Joseph Zickes v. Cuyahoga Cnty., Ohio
700 F. App'x 475
| 6th Cir. | 2017Background
- Joseph Zickes, a longtime Cuyahoga County deputy, was reassigned in Oct 2011 and elected union steward shortly thereafter.
- Zickes alleges Lieutenant Bryan Smith (and Sergeant Michael Carroll, Lucy Rodriguez) pressured him to lobby deputies to donate sick time; he refused and claims defendants then harassed and retaliated, leading to his early retirement.
- Zickes sued under 42 U.S.C. § 1983 alleging First Amendment retaliation (and referenced but did not separately plead other constitutional claims or intentional infliction of emotional distress).
- Defendants moved for judgment on the pleadings; district court dismissed the non‑First Amendment and IIED theories as not properly pleaded; summary judgment proceedings followed with several of Zickes’ affidavits excluded as legal conclusions.
- The district court held Zickes’ speech did not involve a matter of public concern (so not First Amendment protected); alternatively, even if protected, he failed to show a materially adverse employment action or constructive discharge; it granted summary judgment and qualified immunity to defendants.
- Zickes appealed; the Sixth Circuit affirmed, finding his public‑concern argument forfeited and other challenges meritless or irrelevant given the lack of protected speech.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Zickes’ union‑related speech involved a matter of public concern | Refusal to lobby for sick‑time donations and union bulletin‑board postings were protected speech on public matters | The speech concerned internal union/workplace matters, not public concern | Forfeited on appeal; district court rightly found no public‑concern protection |
| Whether defendants’ actions amounted to materially adverse employment action / constructive discharge | Alleged campaign of harassment and disciplinary acts forced retirement, causing financial harm | The disciplinary acts were not sufficiently severe; no evidence defendants intended to create intolerable conditions | Court found no materially adverse action and no proof of constructive discharge |
| Admissibility of affidavits excluding legal conclusions about public concern and factual assertions supporting adverse actions | Affidavits should be admitted to show nature of speech and incidents (e.g., blocking entry, investigations) | Affidavits contained impermissible legal conclusions; factual parts were irrelevant if speech lacked constitutional protection | Exclusion of legal conclusions affirmed; any erroneous exclusion of factual portions was harmless given lack of protected speech |
| Whether other constitutional claims and IIED were properly dismissed for failure to plead | Plaintiff referenced other constitutional violations and emotional distress in complaint | Those claims were not pled as separate counts or adequately alleged | Dismissal affirmed for failure to state those claims properly |
Key Cases Cited
- Adair v. Charter Cty. of Wayne, 452 F.3d 482 (6th Cir. 2006) (failure to develop argument forfeits appellate review)
- Rorrer v. City of Snow, 743 F.3d 1025 (6th Cir. 2014) (public‑concern requirement for First Amendment public‑employee speech)
- Zickes v. Cuyahoga Cty., et al., 207 F. Supp. 3d 769 (N.D. Ohio 2016) (district court opinion excluding affidavits and granting summary judgment)
- Upshaw v. Ford Motor Co., 576 F.3d 576 (6th Cir. 2009) (harmless‑error analysis for excluded evidence)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (complaint must contain sufficient factual matter to state a claim)
- United States v. Poole, 407 F.3d 767 (6th Cir. 2005) (general rule against raising issues on appeal that were not presented below)