Omar Alomari v. Ohio Dep't of Public Safety
626 F. App'x 558
6th Cir.2015Background
- Omar Alomari, an Arab-Muslim Multicultural Liaison Officer at Ohio Homeland Security (within ODPS), presented and critiqued law-enforcement trainings about Islam and radicalization; he also testified before the U.S. House Committee on Homeland Security.
- Anonymous blog posts in April 2010 revealed Alomari’s prior employment controversy at Columbus State (an alleged sexual relationship with a student) and criticized OHS/Alomari’s contacts with CAIR; media inquiries followed.
- ODPS investigated and concluded Alomari omitted prior relevant employment from his ODPS application and that omission created an appearance of impropriety; ODPS terminated him June 30, 2010.
- Alomari sued asserting Title VII (national-origin, religious discrimination), § 1981 (race), and § 1983 (equal protection and First Amendment retaliation), among other claims; the district court granted summary judgment for Defendants.
- On appeal, the Sixth Circuit panel affirmed summary judgment in favor of Defendants; a separate dissent argued genuine mixed-motive disputes required a jury.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mixed-motive discrimination (Title VII / § 1983) | Vedra’s remarks and alleged disparate treatment (investigation of Alomari but not Martin) show national-origin/religious animus was a motivating factor. | Termination resulted from legitimate, nondiscriminatory reasons: omission of relevant employment and appearance of impropriety; Martin’s conduct differed and was not known or comparable. | Affirmed for Defendants — circumstantial evidence insufficient for a reasonable juror to infer discriminatory motive. |
| Hostile work environment (raised at summary judgment) | Complaint’s factual allegations of harassment by trainers and publication put Defendants on notice of a hostile-work-environment claim. | Plaintiff failed to plead the claim; alleged harassment was by non-employees outside workplace and did not show workplace permeated with discriminatory conduct. | Affirmed — claim not properly pled; cannot be raised first at summary judgment. |
| First Amendment retaliation (§ 1983) | Alomari’s criticisms of training and DHS-funded sessions were citizen speech protected by the First Amendment; termination was retaliatory. | Speech was made pursuant to Alomari’s official duties as Multicultural Liaison Officer (educating/assessing trainings), so Garcetti bars protection. | Affirmed — speech was within official duties; no protected activity established, so claim fails. |
| Spoliation / adverse inference (lost ODPS records) | ODPS failed to preserve/responsibly produce application, resume, and background files; adverse inference warranted. | No showing ODPS had a duty to preserve at time of loss or destroyed records with culpable state of mind; relevance/custody disputed. | Affirmed — plaintiff failed to show ODPS was on notice of potential litigation when records were lost and thus cannot obtain adverse inference. |
| Discovery: attorney-client privilege & depositions of in-house counsel | Communications at April and June 2010 meetings and depositions of ODPS in-house counsel are discoverable; Shelton rule inapplicable to pre-litigation matters. | Communications were predominantly for legal advice and thus privileged; Shelton/Massillon Management bar depositions of opposing counsel where counsel was involved pre-litigation. | Affirmed — district court did not abuse discretion: privilege applied to both meetings; Shelton/Massillon Management precluded depositions of in-house counsel. |
Key Cases Cited
- Smith v. Perkins Bd. of Educ., 708 F.3d 821 (6th Cir. 2013) (standard of review for summary judgment)
- Deleon v. Kalamazoo Cnty. Rd. Comm’n, 739 F.3d 914 (6th Cir. 2014) (equivalence of § 1983 Equal Protection and Title VII disparate-treatment elements)
- Spees v. James Marine, Inc., 617 F.3d 380 (6th Cir. 2010) (mixed-motive Title VII framework)
- White v. Baxter Healthcare Corp., 533 F.3d 381 (6th Cir. 2008) (mixed-motive plaintiff’s burden)
- DiCarlo v. Potter, 358 F.3d 408 (6th Cir. 2004) (direct vs. circumstantial evidence in discrimination cases)
- Garcetti v. Ceballos, 547 U.S. 410 (U.S. 2006) (public-employee speech made pursuant to official duties is not protected)
- Weisbarth v. Geauga Park Dist., 499 F.3d 538 (6th Cir. 2007) (analysis for whether speech was pursuant to official duties)
- Upjohn Co. v. United States, 449 U.S. 383 (U.S. 1981) (employee awareness requirement for corporate attorney-client privilege)
- Beaven v. U.S. Dep’t of Justice, 622 F.3d 540 (6th Cir. 2010) (elements for adverse inference from spoliation)
- Nationwide Mut. Ins. Co. v. Home Ins. Co., 278 F.3d 621 (6th Cir. 2002) (Shelton rule for deposing opposing counsel)