Opinion
Case No. 1:06-cv-0455.
March 28, 2008
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on the Motion for Summary Judgment on Behalf of Defendants (doc. 12). Plaintiff Gregory T. Kelly filed this suit against his former employer, Defendant Village of Lynchburg ("the Village" or "Lynchburg"), and his former supervisor in Lynchburg, Defendant William Sulfsted, alleging that Sulfsted made false statements to an investigator conducting a background investigation of Kelly. For the reasons that follow, Defendants' Motion for Summary Judgment is GRANTED IN PART AND DENIED IN PART.
I. BACKGROUND A. Factual Background
Except where otherwise indicated, this statement of facts is based upon Defendants' Proposed Undisputed Facts (doc. 12-2), and Kelly's Response thereto (doc. 18).
Relevant to this lawsuit, Plaintiff Kelly's employment history began when he served as a police officer for the Hamilton Township Police Department. He was convicted of menacing and assault in 2000 after leaving employment with Hamilton Township.
In March 2001, Plaintiff was hired to work for the Lynchburg Police Department on the recommendation of William Sulfsted, the Chief of Police at that time. Kelly asserts that on November 27, 2001 he discovered that files had been deleted from the department's computer and he reported the same to Sulfsted. (Kelly Decl. ¶ 4.) Kelly began to investigate the incident on November 28, 2001, but that Sulfsted told him to go out on his patrol instead. (Id. ¶ 5.) Kelly further asserts that Sulfsted became angry when he insisted that the computer had to be preserved as evidence. He asserts that Sulfsted put his hand on his gun and asked Kelly if he wanted to shoot him. (Id.) Kelly reported Sulfsted's conduct to the Highland County Sheriff that same day. (Id.) Kelly states that the Sheriff served a warrant for the computer on Sulfsted that day. (Id.) Later that afternoon, Sulfsted suspended Kelly and recommended his termination for incidents including assault and insubordination. Kelly was suspended for a total of forty-five days before he was terminated. (Doc. 17-2 Ex. 4 at 38.) Additionally, Sulfsted resigned his position as Chief of Police for the Lynchburg in early 2002 after these events and accepted a position as the Village Administrator for Lynchburg. (Id. Ex. 4 at 71-72.)
During Kelly's suspension in early December 2001, Kelly accused Sulfsted of having assaulted a juvenile earlier that year in May 2001. (Doc. 17-2 Ex. 4 at 50.) Kelly testified at Sulfsted's assault trial in July 2002 and was cross-examined by Sulfsted's attorney. (Id. Ex. 4.) Kelly testified that he delayed accusing Sulfsted of assault for fear of retaliation. (Id. Ex. 4 at 34-35, 49-50.) Kelly acknowledged during his cross-examination that he was taking certain medications for anxiety. (Id. Ex. 4 at 40-42.) The jury acquitted Sulfsted of all charges.
In 2003 and 2004, Plaintiff Kelly was employed by CSX Railroad. Kelly suffered a hernia in September 2003 while working for CSX, but he did not report the injury to the railroad because he feared being fired. Kelly returned to work after taking time off work and then sustained another injury. Kelly was charged with the workplace offense of "brute force" by CSX for the incident in which he sustained the second injury. CSX assigned Trainmaster James Woody to investigate the brute force charge and then held a hearing on the matter on July 6, 2004. During a break at the hearing, an incident occurred between Woody and Kelly which led Woody to report Kelly to his superior, Robert Babcock, for threatening him. CSX then assigned a CSX special agent, James Dugger, to investigate the incident between Kelly and Woody. Dugger contacted Kelly's former employers. This federal lawsuit arises from statements that Kelly's former supervisor at the Lynchburg Police Department, William Sulfsted, allegedly made to Dugger as part of the CSX investigation.
Dugger interviewed Sulfsted on or about July 13, 2004 after identifying himself as a CSX investigator. Sulfsted was still serving as the Village Administrator at this time. Dugger told Sulfsted he was conducting an investigation regarding workplace violence. (Sulfsted Aff. ¶ 9.) Sulfsted was reluctant to talk to Dugger about Kelly. Dugger testified in his deposition that Sulfsted told him that Kelly was bipolar, that Kelly's sister had attempted suicide, and that Kelly had tried to "pick up" an underage waitress. (Dugger Dep. 48, 102, 124-25; Doc. 17-6 Ex. at 87.) Sulfsted also told Dugger that files at the Highland County Muncipal Court contained information about Kelly's mental condition. Dugger reviewed the files from Highland County, and although the files did contain a reference to a medication described as being used to treat seizures, panic disorder, and other conditions, the files did not indicate that Kelly was bipolar. (Dugger Dep. 124-25.) Finally, Dugger testified that Sulfsted told him during their interview that Kelly had been fired from his earlier employment with the Hamilton Township police department for pointing his gun at another officer during an altercation. Dugger stated that Sulfsted told him that Kelly had lied about the reason for his termination from Hamilton Township. (Id. at 145-46, 150; Doc. 17-6 Ex. at 87.)
Kelly denies the veracity of the various statements that Sulfsted allegedly told Dugger. Kelly denied that he has been diagnosed with bipolar disorder. (Kelly Decl. ¶ 9.) He also denied that his sister had committed suicide and that he had "attempted to hit on" an underage waitress. (Id.) Finally, Kelly denied that he pointed a gun at fellow police officer, Andy Roosa, or that he was fired for doing so. (Id. ¶¶ 10-11.) Instead, Kelly asserted that Roosa pointed his gun at Kelly's head after Kelly moved Roosa's police cruiser because Roosa left it running in a public parking lot. (Id. ¶ 10.)
For his part, Sulfsted denies Dugger's account of their conversation. Sulfsted denied telling Dugger that Kelly was bipolar. (Sulfsted Dep. at 73, 82-83.) He admitted that he has no information that Kelly has been diagnosed as bipolar, but he testified that he believed it to be true based on the testimony Kelly gave at his July 2002 assault trial that Kelly took medications for a mental condition. (Id.; Sulfsted Aff. ¶ 6.) Sulfsted admitted telling Dugger to review files at the Highland County Municipal Court for evidence regarding Kelly's medical condition. (Sulfsted Aff. ¶ 8.) Additionally, Sulfsted denied telling Dugger that Kelly "chase[d] 16-year-old waitresses." (Id. at 78-80.) Finally, Sulfsted denied telling Dugger that Kelly had been fired from Hamilton Township for pulling a gun on another officer. (Id.) Sulfsted has stated that he had heard about the Roosa incident from Kelly and had believed Kelly's statement that Roosa had pulled his gun on Kelly. (Sulfsted Dep. at 38-40.)
After CSX completed its investigation of the Kelly and Woody incident, CSX held a hearing on November 3, 2004 to "develop the facts and place [Kelly's] responsibility, if any, in connection with [his] alleged conduct unbecoming an employee when [he] acted in a threatening and uncivil manner towards Trainmaster James Woody at approximately 1530 hours, July 6, 2004." (Doc. 17-8 ex.) CSX terminated Kelly effective November 30, 2004 for the stated reason that he violated CSX Operating Rule 501 when he acted in a "threatening and uncivil manner toward Trainmaster James Woody on July 6, 2004." (Id.)
B. Procedural History
On July 12, 2006, Kelly filed this suit against Sulfsted only. (Doc. 1.) On October 6, 2006, Kelly filed an Amended Complaint (doc. 2) against both Sulfsted and the Village of Lynchburg, Ohio asserting claims for defamation, tortious interference with employment relationship, and First Amendment retaliation pursuant to 42 U.S.C. § 1983. Kelly asserts that Sulfsted deliberately or recklessly provided false information to Dugger — including that Kelly had pulled his gun on a fellow police officer and was fired by Hamilton Township for doing so, that Kelly was bipolar, and that Kelly's sister had attempted suicide — for the purpose of harming Kelly's employment relationship with CSX. Kelly asserts that Sulfsted acted in retaliation against Kelly because Kelly previously had (1) reported that computer files had been deleted from the Village police department's computer to the Highland County Sheriff and (2) accused Sulfsted of assaulting a juvenile. Sulfsted has denied wrongdoing. (Doc. 3.) Sulfsted and the Village of Lynchburg have now moved for summary judgment as to all claims stated against them.
II. STANDARDS GOVERNING MOTIONS FOR SUMMARY JUDGMENT
Federal Rule of Civil Procedure 56 governs motions for summary judgment. Summary judgment is appropriate if "there is no genuine issue as to any material fact" and "the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). On a motion for summary judgment, the movant has the burden of showing that no genuine issues of material fact are in dispute, and the evidence, together with all inferences that can permissibly be drawn therefrom, must be read in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986).
The movant may support a motion for summary judgment with affidavits or other proof or by exposing the lack of evidence on an issue for which the nonmoving party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). In responding to a summary judgment motion, the nonmoving party may not rest upon the pleadings but must go beyond the pleadings and "present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). The nonmoving party must "set out specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e)(2). The Court's task is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Liberty Lobby, 477 U.S. at 249. A genuine issue for trial exists when there is sufficient "evidence on which the jury could reasonably find for the plaintiff." Id. at 252.
III. ANALYSIS A. State Law Claims
1. State Law Claims Against Sulfsted
a. Statutory Immunity
Sulfsted moves for summary judgment as to the state law claims on the grounds of statutory immunity. Ohio Revised Code ("O.R.C.") § 2744.03(A)(6) provides statutory immunity to all employees of a political subdivision unless certain exceptions apply:
In addition to any immunity or defense referred to in division (A)(7) of this section and in circumstances not covered by that division or sections 3314.07 and 3746.24 of the Revised Code, the employee is immune from liability unless one of the following applies:
(a) The employee's acts or omissions were manifestly outside the scope of the employee's employment or official responsibilities;
(b) The employee's acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner;
(c) Civil liability is expressly imposed upon the employee by a section of the Revised Code. . . .
O.R.C. § 2744.03(A)(6). Sulfsted asserts he is entitled to this statutory immunity and that none of the exceptions apply as a matter of law. In response, Kelly contends that Sulfsted is not entitled to statutory immunity because, pursuant to the exception to immunity stated in O.R.C. § 2744.03(A)(6)(b), a reasonable jury could find that Sulfsted acted with malice, in bad faith, or in a wanton and reckless manner.
Sulfsted is correct that statutory immunity provided by O.R.C. § 2744.03(A)(6) can shield municipal employees from liability against claims of defamation. O'Hara v. Board of Educ. of Brooklyn City Sch. Dist., 72 F. App'x 311, 314 (6th Cir. 2003);Coleman v. Cleveland Sch. Bd. Of Educ., Case Nos. 84274, 84505, 2004 WL 2491662, *9 ¶ 68 (Ohio App. Nov. 4, 2004). In O'Hara andColeman, the courts found that immunity applied after concluding that the plaintiffs failed to support their claims with any evidence of improper motive on part of the municipal employees that would have supported an inference of bad faith, malicious purpose, or recklessness. See O'Hara, 72 F. App'x at 314; Coleman, 2004 WL 2491622 at *9 ¶ 68. A finding of malice, bad faith, or recklessness requires something more than negligence or gross negligence. Jones v. City of Cincinnati, Case No. 1:04-cv-616, 2006 WL 2987820, *16 (S.D. Ohio Oct. 17, 2006). In defining what constitutes recklessness pursuant to exception (b) in the context of defamation, the Sixth Circuit stated that a defendant employee's "[m]ere failure to verify [the truth of a statement] may constitute negligence but is not sufficient to support a finding of reckless misconduct" in the absence of evidence that the employee doubted the truth of his statements. O'Hara, 72 F. App'x at 314.
Another court in this United States District Court has comprehensively defined malice, bad faith, and recklessness in the context of the immunity statute as follows:
Under Ohio law, malicious means indulging or exercising malice; harboring ill will or enmity. Furthermore, "malice" can be defined as the willful and intentional design to do injury, or the intention or desire to harm another, usually seriously, through conduct which is unlawful or unjustified. The Ohio Supreme Court has defined "bad faith" to require more than negligence or bad judgment. Rather, "bad faith" requires dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud. An individual is reckless if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.Woods v. Miamisburg City Schs., 254 F. Supp. 2d 868, 881 (S.D. Ohio 2003) (Rice, Chief J.) (internal quotations and citations omitted).
The Court finds that genuine issues of material fact preclude a finding that Sulfsted is entitled to statutory immunity as a matter of law. Kelly has identified sufficient circumstantial evidence from which a reasonable jury could conclude that Sulfsted acted with malice, in bad faith, or recklessly so as to defeat the immunity. A reasonable jury could credit Kelly's testimony and conclude that the relationship between Kelly and Sulfsted was hostile. According to Kelly, Sulfsted threatened him when he challenged Sulfsted's decision not to investigate the deleted computer files. The Highland County Sheriff's subsequent investigation of the computer incident played a role in Sulfsted's decision to resign his police department position. (Doc. 17-2 Ex. 4 at 72.) Also, Kelly accused Sulfsted of assaulting a juvenile which led to a criminal trial against Sulfsted. Though more than two years passed between these incidents and Sulfsted's interview with Dugger, Sulfsted may not have had an earlier opportunity to retaliate against Kelly because the men did not work together after December 2001.
Sulfsted testified at a hearing on July 30, 2002 in the case ofOhio v. Sulfstead, Case No. 02 CRB 439 (Hillboro, Ohio Mun. Ct.), that he resigned because of the turmoil created between him and the Highland County Sheriff after Kelly had reported the deleted computer files to the Sheriff. (Doc. 17-2 Ex. 4 at 72.) Sulfsted stated in his deposition for this case that he was "not sure" if Kelly's complaint to the Sheriff played a role in his resignation from the police department and transfer to the village administrator position. (Sulfsted Dep. at 61-62.) Because all inferences must be taken in favor of Kelly, the nonmovant, the Court assumes that the investigation of the deleted computer files played a role Sulfsted's resignation.
A reasonable jury also might conclude that Sulfsted told Dugger false information regarding Kelly's mental condition and previous employment history. For example, Sulfsted testified at his deposition that he believed Kelly's statements to him that a fellow police officer had pulled a gun on him during an incident when Kelly was employed by Hamilton Township. However, if Dugger's testimony is to be believed, then Sulfsted falsely told Dugger that Kelly had been fired for pointing his gun at the fellow officer. Likewise, Sulfsted admitted at least once during his deposition that he had no information that Kelly had been diagnosed as bipolar, but Dugger testified that Sulfsted told him that Kelly was bipolar. In sum, a reasonable jury could credit evidence that Sulfsted was motivated by prior hostilities between him and Kelly to retaliate against Kelly by knowingly making false statements about Kelly's mental condition and a prior incident of workplace violence. Sulfsted would not be entitled to statutory immunity pursuant to O.R.C. § 2744.03(A)(6) as to the defamation claim if the circumstantial evidence of malice, bad faith, and recklessness is believed.
The statutory immunity provided by O.R.C. § 2744.03(A)(6) is incompatible with and cannot act as a shield against a claim of tortious interference. For claims of tortious interference, "the law has generally required proof that the defendant has acted maliciously." A B-Abell Elevator Co., 73 Ohio St. 3d 1, 14, 651 N.E.2d 1283 (1995) (Resnick, J., with two Justices concurring, two Justices concurring in judgment only, and one Justice concurring in part and dissenting in part). Because "malice is a necessary element of the claim and an exception to an employee's immunity under R.C. 2744.03(A)(6)," the statutory section cannot provide immunity to a municipal employee against a claim of tortious interference. Dolan v. Glouster, 173 Ohio App. 3d 617, 630, 879 N.E.2d 838, 848 (2007).
Accordingly, summary judgment is denied to Sulfsted on the state law claims to the extent that it is based on statutory immunity.
b. Qualified Privilege
Sulfsted also attempts to defeat liability on the state law claims by asserting that he had a qualified privilege to speak to Dugger about Sulfsted. The essential elements of a privileged communication are as follows: "(1) good faith, (2) an interest to be upheld, (3) a statement limited in its scope to this purpose, (4) a proper occasion, and (5) publication in a proper manner and to proper parties only." Taylor Building Corp. of America v. Benfield, 507 F. Supp. 2d 832, 841 (S.D. Ohio 2007) (citing Hahn v. Kotten, 43 Ohio St. 2d 237, 243, 331 N.E.2d 713, 715 (1975)). "A qualified privilege is recognized in many cases where the publisher and the recipient have a common interest, and the communication is of a kind reasonably calculated to protect or further it." Hahn, 43 Ohio St. 2d at 244. A qualified privilege does not negate the otherwise actionable quality of the statements made. Rather, it acts to heighten the standard of proof. See A B-Abell Elevator Co., 73 Ohio St. 3d at 9. A defendant otherwise protected by a qualified privilege can be held liable only if it is proven by clear and convincing evidence that he acted with actual malice.Id. at 11-12. "A qualified privilege protecting the making of defamatory statements is exceeded when the statements are made with `actual malice,' that is, with knowledge that the statements are false or with reckless disregard of whether they were false or not." Hahn, 43 Ohio St. 2d 237 at syllabus ¶ 2.
A qualified privilege can be asserted to defeat both defamation and tortious interference claims. Wylie v. Arnold Transp. Services, Inc., 494 F. Supp. 2d 717, 730-31 (S.D. Ohio 2006);Re/Max Intern., Inc. v. Smythe, Cramer Co., 265 F. Supp. 2d 882, 892 (N.D. Ohio 2003). Whether a qualified privilege exists is a question of law for the Court so long as material facts are not disputed. A B-Abell Elevator Co., 73 Ohio St. 2d at 7. However, a jury may appropriately decide if the defendant acted with actual malice. Worrell v. Multipress, 45 Ohio St. 2d 241, 248-50, 543 N.E.2d 1277 (1989).
Kelly suggests both that the qualified privilege did not exist, and that even if the privilege existed, it is defeated by the fact that Sulfsted acted with actual malice. Kelly contends the privilege did not exist because Sulfsted did not make his statements to proper parties only. Sulfsted testified that he made his comments to Dugger in a common area inside the Village's administration offices in the presence of three other individuals, including a clerk treasurer and a secretary for the Village. (Sulfsted Dep. 65-68, 105-07.) Sulfsted has not identified a common interest that these individuals shared with Dugger and Sulfsted. As such, Sulfsted's comments would not appear to be protected by the qualified privilege. Moreover, as discussed at length above, Kelly has identified sufficient circumstantial evidence from which a reasonable jury could conclude that Sulfsted acted with malice by deliberately or recklessly making false statements. The Court cannot find that Sulfsted is protected by a qualified privilege as a matter of law. Summary judgment is denied to Sulfsted on the state law claims to the extent that it is based on qualified privilege.
c. Merits of Tortious Interference Claim
Finally, Kelly moves for summary judgment as to the merits of the tortious interference claim only. The elements of a tortious interference with business relationship claim in Ohio are as follows:
(1) a business relationship; (2) the wrongdoer's knowledge thereof; (3) an intentional interference causing a breach or termination of the relationship; and (4) damages resulting therefrom.Fitzgerald v. Roadway Express, Inc., 262 F. Supp. 2d 849, 859-60 (N.D. Ohio 2003) (quoting Chandler Assoc., Inc. v. America's Healthcare Alliance, Inc., 125 Ohio App. 3d 572, 583, 709 N.E.2d 190 (1997)). For the reasons that follow, the Court finds that this claim fails as a matter of law because Kelly has not put forward sufficient affirmative evidence of causation.
Kelly has failed to present sufficient evidence upon which a jury could conclude that Sulfsted's statements to Dugger were a proximate cause of CSX's decision to terminate Kelly's employment. It is undisputed that CSX terminated Kelly following the November 3, 2004 disciplinary hearing held to determine whether Kelly had acted in a "threatening and uncivil manner towards Trainmaster James Woody." (Doc. 17-8 ex.) The termination letter dated November 30, 2004 was signed by Robert Babcock, a Division Manager for CSX. (Id.) The termination letter stated in relevant part as follows:
As a result of the testimony and other evidence presented in this investigation, it has been determined that you did indeed violate Operating Rule 501 when you acted in a threatening and uncivil manner toward Trainmaster James Woody on July 6, 2004.
For a violation of the above-mentioned rule and due to the serious nature of the infraction, you are dismissed from the service of CSX Transportation effective immediately.
(Id.) Babcock consulted with a person from labor relations in making the decision. (Babcock Dep. 19, 35-36, 55-56.)
Babcock verified at his deposition that Kelly was terminated "by virtue of his finding of a violation of Operating Rule 501." (Babcock Dep. 26.) He went on to testify:
Q. Okay. Was there any other conduct on part of Mr. Kelly that factored in or was considered in terms of his termination from CSX?
A. No, sir.
* * * *
Q. All right. Is it a correct statement to say that your review of the [hearing] transcript which led to the [termination letter] of November 20, 2004, concerned a matter of on-the-job performance by Mr. Kelly?
A. Yeah, this is driven by his actions at work, at CSX.
Q. Okay. It wasn't an action, was it, Mr. Babcock, that had something to do with him seeking employment at CSX?
A. No.
(Id. at 26-27, 40.) The parties have not provided the Court with the text of Operating Rule 501, though Babcock testified that it was "basically conduct unbecoming." (Id. at 25). Therefore, Babcock's testimony and the termination letter are consistent in indicating that Kelly was violated for violation of a workplace rule when he threatened Trainmaster Woody.
Nonetheless, Kelly contends that there is a genuine issue of material fact in dispute regarding whether Sulfsted's testimony was a proximate cause of CSX's termination decision. Kelly relies on the portion of the termination letter that states that CSX made its decision "[a]s a result of the testimony and other evidence presented in this investigation." Dugger testified that he was instructed by Babcock to informally investigate "if there was any basis for Mr. Woody's fear of Mr. Kelly." (Dugger Dep. 20.) Dugger examined Kelly's prior employment history as part of this investigation. Following his investigation, Dugger testified at the disciplinary hearing that Sulfsted had told him that Kelly was bipolar and that Kelly had been terminated from Hamilton Township for pointing a gun at an officer's head.
However, the fact that Dugger's testimony was part of the "other evidence presented in this investigation," (Doc. 17-8 ex.), does not refute Babcock's testimony that the termination decision was based only on Kelly's on-the-job performance at CSX. Dugger was not consulted on the decision to terminate Kelly and he has no information as to why Kelly was terminated except what is written in the termination letter. (Dugger Dep. 106.) Babcock testified without contradiction that it was the hearing officer's job "to hold the hearing, to ask the proper questions" and Babcock himself was "not a party to the hearing." (Babcock Dep. 34-36.) Thus, a material fact dispute is not created by the fact that the hearing officer permitted testimony that was broader in scope than evidence ultimately relied upon by CSX to terminate Kelly. In sum, Babcock's testimony that CSX terminated Kelly for violated Operating Rule 501 stands unrefuted. The evidence does not support a reasonable inference that there was a causal relationship between Kelly's protected speech against Sulfsted and CSX's decision to terminate Kelly. Therefore, Sulfsted cannot be held to have tortiously interfered with Kelly's employment relationship with CSX. Sulfsted is entitled to summary judgment as to the tortious interference claim as a matter of law.
2. State Law Claims Against the Village of Lynchburg
Plaintiff Kelly also seeks to impose liability upon Lynchburg for Sulfsted's alleged acts of defamation and tortious interference pursuant to the doctrine of respondeat superior. However, because the tortious interference claim against Sulfsted fails on the merits, the tortious interference claim against Lynchburg also fails on the merits. Additionally, Lynchburg raises statutory immunity as a defense to both state law claims.
The Ohio Revised Code provides that "a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function." O.R.C. § 2744.02(A)(1). Kelly does not contest that § 2744.02 provides Lynchburg with immunity in the absence of a specific exception to statutory immunity applying. (Doc. 17 at 14.) He contends, however, that the Village cannot raise the shield of statutory immunity because the statutory exception provided in O.R.C. § 2744.09 governs.
Section 2744.09 provides an exception to immunity for a municipality or political subdivision in the following instance:
(B) Civil actions by an employee, or the collective bargaining representative of an employee, against his political subdivision relative to any matter that arises out of the employment relationship between the employee and the political subdivision;. . . .
The issue is whether Kelly's claims arise from his former employment relationship with the Village of Lynchburg. Kelly asserts claims against Lynchburg for statements Sulfsted made to Dugger more than two years after Kelly's employment with the Village ended. Kelly argues that his claims arise from his former employment relationship with the Village because "[a]bsent the employment relationship, there would have been no conversation between Sulfsted and Dugger" and "Sulfsted's comments related, in part, to Plaintiff's conduct as an employee of the Village." (Doc. 17 at 14.) Lynchburg contends the claims do not arise from his employment with the Village because of the time lapse and because Sulfsted's comments were made pursuant to a CSX workplace investigation. (Doc. 21 at 10.) Neither party cites to any case law interpreting § 2744.09. The Court, however, has found two relevant cases.
In Villa v. Elmore, No. L-05-1058, 2005 WL 3440787 (Ohio App. Dec. 16, 2005), the plaintiff sued his former employer, a village police department, for invasion of privacy and defamation after the village released his personnel file to the media more than thirty years after his employment had ended. Id. ¶¶ 15-16. The court held that § 2744.09 was inapplicable because the matter did not arise from the plaintiff's former employment relationship.Id. ¶ 36 ("This case is not about appellant's employment with the village 35 years ago; it is about the village police chief allowing the media to view the subpoenas in appellant's personnel file three decades after his employment with the village was terminated.") Similarly, a federal district court held that the § 2744.09 exception was not applicable to a suit by a former county prosecutor against the county commissioners. Stern v. Felmet, No. C2-05-907, 2008 WL 397574, *9 (S.D.Ohio Feb. 11, 2008). The former county prosecutor had sued two commissioners for invasion of his privacy rights following a discussion at a commissioners' meeting about allegations that the former prosecutor had fraudulently obtained disability pension benefits after his employment with the county had ended. Id. at *9. The court concluded:
Ohio Rev. Code § 2744.09(B) does not bar application of state immunities in this case. Stern has not brought this action as a civil employee against his political subdivision. Certainly, he was not employed by the Board of Commissioners. Stern's claims relate to injuries he allegedly sustained to his reputation and privacy interests as a result of the July 2004 Board of Commissioner's meeting and subsequent criminal investigation into matters unrelated to his employment as a prosecutor, long after Stern had left his employment as the Jefferson County Prosecutor.Id. (citations omitted).
This Court, likewise, concludes that Kelly's claims did not arise from his former employment relationship with Lynchburg for purposes of the exception to statutory immunity contained in § 2744.09. Sulfsted made the alleged defamatory statements in the context of a CSX workplace investigation while Kelly was employed by CSX. Kelly's employment relationship with Lynchburg had terminated more than two years earlier. Finally, Sulfsted was the Village Administrator when he made the alleged defamatory statements, an office for whom Kelly had not been employed. The Court concludes based on the totality of the circumstances that Kelly did not bring this suit as a "an employee . . . against his political subdivision relative to any matter that arises out of the employment relationship." O.R.C. § 2744.09. Lynchburg is entitled to statutory immunity pursuant to O.R.C. § 2744.02 as a matter of law as to the defamation and tortious interference claims. Accordingly, the Village of Lynchburg is entitled to summary judgment on the state law claims asserted against it.
B. 42 U.S.C. § 1983 Claim — First Amendment Retaliation
Kelly asserts that Sulfsted violated 42 U.S.C. § 1983. Section 1983 is "not itself a source of substantive rights" but provides "a method for vindicating federal rights elsewhere conferred."Graham v. Connor, 490 U.S. 386, 393-94 (1989). Thus, to establish a claim under § 1983, a plaintiff must "identify a right secured by the United States Constitution and the deprivation of that right by a person acting under color of state law." Russo v. City of Cincinnati, 953 F.2d 1036, 1042 (6th Cir. 1992). Here, Kelly alleges that Sulfsted retaliated against him in violation of the First Amendment by providing false information to Dugger. Kelly makes his claim against Sulfsted in his personal and official capacities.
1. Personal Capacity Claim Against Sulfsted
Defendant Sulfsted contends he is entitled to qualified immunity against the § 1983 claim. Under the doctrine of qualified immunity, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Feathers v. Aey, 319 F.3d 843, 847 (6th Cir. 2003) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When the defense of qualified immunity is raised in the context of a summary judgment, the plaintiff faces two hurdles. Russo, 953 F.2d at 1043. First, the plaintiff must show that the facts alleged and the evidence produced, when viewed in a light most favorable to the plaintiff, show that the officer's conduct violated one or more of the plaintiff's constitutional rights. See Saucier v. Katz, 533 U.S. 194, 201 (2001); Russo, 953 F.2d at 1043. Next, the plaintiff must "allege facts sufficient to indicate that the act in question violated clearly established law at the time the act was committed."Russo, 953 F.2d at 1043; see also Saucier, 533 U.S. at 200. If, at the first step, the court determines that "no constitutional right would have been violated were the allegations established" the inquiry ends. Saucier, 533 U.S. at 201. In other words, if the plaintiff cannot get past the first hurdle, the plaintiff's claim necessarily fails.
Plaintiff Kelly must establish a claim of First Amendment retaliation for his claim to survive Sulfsted's assertion of qualified immunity. He must prove three elements:
(1) the plaintiff engaged in protected conduct; (2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) there is a causal connection between elements one and two — that is, the adverse action was motivated at least in part by the plaintiff's protected conduct.Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc); see also Mezibov v. Allen, 411 F.3d 712, 717 (6th Cir. 2005). The second element alternatively has been stated as requiring a plaintiff to prove that "defendant's action injured plaintiff in a way likely [to] chill a person of ordinary firmness from further participation in that activity." Center for Bio-Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807, 821 (6th Cir. 2007). Additionally, because Kelly was a public employee at the time he made at least part of his alleged protected speech, he also must prove that "[his] interests . . . as a citizen, in commenting upon the matters of public concern, outweigh[ed] the employer's interest in promoting the efficiency of the public services it performs through its employees." Perry v. McGinnis, 209 F.3d 597, 604 (6th Cir. 2000) (quoting Pickering v. Board of Educ., 391 U.S. 563, 568 (1968)). The analysis of this factor, however, is not dispositive here.
Sulfsted contends that Kelly cannot establish the first element or third element. The Court will assume for purposes of this Order that Kelly engaged in protected speech when he reported the deleted computer files to the Highland County Sheriff and when he accused Sulfsted of assault. Moreover, the Court finds that there is sufficient evidence to conclude that Sulfsted acted in retaliation for Kelly's protected speech. Sulfsted emphasizes the undisputed facts that approximately two years had passed between Kelly's protected speech and Dugger's interview with Sulfsted, and Sulfsted did not initiate the contact with Dugger. It is true that the temporal lag between the protected speech and the alleged act of retaliation is not evidence of causality. See Clark County School Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) ("Action taken (as here) 20 months later suggests, by itself, no causality at all.") However, it does not follow that the temporal lag defeats a finding of a causal relationship. See Dixon v. Gonzales, 481 F.3d 324, 335 (6th Cir. 2007) (stating that "a mere lapse in time between the protected activity and the adverse employment action does not inevitably foreclose a finding of causality"). Likewise, the fact that Sulfsted did not initiate his meeting with Dugger and initially was hesitant to talk to Dugger, does not foreclose a finding that Sulfsted took advantage of an opportunity to retaliate when it was presented. The evidence concerning the hostilities between Kelly and Sulfsted, coupled with the evidence that Sulfsted made false statements to Dugger, is sufficient circumstantial evidence to establish that Sulfsted was motivated to retaliate against Kelly.
In fact, there is an interesting legal question presented as to whether Kelly's statements were protected speech in light of the Supreme Court's holding that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Garcetti v. Ceballos, 547 U.S. 410, 474 F.3d 357, 363 (2006). The Court need not resolve that issue here.
However, the Court is concerned that Kelly has not clearly identified the second element: the nature of the alleged adverse action taken against him. In the Amended Complaint, Kelly alleges that CSX's termination of Kelly was the direct and intended consequence of Sulfsted's disparaging remarks about Kelly to Dugger. (Doc. 2 at ¶¶ 8-9.) This theory of liability fails as a matter of law. Kelly has not presented sufficient evidence upon which a jury could conclude that Sulfsted's statements to Dugger were a proximate cause of CSX's termination decision. As explained earlier, Robert Babcock, acting in consultation with labor relations, made the termination decision. Babcock's testimony is uncontroverted that he made the decision for CSX to terminate Kelly's employment and the decision was based solely on the finding that Kelly's actions in threatening Trainmaster Woody violated CSX Operating Rule 501. In sum, the evidence does not support a reasonable inference that there was a causal relationship between Kelly's protected speech against Sulfsted and CSX's decision to terminate Kelly.
Kelly's brief opposing summary judgment, however, suggests that Sulfsted's act of making allegedly false statements to Dugger was itself an adverse action. Sixth Circuit case law suggests that in some situations the act of defamation can itself constitute an adverse action. The analysis of whether an act qualifies as an adverse action must be tailored "to the circumstances of this specific retaliation claim." Mezibov v. Allen, 411 F.3d 712, (6th Cir. 2005). In Mezibov, a defense attorney plaintiff sued a county prosecutor for First Amendment retaliation alleging that the prosecutor had defamed him in retaliation for the defense attorney having presented a vigorous defense of his client in a criminal trial. Id. at 721-22. The Sixth Circuit examined whether the defense attorney had alleged a "specific" or "concrete" injury as a result of the alleged defamation as opposed to suffering mere damage to his professional reputation and emotional anguish. Id. at 722. The court stressed that in some cases "harm to his character and reputation" could be sufficient to amount to a constitutional injury, but it found that a reasonable defense attorney would not have been chilled in his First Amendment expression by the defamation in that case. Id. at 722-23; see also Mattox v. City of Forest Park, 183 F.3d 515, 521 (6th Cir. 1999) (stating that an injury based on "embarrassment, humiliation, and emotional distress" could be actionable in some situations).
The question here is whether Kelly would have been deterred as a police officer from reporting potential crimes committed within the police department by being subjected to the alleged defamation. The Court must bear in mind that Kelly, who was a public employee at least when he reported the deleted computer files to Highland County Sheriff, "may need to have thicker skin than the ordinary citizen when it comes to attacks on [his] views." Mattox v. City of Forest Park, 183 F.3d 515, 522 (6th Cir. 1999). It is, of course, a police officer's duty to report and investigate potential crimes. A reasonable police officer would expect that some accused persons might try to impeach his credibility as the investigating or arresting officer.
The most significant defamatory statements allegedly made by Sulfsted were that Kelly was bipolar and that he had pulled his weapon on another police officer while employed by Hamilton Township. However, it already was a matter of public record, after he testified in Sulfsted's assault trial, that Kelly took medications for a mental condition. Likewise, it was already a matter of public record that Kelly was convicted of menacing and assault in 2000 after leaving employment with Hamilton Township. Thus, whether or not the alleged specific statements made by Sulfsted were false — because Kelly was not bipolar and because he did not, in fact, point his gun at another Hamilton Township police officer — the Court finds that the nature of the statements made against Kelly were not so disparaging as to chill a police officer from exercising his First Amendment rights.
In light of the foregoing analysis, and because Kelly cannot establish a violation of a constitutional right, Sulfsted is entitled to summary judgment as to the First Amendment retaliation claim asserted pursuant to 42 U.S.C. § 1983.
2. Official Capacity Claim Against the Village of Lynchburg
Kelly's claim pursuant to 42 U.S.C. § 1983 against Sulfsted in his official capacity is a claim against the Village of Lynchburg. Kentucky v. Graham, 473 U.S. 159, 166 (1985) ("As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity."); Leach v. Shelby County Sheriff, 891 F.2d 1241, 1245 (6th Cir. 1989) ("A suit against an individual `in his official capacity' has been held to be essentially a suit directly against the local government unit and can result in that unit's liability to respond to the injured party for his injuries.") A city or municipality may be "liable under § 1983 only where the municipality itself causes the constitutional violation at issue." City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989) (emphasis in the original). Respondeat superior is not available as a theory of recovery under § 1983. Monell v. Dep't. of Soc. Servs., 436 U.S. 658, 691 (1978). Therefore, Kelly cannot subject Lynchburg to § 1983 liability for the actions of Sulfsted, the Village Administrator, unless he can "identify a municipal `policy' or `custom' that caused [his] injury." Board of Cty. Comm'rs of Bryan County v. Brown, 520 U.S. 397, 403 (1997).
Kelly's official capacity claim fails as a matter of law because he failed to prove that Sulfsted violated his First Amendment rights. "If no constitutional violation by the individual defendants is established, the municipal defendants cannot be held liable under § 1983." Watkins v. City of Battle Creek, 273 F.3d 682, 687 (6th Cir. 2001). Additionally, Kelly concedes in his Memorandum in Opposition that he cannot identify a policy or custom of Lynchburg that violated his constitutional rights. (Doc. 17 at 19.) For both of these reasons, the claim against the Village of Lynchburg ( i.e., the official capacity claim against Sulfsted) fails as a matter of law. Defendants are entitled to summary judgment as to the First Amendment claim to the extent it was asserted against Sulfsted in his official capacity.
IV. CONCLUSION
For the foregoing reasons, Motion for Summary Judgment on Behalf of Defendants William Sulfsted and the Village of Lynchburg (doc. 12) is GRANTED IN PART AND DENIED IN PART. Defendant Sulfsted is entitled to summary judgment as to the tortious interference and First Amendment retaliation claims asserted against him and the Defendant Village of Lynchburg is entitled to summary judgment as to all three claims stated against it. The defamation claim against Defendant Sulfsted remains.
IT IS SO ORDERED.