Bernard Garner v. City of Cuyahoga Falls ( 2009 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0155n.06
Filed: February 23, 2009
No. 08-3312
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BERNARD GARNER, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
CITY OF CUYAHOGA FALLS, DON ) NORTHERN DISTRICT OF OHIO
ROBART, SUSAN TRUBY, VALORIE )
WAX CARR, and VIRGIL )
ARRINGTON, JR., )
)
Defendants-Appellees. )
Before: GIBBONS and McKEAGUE, Circuit Judges, and SHADUR, Senior District
Judge.*
SHADUR, Senior District Judge. Bernard Garner (“Garner”) appeals the district
court’s dismissal of his action seeking compensatory and punitive damages, as well as
reinstatement, against City of Cuyahoga Falls (“City”) and several City officials: Mayor Don
Robart (“Robart”), Director of Community Development Susan Truby (“Truby”), Director of
Public Service Valorie Wax Carr (“Carr”) and Director of Law Virgil Arrington, Jr.
(“Arrington”). Garner, a former City employee, brought suit following his discharge from City’s
employment, charging that defendants (1) had violated his federal constitutional rights under the
*
The Honorable Milton I. Shadur, United States District Judge for the Northern District of
Illinois, sitting by designation.
First Amendment (as incorporated by the Fourteenth Amendment) and the Due Process and
Equal Protection Clauses of the Fourteenth Amendment itself and (2) had defamed him in
violation of state law. After Garner filed an Amended Complaint, defendants brought a
Fed.R.Civ.P. (“Rule”) 12(b)(6) motion to dismiss all of the federal claims. Following full
briefing the district court granted that motion and declined to exercise supplemental jurisdiction
over Garner’s remaining state law claim. We affirm.
I.
Garner’s employment with City began in March 1998, when he was hired as a Building
and Zoning Inspector (“Inspector”) in its Community Development Department. As Inspector
Garner was required to inspect certain locations to ensure the safety of City citizens. In addition
to serving as Inspector, Garner was also a reserve police officer for City.
On July 14, 2006 Garner was assigned to inspect an event entitled “Rockin on the River
Festival” (“Festival”). At about 4:30 p.m. Garner observed several outdoor tents weighted down
with open buckets of water. Because the buckets had no lids and contained a printed warning on
their sides advising the public of a drowning hazard if not covered, Garner believed that the open
buckets posed a health and safety risk to young children. As a result Garner approached Robert
Early (“Early”), the vendor responsible for the tents, and requested that he cover the buckets.
Early agreed to Garner’s request, and Garner left the area to perform other duties.
At about 6 p.m. Garner returned to the Festival in his police uniform to buy dinner before
he went on duty as a reserve officer at 8 p.m. While he was there, Early approached Garner’s
police supervisor and questioned him regarding Garner’s authority and employment status. Early
also complained that Garner was “picking on him.” In response Garner advised his supervisor of
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the drowning hazard and was allowed to proceed with his police duties. He then decided to eat
elsewhere and left the Festival.
Immediately after Garner’s evening shift started, his police supervisor summoned him
back to the Festival and instructed him to go to a room where Robart, Early and Lieutenant
Gramley (“Gramley”), one of Garner’s supervisors, were waiting. According to Garner, Early is
a financial supporter and political ally of Robart. When Garner arrived, Robart began to shout
loudly at him, calling Garner derogatory and insulting names and asking him why the water
buckets were a violation. Garner attempted to explain that the uncovered buckets were a safety
and drowning hazard and told Robart that he was simply trying to keep City’s citizens safe.
Robart objected, continued to yell at Garner and spat in his face.
Although it is unclear how that meeting ended, Garner believed that Robart commenced a
campaign to terminate him after the incident at the Festival. As part of that asserted plan
Garner’s immediate supervisor Truby demanded that Garner write a report. Truby did not
provide Garner with any details about what she wanted the report to include, and although Garner
submitted multiple reports to Truby, she continued to change the requirements and request
additional reports. According to Garner, Truby wrote to City officials with inaccurate
information regarding the July 14 incident. For example, says Garner, Truby informed Gramley
that Garner had threatened to harm him physically. In addition, shortly after the Festival Robart
hired an independent private investigator to follow Garner during work and non-work hours.
Robart also wrote to Truby that “Mr. Garner has outlived his usefulness in the City of Cuyahoga
Falls and would be better served in some other line of work.”
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Garner was terminated on December 18, 2006. According to Garner he has been
approached by several citizens, including non-City employees, who have indicated that they
heard Garner “was stealing city time by cutting his mother’s grass while on city time.” Garner
contends those comments are false and could have come only from defendants. He also asserts
that Robart, Truby, Carr and Arrington conspired to discharge him for false and inappropriate
reasons. Although Carr and Arrington did hold a pre-termination hearing, Garner alleges that the
hearing was “bogus” because it was “clear that their minds were made up to terminate” him on
Robart’s instructions. Garner also alleges that he has not “been afforded an appropriate name-
clearing hearing.”
On July 13, 2007 Garner filed suit in the federal district court. After defendants had filed
a motion for judgment on the pleadings and the parties had submitted briefs on that motion,
Garner filed his Amended Complaint, asserting the claims summarized in the first paragraph of
this opinion. After defendants then filed their motion to dismiss referred to in that paragraph, on
January 29, 2008 the district court granted the motion as to all federal claims, declined to
exercise supplemental jurisdiction over the state law defamation claim and entered judgment for
defendants. Garner timely filed his notice of appeal with this Court on February 25, 2008.
II.
We review de novo the district court’s dismissal of a complaint under Rule 12(b)(6)
(Dubay v. Wells, 506 F.3d 422, 427 (6th Cir. 2007)). Because a motion to dismiss for failure to
state a claim tests that claim as stated in the complaint and is not a challenge to his factual
allegations, we must construe the Amended Complaint in a light most favorable to Garner,
accepting all of his factual allegations as true and drawing all reasonable inferences in his favor
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(id.). Although a complaint’s factual allegations need not be detailed, Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007) teaches that they “must be enough to raise
a right to relief above the speculative level.” On that score Garner’s obligation to show “his
‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do” (id.).
III.
Count One of the Amended Complaint alleges that defendants made false and public
allegations against Garner that impaired his good name, reputation, honor and integrity and
terminated him without a name-clearing hearing. Those actions, Garner claims, violated his
constitutional right to procedural due process.
It is well established that a person’s reputation, good name, honor and integrity are
considered liberty interests protected by the due process clause of the Fourteenth Amendment
(see, e.g., Chilingirian v. Boris, 882 F.2d 200, 205 (6th Cir. 1989), relying on the seminal
decision in Bd. of Regents v. Roth, 408 U.S. 564, 573 (1972)). Accordingly, in the public
employment context, “where a nontenured employee shows he has been stigmatized by the
voluntary, public dissemination of false information in the course of a decision to terminate his
employment, the employer is required to afford him an opportunity to clear his name” (Burkhart
v. Randles, 764 F.2d 1196, 1201 (6th Cir. 1985)).
In that respect Ludwig v. Bd. of Trs. of Ferris State Univ., 123 F.3d 404, 410 (6th Cir.
1997) (citations omitted) instructs that five elements must be satisfied to establish that a plaintiff
was deprived of a liberty interest entitling him to a name-clearing hearing:
First, the stigmatizing statements must be made in conjunction with the plaintiff’s
termination from employment. Second, a plaintiff is not deprived of his liberty interest
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when the employer has alleged merely improper or inadequate performance,
incompetence, neglect of duty or malfeasance....Third, the stigmatizing statements or
charges must be made public. Fourth, the plaintiff must claim that the charges made
against him were false. Lastly, the public dissemination must have been voluntary.
Brown v. City of Niota, 214 F.3d 718, 723 (6th Cir. 2000) (emphasis added) reconfirms the
addition of an essential ingredient to the mix:
Once a plaintiff has established the existence of all five elements, he is entitled to
a name-clearing if he requests one.
And in that respect Quinn v. Shirley, 293 F.3d 315, 323 (6th Cir. 2002) further reconfirms that “a
plaintiff’s failure to request a name-clearing hearing is fatal to a claim alleging a deprivation of a
liberty interest without due process.” Hence, to state a viable claim a plaintiff must allege that he
requested a hearing and was denied one (id. at 324).
Rule 8(a)(2) requires only “a short and plain statement of the claim showing that the
pleader is entitled to relief,” so as to “give the defendant fair notice of what the . . . claim is and
the grounds upon which it rests.” But as Twombly, 127 S. Ct. at 1966 explains, a plaintiff’s
obligation under Rule 8(a)(2) requires “that the ‘plain statement’ possess enough heft to ‘sho[w]
that the pleader is entitled to relief.’” Factual allegations in a complaint must at least reasonably
suggest, rather than simply be consistent with, an essential element of a claim (id. at 1965-66).
In so holding Twombly rejected the oft-quoted standard in Conley v. Gibson, 355 U.S. 41, 45-46
(1957) that “a complaint should not be dismissed for failure to state a claim unless it appears
beyond doubt that the plaintiff can prove no set of facts in support of his claim which would
entitle him to relief,” stating instead that the “phrase is best forgotten as an incomplete, negative
gloss on an accepted pleading standard” (127 S.Ct. at 1969).
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Here Garner admits he has not specifically stated that he requested a name-clearing
hearing. All that he alleges is that he was not “afforded an appropriate name-clearing hearing.”
Garner contends that we should infer from that statement that he actually requested a hearing but
didn’t get one. But as the district court properly noted, the fact that a hearing was not held does
not necessarily mean that Garner requested one--instead he may not have received a hearing
because he failed to ask for one.
But here we need not merely choose between arguably reasonable inferences (with the
possibility, then, of bringing into play the legal equivalent of baseball’s “ties go to the runner”).
In this instance Garner had a full opportunity to amend his pleading further to assert that he did
request a hearing--if that were indeed so. It is more than relevant that Garner had already
amended his original Complaint once, so that his counsel knew perfectly well that a further
amendment was available to respond to an asserted deficiency, but instead he chose to stand pat.
It must be concluded on the record before us that a request for a hearing was never made.1
Garner’s entitlement to relief in due process terms must be based on defendants’ denial of
a request for a name-hearing clearing--without his having pleaded that necessary fact, he fails to
meet the Twombly standard. We therefore affirm the district court’s dismissal of Garner’s due
process claim.
IV.
Garner’s second claim asserts that defendants terminated him in retaliation for his
exercise of First Amendment rights. To establish a prima facie case of First Amendment
1
Indeed, when probed at oral argument, Garner’s counsel admitted that he could not, as an
officer of the court, state that Garner had clearly and specifically asked for a name-clearing hearing.
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retaliation a plaintiff must show that (1) he was engaged in constitutionally protected speech, (2)
he was subjected to an adverse action or was deprived of some benefit and (3) the protected
speech was a substantial or motivating factor in the adverse action (Banks v. Wolfe County Bd.
of Educ., 330 F.3d 888, 892 (6th Cir. 2003)).
Although public employees’ rights are subject to certain limitations, “the First
Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen
addressing matters of public concern” (Garcetti v. Ceballos, 547 U.S. 410, 417 (2006)).
Whether a plaintiff’s speech touches upon a matter of public concern is a question of law (Barnes
v. McDowell, 848 F.2d 725, 733 (6th Cir. 1988)). Connick v. Myers, 461 U.S. 138, 147-48
(1983) teaches that “[w]hether an employee’s speech addresses a matter of public concern must
be determined by the content, form, and context of a given statement, as revealed by the whole
record.” Garcetti, 547 U.S. at 421 further instructs 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.” As Garcetti, id. at 421-22 reasoned:
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.
Even though Garner admits that he initially spoke to Early in his capacity as Inspector, he
argues that he was speaking as a private citizen when he later returned to the Festival and
expressed concern to his police supervisor and Robart. Garner points to several non-precedential
cases decided before Garcetti in support of his position. None of those cases, however, involves
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analogous factual allegations or is really relevant in light of the more demanding standard
recently articulated by Garcetti.
When Garner’s allegations are viewed in light of those principles, it is clear that his
statements about the safety risks posed by Early’s water buckets owed their existence to his
official duties. First, when Garner spoke to his police supervisor on his first return to the
Festival, he was unquestionably responding to complaints made by Early. Then Garner’s second
return to the Festival was at the summons of his police supervisor, who instructed him to meet
with Robart, Gramley and Early. During that meeting Garner did not voluntarily announce his
safety concerns, speaking instead only in response to Robart’s attack on and inquiries about his
earlier warning to Early. In analyzing a similar situation, Haynes v. City of Circleville, 474 F.3d
357, 364 (6th Cir. 2006) (brackets in original) found that “[t]he fact that Haynes communicated
solely to his superior also indicates that ‘he was speaking in [his] capacity as a public
employee....’” Here too Garner was speaking only to his police supervisor and then Robart and
Gramley--all his superiors--and he never communicated his concerns to other members of the
public.
Garner’s stated effort to keep citizens and young children safe from the water buckets
emanated directly from his role and responsibility as Inspector of the Festival. Thus his original
warning to Early and his further statements in defense of that warning were made pursuant to his
professional duties. Because Garner’s speech did not address a matter of public concern and was
not constitutionally protected under the teaching of Garcetti, we also affirm the dismissal of his
First Amendment claim.
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V.
Garner’s final federal claim charges that defendants violated his rights under the Equal
Protection Clause. Having acknowledged the fatal impact of Engquist v. Or. Dep’t of Agric.,
128 S. Ct. 2148 (2008) on his “class of one” theory, Garner proceeds on appeal solely on his
claim of selective treatment based upon the asserted exercise of a fundamental right to freedom
of speech.
But as our earlier discussion makes plain, Garner’s speech was not constitutionally
protected. Garner’s reliance on the same arguments that he advanced in support of his First
Amendment claim does nothing to change that analysis. That being the case, Garner’s equal
protection claim based on that speech fails as a matter of law, and the district court’s dismissal of
that claim is therefore affirmed as well.
VI.
We have thus affirmed the district court’s dismissal of all of Garner’s federal claims.
With no federal anchor remaining to moor his state law defamation claim, we also affirm the
district court’s without-prejudice dismissal of that claim (United Mine Workers v. Gibbs, 383
U.S. 715, 726 (1966)).
VII.
For the foregoing reasons, we affirm the district court’s rulings in all respects.
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