Holbrook v. Dumas
Filing
29
ORDER denying 22 Plaintiff's Motion for Summary Judgment; granting 23 Defendant's Motion for Summary Judgment; Dismissing the complaint with prejudice. Signed by Judge Sandra S Beckwith on 11/2/15. (mb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Jonah Holbrook,
Plaintiff,
vs.
Stephanie Dumas,
Defendant.
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Case No. 1:14-cv-776
ORDER
Before the Court are the parties’ cross-motions for summary judgment. (Docs.
22 and 23) Both parties seek judgment on Plaintiff’s one-count complaint brought under
42 U.S.C. §1983, alleging wrongful retaliation by Defendant in violation of Plaintiff’s First
Amendment rights to free speech. Both motions are fully briefed and ripe for decision.
For the following reasons, the Court will deny Plaintiff’s motion and will grant
Defendant’s motion.
FACTUAL BACKGROUND
Most of the relevant facts are undisputed, and the rest are construed in the light
most favorable to Holbrook. Jonah Holbrook was employed by the Village of Lincoln
Heights, Ohio in 2007 as a firefighter. Stephanie Dumas, the Village Manager,
promoted him to Fire Chief in December 2013. On July 22, 2014, Dumas received a
letter from the Village’s liability insurance provider, the Public Entities Pool of Ohio,
informing her that due to the number of claims against the Village and the amounts paid
by the Pool on those claims over the past 14 years, the Pool was terminating the
Village’s membership effective October 2, 2014. Dumas met with Holbrook on Friday,
July 25 and they discussed the Pool’s letter. Dumas expressed concern over the
possible loss of insurance coverage, as the Village could not keep the Fire Department
open; she also expressed concern about finding replacement coverage. After she met
with Holbrook, Dumas distributed a copy of the Pool’s letter to Village officials that
included the Mayor, elected Council members, the police chief and Holbrook, with an
email that said: “Good Evening, please see the attached information. I’ll talk more on
Monday.” (Doc. 19-1, Holbrook Dep. Ex. 2)
The next day, Saturday July 26, at 7:13 p.m., Holbrook forwarded Dumas’ email
and the Pool’s letter to his firefighter employees, with a message that stated: “PLEASE
TAKE THE TIME TO READ THE ATTACHED LETTER! IF THE VILLAGE DOES NOT
FIND ANOTHER INSURANCE CARRIER, WE COULD POTENTIALLY BE OUT OF A
JOB, PER THE CONVERSATION I HAD WITH MS. DUMAS ON FRIDAY 7/25/14.
PLEASE CALL ME OR EMAIL WITH ANY QUESTIONS. IF YOUR [sic] AVAILABLE
ON MONDAY 7/28/14 AT 6:30PM, PLEASE COME TO THE COUNCIL MEETING!
THANKS.” (emphasis in original) Holbrook signed his email, “Jonah W. Holbrook, Fire
Chief, Lincoln Heights Fire/EMS.” (Doc. 19-1, Holbrook Dep. Ex. F)
On Monday, July 28, the Village Council met for a regularly scheduled meeting
that was open to the public and broadcast on a local cable station. Holbrook attended
the meeting. At the request of Village Solicitor Desai, Dumas announced the receipt of
the Pool’s letter, and told Council that the primary reason for the termination was the
number of lawsuits filed against the Village since 2000. (Doc. 21-3) The meeting
minutes reflect that the Mayor asked Dumas what the Village could do to lessen the
risks posed by lawsuits; Dumas responded that the Pool already knew of the changes
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and improvements the Village had made in areas of public safety, and in hiring and
firing employees. (Id.) The minutes do not reflect any further discussion on the topic.
A few days later, on July 30, Holbrook posted a message on his Facebook page
that stated:
To all of the current/past employees who support the fire department. As
some of you may know, the fire department, police department and
maintenance department are in jeopardy. Due to insurance related issues
that were made public at last Monday’s (7/28) council meeting. Council
has the meetings recorded by video and there is online access, but I do
not know the site. As of now, there is a chance the departments will face
even more severe issues, as of October 2nd, 2014 if they cannot find
another insurance company.
(Doc. 19-1, Holbrook Dep. Ex. B, CM/ECF PAGEID 137)
Holbrook also discussed the issue with a personal friend, an Assistant Fire Chief for a
nearby city’s fire department. (Doc. 19-1, Holbrook Dep. at 62)
Dumas met with Holbrook again on August 5 and asked him whether he had
distributed the Pool’s letter to the Fire Department employees. Holbrook admitted that
he had done so, and Dumas told Holbrook that she wanted him to provide written
answers to questions about the matter. She also told him that she intended to ask for
his resignation once he provided those answers. Dumas sent him the questions on
August 7. (Doc. 19-1, Holbrook Dep. Ex. B) The questions generally asked Holbrook to
identify who he told about the Pool’s letter, to whom he had given a copy of the letter,
how he communicated with those he talked to, and the specific details of what he said.
Holbrook responded in writing to Dumas’ questions the next day, and also wrote a letter
to Mayor Mitchell, lodging a formal complaint about Dumas. Holbrook told Mitchell that
during the initial conversation on July 25, Dumas had mentioned the possibility of the
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Village fire, police and maintenance employees losing their jobs as of October 2, but he
had assumed during that discussion that Village administration positions would not be
affected. He also told Mitchell:
I sent [the letter and emails] to the employees as I felt it was their right to
know the conversation that the Manager and I had spoken of. For many
fire departments across the nation, it can take 2 months to a year to find
another position. I have admitted to telling the employees about the letter,
in fact I sent the email to all of them because I have no knowledge of any
reason behind not telling them, such as this being a ‘classified’ document.
On Tuesday 8/5/2014 the manager and I have a brief discussion in her
office and she lightly spoke if what I have done and I immediately stated I
did exactly what she was stating. [sic] She continued to state, she would
ask for my resignation once she received my reply to her answers. I
believe this is wrong in so many ways, because the manager told me
directly; there was a possibility of the employees losing their positions
upon the October 2nd deadline. I have to play both Fireman and Chief to
my employees. And the majority of the fire department has a family style
household. And due to the decreased economy, I felt it was their right to
know of the possibility they may lose their jobs. ... Also I have admitted to
[informing] the employees of the possibility of losing their positions,
because I would be including in this loss. My family would be significantly
affected as well. ...
(Holbrook Dep. Ex. C, PAGEID 139-140)
On Tuesday, August 12, Holbrook received a certified letter from Dumas, stating
that he was suspended with pay effective August 11. Holbrook spoke to Dumas by
telephone that day, and he agreed to meet with her on August 15. However, on August
15, Dumas cancelled that meeting and told Holbrook by telephone that he was
terminated. That afternoon, he met with Dumas to turn in his badge and keys, and then
returned his department-issued equipment.
On August 26, Dumas sent a letter to Holbrook confirming that he was
terminated from his position, and to state “some, but not necessarily all” of the reasons
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for that termination, which included:
1.
Emails regarding the delivery of the ambulance run Report to the
Police Department.
2.
Text to Fire Department personnel informing them they would not have a
job effective October 2, 2014.
3.
Post on Facebook indicating Fire Department personnel would not have a
job as of October 2, 2014.
4.
Discussion with Chief of Wyoming Fire Department indicating the Fire
Department would not exist after October 2, 2014.
5.
Bomb threat.
Dumas stated that this conduct amounted to disruptive activity in the workplace;
insubordination and other disrespectful conduct; unauthorized disclosure of confidential
information; and unsatisfactory performance or conduct. (Holbrook Dep Ex. F, PAGEID
152-153)
Holbrook filed a charge of discrimination with the Ohio Civil Rights Commission
on August 18, 2014. He alleged that he was the first Caucasian fire chief employed by
the Village; that Mayor Mitchell and Manager Dumas were both African American
females; and that they discriminated and retaliated against him based on his race and
sex. (Holbrook Dep Ex. G, PAGEID 154) He filed his single-count complaint in this
case on October 2, 2014, alleging that Dumas terminated him for exercising his First
Amendment right to speak about an issue of public concern. (Doc. 1)
DISCUSSION
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
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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 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 party bringing the summary judgment motion has the initial burden of
informing the district court of the basis for its motion and identifying portions of the
record that demonstrate the absence of a genuine dispute over material facts. Mt.
Lebanon Personal Care Home, Inc. v. Hoover Universal, Inc., 276 F.3d 845, 848 (6th
Cir. 2002). Once that occurs, the party opposing the motion may not "rely on the hope
that the trier of fact will disbelieve the movant's denial of a disputed fact," and must
make an affirmative showing with proper evidence in order to defeat the motion. Street
v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989). The non-moving party
“must do more than simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Electric Industries Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986). The court must construe the record in the light most favorable to the nonmovant, and draw 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
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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).
First Amendment Retaliation
The parties agree on the applicable standard for a Section 1983 claim. Holbrook
must show that (1) Dumas acted under color of state law, and (2) her conduct violated
Holbrook’s federal constitutional rights. In order to show a violation, Holbrook must
prove: (1) he engaged in speech or conduct protected by the First Amendment; (2) an
adverse action was taken against him; and (3) a causal connection exists between his
speech and the adverse action, his termination. Only the first factor is disputed.
The determinative question is whether Holbrook’s speech and conduct regarding
the Pool’s letter to the Village is protected by the Free Speech clause of the First
Amendment. The answer to that question is guided by Supreme Court cases defining
the contours of the free speech rights of public employees: does the speech involve a
“matter of public concern” (Connick v. Myers, 461 U.S. 138 (1983)); and is the speech
made by the employee as a private citizen and not pursuant to the employee’s official
duties (Garcetti v. Ceballos, 547 U.S. 410, 413-414 (2006)). If both these are true, the
court applies a balancing test to determine whose interests should prevail in any given
situation (Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)). See Evans-Marshall v.
Bd. of Ed. of Tipp City, 624 F.3d 332, 338 (6th Cir. 2010), articulating this three-step
analysis. These are issues of law for the court to decide where, as here, there is no
substantial dispute about whether the speech occurred, what was said, or the causal
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link between the speech and the adverse action. Farhat v. Jopke, 370 F.3d 580, 589593 (6th Cir. 2004).
In Connick, the Supreme Court observed that government employers are given
"wide latitude in managing their offices" and their decisions "are not subject to judicial
review even if the reasons for the dismissal are alleged to be mistaken or
unreasonable." 461 U.S. at 146 (citations omitted). Of course public employees do not
sacrifice their constitutional rights simply by virtue of their employment. But “... when a
public employee speaks out not as a citizen upon matters of public concern, but instead
as an employee upon matters only of personal interest, absent the most unusual
circumstances, a federal court is not the appropriate forum in which to review the
wisdom of a personnel decision ...”. Whether an employee's speech addresses a
matter of public concern depends on whether the speech can be "fairly considered as
relating to any matter of political, social, or other concern to the community,"
determined by "the content, form, and context of a given statement, as revealed by the
whole record." Id. at 147-48.
In Garcetti, the plaintiff (Ceballos) was an assistant district attorney and calendar
deputy who exercised supervisory responsibilities over other lawyers in the DA’s office.
An attorney representing a criminal defendant contacted Ceballos, saying he intended
to file a motion challenging a search warrant affidavit. He asked Ceballos to review the
case. Ceballos then read the affidavit in question, spoke to the affiant (a sheriff’s
deputy), and investigated the site of the search. Ceballos concluded that the affidavit
contained misrepresentations, and he wrote a memo to his supervisors recommending
that the criminal case be dismissed. A subsequent meeting between Ceballos and his
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supervisors, and the warrant affiant and several sheriff’s employees, became rather
heated after a sheriff’s lieutenant criticized Ceballos’ involvement in the case. The
district attorney rejected Ceballos’ recommendation and proceeded with the
prosecution; in a subsequent hearing challenging the search warrant, Ceballos was
called by defense counsel to testify about his concerns about the affidavit. Ceballos
was later reassigned to a different position, transferred to a different courthouse, and
denied a promotion.
Ceballos filed a lawsuit alleging these actions were unlawful retaliation for his
protected speech. His lawsuit was dismissed by the district court, which concluded that
his speech was not protected by the First Amendment, a result eventually affirmed by
the Supreme Court. The Court held that Ceballos’ memo was written as part of his
duties as a prosecutor and calendar deputy: “Restricting speech that owes its existence
to a public employee’s professional responsibilities does not infringe any liberties the
employee might have enjoyed as a private citizen. It simply reflects the exercise of
employer control over what the employer itself has commissioned or created ...”. Id. at
421-422. The court also observed: “Employers have heightened interests in controlling
speech made by an employee in his or her professional capacity. Official
communications have official consequences, creating a need for substantive
consistency and clarity. Supervisors must ensure that their employees' official
communications are accurate, demonstrate sound judgment, and promote the
employer's mission. Ceballos' memo is illustrative. It demanded the attention of his
supervisors and led to a heated meeting with employees from the sheriff's department.
If Ceballos' superiors thought his memo was inflammatory or misguided, they had the
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authority to take proper corrective action.” Id. at 423-424.
Here, Holbrook’s July 26 email was sent to the firefighters he supervised, and
warned them that they “could potentially be out of a job” if replacement coverage was
not obtained. He signed the email as “Fire Chief.” His Facebook posting on July 31
was first addressed to all “current/past employees” of the fire department. In his letter to
Mayor Mitchell, Holbrook admitted that he sent the email to his employees because he
“felt it was their right to know” about the potential for losing their jobs; he also mentioned
that he and his employees had families to support, and that it could be difficult to find
another job quickly. He told the Mayor that his job required him to “play both Fireman
and Chief” to his employees. The Court must conclude that Holbrook was not
commenting on the issue of the Village’s insurance coverage, as he suggests in his
motion. And there is nothing in the email suggesting a critique of Village administration
or budgets as he also suggests. The context and content of his communication lead to
the conclusion that he informed his employees because he thought they had a “right to
know” about the possible loss of their jobs.
Holbrook also contends that his job duties did not include communicating with
other employees about insurance coverage issues. But that fact is not dispositive,
especially in view of what Holbrook actually said in his email. “Speech by a public
employee made pursuant to ad hoc or de facto duties not appearing in any written job
description is nevertheless not protected if it ‘owes its existence to [the speaker’s]
professional responsibilities.’” Weisbarth v. Geauga Park Dist., 499 F.3d 538, 544 (6th
Cir. 2007)(quoting Garcetti), finding that a park ranger's statements about morale and
performance issues to an outside consultant hired by her employer were made pursuant
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to her official duties, even though the interview was an ad hoc duty and not part of her
official job description.
In contrast is Westmoreland v. Sutherland, 662 F.3d 714 (6th Cir. 2011). There
the plaintiff was a member of a city’s fire department and had been the head of the
department’s rescue dive team, which the city counsel disbanded. Sometime later, a
young boy drowned in a local lake. Westmoreland appeared at a city council meeting,
off duty and not in uniform, and harshly criticized the City’s decision to disband the
team, asserting that the dive team could have saved the boy. The City’s Mayor
concluded his statements amounted to insubordination and conduct unbecoming an
officer, and he was disciplined. The district court found that his statements were on a
matter of public concern and that plaintiff spoke “as a citizen,” not as an employee.
Therefore his speech was protected by the First Amendment. (The district court also
concluded that his statements were knowingly false and reckless in essentially accusing
the City Council of causing the boy’s death, and granted judgment to the City on that
basis.) The Sixth Circuit agreed that Westmoreland’s speech was protected by the First
Amendment: “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. Nothing in the record supports the claim that
plaintiff's expression was made pursuant to a task that was within the scope of his
official duties.” Id. at 719. The court of appeals reversed the grant of summary
judgment, finding disputed issues of fact about whether Westmoreland knowingly made
false and reckless statements.
If Holbrook had appeared at the City Council meeting, off duty and not in uniform,
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and publicly commented about ramifications on his department of a potential loss of
insurance coverage, his situation would be much closer to that in Westmoreland. But
Holbrook distributed an email to his employees using his official Village email account.
He understood that Dumas shared the information with him because he was the Fire
Chief. He then posted a message to his Facebook page, again stating that his
department (and others) “are in jeopardy.” Holbrook does not contend that his
Facebook page is a forum generally open to the public; and his posting was addressed
primarily to current and former Fire Department employees.
Holbrook responds that Dumas herself circulated the Pool’s letter to Holbrook
and Village Council members, negating any suggestion that the information was
confidential or that Holbrook should not have informed his employees about it. He also
notes that the concerns he expressed to his employees actually came to pass in
October, when the Village had to close the fire department for 24 hours until new
coverage was in place. Dumas made the insurance situation public at the July 28
council meeting. But the fact that the situation was discussed at a Council meeting, or
that Dumas circulated the letter to elected Council members and department heads,
does not determine whether Holbrook’s own communication to his employees was
protected. He concedes that “the critical factor is whether the public employee was
speaking pursuant to the official duties of his position. If so, the employee is not
speaking as a citizen and is subject to employer discipline.” (Doc. 27 at 4, citing
Garcetti, 547 U.S. at 421.) The truth of Holbrook’s statements about the Village’s
insurance coverage are not directly relevant to this question. And there is no dispute
that the Village actually received the Pool’s letter and that the Pool intended to
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terminate its coverage. No one has suggested that Holbrook made a maliciously false
statement on that topic.
He also argues that his speech is protected even though he learned about the
insurance situation at his workplace. He relies on Lane v. Franks, 134 S.Ct. 2369
(2014), where the Supreme Court concluded that the Eleventh Circuit had interpreted
Garcetti too broadly in dismissing plaintiff’s First Amendment claims. Lane was the
director of a youth program at a community college in Alabama. Part of his duties
included managing finances of the program, which were facing difficulties. When he
audited the program’s expenses, he discovered that an elected state representative was
on the payroll of the program but had not been reporting to her office or performing her
program duties. He instructed her to appear and perform the duties and she refused.
Lane then fired her, and she told another program employee that she intended to “get
back” at Lane.
Her termination attracted press coverage as well as an FBI investigation (the
program received federal funds). Lane was subpoenaed to testify before a federal
grand jury, which indicted the representative on four counts of mail fraud and theft of
funds from a federal program. Lane was also subpoenaed to testify at her trial, and she
was eventually found guilty by a jury. About six months later, Lane was terminated from
his job, and he brought claims against the president of the college who fired him,
alleging First Amendment retaliation. The district court granted summary judgment to
the president, and found no violation of clearly established law because Lane learned
about the matters he testified to in the course of his employment, relying on Garcetti.
The Supreme Court reversed, finding that the First Amendment “protects a public
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employee who provides truthful sworn testimony, compelled by subpoena, outside the
scope of his ordinary job responsibilities.” Id. at 2378. And it rejected the appellate
court’s finding that Lane did not speak as a citizen because he learned about the
subject of his testimony in the course of his employment. The critical question “... is
whether the speech at issue is itself ordinarily within the scope of an employee’s duties,
not whether it merely concerns those duties.” Id. at 2379. Here, there is no dispute that
Holbrook learned about the insurance situation as a result of his position as Fire Chief.
But the determinative question is not how he learned the information, but what he said,
where and how he said it, and when he spoke about that information. His own words in
the email demonstrate that he communicated the information to his fireman because he
was their chief, and he felt he had an obligation to inform them of the situation and that
they could be without a job in the near future.
Holbrook rejects Dumas’ suggestion that because he spoke out of a concern for
his own (and his employees’) jobs, his speech was not protected. Holbrook cites
Chappel v. Montgomery County Fire Prot. Dist. No. 1, 131 F.3d 564 (6th Cir. 1997),
which held that the plaintiff’s motive in speaking is not dispositive of whether his speech
is about a matter of public concern. The Sixth Circuit rejected the defendants’
arguments in that case that an employee’s speech at public board meetings about
mismanagement and misappropriation of funds by the fire board’s chief and his family
members was not protected, because the employee wanted a job at an expanded EMS
division of the department. The alleged financial mismanagement had delayed the
department’s expansion to offer EMS services. The court cited Connick, which
... instructs us that ‘whether an employee’s speech addresses a matter of
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public concern must be determined by the content, form, and context of a
given statement, as revealed by the whole record. ... It does not instruct us
to examine the content, form, and context of the statement merely to
determine the motive of the speaker, just as it does not instruct us to
determine whether the speaker has addressed a matter of public concern
by merely attempting to discern the speaker’s motive. Motive is a
relevant, but not necessarily dispositive factor in determining whether the
speech is a matter of public concern.
Chappel, 131 F.3d at 576 (internal quotations omitted). The Court does not find
Holbrook’s speech unprotected because his motive may have been to protect his
employees’ jobs or his own job. The issue is determined, as Chappel plainly held, by the
“content, form, and context” of Holbrook’s speech. The Court can only conclude that
the content and context of his email and Facebook post lead to the clear conclusion that
he was speaking to his employees on a personnel issue, and not on a matter of public
concern. As Garcetti held, if Dumas found his email inflammatory or misguided, she
had the authority to take corrective action.
Even assuming that Holbrook’s email to his employees and his subsequent
Facebook post relate to a general matter of public concern - the possible loss of the
Village’s liability insurance - the Court must then balance Holbrook’s interest in speaking
with the interests of the Village (acting through its Manager, Dumas) in “promoting the
efficiency of the public services it performs through its employees.” Pickering v. Board
of Education, 391 U.S. 563, 568 (1968). Factors the Court should consider include
whether the speech "meaningfully interfere[d] with the performance of [Plaintiffs'] duties,
undermine[d] a legitimate goal or mission of the employer, create[d] disharmony among
co-workers, impair[ed] discipline by superiors, or destroy[ed] the relationship of loyalty
and trust required of confidential employees." Kindle v. City of Jeffersontown, 374 Fed.
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Appx. 562, 568 (6th Cir. 2010), quoting Williams v. Commonwealth of Ky., 24 F.3d
1526, 1536 (6th Cir. 1994).
Dumas’s termination letter stated that Holbrook’s conduct was disruptive, and
constituted unsatisfactory performance or conduct. She argues that Holbrook’s email
and postings disrupted morale and caused alarm, and led to some employees actually
resigning from the Fire Department. Holbrook disputes these contentions. But in his
deposition, he admitted that his decision to send the email to all of his employees
affected their morale. He also admitted that some of his firefighters started looking for
other jobs, and that some of them left the department. (Doc.19-1, Holbrook Dep. at 40,
PAGEID 123.) The context and the tone of his email, together with his concessions
about the effect it had, support Dumas’ contention that the Village’s interests in avoiding
disharmony or disruption, and interfering with the loyalty and trust of its employees,
outweigh Holbrook’s interests in communicating in the fashion that he chose.
Finally, Dumas also argues that, even if Holbrook’s speech and conduct were
constitutionally protected and outweighed the interests of his employer, she is entitled to
qualified immunity from his claim which is brought against her in her personal capacity
only. (Holbrook’s complaint does not seek injunctive relief or reinstatement, and seeks
compensatory and punitive damages against Dumas.) The Supreme Court has held
that qualified immunity “gives government officials breathing room to make reasonable
but mistaken judgments about open legal questions.” Lane v. Franks, 134 S.Ct. at
2381, quoting Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2085 (2011). In Lane,
the Supreme Court held that the president of the college who terminated the plaintiff
was entitled to qualified immunity from plaintiff’s damages claims against him in his
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personal capacity. The Court cited Eleventh Circuit precedent which was mixed on
whether an employee’s subpoenaed testimony was protected by the First Amendment.
Here, Dumas argues that neither the Supreme Court nor the Sixth Circuit has
clearly extended First Amendment protection to an employee-supervisor who
communicates departmental information to his employee-subordinates. Indeed, the
Sixth Circuit recently noted that after Garcetti, it has often found that an employee’s
“inherent duty of internal communication” renders speech unprotected, as it “owed its
existence to professional responsibilities...” even though it may not be a regular or
routine part of the plaintiff’s job. See Boulton v. Swanson, 795 F.3d 526, 533 (6th Cir.
2015), where the court also observed that the task of determining if speech is protected
“has proven challenging” to the courts. The court cited Weisbarth v. Geauga Park
Dept., 499 F.3d 538 (6th Cir. 2007)(park ranger’s statements to departmental consultant
were not protected, as they were de facto duties of her position); Haynes v. City of
Circleville, Ohio, 474 F.3d 357, 364 (6th Cir. 2007) (a police officer’s memo to his chief
objecting to a staff reduction was not protected); and Fox v. Traverse City Area Pub.
Sch. Bd. Of Educ., 605 F.3d 345, 348-349 (6th Cir. 2010) (a teacher’s complaints that
her classes were too large and hindered learning were not protected). The Court sees
nothing in any of these cases that strongly suggests, much less clearly establishes, that
Holbrook had a constitutional right to circulate an alarming email message to his
employees, suggesting that they could soon lose their jobs.
Even if Holbrook’s speech or conduct is entitled to First Amendment protection,
the Court concludes that Dumas is entitled to qualified immunity from Holbrook’s
Section 1983 claim brought against her in her personal capacity.
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CONCLUSION
For all of the foregoing reasons, the Court denies Holbrook’s motion for summary
judgment (Doc. 22), and grants Dumas’s motion for summary judgment (Doc. 23).
Holbrook’s complaint is dismissed with prejudice.
SO ORDERED.
THIS CASE IS CLOSED.
DATED: November 2, 2015
s/Sandra S. Beckwith
Sandra S. Beckwith, Senior Judge
United States District Court
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