OPINION & ORDER
51, 52, 53, 57]
JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
On September 11, 2015, Plaintiff Joseph Zickes filed a complaint against Defendants Bryan Smith and Michael Carroll.
On July 18, 2016, Plaintiff filed a motion for summary judgment against Defendant Bryan Smith.
For the reasons below, this Court
Plaintiff Zickes formerly worked for the Cuyahoga County Sheriff's Department. Zickes claims Defendants forced him into early retirement after he engaged in protected speech associated with union activities.
Plaintiff Zickes was assigned to the Juvenile Justice Center ("JJC") in October 2011.
In November 2011, Zickes was elected steward of the Ohio Patrolmen's Benevolent Association ("OBPA"), the bargaining unit for the Sheriff Department deputies.
According to Zickes, Defendant Smith then began pressuring Zickes to lobby OPBA bargaining unit members to transfer their sick time to Lieutenant Miguel Carabello, a sick member of the lieutenants' bargaining unit who had used all of his sick time.
In response to Plaintiff Zickes' opposition to sick-time donation, Zickes claims that Defendant Smith began to retaliate against and harass him.
Alleged Retaliation and Adverse Employment Actions
Among other incidents, Zickes says that in January 2012, Defendant Smith singled him out and reprimanded him for arriving late to work.
In March 2012, Plaintiff Zickes was disciplined for writing Defendant Smith's name beneath the word "target" on a memo posted on the union bulletin board.
Plaintiff also posted a Plain Dealer article on the bulletin board, entitled "Arrogant Boss? Sit Tight, He'll Get His, Research Shows." Plaintiff received a written reprimand and was subject to suspension for these acts. Although Plaintiff states that he "faced punishment up to a 30-day suspension"
Defendant Smith argues that Zickes' notation distorted Wilcoxson's message, and that apart from photographing the bulletin board and forwarding the photos to an independent detective, he played no role in Zickes' discipline.
Plaintiff Zickes was also reprimanded for using JJC jury rooms to eat lunch.
In August 2012, the County Sheriff's office investigated Zickes for misusing his gas card.
Defendant Smith admits that he quickly reviewed Rodriguez's complaint as a favor to her, but did not suggest or encourage her to file with the Inspector General.
In January 2013, Plaintiff initiated a grievance against Defendant Carroll for allegedly making inappropriate comments to a female union member.
In February 2013, Defendant Carroll did not immediately approve use of compensatory time for late arrivals caused by a snow storm.
In March 2013, Defendant Carroll changed deputies' hours from 8:00 am-4:00 pm to 9:00 am-5:00 pm. Zickes claims this change was in retaliation for his circulating petitions requesting that lieutenants such as Defendant Smith be removed from the union.
In November 2014, Plaintiff Zickes decided to retire early. He says he retired early due to stress from the alleged retaliation and harassment.
On September 11, 2015, Plaintiff Zickes filed a complaint against Defendants Bryan Smith and Michael Carroll.
In his motion for summary judgment, Plaintiff Zickes argues that his refusal to lobby the bargaining unit to transfer sick time is a matter of public concern and
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 56, "[s]ummary judgment is proper when `there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'"
When parties present competing versions of the facts on summary judgment, a district court adopts the non-movant's version of the facts unless the record before the court directly contradicts that version.
A. Plaintiff Zickes is not entitled to summary judgment.
a. Plaintiff Zickes' speech is not of public concern.
Plaintiff Zickes argues that he was retaliated against in violation of his First Amendment rights. Zickes argues that (1) his speech concerning donation of sick time and (2) his union bulletin board postings are both matters of public concern.
In order to make out a First Amendment retaliation claim, an employee plaintiff must show that "(1) he engaged in constitutionally protected activity, (2) defendants' adverse action caused him to suffer an injury that would likely chill a person of ordinary firmness from continuing
Speech is of "`public concern' if it involves issues about which information is needed or appropriate to enable the members of society to make informed decisions about the operation of their government."
As addressed below, neither category of Plaintiff Zickes' speech is of public concern.
i. Plaintiff's speech concerning sick time donation is not of public concern.
The Court first addresses whether Plaintiff's affidavit from Cleveland Police Patrolmen's Association President Robert Beck
Federal Rule of Civil Procedure 56 provides that affidavits supporting or opposing summary judgment must be made on
Federal Rule of Evidence 702 governs the admissibility of expert testimony.
Here, Mr. Beck's testimony is not supported by "sufficient data or facts." He admits that he relies only on Plaintiff's first amended complaint and conversations with Plaintiff and his counsel in forming his opinion.
Perhaps more importantly, Mr. Beck makes a legal as opposed to factual conclusion. He states that if a deputy fails to maintain adequate sick time and suffers an injury, the public may be forced to pay for his or her care.
Mr. Beck's and 13 other deputies' opinions are inadmissible on this issue. Experts are not entitled to give legal conclusions; whether Plaintiff Zickes' speech is a matter of public concern is a legal question.
This Court finds that Plaintiff Zickes' speech is not of public concern. His opposition to donating sick time — and any efforts to convince other deputies not to donate — concern the internal operation of the Sheriff's department. Zickes argues that because his position on sick time donation is union-related and that he meant to "protect the broader deputies and public," the public concern test is satisfied.
Under Sixth Circuit law, "an employee's speech, activity, or association, merely because it is union-related, does not touch on a matter of public concern as a matter of law."
Ms. Hara's statement does not support Plaintiff. First, the statement is taken out of context. The statement was part of a disciplinary letter — Ms. Hara was not purporting to speak to whether Zickes' speech concerns a matter of public import.
Second, Ms. Hara's statement, as construed by Plaintiff Zickes, makes a legal conclusion. It is similar to the Beck affidavit that this Court has ruled inadmissible.
Lastly, this statement is in direct opposition to the law. Not everything a public employee does or says is of public concern. "To presume that all matters which transpire within a government office are of public concern would mean that virtually every remark ... would plant the seed of a constitutional case."
Thus, Zickes' speech regarding sick time donation is not a matter of public concern.
ii. Plaintiff's postings on the union bulletin board are not of public concern.
For much the same reason, Plaintiff Zickes' bulletin-board speech is not of public concern. Again, Zickes argues that his written comments and the article he posted are union-related and therefore of public concern. The law says otherwise.
Regardless, Plaintiff Zickes' "communicative purpose"
"[W]hile the First Amendment invests public employees with certain rights, it does not empower them to `constitutionalize the employee grievance.'"
iii. Even if Plaintiff could show his speech was of public concern, he has failed to show that the speech caused any adverse employment action caused by Defendants.
Even if Plaintiff could meet the public-concern test, his First Amendment retaliation claim still fails.
First, it is unclear that much of what Plaintiff experienced rises to the level of adverse employment actions. To show an adverse employment action, Zickes "must establish that he has suffered a `materially adverse' change in the terms or conditions of employment because of the employer's actions."
Second, Defendants did not cause the acts that may constitute adverse employment actions. For example, Plaintiff Zickes points to the Inspector General's investigation as an adverse employment action. Despite resulting in only a written reprimand, the investigation could be an adverse employment action due to its length and many stages.
But Defendants are not responsible for this investigation. The Inspector General is an independent entity.
Because Plaintiff Zickes fails to show his speech was of public concern or that Smith caused it to lead to adverse employment actions, his claim fails.
b. No reasonable juror could find that Plaintiff Zickes was constructively discharged from his employment.
Plaintiff Zickes argues that he was constructively discharged when he retired due to the "stress and emotional toll" of the aforementioned incidents. The record does not support this claim.
To show constructive discharge, Plaintiff Zickes must show that "(1) the employer deliberately created intolerable working conditions, as perceived by a reasonable person, (2) the employer did so with the intention of forcing the employee to quit, and (3) the employee actually quit."
Under the first prong of the test, courts ask "[w]hether a reasonable person would have [felt] compelled to resign."
Of the three prongs of the test, Plaintiff Zickes has shown only that he retired. As discussed above, many if not all of the alleged retaliation incidents in this case do not rise to the level of "adverse employment actions." A reasonable person would not feel compelled to resign because he had to wait for approval of compensatory time until later the same day he requested it,
More importantly, Zickes offers no evidence that presents a genuine dispute of whether Defendants Smith and Carroll intended to create intolerable work conditions. Any actions by Defendants Smith and Carroll appear to be responsive to Plaintiff Zickes' prior actions, such as arriving late to work or eating lunch where he was not permitted to eat.
Accordingly, as a matter of law, Plaintiff Zickes was not constructively discharged.
B. Defendants Bryan Smith and Michael Carroll are entitled to summary judgment.
a. Defendants Smith and Carroll have qualified immunity.
Defendants Smith and Carroll argue that that Plaintiff's claims also fail because they are entitled to qualified immunity. This Court agrees.
"The doctrine of qualified immunity protects government officials `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.'"
As discussed above, Plaintiff Zickes cannot show a violation of his First Amendment rights. Nor can Zickes show that he was constructively discharged.
Plaintiff Zickes relies on Kiessel v. Oltersdorf
The facts in Kiessel are markedly different than the facts here. There, plaintiffs alleged that "government officials broke the law," which is a matter of public concern in the Sixth Circuit.
For the reasons above, this Court
IT IS SO ORDERED.