Zickes v. Cuyahoga County
207 F. Supp. 3d 769
| N.D. Ohio | 2016Background
- Plaintiff Joseph Zickes, a former Cuyahoga County sheriff's deputy, sued Lt. Bryan Smith and Sgt. Michael Carroll under 42 U.S.C. § 1983 alleging First Amendment retaliation and related constructive discharge after he retired early.
- Zickes served as an OPBA union steward and opposed lobbying or donating sick time to lieutenants; he claims that opposition prompted harassment and retaliation by Smith and Carroll.
- Incidents cited by Zickes include reprimands for bulletin-board postings (writing Smith’s name under “target”), oral counseling, a complaint-based Inspector General investigation (filed by a co-worker who was Smith’s girlfriend), discipline-related memoranda, a gas-card audit, shift-time changes, and disputes over compensatory time.
- Zickes moved for summary judgment; defendants moved for summary judgment and Smith moved to exclude an affidavit by union official Robert Beck offered to show the speech was of public concern.
- The court excluded Beck’s affidavit as improperly offering legal conclusions and unreliable expert opinion, held Zickes’ speech was not a matter of public concern, found insufficient adverse actions/causation, rejected constructive discharge, and granted summary judgment to Smith and Carroll (also applying qualified immunity).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Zickes’ opposition to sick-time donation was speech on a matter of public concern | Zickes: refusing to promote sick-time donation was union-related and protected because it "protected the public" and deputies' benefits | Defendants: the dispute concerned internal union/personnel matters, not public concern | Held: Not public concern; court excluded expert affidavit and treated speech as internal personnel matter |
| Whether bulletin-board postings (calling Smith a “target,” posting article) were public-concern speech | Zickes: postings were union-related commentary and addressed management conduct | Defendants: postings expressed private dissatisfaction and were internal gripes, not public issues | Held: Not public concern; communicative purpose was personal/union grievance, not public interest |
| Whether alleged acts constituted adverse employment actions caused by defendants (causation) | Zickes: reprimands, IG investigation, scheduling changes, and other incidents were retaliation that chilled speech and led to his early retirement | Defendants: many actions were minor (oral counseling, reporting), independent (IG investigation by independent office), or legitimately responsive to misconduct; no causal link shown | Held: Most incidents not materially adverse; where adverse, defendants did not cause them or intent to retaliate not shown; no First Amendment retaliation established |
| Whether Zickes was constructively discharged and whether officials have qualified immunity | Zickes: cumulative harassment forced early retirement; defendants’ conduct intended to push him out | Defendants: conditions not objectively intolerable, no intent to force resignation; even if claim existed, qualified immunity protects them | Held: No constructive discharge as a matter of law; no clearly established First Amendment violation—defendants entitled to qualified immunity and summary judgment |
Key Cases Cited
- Garcetti v. Ceballos, 547 U.S. 410 (speech by public employees pursuant to their official duties receives no First Amendment protection)
- Connick v. Myers, 461 U.S. 138 (public-concern test for public employee speech)
- Pearson v. Callahan, 555 U.S. 223 (qualified immunity framework)
- Kiessel v. Oltersdorf, [citation="459 F. App'x 510"] (6th Cir.) (retaliation for speech revealing alleged government illegality found to be public concern)
- Farhat v. Jopke, 370 F.3d 580 (6th Cir.) (distinguishing public concern from internal personnel matters)
- Van Compernolle v. City of Zeeland, [citation="241 F. App'x 244"] (6th Cir.) (union-related speech not necessarily public concern)