Kirk v. Hockenberry et al

Filing 17

ORDER granting 14 Motion for Summary Judgment; dismissing the complaint with prejudice. Signed by Judge Sandra S Beckwith on 2/1/16. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Scott Kirk,

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) Case No. 1:14-CV-713
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Plaintiffs,
vs.
Craig Hockenberry, et al.,
Defendants.

ORDER
This matter is before the Court on the motion for summary judgment filed by
Defendants Craig Hockenberry and Manchester Local School District Board of Education.
Doc. No. 14. For the reasons that follow, Defendants’ motion for summary judgment is
well-taken and is GRANTED.
I. Background
Plaintiff Scott Kirk was employed by the Manchester Local School District Board of
Education (“the School Board”) as the Supervisor of Facilities and Transportation from 2006
to 2013.

In this capacity, Plaintiff was responsible for supervising the upkeep and

maintenance of all the School District’s buildings and grounds as well as all of its school
bus drivers. Plaintiff worked for the School Board under a series of contracts, the most
recent of which was a three-year agreement he signed in March 2013 to cover the period
from July 1, 2013 to June 30, 2016.
On July 1, 2013, the School Board hired Defendant Craig Hockenberry to become
the new superintendent of schools to replace the incumbent, Robert Ralstin, who had

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retired. Hockenberry’s term, however, did not officially begin until July 29, 2013. The
School Board appointed Lowell Howard, who was the Superintendent of the South Central
Ohio Educational Service Center, as the interim superintendent of the School District upon
Ralstin’s retirement.
During the first week of July 2013, the Treasurer of the School District, Karen
Ballengee, received a number of written complaints from Plaintiff’s subordinates and others
about Plaintiff’s conduct as the facilities supervisor. The allegations included:
1. Calling Rich Arnold “Mormon Boy;”
2. Calling Dan Sheridan “Preacher Dan” and “Church Boy;”
3. Telling employees, “If you like me you’ll work and if you don’t, you don’t work;”
4. Referring to some female employees as “cunts;”
5. Hiding the keys to the “Gator” - a motorized utility vehicle - so that the coaching
staff could not use it.
6. Hiding a contractor’s pallet jack;
7. Showing videos of some bus drivers to other employees in order to make fun of
them;
8. Swearing during in-service meetings and swearing near open classrooms;
9. Mismanaging the buildings and athletic grounds;
10. Not building positive relationships with staff members;
11. Having conflicts of interest in awarding contracts;
12. Calling Jeannie Justice “Granny” and telling her she was too old to do jobs she
had always done, such mowing and weed-eating;
13. Swearing at a cleaning products salesman and then throwing his products into
a dumpster; and,
14. Generally creating an intimidating work environment.
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See Doc. No. 14-1. There were also allegations that Plaintiff conducted personal business
on School District time, used a School District vehicle to retrieve a deer carcass, and had
the windows of his truck tinted on school grounds by a contractor who was doing other work
for the School District at the time. Hockenberry Dep. (Doc. No. 13-2) at 76.
Ballengee notified Hockenberry and Howard of these complaints. On July 15, 2013,
Hockenberry and Howard met with Plaintiff and informed him of the general nature of the
complaints against him.

Hockenberry told Plaintiff that he would be placed on

administrative leave, with pay, while he investigated the complaints.

Hockenberry

interviewed complainants both before and after this meeting. Hockenberry testified that he
first wanted to focus the investigation on the allegations indicating that Plaintiff was creating
a hostile work environment for his subordinates.
allegations were the most serious.

Hockenberry believed that these

He then wanted to investigate the allegations

implicating potential criminal misconduct, such as theft of time and misusing School District
property. Id. at 58-92; 146-48.
Hockenberry and Plaintiff had a second meeting on July 31, 2013. Hockenberry
testified that the purpose of the meeting was to review the allegations with Plaintiff and give
him an opportunity to respond to them. Hockenberry testified that he wanted to start by
reviewing the hostile work environment allegations but that Plaintiff kept interrupting him
to ask if he was going to call the police. Hockenberry testified that Plaintiff abruptly asked
what would happen if he resigned. Hockenberry told Plaintiff that if he resigned there would
be no need to contact the police. According to Hockenberry, Plaintiff then offered to resign.
Ballengee, who was also at the meeting, typed up a resignation letter for Plaintiff which he
took home, signed, and returned a few days later. Id. at 166-79. Two weeks later, at the
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next scheduled meeting of the School Board, Hockenberry recommended that the Board
accept Plaintiff’s resignation. The Board accepted Hockenberry’s resignation. Id. at 29-30.
Plaintiff’s version of the July 31 meeting is quite different. Plaintiff testified that he
was summoned to Hockenberry’s office rather unexpectedly and that he had little or no time
to prepare for the meeting.

Plaintiff testified that Hockenberry never gave him an

opportunity to respond to the allegations or present his version of events. Instead, Plaintiff
testified, Hockenberry presented him with a letter of resignation that had already been
prepared. Hockenberry told Plaintiff that if he did not resign, he had been instructed by the
School Board to terminate him. Plaintiff told Hockenberry that he would not sign the
resignation letter at that point in time. Hockenberry responded that he would not pursue
criminal charges if Plaintiff signed the resignation letter. Plaintiff took the letter home,
discussed the situation with his wife, then signed and returned the resignation letter four
or five days later. Plaint. Dep. (Doc. 13-1), at 151-76.
Plaintiff also claims that during this meeting Hockenberry made a statement to the
effect that “we have problems here with this district about your religious beliefs.” Plaint.
Dep. at 13-1, at 156. Plaintiff admitted that he could not remember the exact words used
by Hockenberry but interpreted his comment to mean that a person with his religious beliefs
was not welcome to work in the School District.1 Id. at 156-171. Hockenberry denied
making any comments about Plaintiffs religious beliefs or preferences. Hockenberry Dep.
at 160-61. Ballengee testified that Hockenberry told Plaintiff that “he [Plaintiff] cannot

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Plaintiff testified that he sometimes went to a Presbyterian church with his family,
but that he is not particularly religious and “had questions” about religion. Plaint. Dep. at
70, 170.
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dictate what someone’s religion is” and that “it doesn’t matter what their religion is to work
here.” Ballengee Dep. (Doc. No. 13-3), at 183.
In September 2014, Plaintiff filed a complaint asserting various federal and state law
causes of action against Hockenberry and the School Board. Count One alleges that
Defendants violated Plaintiff’s due process rights under the Fourteenth Amendment by
terminating him without a hearing and a meaningful opportunity to be heard. Count Two
asserts a “stigma-plus” due process claim alleging that Defendants denied Plaintiff of his
good name and reputation by accusing him of criminal conduct in the course of terminating
his employment. Count Three alleges that Defendants violated state law by not following
the procedural requirements of Ohio Rev. Code § 3319.16 before terminating him. Count
Four is a state law breach of contract claim. Count Five alleges that Defendants violated
the Fifth Amendment’s Takings Clause by breaching his employment contract. Finally,
Count Six alleges that Defendants violated the First Amendment’s Establishment Clause
and Free Exercise Clause by conditioning Plaintiff’s employment on his adherence to their
religious beliefs.
Following the conclusion of discovery, Defendants moved for summary judgment on
each of Plaintiff’s claims. Defendants’ motion has been fully briefed and is ready for
disposition.
II. Summary Judgment Standard of Review
The court “shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). An assertion of a undisputed fact must be supported by
citations to particular parts of the record, including depositions, affidavits, admissions, and
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interrogatory answers.

The party opposing a properly supported summary judgment

motion “‘may not rest upon the mere allegations or denials of his pleading, but . . . must set
forth specific facts showing that there is a genuine issue for trial.’” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986) (internal quotation omitted).
The Court is not duty bound to search the entire record in an effort to establish a
lack of material facts. Guarino v. Brookfield Township Trs., 980 F.2d 399, 404 (6th Cir.
1992). Rather, the burden is on the non-moving party to “present affirmative evidence to
defeat a properly supported motion for summary judgment,” Street v. J.C. Bradford & Co.,
886 F.2d 1472, 1479-80 (6th Cir. 1989), and to designate specific facts in dispute.
Anderson, 477 U.S. at 250. The non-moving party “must do more than simply show that
there is some metaphysical doubt as to the material facts.” Matsushita Elec. Ind. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986).

The court construes the evidence

presented in the light most favorable to the non-movant and draws all justifiable inferences
in the non-movant’s favor. United States v. Diebold Inc., 369 U.S. 654, 655 (1962).
The court’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, 477 U.S. at
249. The court must assess “whether there is the need for trial — whether, in other words,
there are any genuine factual issues that properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either party.” Id. at 250. “If the
evidence is merely colorable, . . . or is not significantly probative, . . . the court may grant
judgment.” Anderson, 477 U.S. at 249-50 (citations omitted).

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III. Analysis
Defendants argue that in order for Plaintiff to prevail on his first five causes of action,
he must demonstrate that they improperly terminated his employment.

Defendants

contend, however, that even construing the record in Plaintiff’s favor, the evidence shows
that he was not terminated but rather voluntarily resigned his employment. Defendants
argue that Plaintiff’s resignation was voluntary even though, according to him, he was faced
with the unenviable choice of resigning or being involuntarily terminated with the prospect
of a further criminal investigation into his conduct. As to Count Six, Defendants argue that
Plaintiff has no evidence of any policy of theirs that would constitute an endorsement of
religion, and, to the extent Plaintiff might be alleging a violation of the Free Exercise
Clause, he cannot point to any evidence showing that they substantially burdened his free
exercise of religion. Specifically, Defendants point out that Plaintiff has no evidence that
anyone employed by the School District, including Hockenberry, were even aware of his
religious beliefs.

Defendants also point out that Plaintiff cannot even recall what

Hockenberry actually said that was supposed to have been a negative reference to his
religious beliefs. Hockenberry also contends that he is entitled to qualified immunity on all
of Plaintiff’s constitutional claims.
For his part, Plaintiff admits signing and submitting the resignation letter. Plaintiff,
however, contests that his resignation was voluntary. Plaintiff contends that he was
constructively discharged and/or coerced into resigning because his termination was
imminent. Plaintiff specifically denies that he created a hostile work environment for his
employees and contends that the time he spent on personal business at work was de
minimis and commensurate with that of other employees. Plaintiff, therefore, argues that
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Defendants lacked good cause to terminate him because there are fact questions
concerning whether he engaged in the misconduct alleged by his subordinates. As a
result, according to Plaintiff, there is a jury question whether he was constructively
discharged by Defendants.

Finally, Plaintiff states that he is asserting both an

Establishment Clause violation of the First Amendment and a Free Exercise Clause
violation. Plaintiff argues that the evidence shows that Defendants violated the First
Amendment by terminating him for being a non-believer and/or by conditioning his
employment on adhering to their religious beliefs. Plaintiff also argues that Hockenberry
is not entitled to qualified immunity on his constitutional claims.
A. Plaintiff Voluntarily Resigned His Employment Therefore All of His Claims Fail
Count One of the complaint alleges that Defendants terminated Plaintiff’s
employment without due process of law. Under the Fourteenth Amendment, a public
employee under a contract requiring cause for termination, like Plaintiff in this case,2 has
a property interest in his employment which the government cannot terminate without due
process of law. See Bailey v. Floyd County Bd. of Educ., 106 F.3d 135, 141-42 (6th Cir.
1997). This generally means that a public employee is entitled to notice of the charges, an
explanation of the employer’s evidence, and an opportunity to respond with his account of
the events. Id. at 141.

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Plaintiff’s employment contract states that it is terminable by agreement of both
parties or “in accordance with ORC 3319.16.” Doc. No. 14-11, at 3. In turn, Ohio Rev.
Code § 3319.16 provides that “The contract of any teacher employed by the board of
education of any city, exempted village, local, county, or joint vocational school district may
not be terminated except for good and just cause.”
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Count Two alleges that Defendants violated Plaintiff’s right to due process by
accusing him of criminal conduct when he was terminated. The Due Process Clause
protects an individual’s good name and reputation from defamation by a state actor, but
only if the defamatory statement is connected with the loss of a protected property interest,
such as employment. Paul v. Davis, 424 U.S. 693, 711-12 (1976). A claim arising under
Paul is referred to as a “stigma-plus” claim. Doe v. Michigan Dept. of State Police, 490
F.3d 491, 501 (6th Cir. 2007).
Counts Three and Four arise under state law and are similar. Count Three alleges
that Defendants failed to comply with the procedural requirements of § 3319.16 and
otherwise lacked good cause to terminate his employment. Count Four alleges that
Defendants breached Plaintiff’s employment contract by lacking a good faith, lawful basis
for terminating it.
Count Five alleges that the termination of Plaintiff’s employment resulted in a taking
of his vested contractual rights in violation of the Fifth Amendment’s Takings Clause. The
Court’s initial reaction to this claim, like Defendants’, is that the Fifth Amendment clearly
does not apply in the context of the termination of Plaintiff’s employment because the
Takings Clause prohibits the taking of “private property . . . for public use, without just
compensation.” U.S. CONST. AMEND V (emphasis added). As Defendants point out, even
assuming that Plaintiffs’ job was “taken” when he was terminated, in no way was his former
job taken for “public use.” Plaintiff has not cited any cases supporting the notion that the
Takings Clause applies to the termination of public employment. The Court, nevertheless,
will skip over this problem for the time being because the record shows that Plaintiff’s
employment was not “taken” by Defendants.
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Finally, Count VI alleges that Defendants violated both the Establishment Clause
and the Free Exercise Clause of the First Amendment by conditioning his employment on
adherence to their religious beliefs. “Government may neither compel affirmation of a
repugnant belief . . . nor penalize or discriminate against individuals or groups because they
hold religious views abhorrent to the authorities[.]” Sherbert v. Verner, 374 U.S. 398, 405
(1963) (internal citations omitted). Thus, as Plaintiff contends, Defendants violated his First
Amendment right to religious freedom if they conditioned his employment on conforming
with their views on religion.
As Defendants argue in their papers, however, an implicit if not explicit requirement
in each of Plaintiff’s claims is that he must prove that they wrongfully terminated his
employment. Defendants point out, however, that Plaintiff resigned his employment and
that his resignation is presumed to be voluntary even though, according to him, he was
faced with being involuntarily terminated if he did not resign. The case law is decidedly in
Defendants’ favor on this point. See, e.g., Nunn v. Lynch, 113 Fed. Appx. 55, 59 (6th Cir.
2004)(“If an employee retires of his own free will, even though prompted to do so by some
action of his employer, he is deemed to have relinquished his property interest in his
continued employment for the government, and cannot contend that he was denied his due
process rights.”)(quoting Leheny v. City of Pittsburgh, 183 F.3d 220, 227 (3rd Cir. 1999)).
As Defendants correctly argue, resignations are presumed to be voluntary. Rhoads
v. Board of Educ. of Mad River Local Sch. Dist., 103 Fed. Appx. 888, 895 (6th Cir. 2004).
An employee can rebut this presumption by adducing evidence that his resignation was
involuntary. Id. The employee must show that an objectively reasonable person, under the
totality of the circumstances, would have felt compelled to resign if he were in the
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employee’s position. Id. In making this determination, relevant factors for consideration
are: 1) whether the employee was given an alternative to resignation; 2) whether the
employee understood the nature of the choice he was given; 3) whether the employee was
given a reasonable time in which to choose; and 4) whether the employee could select the
effective date of the termination.3 Id. A resignation is not involuntary merely because the
employee was given the choice between resigning and being fired, if the employer had
good cause to believe there were grounds for termination. Id. In this case, no reasonable
juror, after analysis of these factors, could conclude that Plaintiff’s resignation was not
voluntary.
First, Plaintiff did have an alternative to resigning - he could have faced termination
proceedings. As Defendants point out, Plaintiff acknowledged in his deposition that if he
had not resigned, they would have had to “prove their case” in order to terminate him.
Plaint. Dep. (Doc. No. 13-1), at 181. In other words, Plaintiff appears to have realized that
he had the option and opportunity to require Defendants to prove they had just cause to
terminate his contract.
Second, and relatedly, Plaintiff clearly understood the nature of the choice he was
being given. As just stated, Plaintiff understood that if he did not resign, Defendants would
have to establish cause to terminate him. Moreover, Plaintiff understood that by resigning,
he foreclosed any further criminal inquiry into his conduct. Id. at 158-59. Plaintiff also
secured Defendants’ agreement to characterize his resignation as a layoff so that he would

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A plaintiff can also establish that his resignation was involuntary by proving that the
employer obtained it by making a material misrepresentation to the plaintiff. Nunn v. Lynch,
113 Fed. Appx. 55, 61 (6th Cir. 2004). Plaintiff does not make that claim in this case.
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be eligible to receive unemployment benefits. Id. at 159-60; Ballengee Dep. (Doc. No. 133), at 189. Plaintiff, therefore, appears to have understood the options available to him and
the consequences that would result from those choices.
Third, Plaintiff had a reasonable period of time to decide whether to resign or face
termination. The record shows that Plaintiff did not sign the resignation letter on the day
it was allegedly presented to him. Plaintiff, rather, took the letter home with him and did not
return it until several days later. During this time, Plaintiff discussed the situation with his
wife, she contacted Ballengee to clear up some questions about his insurance coverage
and other matters, and he considered whether or not to resign. Plaint. Dep. at 173- 78.
Plaintiff also had another two weeks before the School Board met to formally accept his
resignation during which he could have withdrawn his resignation but did not. Id. at 182.
Plaintiff, therefore, had more than a reasonable amount of time to decide whether to resign
or be terminated. Cf. Rhoads, 103 Fed. Appx. at 895 (plaintiff’s resignation was voluntary
where she had seven hours to choose whether to resign or be fired).
Fourth, and finally, the record is not clear whether Plaintiff was able to select the
date of his termination. The effective date on the resignation letter is August 1, 2013, but
Plaintiff’s resignation apparently would not have been actually effective according to Ohio
law until it was accepted by the School Board. See id. at 895 n.4 (stating that under Ohio
law “the resignation of public employees is effective upon acceptance of the resignation by
the public employer”). In any case, even assuming that Plaintiff was not permitted to select
the effective date of his resignation, this factor is not entitled to any significant weight given
the substantial amount of time Plaintiff was afforded to make his decision.

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On consideration of these factors, no reasonable juror could conclude that Plaintiff’s
resignation was involuntary - he had a choice whether to resign or be terminated, he clearly
understood his options, and he had more than a reasonable amount of time to decide. The
fourth factor perhaps slightly favors Plaintiff but it is not sufficient in light of the strength of
the other factors for a jury to conclude that his resignation was involuntary. Defendants,
therefore, are entitled to summary judgment on each of Plaintiff’s claims.
Plaintiff argues, however, that since he denies engaging in the misconduct alleged
by Defendants and his subordinates, there are fact questions as to whether Defendants
had good cause to terminate him. Therefore, Plaintiff argues, there are factual questions
to be resolved concerning whether his resignation was voluntary. It is correct, as Plaintiff
states, that an employee’s resignation will not be considered voluntary if the employer lacks
good cause to believe there are grounds for termination. Rhoads, 103 Fed. Appx. at 895.
The Court disagrees, however, that the fact that Plaintiff denies all of the allegations of
misconduct means that there are factual questions concerning whether Defendants had
reason to believe there were grounds to terminate him. Defendants received a substantial
number of complaints about Plaintiff’s conduct, many of which were consistent in indicating
that he had created a hostile work environment for his subordinates. Obviously, in
resolving the complaints, Hockenberry would have had to resolve credibility determinations
between Plaintiff and the complainants, but Plaintiff has not shown that Hockenberry lacked
a reasonable belief that those complaints could be substantiated. See Rademakers v.
Scott, 350 Fed. Appx. 408, 412 (11th Cir. 2009) (employer had good cause to believe it had
grounds for plaintiff’s termination where it collected fifteen witness statements documenting
her misconduct); People of State of Ill. ex rel. Schoepf v. Board of Educ. of Morton High
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Schools, 606 F. Supp. 385, 390 (N.D.Ill. 1985)(choice between resignation and separation
was voluntary because employee could not show his superior knew or believed the reason
for the proposed separation could not be substantiated); see also Albano v. Columbus Bd.
of Educ., No. 2:14–CV–0379, 2015 WL 1221347, at *7 (S.D. Ohio Mar. 17, 2015) (finding
that plaintiff’s resignation was voluntary, despite his denials of the misconduct attributed
to him, because his attorney advised him to resign, he had two months to consider whether
to resign or be terminated, and he agreed to a resignation date). Indeed, the consistency
of the employees’ complaints would have been and is an important substantiating factor.
The record shows, therefore, that Hockenberry had a substantial basis for believing there
were grounds for terminating Plaintiff’s employment.
Plaintiff also contends that his resignation was not voluntary because he was
constructively discharged. A constructive discharge occurs when the employer makes the
employee’s working conditions so difficult or unpleasant that a reasonable person in the
plaintiff’s shoes would have felt compelled to resign. Yates v. Avco Corp., 819 F.2d 630,
636-37 (6th Cir. 1987). To establish a constructive discharge, the plaintiff must prove both
that 1) the employer deliberately created intolerable working conditions, as perceived by
a reasonable person, and 2) the employer did so with the intention of forcing the employee
to quit. Logan v. Denny’s, Inc., 259 F.3d 558, 568-69 (6th Cir. 2001). The mere fact that
the employer discriminated against the plaintiff is insufficient to prove a constructive
discharge. Moore v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073, 1080 (6th Cir.
1999) (“The plaintiff must show more than a Title VII violation to prove constructive
discharge, so the fact that plaintiff may have proven a hostile work environment is not
enough by itself to prove constructive discharge.”).
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In this case, even if Plaintiff subjectively felt coerced into resigning, as he contends,
the record does not show that the Defendants made his working conditions so intolerable
that a reasonable person would have felt compelled to resign. As just discussed, the
record demonstrates that Plaintiff’s resignation was voluntary. In terms of his actual
working conditions, the only evidence of discriminatory conduct on the part of Defendants
is Hockenberry’s alleged comment to the effect that there was no place in the School
District for a person with Plaintiff’s religious beliefs. This single comment, however, even
accepting it was uttered, is insufficient as a matter of law for a reasonable person to
conclude that Plaintiff’s working conditions were intolerable.

See, e.g., Bowman v.

Shawnee State Univ., 220 F.3d 456, 463 (6th Cir. 2000) (“Isolated incidents. . .unless
extremely serious, will not amount to discriminatory changes in the terms or conditions of
employment.”).
Finally, Plaintiff cites Ford v. General Motors Corp., 305 F.3d 545 (6th Cir. 2002),
for the proposition that an employee can be constructively discharged if he reasonably
resigns in the face of his imminent termination. Id. at 554. Ford, however, does not
support Plaintiff’s argument in the way he supposes. As an initial matter, if Plaintiff’s
proposition of law were correct, it would obliterate the presumption, discussed above, that
resignations are voluntary because an employee faced with the choice between resigning
and being terminated could resign and then claim that he was constructively discharged
because his termination was imminent.

That cannot be the case.

Additionally, as

Defendants point out, Plaintiff ignores the context in which the Ford Court concluded that
it was reasonable for the plaintiff to retire in the face of his imminent termination - the
evidence showed that the employer placed the plaintiff in a job which it knew he would have
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difficulty performing, refused his requests for help or a reduction in his work load, subjected
him to heightened scrutiny, and repeatedly threatened him with termination. Id. Thus,
according to the Ford Court, it was reasonable for the plaintiff “to preserve his pension by
resigning rather than risking imminent termination.” Id. In other words, the evidence in
Ford showed that the employer made the plaintiff’s working conditions intolerable, therefore
it was reasonable for the plaintiff to retire. The Ford Court did not, as Plaintiff suggests,
hold that it was reasonable for the plaintiff to resign since he was going to be terminated
anyway.
Conclusion
In summary, the record shows that Plaintiff’s resignation was voluntary or, stated
another way, on this record, no reasonable juror conclude that Plaintiff’s resignation was
involuntary. Since each of Plaintiff’s claims depends upon a finding that Defendants
wrongfully terminated his employment, Defendants are entitled to summary judgment on
all of Plaintiff’s claims.4 Given, this conclusion, the Court need not address whether

4

The Court recognizes that Defendants did not move for summary judgment on
Count VI on the grounds that Plaintiff’s resignation was voluntary. Defendants, however,
did raise this issue with respect to the other claims and whether Plaintiff’s resignation was
voluntary is not a claim-specific issue. Plaintiff, therefore, had a full opportunity to marshal
his evidence and show that his resignation was involuntarily. Accordingly, to the extent that
this results in the Court sua sponte granting summary judgment to Defendants on this
claim, Plaintiff was not prejudiced. Cf. Delphi Auto. Sys., LLC v. United Plastics, Inc., 418
Fed. Appx. 374, 380 (6th Cir. 2011)(in determining whether the district court erred in sua
sponte granting summary judgment, the court of appeals will “examine[] whether the
grounds upon which the district court granted summary judgment were specifically raised
by the moving party, or were at least addressed by the party implicitly in the facts and
arguments presented in the motion.”); Turcar, LLC v. I.R.S., 451 Fed. Appx. 509, 513-14
(6th Cir. 2011) (district court did not err in granting summary judgment on alternative basis
because it was “based on issues and evidentiary material that were the same as those set
forth in the parties’ arguments.”) (internal brackets and quotation marks omitted).
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Defendant Hockenberry is entitled to qualified immunity. Accordingly, Defendants’ motion
for summary judgment is well-taken and is GRANTED. The complaint is DISMISSED
WITH PREJUDICE. THIS CASE IS CLOSED.
IT IS SO ORDERED
Date February 1, 2016

s/Sandra S. Beckwith
Sandra S. Beckwith
Senior United States District Judge

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