Crystal Dixon v. University of Toledo , 702 F.3d 269 ( 2012 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 12a0408p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
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CRYSTAL DIXON,
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Plaintiff-Appellant,
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No. 12-3218
v.
,
>
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UNIVERSITY OF TOLEDO,
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Defendant,
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LLOYD JACOBS, individually and in his
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official capacity as President, University of
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Toledo; WILLIAM LOGIE, individually and in
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his official capacity as Vice President for
Human Resources and Campus Safety, -
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University of Toledo,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
No. 3:08-cv-2806—David A. Katz, District Judge.
Argued: December 5, 2012
Decided and Filed: December 17, 2012
Before: MOORE, GILMAN, and KETHLEDGE, Circuit Judges.
_________________
COUNSEL
ARGUED: Robert Joseph Muise, AMERICAN FREEDOM LAW CENTER, Ann
Arbor, Michigan, for Appellant. Elizabeth M. Stanton, TAFT STETTINIIUS &
HOLLISTER, LLP, Columbus, Ohio, for Appellees. ON BRIEF: Robert Joseph Muise,
AMERICAN FREEDOM LAW CENTER, Ann Arbor, Michigan, Erin Elizabeth
Mersino, THOMAS MORE LAW CENTER, Ann Arbor, Michigan, James R. Acho,
CUMMINGS, McCLOREY, DAVIS & ACHO, Livonia, Michigan, Thomas A. Sobecki,
Toledo, Ohio, for Appellant. Elizabeth M. Stanton, Sarah D. Morrison, Donald C. Brey,
TAFT STETTINIIUS & HOLLISTER, LLP, Columbus, Ohio, for Appellees.
1
No. 12-3218 Dixon v. Univ. of Toledo et al. Page 2
_________________
OPINION
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KAREN NELSON MOORE, Circuit Judge. In 2008, Plaintiff-Appellant Crystal
Dixon, an African-American woman and then-interim Associate Vice President for
Human Resources at the University of Toledo (the “University”), wrote an op-ed column
in the Toledo Free Press rebuking comparisons drawn between the civil-rights and gay-
rights movements. Shortly thereafter, Dixon was fired. Claiming violations of her First
and Fourteenth Amendment rights, Dixon subsequently filed a § 1983 suit against the
University and Defendants-Appellees University President Lloyd Jacobs and University
Vice President for Human Resources and Campus Safety William Logie (collectively,
“the defendants”). The district court granted summary judgment to the defendants on
all claims, and Dixon appeals.
The issues raised in this appeal turn primarily on the resolution of a narrow
inquiry: whether the speech of a high-level Human Resources official who writes
publicly against the very policies that her government employer charges her with
creating, promoting, and enforcing is protected. We conclude that, given the nature of
her position, Dixon did not engage in protected speech. We therefore AFFIRM the
judgment of the district court.
I. BACKGROUND
Dixon began her career at the University in January 2002. R. 71-4 (Dixon Tr.
at 37:8–38:10) (Page ID #1396). At this time, she was recruited by Logie to become the
Administrative Director of Employee Relations at the Medical College of Ohio (the
“College”). Id. On July 1, 2006, the College merged with the University, and Dixon
was promoted to Associate Vice President for Human Resources for the Health Sciences
Campus. Id. 65:2–9 (Page ID #1401). In July 2007, Dixon was promoted to interim
Associate Vice President for Human Resources for both campuses, the position she held
No. 12-3218 Dixon v. Univ. of Toledo et al. Page 3
until she was terminated on May 8, 2008. Id. 66:6–14; R. 60-13 (Termination Letter)
(Page ID #521).
On April 4, 2008, Michael Miller, Editor-in-Chief of the Toledo Free Press,
wrote an editorial titled “Gay rights and wrongs.” R. 60-7 (Miller Editorial at 1) (Page
ID #501). In this piece, Miller implicitly compared the civil-rights movement with the
gay-rights movement: “As a middle-aged, overweight white guy with graying facial
hair, I am America’s ruling demographic, so the gay rights struggle is something I
experience secondhand, like my black friends’ struggles and my wheelchair-bound
friend’s struggles.” Id. Miller then focused on a purported denial of healthcare benefits
to same-sex couples at the University, explaining that “[w]hen [the College and the
University] merged, [University] employees retained the domestic-partner benefits, but
[College] employees were not offered them. So, people working for the same employer
do not have access to the same benefits.” Id. at 2 (Page ID #502).
On April 18, 2008, Dixon responded to Miller with her op-ed column “Gay rights
and wrongs: another perspective.” R. 60-9 (Dixon Op-Ed at 1–2) (Page ID #507–08).
Dixon addressed both points highlighted above, but did not identify her official position
at the University. Id. Dixon first rejected the comparison made by Miller between the
gay-rights and civil-rights movements:
As a Black woman who happens to be an alumnus of the
University of Toledo’s Graduate School, an employee and business
owner, I take great umbrage at the notion that those choosing the
homosexual lifestyle are “civil rights victims.” Here’s why. I cannot
wake up tomorrow and not be a Black woman. I am genetically and
biologically a Black woman and very pleased to be so as my Creator
intended. Daily, thousands of homosexuals make a life decision to leave
the gay lifestyle evidenced by the growing population of PFOX (Parents
and Friends of Ex Gays) and Exodus International just to name a few. . . .
Id. at 1 (Page ID #507). Additionally, Dixon addressed Miller’s discussion of the
healthcare benefits system at the University:
The reference to the alleged benefits disparity at the University
of Toledo was rather misleading. When the University of Toledo and
No. 12-3218 Dixon v. Univ. of Toledo et al. Page 4
former Medical University of Ohio merged, both entities had multiple
contracts for different benefit plans at substantially different employee
cost sharing levels. To suggest that homosexual employees on one
campus are being denied benefits avoids the fact that ALL employees
across the two campuses regardless of their sexual orientation, have
different benefit plans. The university is working diligently to address
this issue in a reasonable and cost-efficient manner, for all employees,
not just one segment.
Id.
On April 21, 2008, as a result of her op-ed column, Dixon received a letter
placing her on paid administrative leave. R. 60-12 (Administrative Leave Letter at 1–2)
(Page ID #518–19). On May 4, 2008, Jacobs wrote a guest column in the Toledo Free
Press responding to Dixon’s op-ed column. R. 60-11 (Jacobs Op-Ed) (Page ID #515).
Jacobs stated that “[a]lthough I recognize it is common knowledge that Crystal Dixon
is associate vice president for Human Resources at the University of Toledo, her
comments do not accord with the values of the University of Toledo.” Id. Jacobs then
explained the various programs instituted at the University aimed at expanding and
supporting diversity on campus. Id.
A hearing was held on May 5, 2008, at which Dixon read a prepared statement
reiterating the beliefs stated in her op-ed column, expressing her view that she had been
speaking as a private citizen, and accusing the University of treating her differently than
other employees. R. 71-4 (Dixon Dep. 174:1–18) (Page ID #1416); R. 71-8, Ex. KK
(Dixon Prepared Statement at 1–3) (Page ID #1530–32). Dixon also asserted that her
personal views did not affect her performance as Associate Vice President of Human
Resources:
If the University is taking the Herculean leap to assume that my
convictions affect my service to or decisions about those practicing
homosexuality, please consider this: it is commonly believed/perceived
that there are one, possibly two practicing homosexuals in the Human
Resources Department. I hired both of them (one last year and one
earlier this year)! I hired both of them with the perception that while
they may be homosexual, more importantly they were competent,
motivated and simply the best candidates for the jobs. One individual,
No. 12-3218 Dixon v. Univ. of Toledo et al. Page 5
I actually hired this year after observing a questionable exchange
between he and his male roommate in the parking lot one day. . . .
R. 71-8, Ex. KK (Dixon Prepared Statement at 2) (Page ID #1531).
On May 8, 2008, Dixon received a letter from Jacobs terminating her from the
position of Associate Vice President for Human Resources for the following reasons:
The public position you have taken in the Toledo Free Press is in direct
contradiction to University policies and procedures as well as the Core
Values of the Strategic Plan which is mission critical. Your position also
calls into question your continued ability to lead a critical function within
the Administration as personnel actions or decisions taken in your
capacity as Associate Vice President for Human Resources could be
challenged or placed at risk. The result is a loss of confidence in you as
an administrator.
R. 60-13 (Termination Letter) (Page ID #521).
On December 1, 2008, Dixon filed suit in the U.S. District Court for the Northern
District of Ohio against the University, Jacobs, and Logie. R. 1 (Compl.) (Page ID #1).
The parties stipulated to dismiss Dixon’s Equal Pay Act claim, and thus the University,
from this case on January 7, 2011. R. 55 (Order at 1) (Page ID #374). On April 29,
2011, Dixon filed a motion for summary judgment, and the remaining defendants cross-
moved for summary judgment in response. R. 60 (Pl.’s Mot. for Summ. J.) (Page ID
#407); R. 71 (Defs.’ Mot. for Summ. J.) (Page ID #1321). The district court granted the
defendants’ motion, and Dixon appealed. Dixon v. University of Toledo, 842 F. Supp.
2d 1044 (N.D. Ohio 2012).
II. STANDARD OF REVIEW
We review de novo a district court’s grant of summary judgment. Int’l Union v.
Cummins, Inc., 434 F.3d 478, 483 (6th Cir. 2006). We review the evidence and draw all
inferences in the light most favorable to the nonmoving party. Id. “[O]n cross-motions
for summary judgment, the court must evaluate each party’s motion on its own merits,
taking care in each instance to draw all reasonable inferences against the party whose
motion is under consideration.” B.F. Goodrich Co. v. U.S. Filter Corp., 245 F.3d 587,
No. 12-3218 Dixon v. Univ. of Toledo et al. Page 6
592 (6th Cir. 2001) (internal quotation marks omitted). Summary judgment is
appropriate if “the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
III. CONSTITUTIONAL CLAIMS
Dixon appeals the district court order granting summary judgment to the
defendants on her First Amendment retaliation claim and her equal-protection claim, as
well as the district court’s determination that the defendants are entitled to qualified
immunity. Dixon argues that the district court erred in its First Amendment retaliation
analysis, contending that the defendants “violated [her] right to freedom of speech by
terminating her employment because she authored an opinion piece in a local newspaper
in which she expressed her personal opinion and viewpoint on the issue of
homosexuality and civil rights from the perspective of a Christian, African-American
woman.” Appellant Br. at 15. Dixon further asserts that the district court
misapprehended the equal-protection standard, arguing that “when government officials
engage in discriminatory treatment based on the exercise of the fundamental right to
freedom of speech they violate not only the First Amendment, but they also violate the
equal protection guarantee of the Fourteenth Amendment.” Id. at 34–35.
A. First Amendment Retaliation
First Amendment retaliation claims are analyzed under a burden-shifting
framework. A plaintiff must first make a prima facie case of retaliation, which
comprises the following elements: “(1) he engaged in constitutionally protected speech
or conduct; (2) an adverse action was taken against him that would deter a person of
ordinary firmness from continuing to engage in that conduct; (3) there is a causal
connection between elements one and two—that is, the adverse action was motivated at
least in part by his protected conduct.” Scarbrough v. Morgan Cnty. Bd. of Educ.,
470 F.3d 250, 255 (6th Cir. 2006). If the employee establishes a prima facie case, the
burden then shifts to the employer to demonstrate “by a preponderance of the evidence
that the employment decision would have been the same absent the protected conduct.”
No. 12-3218 Dixon v. Univ. of Toledo et al. Page 7
Eckerman v. Tenn. Dep’t of Safety, 636 F.3d 202, 208 (6th Cir. 2010) (internal quotation
marks omitted).
Only the first element, whether the speech was protected, is at issue on appeal.1
“[W]e have consistently described the question of whether, in a First Amendment
retaliation action, a public employee’s speech is protected as one of law, not one of both
fact and law.” Fox v. Traverse City Area Public Schs. Bd. of Educ., 605 F.3d 345, 350
(6th Cir. 2010); see also Westmoreland v. Sutherland, 662 F.3d 714, 718 (6th Cir. 2011)
(“There being no factual dispute regarding what was said, this court treats the question
of whether a public employee’s speech is protected as a question of law.”).
In order to establish that her speech was protected, Dixon must first show that
the speech touched on a matter of public concern. Scarbrough, 470 F.3d at 255 (citing
Connick v. Myers, 461 U.S. 138, 142 (1983)). Dixon must then show that under the
Pickering balancing test, her “free speech interests outweigh the efficiency interests of
the government as employer.” Id. (internal quotation marks omitted) (relying on
Pickering v. Bd. of Educ., 391 U.S. 563 (1968)). Finally, Dixon must demonstrate that
the speech was not made pursuant to her official duties as Associate Vice President of
Human Resources, a causation issue established in Garcetti v. Ceballos, 547 U.S. 410(2006). In sum, Dixon “must satisfy each of these requirements: the Connick ‘matter
of public concern’ requirement, the Pickering ‘balancing’ requirement and the Garcetti
‘pursuant to’ requirement.” Evans-Marshall v. Bd. of Educ. of Tipp City Exempted Vill.
Sch. Dist., 624 F.3d 332, 338 (6th Cir. 2010).
Because the parties do not dispute that Dixon spoke on a matter of public
concern, we turn to whether Dixon satisfies the Pickering requirement. The defendants
argue that Dixon’s speech falls into the presumption set forth in Rose v. Stephens, 291
F.3d 917 (6th Cir. 2002). If this presumption applies, then Dixon’s speech is not
protected as a matter of law. Alternatively, the defendants argue that under the
1
Termination is an adverse employment action, and it is clear that Dixon was terminated because
of her speech. See v. City of Elyria, 502 F.3d 484, 494 (6th Cir. 2007) (concluding that, when terminated,
“See undeniably suffered an adverse action”).
No. 12-3218 Dixon v. Univ. of Toledo et al. Page 8
traditional Pickering balancing test, the balance of interests weighs in favor of the
defendants rather than Dixon. The district court addressed both issues, concluding that
the presumption applied to Dixon and that “the balance of [Dixon’s] interest in making
a comment of public concern is clearly outweighed by the University’s interest as her
employer in carrying out its own objectives.” Dixon, 842 F. Supp. 2d at 1051, 1053.
The Rose presumption dictates that “where a confidential or policymaking public
employee is discharged on the basis of speech related to his political or policy views, the
Pickering balance favors the government as a matter of law.” Rose, 291 F.3d at 921.
Therefore, in order for the presumption to apply, Dixon must (1) hold a confidential or
policymaking position, and (2) have spoken on a matter related to political or policy
views. See Silberstein v. City of Dayton, 440 F.3d 306, 319 (6th Cir. 2006) (“Thus, if
Silberstein occupied a policymaking position as Assistant Chief Examiner, and if her
letter to the editor related to her policy views, then her free speech interests
presumptively lose out to the city of Dayton’s interests in efficiently running its
government.”). An application of this presumption “renders the fact-intensive inquiry
normally required by Pickering unnecessary because under these circumstances it is
appropriate to presume that the government’s interest in efficiency will predominate.”
Rose, 291 F.3d at 923.
Although there is no clear line drawn between policymaking and non-
policymaking positions, we have previously outlined the following four categories of
individuals to whom the Rose presumption will always apply:
“Category One: positions specifically named in relevant federal, state,
county, or municipal law to which discretionary authority with respect
to the enforcement of that law or the carrying out of some other policy
of political concern is granted;
Category Two: positions to which a significant portion of the total
discretionary authority available to category one position-holders has
been delegated; or positions not named in law, possessing by virtue of
the jurisdiction’s pattern or practice the same quantum or type of
discretionary authority commonly held by category one positions in other
jurisdictions;
No. 12-3218 Dixon v. Univ. of Toledo et al. Page 9
Category Three: confidential advisors who spend a significant portion
of their time on the job advising category one or category two position-
holders on how to exercise their statutory or delegated policymaking
authority or other confidential employees who control the lines of
communications to category one positions, category two positions or
confidential advisors; and
Category Four: positions that are part of a group of positions filled by
balancing out political party representation, or that are filled by balancing
out selections made by different governmental agents or bodies.”
Latham v. Office of Attorney Gen. of Ohio, 395 F.3d 261, 267 (6th Cir. 2005) (quoting
McCloud v. Testa, 97 F.3d 1536, 1557–58 (6th Cir. 1996)). “In determining whether an
employee falls into one of these categories, we must examine the inherent duties of the
position, rather than the actual tasks undertaken by the employee.” Id. “While the
inherent duties of the position are not necessarily those that appear in the written job
description and authorizing statute, such descriptions can be instructive.” Id. (internal
quotation marks omitted).
The district court determined that as Associate Vice President for Human
Resources, Dixon “was vested with a significant portion of the statutory authority
available, placing her within category two.” Dixon, 842 F. Supp. 2d at 1051. The
district court reasoned that her delegated appointing authority, including the authority
to hire and fire, was significant and discretionary. Id. Dixon contends on appeal that the
district court erred in reaching this conclusion because “[a]lthough [Dixon] had authority
to make some hiring decisions . . . she had no discretion to make policy regarding hiring
practices nor was she delegated any such authority, let alone a ‘significant portion’ of
it. Moreover, she had no authority, delegated or otherwise, to make any other policy of
political concern.” Appellant Br. at 26 (emphasis in original).
In Resolution No. 07-10-10, effective October 1, 2007, the Board of Trustees of
the University delegated appointing authority to the Associate Vice President for Human
Resources. R. 71-3, Ex. D (Resolution at 1) (Page ID #1387). Further, the official job
description for Associate Vice President for Human Resources, which Dixon verified as
accurate in her deposition, listed the most important job duty as “Policy Development
No. 12-3218 Dixon v. Univ. of Toledo et al. Page 10
and Application.” R. 71-4 (Dixon Tr. at 50:12–51:10) (Page ID #1399); R. 71-8, Ex. C
(Job Description at 1–2) (Page ID #1447–48). Specifically, this duty requires that the
Associate Vice President “[p]rovide leadership in recommending, implementing and
overseeing human resource policies and procedures that support the university’s strategic
direction; reflect fair and equitable practices; and that are a model for innovative
regulatory compliant and contemporary practice.” R. 71-8, Ex. C (Job Description at 2)
(Page ID #1448). The job description further notes that the Associate Vice President
directs employee relations and “represent[s] the University in relevant employee
relations actions brought before the . . . Ohio Civil Rights Commission, Equal
Employment Opportunity Commission, . . . and other federal and state regulatory
agencies.” Id.
Additionally, Dixon’s own testimony regarding her job responsibilities
reflects significant discretionary authority. Dixon testified that she was responsible for
answering grievances, issuing disciplinary and corrective action, serving on various task
forces, supervising approximately forty employees, overseeing benefits administration,
setting compensation, and making presentations at town-hall meetings. R. 71-4 (Dixon
Tr. at 40:11–43:4, 44:19-46:21) (Page ID #1396–98).
This evidence establishes that Dixon was delegated appointing authority and was
responsible for recommending, implementing, and overseeing policy. See Hager v. Pike
Cnty. Bd. of Educ., 286 F.3d 366, 376 (6th Cir. 2002) (“Moreover, in determining
whether an employee occupies a policymaking position, consideration should be given
to whether the employee formulates plans for the implementation of broad goals.”)
(internal quotation marks and alterations omitted). The district court was thus correct
in determining that these responsibilities constituted a policymaking position, i.e., that
Dixon, as Associate Vice President for Human Resources, was a category-two
policymaker.
In addition to holding a policymaking position, Dixon must have spoken on a
political or policy issue in order to be subject to the Rose presumption. In Rose, we
reasoned that “[t]he additional restriction that this presumption applies only to cases
No. 12-3218 Dixon v. Univ. of Toledo et al. Page 11
where the employee speaks on political or policy issues ensures that the content of the
employee’s speech directly implicates the loyalty requirements of the position and thus
will adversely affect a central aspect of the working relationship in all cases.” 291 F.3d
at 923. Dixon argues that her op-ed column expressed a matter of personal concern and
“was not speech that relates to either [her] political affiliation or substantive policy.”
Appellant Br. at 26–27 (internal quotation marks and emphasis omitted).
Dixon’s argument, however, ignores critical policies developed in and promoted
by the Human Resources Department at the University. Dixon’s public statement
implying that LGBT individuals should not be compared with and afforded the same
protections as African-Americans directly contradicts several such substantive policies
instituted by the University. For example, the University’s Strategic Plan included
pursuing a strategy that will “[r]ealize the strength and distinction to be derived from
diversity in all its dimensions [and] recruit, retain, and celebrate a diverse university
community.” R. 71-8, Ex. N (Strategic Plan at 11) (Page ID #1464). Additionally, the
University enacted a Plan for Diversity that explicitly included sexual orientation. R.
71-8, Ex. P (Plan for Diversity at 1) (Page ID #1471). The University also included
sexual orientation and gender identity and expression in its Equal Opportunity Policy
and in its anti-harassment policy. R. 71-8, Ex. S (Equal Opportunity Policy at 1) (Page
ID #1494); R. 71-8, Ex. T (Sexual Harassment Policy at 1) (Page ID #1497). Finally,
as explained by Jacobs in his op-ed column, the University enacted the Spectrum Safe
Places Program, which encourages “faculty, staff and graduate assistants and resident
advisers to open their space as a Safe Place for Lesbian, Gay, Bisexual, Transgender,
Queer, and Questioning . . . individuals.” R. 60-11 (Jacobs Opinion at 1) (Page ID
#515).
Although Dixon correctly contends that she never explicitly stated that the
University diversity policies should not extend to LGBT students and employees, by
voicing her belief that members of the LGBT community do not possess an immutable
characteristic in the way that she as an African-American woman does, the implication
is clear: Dixon does not think LGBT students and employees of the University are
No. 12-3218 Dixon v. Univ. of Toledo et al. Page 12
entitled to civil-rights protections, even though the University, in part through the
Human Resources Department, expressly provides them. In writing her op-ed column,
Dixon not only spoke on policy issues, but also spoke on policy issues related directly
to her position at the University. See Rose, 294 F.3d at 925 (“All of these issues are
clearly related to police department policies and the memorandum thus fits easily within
the scope of the exception.”).
In sum, the Rose presumption applies to Dixon because there is evidence
establishing that she was a policymaker who engaged in speech on a policy issue related
to her position. The government’s interests thus outweigh Dixon’s interests as a matter
of law, and we affirm the district court’s grant of summary judgment to the defendants
on this basis. Because the Rose presumption is dispositive, it is unnecessary for us to
consider the district court’s Pickering and Garcetti analyses.
B. Additional Challenges to the University’s Speech Policy
Dixon also argues that the defendants “maintain unbridled discretion to punish
University employees for expressing disfavored opinions in violation of the First
Amendment.” Appellant Br. at 32. The district court construed this argument as two
claims—vagueness and viewpoint discrimination. Dixon, 842 F. Supp. 2d at 1054. The
district court addressed these claims together and concluded that Dixon “has not
presented any law applying these principles to the employment, rather than sovereign,
context” and that “the damage she did to her ability to perform her job and to the
University provide ample justification for her termination.” Id. at 1054 & n.4.
On appeal, Dixon’s argument presents the same flaws. To begin, as in the district
court, she provides no meaningful case law in support of her vagueness challenge.2
Moreover, Dixon does not provide any evidentiary support for her argument. Mere
2
The only Sixth Circuit case cited by Dixon, United Food & Commercial Workers Union, Local
1099 v. Southwest Ohio Regional Transit Authority, 163 F.3d 341 (6th Cir. 1998), addresses a due-process
challenge to a state-agency restriction on controversial advertisements. Id. at 359. Dixon also relies upon
Child Evangelism Fellowship of South Carolina v. Anderson School District Five, 470 F.3d 1062 (4th Cir.
2006), a Fourth Circuit case that analyzes viewpoint discrimination as it applies to a school district’s fee-
waiver system.
No. 12-3218 Dixon v. Univ. of Toledo et al. Page 13
claims that the University does not have “objective criteria for determining whether a
particular opinion expressed by a University employee is sufficiently ‘offensive’ or
‘discriminatory’ to warrant its prohibition by terminating the speaker’s employment” are
insufficient at the summary-judgment stage. Appellant Br. at 32. In fact, Dixon fails
even to describe or reference the policy that she claims is vague and discriminatory. We
therefore affirm the district court’s grant of summary judgment in favor of the
defendants on these challenges to the University’s speech policy.
C. Equal-Protection Claim
Dixon also alleges an equal-protection claim against the defendants, arguing on
appeal that the defendants “punished Plaintiff because she expressed a ‘less favored’
viewpoint—one grounded in her strong Christian faith no less—in this very same forum
in violation of the First Amendment (freedom of speech) and the Fourteenth Amendment
(equal protection).” Appellant Br. at 34. The district court granted summary judgment
to the defendants on this claim because Dixon “has not presented anyone who was
‘similarly-situated’ and engaged in similar conduct.” Dixon, 842 F. Supp. 2d at 1055.
“The Equal Protection Clause prohibits a state from denying to any person within
its jurisdiction the equal protection of the laws.” Scarbrough, 470 F.3d at 260 (internal
quotation marks omitted). “The threshold element of an equal protection claim is
disparate treatment; once disparate treatment is shown, the equal protection analysis to
be applied is determined by the classification used by government decision-makers.”
Id. “Fundamentally, the Clause protects against invidious discrimination among
similarly-situated individuals or implicating fundamental rights.” Id. Although Dixon
recites this standard in her argument, she has failed to produce sufficient evidence in
support of her equal-protection claim. To begin, as discussed above, she has not shown
that the defendants violated a fundamental right, as her speech was not protected.
Moreover, Dixon has not shown that the individuals she argues were allowed to engage
in public speech on the issue of LGBT rights and protections without penalty—Jacobs
and Vice Provost Carol Bresnahan—are similarly situated.
No. 12-3218 Dixon v. Univ. of Toledo et al. Page 14
Dixon’s comparison with Jacobs is easily distinguishable. Jacobs, as President
of the University, wrote an op-ed column detailing the University’s stance on diversity,
specifically as it relates to sexual orientation. R. 60-11 (Jacobs Op-Ed) (Page ID #515).
Jacobs was speaking in his official capacity as the President of the University in order
to explain the University’s position on a policy matter. Dixon, on the other hand, wrote
an op-ed column that was not commissioned by the University and that contradicted the
very policies that she was charged with creating, promoting, and enforcing.
The comparison with Bresnahan, although intuitively more germane, fails
because it is unsupported by sufficient evidence in the record. The evidence proffered
by Dixon establishes that in December 2007, Bresnahan and her partner “became the
first same-sex couple to file under the city’s new domestic-partner registry.” R. 60-14
(Bresnahan Article at 1) (Page ID #523). After she and her partner filed under the
registry, Bresnahan was interviewed by the Toledo Blade and made the following
statement regarding opposition of others to the registry: “It’s their religious beliefs, and
bigotry in the name of religion is still bigotry.” Id. at 1–2 (Page ID #523–24).
Bresnahan was identified as Vice Provost of the University in the article, yet she was not
terminated or disciplined as a result of this statement. Id. at 1 (Page ID #523); R. 60-5
(Jacobs Tr. at 218:15–24) (Page ID #476).
Importantly, however, the record is silent as to the responsibilities and authority
of the vice-provost position at the University. “Inevitably, the degree to which others
are viewed as similarly situated depends substantially on the facts and context of the
case.” Loesel v. City of Frankenmuth, 692 F.3d 452, 463 (6th Cir. 2012) (internal
quotation marks omitted). In this case, the critical inquiry centers on Dixon’s role at the
University. Therefore, in order to determine whether Bresnahan and Dixon are similarly
situated, we must at the very least have before us a description of the duties inherent in
Bresnahan’s role at the University. Without such evidence, we cannot engage in an
accurate comparison of the two individuals for the purposes of summary judgment in this
case. Although Dixon has identified another administrator at the University who also
spoke publicly on the issue of LGBT rights, Dixon has not shown that Bresnahan is
No. 12-3218 Dixon v. Univ. of Toledo et al. Page 15
similarly situated. We thus affirm the district court’s grant of summary judgment in
favor of the defendants on the equal-protection claim.
D. Qualified Immunity
Finally, Dixon argues that the defendants are not entitled to qualified immunity.
Appellant Br. at 35. However, given that Dixon has not shown a violation of her
constitutional rights, we affirm the district court’s determination that “the Court need not
consider whether such rights were ‘clearly established’ at the time of her termination.”
Dixon, 842 F. Supp. 2d at 1055.
IV. CONCLUSION
For the stated reasons, we AFFIRM the decision of the district court granting
summary judgment in favor of the defendants.