. 195-49, PageID #5445.) For
purposes of summary judgment only, the Court assumes that a trier of fact would
determine that Mr. Weisdack wrote and sent the message, then deleted it from his
sent items folder to prevent it from saving to the server.
In any event, Mr. Weisdack testified that he changed Ms. Buddenberg’s work
hours to simplify the procurement process for supplies because Ms. Buddenberg was
not able to get purchase orders done.

(ECF No. 181-1, PageID #2265–69.)

Notwithstanding the change to Ms. Buddenberg’s schedule, two other District
employees continued to have flexible working hours. (ECF No. 181-1, PageID #2269.)
This change to her schedule motivated Ms. Buddenberg to push harder for

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Mr. Weisdack’s retirement, as she texted a colleague: “He is dumber than I thought.
I was neutral before . . . now I am pissed. He messed with the wrong girl!” (ECF
No. 205-5, PageID #9366 (ellipsis in original).)
C.2.

Work Environment

Within a day or two of her report to the Board, Mr. Weisdack was particularly
upset with Ms. Buddenberg and told his assistant as much (ECF No. 190-1, PageID
#4278–79, #4293–94 & #4313–14; ECF No. 191-1, PageID #4434), but Mr. Weisdack
denied that he did so (ECF No. 181-1, PageID #2240–42). His assistant testified that
Mr. Weisdack spoke negatively about Ms. Buddenberg to others and that the entire
staff within the Department knew how he felt. (ECF No. 190-1, PageID #4356–58.)
Ms. Buddenberg testified that she experienced retaliation: her work environment
was “very hostile” and “impact[ed] every minute of [her] life,” and she was “very
uncomfortable” in her job. (ECF No. 203-1, PageID #8599–8600.)
Mix provided a declaration attesting that, after Ms. Buddenberg’s report to the
Board, Mr. Weisdack’s “behavior was so intimidating that there were times Rebecca
and I communicated about whether it was safe for her to be at the office. On some
occasions, I steered him out of the building when he was angry.” (ECF No. 194-5,
¶ 27, PageID #4594.) At the same time, Ms. Buddenberg texted a colleague, “You
missed good days! lol Bob is angry and won’t look at or talk to me. . . . Retaliation!”
(ECF No. 205-5, PageID #9365.)
Further, she identified an “immediate change in the interactions” at work, and
Mr. Weisdack and others limited communication and “refus[ed] to converse” with her
to the point that she did not receive information needed to perform “elements of her
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job.”

(Id., PageID #8634–35 & #8636–40.)

At her deposition, Ms. Buddenberg

identified delayed responses from Mr. Weisdack’s assistant and two other employees
as examples of the retaliation she experienced. (ECF No. 203-1, PageID #8640–42.)
Plaintiff argues that Mr. Weisdack’s assistant stopped responding to inquiries
from Ms. Buddenberg. (ECF No. 221, PageID #12045.) But the record does not go
that far. (See ECF No. 190-1, PageID #4296.) More accurately, Mr. Weisdack’s
assistant did what she could to stay in his “good graces.” (Id., PageID #4296–97; ECF
No. 204-1, PageID #8926.) In light of Mr. Weisdack’s “volatile temper,” a finder of
fact would be justified in finding that his assistant tried to appease him by not talking
to Ms. Buddenberg. (ECF No. 190-1, PageID #4298.)
D.

Ms. Buddenberg’s Follow-Up Reports to the Board

In response to the conduct at work, Ms. Buddenberg reported Mr. Weisdack’s
retaliation against her to the Board. For example, on October 31, 2016, she emailed
all four Board members to report retaliation. (ECF No. 195-28, PageID #5258.) In
this email, Ms. Buddenberg reported the change in her working hours, which she
described as “a minor event.” (Id.) Also, she noted that Mr. Weisdack “is angry at”
her, “has avoided all contact with” her, and made his anger known to her co-workers.
(Id.) At this time, she texted Mix: “I hope he goes, I love this place.” (ECF No. 2083, PageID 10533.)
On November 4, 2016, Ms. Buddenberg emailed Board member Christina
Livers, a Defendant in this case, concerning Mr. Weisdack’s continued employment
as Commissioner. (ECF No. 195-29, PageID #5260.) This email came a day after a
staff meeting at the District during which Mr. Weisdack announced his intention not
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to leave his position and instead to work another two years. (Id.) Ms. Buddenberg
sought to confirm the accuracy of this development because, if true, “I will need to
begin seeking other employment.”

(Id.)

Ms. Buddenberg reported that

Mr. Weisdack’s response to her report to the Board “has created a toxic work
environment.” (Id.)
On the morning of Saturday, November 5, 2016, Ms. Buddenberg emailed Mix,
suggesting a more active approach to bring about a change in the District’s
leadership. (ECF No. 208-4, PageID #10537.) Specifically, she proposed building a
case to present to the Board to “show them some ideas on how we can function without
[Mr. Weisdack so] they may feel more confident.” (Id.) “We know we will be fine
without [Mr. Weisdack] but the board doesn’t know it until we show them.” (Id.)
Later that afternoon, Ms. Buddenberg spoke with Ms. Livers over the phone.
(ECF No. 197-3, PageID #6050; ECF No. 203-1, PageID #8617.) Ms. Buddenberg told
Ms. Livers about the retaliation she was experiencing, specifically the change to her
schedule, Mr. Weisdack’s failure to communicate with her, and his anger toward her
that Mr. Weisdack made known to staff within the Department. (ECF No. 203-1,
PageID #8617–18.)
Ms. Buddenberg emailed Ms. Livers again on Sunday, November 13, 2016.
(ECF No. 194-26, PageID #4744.) After complaining that Mr. Weisdack changed the
procedure for requesting leave to require his personal approval, she raised concern
about her work environment and retaliation. (Id.) Specifically, she wrote:
Staff approached me Thursday after learning from their supervisors
there will be interviews in the near future by a third party. Many stated
17

they are not willing to speak because the retaliation that will occur.
Everyone is convinced [Mr. Weisdack] is staying two more years. There
is great confusion and frustration expressed by staff. They see how he
is acting towards me, looking for any reason to cause me difficulty and
do not want that for themselves.
(Id.) Ms. Buddenberg attached a summary of her report to the Board on October 24.
(Id., PageID #4745–49 & #4750–55.) She concluded that report by saying, “Steps
need to be in place to protect public money.” (Id., PageID #4749.) At her deposition,
Ms. Buddenberg testified that this sentence reflects her “primary concern as a
taxpayer, as someone who lives in Geauga County, that our funds were utilized in the
way that they should be.” (ECF No. 203-1, PageID #8576.) She thought that, by
making the Board aware of the issues she raised, it would “hold leadership
accountable and . . . be ethical.” (Id., PageID #8598–99.)
E.

Outside Investigation

At a special meeting held on November 9, 2016, the Board engaged attorney
Jeffrey Embleton of the law firm Mansour Gavin to conduct a compliance audit and
review of the District. (ECF No. 195-1, PageID #4876.)
E.1

Staff Meeting

At a subsequent special staff meeting, the President of the Board explained
that, although Mr. Weisdack was retiring at the end of the month, the Board was
considering extending his contract for two years and had engaged Embleton to
investigate the District under Mr. Weisdack’s leadership. (ECF No. 195-2, PageID
#4878.) Through its President, the Board asked each staff member at the District to
respect the process, speak openly and honestly with Embleton, and cooperate with
the investigation. (Id.)
18

Ms. Buddenberg met with Timothy Goergen, the President of the Board, and
Catherine Whitright, another Board member—both Defendants in this case—that
same day after the staff meeting. (ECF No. 186-1, PageID #3353–54.) Mix also
attended this meeting. (Id., PageID #3354.) Ms. Buddenberg was visibly upset, cried,
and expressed concern that Mr. Weisdack remained on the job. (Id.; see also ECF
No. 189-1, PageID #4090; ECF No. 206-1, PageID #9562–63.) During that meeting,
at least some complaints of Mr. Weisdack’s mistreatment of Ms. Buddenberg were
aired. (ECF No. 206-1, PageID #9563.)
E.2.

Subsequent Board Actions

The next day, on November 16, 2016, Mr. Goergen met with Mr. Weisdack to
tell him about the compliance audit. (ECF No. 181-1, PageID #2326–27.) After that,
the relationship between Mr. Weisdack and Mix was never the same. (ECF No. 181-1,
PageID #2342–43; see also ECF No. 206-1, PageID #9564.) Previously, the two men
were close friends, and Mr. Weisdack wanted Mix to succeed him at the District.
(ECF No. 181-1, PageID #2283–85.) But Mr. Weisdack thought Mix was trying to
protect Ms. Buddenberg. (ECF No. 181-1, PageID #2347.) Also, he knew that Mix
was “trying to force [him] out.” (ECF No. 215-1, PageID #11804.) Mr. Weisdack
summarized the situation in an email:
He and our financial office have said I have been bad to the staff. I have
to retire by the end of November due to [changes in Ohio retirement
plans] and the Board want to rehire me back but Dan and this woman
see this as a opportunity to stop the Board from rehiring me. This is a
mess and Dan thinks he is entitled to be the [Health Commissioner]. I
think the Board sees through this little game but that remains to be seen.
(Id.)
19

On November 17, 2016, Mr. Weisdack directed Mix to edit the job description
for the Health Commissioner to add qualifications that made Mix ineligible for the
position.

(ECF No. 181-1, PageID #2331; ECF No. 186-1, PageID #3450; ECF

No. 189-1, PageID #4096.) In a special meeting that day, the Board approved the
revised job description. (ECF No. 195-30, PageID #5263.) When Ms. Buddenberg
heard the news, she texted a colleague: “I despise that man. I am disgusted and
devastated.” (ECF No. 205-5, PageID #9375.)
On November 18, 2016, Ms. Buddenberg drafted an ethics complaint. (ECF
No. 215-1, PageID #11805–08.)

In that draft, Ms. Buddenberg wrote:

“I was

mandated to report [Mr. Weisdack’s] actions by law, Ohio Ethics Policy and our
Geauga County Board of Health Personnel Policy.” (Id., PageID #11806.) Failure to
report would have subjected her “to disciplinary proceedings up to termination.” (Id.)
She described her “sole purpose” in going to the Board as seeking “to reduce and
hopefully, avoid a greater risk to the agency based on what should be perceived as his
neglect of duties.” (Id.) Doing what she saw as “fulfilling the obligations of [her]
position and reporting wrong doing” resulted in retaliation and a hostile work
environment. (Id.) Ms. Buddenberg complained that the Board knew all of this,
disregarded it, and allowed Mr. Weisdack’s actions and retaliation to continue. (Id.)
At the end of the month, on November 29, in a special meeting, the Board
unanimously voted to extend Mr. Weisdack’s contract for four months, with an option
to extend it for another two years. (ECF No. 195-31, PageID #5270.)

20

E.3.

Additional Reports from Ms. Buddenberg

The next day, on November 30, 2016, Ms. Buddenberg emailed Embleton to
request estimates for budgeting purposes. (ECF No. 195-32, PageID #5271.) At the
end of her email, Ms. Buddenberg commented on the Board’s action extending
Mr. Weisdack’s contract:
I just learned the board has placed back in authority the individual who
has betrayed residents [sic] trust, who has mismanaged this department
and has verbally attacked my character, making my workplace very
uncomfortable. He has verbalized a desire to terminate my employment
so I imagine I will not be here much longer. I appreciate your efforts. It
is obvious by the lack of communication and protection of employees that
the board is as negligent as Mr. Weisdack.
(Id.)
On December 14, 2016, Ms. Buddenberg responded to Ms. Livers in an email
discussion about ethics policies. (ECF No. 193-33, PageID #5272.) She took the
opportunity again to raise concern about retaliation: “I do find it ironic that the ideas
and concerns I had identified and were substantiated resulted in my work
environment becoming even more hostile.

Perhaps I should have followed

Mr. Weisdack’s directive to keep my mouth shut.” (Id.)
On December 15, 2016, Ms. Buddenberg emailed Embleton again, raising
complaints about Mr. Weisdack’s continuing behavior creating a hostile work
environment. (ECF No. 195-34, PageID #5273–74.) Ms. Buddenberg reported that
Mr. Weisdack told other employees that she was “part of setting him up” to sabotage
him and that she was “the cause of the problems currently taking place at [the
District].” (Id., PageID #5273.) Regarding the tire contract and the gender pay
disparity, Ms. Buddenberg advised that Mr. Weisdack told colleagues and affected
21

individuals false information. (Id.) Because of Mr. Weisdack’s position and authority,
Ms. Buddenberg found his words “very impactful and damaging” (id.) and wrote that
Mr. Weisdack “has turned the performance of my job responsibilities into an attack
on my credibility and my character” (id., PageID #5274.) Also, she advised that
she viewed the Board as supporting Mr. Weisdack and complicit in his “attacks
on my character and intentions” that negatively affected her employment. (Id.)
She explained that her purpose in speaking to the Board was to (1) ensure that
the District complied with the law and the Ohio Code of Ethics, and (2) avoid legal
action against the District based on unfair wage discrimination. (Id., Page ID #5274.)
She requested that Embleton instruct Mr. Weisdack “to stop all slanderous
communication.” (Id., PageID #5273.) She threatened to make a public request
for all of Mr. Weisdack’s communications regarding her and the relevant
circumstances since her report to the Board on October 24, 2016. (Id.)
Embleton responded that any claims of retaliation or hostile work environment
fell outside the scope of his engagement.

(ECF No. 197-8, PageID #6060.)

Accordingly, he forwarded Ms. Buddenberg’s email to the Board President and the
assistant county prosecutor in her capacity as counsel for the Board. (Id.) At least
one Board member recognized that Ms. Buddenberg believed these allegations and
that, if true, they were serious. (ECF No. 188-1, PageID #3786–87.) Another agreed
that Ms. Buddenberg acted reasonably in bringing her concerns and claims to the
Board. (ECF No. 189-1, PageID #4067–68.)

22

E.4.

The Conclusion of the Outside Investigation

By mid-January 2017, Embleton corresponded with Ms. Buddenberg on behalf
of the Board, advising her that he had presented the findings from his investigation
to the Board. (ECF No. 196-47, PageID #5995.) Further, he stated that the Board
was taking action to address many of the issues she had raised at the Board meeting
on October 24, 2016. (Id.) Although Embleton’s letter did not mention retaliation
expressly, and by addressing the concerns Ms. Buddenberg presented to the Board
on October 24, 2016 appears not to extend to her claims of retaliation, one Board
member specifically testified that the Board took steps to ensure that Mr. Weisdack
changed his behavior and did not retaliate. (ECF No. 189-1, PageID #4064.)
Around the same time, Ms. Buddenberg reached out to former employees to
learn additional information and seek help. (ECF No. 205-8, PageID #9504.) In
connection with this effort, Ms. Buddenberg told a former employee that she was
waiting on the final report from the Board and recommendations from the
investigation. (Id., PageID #9505.) But she said, “If he stays I will take legal action.
If he goes I will see if it improves.” (Id.)
On January 24, 2017, Ms. Buddenberg emailed Ms. Livers “in complete
frustration” by being left “in limbo for months, waiting patiently for something to
improve.” (ECF No. 195-35, PageID #5275.) She said that she made her report to
the Board in the first place “because I was required to” and had exhausted “every
effort to resolve my concerns with the Health Commissioner to no avail.” (Id.) As a
result, “I have been punished for my sincere effort to fulfill my job responsibilities. I
have been the victim of a personal attack by Mr. Weisdack. I have had my credibility
23

undermined, impacting my ability to perform essential job functions” and causing
“sleepless nights.” (Id.) She criticized the Board for making “no visible effort to
counteract Mr. Weisdack’s negative actions towards me.” (Id.) It appears that a
recent Board action triggered the email. Specifically, minutes of a Board meeting
held on January 10, 2017 referenced a deadline for a financial report about which
Ms. Buddenberg did not know. (Id.) Her email included a plea: “Please protect
myself and others from the retaliation Mr. Weisdack is eager to dole out.” (Id.,
PageID #5276.) In doing so, she expressed “grave concern for my future ability to
remain employed” with the District. (Id., PageID #5275.)
Mr. Weisdack testified that no Board member raised any issue or concern
about retaliation with him. (ECF No. 181-1, PageID #2330 & #2369–70.) One Board
member corroborated this testimony (see ECF No. 188-1, PageID #3713), even as he
conceded that the Board had an obligation to stop any retaliation (id., PageID #3787).
But at least one Board member disputes Mr. Weisdack’s testimony on this point,
recalling that the Board sought and received assurances from Mr. Weisdack that he
was not retaliating against Ms. Buddenberg. (ECF No. 189-1, PageID #4053–57.)
But the Board accepted Mr. Weisdack’s representations about retaliation without
further investigation. (Id., PageID #4058–59.) And this particular Board member
did not ask to hear directly from Ms. Buddenberg about her experience of retaliation.
(Id., PageID #4136–37.)
F.

The End of Ms. Buddenberg’s Employment at the District

In January 2017, the Board retained attorney James Budzik as outside counsel
in connection with civil service matters relating to the appointment, retention, and
24

discipline of public employees. (ECF No. 183-1, PageID #2701.) Like Embleton,
Mr. Budzik practices at the Mansour Gavin firm, and he represents public sector
employers in contract negotiations, grievances, arbitration, and civil service matters.
(Id., PageID #2697 & #2699.)
The record contains some disagreement about the scope of Mr. Budzik’s
representation. One Board member, its President, testified that Mr. Budzik’s role
included investigating whether Ms. Buddenberg experienced retaliation.

(ECF

No. 186-1, PageID #3393.) He described Mr. Budzik’s role as acting as a “chaperone”
given “the sensitivity and history” of Ms. Buddenberg’s allegations. (Id., PageID
#3384.)
But Mr. Budzik testified that investigating the allegations of retaliation that
Ms. Buddenberg made fell outside the scope of his representation and that of his firm.
(Id., PageID #2702–03.)

Because the District did not produce an agreement

specifically relating to Mr. Budzik’s engagement, Plaintiff contests whether
Mr. Budzik provided legal services at all. (ECF No. 252-2, PageID #14549; ECF
No. 259, PageID #14710.)

Whatever the case, his responsibilities included civil

service issues involving Mix and Ms. Buddenberg.

(ECF No. 183-1, PageID

#2729–30.)
F.1.

Mix’s Separation from Employment

Effective February 1, 2017, Mix resigned. (ECF No. 194-16, PageID #4664.)
Mix resigned after receiving a notice of disciplinary action “recommending and
proposing” his termination for numerous stated reasons. (ECF No. 194-37, PageID
#4819–22.) Mr. Weisdack and the Board’s President provided Mr. Budzik with the
25

information contained in the notice, and Mr. Budzik wrote it. (ECF No. 180-1, PageID
#2168; ECF No. 181-1, PageID # 2374–75.) Among the reasons listed for the District’s
action, the first involved Mix’s conduct during an investigation unrelated to the
events at issue in this lawsuit. (ECF No. 206-8, PageID #9786–89.) Specifically, the
notice explained that Mix disclosed confidential information about an ongoing
criminal investigation of certain employees. (Id.)
Some grounds for Mix’s separation directly or indirectly relate to
Ms. Buddenberg. For example, the compliance review uncovered that Mix had a key
without authorization to an office containing personnel files.

(ECF No. 194-37,

PageID #4821.) His personnel file and that of Ms. Buddenberg were missing and
located in her office, even though she was not their custodian and did not have
authorization to have these files. (Id.) Additionally, the notice references Mix’s
failure to discipline Ms. Buddenberg (though not mentioned by name) over obtaining
cloth chairs for use in the lunchroom that might harbor contamination contrary to
District policy. (Id., PageID #4820–21; ECF No. 181-1, PageID #2386; ECF No. 2061, PageID #9681–82.)
F.2.

Ms. Buddenberg’s Reaction to Mix’s Termination

After learning of Mix’s resignation, Ms. Buddenberg emailed Ms. Livers on
February 1, 2017, with a copy to Embleton, stating, “Dan’s dismissal was directly a
result of my reporting and his defending me for reporting.” (ECF No. 194-29, PageID
#4759.) She based this belief on rumors about a termination letter addressed to Mix
reportedly left open on a District laptop that she never saw. (ECF No. 203-1, PageID
#8660–62.) Also, Ms. Buddenberg wanted to ensure the Board knew that she was
26

“doing [her] job” when she initially reported Mr. Weisdack’s conduct.

(ECF

No. 194-29, PageID #4759.) She reiterated that her report to the Board led to “great
hostility.” (Id.) With Mr. Weisdack still serving as commissioner, Ms. Buddenberg
advised that he “will be permitted to continue his harassment” and the “primary
factor of dysfunction continues.” (Id.)
Following

Mix’s

resignation,

Ms.

Buddenberg

reported

directly

to

Mr. Weisdack. (ECF No. 179-1, PageID #1705.)
F.3.

EEOC Charge

On February 15, 2017, Ms. Buddenberg filled out an EEOC intake
questionnaire to start the process of filing a charge of discrimination. (ECF
No. 203-10, PageID #8789–94.) In it, she stated that retaliation occurred days after
her October 24, 2016 report to the Board. (ECF No. 203-10, PageID #8791.) She
reported that Mix offered no reason for the change to her scheduled working hours
but told her “to be cautious as Mr. Weisdack was out to hurt [her] for reporting.” (Id.)
She added that Mix was “forced to resign [and] threatened with termination.” (ECF
No. 203-10, PageID #8792.)
On February 22, 2017, the EEOC provided notice to the District of
Ms. Buddenberg’s charge, but the notice did not include the questionnaire or provide
any substantive information about Ms. Buddenberg’s charge.

(ECF No. 197-14,

PageID #6116–18). Instead, the notice indicated that Ms. Buddenberg had filed a
claim under Title VII of the Civil Rights Act and that “no action is required [by the
District] at this time.” (ECF No. 197-14, PageID #6116.) Also, it advised that the

27

claim alleged retaliation occurring on October 26, 2016. (Id.) The following day, the
District provided a copy of the notice to Mr. Budzik. (ECF No. 184-1, PageID #3115.)
When Mr. Weisdack received the notice, “he was dismayed” and “upset” that
Ms. Buddenberg filed the charge and “was not thrilled about it.” (ECF No. 190-1,
PageID #4351–52.) He thought that Ms. Buddenberg was out to get him and said as
much to others. (ECF No. 181-1, PageID #2416.)
F.4.

Notice of Disciplinary Action against Ms. Buddenberg

On February 28, 2017, Mr. Weisdack provided Ms. Buddenberg with a notice
of proposed disciplinary action. (ECF No. 195-19.) Citing a “repeated pattern” of
violating the District’s policies since mid-January 2017, Mr. Weisdack and the Board
proposed demotion to a clerical-secretarial position, with a concomitant reduction in
pay, and a three-day unpaid suspension.

(Id., PageID #5163 & #5166.)

As an

example, the notice cited rude, unprofessional, and disrespectful communications
with Mr. Weisdack, including in front of other employees.

(Id.)

It identified

Ms. Buddenberg’s email to Ms. Livers dated February 1, 2017 stating that Mix was
dismissed as a result of his defense of Ms. Buddenberg as false, intended to obtain a
benefit for herself and create an adverse work environment for all District employees.
(Id.) Mr. Weisdack testified that Mr. Budzik included that email as a ground for
discipline. (ECF No. 181-1, PageID #2406.) Also, it listed the following additional
grounds for discipline:
1.

Attempting to mandate her attendance at a meeting to obtain revisions
to the 2017 budget appropriations.

2.

Insubordination in connection with an unauthorized transfer of chairs
within District offices as part of the lunchroom renovation project.
28

3.

Failure to complete payroll by the deadline.

4.

Improper storage of Mix’s personnel file in her office.

5.

Failure properly to maintain other employees’ personnel files.

6.

Failure to familiarize herself with the Ohio District of Health financial
report/subsidy and to maintain prior reports.

7.

Improper shredding of District records.

(ECF No. 195-19, PageID #5163–65.)

This notice advised Ms. Buddenberg of a

hearing three days later. (Id., PageID #5166.) It advised her that “You have the right
to be represented at this pre-deprivation hearing.” (Id.) And it did not include the
possibility of termination as discipline. (Id.)
Mr. Weisdack and the President of the Board provided the information
included in the notice to Mr. Budzik. (ECF No. 180-1, PageID #2168–69, #2377–78
& #2393.) Then, Mr. Budzik drafted the notice. (Id., PageID #2169.) Mr. Weisdack
also shared the notice with the Board. (ECF No. 31, ¶ 79, PageID #385; ECF No. 37,
¶ 59, PageID #463.)
F.5.

Pre-Disciplinary Hearing (March 3, 2017)

On March 3, 2017, Ms. Buddenberg had a pre-disciplinary hearing. (ECF
No. 210-4, PageID #11325.) Usually, Mr. Weisdack conducted such hearings; but,
due to recent facial surgery affecting his ability to speak, Mr. Budzik conducted the
hearing instead. (ECF No. 181-1, PageID #2376; ECF No. 182-1, PageID #2567; ECF
No. 183-1, PageID #2835; ECF No. 186-1, PageID #3395.) Additionally, Mr. Weisdack
testified that Mr. Budzik conducted the hearing because he was “told not to be directly
involved with any staff members while this report was going to be made.” (ECF
29

No. 180-1, PageID #2161 & #2168–70.) For these reasons, Mr. Budzik conducted the
hearing as Mr. Weisdack’s designee (ECF No. 182-1, PageID #2581), and
Mr. Weisdack said little at the hearing (ECF No. 184-1, PageID #3042–43.) Up to
this point in time, Ms. Buddenberg had no interaction with Mr. Budzik.

(ECF

No. 203-1, #8650, #8654–55 & #8658.) Mr. Budzik had no other control or influence
on Ms. Buddenberg’s day-to-day work activities, including the change in her work
hours. (ECF No. 203-1, PageID #8654–55 & #8658.)
Mr. Budzik, Mr. Weisdack, Darla Andrews (a District employee), and
Ms. Buddenberg attended the hearing. (ECF No. 203-1, PageID #8671.) According
to District policy, Ms. Buddenberg was entitled to counsel at the hearing, and her
disciplinary notice stated that she had a “right to be represented.” (ECF No. 195-14,
PageID #5123, ECF No. 207-4, PageID #10092.) But Ms. Buddenberg did not request
or retain counsel or any other representation for the hearing. (ECF No. 203-1, PageID
#8671.) However, during the hearing, Ms. Buddenberg disclosed that she had counsel
by then. (ECF No. 210-4, PageID #11333.) The hearing was recorded and lasted
approximately 96 minutes. (ECF No. 210-4, PageID #11325 & #11376.)
F.5.a. Charges
Mr. Budzik read the charges against Ms. Buddenberg nearly verbatim from
the notice of disciplinary action. (Id., PageID #11327–65.) After separately reading
each charge, Ms. Buddenberg had the opportunity to respond to each. (Id.) In
response to some, Ms. Buddenberg provided a specific response or rebuttal. (See, e.g.,
id., PageID #11328–29 & #11338–41.) In response to others, she declined to provide
specific supporting documentation or evidence. (Id., PageID #11329 & #11334–35.)
30

But she did provide documents to address certain charges. (See e.g., id., PageID
#11375; ECF No. 183-1, PageID #2798.)
A transcript of the hearing establishes the following facts for the disciplinary
charges:
•

Rude and Unprofessional Behavior: Ms. Buddenberg admitted raising her
voice at Mr. Weisdack. (ECF No. 210-4, PageID #11329.)

•

Mix’s Resignation:

Ms. Buddenberg admitted that she was aware that Mix

resigned, under threat of termination, despite claiming in her email to
Ms. Livers that he had been dismissed, which was her opinion based on what
she knew. (Id., PageID #11331–33.)
•

Unauthorized Transfer of Chairs (Contaminated Furniture): Ms. Buddenberg
stated that she requested furniture from the District’s maintenance
department without prior approval from the Commissioner. (Id., PageID
#11338.) In this litigation, Ms. Buddenberg did not remember whether Mix or
Mr. Weisdack told her not to get these chairs. (ECF No. 204-1, PageID #8910.)
But Mr. Weisdack testified that Ms. Buddenberg had no authority to obtain
this furniture.

(ECF 182-1, PageID #2571.)

Apparently, Mr. Weisdack’s

assistant told Ms. Buddenberg that she could not bring the furniture to the
District’s offices. (ECF No. 182-1, PageID #2572.)
•

Payroll: Ms. Buddenberg admitted that she failed to attach the documentation
necessary for timely processing of payroll as required. (ECF No. 210-4, PageID
#11343.)

31

•

Personnel Files: Ms. Buddenberg admitted that she stored her personnel file
and that of Mix in her office.

(Id., PageID #11349–51 & #11356.)

She

presented no proof that Mr. Weisdack authorized her to move the files into her
office. (Id., PageID #11349–50.) In this case, Mr. Weisdack testified that any
work Ms. Buddenberg did with the personnel records was to be done in his
office. (ECF No. 180-1, PageID #1981–82.)
•

Ohio Department of Health Report:

Ms. Buddenberg admitted being

unfamiliar with this report. (ECF No. 210-4, PageID #11361.) Previously,
Mix had responsibility for it. (Id., PageID #11361.)
•

Shredding:

Ms. Buddenberg admitted that an intern shredded District

documents at Ms. Buddenberg’s direction (id., PageID #11369) and provided a
statement from the intern on the issue (ECF No. 203-1, PageID #8672).
Typically, the Board makes a decision about three to five days after the predisciplinary hearing. (Id., PageID #11326.)
F.5.b. Ms. Buddenberg’s Responses
One point of the pre-disciplinary hearing is to provide an employee with the
opportunity to respond to the charges. (ECF No. 183-1, PageID #2802–03.) In
response to each charge, Ms. Buddenberg offered explanations or justifications. (See
generally ECF No. 210-4.)

At times, Mr. Budzik questioned or challenged the

response from Ms. Buddenberg.

(See, e.g., ECF No. 210-4, PageID #11331–32.)

Generally, she also asserted that the charges were retaliatory and false. (See, e.g.,
id., PageID #11329, #11332, #11336, #11337, #11340, #11344 & #11372.)

But

Mr. Budzik did not follow up on her position or request facts to support it. (ECF
32

No. 183-1, PageID #2788, #2899 & #2933; ECF No. 184-1, PageID #3003–04 &
#3021.) At deposition, Mr. Budzik conceded that, as an experienced employment
lawyer, if he learned about retaliation against an employee in the course of his
representation, he might have to act on that information. (ECF No. 183-1, PageID
#2717–18.)
Ms. Buddenberg maintains that Mr. Budzik knew the charges against her
were “baseless”—because “any reasonable intelligent person” would understand that
fact. (ECF No. 203-1, PageID #8673.) She described Mr. Budzik as “vindictive” and
conspiring against her during the hearing. (ECF No. 204-1, PageID #8928.) When
asked whether she wished to provide any statements from other employees to verify
or support her side of the story, Ms. Buddenberg responded that she would not offer
co-worker statements or names because “Mr. Weisdack has a history of retaliation
towards employees who question him.” (ECF No. 210-4, PageID #11329.)
F.5.c. Audio Recording of the Hearing
Plaintiff submitted an audio recording of the pre-disciplinary hearing. (ECF
No. 194-14.) On the audio recording of the hearing, Mr. Budzik’s demeanor is best
described as calm, almost soporific. Nor did Mr. Weisdack raise his voice or express
emotion on the few occasions he spoke. Instead, he spoke slowly and evenly to
supplement and clarify the record. For her part, Ms. Buddenberg offered even-toned,
matter-of-fact rebuttals to the charges Ms. Budzik read.
Mr. Budzik repeatedly encouraged Ms. Buddenberg to present all the evidence
she had to rebut the charges.

(See, e.g., ECF No. 210-4, PageID #11334.)

Ms. Buddenberg and Mr. Budzik interrupted each other at times—but that was a
33

bipartisan occurrence, with neither side doing so more than the other.

And

Ms. Buddenberg even shared a laugh with Mr. Budzik when she burped during the
hearing. (Id., PageID #11360.) Overall, the hearing proceeded professionally and as
cordially as could reasonably be expected under the circumstances.
F.5.d. Off-the-Record Settlement Discussions
At the hearing, Ms. Buddenberg and Mr. Budzik had two conversations off the
record. In the first, Ms. Buddenberg asserted that Mr. Budzik “implied” that if he
and Mr. Weisdack presented their findings and her responses to the Board, she would
likely be terminated. (ECF No. 203-1, PageID #8675–76.) To avoid such an outcome,
Mr. Budzik broached the possibility of a settlement as an alternative.

(Id.)

Ms. Buddenberg asked to have a witness present for the conversation, but he denied
the request. (Id., PageID #8676; ECF No. 184-1, PageID #3030 & #3043.) Although
the notice of discipline did not reference termination, Ms. Buddenberg understood
based on her account of this discussion with Mr. Budzik that, once the Board received
the record, it was free to take whatever action it felt was appropriate. (ECF No. 203-1,
PageID #8676; ECF No. 204-1, PageID #8938–39.)
In the second conversation, immediately following the hearing, Mr. Budzik
offered a settlement agreement at the direction of and with the authorization of
Mr. Weisdack, who was also present. (ECF No. 203-1, PageID #8677; ECF No. 204-1,
PageID #8938–39; ECF No. 184-1, PageID #3033 & #3047.)
Ms. Buddenberg agree to the discipline recommended:

He proposed that

a voluntary demotion,

reduction in pay, and three-day unpaid suspension with no record of discipline in her
personnel file.

(ECF No. 184-1, PageID #3037–38.)
34

But the disciplinary notice

already existed as a public record. (Id., PageID #3038.) Ms. Buddenberg had a few
days to consider the offer. (Id., PageID #3039.)
Additionally, Ms. Buddenberg claims that this offer was contingent on
dismissing her pending EEOC charge. (ECF No. 203-1, PageID #8677.) Mr. Budzik
denies making a settlement proposal contingent on dismissing charges with the
EEOC.

(ECF No. 184-1, PageID #3030–33.)

Because the record shows that

Mr. Budzik received notice of the EEOC charge (id., PageID #3115), in the current
procedural posture, the Court construes the record in favor of Plaintiff and treats this
settlement proposal as directed at all of Ms. Buddenberg’s claims and actions,
including the EEOC charge.
In her deposition, Ms. Buddenberg accused Mr. Budzik of not presenting her
side of the story to the Board. (ECF No. 204-1, PageID #8929–30.) But she admits
that she does not know what he presented to the Board. (ECF No. 204-1, PageID
#8930.) Mr. Budzik disputes that he denied her ability to speak to the Board and
stated that “[s]he could always ask the Board to discuss things with it.” (ECF
No. 184-1, PageID #3039–40.)

And the record shows that Ms. Buddenberg

communicated with Board members on several occasions. (See, e.g., ECF No. 194-29,
PageID #4759.) In any event, Ms. Buddenberg did not accept any settlement. (ECF
No. 195-17, PageID #5156.)
F.6.

EEOC Charge of Retaliation

On March 7, 2017, Ms. Buddenberg filed an EEOC charge alleging retaliation
based on the notice of disciplinary action dated February 28, 2017. (ECF #204-9,
PageID #8984.) That same day, Mr. Budzik discussed Ms. Buddenberg’s disciplinary
35

hearing with the Board in executive session, but the Board did not make any final
determination at that meeting. (ECF No. 197-6, PageID #6056–57; ECF No. 184-1,
PageID #3054.) During their deliberations, no Board member expressed concern that
imposing discipline might be retaliatory. (ECF No. 189-1, PageID #4173.) Nor did
the Board hear Ms. Buddenberg’s side of the story directly. (Id., PageID #4149; ECF
No. 187-1, PageID #3609.)
On March 10, 2017, Ms. Buddenberg sent an email to Ms. Livers again alleging
retaliation. (ECF No. 197-4, PageID #6051.) In this email, Ms. Buddenberg identified
Mr. Budzik’s actions at the hearing and in attempting to intimidate her into settling
afterward as retaliatory. (Id.) She specifically called out being prevented from
having a witness present for that discussion. (Id.) She told Ms. Livers that she asked
to make a statement directly to the Board, but Mr. Budzik refused that request. (Id.)
Further, Ms. Buddenberg advised Ms. Livers that, a few days earlier, on
March 7, Mr. Weisdack reassigned some of her duties as fiscal coordinator to other
employees. (Id.; ECF No. 204-1, PageID #8872–73.) Ms. Buddenberg testified that
an unknown person deleted her voicemails without her knowledge or consent and
that she also lost access to certain shared computer drives needed to do fiscal work.
(ECF No. 204-1, PageID #8864–66.)
F.7.

Discipline (March 13, 2017)

On March 13, 2017, the Board reconvened to discuss Ms. Buddenberg’s
discipline. (ECF No. 195-17, PageID #5154–55.) Mr. Budzik was not present or
consulted at this special meeting. (Id., PageID #5155; ECF No. 184-1, PageID #3059.)
All Board members except Mr. Gragg attended this meeting. (ECF No. 195-17,
36

PageID #5155; ECF No. 204-1, PageID #8875.)

After discussing the matter in

executive session for about an hour, the Board returned to open session and, on the
motion of Ms. Livers, voted 3-0 to discipline Ms. Buddenberg, suspending her without
pay for three days. (ECF No. 195-17, PageID #5155–56.) The order of discipline also
shows a reduction in pay and demotion to a clerical position and adoption of all but
one of the findings proposed in the notice of disciplinary action (ECF No. 204-13,
PageID #8990–92)—the one relating to Ms. Buddenberg’s attendance at a meeting to
seek budget revisions (ECF No. 195-19, PageID #5164), which she rebutted at the
hearing (ECF No. 210-4, PageID #11336–37). These disciplinary actions had the
effect of reducing the value of her accrued sick leave and vacation time. (ECF No. 31,
¶ 124, PageID #396; ECF No. 37, ¶ 86, PageID 467; ECF No. 195-14, PageID #5074.)
Mr. Weisdack and the Board members present for the special meeting on
March 13, 2017 signed the disciplinary order (id., PageID #8990), and Mr. Weisdack
and the Board chair signed the findings, though he had missed the meeting (id.,
PageID #8992). Mr. Budzik drafted the disciplinary order. (ECF No. 184-1, PageID
#3059.) The findings identified seven offenses, classified under the Board’s policies
as Group III offenses. (ECF No. 195-19, PageID #5169–70.) Group III offenses are
“infractions which are of a very serious or possibly a criminal nature, and/or which
cause a critical disruption to the organization in terms of decreased productivity,
efficiency, and/or morale” and that, “if left undisciplined by a proper authority, may
have a long lasting and serious adverse impact on the organization.”

(ECF

No. 194-14, PageID #5124; see also ECF No. 179-1, PageID #1743–44.) On no prior

37

occasion had the Board signed off on disciplinary action against an employee other
than the commissioner. (ECF No. 186-1, PageID #3438; ECF No. 188-1, PageID
#3673.) Instead, Mr. Weisdack handled discipline. (ECF No. 195-14, PageID #5123.)
Three days later, on March 16, 2017, the order of discipline was hand-delivered
to Ms. Buddenberg. (ECF No. 204-13, PageID #8990.) After receiving the order
imposing discipline, Ms. Buddenberg had no further direct contact with Mr. Budzik.
(ECF No. 203-1, PageID #8682.)

Ms. Buddenberg had the right to appeal her

demotion and suspension to the State Personnel Board of Review. (ECF No. 195-14,
PageID #5134.) She filed an appeal (ECF No. 194-43, PageID #5966–67), but dropped
that appeal in favor of proceeding with this lawsuit (ECF No. 208-2, PageID #10502).
F.8.

Reassignment

Although the disciplinary order directed that Ms. Buddenberg’s new position
would be in the personal health service division of the District (ECF No. 204-13,
PageID #8990), Mr. Weisdack placed her in the environmental health division (ECF
No. 194-12, PageID #4648; ECF No. 187-1, PageID #3619; ECF No. 31, ¶ 114, PageID
#395; ECF No. 37, ¶ 79, PageID #466.) As a result, Ms. Buddenberg would work
directly under Mr. Weisdack’s administrative assistant. (ECF No. 187-1, PageID
#3619; ECF No. 31, ¶ 114, PageID #395; ECF No. 37, ¶ 79, PageID #466.) At a later
Board meeting, this reassignment was reported as occurring “[d]ue to budgetary
constraints.” (ECF No. 194-12, PageID #4648.)
On March 21, 2017, Ms. Buddenberg submitted a supplemental complaint to
the EEOC reporting this reassignment as additional retaliation. (ECF No. 196-49,
PageID #6006–09.) She appealed to the State Personnel Board of Review the same
38

day. (ECF No. 31, ¶ 109, PageID #394; ECF No. 37, ¶ 75, PageID #465.) On that
same day, her demotion took effect, cutting Ms. Buddenberg’s pay nearly in half.
(ECF No. 195-23, PageID #5235–37.)
At a special Board meeting held on March 24, 2017, a new organization chart
omitted the position of fiscal coordinator. (ECF No. 194-12, PageID #4650.) The
Board adopted the reorganization reflected in that chart and approved a two-year
contract for Mr. Weisdack at that same meeting.

(Id., PageID #4649.)

When

Mr. Weisdack presented the reorganization at a staff meeting, he indicated that his
assistant, another clerk, and an independent contractor would perform the duties of
the fiscal coordinator position. (ECF No. 194-2, PageID #4584–85.)
On April 3, 2017, Ms. Buddenberg was notified of her new role following the
reorganization. (ECF No. 204-1, PageID #8885.) In an email to Ms. Livers that same
day, Ms. Buddenberg expressed concern that this reassignment was retaliatory.
(ECF No. 196-51, PageID #6041.) After learning this information, Ms. Buddenberg
did not return to work. Instead, she took unpaid leave from April 3, 2017 to May 26,
2017.

(ECF No. 204-17, PageID #9002; ECF No. 204-18, PageID #9003; ECF

No. 204-1, PageID #8896–97.)
F.9.

Resignation (May 27, 2017)

On May 27, 2017, Ms. Buddenberg resigned from her position at the District
without working a day in her new role. (ECF No. 194-4, PageID #4587–89, ECF
No. 204-1, PageID #8896–97.)

She did work at the District for five days after

receiving notice of her demotion on March 16, 2017 before it took effect on March 21.
ECF No. 204-13, PageID #8990; ECF No. 195-19, PageID #5167.) Ms. Buddenberg
39

testified that she could not return to work knowing she would be working under
Mr. Weisdack’s assistant.

(ECF No. 204-1, PageID #8897.)

She added that the

personnel in the environmental health department treated her horribly. (Id.)
In a resignation letter sent to the Board, Ms. Buddenberg noted that, as far as
she was concerned, she had been fired. (ECF No. 194-4, PageID #4589.) She wrote
that she “had no intention of leaving the organization and this is against my wishes.”
(Id., PageID #4587.) Because “conditions at [the District] have become so intolerable
for me,” Ms. Buddenberg said, “I feel I have no choice but to resign.” (Id.) Since
“bring[ing] serious concerns about Mr. Weisdack’s ethical violations” to the Board “as
a responsible citizen” on October 24, 2016, Ms. Buddenberg “lived in fear of
Mr. Weisdack’s retaliation and unprofessional actions,” which “continued despite my
efforts to correct them by reporting to the Board.” (Id., PageID #4587–88.) According
to Ms. Buddenberg, the “unchecked retaliatory conduct has had a negative impact on
my health and has created stress for both my family and me.” (Id., PageID #4588.)
Ms. Buddenberg’s ex-husband corroborated these effects the events at issue had on
her. (ECF No. 244-1, PageID #14081–83.)
Finally, the letter identifies the actions Ms. Buddenberg says are retaliatory,
up to and including the reassignment to work under Mr. Weisdack’s assistant. (Id.,
PageID #4588–89.) Ms. Buddenberg concluded the letter by calling out the Board for
allowing “Mr. Weisdack to continue in leadership despite knowing of his repeated
intentional dishonest and unethical practices, and his retaliatory conduct.” (Id.,
PageID #4589.)

40

In February 2018, Ms. Buddenberg began working at a new job.

(ECF

No. 203-1, PageID #8684–85.) Her starting salary exceeded her highest salary at the
District. (Compare id. with ECF No. 195-23.)
STATEMENT OF THE CASE
A.

The EEOC and Commencement of This Litigation

On October 20, 2017, the District submitted its EEOC position statement. (See
ECF No. 195-36.) In its position statement, the District asserted that most of the
events leading to Ms. Buddenberg’s discipline occurred between January 2017 and
February 2017—five months after her initial report to the Board. (ECF No. 210-4,
PageID #5284.) The District emphasized that the “impetus” of Ms. Buddenberg’s
discipline was her failure to complete the Ohio Department of Health Annual
Financial Report and “resulted in all then existing disciplinary issues being
addressed.” (ECF No. 195-36, PageID #5284.) The District summarized the basis for
each of Ms. Buddenberg’s disciplinary charges. (ECF No. 195-36, PageID #5280–85.)
Notably, the District said, “Ms. Buddenberg’s statement that [Mix] was terminated
was false and an appropriate basis for discipline.” (ECF No. 195-36, PageID #5282.)
On January 25, 2018, Ms. Buddenberg received a right-to-sue letter from the
EEOC. (ECF No. 213-2.) On March 6, 2018, Plaintiff filed suit in federal court, and
the case was randomly assigned to Judge Polster (ECF No. 1.) Based on the events
set forth above, Plaintiff brings various claims under federal and State law.
Plaintiff’s second amended complaint asserts nine causes of action against eight
Defendants as follows:

41

Count
1
2
3

4
5
6

7

8

9

Claim
Title VII Retaliation,
42 U.S.C. § 2000e-3(a)
Retaliation,
Ohio Rev. Code § 4112.02
Fair Labor Standards Act
Retaliation,
29 U.S.C. § 215(A)(3)
Retaliation,
Ohio Rev. Code § 4111.17(D)
First Amendment Retaliation,
42 U.S.C. § 1983
Retaliation,
Ohio Rev. Code
§§ 2921.05 & 2307.60
Intimidation Using False Writing,
Ohio Rev. Code
§§ 2921.03 & 2307.60
Interfering with Civil Rights,
Ohio Rev. Code
§§ 2921.45 & 2307.60
Aiding and Abetting
Discrimination,
Ohio Rev. Code
§§ 4112.02(J) & 4112.99

Defendant(s)
District
District; Weisdack; Goergen,
Whitright, Livers, and Gragg
District; Weisdack; Budzik; Goergen;
Gragg; Livers; Whitright
District, Weisdack; Budzik; Goergen;
Gragg; Livers; Whitright
District; Weisdack; Budzik; Goergen;
Gragg; Livers; Whitright
District; Weisdack; Budzik; Goergen;
Gragg; Livers; Whitright
Weisdack; Budzik

Weisdack; Goergen; Gragg; Livers;
Whitright
District; Weisdack; Budzik; Gragg;
Livers; Whitright; Goergen; Wendell

(ECF No. 31.)
B.

Interlocutory Appeal to the Sixth Circuit

After Plaintiff filed suit, Mr. Budzik moved to dismiss the six claims brought
against him. (ECF No. 14.) Also, the District Defendants moved for partial judgment
on the pleadings on the claims in Counts 6 through 8 asserted against them. (ECF
No. 20.) The Court denied the motions. (ECF No. 38.) In doing so, the Court
determined that Mr. Budzik was not entitled to qualified immunity, at least at the

42

pleading stage before development of a sufficient factual record.

(Id., PageID

#482–83.) Mr. Budzik appealed this ruling. (ECF No. 43.) On appeal, the Sixth
Circuit affirmed. Buddenberg v. Weisdack, 939 F.3d 732, 742 (6th Cir. 2019).
C.

Certification to the Ohio Supreme Court

In August 2018, the Court granted in part Defendants’ motion to certify certain
questions of State law to the Ohio Supreme Court. (ECF No. 49.) Specifically, the
Court certified unsettled questions of State law regarding Plaintiff’s claims in Counts
6, 7, and 8 asserting civil liability for criminal acts. The Court certified the following
questions:
1.

Does O.R.C. § 2307.60’s creation of a civil cause of action for
injuries based on a “criminal act” require an underlying criminal
conviction?

2.

Is a criminal conviction a condition precedent to a civil claim
pursuant to O.R.C. § 2921.03?

(ECF No. 49, PageID #566.)
In July 2020, the Ohio Supreme Court ruled that a claim under Section 2307.60
does not require an underlying criminal conviction. Buddenberg v. Weisdack, 161
Ohio St. 3d 160, 2020-Ohio-3832, 161 N.E.3d 603, ¶¶ 13 & 14. Further, the Court
held that the plain language of Section 2921.03 also does not require a criminal
conviction as a prerequisite for civil liability. Id. at ¶ 18.
D.

Discovery and Procedural History

In the early stages of the case, Judge Polster engaged the parties in settlement
negotiations. (Minutes, July 2, 2018.) Following remand from the Sixth Circuit, he
conducted a settlement conference and stayed discovery, except that the Court
43

ordered Mr. Budzik to make initial disclosures, directed the parties to serve thirdparty subpoenas, and ordered Defendants “to exchange assurances with Plaintiff
regarding document preservation.” (Minutes, Aug. 28, 2018.)
After the initial appeals, the case returned to active litigation, and the Court
initially set a fact discovery cut-off of April 15, 2021. (Minutes, Aug. 19, 2020.) In
doing so, Judge Polster strongly encouraged counsel and their clients to pursue
settlement of the dispute. (Id.)
On December 15, 2020, the case was reassigned to the undersigned pursuant
to General Order 2020-27, even though the case was not eligible for transfer because
it had been filed more than two years earlier. At a preliminary status conference
following reassignment, the Court vacated the operative schedule then actively
managed the contentious and protracted discovery. (Minutes, Jan. 26, 2021.) As
discovery proceeded, the parties agreed to extensions and changes to the discovery
cut-off. (See, e.g., Minutes, May 5, 2021; ECF No. 87 & ECF No. 94.) Following an
unsuccessful private mediation, the Court set January 31, 2022 as the cut-off for fact
discovery, other than issues relating to damages. (ECF No. 108; Minutes, Oct. 18,
2021).
On January 31, 2022, the date of the fact discovery cut-off, the parties raised
various discovery disputes and issues with the Court.

(ECF No. 130.)

Notwithstanding the deadline for fact discovery, the parties requested that the Court
remain available to resolve disputes as they completed discovery.

(Id., PageID

#885–86.) Accordingly, the Court held a series of status conferences from March 2022

44

to December 2022 to address various issues.

Without recounting all of these

numerous issues and developments, two merit a mention and bear on the issues
presently before the Court.
D.1.

Mr. Budzik, Privilege, and the Crime-Fraud Exception

One of the issues that Plaintiff raised on January 31, 2022 involved challenges
to certain claims of privilege involving Mr. Budzik. (Id., PageID #885.) At a status
conference on another issue a month later, the parties again raised issues regarding
privilege involving Mr. Budzik in advance of his deposition, scheduled for March
2022.

(Minutes, Feb. 24, 2022.)

After Mr. Budzik’s deposition, Plaintiff raised

concerns about certain issues and claimed inconsistencies in Mr. Budzik’s testimony.
(Minutes, Mar. 22, 2022.) In response, the Court directed the parties to submit
relevant excerpts of his testimony and errata for the Court’s review. (Id.)
After reviewing relevant excerpts from Mr. Budzik’s deposition and the errata,
which disclosed for the first time, despite repeated previous denials, that he had
received notice of Ms. Buddenberg’s first EEOC charge, the Court ordered that
Mr. Budzik was subject to further deposition and determined that it would go forward
in the presence of the Court. (Minutes, Apr. 4, 2022.) In so ordering, the Court ruled
on certain objections made at his deposition, sustaining many but overruling others.
(ECF No. 133.) Further, at this deposition, the Court ruled that “Plaintiff is entitled
to inquire into Mr. Budzik’s errata and the basis for it.” (Minutes, Apr. 4, 2022.) To
facilitate completion of the deposition, including ruling on any and all objections,
including questions of privilege, the Court ordered Mr. Budzik and his counsel to have

45

present at the deposition all “privilege logs, billing records, and other relevant
documents.” (Id.; see also ECF No. 133, PageID #899.)
That deposition proceeded on April 29, 2022. (See generally ECF No. 185-1.)
Plaintiff’s counsel questioned Mr. Budzik briefly about specific entries on the
privilege logs, but otherwise focused on issues related to the merits of Plaintiff’s
claims and inconsistencies in his previous testimony.

(Id., PageID #3192–93 &

#3201–02.)
In a joint status report filed a month after the deposition, Plaintiff raised
several discovery issues. (ECF No. 140, PageID #932.) She sought leave to issue
subpoenas to Mr. Budzik’s law firm, Mansour Gavin LPA, and his partner Jeffrey
Embleton. (Id., PageID #931.) Also, Plaintiff requested that the Court conduct an
in camera review of items listed on Mr. Budzik’s privilege logs (which appear in the
record at ECF No. 197-9 and ECF No. 197-10), based on the crime-fraud exception to
the attorney-client privilege. (ECF No. 140, PageID #931.) Defendants opposed both
requests. (Id., PageID #931–32.)
On June 7, 2022, the Court held a status conference and ordered Mr. Budzik
to submit certain documents and transcripts identified in the joint status report for
in camera review. (Minutes, June 8, 2022.) On June 15, 2022, the Court resolved
several of Ms. Buddenberg’s discovery issues.

First, the Court found that the

attorney-client privilege protected the documents submitted for in camera review and
that the crime-fraud exception did not apply.

(ECF No. 142, PageID #937–38.)

Second, the Court preemptively denied any future request for review of additional

46

items—whether privileged or not—because “discovery closed earlier [in 2022],” and
Plaintiff had the opportunity to inquire into such issues during Mr. Budzik’s
deposition, over which the undersigned presided, on April 29, 2022. (Id.) Accordingly,
“the record on this issue has been made.” (Id.) Third, the Court denied Plaintiff’s
subpoena requests because she previously had “ample opportunity to pursue
resolution of [her] issues using the formal tools of discovery.” (Id.)
Plaintiff continued to raise the issue, doing so next at a status conference on
July 14, 2022. (ECF No. 144, PageID #942.) Plaintiff felt the issue “need[ed] to be
dealt with by briefing.” (ECF No. 150, PageID #1089–90.) And since Plaintiff finally
had “the record as a whole,” she could adequately address the issues. (Id., PageID
#1090.) Plaintiff’s counsel verified that he had not attempted to meet and confer with
Defendants’ counsel to exhaust efforts to resolve the issue. (Id., PageID #1086.)
Accordingly, the Court directed Plaintiff’s counsel to confer with defense counsel as
Rule 37, Local Rule 37.1, and the Court’s Civil Standing Order require. (ECF No. 144,
PageID #943–43.)
D.2.

Spoliation Questions

After the close of fact discovery, but before the deadline for dispositive motions
(ECF No. 141), Defendants raised questions regarding Ms. Buddenberg’s spoliation
of evidence. At the status conference on March 23, 2022, Defendants “raised an issue
regarding a late and incomplete production of documents after Plaintiff’s deposition.”
(Minutes, Mar. 22, 2022.)

Those issues relate to certain electronically stored

information, including text messages between Ms. Buddenberg and Mix, not
previously produced. Defendants represented that they were working through the
47

issues with Plaintiff. In their joint status report in May 2022, the parties reported
that they were working through these issues with their vendors. (ECF No. 140,
PageID #930–31.) As a preliminary matter, the parties staked out competing views
and interpretations of the evidence, which was still being analyzed. (Id.)
On July 14, 2022, the Court held a status conference to discuss the potential
spoliation issue. (ECF No. 144, PageID #942.) At this status conference, the Court
discussed the record the parties needed yet to develop on the issue, ordered them to
supplement their expert reports as needed to address it, and directed Plaintiff to
serve third-party subpoenas to certain technology companies relevant to the
investigation of the loss or destruction of electronically stored information. (Id.)
D.3.

Closing the Record on These Issues

On August 5, 2022, the Court held a status conference during which Plaintiff’s
counsel again raised the privilege issue and indicated that he was working through
deposition transcripts. (ECF No. 289, PageID #15548.) When Defendants’ counsel
began to discuss additional development of the record relating to the potential
spoliation issue, Plaintiff’s counsel asserted that “my view is that discovery is closed.”
(Id., PageID #15550.) Further, Plaintiff’s counsel argued that, if the Court allowed
Defendants to issue new third-party subpoenas to support their spoliation
allegations, he “would like to reopen discovery as to things we’re interested in as
well.” (Id., PageID #15551–52.)
From this point on, in the interest of judicial economy, the Court proceeded on
two tracks at the same time, directing the parties to brief dispositive motions and
conducting evidentiary proceedings to conclude the spoliation issue. (See, e.g., ECF
48

No. 155; ECF No. 173.) At a status conference on November 30, 2022, the Court
discussed summary judgment briefing and a spoliation hearing.

(ECF No. 174,

PageID #1523; ECF No. 293-1, PageID #15596.) Plaintiff’s counsel again raised
questions about the question of privilege relating to certain materials belonging to
Mr. Budzik. (Id.) The Court directed the parties to proceed with summary judgment,
spoliation, and this privilege issue on “parallel tracks.” (ECF No. 174, PageID #1523;
ECF No. 293-1, PageID #15596.) The Court set January 24, 2023 as the deadline for
dispositive motions. (ECF No. 202, PageID #8457.) All parties filed their motions for
summary judgment on January 24, 2023. (ECF No. 216 (Mr. Budzik); ECF No. 217
(District Defendants); ECF No. 221 (Plaintiff’s Corrected Partial Motion for Summary
Judgment).)
As the parties briefed summary judgment, the Court held an evidentiary
hearing on spoliation over two days, March 8 and March 9, 2023. (ECF No. 237; ECF
No. 238.) During the hearing, the parties discussed briefing schedules for summary
judgment and spoliation. (Id., PageID #13346–51.) Plaintiff’s counsel did not seek to
raise or file any remaining privilege issues. (See id.)
Because of the evidentiary hearing and related briefing to close the spoliation
issue, the parties requested—and the Court granted—extensions of various
deadlines.

Summary judgment briefing finally closed on June 29, 2023.

(ECF

No. 269.) Even then, the parties sparred over Defendants’ motion to strike (ECF
No. 270) and notices of supplemental authority (ECF No. 271; ECF No. 272; ECF
No. 277; ECF No. 278). Defendants moved for sanctions against Ms. Buddenberg on

49

May 1, 2023. (ECF No. 256), and the record closed on this issue at the end of July
2023. (ECF No. 282.)
At that point, after briefing closed on both summary judgment and Defendants’
motion for sanction based on alleged spoliation, Plaintiff moved on August 1, 2023 for
discovery of materials and information within the crime-fraud exception to the
attorney-client privilege.

(ECF No. 283.)

She requests that the Court compel

production of “purportedly privileged materials and oral communications” or to
“conduct an in camera review of such materials to assess the exception’s
applicability.”

(Id., PageID #15472.)

She seeks discovery of privileged

communications between Embleton, Mr. Budzik, and all representatives of the
District relating to herself or Mix. (Id., PageID #15453.) Defendants jointly move to
strike and oppose discovery of any privileged material. (ECF No. 292.)
E.

Pending Motions

In short, the following motions are pending before the Court:
1.

Mr. Budzik’s motion for summary judgment (ECF No. 216);

2.

The District Defendants’ motion for summary judgment (ECF No. 217);

3.

Plaintiff’s motion for partial summary judgment as to specific elements
of Counts 1, 2, 3, 4, 5, 8, and 9 (ECF No. 218; ECF No. 221; ECF
No. 221-1);

4.

Defendants’ joint motion for sanctions (ECF No. 256);

5.

The District Defendants’ motion to strike improper summary judgment
evidence (ECF No. 270);

50

6.

Plaintiff’s motion for discovery of materials and information within the
crime-fraud exception to attorney-client privilege (ECF No. 283); and

7.

Defendants’ joint motion to strike or in the alternative opposition to
Plaintiff’s motion to compel discovery materials pursuant to the crimefraud exception to the attorney-client privilege (ECF No. 292).
THE RECORD ON SUMMARY JUDGMENT

Before turning to the merits of the parties’ motions for summary judgment, the
Court considers three issues regarding the record. First, Ms. Buddenberg submitted
substantive declarations in connection with summary judgment. Second, Plaintiff
filed two notices of supplemental authority after the close of summary judgment
briefing. Third, the District Defendants move to strike Plaintiff’s experts as to them,
leading to a dispute about the admissibility of their testimony.
A.

Ms. Buddenberg’s Declarations

In support of her partial motion for summary judgment, Plaintiff filed a
supplemental declaration. (ECF No. 214-1.) By this point in time, Ms. Buddenberg
had been deposed for some ten hours over two days. (ECF No. 203-1; ECF No. 204-1.)
Plaintiff filed a second declaration after the District Defendants moved for sanctions
and opposed Plaintiff’s motion for partial summary judgment. (ECF No. 257-1.) In
reply, Defendants urge the Court to disregard these declarations in considering the
summary judgment record. (ECF No. 267, PageID #14975–78.)
Self-serving affidavits alone will not create an issue of fact sufficient to survive
summary judgment. See Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806
(1999). The Court can strike or disregard an affidavit that “constitute[s] an attempt
51

to create a sham fact issue,” Aerel, S.R.L. v. PCC Airfoils, L.L.C., 448 F.3d 899,
908–09 (6th Cir. 2006), as well as any unsupported legal conclusions contained in an
affidavit, Sigmon v. Appalachian Coal Props., 400 F. App’x 43, 49 (6th Cir. 2010);
Alan A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2738 (4th ed.
2023).
A.1.

Ms. Buddenberg’s Declarations

Plaintiff relies extensively on her declaration executed on January 23, 2023 to
establish that she raised specific issues to the Board during the October 2016
meeting. (See e.g., ECF No. 221, PageID #12040.) For example, she states that she
reported particular instances of Mr. Weisdack’s mismanagement, such as “fail[ing] to
implement procedures to ensure proper public-fund handling” and “ignor[ing] the
employee health-and-safety committee’s recommendations.” (Id.) But the evidence
on which Plaintiff relies to support these assertions, beyond Ms. Buddenberg’s
declaration, is deposition testimony in which a Board member was either unaware of
the issue or did not dispute that she might have raised it. (Id.)
Similarly, Plaintiff uses Ms. Buddenberg’s declaration to explain how the
environmental health division “refused to respond” to her requests for information.
(Id., PageID #12051 (citing Ms. Buddenberg’s declaration to support the fact that
these retaliatory actions occurred and Mr. Weisdack’s testimony that he was unaware
of it).) Again, the same pattern holds for Mr. Weisdack sitting “on her [leave] request
for longer than he normally would.” (Id., PageID #12054 (citing Ms. Buddenberg’s
declaration to explain Mr. Weisdack’s behavior and Mr. Weisdack’s deposition that
he had no reason to dispute this fact).)
52

In her most recent declaration (ECF No. 257-1), Ms. Buddenberg clarified
earlier testimony that she was “just doing my job” (and other similar statements)—
key testimony on which Defendants rely in their summary judgment briefing. In her
declaration, Ms. Buddenberg says that such formulations were not about her actual
job duties, but the “moral obligation she felt when working as an honest citizen in
public service to report misconduct.” (Id., PageID #14651.) But this declaration
contradicts other evidence in the record. For example, in her draft ethics complaint,
Ms. Buddenberg wrote that, by going to the Board, she was “following policy and
performing the duties the residents and Board are paying me to provide.” (ECF
No. 215-1, PageID #11806.) She made similar statements in correspondence with the
Board (ECF No. 215-1, PageID #11813–17), an email to Embleton (id., PageID
#11808), and in her deposition testimony (ECF No. 203-1, PageID #8505 & #8544).
After her first deposition, but before her second, Ms. Buddenberg also executed
a declaration. (ECF No. 210-3.) In it, Ms. Buddenberg swears that she did not have
time to retain counsel before the pre-disciplinary hearing on March 16, 2016, though
she had attempted to do so. (Id., ¶ 3, PageID #11324.) But this account conflicts with
the transcript of that hearing. During the hearing, Ms. Buddenberg disclosed that
she had counsel by then. (ECF No. 210-4, PageID #11333.) Indeed, she responded to
a question from Mr. Budzik by stating that she learned certain facts because
supporting her retaliation claim because District employees provided them to her
attorney. (Id.)

53

In short, the record shows, and the Court finds, that Plaintiff’s declarations
contain multiple statements of fact that conflict with other evidence in the record on
summary judgment.
A.2.

Application of the Sham Affidavit Rule

The Court rejects Plaintiff’s use of declarations to attempt to create disputes
of material fact that might affect the merits of a ruling on summary judgment. To
the extent that other summary judgment evidence exists, including Plaintiff’s
deposition testimony, that evidence speaks for itself.

Consequently, Plaintiff’s

previous statements will form the basis for the Court’s ruling. Holbrook v. Dumas,
658 F. App’x 280, 288–89 (6th Cir. 2016) (cleaned up) (rejecting a fire chief’s post hoc
characterization of an email sent to employees as a “concerned citizen or friend” based
on the factual record demonstrating that he spoke as a public official).
To illustrate application of this rule here, the Court uses two examples. First,
Plaintiff relies on her declarations to establish the fact that she had come prepared
to talk to the Board as a “private citizen” about the tire contract and the gender pay
disparity issue.

(See ECF No. 269, PageID #15048–49.)

She argues that any

contention that she spoke to the Board about the gender pay disparity at the Board’s
direction is “belied by [her] complete testimony.”
declaration

(ECF

No.

257-1,

PageID

Id. (citing Ms. Buddenberg’s

#14653).)

Second,

Plaintiff

uses

Ms. Buddenberg’s most recent declaration to describe Mr. Budzik’s “intimidating
demeanor and condescending approach” as retaliatory. (ECF No. 257-1, PageID
#14654; see also ECF No. 263, PageID #14885).

54

But the Court need not, and does not, rely on Ms. Buddenberg’s declarations
to consider the record on summary judgment, construed in favor of the non-moving
party on the other’s motion.

In the former example, the record shows that

Ms. Buddenberg spoke to the Board to raise her concerns about the tire contract and
then, when asked or prompted, raised the issue of the gender pay disparity. (ECF
No. 203-1, PageID #8537–42.) As for the latter, the transcript of the pre-disciplinary
hearing transcribes what was said, and the audio captures the tone, cadence, and
vocal demeanor of the speakers.
Accordingly, Plaintiff cannot rely on these declarations to create a sham issue
of fact to bolster her position on summary judgment. See Holbrook, 658 F. App’x at
288–89.

The timing of the declarations, particularly the most recent one (ECF

No. 257-1), betrays their true motivation. In any event, the key issues before the
Court present questions of law, not fact. See DeCrane v. Eckart, 12 F.4th 586, 595–96
(6th Cir. 2021) (describing the determination whether a plaintiff speaks as a citizen
or as an employee as a legal conclusion). Those questions of law turn on a record
construed in Plaintiff’s favor on Defendants’ motions for summary judgment. With
that procedural advantage, it is difficult to conceive of circumstances in which selfserving affidavits would not defeat summary judgment. See Aerel, S.R.L., 448 F.3d
at 908 (quotation omitted). For this reason, the Court disregards Ms. Buddenberg’s
declarations, and the statement of facts set forth above contains no reference to them.
B.

Supplemental Authority

After the close of summary judgment briefing, Plaintiff filed two notices of
supplemental authority to support her opposition to Mr. Budzik’s motion for
55

summary judgment. (ECF No. 271; ECF No. 272.) Mr. Budzik filed a response to
each. (ECF No. 277; ECF No. 278.) The Court’s Civil Standing Order allows parties
to file a notice of supplemental authority “[i]f pertinent and significant authorities
come to a party’s attention after the party’s brief has been filed.” Section 9.J. But
the Order should not be treated as an invitation to subvert page limitations and
submit additional briefing. See In re Steinle, 835 F. Supp. 2d 437, 433 (N.D. Ohio
2011) (noting that neither the Federal Rules of Civil Procedure nor the Northern
District of Ohio’s Local rules provide for a surreply as a matter of course). A notice
of supplemental authority “should be used sparingly and for new, controlling case
law—not for recently discovered case law, nor for arguments which the parties did
not think to make [earlier].” General Elec. Co. v. Latin Am. Imports, S.A., 187 F.
Supp. 2d 748, 752 (W.D. Ky. 2001).
Plaintiff’s first notice provides legal argument and discussion of a First
Amendment case under Section 1983, King v. Zamiara, 680 F.3d 686 (6th Cir. 2012).
This case, decided eleven years before summary judgment briefing, is not newly
discovered authority. Nor was it recently discovered. Indeed, Plaintiff relies on King
in her reply brief. (See ECF No. 269, PageID #15065 (“Defendants are liable if their
actions are the proximate cause of the adverse actions.”) (citing King, 680 F.3d at
695).) Moreover, Mr. Budzik’s motion for summary judgment and Plaintiff’s reply
and opposition each discuss Poppy v. City of Willoughby Hills, 96 F. App’x 292 (6th
Cir. 2004). (See ECF No. 216, PageID #11855–56; ECF No. 263, PageID #14907; ECF
No. 269, PageID #15065.) On remand following the Sixth Circuit’s ruling in King,

56

the district court also discusses Poppy. See King v. Zamiara, No. 4:02-cv-141, 2009
WL 1067317, at *4 (W.D. Mich. 2009) (discussing Poppy, 96 F. App’x at 295). Even a
cursory review of the cases that cite or discuss Poppy would reveal King.
Plaintiff’s second notice of supplemental authority raises similar issues.
Essentially, it copies and pastes portions of her reply. (ECF No. 269, PageID #15067.)
This second notice provided a string citation to five unreported Sixth Circuit and
district court opinions—each decided years before summary judgment briefing in this
case even began. One case in the notice, Ward v. Athens, 187 F.3d 639 (6th Cir. 1999),
does not appear in Plaintiff’s reply. And it is the oldest case of them all. Even if
Plaintiff did not previously know of Ward or discover it in her research, which strains
credulity, three of the cases she string cites in her reply discuss Ward. See Nailon v.
University of Cincinnati, 715 F. App’x 509, 516 (6th Cir. 2017); Stinebaugh v. City of
Wapakoneta, 630 F. App’x 522, 530 (6th Cir. 2015); McMillion v. Metropolitan Gov’t
of Nashville & Davidson Cnty., No. 3:10-cv-0229, 2011 WL 1100007, at *4 (M.D. Tenn.
Mar. 22, 2011).
Plaintiff does not show good cause for further consideration of the additional
legal arguments—that she largely already made—relying on cases she or Mr. Budzik
previously cited. At best, Plaintiff’s notices of supplemental authority stem from a
desire to have the last word. At worst, they amount to efforts to evade the already
generous (and extended) pages limits for summary judgment briefing. For these
reasons, Plaintiff’s notices of supplemental authority are not well taken. The Court

57

takes no notice of them or Mr. Buzdik’s responses and does not consider them or the
arguments made in them.
C.

Experts

On July 14, 2022, Plaintiff timely disclosed her experts. (ECF No. 148, PageID
#949; see also ECF No. 140.) In support of her summary judgment motion, Plaintiff
proffers

the

testimony

of

two

experts

examining

Mr.

Budzik’s

role

in

Ms. Buddenberg’s discipline: William Leahy and Robert Wolff. (ECF No. 209-2; ECF
No. 210-2.) She has a third expert, Michael Abouserhal, who opines on whether the
District could have funded the fiscal coordinator position in its 2017 budget instead
of eliminating it as part of a reorganization.

(ECF No. 148-3.)

In response,

Mr. Budzik relies on an expert of his own (ECF No. 154-1), which Plaintiff rebuts
through one of her previously disclosed experts (ECF No. 156-1).
The District Defendants, but not Carolyn Weisdack as the administrator of the
estate of Robert Weisdack, move to strike Plaintiff’s experts as to them.

(ECF

No. 270.) Plaintiff opposes the motion. (ECF No. 273.)
C.1.

Expert Opinions

No party has moved under Rule 104(a) for an order in limine precluding the
testimony of any expert in whole or in part. Under Rule 702 as now in effect, the
Court need not “make a finding of reliability in the absence of objection.” Fed. R.
Evid. 702 advisory committee’s note to 2023 amendment.

Therefore, the Court

declines to do so sua sponte. However, this does not mean that all opinions that the
parties intend to present are admissible. To tackle that question, the Court begins
by summarizing the opinions of the experts that the parties proffer.
58

C.1.a. William B. Leahy
William Leahy is an attorney, legal ethics consultant, and adjunct law
professor. (ECF No. 209-2, PageID #10711.) He has been a litigator for over 30 years
and has served as the ethics chair of two law firms—Thompson Hine and
Buckingham, Doolittle & Burroughs—for a total of 15 years. (Id., PageID #10711.)
Since 2006, Mr. Leahy has advised law firms on conflicts and other ethical issues and
testified as an expert legal ethical witness in several cases. (Id., PageID #10712.)
Also, he has served on the Ohio State Bar Association Grievance Committee. (Id.)
Plaintiff retained Mr. Leahy to opine on the conduct of Mansour Gavin, and
principally Mr. Budzik, under the Ohio Rules of Professional Conduct in its
representation of the District in 2016 and 2017. (Id.)
Mr. Leahy opines that Mr. Budzik’s law firm, Mansour Gavin, violated
Rule 1.7(a)(2) of the Ohio Rules of Professional Conduct, which governs conflicts of
interest. (Id., PageID #10722.) Mr. Leahy views the District as “seeking outside
counsel’s objective, unbiased personnel policy audit” as “in effect, a different client”
than the District “seeking legal assistance to summarily punish Ms. Buddenberg.”
(Id.)
Namely, Mr. Leahy distinguishes between Embleton’s role in performing the
audit and Mr. Budzik’s role in Ms. Buddenberg’s discipline. (Id., PageID #10722–23.)
He characterizes Mr. Budzik’s role as “in effect, the prosecutor of a protected
whistleblower.”

(Id., PageID #10723.)

Further, he sees Mr. Budzik’s role as

“conflicted diametrically with Embleton’s role as an objective factfinder.” (Id., PageID
#10723.) Mr. Leahy opines that “[e]thically” Embleton could not share information
59

he learned during his personnel audit with Mr. Budzik; and, conversely, Mr. Budzik
could not adequately represent the District because he did not have the information
that Embleton did. (Id. PageID #10723.) In this way, the firm at which the two
lawyers work had an “irreconcilable and incurable” conflict.” (Id.)
Despite their ethical obligation to screen one another, Mr. Leahy sees evidence
that a “cross-fertilization” of information between the two occurred, resulting in
prejudice to Ms. Buddenberg.

(Id.)

Mr. Leahy bases his conclusion on

communications listed on Mr. Budzik’s privilege log bearing the names of both
attorneys, several of which Embleton authored. (Id.) Obviously, Mr. Leahy does not
know the specific content of those messages. (Id.) Further, Mr. Leahy stated that
Ms. Buddenberg can testify that Mr. Budzik shared information during their off-therecord meeting that she originally shared in confidence with Embleton. (Id.)
Because the conflict of one lawyer is attributed to others at the same firm, in
Mr. Leahy’s opinion, Embleton could not have punished Ms. Buddenberg given his
role in the audit. Therefore, Mr. Budzik could not either. (Id., PageID #10724.)
Further, Mr. Leahy sees Mr. Budzik acting not as a “chaperone” to Mr. Weisdack but
as the Commissioner himself. (Id., PageID #10722 & #10724.) “Budzik took control
of the entire [disciplinary] process, becoming the principal rather than the advisor.”
(Id., PageID #10722.) Because Mr. Budzik drafted the notice of discipline, conducted
the hearing, and engaged in off-the-record conversations with Ms. Buddenberg,
Mr. Leahy says that for all intents and purposes he “WAS the Geauga County Health
Commissioner.” (Id., PageID #10724.)

60

In addition to Rule 1.7(a)(2), Mr. Leahy opines that Mr. Budzik violated
Rule 4.2 (governing communications with represented persons) and the District’s
policy manual by failing to inform Ms. Buddenberg that she was entitled to legal
counsel at her hearing—advising only that she had a right to be represented. (ECF
Id., PageID #10719 & #10725.) Given the information Mr. Budzik received at the
hearing, he should “have adjourned . . . and ceased any further communication with
Ms. Buddenberg until she had retained counsel.” (Id., PageID #10726.)
Finally, Mr. Leahy sees a violation of Rule 4.3, which imposes a duty on an
attorney to correct an unrepresented person’s misunderstanding about the lawyer’s
role in the matter because he failed explicitly to describe his role in the hearing as an
adversary representing the interests of the District.

(Id., PageID #10726.)

In

violation of Rule 4.4(a), which prohibits using measures that have no substantial
purpose but to harass or burden another, Mr. Leahy describes Mr. Budzik’s conduct
during the hearing as “unnecessarily aggressive, dismissive, and disrespectful.” (Id.,
PageID #10726.) But he does not include the audio of the pre-disciplinary hearing
among the materials he reviewed. (Id., PageID #10713.)
C.1.b. Robert M. Wolff
Robert Wolff is a retired lawyer who practiced labor and employment law for
almost forty years, including as the managing partner at Duvin, Cahn & Hutton and
Littler Mendelson. (ECF No. 210-2, PageID #11285–86.) He also served as the chief
labor and employment counsel at the City of Cleveland. (Id.) Over the course of his
career, he represented many public and private employers, including local
governments. (Id., PageID #11286.) Mr. Wolff opines that Mr. Budzik became an
61

active participant in retaliation either intentionally or through willful blindness. (Id.,
PageID #11316.) He spends considerable time in his report evaluating the merits of
Ms. Buddenberg’s retaliation claims. (Id., PageID #11307–16.) When discussing the
role of Mr. Budzik, Mr. Wolff concludes that, although the District retained
Mr. Budzik as legal counsel, his role was more “business than legal.” (Id., PageID
#11307.)
Mr. Wolff opines that Mr. Budzik ignored Ms. Buddenberg’s reports of
retaliation and participated in retaliatory conduct against Ms. Buddenberg. (Id.,
PageID #11309.) Even a cursory investigation into Ms. Buddenberg’s claims would
have shown Mr. Budzik that “Ms. Buddenberg already had a prima facie case of
discrimination.” (Id., PageID #11309.) Instead, “Mr. Budzik acted like an offensive
lineman doing whatever necessary to protect his quarterback’s scheme to retaliate.”
(Id.)
Further, Mr. Wolff opines that Ms. Buddenberg’s disciplinary charges “present
a hornbook example of pretext.” (Id., PageID #11310.) “Mr. Budzik’s conduct was
simply not within the bounds of appropriate lawyering.” (Id., PageID #11314.) In
addition to drafting the “grossly pretextual” disciplinary charges, he “removed his
lawyer hat” and became a partner in punishing Ms. Buddenberg for reporting
concerns to the Board by running the pre-disciplinary hearing, ignoring exculpatory
evidence, and actively participating in later adverse job actions. (Id.) In effect, in
Mr. Wolff’s opinion, Mr. Budzik became “an active and direct agent of unlawful
retaliation.” (Id., PageID #11314.) Mr. Wolff concludes by stating that, in his “forty-

62

plus years of practice,” he has “never seen an evidentiary record of retaliation as
compelling and troubling as what befell Rebecca Buddenberg.” (Id., PageID #11316.)
Instead of advising the Board that Mr. Weisdack acted illegally, Mr. Budzik
facilitated or ignored the conduct “and in so doing became an active partner in
Weisdack’s and the Board’s retaliation against Ms. Buddenberg.” (Id.)
C.1.c. Michael Abouserhal
Ms. Buddenberg retained Mr. Abouserhal to prepare an expert financial report
to determine whether the District could have funded Ms. Buddenberg’s position as
fiscal coordinator position within its 2017 budget. (ECF No. 148-3, PageID #1013.)
Mr. Abouserhal is an inactive certified public accountant and has served in various
financial roles for various governmental entities for nearly forty years. (Id., PageID
#1019.)
No party cites Mr. Abouserhal’s report or opinions in any brief, but Mr. Wolff
relies on it in his expert report.

(ECF No. 210-2, PageID #11287 & #11305.)

Mr. Abouserhal opines, to a reasonable degree of professional certainty, that the
District did not have budgetary constraints necessitating the elimination of
Ms. Buddenberg’s fiscal coordinator position in 2017.

(ECF No. 148-3, PageID

#1014.) He bases this conclusion on an analysis of the District’s 2017 unencumbered
cash balance, general fund expenditures, savings from attrition, and carryover funds
identified in the District’s annual financial report. (ECF No. 148-3, PageID
#1014–16.)
Relying on Mr. Abouserhal’s findings, Mr. Wolff opines that the District’s
budgetary explanation for eliminating the position of fiscal coordinator was a pretext
63

for retaliation. (ECF No. 210-2, PageID #11313.) Further, he states that Mr. Budzik
was involved in eliminating Ms. Buddenberg’s fiscal coordinator position because
there were five entries on a privilege log between Mr. Budzik, Mr. Weisdack, and
other Board members around the time the District abolished the position. (Id.,
PageID #11305 & #11313.) As a result of eliminating the position, if Ms. Buddenberg
succeeded in appealing her discipline and subsequent demotion, she would have had
no position to which to return. (Id., PageID #11313.)
C.1.d. Mr. Budzik’s Expert and Plaintiff’s Rebuttal
In the interest of providing a working description of the expert opinions in the
record on summary judgment, the Court summarizes the opinions of Mr. Budzik’s
expert and Plaintiff’s rebuttal, even though they are not the subject of a motion.
C.1.d.i. R. Todd Hunt (Mr. Budzik’s Expert)
Mr. Budzik proffers the opinions of Todd Hunt, a partner at Walter Haverfield.
(ECF No. 154-1, PageID #1107.) Mr. Hunt has practiced law in the public sector and
as in-house and outside counsel for nearly 40 years. (Id., PageID #1107.) He has
extensive experience representing public-sector clients through civil service
disciplinary matters, personnel disputes, and other litigation. (Id., PageID #1108.)
Mr. Hunt offers three opinions: (1) Mr. Budzik acted within the applicable
standard of care and the duties he owed to the District; (2) the District made the
decision to discipline Ms. Buddenberg—not Mr. Budzik, who lacked the authority to
discipline or alter the terms and conditions of her employment; and (3) Mr. Budzik
complied with his ethical obligations and the rules of professional conduct in
representing the District. (Id., PageID #1108–09.) Additionally, he offers opinions
64

on Mr. Budzik’s role in conducting the pre-disciplinary hearing. (Id., PageID #1117.)
He had “no obligation or authority to halt” the hearing because of Ms. Buddenberg’s
retaliation claims—the Board could have still disciplined Ms. Buddenberg for any
workplace policy violations. (Id.) Further, during the hearing, in Mr. Hunt’s opinion,
Mr. Budzik played a ministerial role at the hearing that did not exceed his role as
counsel. (Id., PageID #1118.) Finally, Mr. Hunt opines that the hearing complied
with the legal requirements for a pre-deprivation hearing.

(Id., PageID #1119

(discussing Loudermill v. Cleveland Bd. of Educ., 470 U.S. 532 (1985).)
Mr. Hunt addresses two other matters. First, as to advising Ms. Buddenberg
of her right to legal counsel, Mr. Hunt opines that, while the District’s personnel
manual uses the phrase “legal representation,” “any reasonably intelligent person
would determine the term ‘representation’ . . . mean[t] “legal representation.” (Id.,
PageID #1119.) Second, he explains at length his opinion that Mr. Budzik complied
with his ethical obligations and the rules of professional conduct.

(Id., PageID

#1126–30.) Specifically, Mr. Hunt sees no conflict of interest between the roles of
Embleton and Mr. Budzik in representing the District. (Id., PageID #1126.) He
concludes that their roles were “clearly separated in time and substance,” and “each
engagement was entirely different.” (Id.) For this reason, there was no material
impairment of Mr. Budzik’s ability to “consider, recommend, or carry out an
appropriate course of action for the District” in violation of Rule 1.7(a)(2). (Id.,
PageID #1127 (cleaned up).)

65

C.1.d.ii. Plaintiff’s Rebuttal (by Mr. Leahy)
In rebuttal, Plaintiff offered a second report by William Leahy.

(ECF

No. 156-1.) Mr. Leahy challenges Mr. Hunt’s qualifications to opine on legal ethics,
stating that “[p]racticing law, or even litigating cases for many years, alone does not
qualify one as a legal ethics expert.” (Id., PageID #1135.) Beyond that, Mr. Leahy
reiterates the facts and conclusions from his initial report and again opines that
Mr. Budzik violated the Ohio Rules of Professional Conduct. (Id., PageID #145–46.)
C.2.

Motion to Strike

As against them, the District Defendants (other than the estate of
Mr. Weisdack) move to strike the opinions of Mr. Leahy and Mr. Wolff.

(ECF

No. 270.) In support of their motion, they advance two arguments. First, they
contend that Plaintiff “did not comply with Civil Rule 26(a)(2)(B) et seq before offering
expert opinions against these Defendants.” (Id., PageID #15074.) But the record
refutes this claim. Plaintiff timely disclosed these experts and their reports.
C.2.a. Scope of the Opinions Offered
Second, the District Defendants rely on statements and representations at
the depositions of Mr. Leahy and Mr. Wolff. In setting out their assignments in this
case, each expert reports an engagement limited to opining about Mr. Budzik.
Mr. Leahy states that he was retained “to analyze and evaluate the conduct of
Mansour Gavin LPA (“Mansour”), principally Counsel James Budzik.”

(ECF

No. 209-2, PageID #10712.) Similarly, Mr. Wolff reports that he was engaged “to
opine, on behalf of Plaintiff Rebecca Buddenberg, regarding the role played by James
Budzik, an attorney retained by the Geauga County Health District in January 2017
66

to advise the Board on certain personnel and disciplinary matters involving Rebecca
Buddenberg and her former supervisor Dan Mix.” (ECF No. 210-2, PageID #11285.)
At their depositions, Plaintiff’s counsel objected to any questioning by counsel
other than Mr. Budzik’s counsel “because the opinion is offered against Mr. Budzik
and Mr. Budzik alone.” (ECF No. 209-1, PageID #10602; ECF No. 210-1, PageID
#11087 (substantially similar).) Each expert agreed that he had no opinion against
any party other than Mr. Budzik. (ECF No. 209-1, PageID #10607; ECF No. 210-1,
PageID #11103.)
In opposition, Plaintiff urges denial of the motion to strike “because the passing
references to Robert M. Wolff’s and William B. Leahy’s expert reports and testimony
[in Plaintiff’s summary judgment briefing], while not crucial, are relevant to the
summary-judgment arguments.” (ECF No. 273, PageID #15084.) Regarding the
objections at the experts’ depositions, Plaintiff argues that counsel for the District
Defendants proceeded to question each witness. (Id., PageID #15089.)
The District Defendants filed their motion largely in response to the Court’s
decision to enforce the expert disclosure requirements on the spoliation issue. (ECF
No. 237, PageID #13102–04.) Besides the Defendants’ complaints about compliance
with Rule 26, Plaintiff timely disclosed the reports to all Defendants. (ECF No. 148,
PageID #949 (Plaintiff’s expert reports tendered on July 14, 2022).) The District
Defendants were aware of each expert’s opinions and the extent to which each expert
referenced the District well before summary judgment briefing began.

Neither

Mr. Budzik’s counsel nor counsel for Mr. Weisdack’s estate objected to these reports.

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As Plaintiff points out, the District Defendants’ counsel had an opportunity to depose
each expert. (ECF No. 273, PageID #15089.)
Given the nature of the allegations against Mr. Budzik, it is difficult if not
impossible to separate each expert’s opinions and strictly limit their application only
to him, particularly in the present procedural posture. Indeed, both the District
Defendants’ and Mr. Budzik incorporate by reference their respective summary
judgment motions.

(See ECF No. 258, PageID #14686; ECF No. 268-3, PageID

#15022.) For these reasons, the Court DENIES the District Defendants’ motion to
strike. (ECF No. 270.)
C.2.b. Opinions of Experts on the Law
Summary judgment ultimately depends on admissible evidence. See North
Am. Specialty Ins. Co. v. Myers, 111 F.3d 1273, 1283 (6th Cir. 1997); cf. Fed. R. Civ.
P. 56(c)(2).

The Court has the authority to address preliminary questions of

admissibility for evidence. See Fed. R. Evid. 104(a); Bourjaily v. United States, 483
U.S. 171, 175–78 (1987).

Rule 704 makes clear that expert testimony is “not

objectionable because it embraces an ultimate issue to be decided by the trier of fact.”
Fed. R. Evid. 704. But the Rule does not allow experts to opine broadly on the legal
issues in dispute.

There is an important difference between admissible expert

testimony “that suggest[s] the answer to the ultimate issue or that give[s] the jury all
the information from which it can draw inferences as to the ultimate issue” and
inadmissible expert testimony on the “ultimate question of liability.” Berry v. City of
Detroit, 25 F.3d 1342, 1353 (6th Cir. 1994) (recognizing that Rule 704 does not admit
expert testimony on whether police conduct amounts to deliberate indifference
68

because it embraces the ultimate legal question of liability, not subsidiary issues
suggesting the answer to that question). As an obvious example, an expert may opine
that the DNA on a murder weapon belongs to the defendant, but may not opine that
that fact proves the defendant’s guilt. Put another way, an expert may not invade
the province of the court by conveying or expressing legal standards or terminology
to the jury. See Torres v. County of Oakland, 758 F.2d 147, 150–51 (6th Cir. 1985).
In Torres, the Sixth Circuit concluded that a question posed to an expert which
asked whether the plaintiff had been discriminated against because of her national
origin was improper because the question “track[ed] almost verbatim the language of
the applicable statute,” and the term “discrimination” had a specialized meaning in
the law not commonly understood in its lay use. Id.; see also Killion v. KeHE Distribs.,
LLC, 761 F.3d 574, 592–93 (6th Cir. 2014) (upholding exclusion of an expert report
that “reads as a legal brief”). In contrast, expert testimony on the standard of care a
professional must exercise in carrying out his obligations may be admissible, so long
as the other prerequisites of Rule 702 and the disclosure obligations of Rule 26 are
satisfied. See, e.g., Babb v. Maryville Anesthesiologists P.C., 942 F.3d 308, 317 (6th
Cir. 2019); see also McGowan v. Cooper Indus. Inc., 863 F.2d 1266, 1272–73 (6th Cir.
1988) (noting the admissibility of expert testimony regarding custom and practice
within an industry).
Applying these principles here, the bulk of the opinions proffered by the
lawyers retained as experts cross the line into impermissible expert testimony. As
an initial matter, the parties largely use their experts as mouthpieces to reiterate

69

their legal arguments and to amplify their briefing on the ultimate legal questions at
issue.

For example, Mr. Wolff’s report repeatedly uses the terms “retaliation,”

“discrimination,” and “pretext” to describe Mr. Budzik’s conduct and role. (See ECF
No. 210-2, PageID #11309–16.)

Relying on the report of financial expert

Mr. Abouserhal (ECF No. 148-3), Mr. Wolff opines that the District’s budgetary
explanation for eliminating the fiscal coordinator position was “pretextual.” (ECF
No. 210-2, PageID #11305 & 11313.) Similarly, Mr. Budzik’s expert recounts case
law on retaliation and applies it to the facts of the case. (See ECF No. 154-1, PageID
#1121–22.)
Instead of providing testimony on issues that would allow a reasonable juror
to apply the Court’s instructions to find that Ms. Buddenberg suffered from
discriminatory retaliation or not, the experts do battle as lawyers do. They offer
opinions to argue their competing conclusions of liability or not using specialized legal
terminology, Torres, 758 F.2d at 151, based on their arguments about and
interpretations of the applicable legal standards, Babb, 942 F.3d at 317. No matter
how “uniquely experienced” each expert might be in his respective field, “he is not
qualified to compete with the judge in the function of instructing the jury.” Berry, 25
F.3d at 1354 (quoting Hygh v. Jacobs, 961 F.2d 359, 364 (2d Cir. 1992)). Nor is such
testimony helpful for the jury within the meaning of Rule 702. See Woods, 110 F.3d
at 1220–21.
Therefore, on summary judgment, the Court disregards the opinions of the
lawyers offered as experts to the extent that they merely restate their understanding

70

of the record and offer competing opinions on whether the District or Mr. Budzik
participated in or facilitated discriminatory retaliation. Id. at 1353. Overall, these
legal conclusions disguised as expert opinions do “little more than tell the jury what
result to reach.” Woods v. Lecureux, 110 F.3d 1215, 1220 (6th Cir. 1997). Moreover,
the parties may not create or defeat an issue of fact for trial simply by retaining
experts to make their legal arguments disguised as opinions to be offered to a jury.
However, these experts may opine on the standard of care applicable to a lawyer in
Mr. Budzik’s shoes and testify about industry customs and practices and whether the
relevant parties acted according to those practices.

Babb, 942 F.3d at 317–18;

McGowan, 863 F.2d at 1272–73.
As a final clarifying note, the Court will consider Mr. Abouserhal’s expert
report in its entirety but disregard Mr. Wolff’s interpretation of the findings as
leading to a conclusion of pretext.
ORAL ARGUMENT
Plaintiff requests oral argument on her motion for summary judgment under
the Court’s Civil Standing Order, which provides for argument as of right when a
party certifies that a younger lawyer will present the argument. (ECF No. 221,
PageID #12023.) After that certification, the younger lawyer Plaintiff certified would
present argument changed firms (see ECF No. 225), and Plaintiff withdrew her
request for oral argument under the Court’s Civil Standing Order (ECF No. 295).
After careful review of the summary-judgment record, the Court exercises its
discretion not to hold oral argument.

As summarized above, during pretrial

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management of this case, the Court held numerous status conferences and hearings
on and off the record that provided it with ample familiarity with the parties’
respective claims and defenses and their competing views of the facts. Further, the
parties’ briefs adequately frame the issues for review. And after the hearing on
Defendants’ motion for sanctions, the Court afforded the parties supplemental
briefing to address the matters raised. On this record, the Court finds that ruling
without oral argument better serves the interest of judicial economy.
ANALYSIS
Summary judgment is appropriate “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). On a motion for summary judgment, “the judge’s
function is not . . . to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986). “The party seeking summary judgment has the initial
burden of informing the court of the basis for its motion” and identifying the portions
of the record “which it believes demonstrate the absence of a genuine issue of material
fact.” Tokmenko v. MetroHealth Sys., 488 F. Supp. 3d 571, 576 (N.D. Ohio 2020)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The non-moving party must
then “set forth specific facts showing there is a genuine issue for trial.” Id. (citing
Anderson, 477 U.S. at 250).
“When the moving party has carried its burden under Rule 56(c), its opponent
must do more than show there is some metaphysical doubt as to the material facts.”

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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The
Court, instead, determines “whether the evidence presents a sufficient disagreement
to require submission to a jury” or whether the evidence “is so one-sided that one
party must prevail as a matter of law.” Anderson, 477 U.S. at 251–52. In doing so,
the Court must view the evidence in the light most favorable to the non-moving party.
Kirilenko-Ison v. Board of Educ. of Danville Indep. Schs., 974 F.3d 652, 660 (6th Cir.
2020) (citing Matsushita Elec. Indus. Co., 475 U.S. at 587).
If a genuine dispute exists, meaning “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party,” summary judgement is not
appropriate. Tokmenko, 488 F. Supp 3d at 576 (citing Anderson, 477 U.S. at 250). If
the evidence, however, “is merely colorable or is not significantly probative,”
summary judgment for the movant is proper. Id. The “mere existence of some factual
dispute between the parties will not defeat an otherwise properly supported motion
for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Anderson,
477 U.S. at 247–48).
“Just as plaintiff may not rely on conclusory allegations to proceed past the
pleading stage, so too a plaintiff may not rely on conclusory evidence to proceed past
the summary-judgment stage.” Viet v. Le, 951 F.3d 818, 823 (6th Cir. 2020) (cleaned
up). “Conclusory statements unadorned with supporting facts are insufficient to
establish a factual dispute that will defeat summary judgment.”
Alexander v. CareSource, 576 F.3d 551, 560 (6th Cir. 2009)).

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Id.

(quoting

“[W]here, as here, the parties filed cross-motions for summary judgment, ‘the
court must evaluate each party’s motion on its own merits, taking care in each
instance to draw all reasonable inferences against the party whose motion is under
consideration.’” McKay v. Federspiel, 823 F.3d 862, 866 (6th Cir. 2016) (quoting Taft
Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1991)). Therefore, crossmotions for summary judgment do not warrant granting summary judgment unless
one of the parties is entitled to judgment as a matter of law on facts that are not
genuinely disputed. Langston v. Charter Twp. of Redford, 623 F. App’x 749, 755 (6th
Cir. 2015).
I.

Federal Claims
Plaintiff argues that the prior rulings in this case constrain the Court’s inquiry

on summary judgment on several “core retaliation issues” as the “law of the case.”
(ECF No. 221, PageID #12066 n.2 & #12069; ECF No. 269, PageID #15046–47.)
Namely, Plaintiff relies on the Sixth Circuit’s conclusion in its ruling on Mr. Budzik’s
interlocutory appeal from the denial of qualified immunity that the First Amendment
protects Ms. Buddenberg’s speech. (ECF No. 221, PageID #12069 & #12072 (citing
Buddenberg, 939 F.3d at 739–40).) Further, she points to the Sixth Circuit’s ruling
that Mr. Budzik was not entitled to qualified immunity and that he took adverse
employment action against her. (ECF No. 221, PageID #12075 (citing Buddenberg,
939 F.3d at 737, 740).) Also, Plaintiff relies on the Court’s ruling that she pled
“sufficient facts [in her complaint] to allege that Mr. Budzik was a state actor.” (ECF
No. 263, PageID #14903 (quoting Buddenberg, 2018 WL 3159052, at *4).)

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The law-of-the-case doctrine precludes a court “from reexamining an issue
previously decided by the same court, or a higher court in the same case.” Bowling v.
Pfizer, Inc., 132 F.3d 1147, 1150 (6th Cir. 1998) (citation omitted). This doctrine is a
“prudential practice” rather than a binding rule of substantive law. Howe v. City of
Akron, 801 F.3d 718, 739 (6th Cir. 2015). “[T]he doctrine merely directs a court’s
discretion, it does not limit the tribunal’s power.” Arizona v. California, 460 U.S. 605,
618 (1983) (internal quotations omitted).
A judgment denying a motion to dismiss “does not establish the law of the case
for the purposes of summary judgment, when the complaint has been supplemented
by discovery.” McKenzie v. BellSouth Telecomms., 219 F.3d 508, 513 (6th Cir. 2000)
(affirming a subsequent grant of a summary judgment for the defendants under the
former qui tam whistleblower statute after the Sixth Circuit had previously reversed
dismissal under Rule 12(b)(6)). In fact, the Sixth Circuit has “held that the law of the
case doctrine does not apply to earlier proceedings where a different legal standard
governs.” In re B & P Baird Holdings, Inc., 759 F. App’x 468, 477–78 (6th Cir. 2019).
Moreover, a decision on qualified immunity is generally more appropriate at
summary judgment rather than on a motion to dismiss given the fact-intensive
nature of the inquiry. See Wesley v. Campbell, 779 F.3d 421, 433–34 (6th Cir. 2015)
(collecting cases). Therefore, a district court may reconsider the applicability of
qualified immunity at summary judgment after an initial interlocutory appeal based
on a motion to dismiss. See Behrens v. Pelletier, 516 U.S. 299, 309 (1996) (allowing
two interlocutory appeals for qualified immunity from denials of both a motion to

75

dismiss and summary judgment because “the legally relevant factors bearing” on the
determination “will be different on summary judgment rather than on an earlier
motion to dismiss”); see also Buddenberg, 939 F.3d at 742 (“Budzik is therefore not
entitled to qualified immunity at this phase of the litigation.”) (emphasis added);
Buddenberg, 2018 WL 3159052 at *4 (finding the qualified immunity determination
too premature at the motion to dismiss stage and indicating that it may be raised
later if Defendants can “develop[] a factual record to support it”).
In the prior decisions, the Court and the Sixth Circuit repeatedly
acknowledged that the ruling were based only on the facts alleged. See Buddenberg,
939 F.3d at 738–41; Buddenberg, 2018 WL 3159052 at *2, *4. In the intervening time
between the Sixth Circuit’s decision and the summary-judgment briefing, the parties
engaged in substantial discovery.

This discovery proved some facts alleged in

Plaintiff’s second amended complaint but also surfaced others that were not pled or
not previously known and, therefore, unaccounted for in the rulings made at the
pleading stage. In this procedural posture, then, where the record remains materially
unchanged such that the evidentiary record supports the determination made at the
pleading stage, the Court applies the law of the case doctrine. But where discovery
supplements the allegations of the pleadings, the law-of-the-case doctrine does not
bar the Court’s consideration on summary judgment of issues decided at the motion
to dismiss stage. McKenzie, 219 F.3d at 513.
I.A.

First Amendment Retaliation (Count 5)

In certain circumstances, the First Amendment protects the right of a public
employee to speak as a citizen on matters of public concern. Garcetti, 547 U.S. at 417.
76

Because government employees often have the best position to know “what ails the
agencies for which they work,” there is “considerable value” in protecting their
speech. Lane v. Franks, 573 U.S. 228, 236 (2014) (quoting Waters v. Churchill, 511
U.S. 661, 674 (1994) (plurality opinion)). But the speech of public employees does not
receive absolute protection. While public employees do not forfeit all their First
Amendment rights by taking public employment, an employer has a competing and
strong countervailing interest in the efficient operation of its workplace, which after
all discharge duties imposed by law that presumably serve the public interest. Id.
Therefore, a government worker cannot “constitutionalize the employee grievance.”
Connick, 461 U.S. at 154.
Analyzing such claims involves a three-step inquiry to determine whether the
plaintiff engaged in protected speech. See Connick, 461 U.S. at 144–54; Garcetti, 547
U.S. at 421; Pickering v. Board of Educ., 391 U.S. 563, 568 (1968). If a plaintiff did
not engage in protected speech, her First Amendment retaliation claim fails as a
“pure” matter of law. Mayhew v. Town of Smyrna, 856 F.3d 456, 462–464 (6th Cir.
2017). Although these questions might appear to present questions of fact, or at least
mixed questions of law and fact, the Sixth Circuit consistently holds that “the
protected status of an employee’s conduct” presents “solely [a question] of law.” Id.
(collecting cases). In most cases, however, questions regarding the protected status
of speech involve no material disputes of fact. See, e.g., Westmoreland v. Sutherland,
662 F.3d 714, 718 (6th Cir. 2011); Fox v. Traverse City Area Pub. Schs. Bd. of Educ.,
605 F.3d 345, 351 (6th Cir. 2010) (“Even if the question were purely a question of fact

77

. . . the district court properly granted summary judgment because the factual record
presents no genuine issue for trial.”). But the parties dispute nearly all factual
questions and legal issues in this case, complicating the task here.
I.A.1. Matter of Public Concern
The Court begins by examining whether the employee’s “speech may be fairly
characterized as constituting speech on a matter of public concern.” Dambrot v.
Central Mich. Univ., 55 F.3d 1177, 1186 (6th Cir. 1995) (internal citations and
quotations omitted). The framework for deciding whether speech relates to a matter
of public concern is “not well defined.” Snyder v. Phelps, 562 U.S. 443, 452 (2011).
An individual’s motives for speaking are not dispositive on the issue. Stinebaugh v.
City of Wapakoneta, 630 F. App’x 522, 527 (6th Cir. 2015). A public employee might
have self-serving motives (or high-minded ones), but whatever her motives the focus
remains on the employee’s speech itself. Mosholder v. Barnhardt, 679 F.3d 443, 450
(6th Cir. 2012) (quoting Chappel v. Montgomery Cnty. Fire Prot. Dist. No. 1, 131 F.3d
564, 575 (6th Cir. 1997)).

But banal workplace disputes resulting in “the

quintessential employee beef: [that] management has acted incompetently” are not
entitled to First Amendment protection. Haynes v. City of Circleville, 474 F.3d 357,
365 (6th Cir. 1988).
To determine whether Plaintiff spoke as a matter of public concern, the Court
looks to the “content, form, and context of [her] statement, as revealed by the whole
record.” Connick, 461 U.S. at 147–48. Speech involves a matter of public concern
where it can be “fairly considered as relating to any matter of political, social, or other
concern to the community, or when it is a subject of legitimate news interest; that is
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a subject of general interest and of value and concern to the public.” Lane, 573 U.S.
at 241. Matters of public concern differ from “those only of private interest,” and
speech

that

exposes

“governmental

inefficienc[ies],

mismanagement,

or

misappropriation ‘of public money are matters of considerable public significance.’”
Stinebaugh, 630 F. App’x at 527 (quoting Garcetti, 547 U.S. at 425). Matters of public
concern typically include allegations of corruption, government mismanagement,
misconduct, and discrimination. Kirkland v. City of Maryville, Tenn., 54 F.4th 901,
908 (6th Cir. 2022).
Picking up on the distinction between matters of public and private interest,
Defendants argue that this case presents a prototypical example of a run-of-the-mill
workplace dispute between an employee and her boss that does not present any
matter of public concern within the meaning of the First Amendment. Plaintiff
responds that she reported matters of public concern to the Board, including a conflict
of interest, sex-based pay disparities, instances of Mr. Weisdack’s maladministration
and severe mistreatment and abuse of her and other employees, and retaliation.
Further, she maintains that Defendants concede this issue, citing the deposition
testimony of Mr. Weisdack and various Board members agreeing that these issues
constitute matters of public concern. (See ECF 180-1, PageID #2037–38, #2117,
#2122 & #2152–53; ECF No. 179-1, PageID #1590–91, #1593–99 & #1605; ECF
No. 186-1, PageID #3282 & #3286–87; ECF No. 188-1, PageID #3689–90, #3696 &
#3701–03; ECF No. 189-1, PageID #4003–04, #4008–10 & #4012–16.)

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As a threshold matter, whether speech involves a matter of public concern
presents a question of law. Connick, 461 U.S. at 148 n.7; Handy-Clay v. City of
Memphis, 695 F.3d 531, 543 (6th Cir. 2012) (citing Hughes v. Region VII Area Agency
on Aging, 542 F.3d 169, 180 (6th Cir. 2008)); Bonnell v. Lorenzo, 241 F.3d 800, 809–10
(6th Cir. 2001). Therefore, the testimony and concessions on which Plaintiff relies do
not ultimately determine whether Ms. Buddenberg spoke on matters of public
concern. Indeed, such testimony is not admissible. See Torres, 758 F.2d at 151.
I.A.1.a. Pay Disparity, Self-Dealing, and Retaliation
Taking the subjects of Ms. Buddenberg’s statements to the Board on sex-based
pay disparity, the tire contract, and retaliation on their face, the record as a whole
leaves little doubt that she spoke on matters of public concern. See Whitney v. City
of Milan, 677 F.3d 292, 297 (6th Cir. 2012) (allegation of discrimination is a matter
of public concern); See v. City of Elyria, 502 F.3d 484, 493 (6th Cir. 2007) (allegation
of possible corruption is a matter of public concern); Bonnell, 241 F.3d at 817
(allegation of retaliation is a matter of public concern). In this respect, the record
bears out Plaintiff’s allegations and the conclusion the Sixth Circuit previously
reached. Buddenberg, 939 F.3d at 739.
I.A.1.b. Mismanagement
Defendants counter that Plaintiff’s personal motivation for reporting to the
Board predominates over any interest she had as a member of the public regarding
these topics; therefore, her speech does not touch on a matter of public concern. But
a public employee’s mixed or even selfish motives are not the focus of the analysis.
Kirkland, 54 F.4th at 908 (holding that a police officer’s social media post accusing a
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sheriff of sex discrimination and political retribution presents a matter of public
concern, despite their “long contentious personal history” that might have motivated
the speech). What the employee says matters, not why she said it. Mosholder, 679
F.3d at 450; Chappel, 131 F.3d at 575. To be sure, at times the Sixth Circuit treats
an employee’s self-interest as removing the speech from the umbrella of addressing a
matter of public concern. See, e.g., Naghtin v. Montague Fire Dist. Bd., 674 F. App’x
475, 479–81 (6th Cir. 2016) (holding that a fire chief’s statements did not touch on a
matter of public concern in part because of the personal benefits he stood to gain by
speaking). Such circumstances tend to arise where an employee speaks about morale
or internal office politics. Id. (collecting cases).
In that respect, Ms. Buddenberg’s report of general mismanagement presents
a different question. Mere allegations of managerial incompetence or other internal
personnel issues do not touch on matters of public concern. See, e.g., id.; Barnes v.
McDowell, 848 F.2d 725, 735 (6th Cir. 1988). “The First Amendment does not require
a public office to be run as a roundtable for employee complaints over internal office
affairs.” Connick, 461 U.S. at 148. Perhaps mismanagement, abuse of employees, or
similar matters might be so pervasive or extreme as to rise to the level of a public
concern. If so, the generalized grievances Ms. Buddenberg raised fall short of such a
standard, even construing the record on summary judgment in her favor.
Plainly, Ms. Buddenberg held Mr. Weisdack in contempt and thought the
District would operate more efficiently and provide better services to the public
without him. Most of the operational concerns she reported to the Board related to

81

internal policy decisions Mr. Weisdack made about how to run the District. These
sorts of complaints, even if justified and meritorious, fall outside the protections of
the First Amendment. See Barnes, 848 F.2d at 735; Rahn v. Drake Ctr., Inc., 31 F.3d
407, 414 (6th Cir. 1994) (holding that an employee’s press release, complaining about
new leadership and other internal office policy, constituted an unprotected “employee
grievance”).
I.A.2. Pursuant to Plaintiff’s Job Duties
Next, the Court determines whether the employee spoke as a private citizen
and not pursuant to her official job duties. Haddad v. Gregg, 910 F.3d 237, 244 (6th
Cir. 2018) (quoting Mayhew, 856 F.3d at 462).

The Supreme Court has not

“articulate[d] a comprehensive framework for defining the scope of an employee’s
duties in cases where there is room for serious debate.” Garcetti, 547 U.S. at 424.
Instead, “the proper inquiry is a practical one,” id., but still a question of law, see
Mayhew, 856 F.3d at 462–63 (rejecting argument that job duties presents a mixed
question of fact and law); Fox, 605 F.3d at 350 (collecting cases).
Both the context and content of the speech matter. Fox, 605 F.3d at 348. In
Garcetti, 547 U.S. at 421, the Supreme Court defined speech made “pursuant to” a
public employee’s job duties as “speech that owes its existence to a public employee’s
professional responsibilities.” There, this inquiry was straightforward because the
plaintiff admitted that his speech was part of his official job duties. Id. at 424. But
most cases, including this one, are not so simple. Knowledge acquired through public
employment does not automatically remove speech from the protections of the First
Amendment. Lane, 573 U.S. at 240. Instead, the issue is whether the employee
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speaks pursuant to one’s job duties or “merely relay[s] information he learned while
on the job in a way that did not affect his duties.” DeWyse v. Federspiel, 831 F. App’x
759, 762 (6th Cir. 2020) (quoting Fledderjohann v. Celina City Sch. Bd. of Educ., 825
F. App’x 289, 294 (6th Cir. 2020)).
Garcetti cautions against construing a public employee’s job duties too
narrowly, underscoring that “[f]ormal job descriptions often bear little resemblance
to the duties an employee actually is expected to perform.” 547 U.S. at 424–25.
Therefore, “the listing of a given task in an employee’s written job description is
neither necessary nor sufficient to demonstrate that conducting the task is within the
scope of the employee’s professional duties for First Amendment purposes.” Id. at
425. Even ad hoc duties can fall within an employee’s responsibilities for purposes of
determining whether the First Amendment protects her speech.

Davidson v.

Arlington Cmty. Sch. Bd. of Educ., 847 F. App’x 304, 309 (6th Cir. 2021) (citations
omitted).
Under the law of this Circuit, an employee’s speech that does not enjoy First
Amendment protection receives a narrow construction and is limited to “speech that
an employee made in furtherance of the ordinary responsibilities of his employment.”
Boulton v. Swanson, 795 F.3d 526, 534 (6th Cir. 2015). Making that determination
requires consideration of several factors from a non-exhaustive list, including the
goals the speaker sought to advance, whether the speech occurred on the clock or in
the workplace, the audience, and its general subject matter. See, e.g., DeCrane v.
Eckart, 12 F.4th 586, 596 (6th Cir. 2021). In a case such as this, where there is room

83

for serious debate whether a public employee spoke pursuant to her job duties, the
Court is left with an inherently difficult task given the intense fact-specific inquiry
needed to answer this legal question. See Garcetti, 547 U.S. at 424–25. In doing so,
the Court applies the summary judgment standard, construing the record in favor
the non-moving party on each cross-motion.
I.A.2.a. Plaintiff’s Job Description and Motivation
Defendants argue that Ms. Buddenberg spoke pursuant to her job duties,
motivated by her animosity toward Mr. Weisdack. Plaintiff responds that her job
description did not include reporting misconduct to the Board and contends that the
public interest compelled her speech, namely her concern as a tax-paying citizen for
the proper functioning of the District. Without question, the record establishes that
none of Ms. Buddenberg’s official job duties explicitly included reporting misconduct
to the Board. Also, it leaves little doubt that Ms. Buddenberg performed duties
differing from those on her official job description. But these facts do not end the
inquiry. As Garcetti makes clear, job duties alone do not determine the capacity in
which a public employee speaks. Rather, the inquiry is more involved and requires
consideration of the broader motivation and context of the speech. Weisbarth v.
Geauga Park Dist., 499 F.3d 538, 545 (6th Cir. 2007).
In Haynes, 474 F.3d at 361, for example, a police officer was terminated after
he complained to his supervisor about cutbacks to a canine training program the
officer helped administer. In response to the cutbacks, the police officer wrote a memo
expressing his discontent and wrapped his equipment in wrapping paper, attaching
a note that read, “Do not open until Christmas”—two actions the officer was not
84

obligated to perform. See id. at 360–61. Nonetheless, the Sixth Circuit held that the
officer wrote the memo pursuant to his job duties—not because the officer’s job
description required him to complain to supervisors, but because the complaints arose
out of his day-to-day duties as a police officer. Id. at 364.
I.A.2.a.i. Arising from Job Duties
Like the police officer in Haynes, Ms. Buddenberg’s reports about the tire
contract arose from her day-to-day activities.

In her role as fiscal coordinator,

Ms. Buddenberg handled workers’ compensation. (ECF No. 203-1 PageID #8496.)
Also, she had responsibility for payments to contractors. (Id., PageID #8503–04.)
Without a formal contract in place for the tire clean up, she would not have been able
to fulfill this job responsibility. (Id., PageID #8566–67.) In her letter to the Board
after the meeting, she stated that she feared discipline had she not reported this
issue. (ECF No. 215-1, Page ID #11806.)
If assumed for purposes of summary judgment, rightly or wrongly, that
Ms. Buddenberg had no obligation to report misconduct (in the form of a self-dealing
contract), the record establishes that she learned about the tire contract through her
job duties, and at least its procedural propriety affected the day-to-day performance
of her job. Without a proper contract, she could not authorize payment. Here, her
report “bore all the markers of official action.” Henderson v. City of Flint, 751 F. App’x
618, 622 (6th Cir. 2020).
For

the

gender-pay

disparity,

the

record

presents

a

closer

call.

Ms. Buddenberg testified that she learned of the issue internally from several
individuals, including the female employee and her supervisor. (ECF No. 203-1,
85

PageID #8527–29.)

These individuals likely approached Plaintiff because she

managed payroll and could verify such a disparity, but also because they expected a
sympathetic audience. Defendants point out that Ms. Buddenberg raised this issue
only after she reported the tire contract and the Board asked whether she had any
other concerns to raise. Setting aside the fact that it appears this episode was likely
contrived, the Board asked Ms. Buddenberg to provide information about additional
grievances—arguably placing her in a position to speak outside the specific issue
regarding the tire contract that prompted her report to the Board in the first place.
Still, Ms. Buddenberg’s speech about the pay disparity and other matters involving
Mr. Weisdack’s conduct and management arose out of her work as his direct
subordinate. See Davidson, 847 F. App’x at 309. But a public employee may speak
outside her job duties even where her knowledge arises pursuant to her job duties.
Lane, 573 U.S. at 240.
On Defendants’ motion for summary judgment, the Court construes the record
in favor of Plaintiff and assumes that the Board’s invitation to Ms. Buddenberg to
speak to matters other than the tire contract took her report outside her job duties,
even if her knowledge arose entirely from her work. Additionally, Ms. Buddenberg’s
speech on the gender pay disparity does not entirely relate to her job duties.
Accordingly, in the Court’s view, the procedural posture dictates the conclusion that
Ms. Buddenberg spoke, at least arguably, outside of her job duties on the gender pay
issue. With respect to the gender pay disparity, this conclusion reflects the Sixth

86

Circuit’s prior conclusion that this report was outside her job duties. See Buddenberg,
939 F.3d at 740.
I.A.2.a.ii. Moral Obligation
To argue that Plaintiff’s speech does not receive protection under the First
Amendment, Defendants rely on Ms. Buddenberg’s contemporaneous statements in
text messages, her draft ethics complaint, and correspondence with the Board that,
when she reported to the Board, she was “just doing [her] job.” (ECF No. 205-5,
PageID #9366; see also, e.g., ECF No. 195-35, PageID #5275.) As with the District
Defendants’ position regarding matters of public concern, the term “pursuant to a
public employee’s job duties” has a “separate and distinct specialized meaning in the
law different from that present in the vernacular.” Torres, 758 F.2d at 151 (citing
United States v. Hearst, 563 F.2d 1331, 1351 (9th Cir. 1977)). Therefore, the evidence
on which Defendants rely is not dispositive on the question whether Ms. Buddenberg
spoke pursuant to her job duties. Indeed, in the current procedural posture construed
in Plaintiff’s favor, Ms. Buddenberg’s statements receive a more colloquial meaning
that any citizen in her position would do the same or that she was not undertaking a
supererogatory action.
For her part, Plaintiff encourages the Court to construe her speech more
broadly—divorced from reference to her job—and on the basis that she spoke on a
matter of public concern. (See ECF No. 269, PageID #15047–50 & 15059–62.) But
speaking on a matter of public concern does not take an employee’s speech outside of
her job duties. See Garcetti, 547 U.S. at 423.

87

Also, Plaintiff emphasizes that because she had not previously reported
misconduct to the Board, her speech must lie outside the scope of her job duties. But
she provides no authority for this proposition. To the contrary, while “Plaintiff’s
mission may have been motivated by [her] perceived public interest purpose,”
“however laudable, Plaintiff’s quest” does not remove her reports from the scope of
her job duties. Haddad v. Gregg, 910 F.3d 237, 249–50 (6th Cir. 2018). Good
intentions alone do not shortcut the legal analysis. Because ad hoc or de facto duties
can fall under an employee’s official responsibilities, the fact that October 24, 2016
was the first time Ms. Buddenberg made a report to the Board does not compel the
conclusion that she spoke as a citizen, see Mayhew, 856 F.3d at 465; Davidson, 847 F.
App’x at 309, particularly because she raised concerns about Mr. Weisdack as the
Commissioner.
Additionally, Plaintiff argues that her motivations in speaking to the Board
stemmed from her sense of moral obligation—not from her duties as the District’s
fiscal coordinator. (ECF No. 203-1, PageID #8538–42.) But both can be true at the
same time.

Ms. Buddenberg could have worried about the ethics, propriety, or

appearance of the tire contract, the pay disparity issue, or retaliation, and reporting
such misconduct still could fall within her job responsibilities. In the richness of the
human experience, people often act with mixed motivations.
I.A.2.b. Setting and Audience of the Speech
Defendants argue that the setting and audience of Ms. Buddenberg’s speech
show that she spoke pursuant to her job duties. (ECF No. 217, PageID #11924–25.)
Plaintiff’s initial report to the Board was made on-the-clock during an executive
88

session. This factor makes the speech more likely to be unprotected, “speech as a
government agent” as compared to protected citizen-speech. DeCrane, 12 F.4th at
596. On the other hand, the Board determines when it meets and cannot transform
the speech of a citizen who happens also to be a public employee into work-related
speech simply by holding its meetings during the business day. And, as discussed,
Ms. Buddenberg raised the gender pay disparity at the Board’s invitation to step
outside her official duties.
Also, Defendants argue that Ms. Buddenberg merely went up the chain of
command with her reports of misconduct. Plaintiff maintains that her reports of
retaliation circumvented the chain of command and that it was unusual to report
directly to the Board—in fact the Board had not previously convened to interface
directly with another employee besides the commissioner. (ECF No. 188-1 PageID
#3682.) Recently, the Sixth Circuit noted that “internal escalations of concerns or
grievances . . . directly relat[ing] to or otherwise concern[ing] an employee’s day-today activities” suggest that an employee spoke pursuant to her job duties instead of
as a private citizen. Ashford v. University of Michigan, ___ F.4th ___, ___, 2024 WL
94275, at *7 (6th Cir. Jan. 9, 2024) (citing Mayhew, 856 F.3d at 464–65; Haynes, 474
F.3d at 364).
Here, there can be no dispute that the audience of Plaintiff’s speech was her
supervisors and the Board. Plaintiff raised the gender pay disparity with
Mr. Weisdack five months before speaking to the Board.

For the tire contract,

Plaintiff testified that she had discussed it with Mix before reporting to the Board.

89

(ECF No. 203-1, PageID #8520–21.) Before going to the Board with a complaint of
retaliation, Ms. Buddenberg communicated with Mix, her supervisor. On October 25,
2016, Mix and Ms. Buddenberg spoke about her treatment from other employees
following her report to the Board the day before. (ECF No. 208-2, PageID #10432.)
In Mix’s declaration, he attested that they communicated about her safety following
the October 2016 Board meeting given Mr. Weisdack’s “volatile” temper.
No. 194-5, PageID #4594.)

(ECF

Also, he recounted the “cold treatment from her co-

workers” following Ms. Buddenberg’s initial report to the Board. (Id.)
Additionally, Defendants argue that reporting to the Board does not go outside
the chain of command because Ms. Buddenberg followed the District’s grievance
procedures. (ECF No. 258, PageID #14672.) The policy instructs employees to bring
their grievances to the Board if their supervisors and the Commissioner do not
adequately address the problem.

(See ECF No. 215-1, PageID #11809–10.)

In

response, Plaintiff argues that this procedure does not apply to her speech because
her speech was not a “grievance” under the manual.

(ECF No. 269, PageID

#15050–51.) On this point, the District’s grievance procedures contain an ambiguity.
Unlike in Mayhew, for example, where the employee was required to report to
management, 856 F.3d at 464–65, here, the District’s policies are silent on an
employee’s obligation when reporting the workplace misconduct of the Commissioner,
who otherwise has responsibility for all such reports and discipline. (ECF No. 195-14,
PageID #5135.)

90

On its face, the policy contemplates a supervisor or the Commissioner being
available for purposes of raising an issue or complaint, with the Board serving an
appellate function if an employee finds the Commissioner’s resolution of an issue
unsatisfactory—a different circumstance than reporting to the Board in the first
instance because the Commissioner is the source of the complaint or grievance.
In the current procedural posture, there are material questions regarding
whether and how the policy would apply to a complaint or grievance against the
Commissioner. Therefore, the Court cannot say, when construing the record in
Plaintiff’s favor (even though she spoke to her supervisor and the Board), that the
setting or audience of Ms. Buddenberg’s speech removes her report about the gender
pay disparity or complaints of retaliation to the Board and individual Board members
from the protections of the First Amendment.
I.A.2.c. Practical Inquiry
When it comes to Plaintiff’s motion for summary judgment, Defendants might
be right that Ms. Buddenberg spoke to the Board pursuant to her job duties. Garcetti
instructs that this inquiry must be a “practical” one. 547 U.S. at 424. That practical
view might well regard Ms. Buddenberg as speaking pursuant to her job duties for at
least two reasons.
First, Plaintiff provides no evidence and makes no argument that her speech
or its subjects was ever relayed to anyone outside the District or any member of the
public more broadly.

Plaintiff did not speak to a broader audience than her

supervisor or the Board. Instead, she spoke on the gender pay disparity during an
executive session and brought her claims of retaliation to Board members
91

individually and the Board privately—conduct not typical for ordinary citizens
speaking on matters of public concern.
Plaintiff argues that Haynes supports her position because the Sixth Circuit
emphasized there that the police officer spoke “solely to his superior” in its
determination that he spoke pursuant to his job duties. (ECF No. 269, PageID
#15051–52); Haynes, 474 F.3d at 364. While Ms. Buddenberg did “go above and
beyond her immediate superior” in reporting misconduct (ECF No. 269, PageID
#15052), she attributes too much weight to this detail. Where courts find that an
employee spoke as a private citizen in this context, usually, the employee directed
her speech to a third party or spoke with a broader audience in mind. Such was the
case in the recent Ashford ruling where a university police officer did not speak
pursuant to his job duties where he voiced concerns to a journalist about the
department’s handling of a sexual assault investigation. Ashford, 2024 WL 94275, at
*7–8; see also Aquilina v. Wriggelsworth, 759 F. App’x 340, 346 (6th Cir. 2018)
(holding that a judge engaged in speech as a citizen where she allowed a reporter to
view an assault captured on video by courtroom surveillance, because the reporter’s
involvement implied an eventual public audience); Westmoreland, 662 F.3d at 719–20
(holding that a fire-rescue diver’s speech enjoyed First Amendment protection
because it occurred while he was off-duty, out-of-uniform, and at a public city council
meeting even though it concerned policies within his department). Admittedly, the
question here is close. But these considerations suggest that Ms. Buddenberg spoke
as an employee. Garcetti, 547 U.S. at 423 (describing “communications between . . .

92

government employees and their superiors in the course of official business” as
unprotected); Aquilina, 759 F. App’x at 345 (describing speech having an “ultimate
[public] audience” as falling outside of an employee’s job duties).
Second, by comparison to Richard Ceballos, the prosecutor in Garcetti,
Ms. Buddenberg spoke pursuant to her job duties. As a deputy district attorney for
the Los Angeles County District Attorney’s Office, Ceballos served as a professional
with independent obligations of disclosure and candor to the judiciary. Ceballos’s
speech concerned what he thought to be serious misrepresentations in an ex parte
affidavit for a search warrant. Garcetti, 547 U.S. at 414. Although Ceballos had
independent obligations as an attorney, and notwithstanding the ex parte nature of
the underlying proceeding, the Supreme Court concluded that his supervisors had a
“heightened interest in controlling [his] speech” because Ceballos did not speak as a
citizen when he raised concerns about the criminal case. Id.
In contrast, Ms. Buddenberg operated in a largely administrative position in a
county health department. She concedes that she was not a policy maker—she did
not exercise much independent discretion or authority.
#12036.)

(ECF No. 221, PageID

Her daily responsibilities included assisting with financial work and

budgeting, processing payroll and accounts payable, and coordinating employee
benefits. (ECF No. 194-38; ECF No. 180-1, PageID #1980.)

On average, these

activities carry less significance than a prosecutor’s obligations in the administration
of justice within another branch of government.

93

None of this is to denigrate Ms. Buddenberg or to imply that her role has any
less importance than that of any other government employee. But by comparison, it
is difficult to see how she spoke as a citizen if Ceballos did not on the facts presented
in Garcetti. Taking a practical view of Ms. Buddenberg’s statements in light of their
setting, audience, and subject matter, her speech “owes its existence to her
professional responsibilities” at the District. Weisbarth, 499 F.3d at 544 (quoting
Garcetti, 547 U.S. at 421–22). Therefore, her speech is not protected by the First
Amendment and her claim fails as a matter of law. See id. “To hold otherwise would
be to demand permanent judicial intervention in the conduct of governmental
operations to a degree inconsistent with sound principles of federalism and the
separation of powers.” Garcetti, 547 U.S. at 423.
*

*

*

In the present procedural posture, on Defendants’ motions for summary
judgment, the Court assumes but does not decide that Ms. Buddenberg spoke as a
citizen, not pursuant to her job duties, when reporting to the Board on the gender pay
disparity and her claims on retaliation. On Plaintiff’s motion for summary judgment,
construing the facts in favor of Defendants, the Court determines that
Ms. Buddenberg spoke pursuant to her job duties such that her speech is not entitled
to the protections of the First Amendment. In short, on Plaintiff’s motion only,
considering the facts and circumstances presented, the First Amendment does not
“shield[]” her from discipline and there need not be a “delicate balancing” of her
interests in addressing matters of public concern and the District’s interests as an
employer. Garcetti, 547 U.S. at 423–24.
94

I.A.3. Pickering Balancing
But because of the closeness of the question whether Ms. Buddenberg spoke
pursuant to her job duties, and because that determination might depend on the
procedural posture, the Court undertakes the balancing the Supreme Court
articulated in Pickering and its progeny to determine whether the employee’s interest
in “commenting on matters of public concern” outweighs the employer’s interests “in
promoting the efficiency of the public services it performs.” Pickering, 391 U.S. at
568.

Defendants maintain that they had an adequate justification to discipline

Ms. Buddenberg because she disrupted the efficient operation of the District.
Plaintiff counters that the District has no legitimate interest that outweighs her
interest in reporting official misconduct.
I.A.3.a. Degree of Protection for Speech
The analysis begins “by determining the degree of protection the speech
warrants, i.e., the level of importance the speech has in the community.” Bennett v.
Metropolitan Gov’t of Nashville & Davidson Cnty., Tenn., 977 F.3d 530, 538 (6th Cir.
2020). The value of an employee’s speech can range from very limited to expression
occupying “the highest rung” of protection. See id. In Bennett, the Sixth Circuit held
that the public would have little interest in a racial slur that an employee of a
municipal police department posted on social media. Id. at 538–39. The court
contrasted the employee’s post with instances where governmental employees might
“expos[e] the innerworkings of government organizations to the public,” id. at 539—
speech arguably enjoying greater protection, see, e.g., See, 502 F.3d at 493 (collecting
cases) (describing a patrol officer’s statement to the FBI exposing possible corruption
95

in the police department as “exactly the type of statements that demand strong First
Amendment protections”).
Here, Ms. Buddenberg’s speech falls somewhere between the social media post
in Bennett and the patrol officer’s statements to federal investigators in See, but closer
to the latter. Although Ms. Buddenberg did not speak on political or policy matters
that lie at the core of the First Amendment’s protections, without question, speaking
about official misconduct favors the employee’s side of the balance. Lane, 573 U.S. at
242); Marohnic v. Walker, 800 F.2d 613, 616 (6th Cir. 1986). Ms. Buddenberg’s report
of a gender pay disparity and later of retaliation for making that report address
matters of public concern that the law protects. Although Ms. Buddenberg did not
report either publicly, at a public Board meeting or to the press as the public’s
representative, that fact does not alter the character of the issues on which she spoke.
All the facts and circumstances in the record on summary judgment, construed
in favor of Plaintiff, confirm the importance of Ms. Buddenberg’s speech and the
degree of protection it receives here. In making this determination, the Court weighs
the balance in favor of Plaintiff and disregards any mixed motivations
Ms. Buddenberg might have had in going to the Board. In doing so, the Court
recognizes that the legitimate interests of the government outweigh the employee’s
interest in disruptive speech made in furtherance of a “personal vendetta” where
public concern is “clearly subordinate.” McMurphy v. City of Flushing, 802 F.2d 191,
197–98 (6th Cir. 1986). But the parties contest Ms. Buddenberg’s motivations, so in

96

the current procedural posture the Court gives her the benefit of the doubt even
though a speaker’s motivation matters for purposes of Pickering balancing. See id.
I.A.3.b. The District’s Interests
Plaintiff primarily relies on the content of her speech to argue that the
government has no interest in restricting it. Specifically, she maintains that the
District has an equal interest in “revealing [Mr.] Weisdack’s wrongdoing and wanting
a properly functioning organization.” (ECF No. 221, PageID #12073.) In this view,
the character of Ms. Buddenberg’s speech on matters of public concern outweighs any
countervailing interest or motivation for her speech, as the Sixth Circuit previously
held. Buddenberg, 939 F.3d at 740.
But Plaintiff’s position sweeps too broadly. Factually, by reporting to the
Board, the proper authority with responsibility for oversight of the District,
Ms. Buddenberg evinced a recognition that the governmental employer has interests
at stake as well. Legally, Plaintiff cites several cases for the proposition that a
speaker’s motivation is immaterial for the Pickering analysis. (ECF No. 269, PageID
#15060–62.) However, the cases on which she relies address the relevance of the
speaker’s motivation in determining whether speech involves a matter of public
concern—not its weight in the Pickering balancing. In one, for example, the Sixth
Circuit noted that “consistent with the ‘content’ test of Connick, the pertinent
question [in the public concern analysis] is not why the employee spoke, but what he
said . . . .” Farhat v. Jopke, 370 F.3d 580, 591 (6th Cir. 2004). In another, the court
distinguished these inquiries: “[O]ur duty [under the public concern analysis prong]
is not to discern her underlying motivation, but rather to evaluate her point as it is
97

presented in the speech.” Rodgers v. Banks, 344 F.3d 587, 600 (6th Cir. 2003) (citing
Chappel, 131 F.3d at 575–76).
This distinction matters because speech might involve a matter of public
concern—notwithstanding a speaker’s motivations—and still fail under Pickering.
See Farhat, 370 F.3d at 594. In the Pickering balance, the Court need not consider
Plaintiff’s speech “in a vacuum; the manner, time, and place of the employee’s
expression are relevant, as is the context in which the dispute arose.” Rankin v.
McPherson, 483 U.S. 378, 388 (1987). Accordingly, an employee’s right to comment
on matters of public concern is not absolute to the point of compromising the
government’s interest in “harmony among coworkers,” maintaining “close working
relationships for which personal loyalty and confidence are necessary,” or “the regular
operation of the enterprise.” Id. at 388; see also Connick, 461 U.S. at 150.
Here, the record demonstrates that Defendants had real and substantial
interests in disciplining Ms. Buddenberg. In addition to those outlined to and by the
Board (ECF No. 195-19; ECF No. 204-13), the District has a legitimate interest in
maintaining a workplace capable of discharging its public duties effectively and
efficiently through its regular operations. Although Ms. Buddenberg raised matters
of public concern, by December 2016, the District took steps to address the pay
disparity (ECF No. 180-1, PageID #2073–74; ECF No. 197-42, PageID #6784) and
hired outside counsel to investigate Ms. Buddenberg’s concerns about Mr. Weisdack
that she raised during her initial report to the Board (ECF No. 195-1, PageID# 4876;
ECF No. 195-2, PageID #4878; ECF No. 196-47, PageID #5995).

98

Moreover, without question, Ms. Buddenberg and Mr. Weisdack had their
personal issues—even before her report to the Board. Ms. Buddenberg spoke “after
a persistent dispute between [her and Mr. Weisdack] over office . . . policy.” Connick,
431 U.S. at 154. In this respect, her reports to the Board regarding his conduct
threatened his authority, and the Board was within its rights to side with
Mr. Weisdack—rightly or wrongly—particularly in the face of several instances of
serious misconduct by Ms. Buddenberg. Among other things, she had personnel files
(hers and Mix’s) in her office without authorization and acted insubordinately toward
Mr. Weisdack in front of other District employees. (ECF No. 204-13, PageID #8991.)
The timing of Plaintiff’s speech bears on the inquiry too. Ms. Buddenberg
learned about the gender pay disparity some five months before she brought it to the
Board. Plaintiff thought it was “appropriate” finally to raise it when she had an
opportunity to address other aspects of Mr. Weisdack’s conduct—namely, the tire
contract. (ECF No. 203-1, PageID #8483, #8508, #8521–22 & #8541–42.) She claimed
that the “[t]iming on these tires was perfect”—because the issue came to a head as
Mr. Weisdack’s contract was up for renewal.

(ECF No. 205-5, PageID #9366.)

Plaintiff acted in no small part to prevent the rehiring of Mr. Weisdack, perhaps out
of a good-faith belief that the District would be better off without his leadership.
Unlike the police officer in Ashford though, this is not a case where Ms. Buddenberg
spoke publicly about policy or other matters that brought to light the inner workings
of government. 2024 WL 94275, at *7–8. Instead, she raised personnel matters,
admittedly important ones of public concern, within the meaning of the First

99

Amendment, where the government’s interests as an employer are at or near their
strongest. See Lane, 573 U.S. at 236.
Two remaining points merit a brief mention.
First, Plaintiff places great weight on her February 1, 2017 email about Mix’s
separation from the District. (ECF No. 194-29, PageID #4759.) In that email, which
ran more than six paragraphs, Ms. Buddenberg characterized the end of Mix’s
employment as a “dismissal” one time and as a resignation another. (Id.) In response,
Defendants inexplicably place even greater emphasis on what they argue is the falsity
of that statement. (See, e.g., ECF No. 217, PageID #11917; ECF No. 258, PageID
#14684.) In the most technical sense, Defendants might be right—Mix “resigned”
from his position at the District. (ECF No. 215-1, PageID #4664.) Factually, the
circumstances of his resignation make clear that he resigned rather than be fired. In
any event, Ms. Buddenberg is entitled to her commonsense opinion that Mix was
“dismissed.” Procedurally, construing the facts in favor of Plaintiff, she is entitled to
an inference that her opinion, expressed in the workplace, contrary to the official
position of the District motivated her discipline at least to some degree. In any event,
she is entitled to her opinion that Mix was fired—notwithstanding the technical label
the District used.

Indeed, reasonable minds might disagree about whether he

resigned or was fired as a practical matter.
On a different set of facts, where this email provided the only basis for
discipline, Plaintiff’s interests in speaking might arguably outweigh any
countervailing interest on the part of the employer in maintaining an efficient

100

workplace. In that scenario, as Plaintiff describes it, the Defendants “side of the
Pickering scale [would be] entirely empty.” (ECF No. 221, PageID #12073 (citing
Buddenberg, 939 F.3d at 740).) But that is not the record presented on summary
judgment. Ms. Buddenberg engaged in other instances of serious misconduct that
independently warranted discipline—separate and apart from her reports to the
Board or the contested email. For example, she improperly stored personnel files in
her office (ECF No. 210-4, PageID #11349–51 & #11356) and was insubordinate when
raising her voice at Mr. Weisdack in front of other District employees (id., PageID
#11329).

And other less egregious charges support discipline based on

Ms. Buddenberg’s admissions at the hearing. (See id., PageID #11331–33, #11343,
#11361 & #11369.)

Notwithstanding Defendants’ insistence on this email as a

justification for Ms. Buddenberg’s discipline, these other instances of misconduct tip
the Pickering balance against Plaintiff.
Second, Plaintiff maintains that Defendants have not met their burden in
demonstrating the disruptiveness of her speech. (ECF No. 269, PageID #15063–64.)
But the District did not have to wait for “events to unfold to the extent that the
disruption of the office and the destruction of working relationships is manifest.”
Connick, 614 U.S. at 152. Indeed, Mr. Weisdack was aware of the plan that Mix and
Ms. Buddenberg had to try to remove him from his position. (ECF No. 215-1, PageID
#11804.)

Even where an employee speaks on a matter of public concern, a

governmental employer’s reasonable predictions of disruption receive substantial
weight. Gillis v. Miller, 845 F.3d 677, 686 (6th Cir. 2017) (quoting Waters, 511 U.S.

101

at 673–74 (plurality opinion)). Actual disruption is not necessary. But the record
shows at least the early stages of insubordination and other misconduct on the part
of Ms. Buddenberg that would prompt the District to reasonably act to protect its
interests as an employer. After all, she undermined the Commissioner’s authority in
front of other employees and had personnel files in her office without authorization.
Such actions could reasonably disrupt operations at the District. See McMurphy, 802
F.2d at 198.
On

balance,

Plaintiff

attempts

to

“constitutionalize

[her]

employee

grievance”—which the law does not allow, regardless of the merits of her grievance.
Connick, 461 U.S. at 154. Nor does subjecting the balance of Plaintiff’s speech—on
the self-dealing tire contract or even Mr. Weisdack’s overbearing, intimidating, and
harassing management style—to the Pickering balance alter this conclusion. In the
end, Ms. Buddenberg’s interests in speaking as she did on all these matters does not
outweigh the District’s interests as an employer and those of its Board. In its broader
context, based on the record construed in Plaintiff’s favor on summary judgment,
Ms. Buddenberg’s speech reflects an unprotected internal personnel dispute and
“touch[es] upon matters of public concern in only a most limited sense.” Connick, 461
U.S. at 152–54. “Prolonged retention of a disruptive or otherwise unsatisfactory
employee can adversely affect discipline and morale in the workplace, foster
disharmony, and ultimately impair the efficiency of an office or agency.” Id. at 151.
For all these reasons, Plaintiff’s First Amendment retaliation claim fails as a matter
of law.

102

I.A.4. Remaining Issues
To resolve the parties’ cross-motions for summary judgment on Plaintiff’s First
Amendment retaliation claim, the Court addresses two remaining loose ends.
I.A.4.a. Plaintiff’s Monell Claim
On a theory that Mr. Weisdack, the Board, and Mr. Budzik ratified illegal
actions against her, Plaintiff brings a claim against the District under Monell v.
Department of Social Services, 436 U.S. 658 (1978). She argues that the District
failed to train Mr. Weisdack and that the District had a custom of tolerating “serial
civil-rights violations over seven months against” her.

(ECF No. 221, PageID

#12078–80.) Defendants argue that Plaintiff’s Monell claim fails because there is no
underlying constitutional violation or any pattern of past constitutional violations.
“Monell holds that municipalities may be liable for the constitutional violations
of their employees only where the municipality’s policy or custom led to the violation.”
Roberston v. Lucas, 753 F.3d 606, 622 (6th Cir. 2014) (citing Monell, 436 U.S. at
694–95). A plaintiff can demonstrate that a municipality had a policy, practice, or
custom that caused the constitutional violation under Monell in four different ways:
“(1) the existence of an illegal official policy or legislative enactment; (2) that an
official with final decision making authority ratified illegal actions; (3) the existence
of a policy of inadequate training or supervision; or (4) the existence of a custom of
tolerance or acquiescence of federal rights violations.” Burgess v. Fischer, 735 F.3d
462, 478 (6th Cir. 2013).
Plaintiff’s conclusory arguments that Defendants had a custom or practice of
violating her civil rights over time or failed to train Mr. Weisdack doubles as a First
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Amendment claim against the District. See id. But there can be no Monell liability
without an underlying constitutional violation. Wilson v. Morgan, 477 F.3d 326, 340
(6th Cir. 2020).

Here, because Plaintiff cannot establish her First Amendment

retaliation claim as a matter of law, there can be no municipality liability under any
of these theories. Id. “If a person has suffered no constitutional injury at the hands
of [an individual officer], the fact that departmental regulations might have
authorized [unconstitutional conduct to occur] is quite beside the point.” City of Los
Angeles v. Heller, 475 U.S. 796, 799 (1986). For these reasons, that claim fails too.
I.A.4.b. First Amendment Claim Against Mr. Budzik
Plaintiff’s inclusion of Mr. Budzik as a Defendant presents additional issues
that bear on summary judgment. As it relates to Plaintiff’s First Amendment claim,
the parties disagree about Mr. Budzik’s role (ECF No. 216-3, PageID #11834; ECF
No. 259, PageID #14709–10; ECF No. 263, PageID #14857–60), and the record fails
to resolve the matter definitively. In the current procedural posture, the Court
construes the record in Plaintiff’s favor in this regard and adopts Plaintiff’s factual
characterization: “Budzik went from chaperone to standing in Weisdack’s shoes.”
(ECF No. 263, PageID #14858.) In this regard, Plaintiff argues that Mr. Budzik
became a State actor based on a nexus theory where the private party’s conduct is
“fairly attributable to the state.” (Id., PageID #14901–06 (citing Lindsey v. Detroit
Ent., LLC, 484 F.3d 824, 827 (6th Cir. 2007).)
At the pleading stage, the Court held that Plaintiff had sufficiently alleged that
Mr. Budzik was a State actor. Buddenberg, 2018 WL 3159052, at *3–4. Mr. Budzik
contends that he is not a State actor as a matter of law because “federal courts have
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‘emphatically rejected’ claims that attorneys may be considered state actors against
whom an allegation of deprivation of constitutional rights . . . can be properly lodged.”
(ECF No. 216-3, PageID #11848–49 (collecting cases).)
A public official is a State actor where he acts in pursuit of fulfilling
“governmental duties or [is] cloaked in the [State’s] authority,” including when his
“actions are controlled by the government.” Lindke v. Freed, 37 F.4th 1199, 1203 (6th
Cir. 2022).

Generally, attorneys do not become State actors through mere

representation of State or local governments. Horen v. Board of Educ. of Toledo City
Sch. Dist., 594 F. Supp. 2d 833, 841 (N.D. Ohio 2009); Freshwater v. Mount Vernon
City Sch. Dist. Bd. of Educ., No. 2:09-cv-464, 2010 WL 1434314, at *2 (S.D. Ohio Apr.
8, 2010); see also Polk Cnty. v. Dodson, 454 U.S. 312, 318–21 (1981) (holding that a
public defender employed by the State does not act under color of state law).
Because the Court determined that Defendants are entitled to summary
judgment on Plaintiff’s First Amendment retaliation claim for the reasons explained,
the Court need not wade into the parties’ respective arguments on whether
Mr. Budzik was a State actor on the record presented in this case. Even assuming
he was, Ms. Buddenberg’s speech is not protected under the First Amendment as a
matter of law; therefore, Mr. Budzik has no liability on that claim in any event. See
Mayhew, 856 F.3d at 464 (holding that a viable First Amendment retaliation claim
requires that the plaintiff engage in constitutionally protected speech).
I.B.

Other Retaliation Claims (Counts 1 and 3)

Based on her reports to the Board and the EEOC, Plaintiff brings two other
federal retaliation claims: one under Title VII (Count 1) and the other under the Fair
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Labor Standards Act (Count 3). Plaintiff does not claim that she was subject to
unequal pay based on her sex.

Instead, Ms. Buddenberg raised complaints of

discrimination on behalf of a third party, the District’s female employee who was paid
less than her male counterpart.
Both Title VII and the FLSA protect employees who advocate on behalf of their
coworkers. See Johnson v. University of Cincinnati, 215 F.3d 561, 575 (6th Cir. 2000)
(Title VII); Pettit v. Steppingstone, 429 F. App’x 524, 530 (6th Cir. 2011) (FLSA).
Title VII prohibits retaliatory employment actions against employees who oppose,
make a charge of, or participate in proceedings relating to workplace practices that
violate the statute. See 42 U.S.C. § 2000e-3(a). Similarly, the FLSA’s anti-retaliation
provision provides that it “shall be unlawful for any person . . . to discharge or in any
other manner discriminate against any employee because such employee has filed
any complaint . . . under or related to this chapter.” 29 U.S.C. § 215(a)(3).
The same general legal framework governs both claims. To prevail, a plaintiff
must show either direct or circumstantial evidence of retaliation. See Laster v. City
of Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014) (Title VII retaliation); Adair v.
Charter Cty. of Wayne, 452 F.3d 482, 489 (6th Cir. 2006) (FLSA retaliation).
I.B.1. Direct Evidence
“Direct evidence is that evidence which, if believed, requires the conclusion that
unlawful retaliation was a motivating factor in the employer’s action.” Abbott v.
Crown Motor Co., 348 F.3d 537, 542 (6th Cir. 2003) (emphasis added). Direct evidence
is not subject to more than one plausible interpretation and proves the existence of a
fact without any inferences or presumptions. Kocak v. Community Health Partners
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of Ohio, Inc., 400 F.3d 466, 470 (6th Cir. 2005). Only the most blatant remarks
revealing retaliatory intent satisfy Plaintiff’s burden.

See Mansfield v. City of

Murfreesboro, 706 F. App’x 231, 235 (6th Cir. 2017) (quoting Sharp v. Aker Plant
Servs. Grp., Inc., 726 F.3d 789, 798 (6th Cir. 2013)).
Plaintiff argues that she has direct evidence of retaliation. (ECF No. 259,
PageID #14745.) Specifically, she points to her February 1, 2017 email to Ms. Livers
regarding Mix’s departure from the District. Within the six full paragraphs of that
email, Ms. Buddenberg writes, “I cannot help but believe Dan’s dismissal was directly
a result of my reporting and his defending me for reporting.” (ECF No. 194-29,
PageID #4759.) In its position statement before the EEOC, the District cites this
email as one basis for disciplining Ms. Buddenberg. (ECF No. 195-36, PageID #5282.)
Plaintiff argues that Defendants’ reliance before the EEOC on this email, in which
she expressed her opinion regarding the reason for Mix’s separation from
employment, demonstrates unlawful retaliation as a matter of law because the
District admits imposing discipline based on Ms. Buddenberg’s speech contained in
the email. (See ECF No. 221, PageID #12077–78 & #12091–92.)
Defendants deny that the record contains any direct evidence of retaliation.
(ECF No. 267, PageID #14988.) They argue that the position statement submitted to
the EEOC is not a binding admission and that it contains inadmissible hearsay. (ECF
No. 258, PageID #14687.) For purposes of summary judgment, the Court treats the
District’s position statement before the EEOC as an admission of a party opponent.
See Fed. R. Evid. 802(d)(2). Defendants reference no authority that such statements

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cannot contain admissions or bind a party in later proceedings. In any event, Plaintiff
does not offer the email as a statement for the truth of the matter asserted (that Mix
did not resign and was fired).

Instead, it arguably provides some evidence of

retaliation or Defendants’ retaliatory motive.
To prevail on a direct-evidence theory, the District’s statements must require
the conclusion that Ms. Buddenberg was retaliated against for reporting retaliation
against Mix, which was caused by her reports on the gender pay disparity. See
Abbott, 348 F.3d at 542. The District’s position statement at the EEOC stated that
Ms. Buddenberg’s opinion about the reason for Mix’s separation from employment,
communicated to a member of the Board provided an appropriate basis for discipline:
On February 1, 2017, Ms. Buddenberg sent an email to Board of
Health member Christina Livers stating that she believed former
Administrator Dan Mix had been terminated due to Ms. Buddenberg’s
prior report of alleged pay discrimination. A copy of that email is
attached as Exhibit I. Mr. Weisdack was not copied on that email and
has no knowledge of that email.
Mr. Mix was not terminated, but rather resigned his employment
effective February 1, 2017 in lieu of disciplinary action.
Ms. Buddenberg’s statement that he was terminated was false and an
appropriate basis for discipline.
(ECF No. 195-36, PageID #5282.)
The EEOC position statement does not constitute direct evidence of retaliation.
The email at issue details Plaintiff’s concerns about retaliation waged against Mix.
Without question, reporting retaliation constitutes protected activity under Title VII
and the FLSA. Still, citing this email as one basis for disciplining Ms. Buddenberg
does not constitute direct evidence. To understand why, consider the case of Johnson
v. Kroger Co., 319 F.3d 858 (6th Cir. 2003). There, the Sixth Circuit determined that
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four statements about an African American employee did not amount to direct
evidence of discrimination because of race. Those statements included a manager’s
expression of “concern about the potentially detrimental effect on business of having
an African-American comanager” and performance reviews that the employee lacked
initiative and ability.

But these statements did not provide direct evidence of

discrimination because they required inferential reasoning—for example, that the
decisionmakers attributed the employee’s lack of initiative to his race and not his
actual performance. Id. at 865. Here, concluding that the email amounts to direct
evidence requires additional inferences, for example, that the Board disciplined
Ms. Buddenberg because she reported retaliation and not out of a concern about what
she was telling her colleagues and co-workers if she articulated to a Board member
what the District considered false information and the resulting effect on morale
among other employees.
In contrast, direct evidence compels a conclusion that unlawful retaliation was
a motivating factor in an employee’s discipline. See Johnson, 215 F.3d at 577 n.7
(determining that the statement “[w]e already have two black vice presidents. I can’t
bring in a black provost” presented direct evidence of discrimination).

But the

question is close. A supervisor’s “specific reference [to the employee’s] protected
statements as examples of insubordination” when terminating the employee provides
direct evidence. Yazidan v. ConMed Endoscopic Techs., Inc., 793 F.3d 634, 648 (6th
Cir. 2015). Arguably, the District’s EEOC position statement meets this standard.
It cites the email containing Ms. Buddenberg’s speech as one basis for her discipline.

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By citing Plaintiff’s “protected statements as examples of insubordination,” id., a
reasonable jury might conclude under the law of this Circuit that retaliation was a
“motivating factor” in Plaintiff’s discipline, Abbott, 348 F.3d at 542.
Even if the position statement provides direct evidence of unlawful retaliation,
the burden shifts to the employer to prove by a preponderance of the evidence that it
would have made the same decision absent the impermissible motive.” Chattman v.
Toho Tenax Am., Inc., 686 F.3d 339, 346–47 (6th Cir. 2012) (internal quotation marks
and citation omitted). Defendants must produce sufficient evidence to remove any
genuine issue or doubt that they would have disciplined Plaintiff regardless of any
improper motive. See Weigel v. Baptist Hosp. of E. Tenn., 302 F.3d 367, 382 (6th Cir.
2002). Here, the record even construed in Plaintiff’s favor leaves no doubt that the
District would have imposed the same discipline on Plaintiff regardless of her email.
As already discussed, the severity of her other charges—including improper storage
of personnel files in her office and insubordination in front of Mr. Weisdack and other
employees—demonstrates conduct sufficiently serious as to warrant the imposition
of discipline. No reasonable jury could find otherwise. Therefore, even if the District’s
position statement to the EEOC and its reliance on Ms. Buddenberg’s email to
Ms. Livers on February 1, 2017, treated as admissible for purposes of summary
judgment, presents direct evidence, Plaintiff’s claims of retaliation under Title VII
and the FLSA based on direct evidence fail as a matter of law.
I.B.2. Circumstantial Evidence
Because Plaintiff fails to prove her claims with direct evidence of retaliation,
the Court continues the analysis by applying the burden-shifting framework of
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McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Jackson v. VHS Detroit
Receiving Hosp., Inc., 814 F.3d 769, 775–76 (6th Cir. 2016). Under that framework,
the plaintiff must first present a prima facie case of retaliation. Id.
To establish a prima facie case of retaliation under Title VII, Plaintiff must
demonstrate that:

(1) she engaged in activity protected by Title VII; (2) the

defendants knew that she engaged in protected activity; (3) the defendants took an
action that was “materially adverse” to the plaintiff; and (4) a causal connection
existed between the protected activity and the materially adverse action. Laster, 746
F.3d at 730 (citations omitted). Similarly, to establish a prima facie case of retaliation
under the FLSA, an employee must establish: (1) participation in an activity that the
Fair Labor Standard Act protects; (2) the employer’s knowledge of the employee’s
exercise of this right; (3) an adverse employment action; and (4) a causal connection
between the protected activity and the adverse employment action. Adair, 452 F.3d
at 489.
Here, the District Defendants do not dispute that Plaintiff engaged in
protected activity when she reported the gender pay disparity and retaliation to the
Board and that the District was aware of her reports. Defendants dispute only factors
three and four—that Ms. Buddenberg experienced an adverse employment action and
the causal connection between any such adverse action and her protected activity.
I.B.2.a. Adverse Employment Action
Defendants argue that Plaintiff did not suffer an adverse employment action
because she resigned before any constructive discharge, her “planned demotion” does
not qualify as an adverse action, and she failed to exhaust her internal appeals. (ECF
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No. 217, PageID #11925–27 & #11931.) Further, they add that the other matters
Plaintiff cites as evidence of retaliation, like Mr. Weisdack’s generally rude behavior,
are too trivial to qualify as “adverse.” (Id., PageID #11933–34.) Plaintiff responds
that “[u]nder any standard,” she faced a series of adverse employment actions. (ECF
No. 221, PageID #12088–91.)
I.B.2.a.i. Plaintiff’s Demotion
Under Title VII, demonstrating a “materially adverse employment action”
requires a showing that “a reasonable employee would have found the challenged
action materially adverse, which in this context means it well might have dissuaded
a reasonable worker from making or supporting a charge of discrimination.” Laster,
746 F.3d at 731 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006)). The context of any retaliation act matters, and the Court must consider the
“constellation of surrounding circumstances, expectations, and relationships”
involved. Burlington N., 548 U.S. at 69. The same general principles apply to
determining whether a plaintiff suffered a materially adverse action under the FLSA.
Id. at 66.
Examples of materially adverse employment actions include “termination of
employment, a demotion evidenced by a decrease in wage or salary, a less
distinguished title, a material loss of benefits, significantly diminished material
responsibilities, or other indices that might be unique to a particular situation.”
Adair, 452 F.3d at 490. Here, Plaintiff has presented evidence that she was demoted
to a lesser position, suffered a pay cut, and lost accrued sick leave and vacation time.
(See ECF No. 204-13, PageID #8990–92; ECF No. 31, ¶ 124, PageID #396; ECF
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No. 37, ¶ 86, PageID 467; ECF No. 195-14, PageID #5074.) Plaintiff has established
that she suffered a “materially adverse employment action” because a reasonable jury
could find that her demotion “might well have dissuaded a reasonable worker from
making or supporting a charge of discrimination.” Laster, 746 F.3d at 731.
Defendants’ argument that Plaintiff’s harm never manifested because she
resigned before ever working in her demoted position is unavailing. Most of the
controlling case law on which they rely deals with discrimination claims. Proving an
adverse action under a retaliation claim is “less onerous” than in the discrimination
context because, for retaliation, a plaintiff need only clear a “relatively low bar.”
Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 595–96 (6th Cir. 2007). Under
the law of this Circuit, the more liberal definition of an adverse action for retaliation
claims “permits actions not materially adverse for purposes of an anti-discrimination
claim to qualify as such in the retaliation context.” Id. at 596. For example, a
“supervisor’s refusal to invite an employee to lunch is normally trivial, a
nonactionable petty slight,” but under certain circumstances, that exclusion could
amount to a materially adverse retaliation action. See Burlington N., 548 U.S. at 69.
Defendants rely on Kocsis v. Multi-Care Management Inc., 97 F.3d 876 (6th
Cir. 1996). (ECF No. 217, PageID #11931; ECF No. 258, PageID #14685.) There, the
Sixth Circuit held that a nurse did not suffer a materially adverse employment action
after being transferred to a new unit, partly because she never made a “real attempt
to compare the two positions before she filed her discrimination claim.” Id. at 887.
But Kocsis is distinguishable from Plaintiff’s case for two reasons. First, it was a suit

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for discrimination—not retaliation—under the Americans with Disabilities Act, so
the nurse’s alleged adverse actions had to satisfy a higher standard. Second, the
nurse’s new position came with the “same (or a greater) rate of pay and benefits, and
her duties were not materially modified.” Id. at 886–87.
Here, Plaintiff’s demotion came with a pay cut and loss of certain benefits, and
her duties became more clerical. She suffered more than a “de minimis employment
action.” Bowman v. Shawnee State Univ., 220 F.3d 456, 462 (6th Cir. 2000). It is
immaterial on this record that Plaintiff never worked a day in her new position nor
received a paycheck at the decreased rate. Plaintiff’s demotion clears the “relatively
low bar” needed for her retaliation claim. Michael, 496 F.3d at 584.
Plaintiff alleges that she suffered from a slew of other adverse actions,
including the change in her work hours, Mr. Weisdack and other employees’
treatment of her, the disciplinary charges and pre-disciplinary hearing, and the
Defendants’ treatment of Mix. (ECF No. 221, PageID #12088–90.) But because she
has established her prima facie case for the adverse employment action on other
grounds, the Court need not decide whether these other actions qualify as materially
adverse. See Adair, 452 F.3d at 490.
I.B.2.a.ii. Exhaustion of Internal Appeals
Next, Defendants argue that Plaintiff failed to exhaust the internal appeals
process within the District before pursuing this lawsuit; therefore, her demotion
cannot be “an adverse employment action until those [appeals] are exhausted.” (ECF
No. 217, PageID #217 (citing Benison v. Ross, 765 F.3d 649, 655 (6th Cir. 2014).)
Benison involved a First Amendment retaliation claim of a college professor who was
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denied a promotion. The Sixth Circuit held that, because the professor still had
“several layers of internal review” for the denial of her promotion, she had not
suffered an adverse action. Id. at 659–60. Benison is distinguishable from Plaintiff’s
case on two bases. First, the standard for a First Amendment retaliation claim is
“distinct from the adverse-action used in traditional employment discrimination
claims, and the court must tailor the analysis . . . to the circumstances of this specific
retaliation claim.” Id. at 659 (cleaned up). Second, the denial of the professor’s
promotion was a “non-binding ‘intermediate decision.’” Id. at 659–60. No facts of
record here suggest that Plaintiff’s demotion and pay cut were not final decisions.
Indeed, the District implemented the disciplinary actions that the Board approved.
While Plaintiff did prematurely dismiss her appeals, she was under no
obligation to pursue them further. Plaintiff exhausted her administrative remedies
under Title VII when she timely filed her charge with the EEOC and received a rightto-sue letter. See Puckett v. Tennessee Eastman Co., 889 F.2d 1481, 1486 (6th Cir.
1989). (ECF No. 213-1, PageID #11742; ECF No. 213-2, PageID #11743.) The FLSA
has no exhaustion requirement or other procedural barrier to filing suit in federal
court. Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 740 (1981).
Therefore, a failure to exhaust her administrative appeals does not defeat Plaintiff’s
prima facie case.
I.B.2.a.ii. Constructive Discharge
Plaintiff does not raise a separate constructive discharge claim. Instead, she
characterizes her “constructive discharge” as part of the adverse employment action
needed to fulfill her prima facie case. (See generally ECF No. 31; ECF No. 221,
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PageID #12065; ECF No. 259, PageID #14733–35.) On the other hand, Defendants
treat Plaintiff’s allegations of constructive discharge as a separate claim, which
carries a higher burden. (See ECF No. 217, PageID #11925.) Some courts treat
constructive discharge claims as satisfying the element of the prima facie case for
retaliation requiring that a plaintiff experience an adverse employment action. See,
e.g., Jemison v AFIMAC Global, 645 F. Supp. 3d 781, 799–800 (N.D. Ohio 2022).
Whatever the case, the record on summary judgment construed in Plaintiff’s favor
allows Plaintiff to carry her burden on this element of her prima facie case based on
her demotion, change in duties, and reduction in responsibilities and salary.
Therefore, the Court need not decide whether she suffered a constructive discharge.
I.B.2.b. Causation
Turning to this element of Plaintiff’s prima facie case, the parties start by
disputing the burden each bears on summary judgment. Plaintiff argues that, at the
summary judgment stage, the question is whether Defendants can rule out “a causal
connection between any particular set of acts,” not whether she can prove her prima
facie case. (ECF No. 259, PageID #14744.) In response, Defendants argue that any
plaintiff has the burden to “set forth facts showing that there is a genuine issue for
trial.” (ECF No. 267, PageID #14987 (citing Celotex Corp., 477 U.S. at 331).) Further,
they maintain that Plaintiff’s “shotgun pleading approach” prevents her from
establishing a prima facie case of retaliation. (ECF No. 217, PageID #11934–36.)
Under the McDonnell Douglas framework, the plaintiff always carries the
initial burden of proving her prima facie case. See Imwalle v. Reliance Med. Prods.,
Inc., 515 F.3d 531, 544 (2008). Because of that initial burden, a defendant can
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demonstrate that it is entitled to judgment as a matter of law by pointing out that
there is “an absence of evidence to support the [plaintiff’s] case.” Celotex Corp., 477
U.S. at 325. In the Court’s view, these standards are not in tension.

Under

longstanding summary-judgment practice, a defendant need not eliminate or rule out
issues of fact to prevail. Instead, as Defendants suggest, Plaintiff must produce or
point to specific facts in the record demonstrating a genuine issue for trial. See
Anderson, 477 U.S. at 247–48. For these reasons, Plaintiff’s burden on the elements
of her prima facie case, including causation, and on summary judgment when
Defendants point to an absence of evidence align.
I.B.2.b.i. Plaintiff’s Burden
Based on the parties’ arguments, one might fairly, but mistakenly, analyze the
causation element of Plaintiff’s prima facie case on either her Title VII or FLSA claim
through the lens of the extensive record on summary judgment on Plaintiff’s First
Amendment retaliation claim. To prove causation in a Title VII or FLSA retaliation
case, a plaintiff must show that the employee’s protected activity was a “but-for
cause” of the employer’s adverse action against him, meaning the adverse action
would not have occurred absent the employer’s desire to retaliate. University of Texas
Southwestern Med. Ctr. v. Nassar, 570 U.S. 338, 352 (2013) (Title VII retaliation);
Mansfield, 706 F. App’x at 236 (FLSA retaliation).

Put simply, the Title VII

retaliation claim requires a Title VII causation analysis.

And the FLSA claim

requires an FLSA causation analysis. Each of which differs from that for a First
Amendment retaliation claim.

After all, a First Amendment retaliation claim

requires that a defendant’s retaliatory acts must have been “motivated in substantial
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part by a desire to punish an individual for exercise of a constitutional right” and that
the plaintiff’s protected activity proximately caused the adverse actions. See King v.
Zamiara, 680 F.3d 686, 694–95 (6th Cir. 2012) (citations omitted).
In other words, the focus of the Title VII inquiry is whether Defendants took
an adverse employment action against an employee because of certain, specified
protected criteria—in this case, because of sex. Nassar, 570 U.S. at 352. Plaintiff
must have suffered an adverse action because she opposed sex discrimination
affecting another employee. 28 U.S.C. § 2000e-3(a). And that statutorily protected
activity must be the but-for cause of Defendants’ retaliation. Similarly, the focus of
the FLSA inquiry is whether Plaintiff suffered an adverse action because of her
complaints about Defendants’ unfair labor practices. See Pettit, 429 F. App’x at 530;
29 U.S.C. § 215(a)(3). At bottom, these two inquiries depend on the enforcement of
the rights that these statutes protect, which are separate and distinct from the rights
that the First Amendment secures. These different statutory and constitutional
protections have different causation requirements.
Here, no specific evidence in the record demonstrates that Defendants took
retaliatory actions against Ms. Buddenberg based on her opposition to sex
discrimination. Put another way, the record on summary judgment has an absence
of evidence that Ms. Buddenberg’s report to the Board of a gender pay disparity was
the but-for cause of any of the actions by Defendants of which Plaintiff complains.
Similarly, no evidence shows that Defendants took any adverse employment action
because of Ms. Buddenberg’s complaints about pay practices or unfair wages.

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Plaintiff argues that her direct evidence of retaliation, the EEOC position
statement, constitutes an admission of a causal connection between the adverse
employment actions she experienced and her reports to the Board. (ECF No. 221,
PageID #12091–92.) Although the question whether the District’s EEOC position
statement constitutes direct evidence of retaliation presents a close call, Plaintiff’s
reliance on it as an admission of causation under the McDonnell Douglas framework
does not defeat Defendants’ motion for summary judgment.

Even if the EEOC

position statement serves to satisfy her burden of production for purposes of
Plaintiff’s prima facie case, practice under Rule 56 requires a plaintiff to point to
specific facts in the record to withstand summary judgment. Because the District’s
EEOC position statement sweeps broadly and responds to a litany of charges, the
majority having nothing to do with sex discrimination or unfair labor practices,
pointing to it fails to identify specific facts for trial on these claims. Doing so amounts
to little more than pointing to the extensive record in this case and arguing that it
must contain a triable issue somewhere. In the end, when it comes to causation on
her Title VII and FLSA retaliation claims, Plaintiff points to no disputed facts to
rebut Defendants’ argument that the record contains an absence of evidence to
support the causation element of her prima facie case.
I.B.2.b.ii. Intervening Cause
Under the law of this Circuit, an intervening cause between protected activity
and an adverse employment action dispels any inference of causation. See Kenney v.
Aspen Techs., Inc., 965 F.3d 443, 450 (6th Cir. 2020). In this case, Ms. Buddenberg
engaged in other (mis)conduct leading to six other disciplinary charges. All occurred
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after her initial report to the Board, and four came after her email to Ms. Livers on
February 1, 2017. None relates to activity protected under Title VII or the FLSA.
Even if the Court assumed that Plaintiff established her prima facie case based
on the reference to her protected activity in the District’s EEOC position statement,
the record contains no evidence that Defendants would not have disciplined
Ms. Buddenberg based on the independent reasons the District advanced, including
for “insubordination,” “malfeasance,” and “neglect of duty.” (ECF No. 195-19, PageID
#5169–70.) Put another way, regardless of her protected activity, the record provides
every reason to believe that the District would have disciplined Ms. Buddenberg
based on any one of a number of legitimate grounds. Moreover, no evidence in the
record suggests that Ms. Buddenberg would have suffered any adverse action if the
February 1 email were the only basis for discipline—and Plaintiff points to no facts
that would raise a dispute about the point.

For these reasons, the evidence of

intervening causation in the record dispels any inference of causation, entitling
Defendants to judgment as a matter of law.
Two last points on this issue.
First, in the EEOC position statement, the District describes Ms. Buddenberg’s
statement in her February 1, 2017 email to Ms. Livers about the reason for Mix’s
separation from employment as “an appropriate basis for discipline.”

(ECF

No. 195-36, PageID #5282.) Plaintiff characterizes this statement as an admission
that this email was the “sole basis” for her discipline. (ECF No. 221, PageID #12078.)
This argument fails because substantially similar language accompanied the other

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disciplinary charges, describing each as an “appropriate basis for discipline” (or words
to the same effect). (See, e.g., ECF No. 258, PageID #14686–88.) If anything, this
language confirms that the District disciplined Ms. Buddenberg for multiple reasons
and demonstrates the lack of a but-for causation related to Plaintiff’s reports of a
gender pay disparity and related retaliation. See Kenney, 965 F.3d at 450.
Second, Plaintiff relies on the entirety of the summary judgment record, which
she contends demonstrates “ample evidence of a causal connection between her
protected activities and several of the Defendants’ retaliatory acts.” (ECF No. 259,
PageID #14745.) Such an argument is not proper in summary judgment practice. “It
is not sufficient for a party to mention a possible argument in the most skeletal way,
leaving the court to . . . put flesh on its bones.” McPherson v. Kelsey, 125 F.3d 989,
995–96 (6th Cir. 1997). Even so, the record on the causation element of Plaintiff’s
prima facie case for her Title VII and FLSA claims shows that Plaintiff only relies on
a direct evidence theory. (See ECF No. 221, PageID #12091–92.)
In the end, the parties do not contest that Ms. Buddenberg engaged in activity
that Title VII and the FLSA protect, and the record demonstrates that she received
discipline that, as a matter of law, constitutes a materially adverse employment
action. But these determinations alone do not suffice for Plaintiff to establish her
prima facie case.

Plaintiff’s direct evidence theory fails to establish a causal

connection, and the other disciplinary charges constitute intervening actions,
dispelling any inference of causation. Because Plaintiff fails to demonstrate that her
protected activity was the but-for cause of her adverse employment action, she has

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not met her burden to come forward with evidence supporting a prima facie case of
retaliation, and Defendants are entitled to summary judgment on these claims.
Kenney, 965 F.3d. at 451.
I.B.3. Other Retaliation Claims Against Mr. Budzik
Plaintiff does not bring her Title VII claim against Mr. Budzik. (See ECF
No. 31, PageID #398.) But she does assert her FLSA retaliation claim against him.
(Id., PageID #403.) Mr. Budzik argues that Plaintiff cannot maintain an FLSA claim
against him because he was not an “employer” as defined under that statute. (ECF
No. 216-3, PageID #11845–48.) Plaintiff counters that Mr. Budzik qualifies as an
employer under the statute under the “broad” definition of that term. (ECF No. 263,
PageID #14895.)
As with Plaintiff’s First Amendment retaliation claim against Mr. Budzik, the
Court need not decide whether he was an “employer” within the meaning of the Fair
Labor Standards Act. Plaintiff’s FLSA retaliation claim fails as a matter of law
because she cannot establish her prima facie case. Therefore, she cannot separately
maintain this claim against Mr. Budzik either.
II.

State-Law Claims
“When all federal claims are dismissed before trial, the balance of

considerations usually will point to dismissing the state law claims.” Musson
Theatrical, Inc. v. Federal Express Corp., 89 F.3d 1244, 1254 (6th Cir. 1996).
Pursuant to 28 U.S.C. § 1367(c)(3), the Court “may decline to exercise supplemental
jurisdiction over a claim . . . if . . . [it] has dismissed all claims over which it has
original jurisdiction.” Because comity to State courts is a substantial interest, there
122

is “a strong presumption against the exercise of supplemental jurisdiction once
federal claims have been dismissed.” Packard v. Farmers Ins. Co. of Columbus, 423
F. App’x 580, 584 (6th Cir. 2011). The Court should retain jurisdiction “only in cases
where the interests of judicial economy and the avoidance of multiplicity of litigation
outweigh [the] concern over needlessly deciding state law issues.” Id. (quoting Moon
v. Harrison Piping Supply, 465 F.3d 719, 728 (6th Cir. 2006)).
The discretion to decline supplemental jurisdiction over State-law claims
extends to all stages of litigation, including summary judgment. See Booker v. City
of Beachwood, 451 F. App’x. 521, 523 (6th Cir. 2011) (citing Nails v. Riggs, 195 F.
App’x 303, 313 (6th Cir. 2006)). In exercising this discretion, the Court may consider
the convenience to the parties and judicial economy in resolving the case. Long v.
Bando Mfg. of Am., Inc., 201 F.3d 754, 761 (6th Cir. 2000). Here, given the length of
time this case has been pending, the complexity of the record, and the effort and
resources that the parties invested in developing the record and briefing the merits
of the State-law causes of action, the Court finds that judicial economy, convenience
to the parties, avoiding needlessly prolonging the litigation of this dispute, and
fundamental fairness outweigh the interest of comity and overcome the strong
presumption against the exercise of supplemental jurisdiction after adjudication of
the federal claims. For these reasons, the Court exercises its discretion to proceed to
the State-law claims presented.
II.A. Ohio Retaliation Claims (Count 2 and Count 4)
Section 4112.02(I) of the Ohio Revised Code makes it an unlawful
discriminatory practice for “any person to discriminate in any manner against any
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other person because that person has opposed any unlawful discriminatory practice
defined in this section.” This language mirrors that of Title VII. See 42 U.S.C.
§ 2000e–3(a). Because of the statutes’ similar language and origins, courts recognize
that federal law provides the applicable analysis for reviewing retaliation claims
under Section 4112.02(I). Abbott v. Crown Motor Co., Inc., 348 F.3d 537, 541 (6th Cir.
2003) (citing Plumbers & Steamfitters Joint Apprenticeship Comm. v. Ohio Civil
Rights Comm’n, 66 Ohio St. 2d 192, 196, 421 N.E.2d 128 (1981)). Accordingly,
Defendants are entitled to a summary judgment on Plaintiff’s claim under
Section 4112.02(I) (Count 2) for the same reasons explained above—Plaintiff failed to
establish a prima facie case as a matter of law under Title VII.
Ohio’s Minimum Fair Wage Standards Act prohibits sex-based wage
discrimination. Ohio Rev. Code. § 4111.17(A). Section 4111.17(D) creates a cause of
action to enforce the rights protected under the statute. Defendants contend that the
protections of this statute do not extend to employees reporting unequal pay practices
on behalf of their coworkers. (ECF No. 217, PageID #11939.) Plaintiff responds that
there “is no statutory warrant” for restricting “the class of employees” covered by this
statute. (ECF No. 259, PageID #14755.) Ohio courts look to interpretations of the
Fair Labor Standards Act when interpreting the State’s Minimum Fair Wage
Standards Act. See Birch v. Cuyahoga Cnty. Probate Court, 392 F.3d 151, 161 (6th
Cir. 2004). Therefore, the Court reads the Ohio statute to protect third-party wage
discrimination claims to the same extent as the FLSA. See Pettit, 429 F. App’x at
530. Like Plaintiff’s claim under Section 4112.02(I), her State-law wage claim rises

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and falls with its federal counterpart. Birch, 392 F.3d at 161. Therefore, because
Plaintiff’s prima facie case under the FLSA fails as a matter of law, so too does her
claim under Section 4111.17(D) (Count 4).
II.B. Discrimination, Ohio Rev. Code §§ 4112.02(J) & 4112.99 (Count 9)
Section 4112.02(J) of the Ohio Revised Code makes it unlawful for any person
“to aid, abet, . . . the doing of any act declared by this section to be an unlawful
discriminatory practice, to obstruct or prevent any person from complying with this
chapter or any order issued under it, or to attempt directly or indirectly to commit
any act declared by this section to be an unlawful discriminatory practice.” Section
4112.02(J) extends liability to any person who aids or abets an unlawful
discriminatory practice. Accordingly, employees may “be held liable for aiding and
abetting [their] employer’s discriminatory or retaliatory practices.”

Siwik v.

Cleveland Clinic Found., No. 1:17-cv-1063, 2019 WL 1040861, at *27 (N.D. Ohio
Mar. 5, 2019) (citing Hauser v. Dayton Police Dep’t, 140 Ohio St. 3d 268, 2014-Ohio3636, 17 N.E.3d 554, ¶ 12 (recognizing that Ohio law “holds individual employees
liable for their participation in discriminatory practices”)).

Section 4112.99(A)

creates a private right of action for a violation of Section 4112.02.
Defendants maintain that they are not liable under this statute because more
than a mere “failure to act” is required. (ECF No. 217, PageID #11940 (citing Chulsky
v. Golden Corral Corp., 583 F. Supp. 3d 1059, 1088 (S.D. Ohio 2022).) Plaintiff
responds that Mr. Weisdack, his assistant, and Board members each “assisted” in
retaliating against her in violation of Section 4112.
#12095–96.)
125

(ECF No. 221, PageID

But Section 4112.02(J) is predicated on underlying discrimination or
retaliation. See Oster v. Huntington Bancshares Inc., No. 2:15-cv-2746, 2017 WL
2215462, at *22 (S.D. Ohio May 19, 2017) (holding that, if a plaintiff can survive
summary judgment on her gender discrimination and retaliation claims, her
allegations of aiding and abetting by individual defendants “pass muster too”). In
other words, employees cannot be held liable for aiding or abetting conduct that does
not violate the law. Lloyd v. Greater Cleveland Reg’l Transit Auth., No. 1:18-cv01557, 2020 WL 5077009, *13 (N.D. Ohio Aug. 27, 2020) (collecting cases) (holding
that “if a plaintiff fails to establish any underlying unlawful discriminatory conduct,
his or her aiding and abetting claim also fails”).

Because Plaintiff’s State-law

retaliation claims do not survive summary judgment, neither does her claim for
aiding and abetting discrimination.
II.C. Civil Liability for Criminal Acts (Count 6, Count 7 & Count 8)
Counts 6 through 8 assert claims under Section 2307.60 of the Ohio Revised
Code for civil liability for various alleged criminal acts. That statute allows “[a]nyone
injured in person or property by a criminal act” to “recover full damages in[] a civil
action,” including attorneys’ fees and costs. Ohio Rev. Code § 2307.60(A)(1). As the
Ohio Supreme Court held on the certification of State-law questions in this case, the
“plain language of the statute does not require a criminal conviction” as a prerequisite
for civil liability. Buddenberg, 2020-Ohio-3832, at ¶ 11. Therefore, the fact that no
Defendant has been convicted—or even charged—with any of the underlying offenses
has no bearing.

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At the pleading stage, the Court noted that “neither party cited any caselaw
discussing what burden of proof applies” to these claims. Buddenberg, 2018 WL
3159052, at *5. Despite discussion of the issue early in the life of this case, on
summary judgment the parties still fail to address the issue. Ohio courts appear to
assume that a plaintiff can prevail on a claim under Section 2307.60(A)(1) if she
proves her claim by a preponderance of the evidence and that, to establish civil
liability, the statute does not require proof beyond a reasonable doubt as would a
criminal conviction. See, e.g., Sonis v. Rasner, 2015-Ohio-3028, 39 N.E.3d 871, ¶ 43
(8th Dist.); 1 Ohio Jury Instructions, Civil § 455.01 (“Before you can find for the
plaintiff, you must find all of the following by the greater weight of the evidence[.]”).
For his reason, the Court analyzes Plaintiff’s claims under Section 2907.60(A)(1)
against this backdrop.
II.C.1. Intimidation, Ohio Rev. Code § 2921.03 (Count 7)
Section 2921.03(A) of the Ohio Revised Code sets forth the elements for the
offense of intimidation, a felony of the third degree. As relevant here, the statute
makes it an offense for a person, “by . . . otherwise using a materially false or
fraudulent writing,” to intimidate or hinder a public official in the discharge of her
duties. In its entirety, the statute provides:
No person, knowingly and by force, by unlawful threat of harm to any
person or property, or by filing, recording, or otherwise using a
materially false or fraudulent writing with malicious purpose, in bad
faith, or in a wanton or reckless manner, shall attempt to influence,
intimidate, or hinder a public servant, a party official, or an attorney or
witness involved in a civil action or proceeding in the discharge of the
person’s [sic] the duties of the public servant, party official, attorney, or
witness.
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Ohio Rev. Code § 2921.03(A).
This statute presents several open questions of statutory interpretation. For
example, Section 2921.03(C) creates civil liability for violation of the statute,
potentially making it largely or entirely repetitive of Section 2307.60(A)(1), under
which Plaintiff brings her claim.

She did not bring this claim under Section

2921.03(C) or allege an “unlawful threat of harm.” (ECF No. 31, ¶¶ 193–201, PageID
#412–13.) As one further example, it is not clear how a person can “knowingly”—the
state of mind requirement that the third word of the statute applies to each element
that follows—intimidate someone in a “reckless manner.”
The parties did not brief these issues, and the Court need not decide them.
Plaintiff is correct that Section 2921.03(A) does not apply by its own terms only to
threats of violence or to those who witnessed crimes.

(ECF No. 263, PageID

#14922–23.) Indeed, amendments to the statute over time make its broader purpose
and application clear. But summary judgment turns on the element of the offense
requiring that the writing at issue be “materially false or fraudulent.” In this case,
Plaintiff proceeds against Mr. Weisdack and Mr. Budzik, contending that the notice
of disciplinary action and resulting disciplinary order are materially false and
fraudulent. (Id.; ECF No. 31, ¶¶ 196 & 197, PageID #412.) At the pre-disciplinary
hearing, however, Ms. Buddenberg admitted the truth of certain charges, including
insubordination and mishandling her own and Mix’s personnel files. (ECF No. 210-4,
PageID #11329, #11349–51 & #11356.) Even assuming for purposes of summary
judgment that certain of the charges are materially false or fraudulent,

128

Ms. Buddenberg’s admissions to conduct that independently supports the discipline
imposed make her unable to carry her burden on this claim, and no reasonable finder
of fact could conclude otherwise.
One final procedural point regarding this claim—Plaintiff asserts Count 7
against Mr. Weisdack and Mr. Budzik. Both move for summary judgment on all
claims against them, but only Mr. Budzik develops an argument regarding Plaintiff’s
intimidation claim. (ECF No. 216-3, PageID #11867–68.) A district court can enter
a summary judgment sua sponte.

See Employers Ins. of Wausau v. Petroleum

Specialties, Inc., 69 F.3d 98, 104–06 (6th Cir. 1995); Celotex Corp., 477 U.S. at 325.
Plaintiff had an adequate opportunity to respond to Mr. Budzik’s arguments against
the applicability of this statute, and her arguments apply generally to both him and
Mr. Weisdack. Because these two Defendants are similarly situated with respect to
this claim, Plaintiff’s arguments generally apply to both, and to a degree this claim
raises similar legal and factual issues more fully addressed elsewhere in this ruling,
the Court applies this ruling to both Mr. Budzik and Mr. Weisdack. Further, judicial
economy counsels doing so.
For all these reasons, Mr. Weisdack and Mr. Budzik are entitled to a summary
judgment on Plaintiff’s claim for civil liability for criminal intimidation.
II.C.2. Retaliation, Ohio Rev. Code § 2921.05 (Count 6)
In the alternative, Plaintiff brings this claim against all Defendants. (ECF
No. 31, PageID #411.) Under Ohio law, criminal retaliation, which is also a thirddegree felony, requires “purposeful” action “by force or by unlawful threat of harm”
against a public servant. In its entirety, the statute provides:
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No person, purposely and by force or by unlawful threat of harm to any
person or property, shall retaliate against a public servant, a party
official, or an attorney or witness who was involved in a civil or criminal
action or proceeding because the public servant, party official, attorney,
or witness discharged the duties of the public servant, party official,
attorney, or witness.
Ohio Rev. Code § 2921.05(A).
II.C.2.a. “Involved in a Proceeding”
Primarily, the parties debate whether the phrase “involved in a civil action or
proceeding” applies only to “an attorney or witness” or to each of the types of persons
in the list the statute covers, including a “public servant”—such that the statute
applies only to criminal retaliation against a public servant involved in a proceeding
as opposed to performing her general duties.
Defendants argue that this statute does not apply because Plaintiff was not a
“public servant” who was “involved in a civil or criminal action or proceeding” when
any alleged retaliation occurred. (ECF No. 217, PageID #11938–39.) They rely on
Hensley v. Wester Chester Township, No. 1:21-cv-373, 2022 WL 4621432, at *15 (S.D.
Ohio Sept. 20, 2022), where the court dismissed the claims of former police officers
because the officers were not involved in a civil or criminal action or proceeding when
the alleged First Amendment retaliation occurred.
Similarly, in State v. Merriman, 2021-Ohio-1403, 2021 WL 1573920, ¶ 9 (Ohio
Ct. App.), the court applied the “action or proceeding modifier” to every victim listed
in the statute, like the Southern District of Ohio in Hensley. The Merriman Court
held that the “state must prove that [the defendant] purposely threatened harm to
the judge and police officers who were involved in a civil or criminal action or
130

proceeding as a result of discharging the duties of a public servant.” Id. Based on
this interpretation, the court ultimately vacated the defendant’s conviction under the
statute because he did not direct his conduct at individuals involved in prior or
current proceedings against him. Id. at ¶ 13.
Plaintiff maintains that the phrase “who was involved in a civil or criminal
action” only applies to attorneys or witnesses under the statute, and it does not apply
to “public servants.” (ECF No. 259, PageID #14751–52.) She points to State v.
Matthews, 2013-Ohio-2183, ¶ 11 (Ohio Ct. App.), which analyzed the text and
determined that the “placement of the comma before ‘or an attorney or witness’ in the
context of this sentence clearly establishes the third category of potential victims of
retaliation encompasses attorneys or witnesses who were involved in civil or criminal
actions or proceedings.”
The Court need not weigh in on this split of authority or make its best guess
how the Ohio Supreme Court would resolve the issue because Plaintiff’s claim fails
for another reason.
II.C.2.b. “By Force or by Unlawful Threat of Harm”
The statute requires retaliation “by force or by unlawful threat of harm.” Ohio
Rev. Code § 2921.05(A). Plaintiff makes no argument, and presents no evidence, that
any Defendant used force (within the meaning of this statute) against her. See Ohio
Rev. Code § 2901.01(A)(1) (defining “[f]orce” as “any violence, compulsion, or
constraint physically exerted by any means upon or against a person or thing”); ECF
No. 259, PageID #14751–53. That leaves only the option of “an unlawful threat of
harm” to support Plaintiff’s claim under this statute. In this respect, Plaintiff’s
131

argument on her criminal intimidation claim is telling. That claim also makes an
unlawful threat of harm one basis for liability. On her intimidation claim, however,
Plaintiff proceeded on a theory of a false or fraudulent writing—not an unlawful
threat of harm. Regardless, there is no unlawful threat of harm to Ms. Buddenberg
on the facts presented.
Enactment of the criminal retaliation statute “was described as [an expansion
of] current law concerning intimidation.” State v. Lambert, 2d Dist. Montgomery
No. 16667, 1998 WL 288957, at *4.

“The distinguishing characteristic between

intimidation and retaliation was said to be that intimidation occurs before a judicial
decision, whereas retaliation occurs after a judicial decision has been rendered.” Id.
“The retaliation statute, therefore, was intended to correspond to the intimidation
statute in its effect.” Id.
Interpreting the phrase an “unlawful threat of harm” in a related intimidation
statute, the Ohio Supreme Court held that a threat is unlawful where “it violates
established criminal or civil law.” State v. Cress, 112 Ohio St. 3d 72, 2006–Ohio–
6501, 858 N.E.2d 341, ¶ 42.

Therefore, an unlawful threat requires proof the

elements of a predicate offense. Id. at ¶ 43. Ohio courts apply this definition of an
“unlawful threat of harm” to Section 2921.05. State v. Yambrisak, 2013-Ohio-1406,
¶ 15 (Ohio Ct. App.).
Broadly, Plaintiff argues that “Defendants engaged in numerous acts of
retaliation against” her. (ECF No. 259, PageID #14752.) She maintains that these
retaliatory acts “constitute ‘the unlawful threat of harm’ the section criminalizes.”

132

(Id.) While “harm” might not necessarily need to be physical under the statute—but
see Ohio Rev. Code § 2901.01(A) (defining “[p]hysical harm to persons” as “any injury,
illness, or other physiological impairment, regardless of its gravity or duration,” but
omitting emotional, psychological, or other similar injuries from any definition)—
Plaintiff’s argument is wholly circular. It makes unlawful retaliatory acts (assuming
there are any, in a legal sense) the predicate acts to support the element of an
unlawful threat in a claim for criminal retaliation.
Moreover, construing the record in Plaintiff’s favor and taking the disciplinary
notice as a threat, it was not “unlawful” as the Ohio Supreme Court defines the term.
The notice contained several charges of serious workplace misconduct, and Plaintiff
admitted to the factual basis for many. Additionally, because Plaintiff’s retaliation
claims fail as a matter of law, they cannot serve as a predicate offense to satisfy this
element. See Cress, 2006–Ohio–6501, at ¶ 45 (concluding that lawful threatened acts
do not constitute an “unlawful threat of harm”). Plaintiff’s alternative claim for civil
liability for criminal retaliation fails as a matter of law.
II.C.3. Civil Rights, Ohio Rev. Code § 2921.45 (Count 8)
Ohio law makes it a crime, a first-degree misdemeanor, for a public employee
to deprive a person of her civil rights. The statute provides:
No public servant, under color of the public servant’s office, employment,
or authority, shall knowingly deprive, or conspire or attempt to deprive
any person of a constitutional or statutory right.
Ohio Rev. Code 2921.45(A). Defendants argue that they are entitled to summary
judgment on this claim because they “did not deprive [Plaintiff] of any constitutional
or statutory right.” (ECF No. 217, PageID #11939.) Plaintiff counters that she has
133

shown that Defendants “deprived her of both types of rights.” (ECF No. 259, PageID
#14754 (emphasis removed).) Because the Court has determined that Plaintiff’s
federal and State law claims fail as matters of law, there is no underlying deprivation
of a constitutional or statutory right to satisfy this statute and provide Plaintiff with
a remedy. Therefore, Plaintiff’s claim for interference with civil rights fails.
II.D. State-Law Claims Against Mr. Budzik
To a significant degree, Plaintiff’s State-law claims against Mr. Budzik allege
ethical violations relating to his conduct during and after the pre-disciplinary hearing
and in his work for the District. Indeed, the three experts the parties designate (two
by Plaintiff and one by Mr. Budzik) focus on these issues. Mr. Budzik maintains that
any claims arising from his provision of legal services “must be construed as
malpractice” and that third parties to the attorney-client relationship, like
Ms. Buddenberg, lack standing to assert such claims against him.

(ECF 216-3,

PageID #11863–66.) Also, he claims qualified immunity as an attorney under Ohio
law. (Id., PageID #11864–66.) Plaintiff argues that Mr. Budzik enjoys no immunity
because he engaged in “extra-legal” and “bad faith” conduct. (ECF No. 263, PageID
#14918.) She relies extensively on her two experts, who opine that Mr. Budzik
violated the Ohio Rules of Professional Conduct. (Id., PageID #14916–21.)
At the pleading stage, the Court held that Mr. Budzik could assert the qualified
privilege for attorneys acting on behalf of clients. Buddenberg, 2018 WL 3159052, at
*6. However, accepting Plaintiff’s allegations as true, the Court held that Plaintiff
sufficiently plead malice, removing his conduct from the protections of Ohio’s
qualified immunity defense pending discovery. Id.
134

III.D.1. Qualified Immunity for Attorneys Under Ohio Law
With the benefit of discovery and extensive briefing on the issue, the Court
undertakes the analysis in two steps.

First, the Court must decide whether

Mr. Budzik can assert qualified immunity. Second, if he can, the inquiry shifts to
whether Plaintiff presents sufficient evidence to rebut the presumption of immunity
such that she can proceed on a claim under State law against Mr. Budzik. See Kim
v. Randal A. Lowry & Assocs., 2021-Ohio-51, 166 N.E.3d 146, ¶ 16 (Ohio Ct. App.).
III.D.1.a. Mr. Budzik’s Provision of Legal Services
Under Ohio law, the type of claim a third party asserts against an attorney has
no bearing on the availability of qualified immunity. Silveous v. 5 Starr Salon and
Spa, LLC, 2023-Ohio-841, 210 N.E.3d 1020, ¶ 39 (Ohio Ct. App.) (collecting cases).
“A claim against an attorney for actions taken in his professional capacity is a claim
sounding in legal malpractice no matter how artfully the pleadings attempt to raise
some other claim.” Omega Riggers & Erectors, Inc. v. Koverman, 2016-Ohio-2961, 65
N.E.3d 210, ¶ 22 (Ohio Ct. App.). An “indispensable element” of a malpractice claim
is an attorney-client relationship, therefore, an “attorney is immune from liability to
third persons arising from his performance as an attorney . . . unless such third
person is in privity with the client, or the attorney acts maliciously.” Id. at 219–20
(quoting Scholler v. Scholler, 10 Ohio St. 3d 98, 103, 462 N.E.2d 158 (1984)). An
attorney’s obligations to his client supplies the rationale for this rule: “the obligation
of an attorney is to direct his attention to the needs of the client, not to the needs of
a third party not in privity with the client.” Simon v. Zipperstein, 32 Ohio St. 3d 74,
76, 512 N.E.2d 636 (1987).
135

While the scope of Mr. Budzik’s representation is disputed, the District
retained Mr. Budzik, in some capacity, in connection with civil service issues,
including Ms. Buddenberg’s discipline. (ECF No. 183-1, PageID #2701.) Without
question, Mr. Budzik had no attorney-client relationship with Ms. Buddenberg, and
she was not in privity with a client of his. (ECF No. 216-3, PageID #11865; ECF
No. 263, PageID #14918.)
Plaintiff maintains that lawyers may be sued in Ohio for claims other than
malpractice (ECF No. 263, PageID #14913–14)—and that is true. But where the
claims arise from the attorney’s provision of legal services—regardless of whether the
plaintiff is the attorney’s client or a third party—Ohio law dictates that the Court
analyze the claims through the lens of legal malpractice. See Omega Riggers &
Erectors, 2016-Ohio-2961, at ¶ 22. Therefore, to the extent Mr. Budzik’s provision of
legal services gives rise to Plaintiff’s claims against him as a third party, the Court
must presume that he enjoys qualified immunity. Silveous, 2023-Ohio-841, at ¶ 40,
210 N.E.3d at 1033; Buddenberg, 2018 WL 3159052, at *6. To the extent Mr. Budzik
stepped into the shoes of Mr. Weisdack and assumed his role or acted on his behalf
without providing legal services, then his liability is co-extensive with that of
Mr. Weisdack on Plaintiff’s State-law claims.
III.D.1.b. Mr. Budzik’s Direct Conduct Affecting Plaintiff
If Mr. Budzik otherwise stepped outside his role as a lawyer, the only conduct
directly attributable to him involves his limited interactions with Plaintiff during and
after the disciplinary hearing. It is undisputed that Mr. Budzik had no authority or
control over Plaintiff’s day-to-day work activities and that the Board ultimately
136

disciplined Ms. Buddenberg.

(ECF No. 203-1, PageID #8654–55 & #8658.)

Mr. Budzik made a recommendation to the Board, which they considered over a day
and a half and largely, but not entirely, adopted. (ECF No. 195-17, PageID #5154–55;
ECF No. 204-13, PageID #8990–92.)
Plaintiff claims that Mr. Budzik was intimidating and aggressively
interrogated her during the hearing and that his behavior constituted retaliatory
conduct.

(ECF No. 263, PageID #14908 (citing Buddenberg, 939 F.3d at 740

(construing the facts Plaintiff alleged in her complaint as true).) But the audio
recording of the hearing tells a different story. In Scott, 550 U.S. at 378–81, the
Supreme Court addressed how to handle disputes of fact on a motion for summary
judgment in the face of video and photographic evidence. Although courts must
ordinarily construe the record on summary judgment in favor of the non-moving
party, “[w]hen opposing parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could believe it, a court should
not adopt that version of the facts for purposes of ruling on a motion for summary
judgment.” Id. at 380.
Such is the case here. Although Plaintiff’s claims are not implausible, as in
Scott, the audio recording (and transcript) of the hearing blatantly contradict her
story to the point where no reasonable jury could believe it. Mr. Budzik did not
aggressively question Ms. Buddenberg—he read each disciplinary charge, allowed
her to respond, and occasionally asked follow-up questions calmly and evenhandedly.

137

Nor do Plaintiff’s interactions with Mr. Budzik during their off-the-record
conversations during and after the disciplinary hearing suffice to avoid his immunity.
In these discussions, the record leaves no doubt that Mr. Budzik acted on his client’s
behalf to reach a settlement with Ms. Buddenberg. (ECF No. 203-1, PageID #8677;
ECF No. 204-1, PageID #8938–39; ECF No. 184-1, PageID #3033 & #3047.) The fact
that Ms. Buddenberg’s interests were (and continue to be) adverse to the District does
not render Mr. Budzik’s conduct “extra-legal.” But even if these discussions are
construed, on summary judgment, as “extra-legal” acts of retaliation, the viability of
Plaintiff’s State-law claims against Mr. Budzik rises and falls with those against the
other Defendants, as already discussed.
Finally, any testimony or opinion to the contrary from Plaintiff’s proffered
experts necessarily fails for two reasons. First, Plaintiff uses her expert witnesses as
mouthpieces to reiterate her summary judgment briefing and arguments on
retaliation. Second, as a matter of law, Plaintiff suffered no retaliation under federal
or State law as she claims. Therefore, there is no genuine dispute of material fact,
and no reasonable jury could return a verdict against Mr. Budzik on this record.
III.D.2. Malice
In the face of the qualified immunity that Mr. Budzik enjoys as an attorney,
Plaintiff only has standing to bring any claim against him, sounding in malpractice,
through a showing of malice. Omega Riggers & Erectors, 2016-Ohio-2961, at ¶ 23. In
the absence of malice, even if Mr. Budzik violated the Ohio Rules of Professional
Conduct, only the District as his client has standing to pursue those claims. See
Scholler, 10 Ohio St. 3d at 103. There is little Ohio law “identifying what set of facts
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is necessary to constitute malice as a substitute for an attorney-client relationship.”
Omega Riggers & Erectors, 2016-Ohio-2961, at ¶ 31. Mr. Budzik asserts that malice
requires showing an ulterior motive “separate and apart from the good-faith
representation of the client’s interests.” (ECF No. 216-3, PageID #11865 (quoting
Sprouse v. Eisenman, 2005-Ohio-463, ¶ 12 (Ohio Ct. App.).) Plaintiff responds by
arguing that malice can include a showing of ulterior motive but is not limited to such
evidence alone. (ECF No. 263, PageID #14919–20.)
The Sixth Circuit has held that plaintiffs may struggle establishing malice at
the pleading stage; therefore, when accepting all accusations as true, a plaintiff’s
general allegations of malice will usually suffice to state a claim. Vector Rsch., Inc.
v. Howard & Howard Attorneys P.C., 76 F.3d 692, 700 (6th Cir. 1996). On summary
judgment, however, Plaintiff must do more than rely on her general accusations of
fraud, bad faith, and collusion.

Instead, showing malice requires evidence that

Mr. Budzik acted with “hatred, ill will, or a spirit of revenge” or with a “conscious
disregard for the rights and safety of other persons that has a great probability of
causing substantial harm.” Omega Riggers & Erectors, 2016-Ohio-2961, at ¶ 31
(quoting Preston v. Murty, 32 Ohio St. 3d 334, 336, 512 N.E.2d 1174 (1987)).
Where an attorney acts with “conscious disregard” for the rights of others, the
harm inflicted must be “beyond that which legal action necessarily may inflict.”
Omega Riggers & Erectors, 2016-Ohio-2961, at ¶ 35. Malice can include a showing
that the attorney took willful actions to hurt someone else without justification or
operated with an “ulterior motive separate and apart from the good-faith

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representation of the client.” Ryan v. Wright, 2007-Ohio-942, ¶¶ 19 & 20 (Ohio Ct.
App.). The factual circumstances leading to a finding of malice are usually extreme.
For example, a reasonable jury could find that an attorney acted with malice when
filing a lawsuit on behalf of a party without the party’s knowledge or consent,
subsequently dismissing the lawsuit with prejudice, and agreeing to a release of
future claims, see Tye v. Beausay, 2017-Ohio-7943, 98 N.E.3d 970, ¶ 20 (Ohio Ct.
App.), even if—remarkably—such conduct does not give rise to attorney discipline.
Plaintiff alleges that Mr. Budzik demonstrated ill will by the “way he gaslit
and berated her about the reasons for Dan Mix’s departure during the hearing and
the way he lied repeatedly under oath about knowing about Ms. Buddenberg’s EEOC
charge.” (ECF No. 263, PageID #14921.) As discussed, Plaintiff’s attempt to create
material disputes of fact regarding Mr. Budzik’s conduct at the disciplinary hearing
does not hold up in the face of the recording of it. At most, construing the record in
favor of Plaintiff’s with the benefit of her experts’ opinions as well, Mr. Budzik might
have breached a standard of care in his dealings with Ms. Buddenberg—that is, acted
negligently, perhaps even grossly negligently—but that conduct falls far short of
malice under Ohio law. See Ryan, 2007-Ohio-942, at ¶ 20.
In a footnote, Plaintiff argues that a reasonable jury could infer that
Mr. Budzik had an ulterior motive to “ingratiate himself with the District retaliators
in the hope of being handsomely compensated and receiving more work.” (ECF
No. 263, PageID #14921 n.10.) Assuming that this argument is not waived, see Carter
v. Toyota Tsusho Am., Inc., 529 F. App’x 601, 612 n.2 (6th Cir. 2013), Plaintiff

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provides no factual support in the record for this claim. Instead, she relies on the
opinions of her experts. But without facts in the record to underpin such testimony,
it amounts to no more than speculation, which the Court disregards. See Andrews v.
Lecats Ventriloscope LLC, No. 5:19-cv-01792, 2022 WL 704578, at *8 (N.D. Ohio
March 9, 2022).
As for the claim that Mr. Budzik lied during this litigation about knowing
Ms. Buddenberg filed a charge with the EEOC, after repeatedly denying that he knew
of the charge, Mr. Budzik submitted errata to his deposition admitting that he was
copied on an email providing notice of the charge but, even then, he did not recall
receiving it. (ECF No. 184-1, PageID #3115.) This record is subject to any number of
possible explanations and interpretations, ranging from entirely innocent (he
received notice of the charge four years before the deposition by being copied on an
email) to less flattering. Even assuming the worst, as the Court must in the present
procedural posture, Mr. Budzik’s position on the matter in this litigation does not
constitute malice as a matter of law. In this litigation, Mr. Budzik is a party and a
fact witness. When defending against Plaintiff’s claims in this case, he was not
counsel or Mr. Weisdack’s designee. On this record, misrepresentations—if that is
what they were—in subsequent litigation have no bearing on Mr. Budzik’s mental
state during and immediately after the disciplinary hearing.
“An attorney should not suffer potential liability to third parties for advising
and pursuing a client’s non-criminal goals, even if those goals will subject the client
to potential civil liability.” Omega Riggers & Erectors, 2016-Ohio-2961, at ¶ 32. As

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a matter of law, the record presents facts would not support a jury’s finding of malice.
Therefore, Plaintiff lacks standing to pursue claims against Mr. Budzik.
III.

The Crime-Fraud Exception and Spoliation
Beyond the merits, but not wholly unrelated, the parties raise certain conduct-

related issues, which are also fully briefed for a ruling from the Court. Plaintiff
raises, again, the crime-fraud exception to the attorney-client privilege seeking to
compel further discovery from Mr. Budzik. Defendants contend that Ms. Buddenberg
spoliated certain text messages and other electronically stored information.
III.A. Plaintiff’s Motion to Compel
Plaintiff argues that the crime-fraud exception warrants discovery of
privileged materials because she has made a prima facie showing that the District
Defendants used Mr. Budzik’s advice to further crimes and a fraud. (ECF No. 283,
PageID #15461–62.) She argues that the Defendants have committed a crime under
Section 2921.45 of the Ohio Revised Code by knowingly violating her statutory rights
by changing her working schedule and bringing baseless disciplinary charges against
her—including a charge for speaking to the Board about Mix’s departure from the
District. (Id.) Also, she argues that the Court should have a “reasonable basis to
suspect” that the Defendants committed crimes by issuing her a baseless disciplinary
notice—a “false writing” in violation of Section 2921.03—and retaliating against her
for her reports to the Board, in violation of Section 2921.05. (Id., PageID #15465–66.)
She argues that the Board enforced her discipline at the advice and direction of
Mr. Budzik. (Id., PageID #15467–71.) Further, she asserts that he became an active
participant in unlawful retaliation, thereby subjecting him to criminal liability. (Id.)
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Defendants oppose Plaintiff’s motion because it is untimely and procedurally
improper. (See generally ECF No. 292.) They also move to strike it. (Id.)
The Court need not consider the merits of Plaintiff’s arguments on the crimefraud exception because her motion to compel is procedurally improper and no good
cause supports reopening discovery at this late date.

In any event, Plaintiff’s

arguments directed to further discovery based on the crime-fraud exception fail on
the merits as well.
III.A.1. Procedural Propriety
It is well settled that district courts have broad discretion to manage discovery
and determine the timeliness of a motion to compel. Pittman v. Experian Info. Sols.,
Inc., 901 F.3d 619, 642–43 (6th Cir. 2018). Denials of motions to compel are reviewed
for an abuse of discretion and reversed only upon “a clear showing that the denial of
discovery resulted in actual and substantial prejudice to the complaining litigant.”
Id. at 642.
Rule 37(a) permits a party to move to compel discovery, but the rule does not
impose a deadline for filing such motions. Courts generally treat Rule 37 as operative
“during the discovery process.” Cunningham v. Hamilton Cnty., 527 U.S. 198, 208
(1999). Accordingly, a district court operates well within its discretion to deny a
motion to compel filed after the close of discovery. Pittman, 901 F.3d at 642–43
(collecting cases) (holding that there was no abuse of discretion where a district court
denied a motion to compel five months after the close of discovery); Craig-Wood v.
Time Warner N.Y. Cable LLC, 549 F. App’x 505, 508 (6th Cir. 2014) (affirming the

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district court’s denial of a motion to compel filed two months after the discovery cutoff and after the defendant moved for summary judgment).
Two additional rules limit the ability of a party to bring a motion to compel.
First, Local Rule 37.1(b) requires the filing of any motion to compel within ten days
after the close of discovery. See Salem v. City of Akron, No. 5:18-cv-1754, 2020 WL
1233953, *4 (N.D. Ohio, Mar. 13, 2020) (collecting cases applying the time limit under
Local Rule 37.1(b) to deny untimely motions to compel). Second, before moving to
compel, Local Rule 37.1(a)(1) obligates the parties to undertake good efforts to resolve
any discovery dispute before filing a motion with the Court. Further, the Court’s
Civil Standing Order contains additional prerequisites, which the Court strictly
enforces, to avoid unnecessary motion practice over discovery disputes. See Civil
Standing Order § 6.A. In short, to conserve the resources of the parties and the Court,
before any party may file a discovery motion, the parties must reach impasse in
efforts to resolve the issue and involve the Court in further efforts short of motion
practice. Only then, with the Court’s authorization, may a party bring a discovery
motion. See id.
III.A.1.a. Timeliness
Without question, Plaintiff’s motion is untimely. She filed her motion a year
and a half after discovery closed and after briefing on summary judgment and
spoliation was complete. Nevertheless, Plaintiff argues that Defendants cannot be
surprised by her motion to compel because they were on notice that she would be
seeking discovery related to privileged materials under the crime-fraud exception.
But this argument cuts both ways. Given the amount of time that passed following
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the close of discovery (some 547 days after discovery closed on January 31, 2022),
Defendants (and the Court) could fairly have assumed the issue was resolved,
abandoned, or not worth the time and resources. Even after July 14, 2022, when
Plaintiff represented that the issue warranted briefing, more than a year passed
before Plaintiff filed a motion. Again, during that time, Defendants and the Court
could fairly assume that further action on the issue was not necessary or not a
priority.
Additionally, on June 15, 2022, the Court resolved disputes over claims of
privilege of certain documents Mr. Budzik listed on a privilege log and found that the
crime-fraud exception did not apply. (ECF No. 142, PageID #937–38.) Nor did
Plaintiff explore any of those issues during Mr. Budzik’s deposition before the Court
on April 29, 2022. (Id.) This additional attention to the issue by the parties and the
Court reinforces the determination that any motion should have come far sooner than
it did.
III.A.1.b. Exhaustion of Efforts
Further, Defendants’ awareness of potential privilege issues does not excuse
Plaintiff’s failure to exhaust efforts under Rule 37, the Local Rules, or the Court’s
Civil Standing Order before moving to compel. Plaintiff argues that Defendants
attempt “to gaslight” the Court into believing that her motion was “unauthorized and
procedurally improper.” (ECF No. 293, PageID #15594.) In support, Plaintiff points
to the Court’s November 30, 2022 Order stating that privilege-related issues would
be dealt with on “parallel tracks” with summary judgment and spoliation as
authorization to file her motion to compel. By then, the record shows that Plaintiff’s
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efforts to obtain discovery of privileged matters from Mr. Budzik had long since
passed. Even if they had not, however, Plaintiff still waited until after briefing on
the spoliation issue closed before filing a motion—by definition, not a parallel track.
Moreover, Plaintiff consistently raised disputes about privilege and the crime-fraud
exception, even after the Court found that the exception did not apply, but at no time
requested a briefing schedule or put Defendants or the Court on notice of an impasse.
*

*

*

Accordingly, the Court denies Plaintiff’s motion to compel because it is
untimely and fails to abide by Local Rule 37.1 and the Court’s Civil Standing Order.
See Pittman, 901 F.3d at 642–43; Mohney v. USA Hockey, 5 F. App’x 450, 459–60 (6th
Cir. 2001) (affirming a district court’s denial of a motion to compel for failure comply
with Local Rule 37.1).
III.A.2. Reopening Discovery
Under Rule 16(b), a district court may amend a scheduling order establishing
deadlines for matters such as discovery on a showing of “good cause.” Fed. R. Civ.
P. 16(b)(4). The Sixth Circuit identifies different considerations for determining
whether “good cause” exists to modify a scheduling order to reopen discovery. See,
e.g., Dowling v. Cleveland Clinic Found., 593 F.3d 472, 478 (6th Cir. 2010) (citing the
length of the discovery period, the moving party’s diligence, and when the moving
party learned of the issue that is the subject of discovery); Morgan v. Gandalf, Ltd.,
165 F. App’x 425, 431 (6th Cir. 2006) (citing the specificity and relevance of the
request and prejudice to the nonmoving party). Regardless of how articulated, “[t]he

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primary measure of Rule 16’s ‘good cause’ standard is the moving party’s diligence
. . . .” Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002) (citation omitted).
Based on the record in this case, the Court declines to exercise its discretion to
reopen discovery and finds that Plaintiff has not made a showing of good cause to do
so. Based on the volume of the record on summary judgment, it is difficult to see any
matter that the parties did not already discover. More discovery will not, in the
Court’s judgment and experience, materially change the record.
Because the Sixth Circuit places great weight on a party’s diligence, the Court
addresses that consideration briefly. Plaintiff’s counsel diligently and vigorously
represented his client and left no stone unturned in doing so. As applied here, the
Court understands reasonable diligence of a party to mean efforts used to obtain
further discovery of matters that the attorney-client privilege protects.

In that

respect, the delay in filing a motion directed to the issue, even if procedurally proper,
speaks to a lack of good cause to reopen discovery. These issues have been known to
Plaintiff, if not since the onset of litigation, at least since early 2022. Even after the
close of discovery, Plaintiff had ample opportunity to obtain the information she seeks
now—including in camera review of documents, directions to confer with opposing
counsel about the privilege issue, and allowing her to depose Mr. Budzik a third time.
Moreover, reopening discovery at this late date would upend the case
management schedule under which the Court and the parties have long operated,
invariably create numerous discovery disputes, and require a do-over of summary

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judgment briefing—all to the prejudice of Defendants and out of all proportion to the
needs of the case.
For these reasons, the Court finds no good cause to reopen discovery now and
declines to do so.
III.A.3. Rule 56(d)
Construing Plaintiff’s motion to compel as a motion under Rule 56(d) for
additional discovery to oppose summary judgment does not change the disposition of
the motion. See Doe v. City of Memphis, 928 F.3d 481, 490–91 (6th Cir. 2019). Here,
Plaintiff’s 150 pages of opposition briefing and her motion for summary judgment
refute the need for additional discovery to oppose Defendants’ summary judgment
motions. Moreover, nowhere in that briefing or in her motion to compel does Plaintiff
identify what material facts the discovery she seeks might reveal or how new
information would support her claims beyond the existing record.
III.A.4. De Novo In Camera Review
The attorney-client privilege “is narrowly construed because it reduces the
amount of information discoverable during the course of a lawsuit.” United States v.
Collis, 128 F.3d 313, 320 (6th Cir. 1997) (citing In re Grand Jury Proceedings Oct. 12,
1995, 78 F.3d 251, 254 (6th Cir. 1996)). The privilege “applies only to the extent that
it serves ‘the broader public interests’”—meaning, “[i]t has no application to legal
advice in aid of a fraudulent scheme or criminal activity.” Fausek v. White, 965 F.2d
126, 129 (6th Cir. 1992) (citing In re Antitrust Grand Jury, 805 F.2d 155, 162 (6th
Cir. 1986)). On a showing by a preponderance of the evidence, the crime-fraud
exception applies where: (1) the client was engaged in or planning a criminal or
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fraudulent scheme when it sought the advice of counsel to further the scheme; and
(2) the documents containing the privileged materials bear some relationship to the
alleged crime or fraud. See In re Antitrust Grand Jury, 805 F.2d at 164. An attorney
need not take part in or even know about the crime or fraud for the exception to apply
because the client’s purpose controls. United States v. Skeddle, 989 F. Supp. 890, 902
(N.D. Ohio 1997).
With the benefit of the record on summary judgment, the parties’ briefing on
the merits, and Plaintiff’s motion to compel, the Court conducted another review of
all materials previously submitted for in camera review. Because of the peculiar
circumstances of this case, which involve claims under State law for civil liability for
criminal acts and questions about the role that lawyer, Mr. Budzik, played in the
discipline of Ms. Buddenberg, the Court finds that Plaintiff, again, has made a
sufficient prima facie showing justifying in camera review. See United States v. Zolin,
491 U.S. 554, 572 (1994). Based on this re-review, the Court remains of the view it
previously expressed: the crime-fraud exception does not apply, and Mr. Budzik (or,
more accurately, the District as the client and holder of the privilege) properly
withheld from discovery the privileged materials at issue. (See ECF No. 142, PageID
#937–38.) The documents and information at issue contain no indicia of fraud or any
crime.

The Court’s in camera review revealed, again, only the ordinary

communications between a client (and its agent) and its counsel. Nor do the materials
contain a smoking gun establishing the liability of the District Defendants or
Mr. Budzik.

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*

*

*

For all these reasons, the Court DENIES Plaintiff’s motion for discovery of
materials and information within crime-fraud exception to the attorney-client
privilege (ECF No. 283). Further, based on the record as a whole, the Court finds
that the motion at issue sought either additional briefing on summary judgment,
beyond the already generous page limits, or to counterbalance the record after
Defendants raised their claim of spoliation. Because no other basis comes close to
supporting the discovery Plaintiff seeks in her motion to compel, the Court need not
consider the matter further.
III.B. Rule 37 Sanctions
Pursuant to Rule 37(e), Defendants request that the Court sanction
Ms. Buddenberg for claimed spoliation of evidence in anticipation of this suit and
during discovery. (ECF No. 256, PageID #14643.) They also maintain that Rule
37(b)(2) (failure to obey a discovery order), Rule 37(c)(1) (failure to supplement a
discovery response), and the Court’s inherent authority provide a basis for sanctions.
(Id., PageID #14643 & 14646.) Their motion focuses largely on text messages lost—
unintentionally or deliberately—from Ms. Buddenberg’s cellphone. Plaintiff opposes
the motion and argues that Defendants have not met their burden to prove spoliation
and that sanctions are unwarranted. (ECF No. 276.)
III.B.1. Findings of Fact
On Defendants’ motion for sanctions, the Court makes the following findings
of fact only for purposes of that motion. In ruling on the parties’ respective motions
for summary judgment, the Court gave these findings no consideration. To ensure it
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did not consider these findings, the Court concluded its analysis of the parties’
summary judgment motions before turning to the record on Defendants’ motion under
Rule 37. With respect to the motion for sanctions, the record includes more than 100
pages of briefs, over 1,200 pages of evidentiary materials, and two days of testimony
at a hearing spanning nearly 400 pages of transcript.
III.B.1.a. Ms. Buddenberg had difficulty hiring a lawyer
but had counsel about a year before filing this
lawsuit.
In February 2017, after filing her charge with the EEOC, Ms. Buddenberg
started trying to hire a lawyer. (ECF No. 238, PageID #13177.) She had difficulty
finding an attorney to represent her. (Id. at PageID #13177–78.)
Although Ms. Buddenberg did not have a lawyer present at the disciplinary
hearing (id. at PageID #13185–86), during that hearing held on March 3, 2017, she
stated that she learned about a document allegedly threatening to fire Mix that was
left open on a computer. (ECF No. 210-4, PageID #11333). She learned about that
document because, “[a]ctually to [her] attorney it was presented.” (Id.) At the latest,
she had counsel by mid-April 2017. (ECF No. 238, PageID #13178; see also id.,
PageID #13186–87; ECF No. 276, PageID #15379.) Whenever Ms. Buddenberg had
counsel, she was contemplating litigation against the District by the date of her
disciplinary hearing and was represented about a year before filing this lawsuit on
March 6, 2018. (ECF No. 237, PageID #13024.)

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III.B.1.b. By April 2017, Ms. Buddenberg knew she needed
to preserve evidence, including text messages.
Ms. Buddenberg knew that she needed to preserve evidence for use in this case.
(ECF No. 237, PageID #12987.) Further, she “[a]bsolutely” understood that this
obligation included information on her phone, which encompassed text messages.
(Id.)

The litigation record confirms that Ms. Buddenberg texted with Mix and

Andrews about the retaliation she experienced. (ECF No. 276, PageID #15378.)
During the times relevant to the underlying events, from October 2016 to April
2017, Ms. Buddenberg used an iPhone 6. (ECF No. 238, PageID #13193, #13202,
#13206 & #13223.) In June 2017, she traded in that device through Verizon for an
iPhone 7 Plus. (Id.) When she did, she relied on Verizon to transfer data from the
old device to the new one. (ECF No. 238, PageID #13224.) At these times, she had
her phones set to backup to iCloud for which she had a paid subscription. (Id.; ECF
No. 237, PageID #12983–86.)
III.B.1.c. Ms. Buddenberg provided altered text messages
with Dan Mix and Darla Andrews to counsel.
By April or May 2017, Ms. Buddenberg was working with her counsel. (ECF
No. 227-17, PageID #12301; see also ECF No. 208-2, PageID #10455; ECF No. 238,
PageID #13178.) From the beginning of the litigation, Ms. Buddenberg knew that
Mix and Andrews would be important witnesses for her. (ECF No. 237, PageID
#12980 & #13038–40.)
To offer background to her counsel, Ms. Buddenberg started providing text
messages to her lawyers. (ECF No. 238, PageID #13182.) She did this by taking
screenshots of what she considered relevant text messages, which she printed out at
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home and gave to her counsel. (Id., PageID #13188–89 & #13209.) She did not know
of any other way to share text messages with her lawyers. (Id., PageID #13190 &
#13209–10.) Some text threads she altered by making “it so that it was more concise
with dates” to fit on a single page to print. (Id., PageID #13188 & 13300.) She saved
the original screen shots and the altered photos of them. (Id., PageID #13188 &
#13210.) These screenshots were created within a one-hour window on May 6, 2017.
(ECF No. 237, PageID #13128 & #13143.) Two days later, she provided them to her
counsel. (ECF No. 208-2, PageID #10455.)
III.B.1.d. She also deleted other text messages.
Ms. Buddenberg did not provide her attorneys with “everything,” just the
electronically stored information she thought was relevant. (ECF No. 238, PageID
#13189.) She admitted to deleting text messages with Mix:
Q.

Did you purposely delete any Dan Mix text messages off your
phone?

A.

I did not purposefully delete any text messages that I felt to be
relevant.

(ECF No. 237, PageID #12988.) Similarly, Ms. Buddenberg admitted to deleting text
messages from Andrews. (Id., PageID #12989–90.) This testimony in court stands
at odds with Ms. Buddenberg’s denials in deposition of deleting any text messages.
(ECF No. 205-1, PageID #9050–51.)
Based on her qualified answers to these questions on the witness stand in
March 2023, along with her demeanor at the hearing, the Court finds that
Ms. Buddenberg deliberately deleted text messages with Mix and Andrews. The
documentary record supports this finding too. Despite the volume of text messages
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ultimately produced between Ms. Buddenberg and Mix, the first text message
between the two produced at any time during this litigation is dated October 25,
2016—the day after Ms. Buddenberg’s report to the Board. (ECF No. 227-17, PageID
#12278.) That text appears to start midstream, “That is a relief.” (Id.) Assuming
the date makes the context clear, and even accounting for the proximity of the offices
of Mix and Ms. Buddenberg such that extensive texting was not necessary, the Court
finds it not credible that the two did not text at all before October 25, 2016, at the
very least on the date Ms. Buddenberg went to the Board or in the days leading up to
her report to the Board.
III.B.1.e. Counsel produced the text messages that
Ms. Buddenberg provided.
In June 2018, the parties filed a report of their planning meeting pursuant to
Rule 26(f). (ECF No. 39; see also ECF No. 227, PageID #12150.) In the recommended
discovery plan, Ms. Buddenberg represented that she had “identified personal
devices” containing discoverable electronically stored information. (ECF No. 39,
PageID #490.)
On her initial disclosures, Plaintiff listed Mix and Andrews as individuals with
discoverable information. (ECF No. 41, PageID #497 & #499.) Also, she identified
text messages with Mix and other District employees as documents supporting her
claims. (Id., PageID #502.) She even produced some, totaling 17 pages of screenshots
of text messages, with her initial disclosures. (ECF No. 227-3; ECF No. 227-5.) These
text messages consist of 55 text messages with Mix and 54 with Andrews.

154

In discovery, Defendants requested relevant communications, specifically
including text messages. (ECF No. 227-6, PageID #12208; see also ECF No. 227-7,
PageID #12216–17.) In response, Plaintiff produced no new documents and referred
Defendants to the documents produced with her initial disclosures. (Id.) In July
2021, Plaintiff made a supplemental production that included 5 additional text
messages from Mix and 16 from Andrews. (See ECF No. 227-8; ECF No. 227-9.)
III.B.1.f.

After the close of discovery, supplemental
productions of numerous text messages led to
further investigation.

In January 2022, Ms. Buddenberg traded in her iPhone 7 Plus for an iPhone
13. (ECF No. 227-29, PageID #12696; ECF No. 238, PageID #13226.) Again, she
relied on Verizon to transfer the data from her old device to the new one. (ECF
No. 238, PageID #13226.)
After the close of discovery, the day before the conclusion of the deposition of
the Board’s chair, Plaintiff made a supplemental production of emails that Mix and
Ms. Buddenberg exchanged on their personal accounts. (ECF No. 227-10.) This
production triggered ongoing discussions between counsel to identify the reason for
the production and to ensure its completeness.

(Id.; ECF No. 227-11; ECF

No. 227-12.)
By the end of February 2022, Plaintiff produced 132 new documents, including
over 100 text messages with Mix and nearly 90 with Andrews. (See ECF No. 227-13;
ECF No. 227-14; ECF No. 227-15.) Plaintiff’s counsel explained the circumstances of
these productions.

(ECF No. 227-15.)

Specifically, Ms. Buddenberg provided a

document to counsel that counsel had not previously seen. (Id., PageID #12273.)
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That document prompted a new search of Ms. Buddenberg’s email account, which
turned up additional information to produce that Ms. Buddenberg had not previously
provided to her lawyers and further discussions between counsel.

(Id.; ECF

No. 227-19.)
In March 2022, Plaintiff made another supplemental production of 92 pages of
text messages with Mix containing over 1,300 messages and 117 pages of texts with
Andrews containing over 300 messages.

(ECF No. 227-17; ECF No. 227-18.)

Plaintiff’s counsel explained that a “text-extraction program was used to extract and
produce all texts between Ms. Buddenberg and Dan Mix, and Ms. Buddenberg and
Darla Andrews.” (ECF No. 227-19, PageID #12487.) But this production raised
further concerns for defense counsel because some of the texts produced in
Ms. Buddenberg’s previous discovery responses were missing from this extraction.
(ECF No. 238, PageID #13291–92.) Subsequent discussions between counsel resulted
in an agreement in April 2022 for additional forensic searches for electronically stored
information, including of Ms. Buddenberg’s personal cell phones and other devices,
by Vestige Digital Investigations. (See ECF No. 137, PageID #916.)
III.B.1.g. Ms. Buddenberg attempts to frustrate the
Court’s Order by obstructing forensic imaging
and review of her devices.
According to the parties’ agreement, which the Court entered as an order,
Ms. Buddenberg was to make her devices available to Vestige for forensic imaging.
(ECF No. 137, PageID #916.) When she did so, her iPhone 13 was in factory reset
mode.

(ECF No. 229-1, PageID #12931; ECF No. 237, PageID #13085.)

Ms. Buddenberg testified that her iPhone 13, which she acquired a few months
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earlier, became unresponsive shortly before Vestige was scheduled to image it. (ECF
No. 238, PageID #13231.) A Verizon customer service agent talked her through a
reboot and sent her to an Apple store to fix the issue. (Id., PageID #13231–34.) In
the meantime, so as not to be without a phone, Verizon activated Ms. Buddenberg’s
phone number on an old rose gold iPhone 7 that belonged to her stepdaughter. (ECF
No. 238, PageID #13235–26.)
A few days before she was scheduled to turn her devices over to Vestige,
Ms. Buddenberg had an appointment with Best Buy which she scheduled through
Apple. (ECF No. 238, PageID #13238.) When she arrived, Ms. Buddenberg claims
that she informed the technician that she could not lose any data because of this
litigation. (ECF No. 238, PageID #13240.) She signed a form acknowledging that “IT
IS MY RESPONSIBILITY . . . TO BACK UP DATA” and waived any claim for loss of
data. (ECF No. 226-1, PageID #12134.) Ms. Buddenberg testified that she signed the
form but did not read it. (ECF No. 237, PageID #13090.) The technician took her
phone to a back room for about an hour. (ECF No. 238, PageID #13242–44.) When
he returned, the technician said he could not fix the iPhone 13 and returned it. (Id.,
PageID #13244.)
When Ms. Buddenberg provided her iPhone 13 to Vestige, she also brought the
rose gold iPhone 7 she had been using and her iPad. (Id., PageID #13250.) Like the
iPhone 13, the rose gold iPhone 7 and iPad contained no usable relevant data. (ECF
No. 237, PageID #13133.) Ms. Buddenberg did not connect these devices—the rose
gold iPhone 7 and the iPad—to iCloud to synch them to the information she had

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backed up there. (Id., PageID #13083 & #13133.) Accordingly, Ms. Buddenberg
appeared at the forensic examination with devices that yielded nothing of value to
this case. (Id., PageID #13133.)
Based on her testimony at the hearing, and the opportunity to observe her on
direct and cross-examination, the Court finds that Ms. Buddenberg’s errata executed
five weeks after her deposition (ECF No. 227-29) amounts to little more than a selfserving affidavit submitted in response to a motion for summary judgment and,
accordingly, discounts it. Further, the Court finds that Ms. Buddenberg displayed a
lack of candor about the circumstances involving the loss of data from her devices.
III.B.1.h. Fortuitously, Defendants obtain
Ms. Buddenberg’s iCloud account.

access

to

Vestige obtained none of the information subject to the protocol for forensic
searches for electronically stored information that the Court entered as an Order from
Ms. Buddenberg herself. (ECF No. 137.) But some information came to light. At
Vestige’s request, a law clerk at the firm representing Ms. Buddenberg provided
access to her iCloud account, including the most recent backup of it. (ECF No. 238,
PageID #13250.)
From review of the iCloud data (ECF No. 237, PageID #13132–35), Vestige
recovered 43 screenshots of texts from Ms. Buddenberg to Mix (ECF No. 227-26) and
74 screenshots of texts from her to Andrews (ECF No. 227-27). Many of these text
messages had not been previously produced. They show that Ms. Buddenberg deleted
relevant text conversations that bear directly on the parties’ respective claims and
defenses.
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III.B.1.i.

Ms. Buddenberg deleted relevant text messages.

To illustrate the point, the Court uses just two examples.
First, on March 6, 2017, the day before Ms. Buddenberg filed a charge of
retaliation with the EEOC, she texted with Mix. She produced the following version
of that text conversation with her initial disclosures:

(ECF No. 227-3, PageID #12191.) This version of the text exchange provides evidence
directly supporting Ms. Buddenberg’s claim of retaliation.

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Vestige recovered three different versions of screenshots of this same text
conversation (with boxes showing deletions and arrows pointing to where that
content should be):

ECF No. 227-26, PageID #12535

ECF No. 227-26, PageID #12536

ECF No. 227-26, PageID #12568

The right most text message is the one produced with the initial disclosures. At
minimum, these alterations to the text thread present material for further
investigation. At worst, they show Ms. Buddenberg intentionally altering content to
make her case appear stronger or even manufacturing facts to support her claims. In
between these extremes, lie a host of other possible explanations.
Second, on November 2, 2016, Ms. Buddenberg texted with Andrews. She
produced the following text exchange, among others, with her initial disclosures:

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(ECF No. 227-5, PageID #12201.) Again, this text message provides direct support
for Ms. Buddenberg’s version of events.
Vestige retrieved another version of it (the version produced with Plaintiff’s
initial disclosures appears on the left):

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The second version recovered shows that Ms. Buddenberg altered the content of this
exchange sometime after 2017 when she first provided it to her counsel by deleting
certain texts.
These are just two of the many examples of such text messages at issue.
III.B.1.j.

Ms. Buddenberg also failed to produce relevant
electronically stored information.

Vestige’s analysis of the data stored in the iCloud identified 43 screenshots of
text

conversations

between

Ms.

Buddenberg

and

Mix

and

74

between

Ms. Buddenberg and Andrews, including 43 messages with Mix that were not
previously produced and 28 with Andrews. (ECF No. 227-26; ECF No. 227-27.)

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Technologically, Plaintiff’s expert identified only one way individual text
messages could be deleted. (ECF No. 228, ¶ 3(a), PageID #12922.) It requires
intentional action by a device’s user to select particular messages to delete.
Additionally, the record contains evidence of Ms. Buddenberg using this method to
delete particular text messages. (ECF No. 227-27, PageID #12583–85, #12619–20 &
#12625–26; ECF No. 227-26, PageID #12544–45.)
There is much more to the technological ins and outs associated with the
parties’ respective positions on Ms. Buddenberg’s electronically stored information.
The Court has it reviewed it all, several times, and worked through it. The Court will
not get into all the technical parameters associated with data storage, its retrieval,
and how Ms. Buddenberg went about it here. Based on its review, and in the interest
of clarity, the Court limits its discussion of those matters to the following finding:
although there might be any number of innocent or inadvertent occurrences that
would explain a discrepancy here or there, or even categorical ones based on date or
the like, particularly for a technology user of typical or average competence for a
person of her age, as Ms. Buddenberg is, no such explanation accounts for the sheer
number of missing or deleted text messages in the record.
III.B.1.k. For Ms. Buddenberg, the ends justify the means.
The Court addresses one last factual matter based on the opportunity to
observe Ms. Buddenberg and listen to her testimony over a protracted period of time
at the hearing in March 2023. During her testimony, Ms. Buddenberg was asked on
cross-examination about her deposition on July 8, 2022, in which she was questioned
about the deletion of text messages.

She and counsel sparred over whether
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Ms. Buddenberg should have anticipated and been prepared to address that topic.
(ECF No. 238, PageID #13295.) Ms. Buddenberg testified that she “went in[to] it
knowing that I knew my truth, I know that I didn't do anything wrong, and I knew
that I could answer questions.” (Id., PageID #13296.)
This testimony was not an isolated incident. For example, when discussing
what she considers false charges giving rise to her discipline, Ms. Buddenberg became
quite emotional and testified: “I offered so much fact to demonstrate that none of the
stuff that they were accusing me of was real, and I believed, I trusted that Mr. Budzik
was going to take that information and use the truth that I was giving him.” (Id.,
PageID #13184.)
Watching Ms. Buddenberg’s testimony on these and other occasions leaves the
Court convinced that she feels wronged by the events at issue in this lawsuit. The
Court has no doubt that Ms. Buddenberg believes, perhaps with justification, that
Mr. Weisdack was an abusive and poor manager for the District and that Mix or
others would better serve the District, its employees, and ultimately the public. That
is the “my truth” to which she spoke. And she believes this version of the truth, her
truth, so strongly and so righteously that the Court finds that Ms. Buddenberg took
it upon herself to make sure the facts aligned with her truth. That is, when she had
difficulty finding a lawyer, Ms. Buddenberg edited text messages to make her truth
appear unassailable. Without doing so, she might not have found any lawyer to take
up her cause. When ordered to turn her devices over for forensic investigation, she
did what she could to ensure they were useless. And she took steps along the way to

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curate the record, to make it more favorable to her or to ensure that it reflected her
truth.
In this regard, Ms. Buddenberg can testify, truthfully from her perspective,
that she “did not purposefully delete any text messages that [she] felt to be relevant”
(ECF No. 237, PageID #12988) or that she did not intentionally delete any messages
to help her legal case (ECF No. 238, PageID #13210). But the objective facts do not
bear out her testimony or this version of events. When asked at the hearing about
missing text messages, Ms. Buddenberg’s pauses, lengthy at times, showed
knowledge of the reason for the missing or altered messages and the need to
articulate a plausible explanation consistent with “her truth.” Similarly, when asked
whether she ever wrote anything in a text that would benefit her if deleted, her
lengthy pauses spoke volumes.

Accordingly, the Court finds that the physical

evidence and Ms. Buddenberg’s dissembling when confronted with the actual truth
or with facts that contradict or call into question “her truth” leave little doubt about
the events that transpired with Ms. Buddenberg’s devices.
III.B.2. Conclusions of Law
An amendment to Rule 37(e) in 2015 worked major changes to the availability
of sanctions for a party’s spoliation of or failure to preserve electronically stored
information. Accordingly, cases interpreting or applying previous versions of the
Rule have little application outside of certain limited areas, such as when a party has
a duty to preserve or what amounts to prejudice. As the movants, Defendants bear
the burden of establishing whether sanctions are warranted on the record presented.
Courser v. Michigan House of Representatives, 831 F. App’x 161, 188 (6th Cir. 2020).
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Titled “Failure to Preserve Electronically Stored Information,” Rule 37
provides for sanctions where such information is lost, if it cannot be restored or
replaced through additional discovery. Fed. R. Civ. P. 37(e). Specifically, the Rule
applies to “electronically stored information that should have been preserved in the
anticipation or conduct of litigation.” Id. And its unavailability must result “because
a party failed to take reasonable steps to preserve it.” Id. Therefore, “the routine,
good-faith operation of an electronic information system” presents a relevant
consideration in evaluating whether a party failed to take reasonable steps to
preserve information.
amendment.

Fed. R. Civ. P. 37(e) advisory committee’s note to 2015

Reasonable steps to preserve do not require perfection.

Id.

In

particular, individual litigants might have less familiarity with preservation
obligations than those experienced in litigation. Id.
Where the loss of information results from a failure to take reasonable steps to
preserve it, “upon a finding of prejudice to another party from loss of the information,”
a court “may order measures no greater than necessary to cure the prejudice.” Fed.
R. Civ. P. 37(e)(1). Even then, “the initial focus should be on whether the lost
information can be restored or replaced through additional discovery.” Fed. R. Civ.
P. 37(e) advisory committee’s note to 2015 amendment. Under subsection (e)(1), a
finding of prejudice requires “an evaluation of the [lost] information’s importance in
the litigation.” Courser, 831 F. App’x at 187–88 (quoting Fed. R. Civ. P. 37(e) advisory
committee’s note to 2015 amendment). The more severe sanctions available under
Rule 37(e)(2), including an adverse-inference jury instruction, may be imposed only

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on a finding of specific intent “to deprive another party of the information's use in the
litigation.” Fed. R. Civ. P. 37(e)(2).
Although Defendants seek sanctions under Rule 37(b)(2) and Rule 37(c)(2) in
addition to Rule 37(e), the Court limits its analysis, at least for now, to Rule 37(e) for
two reasons. First, the failure to obey a discovery order—in this case, the parties’
agreement, which the Court entered as an Order (ECF No. 137)—presents a narrower
and more limited issue that is a subset of the Rule 37(e) motion on this record.
Accordingly, addressing Rule 37(e) will subsume all the relevant conduct instead of
just part of it. So too with Rule 37(c)(1) and Plaintiff’s failure to supplement. In any
event, these provisions of Rule 37 carry many of the same sanctions potentially
available under Rule 37(e). Second, a basic rule of statutory interpretation is that
the specific controls the general. See Fourco Glass Co. v. Transmirra Prods. Corp.,
353 U.S. 222, 228–29 (1957). Here, Rule 37(e) specifically governs a party’s failure to
preserve electronically stored information. This specific rule governs the analysis,
not the more general provisions in other parts of Rule 37, because it regulates the
particular circumstances at issue.
Finally, a word about inherent authority. A federal district court has inherent
authority to sanction bad-faith conduct. First Bank v. Hartford Underwriters Ins.
Co., 307 F.3d 501, 512 (6th Cir. 2002) (quoting Runfola & Assocs. v. Spectrum
Reporting II, 88 F.3d 368, 375 (6th Cir. 1996)). “[F]ederal courts have the inherent
power to impose sanctions to prevent the abuse of the judicial process.” Laukus v.
Rio Brands, Inc., 292 F.R.D. 485, 502 (N.D. Ohio 2013). Where a party litigates in

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bad faith or for oppressive reasons, a court may invoke its inherent authority to
impose sanctions. Big Yank Corp. v. Liberty Mut. Fire Ins. Co., 125 F.3d 308, 313
(6th Cir. 1997) (quoting Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240,
247 (1975)). In the Court’s view, Rule 37(e) displaces resort to inherent authority as
a basis for sanctions in all but the most egregious of cases, at least with respect to a
failure to preserve electronically stored information. Nonetheless, some courts still
invoke their inherent authority after the 2015 amendment, see e.g., Ottoson v. SMBC
Leasing & Fin., Inc., 268 F. Supp. 3d 570, 579–80 (S.D.N.Y. 2017). But the detailed
provisions of the rule “foreclose[] reliance on inherent authority . . . .” Fed. R. Civ.
P. 37(e) advisory committee’s note to 2015 amendment; see also Newberry v. County
of San Bernardino, 750 F. App’x 534, 537 (9th Cir. 2018). Accordingly, the Court also
need not address inherent authority at this time.
III.B.2.a. Should Have Been Preserved
Rule 37(e) only applies where electronically stored information “should have
been preserved in the anticipation or conduct of litigation.” Where a party destroys
or fails to preserve evidence in anticipation of litigation, a court may impose sanctions
for spoliation. Applebaum v. Target Corp., 831 F.3d 740, 744 (6th Cir. 2016) (citing
Adkins v. Wolever, 554 F.3d 650, 651 (6th Cir. 2009) (en banc)). Rule 37(e) does not
create a duty to preserve evidence, instead it is based on the common-law duty to
preserve. Fed. R. Civ. P. 37(e) advisory committee’s note to 2015 amendment. “[I]t
is beyond question that a party to civil litigation has a duty to preserve relevant
information, including [electronically stored information], when that party ‘has notice
that the evidence is relevant to litigation or . . . should have known that the evidence
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may be relevant to future litigation.’” John B. v. Goetz, 531 F.3d 448, 459 (6th Cir.
2008) (quoting Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 436 (2d Cir. 2001)).
Any number of events put a party on notice of a duty to preserve: demand letters,
hold notices, preservation requests, litigation threats, or a party’s own decision to
pursue a claim. Gomez v. Metropolitan Gov’t of Nashville & Davidson Cnty., No. 3:19cv-00026, 2021 WL 3406687, at *2 (M.D. Tenn. Aug. 4, 2021) (citation omitted). Some
courts consider the filing of an EEOC charge a sufficient trigger for the duty to
preserve evidence. See Chatman v. Truegreen Ltd. P’ship, No. 22-cv-2705, 2023 WL
8284401, at *3 (W.D. Tenn. Nov. 30, 2023) (collecting cases).
Here, the record leaves no doubt that by April 2017 (at the latest)—about a
year before commencing this lawsuit—Ms. Buddenberg had a duty to preserve her
electronically stored information and should have preserved text messages with Mix
and Andrews. By her own admission, she was contemplating litigation as of the date
of her disciplinary hearing and knew the importance of each of these witnesses.
Within a month or so of that hearing, at the latest, Ms. Buddenberg had counsel.
Shortly after having counsel, she provided text messages to her lawyers, recognizing
their importance. Ms. Buddenberg had a duty to preserve and should have preserved
her text messages with Mix and Andrews, as well as other electronically stored
information in anticipation of litigation. In this regard, the fact that no Defendant
requested production of electronically stored information until 2022 has no legal
significance. (ECF No. 227, PageID #12150.) Ms. Buddenberg had a duty to preserve
nonetheless.

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III.B.2.b. Reasonable Steps to Preserve
For a movant to obtain sanctions under Rule 37(e), the loss of electronically
stored information must be “because a party failed to take reasonable steps to
preserve it.” Fed. R. Civ. P. 37(e). Therefore, “the routine, good-faith operation of an
electronic information system” presents a relevant consideration in evaluating
whether a party failed to take reasonable steps to preserve information. Fed. R. Civ.
P. 37(e) advisory committee’s note to 2015 amendment. Reasonable steps to preserve
do not require perfection. Id. In particular, individual litigants might have less
familiarity with preservation obligations than those experienced in litigation. Id.
On the one hand, Ms. Buddenberg backed up the contents of her iPhone to the
cloud.

Without more, such a reasonable step might ordinarily foreclose the

availability of Rule 37(e) sanctions. But here there is more. The record shows that
Ms. Buddenberg curated the text messages she provided to her counsel—she sent
certain threads, not everything, and selectively edited their content. Then, she failed
to produce the electronically stored information backed up in the cloud in discovery
or even provide it to her counsel. When ordered to produce her devices for imaging,
they contained no usable information, and her primary phone was in factory reset
mode. Although relevant data still resided in the cloud, Ms. Buddenberg did not
download it or provide it to Vestige or her counsel.
This conduct on the part of Ms. Buddenberg shows a failure to take reasonable
steps to preserve electronically stored information for use in litigation consistent with
her duty to preserve this evidence and her obligations in discovery to produce it. See
Schnatter v. 247 Group, LLC, 3:20-cv-00003, 2022 WL 2402658, at *10–11 (W.D. Ky.
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March 14, 2022) (finding that a plaintiff did not take reasonable steps to preserve
evidence where he deliberately deleted some text messages, even though other
electronic evidence was backed up to the cloud); see also Adamczyk v. School Dist. of
the City of Hamtramck Pub. Schs., No. 2:20-cv-12450, 2023 WL 2733385, at *14 (E.D.
Mich. Mar. 31, 2023) (finding that a school’s superintendent did not take reasonable
steps to preserve electronically stored information when he turned his phone over in
factory reset mode rather than “as is”).
Plaintiff argues that there “was no reason she would have thought to save every
message” between herself, Mix, and Andrews. (ECF No. 276, PageID #15395.) A
litigant has no duty to retain every document in her possession. United States v.
Florence, No. 2:13-cv-00035, 2020 WL 1047377, at *4 (M.D. Tenn. Mar. 4, 2020)
(citations omitted).

But this is not a case of a party or court insisting on the

preservation or production of every scrap of paper or every electron, as the case may
be. To the contrary, the Court is not focused on marginal or de minimis gaps in the
production or the odd missing text here or there. This record shows a limited, curated
production and a wholesale effort to avoid any further discovery.
Further, Plaintiff contends that “[s]he was required to preserve only
documents she knew were relevant to future potential litigation.” (ECF No. 276,
PageID #15396 (emphasis removed).) But Ms. Buddenberg admitted that her text
messages with Mix and Andrews were relevant. In any event, her duty extends
beyond what she knew—it extends to evidence which she should reasonably have
known had relevance. See Florence, 2020 WL 1047377, at *4.

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Finally, this part of Rule 37(e) focuses on the reasonableness of a party’s steps
to preserve electronically stored information considering her sophistication and level
of technological knowledge and familiarity. Without question, Ms. Buddenberg is not
sophisticated when it comes to technology, unlike a professional plaintiff or
corporation with its own information technology department. She possesses the
average technological skills of a person of her age. But the record shows that she has
enough technological knowledge to delete individual text messages and take screen
shots of them. Also, she knew enough to have the contents of her phone backed up to
the cloud. This level of knowledge suffices to show that Ms. Buddenberg knew how
to take steps to preserve and produce her electronically stored information. She failed
to do so not out of inadvertence, neglect, or even based on something outside her
control, such as the crash of a server, but instead through intentional actions and
deliberate decisions.
III.B.2.c. Restoration or Replacement of Information
Before considering sanctions, Rule 37(e) focuses on whether electronically
stored information can be restored or replaced through additional discovery. Here,
the record shows, and the Court finds, that it cannot. Indeed, the parties undertook
efforts to restore the information by imaging Ms. Buddenbeg’s iCloud backup. Those
efforts failed to locate relevant information and data, for example, text messages
between Ms. Buddenberg and Mix on or before October 24, 2016. Moreover, discovery
from Mix or Andrews cannot provide those texts. When Mix left the District, he lost
access to the work content of his phone, and he testified that even its personal
contents were lost. (ECF No. 208-1, PageID #10267.) When she was deposed in
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August 2022, Andrews testified that she no longer had text messages with, or other
documents related to Ms. Buddenberg. (ECF No. 212-1, PageID #11469–70.) She
checked her phone at the deposition, and it had no text messages with
Ms. Buddenberg. (Id., PageID #11470–72.) No party contends that either Mix or
Andrews still has relevant text massages that could be recovered.
Plaintiff contends that she preserved the text messages produced with her
initial disclosures, which provided an alternative means for discovery of any evidence
spoliated during the conduct of this litigation—namely, the initial disclosures
themselves. (ECF No. 276, PageID #15391.) This argument misses the mark. The
initial disclosures are not true and accurate copies of the relevant text messages,
which Ms. Buddenberg curated and edited before providing them to her counsel.
They are not even all the relevant text messages. The fact that Defendants could use
the screenshots from the initial disclosures “cannot compensate for [their] inability
to obtain a complete record” of Plaintiff’s cell phone data. See Schnatter, 2022 WL
2402658, at *12 (citation omitted). And the record makes that fact clear.
Moreover, a party typically images or otherwise preserves electronically stored
information within a reasonable time after a duty to preserve arises in a separate
mirror image file or other copy of the device or data. In such circumstances, whatever
that party does with the organic messages on her phone or email matters little if at
all because the imaged copy exists for use in the litigation. But that did not happen
here. Ms. Buddenberg did not provide her phone or iCloud back up to her counsel
until 2023.

Consequently, as she altered content—innocently, accidentally, or

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otherwise—she was altering the only source of the electronic evidence in this case as
her actions overwrote her iCloud backup. In any event, Plaintiff’s argument fails to
account for the loss of electronically stored information and its manipulation in 2017,
including the key events in the case and the period when Ms. Buddenberg provided
some, but not all, of her relevant texts and emails to her counsel.
Finally, Plaintiff’s expert on electronically stored information opines that the
deletions Ms. Buddenberg made “are likely irretrievable.” (ECF No. 228, ¶ 5, PageID
#12922.) For all these reasons, the record demonstrates, and the Court finds, that
the electronically stored information at issue cannot be restored or replaced through
additional discovery.
III.B.2.d. Prejudice
Prejudice requires “an evaluation of the [lost] information’s importance in the
litigation.” Courser, 831 F. App’x at 187–88 (quoting Fed. R. Civ. P. 37(e) advisory
committee’s note to 2015 amendment). Plaintiff maintains that Defendants have not
suffered any prejudice because they merely “fantasize” about the content of the
allegedly spoliated messages and produced no evidence that the messages were
relevant. (ECF No. 276, PageID #15404). For purposes of spoliation, some courts
allow a showing of prejudice to be made with “plausible, concrete suggestions as to
what [the destroyed] evidence might have been.” Prudential Defense Sols., Inc. v.
Graham, No. 20-11785, 2021 WL 4810498, at *8 (E.D. Mich. Oct. 15, 2021). Before
the 2015 amendment to Rule 37(e), the Sixth Circuit recognized that circumstantial
evidence suffices. Automated Sols. Corp. v. Paragon Data Sys., Inc., 756 F.3d 504,

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514 (6th Cir. 2014). Obviously, no one can know what evidence that no longer exists
might show.
Defendants easily establish prejudice from the loss of the electronically stored
information at issue. At the outset, the prejudice in this case does not necessarily
result from the late disclosure of the electronically stored information, the normal
costs and burdens of litigation, or even the efforts the parties undertook to recover
what data and information they could. Instead, the information at issue materially
alters the presentation of this case and the claims and defenses available to the
parties—to the prejudice of Defendants. And the record shows as much. One example
of the electronically stored information actually produced illustrates the point.
On Saturday, November 5, 2016, Ms. Buddenberg spoke with Ms. Livers by
phone and advised her, as a representative of the Board, of the retaliation she
experienced. (ECF No. 197-3, PageID #6050; ECF No. 203-1, PageID #8617–19.) On
its own, this fact provides support for Plaintiff’s claims. After the close of discovery,
however, Ms. Buddenberg’s counsel located and produced additional responsive
electronically stored information. (ECF No. 227-15.) That production included an
email that Ms. Buddenberg sent from her personnel email account to Mix earlier in
the day on November 5, 2016, before she called Ms. Livers. (ECF No. 208-4.) In that
email, Ms. Buddenberg proposes to Mix building a case to present to the Board to
“show them some ideas on how we can function without [Mr. Weisdack so] they may
feel more confident.”

(Id., PageID #10537.)

“We know we will be fine without

[Mr. Weisdack] but the board doesn’t know it until we show them.” (Id.)

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This email materially changes the context and character of Ms. Buddenberg’s
phone call with Ms. Livers later the same day. Without it, Ms. Buddenberg appears
to be taking an appropriate step to report retaliation to a member of the Board
responsible for supervising, hiring, and firing the Commissioner.

With this

additional information, Ms. Buddenberg’s conversation with Ms. Livers appears
contrived for ulterior motives. To be clear, even then, the email does not disprove
Ms. Buddenberg’s claim of retaliation. Two things can be true at once: she was in
fact retaliated against, and she worked to secure Mr. Weisdack’s ouster for that
and/or other reasons. If her claims otherwise survived summary judgment, the
parties could present and argue their respective positions on these (and other) facts
to a jury. But Ms. Buddenberg may not manipulate the record by withholding or
delaying production of this email, deleting some text messages, and curating the
content of others.
Based on this example, which is representative of how the loss of electronically
stored information changes the complexion of the case, the Court finds that the loss
of electronically stored information, and in particular the text messages between
Ms. Buddenberg and Mix and Andrews at important times during the relevant
events, prejudices Defendants.
III.B.2.e. Intent to Deprive
Under Rule 37(e)(2), “only upon finding that the party acted with the intent to
deprive another party of the information’s use in the litigation” may a court impose
more serious sanctions for the spoliation of electronically stored information. Based
on the record in this case, the Court makes this finding. Ms. Buddenberg’s conduct
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goes beyond gross negligence or recklessness. She attempted to frustrate the forensic
investigation of her devices. She actively deleted specific text messages. During the
litigation, she altered the content of others. The facts show Ms. Buddenberg’s active
efforts to deprive Defendants of facts and information that they might be able to use
against her. Further, her testimony on the stand—including her demeanor, carefully
evasive answers, and pregnant pauses—bolsters this finding.
III.B.2.f. Unclean Hands
Finally, Plaintiff contends that the doctrine of unclean hands precludes
Defendants from carrying their burden to warrant any sanction under Rule 37(e).
(ECF No. 276, PageID #15407.) Factually, Plaintiff points to a litany of bad acts on
Defendants’ part to support this argument. (Id., PageID #15407–08.) Several of these
instances overlap with conduct at issue in Plaintiff’s claims on summary judgment.
At bottom, this argument turns on the contested authenticity of an email to
Andrews that Mr. Weisdack denies authoring and that the District did not produce
in discovery. (ECF No. 194-6.) For purposes of summary judgment, the Court already
assumed the authenticity of this email, construed it in Plaintiff’s favor, and
considered it. As a defense to sanctions under Rule 37(e), this email has no weight
for two reasons. Factually, at best, it presents a single instance of spoliation over
which the parties’ have good-faith disputes. Legally, Plaintiff directs the Court to no
authority that a party must have clean hands before seeking sanctions under
Rule 37(e). Each of the cases on which she relies relates instead to the general
proposition that a party may not obtain injunctive or other equitable relief with
unclean hands. But the Federal Rules of Civil Procedure abolish the distinction
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between law and equity in favor of one cause of action. Fed. R. Civ. P. 2. Therefore,
is difficult to see how the equitable doctrine of unclean hands can bar the availability
of sanctions for which the same Rules make allowance in Rule 37(e). On a practical
level, permitting actionable conduct to defeat Rule 37(e) sanctions would make the
Rule categorically unavailable in a broad swath of litigation—a nonsensical result at
odds with the plain text of the Rule and its purpose.
III.B.3. Appropriate Sanction(s) (Rule 37(e)(1)–(2))
If “the party acted with the intent to deprive another party of the information’s
use in the litigation,” a court may order more serious sanctions, including instructions
to the jury or dismissal. Fed. R. Civ. P. 37(e)(2). “A showing of negligence or even
gross negligence will not do the trick.” Applebaum v. Target Corporation, 831 F.3d
740, 745 (6th Cir. 2016) (citation omitted). But the party’s intent is enough; no
finding of prejudice is necessary. Fed. R. Civ. P. 37(e) advisory committee’s note to
2015 amendment. In using the more serious sanctions available under Rule 37(e)(2),
courts must exercise caution. Id. Such remedies should not be used where lesser
measures, including those available under Rule 37(e)(1), would suffice to redress the
loss of the information at issue. Id.
Application of Rule 37(e)(2) “requires a finding,” which “may be made by the
court when ruling on a pretrial motion . . . or when deciding whether to give an
adverse inference instruction at trial” under Rule 104(b). Fed. R. Civ. P. 37(e)(2)
advisory committee’s note to 2015 amendment; see also United States v. Maddox, 944
F.2d 1223, 1230 (6th Cir. 1991) (applying Rule 104(b) in the context of a spoliation
claim in a criminal case). Although the advisory committee’s note allows a court to
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make findings for purposes of summary judgment, as already noted, the Court did
not do so in the interests of ruling on the merits.
Because the Court finds that Ms. Buddenberg acted with the intent to deprive
her adversaries of electronically stored information, including her text messages with
Mix and Andrews, to help her case, a sanction under Rule 37(e)(2) might be
appropriate, subject to the limiting principle of Rule 37(e)(1). At the hearing, the
parties requested the opportunity for additional briefing on any sanction or remedy
following the Court’s findings.
No. 256, PageID #14647.)

(ECF No. 238, PageID #13333–36; see also ECF

Accordingly, determining the appropriate sanction

remains a matter for another day, and the Court will schedule additional proceedings
to address the matter at an appropriate time.
As a final note on the issue, the Court emphasizes that nothing in the record
supports any sanction against counsel. To the contrary, Plaintiff’s counsel acted with
reasonable diligence upon learning of the issues with electronically stored
information, cooperated within the bounds of the Rules in their investigation, and
aggressively defended their client. Whatever sanction(s) the record might ultimately
necessitate, they are not appropriate against Plaintiff’s counsel and do not result from
counsel’s efforts on behalf of their client.
FINAL JUDGMENT AND INTERLOCUTORY APPEAL
A grant of summary judgment constitutes a final judgment, which may be
appealed. But further proceedings remain to determine the appropriate sanction for
Ms. Buddenberg’s spoliation, including the prospect of a case-dispositive sanction

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under Rule 37(e)(2). In that respect, the Court’s ruling on Defendants’ motion under
Rule 37(e) remains interlocutory. Moreover, the imposition of a sanction short of
dismissal with prejudice constitutes an interlocutory order. See Mohawk Indus. v.
Carpenter, 558 U.S. 100, 111 (2009).
Nonetheless, the interlocutory character of the Court’s ruling on Defendants’
motion for sanctions does not affect the finality of the summary judgment ruling
because any sanction under Rule 37(e) is collateral to the merits. Any such sanction
does “not signify a district court’s assessment of the legal merits” of a party’s claims
or defenses. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396 (1990). Even a “casedispositive sanction that operates ‘on the merits’ under Rule 41(b)” remains
collateral. See Ben E. Keither Co. v. Dining Alliance, Inc., 80 F.4th 695, 700 (5th Cir.
2023) (considering the issues for jurisdictional purposes) (citing Ernst v. Rising, 427
F.3d 351, 367 (6th Cir. 2005), among other cases).
Notwithstanding these formalities, the Court believes that it and the parties
would benefit from appellate review of the entirety of this ruling and all issues in the
case at one time. Though the Court finds that there is no just reason to delay an
immediate appeal of its ruling under Rule 37(e), that motion does not present an
independent cognizable claim for relief. See Curtiss-Wright Corp. v. General Elec.
Co., 446 U.S. 1, 7 (1980). Therefore, Rule 54(b) does not permit certification of an
immediate appeal. General Acquisition, Inc. v. GenCorp, Inc., 23 F.3d 1022, 1026 (6th
Cir. 1994).

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However, a district court may also certify an order for interlocutory appeal
under 28 U.S.C. § 1292(b). Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 36 (1995).
Certification under Section 1292(b) is granted sparingly and only in exceptional
cases. Kraus v. Board of Cnty. Rd. Comm’rs for Kent Cnty., 364 F.2d 919, 922 (6th
Cir. 1966). Certification is appropriate where (1) the order involves a controlling
question of law; (2) a substantial ground for difference of opinion exists regarding the
correctness of the decision; and (3) an immediate appeal may materially advance the
ultimate termination of the litigation. West Tenn. Chapter of Associated Builders &
Contractors, Inc. v. City of Memphis (In re City of Memphis), 293 F.3d 345, 350 (6th
Cir. 2002) (citing 28 U.S.C. § 1292(b) and Cardwell v. Chesapeake & Ohio Ry. Co.,
504 F.2d 444, 446 (6th Cir. 1974)).
With respect to Section 1292(b), the Court finds that the issue of sanctions
under Rule 37(e) in this case presents an exceptional matter that warrants immediate
appeal because of the procedural history of the case, including two previous
interlocutory appeals, the closeness of the legal questions (on the underlying merits,
which a sanction under Rule 37(e) might affect), and the matters of public concern
that they implicate.

Further, the Court finds that an immediate appeal will

materially advance the ultimate resolution of this litigation, either by bringing it to
finality (or close to it) if the Sixth Circuit affirms or by allowing one trial on all issues
following remand.
As for the controlling questions of law that the Rule 37(e) issues present, there
are many. The Court sees them falling into three broad categories. First, since

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enactment of the amendment to Rule 37(e) in 2015, there are few appellate cases
explaining the correct legal standards attending application of the amended Rule.
Indeed, some courts continue to apply case law that predates the amendment,
potentially creating a trap for unwary courts and litigants when evaluating the
availability of sanctions for spoliation of electronically stored information. And few
cases apply Rule 37(e)(2) at all. Second, the parties have substantial differences of
opinion regarding whether Ms. Buddenberg had a duty to preserve electronically
stored information, the availability the doctrine of unclean hands as a defense to
sanctions, and what sanctions might be available based on the interaction of Rule
37(e)(1) and (2). Third, the Court and the parties will benefit from the Sixth Circuit
identifying the correct legal standards that govern a finding of intent to deprive under
Rule 37(e)(2), in particular, the allocation of responsibility between judge and jury
under Rule 104(b). Indeed, little case law explains how, if at all, the Court’s finding
of intent to deprive operates or applies at trial when it comes to conditional relevance
under Rule 104(b).

There is substantial ground for disagreement on these issues.

Indeed, the parties disagree on many, if not all, of them. Accordingly, the Court
certifies its Rule 37 Order for interlocutory review under Section 1292(b).
CONCLUSION
For the foregoing reasons, the Court GRANTS Mr. Budzik’s motion for
summary judgment (ECF No. 216); GRANTS the District Defendants’ motion for
summary judgment (ECF No. 217); GRANTS IN PART AND DENIES IN PART
Plaintiff’s motion for partial summary judgment (ECF No. 218; ECF No. 221; ECF

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No. 221-1); GRANTS Defendants’ joint motion for sanctions and will schedule
further proceedings by separate order at a later date to determine the appropriate
sanction (ECF No. 256); GRANTS the District Defendants’ motion to strike (ECF
No. 270); DENIES Plaintiff’s motion for discovery of materials and information
within the crime-fraud exception to attorney-client privilege (ECF No. 283); and
DENIES AS MOOT Defendants’ joint motion to strike (ECF No. 292). Further,
pursuant to 28 U.S.C. § 1292(b), the Court CERTIFIES its Order under Rule 37 for
interlocutory review.
SO ORDERED.
Dated: January 16, 2024

J. Philip Calabrese
United States District Judge
Northern District of Ohio

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