Shean v. Corbin
Filing
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Memorandum Opinion and Order. Defendant's Motion for Summary Judgment is granted with respect to Plaintiff's First Amendment Claim, and denied with respect to Plaintiff's ADA claim 18 . See Opinion for details. Judge Jack Zouhary on 6/29/2018. (D,L)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Case No. 3:17 CV 748
Theresa A Shean,
MEMORANDUM OPINION
AND ORDER
Plaintiff,
-vs-
JUDGE JACK ZOUHARY
Todd Corbin,
Defendant.
INTRODUCTION
Plaintiff Theresa Shean claims Defendant Todd Corbin assigned her to new duties at work as
retaliation against her protected speech in violation of the First Amendment. She also claims that her
termination based upon her inability to perform these duties with or without reasonable
accommodation (due to a hip surgery) was a violation of Ohio law and the Americans with
Disabilities Act (ADA). Corbin requested leave to move for summary judgment (Doc. 18), which
was converted to a Motion for Summary Judgment (Doc. 22). Shean opposed (Doc. 21), and both
sides filed supplemental briefs (Docs. 24–25).
BACKGROUND
The following facts are undisputed. Shean, a thirty-three-year veteran of the Huron County
Sheriff’s Office, supported incumbent Dane Howard in his November 2016 bid for re-election as
Sheriff. To this end, she wrote an endorsement of his candidacy, published in the Norwalk Reflector.
She signed the endorsement as Lt. Shean of the Huron County Sheriff’s Office (Doc 21-1 at 2).
At the time of the election, Shean held the position of Road Patrol Lieutenant, sometimes also
referred to as Road Patrol Supervisor in the briefing. Her responsibilities were administrative and
included oversight of training, dispatch, and road patrol. Following Howard’s defeat and Corbin’s
election as Sheriff, Corbin assigned Shean to conduct road patrol, which would routinely place her in
the field and at risk of physical altercations with suspects. Shean had not performed road patrol in
thirty years, and following her June 2016 hip replacement surgery, her doctor advised that she could
not be put at risk for physical altercations. Given the nature of road patrol, the parties agree Shean
would be unable to perform these duties with or without accommodation (Doc 21 at 3). In January
2017, Shean was placed on administrative leave, and she was involuntarily terminated the following
month (Doc 19-1 at 3-4).
STANDARD OF REVIEW
Summary judgment is appropriate where there is “no genuine dispute as to any material fact,”
such that the moving party “is entitled to judgment as a matter of law.” Federal Civil Rule 56(a).
This Court must draw all inferences from the record in the light most favorable to the non-moving
party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). This Court does
not weigh the evidence or determine the truth of any matter in dispute; rather, it evaluates only
whether the record contains sufficient evidence from which a jury could reasonably find for the
nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986).
DISCUSSION
First Amendment Claim
To establish a prima facie case of First Amendment retaliation, Shean must demonstrate that
(1) she engaged in constitutionally protected speech or conduct; (2) an adverse action was taken
against her that would deter a person of ordinary firmness; and (3) there is a causal connection
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between elements one and two -- that the adverse action was motivated at least in part by her protected
conduct.
Scarbrough v. Morgan, 470 F.3d 250, 255 (6th Cir. 2006).
Shean’s speech is
constitutionally protected if she spoke as a citizen on a matter of public concern, rather than as an
employee on a matter of personal concern. Garcetti v. Ceballos, 547 U.S. 410, 418 (2006); Connick
v. Myers, 461 U.S. 138, 147 (1983).
For First Amendment purposes, courts tend to classify individuals as private citizens rather
than public employees so long as their speech was outside the ordinary scope of their official duties.
Naghtin v. Montague Fire Dist. Bd., 674 F. App’x 475, 479 (6th Cir. 2016). The impetus, setting,
audience, and subject matter of the speech are all relevant factors. Stinebaugh v. City of Wapakoneta,
630 F. App’x 522, 523 (6th Cir. 2015). “Speech made to a public audience, outside the workplace,
and involving content largely unrelated to government employment indicates that the employee
speaks as a citizen, not as an employee, and speaks on a matter of public concern.” Scarbrough, 470
F.3d at 256. Using the fact of one’s public employment as political leverage weighs against plaintiffs
bringing First Amendment claims. Cf. Stinebaugh, 630 F. App’x at 523 (“Stinebaugh spoke to three
council members to give them a citizen taxpayer’s perspective on the fire department’s plan to expend
public money on a new rescue truck.”); Westmoreland v. Sutherland, 662 F.3d 714, 719 (6th Cir.
2011) (“Although plaintiff identified himself as a public employee, he appeared off duty, out of
uniform, and at a public meeting to address the Mayor and City Council during the public comment
period.”).
As for whether the speech discusses a matter of public concern, a government employee has
the right to speak on matters of “legitimate public concern” where “free and open debate is vital to
informed decision-making by the electorate.” Naghtin at 478. Whether speech or conduct touches
upon a matter of public concern depends on content, form, and context. Id at 479. Courts generally
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avoid constitutionalizing the employee grievance, and thus allegations of managerial incompetence
are not constitutionally protected. Connick, 461 U.S. at 154; Barnes v. McDowell, 848 F.2d 725, 735
(6th Cir. 1988). Further, the Sixth Circuit made clear that a veneer of public interest cannot serve as
cover for the self-interest of a public employee, and speech is not protected when “the employee’s
personal interest qua employee predominates over any interest he might have as a member of the
general public.” Brown v. City of Trenton, 867 F.2d 318, 322 (6th Cir. 1989). See also Naghtin at
480, 481 (“[W]e hold that his alleged altruism is insufficient to transform his petition into
constitutionally protected speech. Naghtin was a member of the unit previously commanded by
Donald Roesler, and he stood to benefit from his reinstatement”).
Shean’s speech took place in a public forum outside the office.
But she signed her
endorsement in her capacity as a Sheriff’s department lieutenant, without any of the qualifying
language that courts have found significant in distinguishing between a government employee’s
public and private personas. Shean’s newspaper endorsement was largely a paean of Howard’s
character, and her primary argument focused on staffing issues within the office. She wrote that
“when performance expectations are not met, strategic decisions may often result in staff assignment
changes. We have a sheriff who can make these tough decisions, though painful and severely
challenging. To change this leadership quality would be debilitating to the service capabilities of this
office” (Doc 21-1 at 2).
Despite her passing reference to “service capabilities,” Shean’s letter primarily focuses on
issues directly related to her government employment -- i.e., staff assignments. This, coupled with
the fact that she signed the endorsement as an employee of the Sheriff’s office, reflects that she was
not speaking as a private citizen on a matter of public concern. This Court therefore concludes that
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her speech was not constitutionally protected, and Corbin is entitled to summary judgment on the
First Amendment claim.
A final note: the parties devoted much of their briefing to the impact of Ohio’s Little Hatch
Act, Ohio Rev. Code § 124.57(A), which may restrict the ability of public employees to offer political
endorsements like this one. See State ex rel. Northern Ohio Patrolmen’s Benev. Ass’n. v. Wayne Cty.
Sherriff’s Dept., 27 Ohio App. 3d 175, 177 (Ohio Ct. App. 1986). But because this Court finds
Shean’s speech was not entitled to constitutional protection, it declines to reach this issue.
ADA Claim
Employers must make “reasonable accommodations to the known . . . limitations of an
otherwise qualified individual with a disability,” so long as the accommodation does not cause “undue
hardship.” E.E.O.C. v. Ford Motor Co., 782 F.3d 753, 761 (6th Cir. 2015) (quoting 42 U.S.C.
§ 12112(b)(5). An employee is “qualified” if she can perform the “essential functions” of the position
with or without reasonable accommodation. 42 U.S.C. § 12111(8). Eliminating an essential function
of the position does not constitute a reasonable accommodation, but “job restructuring” could be an
appropriate accommodation. Ford Motor Co., 782 F.3d at 761. In this case, the parties agree that no
accommodation would allow Shean to go on road patrol (Doc 21 at 3-4), but the question remains
whether road patrol was an “essential function” of her job.
The employer’s judgment, personnel constraints, written job descriptions, the amount of time
spent on the job performing the function, the consequences of not requiring an employee to perform
the function, and the work experience of past or current employees with similar or the same jobs are
all relevant to whether or not a given function is essential. 29 C.F.R. § 1630.2. Thus, while
potentially quite useful, “[w]ritten job descriptions are . . . not dispositive.” Rorrer v. City of Stow,
743 F.3d 1025, 1039 (6th Cir. 2014). See also Skerski v. Time Warner Cable Co., 257 F.3d 273 (3d
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Cir. 2001) (reversing summary judgment where deposition testimony reflected a dispute over the
essential functions of the position).
The record in this case includes a written job description, but the parties contest whether it is
the correct one (see Doc. 25 at 5–6). The description at issue is for the position of “Patrol Officer
Supervisor,” and it provides that patrolling the jurisdiction in response to emergency calls and citizen
complaints will constitute 10 percent of the employee’s job duties (Doc. 17-1). The written
description does not indicate whether it applies equally to employees of different ranks, and Shean
contends this is the description for a sergeant, rather than a lieutenant. Nevertheless, it is undisputed
that Corbin -- perhaps for reasons related to efficient personnel management (Doc. 24-1 at 17) -required Shean to perform road patrol following the 2016 election.
In the Seventh Circuit, a district court granted summary judgment for the defendant on a
similar fact pattern, and was reversed on appeal. Shell v. Smith, 789 F.3d 715, 716 (7th Cir. 2015).
In Shell, the job description for a “Mechanic’s Helper” provided that the employee “may occasionally
drive buses to field locations.” Id. But the plaintiff held that position for twelve years without a
commercial driver’s license (CDL) and without driving a bus. On appeal, the Seventh Circuit held
that the record contained sufficient evidence from which a reasonable jury could conclude that driving
a bus was not an essential function of the job. Shell, 789 F.3d at 716. The Seventh Circuit has
previously been cited with approval by the Sixth Circuit on related employment law issues. See, e.g.,
Burns v. Coca-Cola Enters., Inc., 222 F.3d 247, 257 (6th Cir. 2000) (“We agree with the Seventh
Circuit that an employer has a duty under the ADA to consider transferring a disabled employee who
can no longer perform his old job even with accommodation to a new position within the Company
for which that employee is otherwise qualified.”).
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Because there is a genuine dispute as to whether road patrol was an essential function of
Shean’s position, this determination should be left to a jury.
CONCLUSION
Defendant’s Motion for Summary Judgment is granted with respect to Plaintiff’s First
Amendment Claim, and denied with respect to Plaintiff’s ADA claim (Doc. 18).
IT IS SO ORDERED.
s/ Jack Zouhary
JACK ZOUHARY
U. S. DISTRICT JUDGE
June 29, 2018
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