Roberts v. Ward ( 2006 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0438p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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GENELL ROBERTS; SANDRA DALE; and WILLIAM
Plaintiffs-Appellants, -
LESLIE,
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No. 05-6305
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v. >
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GEORGE WARD, individually and in his capacity as
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Commissioner of Parks, Commerce Cabinet of the
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Commonwealth of Kentucky; COMMONWEALTH OF
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KENTUCKY; and OTHER UNKNOWN OFFICIALS OF
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KENTUCKY,
Defendants-Appellees. -
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Appeal from the United States District Court
for the Eastern District of Kentucky at London.
No. 04-00262—Danny C. Reeves, District Judge.
Argued: July 20, 2006
Decided and Filed: November 27, 2006
Before: MARTIN and SUTTON, Circuit Judges; JORDAN, District Judge.*
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COUNSEL
ARGUED: Phillip J. Shepherd, LAW OFFICE OF PHILLIP SHEPHERD, Frankfort, Kentucky,
for Appellants. Robert L. Roark, WALTHER, ROARK, GAY & TODD, Lexington, Kentucky, for
Appellees. ON BRIEF: Phillip J. Shepherd, LAW OFFICE OF PHILLIP SHEPHERD, Frankfort,
Kentucky, Ned B. Pillersdorf, PILLERSDORF, DeROSSETT & LANE, Prestonsburg, Kentucky,
for Appellants. Robert L. Roark, WALTHER, ROARK, GAY & TODD, Lexington, Kentucky, for
Appellees.
*
The Honorable R. Leon Jordan, United States District Judge for the Eastern District of Tennessee, sitting by
designation.
1
No. 05-6305 Roberts, et al. v. Ward, et al. Page 2
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OPINION
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BOYCE F. MARTIN, JR., Circuit Judge. Plaintiffs Genell Roberts, Sandra Dale, and
William Leslie were employees of the Kentucky Department of Parks. They were terminated from
employment in May 2004 for failing to comply with the Department’s dress code. They
subsequently filed suit, alleging violations of their First Amendment, equal protection, and
procedural and substantive due process rights, as well as state statutes. The district court granted
a partial motion to dismiss for failure to state a claim in favor of defendants, and later dismissed the
remaining claims pursuant to the defendant’s motion for summary judgment. The plaintiffs now
appeal these dismissals. For the following reasons, we AFFIRM the district court.
I.
The district court set forth the following relevant facts in its opinion granting summary
judgment:
The Plaintiffs were seasonal workers employed to perform maintenance services at
the General Burnside State Park during the summer months. Sandra Dale, a six-
summer veteran of the park, as well as William Leslie and Genell Roberts, both four-
summer veterans, maintained “spotless work records.” (Amended Compl. at ¶¶ 3-4.)
Dale, in particular, “received several positive commendations” for her work.
On May 18, 2004, Director of Parks George Ward sent an e-mail to all managers of
Kentucky state parks which set into motion the events giving rise to this action. The
e-mail provided, in relevant part, that
we are working hard to eliminate the deficit associated with operating
the State Parks. . . . [I]t is may [sic] small details that we must pay
attention to in order to attract tourists to our Parks and provide them
outstanding experience that will make them want to come back and
visit with us.
To this end, providing outstanding customer service in a professional
atmosphere creates a very positive first impression of us to the
customer. Therefore, we have implemented a new professional
appearance policy that ALL employees must adhere to at each Park
location. Items addressed in the policy include hair length for men
above the collar, no visible body piercings with exception of in the
ear lobes for women only, no visible tattoos (long sleeves, pants,
bandages, or wrist bands are approved ways to cover), and the proper
wearing of the prescribed uniform in each department, which in most
cases includes tucking in shirts and blouses. Please be advised that
there are no exceptions to this policy. . . . Failure to comply with the
new policy is clearly insubordination.
It is your role as park managers to ensure that ALL employees
comply with Park policies. Any regular merit employee that fails to
comply with the new policy should be issued a written warning for
insubordination. If they continue to fail to comply they should be
placed on suspension. Of course, the final step, should they continue
to not comply would be termination. Any interim employee that fails
No. 05-6305 Roberts, et al. v. Ward, et al. Page 3
to comply should be given the choice to comply or be sent home.
After the initial warning, any interim employee that is observed to be
not complying is to be terminated.
(Pls.’ Resp., Ex. B.) In a followup e-mail, Ward reiterated that “if interim workers refuse to tuck in
their shirts, you may not allow them to work. Give them the choice to tuck in their shirt or go
home.” (Compl., Ex. B.)
These emails were Ward’s interpretation and implementation of the Department of Parks
(“Parks”) Policy 01-03 (promulgated in 2002, prior to Ward’s appointment), which provides that
“[s]ince employees are in daily contact with guests, vendors, and the general public, all employees
are expected to exhibit appropriate conduct and maintain a professional, business-like appearance.”
Id., Ex. A. Further, “[s]upervisors and managers are expected to communicate and monitor standards
of employee conduct and appearance that will provide a professional, positive, and safe environment
for employees, guests, and vendors. . . . Due to business needs, many employees may be required
to wear furnished uniforms or conform to appropriate levels of dress, grooming, and hygiene
standards for their work situation.” Id. Finally, “[v]isible tattoos and body piercings that are
offensive or not consistent with the mission of the Department of Parks shall be deemed to be
violations of sections A and B above.” Id.
Another policy adopted at the same time as the “shirt tucking” policy prohibited Park
employees from swimming in the pool or staying as overnight guests at the park at which they
worked. (Compl., Ex. C.) The stated reason for the policy was to ensure “separation between
employees and overnight guests” and to avoid claims of sexual harassment by Park employees. Id.
On May 19, 2004, the Plaintiffs were discharged for failing to tuck in their shirts. (Pls.’ Resp.
at 4.) Leslie also claims he was discharged because he has a “USN” tattoo on his arm, which
commemorates his service in the United States Navy. Id. Several days after their termination, the
Plaintiffs’ supervisor, John Troxell, resigned in protest. The Plaintiffs brought suit, challenging the
appearance policy and the “overnight stay” policy. D. Ct. Op., Aug. 3, 2005, at 1-3 (granting
summary judgment to defendants on plaintiffs’ remaining claims).
On September 22, 2004, the district court granted the Defendants’ partial motion to dismiss.
D. Ct. Op., Sept. 22, 2004, at 20. The district court enumerated seven claims that were made out
in the complaint: (1) wrongful discharge under state law; (2) violation of Section Two of the
Constitution of the Commonwealth of Kentucky; (3) violation of the First Amendment of the United
States Constitution; (4) violation of the Due Process Clause of the Fourteenth Amendment of the
United States Constitution; (5) violation of the Equal Protection Clause of the Fourteenth
Amendment of the United States Constitution; (6) violation of KRS § 13A (challenging the manner
by which the regulation was implemented); and (7) violation of the Kentucky Civil Rights Act, KRS
§ 344.120. Id. at 6. In granting the Defendants’ motion, the district court dismissed all claims
seeking monetary damages based on Eleventh Amendment immunity, id. at 17, all claims relating
to the “overnight stay” rule, id. at 19, and all claims brought under the Kentucky Civil Rights Act,
id. at 18. The district court also dismissed Parks Commissioner Ward as a defendant on the basis
of qualified immunity. Id. at 15.
On August 3, 2005, the district court granted Defendants’ motion for summary judgment,
dismissing the remaining claims. These included claims seeking only the equitable relief of
reinstatement of employment based on First Amendment, due process, and equal protection
violations, and violation of Section Two of the Kentucky Constitution. D. Ct. Op., Aug. 3, 2005,
at 12.
No. 05-6305 Roberts, et al. v. Ward, et al. Page 4
The plaintiffs now raise seven issues for appeal: (1) Commissioner Ward was not entitled
to qualified immunity; (2) the Commonwealth of Kentucky should not have been granted immunity
under the Eleventh Amendment; (3) the plaintiffs had standing to raise their claim under the
Kentucky Civil Rights Act, KRS § 344.120; (4) summary judgment dismissing their First
Amendment claim was inappropriate; (5) summary judgment should not have been granted with
regard to their due process claim; (6) their equal protection claim should also have survived
summary judgment; and (7) emails from Commissioner Ward created due process protections that
the Parks Department subsequently did not follow.
In their brief, the plaintiffs uniformly describe the separate dismissals of their several claims
as summary judgment dispositions, neglecting the fact that some of their claims were dismissed on
the pleadings. Because the district court addressed the various claims in separate orders, one
addressing the pleadings and the second at the summary judgment stage, we must evaluate each
claim in light of the procedural posture under which it was dismissed.
II.
We first address plaintiffs’ claims that were dismissed on the pleadings. We review de novo
motions to dismiss granted under Fed. R. Civ. P. 12(b)(6). Kottmyer v. Maas, 436 F.3d 684, 689 (6th
Cir. 2006). “When ruling on a defendant’s motion to dismiss on the pleadings, a district court ‘must
construe the complaint in the light most favorable to the plaintiff, accept all of the complaint’s
factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts
in support of his claim that would entitle him to relief.’” Id. (quoting Ziegler v. IBP Hog Market,
Inc., 249 F.3d 509, 512 (6th Cir. 2001)).
A. Qualified Immunity for Commissioner Ward
The district court ruled on the pleadings that Commissioner Ward was entitled to qualified
immunity and dismissed him as a defendant. Once a defendant raises the defense of qualified
immunity, a plaintiff “must plead the violation of a clearly established constitutional right.” Jackson
v. Schultz, 429 F.3d 586, 589 (6th Cir. 2005). Dismissal based on qualified immunity is only
appropriate if “it is clear that no violation of a clearly established constitutional right could be found
under any set of facts that could be proven consistent with the allegations or pleadings.” Id.The plaintiffs identify several clearly established constitutional rights that they claim Ward
violated, preventing him from being entitled to qualified immunity. They claim that the prohibition
of tattoos and the requirement that park workers keep their shirts tucked in violates the First
Amendment’s protection of free speech. They also contend that the imposition, without sufficient
notice, of the dress code policies that they claim are vague and arbitrary amounts to a due process
violation under the Fourteenth Amendment. Additionally, the plaintiffs contend that the requirement
that they tuck their shirts in while working in the outdoor heat violated the Equal Protection Clause
of the Fourteenth Amendment due to health and safety implications.
1. First Amendment
The district court found that the Parks Department’s appearance policy did not implicate a
clearly established First Amendment right because it did not involve a matter of public concern, and
thus is not protected speech for a government employee. As the district court recognized, the
Supreme Court has acknowledged that when acting as an employer, a government entity has far
broader discretion to regulate the speech of its employees than it does as a sovereign regulating the
No. 05-6305 Roberts, et al. v. Ward, et al. Page 5
speech of its citizens.1 D. Ct. Op., Sept. 22, 2004, at 8 (citing Waters v. Churchill, 511 U.S. 661,
671 (1994)). For a government employee’s speech to be protected under the First Amendment, it
must, as a threshold matter, involve a matter of public concern. Garcetti v. Ceballos, 126 S. Ct.
1951, 1958 (2006). The district court ruled that neither the plaintiffs’ refusal to tuck in their shirts,
nor Leslie’s display of his Navy tattoo, involves matters of public concern, and thus was not
protected.
The Supreme Court appears to have identified two lines of cases under which a state
employer’s limitations upon the speech of its employees can violate the First Amendment. See City
of San Diego v. Roe, 543 U.S. 77, 90 (2004). The first line of cases involves instances where a
public employee speaks out about some functioning of the branch of government for which he or
she works, a matter on which he or she “[is] uniquely qualified to comment” by virtue of their job
status. Id. Because constructive criticism of the government can be a legitimate matter of concern
to its citizens, these types of statements can be protected against retaliatory conduct from supervisors
if they do not primarily involve comments about employment that are personal in nature. Id. at 83(“a public employee’s speech is entitled to Pickering [v. Board of Education, 391 U.S. 563 (1968)]
balancing only when the employee speaks ‘as a citizen upon matters of public concern’ rather than
‘as an employee upon matters only of personal interest.’” (quoting Connick v. Myers, 461 U.S. 138(1983))). Given that the statements go to the functioning of the government entity in question,
however, the government has some added leeway in limiting such speech due to its status as the
employer. See United States v. National Treasury Employees Union, et al., 513 U.S. 454, 466
(1995) (hereinafter NTEU).
The other line of cases involves government regulation of statements that are unrelated to
the employee’s job. See id.; City of San Diego, 543 U.S. at 90; Rankin v. McPherson, 483 U.S. 378,
388 (1987). Where the speech is unrelated to the job of the employee and involves a matter of
public concern, it appears to be entitled to greater protection, as it is less likely to disrupt the
efficient functioning of the workplace. See NTEU, 513 U.S. at 466. Both types of cases are based
on the principle that the speech must involve a matter of public concern to be protected, and that the
government must have “an adequate justification for treating the employee differently from any
other member of the general public.” Garcetti, 126 S.Ct. at 1958. This balancing test “reflects the
importance of the relationship between the speaker’s expressions and employment.” Id. The focus
of the balancing test, first articulated in Pickering v. Board of Education, 391 U.S. 563 (1968), is
whether the restrictions imposed on the speech of a government employee are “directed at speech
that has some potential to affect the entity’s operations.” Garcetti, 126 S.Ct. at 1958.
The plaintiffs provide little argument to rebut the determination that untucked shirts do not
amount to speech on a matter of public concern. There is no suggestion, for example, that they were
untucking their shirts to express their opinion on some political question. Rather, they emphasize
that the rule was arbitrary and unreasonable, and that they kept their shirts untucked because they
were uncomfortable when they tucked them in. The state, on the other hand, justifies the policy as
a regulation of their employees’ appearance. Whether or not the policy was somehow unfair as
applied to the plaintiffs, as they argue here, there is no basis for questioning the district court’s
determination that it did not involve speech on a matter of public concern, and thus does not
implicate any clearly established First Amendment rights.
Leslie’s “USN” tattoo, on the other hand, presents a potentially closer question. The district
court summarily determined that the tattoo also did not involve a matter of public concern. Leslie
1
In the district court, the plaintiffs erroneously relied upon cases involving the regulation of free speech for
public school students, which the district court noted are entirely distinguishable from cases involving the speech of
government employees given the state’s interest in efficient administration. Despite this ruling and obvious distinction,
the plaintiffs rely on the same cases here.
No. 05-6305 Roberts, et al. v. Ward, et al. Page 6
contends, however, that the tattoo expresses his “support, loyalty and affection for the U.S. Navy.”
Viewing the significance Leslie attributes to the tattoo in this light, support for the military seems
to come much closer to involving a matter of public concern than do the untucked shirts. We have
held that the subjective intent of the speaker is a relevant, albeit not controlling factor in whether
the speech is a matter of public concern. Banks v. Wolfe County Bd. of Educ., 330 F.3d 888, 894
(6th Cir. 2003). Further, Leslie’s support for the military is unrelated to his job as a state park
employee. The state argues that Leslie’s tattoo can only be said to reflect his personal service in the
Navy, and given its form as a tattoo, involves a matter of personal taste and decoration, and thus
“cannot rise to the level of speech on a matter of legitimate public concern.” Appellee’s Br. at 11.
For qualified immunity purposes, because some dress code limitations are permissible, we
find that an individual’s decision to display a tattoo such as Leslie’s is not a clearly established right.
2. Due Process
The plaintiffs claim that Ward infringed on their clearly established due process rights by
unilaterally changing the dress code policy, presumably through his May 17, 2004 email. They
claim that although the email purported to implement an existing policy, it in fact represented a new
policy altogether. They argue that this implementation did not comply with chapter 13A of the
Kentucky Revised Statutes, which requires the formal administrative procedures of public notice
and hearings.
The district court dismissed the plaintiffs’ due process claims because they had not identified
any property or liberty interest that would entitle them to due process protections prior to the change
in policy. Although an employee can obtain a property interest in continued employment where
state law or the terms of his agreement with the state creates an expectation of continued
employment, where no such expectation is created there is no property interest that would implicate
due process protections. Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 578 (1972).
Recognizing this hurdle, the plaintiffs claim that despite the lack of any applicable tenure provision,
they have “de facto tenure” under Perry v. Sinderman, 408 U.S. 593 (1972). Under Perry, a plaintiff
can show de facto tenure where the circumstances of his service and the practices of his employer
create an expectation of continued employment.
The district court rejected the plaintiffs’ de facto tenure claim, reasoning that where a state
employer provides tenure for some employees, as Kentucky does, other employees are not entitled
to de facto tenure when they are excluded from the tenure system. Because Kentucky provides some
employees with a merit system that formally provides for tenured employment, and yet plaintiffs
were specifically excluded from it, the district court found that they cannot qualify for tenure under
our decision in Edinger v. Bd. of Regents of Morehead State Univ., 906 F.2d 1136 (6th Cir. 1990).
Edinger also states that even if a tenure system exists, where the circumstances surrounding
the employment relationship “lead[] the [non-tenured] employee to reasonably believe his
employment is permanent, such actions may create a protected property interest in continued
employment.” Id. at 1140. Even so, the plaintiffs point to nothing other than their continued
employment to establish their de facto tenure. Under Roth, their continued employment is not
enough to create a property interest.
Therefore, we find no violation of the plaintiffs’ due process rights, and we affirm the district
court’s grant of qualified immunity to Commissioner Ward on this ground.
3. Equal Protection
The plaintiffs claim that the revised dress code violated their clearly established equal
protection rights under the Fourteenth Amendment, as the dress code had a much more onerous
No. 05-6305 Roberts, et al. v. Ward, et al. Page 7
impact on manual laborers who worked outside in the summer, including themselves, than it did on
office workers. The district court determined that because the policy applied to all park workers,
it did not raise any equal protection concerns. Although a facially neutral law can be challenged
under the theory of “disparate impact,” the inquiry for such a challenge focuses on whether it targets
a group that has historically been the victim of discrimination or otherwise reflects invidious
discrimination. Personnel Adm’r of Massachusetts v. Feeney, 442 U.S. 256, 273 (1979). The
plaintiffs present no argument on appeal that would establish an equal protection violation.
Because the plaintiffs’ allegations do not implicate any clearly established constitutional
rights, we affirm the district court’s grant of qualified immunity to Commissioner Ward.
B. Eleventh Amendment Immunity and Sovereign Immunity
The plaintiffs appeal the grant of Eleventh Amendment and sovereign immunity to the state,
arguing that under the exception to the Eleventh Amendment recognized in Ex Parte Young, 209
U.S. 123 (1908), their claims for prospective, injunctive relief are not barred by the Eleventh
Amendment. They acknowledge that their money damages claim can be barred. In its opinion
granting defendants’ partial motion to dismiss, however, the district court only held that the money
damages claims were barred, not the claims for injunctive relief. Because there appears to be no
actual disagreement among the parties regarding the Eleventh Amendment’s scope, we need not
address this issue.
C. Standing to Raise a Claim Under KRS § 344.120
The plaintiffs argue on appeal that they have standing to make a claim under KRS § 344.120,
the Kentucky Civil Rights Act, based on the employer’s policy that prohibited them from staying
in the park overnight or swimming in the pools. The district court did not dismiss this claim on the
basis of standing, however. Rather, it ruled that the Kentucky Civil Rights Act prohibits
discrimination in the provision of public accommodations on the basis of disability, race, color,
religion, or national origin, and the plaintiffs have not alleged that any such discrimination was
involved in the overnight stay policy. Neither have the plaintiffs described any relevant claim under
the Kentucky Civil Rights Act in their appellate brief.
Although the district court addressed the question of standing separately after ruling that the
plaintiffs failed to state a claim under the Kentucky Civil Rights Act, it did so because the plaintiffs
also challenged the overnight stay policy under Article 2 of the state constitution. D. Ct. Op., Sept.
22, 2004, at 18 n. 5. On appeal, however, the plaintiffs have only argued that they have standing
under the Kentucky Civil Rights Act, and have not addressed the state constitutional claim. Because
they do not have a cognizable claim under the Kentucky Civil Rights Act, it is unnecessary for us
to engage in a standing inquiry here.
III.
After ruling on the pleadings that Commissioner Ward was entitled to qualified immunity
and that any money damages against the state were barred under the Eleventh Amendment, the
district court allowed the plaintiffs’ case to continue insofar as they sought the injunctive relief of
reinstatement on the basis of their constitutional claims, but the district court subsequently granted
summary judgment for defendants and dismissed these claims as well. We review a district court’s
grant of summary judgment de novo, and must view “the facts and any inferences that can be drawn
from those facts . . . in the light most favorable to the non-moving party.” Bennett v. City of
Eastpointe, 410 F.3d 810, 817 (6th Cir. 2005) (citing Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986)). Summary judgment is only appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is entitled to
No. 05-6305 Roberts, et al. v. Ward, et al. Page 8
a judgment as a matter of law.” Id. (quoting Fed. R. Civ. P. 56). Weighing of the evidence or
making credibility determinations are prohibited at summary judgment — rather, all facts must be
viewed in the light most favorable to the non-moving party. Id.A. First Amendment Claim
The plaintiffs tweak their argument here somewhat, claiming that they kept their shirts
untucked in protest of the dress code. This variation of their argument does not make wearing
untucked shirts a matter of public concern, rather than a personal statement about a condition of their
employment, as is required to state a First Amendment claim challenging a condition of public
employment. Thus, under the precedent discussed above, we find that the district court correctly
dismissed the free speech claim as to the plaintiffs’ wearing of untucked shirts.
Leslie’s free speech claim regarding his “USN” tattoo comes much closer to amounting to
a matter of public concern, taking at face value his contention that it is intended to show support for
the military. Whether Leslie’s tattoo is considered speech that is a matter of public concern may
turn on whether the speech is generic in nature, or whether it reflects an in-depth attempt to
contribute to public discourse. Compare Zalewska v. Cty. of Sullivan, 316 F.3d 314, 319 (2d Cir.
2003) (holding in a case involving a dress code for public employees that an employee’s wearing
of a skirt did not constitute protectable speech because it did not demonstrate “an intent to convey
a ‘particularized message’ along with a great likelihood that the message will be understood by those
viewing it”) with Rankin v. McPherson, 483 U.S. 378, 384-85 (1987) (holding that an offhanded
comment about the assassination attempt on President Reagan, given its significance in the public
discourse, was considered a matter of public concern).
However, because Leslie’s refusal to comply with the dress code provided an independent
basis for his dismissal, we need not address the closer question of the First Amendment protection
of his tattoo.
B. Due Process and Equal Protection Claims
As discussed above, the plaintiffs were not entitled to tenure or de facto tenure, and had no
property interest in their positions. As a result, they have no due process claim that they were
entitled to notice or a hearing before Commissioner Ward changed the dress code or modified the
enforcement of the pre-existing dress code. We also reject the plaintiffs’ equal protection claim,
because as discussed above, the dress code was facially neutral, and they have not made any
showing of disparate impact.
C. Due Process Based on Ward’s Email
Finally, the plaintiffs contend that Ward’s email itself created due process rights that the
Parks Department subsequently violated. Ward’s email said that park employees “should be given
a choice to comply [with the new dress code] or be sent home. After the initial warning, any interim
employee that is observed to be not complying is to be terminated.” Plaintiffs contend that they
were deprived of the procedural right of a warning, created by the email, when they were terminated
without warning.
It does not appear that this claim was presented to the district court, as it is not discussed in
the plaintiffs’ opposition brief to the defendants’ summary judgment motion. Further, the plaintiffs
do not state what protectable property interest would distinguish this claim from the plaintiffs’ other
due process claim. Finally, the record does not support the argument that they were not warned, as
it seems clear that instead the plaintiffs (and their supervisor) made clear their intention not to
No. 05-6305 Roberts, et al. v. Ward, et al. Page 9
comply with the policy.2 For these reasons, we find that the plaintiffs have failed to allege a viable
due process claim.
IV.
For the foregoing reasons, we AFFIRM the district court.
2
For example, a memo from their supervisor states that “three of them . . . have pretty much refused [and] I
believe the fourth will follow suit.” Further, Leslie testified in his deposition that he refused to comply with the policy.
Plaintiffs also admit as much in their brief. Appellant’s Br. at 10 (stating that plaintiffs “refused to comply with the
aforementioned unlawful policies that required that their shirts be tucked in.”).