Charles L. Boals, Cross-Appellant v. Frank H. Gray, Superintendent, Ohio State Reformatory, Cross-Appellee

language of the statutes should to include them.

not be inflated BOALS, Plaintiff-Appellee,

Charles L.

Cross-Appellant, GRAY, Superintendent,

Frank H. Reformatory, Defendant-Appel-

State

lant, Cross-Appellee. 83-3887,

Nos. 83-3896. Appeals,

United States Court of

Sixth Circuit.

Argued June 1985.

Decided Oct. 1985.

As Amended Oct.

Rehearing Rehearing En Banc Denied 9, 1985.

Dec. WELLFORD, KENNEDY

Before and WEICK, Judges, and Circuit Senior Circuit Judge. KENNEDY,

CORNELIA G. Circuit Judge. Boals, plaintiff-appellee L.

Charles and cross-appellant this is a former permanent non-probationary correctional officer of the State of Ohio. Boals com- response menced this action in to a five-day suspension imposed on him Gray, defendant-appellant Frank H. and cross-appellee, seeking monetary and in- junctive relief under 42 U.S.C. 1983 and § declaratory relief under 28 U.S.C. §§ & 2202. Boals contended that his first infringed amendment because suspended activity; he was for union although under law he could only state be cause, suspended for process; without due and that (Page 1984), Ohio Rev.Code Ann. § suspen- insofar as it authorized short-term process, sion of civil without due servants applied.1 was unconstitutional on its face as trial, Following non-jury the District suspended Court held that Boals was with- out due and in violation of his first rights in for his amendment retaliation un- activity, ion and that acted bad oppressive faith and with malicious monetary dam- intent. Court awarded ($195.53) wages ages equal to lost or- expunged dered that plaintiff’s record on the due claim, damages on the first amend- $5000 claim, damages. punitive ment and $5000 seeking It dismissed claim de- claratory respecting relief the constitution- Stamatakos, Gen., Atty. Asst. John C. ality ground 124.34on the of O.R.C. § Columbus, Manuelian, argued, Christine longer employed by he since Ohio, defendant-appellant, cross-appel- standing re- he lacked to seek such State lee. District Court is lief. The decision of the Melle, Lucas, argued, Gray appeals Prender- reported James at 577 Gee, Albright, Gibson, judgment awarding gast, Newman & the District Court’s relief, Columbus, Ohio, injunctive plaintiff-appellee, monetary Boals his claim cross-appeals dismissal of cross-appellant. appeal does not this deprived tion over this claim. Boals 1. Boals claimed that he was also longer bargaining is no under state law to choose decision and the state law claim representative. The District Court at outset issue in this case. jurisdic- pendent of the case declined to exercise constitutionality defendants, found in challenging the favor of concluding reverse the District statute. We interpretation that the gov- 124.34was § appeal and affirm on the on the Minter, erned Anderson v. 32 Ohio cross-appeal. (1972), St.2d 291 N.E.2d 457 which pursuant held 124.34 that a civil serv- I. suspended days ant for five or less could complaint in the Dis- Plaintiff filed suspension not have directly reviewed 20, In May 1976. its March trict Court by the This court. decision failed to ad- 14, order, plain- the court dismissed question dress the central presented— claim, supra, note 1 tiff’s state law see whether or not Ohio required law some defendant’s motions to dismiss overruled procedure sort of in imposing suspen- such first amendment and sions. summary judgment, claims and for County The Franklin Appeals Court of granted motion that the court defendant’s court, although affirmed the trial it did considering abstain from the constitutional- appear acknowledge the to some ity of O.R.C. 124.34. The court conclud- § pre-suspension form of hearing as a matter susceptible ed that 124.34 “is of a con- § federal, rather than state law. The whereby procedure struction some is man- court then went on to conclude on the basis dated under Ohio law to be followed before by of the affidavits the submitted defend- suspensions days of five or less be procedure ants that the impos- followed in imposed, despite the fact that on its face it ing plaintiff’s suspension satisfied the re- expressly provide reject does not or such a 565, quirements Lopez, of Goss v. 419 U.S. procedure,” the and “that has 729, (1975).3 95 S.Ct. yet presented been courts of Supreme Court declined review. Ohio.” The court ordered that this issue results, Upon being apprised of these the abeyance pending adjudication be held in District Court resumed consideration of the by parties courts, providing the state instant case.4 plaintiff commenced such an action days within 30 of the court’s order. II.

Thereupon, a seeking state court action plaintiff declaratory judgment defendant concedes that was commenced plaintiff compliance protected property had a interest with the District created pleas suspended Court’s order. The common 124.34 court O.R.C. not to be § provides, part: (Page 1984). pertinent 2. The statute Ohio Rev.Code Ann. At 1976, plaintiff suspended the time every employee The tenure of officer or suspensions provided the classified service of the state and the coun- ties, of more than § 124.34 cities, townships, city days appealable. civil service health five districts, districts, general city health thereof, objections concurring holding position It school districts un- did so over the Code, chapter judge, der this of the Revised shall be who believed that the court should have during good behavior and efficient service ruling constitutionality confined itself to on the employee and no such officer or shall be 124.34, question presented by plain- §of position, suspended, pay reduced in or or tiffs. removed, except provided in section 124.32 Code, incompetency, of the Revised and for 4. There is no indication in the record before drunkenness, inefficiency, dishonesty, immor- appeal this Court on that the defendant has ever conduct, insubordination, al discourteous appellate contended that the state court decision public, neglect duty, treatment of the viola- plaintiff's on the merits of federal claim should tion of such sections of the di- or the rules judicata estoppel have res or collateral effect. rector of administrative services or the com- mission, These affirmative defenses which are any good or other failure of behav- See, specifically e.g., waived if not raised. ior, misfeasance, any or other acts of malfea- 1037, Chicago, City Blankner v. 504 F.2d office____ sance, or nonfeasance in (7th Cir.1974), denied, cert. 421 U.S. reduction, suspension case of (1975). L.Ed.2d removal, working days, more than three employee may appeal____ file an ... except against for cause. In its from work March made him. The defendant was order, 14, 1977 the District Court found Superintendent of the Reformatory. suspension of a state Captain One Hartson was an immediate employment days for five where such superior plaintiff. The employ- may only for cause relationships ment plaintiff between deprivation proper- minimal a of a is not so Hartson were They cordial. also were protections ty interest that the of the due friendly socially. apply. clause do not Accord Jack- Very shortly before the ques- events in Kurtz, 152, 158, App.2d 65 Ohio son v. tion, plaintiff joined had Union (1979) (citing unreported N.E.2d 1064 employees at Reformatory. He be- order).5 opinion March In its final came support, active its and encour- order, that, the court concluded inas- aged other join it. plaintiffs much as short-term April On when left law, was unreviewable under state and in work, he parking found a warning ticket consideration of the test formulated the car, on his although he parked had Supreme Eldridge, v. Court Mathews spot car in that before without any prob- U.S. lem. (1976), determining require- the minimal When he came to work the next morn- process appropriate specif- ments of due ing, position he took his deputy’s the (weighing private ic circumstances in- Captain office. through Hartson came action, terest affected official the risk of said, Boals, door and “Charlie What’s challenged procedure prob- error of the and happening?” Plaintiff had parking procedural of additional safe- able value said, ticket in his hand. He “Does guards, government and the in- interest got you handing these out?” volved), Hartson process due in this instance re- replied, “Yep, (1) said, sure quired: does.” Plaintiff charges written notice of and “Why you don’t take given evidence a this and tell him to reasonable time ad- (2) hearing; pre-suspension up said, vance of a stick it his ass.” Hartson hearing “Okay” a before neutral administrator with and took the ticket. representation questioning and that, Very shortly plaintiff after was witnesses; (3) explanation and a written go told to to defendant’s office. He en- F.Supp. the administrator’s decision. 577 tered the office. Defendant was stand- at 295. ing behind his desk. Hartson and anoth- official, Rowe, er

The District Charles were seated Court found the facts lead- ing plaintiff’s suspension plaintiff. to be as fol- behind Defendant asked him if before, lows: parking he had seen the ticket Hartson, given he had it to and if he had giving the time of the events rise to [A]t up said defendant action, should stick it his ass. plaintiff this had been a civil Mansfield, Ohio, responded “yes” Plaintiff to all employee service at the those Reformatory, years. questions. immediately for some four He Defendant told any disciplinary charges had never had him days he had three off for insubor- Second, Psychiatric two-day segments). In Carter v. Reserve Western Habili- additional Center, (6th Cir.1985), tation 767 F.2d 270 procedural asserts a first amendment as well as two-day suspension a court held that without process Although reject plain- due claim. we pay involving discipline a matter of routine was merits, tiffs claims on the the first amendment property deprivation deserving de a minimis potential claim raises considerations such as the process of due consideration. While we ac- chilling plaintiffs suspension effect of on him- knowledge holding, decided this and filed dur- weigh against self and others that classification ing our deliberations on the instant we do suspension Finally, of his as de minimis. claims, regard dispositive plaintiffs it as recognized note that the Carter court that even a and affirm the District Court’s view that the two-day suspension pay may without constitute First, suspension at issue was not de minimis. property deprivation, holding a and that its was five, plaintiffs suspension days was for not two specifically presented. confined to the facts (albeit three-day plus divisible the initial into said, time, place, a Plaintiff then “Wait circumstances of the rele dination. deprivation.” way going property it’s vant If this at minute. (citing Eldridge, a representative, Mathews v. be, I the union want . 902) somebody S.Ct. at Section 124.34 I here with lawyer. want to, applies a said, got property therefore confers “You have Defendant me.” upon, “every interest officer or days off.” five the classified service the state and fuss, seeking to then Plaintiff raised counties, cities, townships, city civil service so he could get the increased districts, general districts, health health it, got appeal but nowhere. thereof, city holding school districts formulation to Applying at 292. its Id. position chapter under this of the Revised facts, “proce- the court held that the these supra. Note 2 Given Code.” See whereby “plaintiff given ‘no- was dure” coverage, inappropri of this it was breadth held, discipline tice,’ ‘hearing’ prescribe pro the District ate for Court to min- matter of meted out all within a process guidelines gen due cedural of such utes,” satisfy re- did not the fundamental applicability. eral at 295. quirements process. of due Id. Lopez, Supreme v. Goss re due Gray argues held quirements specified by the District Court requires, in connection with Supreme with the Court’s are inconsistent high [from school] supra, which opinion Lopez, Goss less, days given that the student be suspensions. school Boals coun dealt with charges oral or written notice of the consequences suspension of ters that the of and, them, against him he denies work, employees including inju from public explanation of the authori- the evidence reputation, ry personal effect on future to an opportunity present ties have and opportunities, pay, career and loss story____ his side of the than of students suspensions more serious delay There need between the school, require greater procedur given time “notice” is and the time of Quinn, safeguards. 520 al See v. Muscare hearing. the (7th 1212, Cir.1975), dis F.2d cert. 581-82, (em- at at 739-40 419 U.S. 95 S.Ct. missed, 425 U.S. added). phasis (1976); Beal, 455 Bagby L.Ed.2d 165 v. (N.D.Pa.1978). the While case, undisputed In the it is instant public em argument that the due Gray that asked if he had seen Boals greater due ployees should be than that ticket, Hartson, given parking it to and told receiving like suspensions students dura ass, Gray up to tell it Hartson to stick persuasiveness, do tion is not without we ques Boals each yes and that answered agree require that not due Thus, tion. Boals was informed imposition ments attendant him, charges against deny and did not suspension on short-term unreviewable Regardless procedure them. of what is public employees are as non-probationary public non-probationary em due when prescribed by those the Dis extensive as by covered ployee O.R.C. contests Since, below, it explain trict Court. we charges giving proposed rise to a short- necessary appropriate was neither nor suspension, disagree term we Dis broadly ap to prescribe that, the District Court particular facts trict Court under the case, plicable process guidelines in this admitted the in this where Boals disapprove the formula procedure by District Court's Boals charges, the which of our constitutionally tion and decline substitute one suspended was defective. own. suggested argument at oral Counsel correctly brought hearing

The District Court acknowl- could have out at process’ not edged “that ‘due a flexible con- the remark made suspension, seriously to the and did not warrant cept necessarily which is tailored given greater advance notice appropriate had he been court is not the forum in prepare and time to his defense. Such was which to review the person- wisdom of a not, however, plaintiffs contention at trial. nel public decision taken agency by counsel he would When asked what allegedly in reaction employee’s behavior____ given done if he had time to have been prepare hearing, only for a Boals stated employee’s speech Whether an ad- give opportunity “it would have me an public dresses a matter of concern must parking to find out how I was in violation.” content, form, be determined Moreover, reported the fact that Hartson given statement, context of a as revealed though the remark even Boals and Hartson by the whole record. concededly were friends belies counsel’s ef- 147-48, 103 S.Ct. at 1690. forts to minimize its seriousness. parties Neither the nor the District Court by surprise Nor was Boals taken when prior took notice of this decision to oral Gray’s Although spe- called to office. argument, and, say, needless to the defend- cifically disciplinary informed that action alleged ant had not error on this basis. office, prior entering atwas issue he Although general “the rule that an [is] that “I testified had an idea that it was appellate court will not consider sponte sua that, parking warning slip,” over the arguments presented urged by the immediately Gray after increased his sus- litigants[,] [e]xceptional ... partic- cases or said, pension days, from three to five he ular circumstances prompt a review- “No, Everytime somebody no. comes court, ing injustice might where otherwise they get down here time off.” Hartson result or policy requires, where in part, corroborated latter statement questions consider pressed neither nor said, testifying Gray that Boals after im- passed upon posed below.” Nuelsen v. three-day suspension, the initial Soren- sen, (9th only Cir.1961); “that time Mr. called the F.2d ac- give to his office was to them cord Cohen West Haven Board Po- days disciplinary off of Commissioners, reasons.” lice 638 F.2d 500 n. [sic] (2d Cir.1980). requested parties We adequate. notice was There was no they prepared argument at oral to delay. need to We conclude that the Dis- import address the of the Connick decision awarding plaintiff trict erred in dam- appropriate the instant and deem it ages right procedural for violation of his to raise the issue of whether process. rights speech first amendment of and asso- ciation as exercised this case related to III. public gave matters of concern and hence The District Court awarded Boals $5000 rise to a cause of action in federal court. compensation as for the discomfort and Connick, 10, See 461 U.S. at 150 n. 103 frustration caused defendant’s interfer- n. S.Ct. at 1692 rights speech ence with his of freedom of F.Supp. and association. 577 at 296. In 138, Myers, Connick S.Ct. A.

1684, (1983), Supreme 75 L.Ed.2d 708 that, although speech Court held such is step first analysis our must totally beyond protection not be to determine whether the Connick amendment, first “public concern” applicable test is facts herein. In making this public employee speaks When a determina tion, two distinct concern, issues must upon public citizen matters of be con They first, sidered. employee upon but instead as an matters whether Connick interest, applies only personal to association as speech, of absent well as and circumstances, second, most unusual a federal whether speech union-related and 144-45, (em- on a matter inherently touches 461 U.S. at 103 S.Ct. at 1689 association public added). words, of phasis In other concern Pickering as a matter of law.6 Connick, while speech themselves explicitly

We have found no case that cases, are based freedom of associa- encompasses considers whether Connick perceive logical tion cases. We reason speech, although association as well as var differentiating speech between and as- ious district courts have assumed both that in applying sociation Connick first Compare it does and does not. Petrozza v. claims, amendment and hold that it is so Incorporated Village Freeport, 602 of applicable. 137, (E.D.N.Y.1984) (Connick F.Supp. applies speech and associational con It must still be considered whether union duct), is, O’Connor, membership speech with Gavrilles v. or as a matter of * 301, (D.Mass.1984) (not logic precedent, F.Supp. inherently 304 n. a matter of public concern. necessary Smith v. Arkansas speech to consider freedom of 1315, Highway Employees, Connick, State Local light claim in of since 463, 1826, 441 U.S. 99 S.Ct. 60 L.Ed.2d 360 alleged claim), also of freedom association (1979) curiam), (per the Court held that the Cronvich, Parker v. protects pub- first amendment (E.D.La.1983)(Connick 1976 & n. 6 applied lic to form unions. See also respecting first amendment claim insu College Association Edu- bordinate statements which led to dis Professional (PACE) County cators v. El Paso Com- charge, but not to plaintiffs claim that District, munity College 730 F.2d were fired they because were union mem (5th Cir.1984); Gavrilles, 262-63 bers). Connick, however, F.Supp. at 304. In The Court in specifically Connick did not speech by public Court did hold that refer to association in drawing the distinc- public not on a matter of interest speech tion public between on matters of “totally beyond protection private concern and matters of interest Amendment,” merely First but that such only. did, however, suggest It its speech give did not rise to a cause of action simply exposition decision was of Pick- in federal court “to review wisdom a ering Education, v. Board 391 U.S. personnel by public agency decision taken (1967), allegedly employee’s reaction to the be- which the impermissible Court held under havior.” 461 U.S. at at 1690. the first high amendment the dismissal of a Thus, applying speech to union Connick school openly criticizing teacher for activity is not inconsistent with the Board of Education on its budgetary priori- principle speech well-established that such ties. The Court pains went to some activity protected by amend- first dealing Connick trace the case law ment. constitutional employ- ees, and concluded: fact, just In itself Connick was cases, precedents

In all of in these such a case. There the was dis rooted, Pickering tributing which is questionnaire employ invalidat- to other sought sup- relating primarily ed statutes and actions to ees to the terms and press public employees of employment. to conditions of their The public Court, however, participate question affairs. The issue characterized the government employees naire employee’s was whether as reflective of “one dis prevented attempt could be or “chilled” satisfaction with a transfer and an discharge joining political displeasure turn that fear of from into a cause cele 148, 103 bre,” parties that certain 461 U.S. at at or other associations and concluded, public might exception,7 officials find “subversive.” with one that it did law, Connick, fact.”) speech is one 6. See 461 U.S. at 148 n. 103 S.Ct. at of of & 150 n. ("The protected 103 S.Ct. at 1692 n. 10. inquiry 1690 n. 7 into the status question asking

7. The Court held that a assistant public matter of concern. The not touch facts of the case are rather simple, exceptions, and with minor American Postal Workers Union v. there is no Cf. Service, testimony____ conflict in the F.Supp. States Postal Court United (D.D.C.1984) plaintiff’s has no doubt that the (postal worker’s version 568-69 newsletter, any conflicting elements of the discussing column in union testi- mony conduct, are true. The increasing defendant’s strategies membership union demeanor, appearance, movement, particularly distinguished to work light when viewed Connick). all of the speech from at issue We evidence and the circumstances of the employee’s speech, conclude that an activi- essentially indicate that he is un- association, ty merely because it is un- worthy of disputes belief. When he ion-related, does not on a touch matter of say, what other witnesses the Court is public concern as a matter law. impelled not to believe him. F.Supp. at 292.8 B. Having concluded that is Connick City Anderson v. Bessemer City, claim,

applicable we must con Supreme reemphasized the defer- sider whether the basis for his findings ence due district court under the speech touching or association on a clearly However, erroneous standard. matter of concern. We have no Court cautioned: disciplined doubt that an who is suggest This is not to judge that the trial solely membership in retaliation for his may findings insulate his review support of a union states a valid first denominating them credibility determina- amendment claim under and Pick Connick tions, for factors other than demeanor Dinaso, ering. v. 758 F.2d See Grossart go and inflection into the decision wheth- (7th Cir.1985); PACE, 1230 n. er or not to believe a witness. Doc- F.2d at 262-63. The District Court found objective may uments or evidence contra- that “the defendant’s actions in this case story; story dict the witness’ or the itself measure, if entirely, substantial internally be so inconsistent or im- hostility the result of the defendant’s plausible on its face that a reasonable union activities.” 577 at 293. This factfinder would not credit it. Where finding subject is a factual to review under present, such factors are the court of clearly erroneous standard. Anderson appeals may find clear error even — -, City City, Bessemer finding purportedly credibility based -, 1504, 1511, determination. (1985). — -, U.S. at 105 S.Ct. at 1512-13. only significant discrepancy crediting be Even the District Court’s find- Gray’s testimony ings Boals’ and respecting sequence tween of events leading imposition testified that Boals loud became prior issue, impo finding, and abusive to rather than after the court’s ultimate day suspension, Gray’s sition of the additional two anti-union animus was his reason Boals, specifically suspending totally unsup- never asked for rep. ported by clearly a union The District Court found: the record and hence er- " attorneys they pressured presence rep, replied district ‘ever feel of a union Hartson "No sir;" thereafter, political campaigns immediately response work in supported on behalf of office in but ” candidates’ was of concern. asking Gray questions two whether Boals or 461 U.S. at 103 S.Ct. at 1691. unions, ever mentioned labor Hartson answer- cross-examination, ed, "Not that I recall.” On testimony, 8. Hartson’s which counsel contended respect with to whether Boals became abusive supported Gray points, on these is not men- prior imposition to or after of the additional opinion. tioned in testi- the court’s Hartson’s days, admitted that he was not two Hartson sure however, mony points, equivocal. on these was sequence of events. examination, response ques- On in to two direct asking requested had tions whether Boals testimony whatso- THE COURT: I don’t see how that There was roneous. trial, would be relevant to the issues here. form of a even in the bare ever at allege you You can what want al- Boals, that knew he accusation lege, in but this is not a case which get him the union or was out to joined had representation any union is involved Plaintiffs counsel con- for that reason.9 way. argument it was not ceded at oral point I think MR. ABRAMOFF: our any indicat- alleged nor was there evidence rights is not that our First Amendment ticketing of his car was harass- ing that the were denied per- because were not membership, union ment because of his representation. I mitted union think legitimate effort to discour- rather than a allegation partic- our is that Mr. Boals’ age parking of cars at the location ipation coming very in the OCSEA question.10 time short before this fact, technically there is no evidence in intimately being connected with his the record that Boals was even member suspended____ attempted of the union. Twice counsel on Again, say, THE as I I COURT: Boals direct examination about any don’t take it that it makes differ- occasions, membership. his union On both ence what the reason was for the disci- objected, objec- defense counsel and the pline that was or whether it were sustained. tions We find the District rightly wrongly imposed____ holding especially Court’s in this case curi- Honor, MR. ABRAMOFF: Your light following colloquy dur- ous may I make one comment? ing trial between the court and counsel: THE COURT: Yes. BY MR. ABRAMOFF: agree you MR. MELLE: We with Q (Continuing) you a Were member wholeheartedly ques- that one of the Employees Civil Associ- Service you pro- tions have to decide is what suspension? ation at the time of this pose ques- cess is due. You can’t Objection, MR. STAMATAKOS: say tion in a vacuum and what Your Honor. looking is due. What we are at is a THE COURT: Sustained. public employee. looking are at a We Honor, MR. ABRAMOFF: Your one you state where have no collective bar- allegation of our counts is the that our gaining rights. negotiate can’t You being First Amendment were your employer, but we also infringed upon because of our union looking says at case law which activities, and I like to Mr. you setting would have have the in a labor testify as to that. freedom of association. THE not a

THE COURT: This is not a First COURT: This is labor setting. dealing Amendment case we are with. is a due case.

This I Maybe problems MR. ABRAMOFF: But think there there are labor maybe relevancy, are First Amendment overtones al- they have some involving possi- leged Complaint our Mr. least in the mind and membership bly Gray’s in the Defendant mind. I Boals’ the OCSEA. strictly prohibited Gray’s testimony by public employees was that he uncontradicted Act, day Ferguson did not even know who Boals was until the Ohio law the Ohio Rev. under Gray suspended 1980) (re- him. (Page seq. et Code Ann. However, pealed). could even if these incidents testimony employees, 10. There was from three anti-union, probative animus be construed suspended preparing, one of whom was Gray’s part, they do not establish link passing, petition proposing the other two for suspension. It animus and Boals’ between such strike of correctional officers. These events oc- we find of this essential link that is evidence approximately curred suspension. six months after Boals' totally absent in this record. First, strikes we note that Inc., 963, 102 what went on in their don’t know 70 L.Ed.2d minds____ (1981). deposition Even in were only support for the Dis- conceivable properly part of the record before this finding in trict Court’s ultimate is Boals’ Court, considered in entirety directly its it deposition, following which contains the ex- plaintiff’s contradicts supposition that anti- change: union animus was the reason for his sus- Q you you Do claim that were disci- pension. There is his own statement that your membership in plined because of no one ever told him suspended that he was the OCSEA? this reason. He also stated that “when it, A I believe that had a lot to do with Gray Mr. first came Superintendent], he [as yes. got place in uproar, he had to estab- Q did that have a lot to do with How lish that he was head cheese and what he your being disciplined? went, thing might said little Well, A of all the time that I ever happen any big thing am saying —I here, any problems I never had worked everything that came down was little —but nothing. say, my Like I work eval- with he took over an institution that was lax and up everything, uations were all and I completely way.” went the other This any problems. had never statement coincides with the District rejoined Then when I the union ’76 finding, awarding punitive Court’s dam- got involved with this extra little ages, that “defendant’s actions were ... in, getting people committee on extra all motivated ... the defendant’s desire to go night of a sudden I out one and there powers him, flaunt the entrusted to in or- parking thing ticket and the next I to reduce his abject der sur- know, got render, I Captain time off and Hart- and to increase his stature just eyes.” son has made a 180 on me and own at 296-97. way everything came down. That is the The evidence of other incidents of disci- of, only thing I can think it discour- was pline, by plaintiff inserted in the record aging the union. purpose showing lack of due Q anybody you Did ever tell that Mr. generally imposition suspensions, in the Gray disciplined you your because of suggests that a fairer characterization membership and effort on behalf of OC- defendant’s conduct be that he was a SEA? attempting to strict administrator correct a discipline extremely situation which was No, A no. poor. Regardless character- of which compare wording When we correct, however, suggests ization is either findings respecting of fact the events sur suspending his reason for Boals was rounding Boals’ recited anti-union animus. opinion District Court’s with trial following Finally, regard the admis- deposition testimony, plain it is deposition fatally inconsist- sions relying upon the District Court was that he plaintiff’s supposition ent was deposition opinion. in its This reliance was suspended activity: for his union improper. deposition Plaintiff’s nei you that Mr. Q anyone Had ever told stipulated to nor offered in ther evidence at Gray was anti-union? upon trial. It was incumbent A No. portions deposition to ensure that that, Q say your which it relied admitted into it be fair to Would Wildlife, knowledge, evidence. Inc. no one has either stated that Defenders of Auth., and, than

Endangered Species anti-union other Mr. Scientific had, (D.C.Cir.), you there would be cert. denied sub the one incident F.2d you that Mr. nothing else to indicate to International Ass’n Fish Wild nom. & Gray was anti-union? Wildlife, Agencies v. Defenders of life ” yer. somebody I want here with me.’ In Well, cases. As far were other A there no; it, through his ac- judgment, this is not indicative of people saying our as Hallock, tions, touching Rick Carl Wit- yes. speech With or association on a matter repre- chie, guys were not allowed these challenge concern. It is a to sentation, me that is anti-union. and to authority, involving a matter of in Gray’s discipline

ternal of concern to Boals alone. Cronvich, Parker v. at any person Q personally know you Do Cf. (“The only ‘expression’ by Schilling disciplined by Gray Mr. who has been shouting was the match that union and Parker activities? developed September depu on and both A No. at trial that their actions ties conceded anyone here Q you heard of Have ever insubordination, to minimal amounted being Reformatory disci- at Ohio State ones. If Sheriff Cronvich’s reasons for union activities? plined for his firing deputies solely the two based A No. incident, then he fired them for that meetings in that at union Boals also stated insubordination, which was matter com attended, Gray was dis- that he Columbus not in mitted to his discretion and violation occasion, “mostly on each cussed [about] speech.”). of their freedom of We conclude allowing and not having people down finding in that the District Court’s favor office; in the no representation union them plaintiff on his first amendment claim must them; being the one-sided- witnesses reversed. These statements do ness of his manner.” Gray sus- support the conclusion anyone else because of pended Boals or IV. At membership or activities. their union The District Court also awarded most, support an they only could inference damages. punitive Since $5000 repre- to allow union refused the defendant violated have concluded that disciplinary be- sentatives conferences procedural neither to “But opposed to the union. cause he was amendment process nor his first impose any the First Amendment does association, punitive dam speech and obligation government affirmative as well. ages award must be vacated listen, or, in this context to respond to bargain with it.” recognize the [union] V. Smith, at 1828 441 U.S. at (footnote omitted).11 argued exten parties have Boals re sively of whether Having carefully reviewed all question of standing present the tained possible therefrom inferences evidence and constitutionality 124.34 af of O.R.C. light plaintiff, in the most favorable leaving employment of the State. ter simply there is no we conclude evi for declarato dismissing plaintiff’s claim finding support dence to that the initial relief, analogized to ry the District Court three-day suspension on Boals had Cir.1976), (4th Moore, 541 F.2d 460 Holt v. relationship membership his union challenging prisoner certain in which a possible only first or activities. sought damages as regulations prison state remaining is that the ad amendment claim injunctive relief. declaratory and well two-day suspension tacked on ditional “ was released plaintiff Holt Because the statement, ‘Wait because Boals made the was com custody after the action way going it’s a minute. If this is the menced, held that he had be, the court representative, a law- I want the union procedure appeal, denied High- “that this firmed on “context" in Smith was the State 11. The ability employees the considering representing the only union way policy of Commission's grievances behalf on their effective grievances directly to submit submitted First Amendment." designated employer representative. The and therefore violated finding, S.Ct. at 1826. 441 U.S. at Court’s af- Court reversed the District prison challenging regula- interest See Carter v. Psychiatric Western Reserve tions, requests dismissing the Center, declarato- (6th Habilitation 767 F.2d 270 Cir. ry injunctive as 1985). relief moot and re- manding proceed on the case to the dam- respect With to the additional day two ages issue of the alone. None authorities suspension, total making a of five days, I

presented by cross-appellant per- are would conclude that the entire suspension contrary. suasive to the Those dealing minimis, was not de impact of distinguish- with are terminated the added time deserves further considera- plaintiffs prevailed able because if they tion. suspension The additional came would be entitled to reinstatement. Nor is responded about because Boals to the ini- this case “capable repetition, yet one of tial day three penalty: evading review.” Southern Termi- Pacific “Wait a minute. If this is the way it’s 498, ICC, nal Co. v. U.S. S.Ct. be, going representa- I want union 279, 283, (1911). public 55 L.Ed. 310 Other tive, lawyer. I somebody want here employees, individually class, either or as a with me.” present could claim.12 identical response

Prior to that there was no men- VI. tion and no indication that was aware of union activity or union adher- judgment The of the District Court find- ence or any part interest of Boals’ had ing plaintiffs defendant pro- liable on due whatever in opposing the initial day three cess and first amendment claims is re- parking for a clear violation. plaintiffs versed. The dismissal claim seeking judgment declaratory on the con- I prepared am not reach a decision as stitutionality of O.R.C. is af- § response whether this indicating a desire firmed. representation union touched on a mat public ter of merely concern rather than

WELLFORD, Judge, concurring. Circuit matter personal of interest to Boals. Since entirely parties I am neither the Judge accord with nor District Ken- nedy’s took importance extensive treatment and notice of the discussion this dis day suspension tinction, initial three issue. I would remand consideration addition, I believe that initial question. of this Connick v. Myers, See deprivation de property minimis 138, 103 461 U.S. S.Ct. L.Ed.2d 708 deserving consideration. (1983). Co., 436-37,

12. Even if standing plaintiff retained to have his man Brush 422 at 455 U.S. S.Ct. Court, 1148, 1158-59, by (distinguishing claim decided the District it is clear 71 L.Ed.2d 265 by it is without merit. statute is not “‘random and unauthorized act a state em- respect pre ployee,’” quoting Taylor, unconstitutional on its face with v. Parratt 451 U.S. 1908, 1916, (1981), suspension procedures. short-term As the Dis procedure’ trict Court observed at outset of this from an "'established that de- state respect proce stroys according § 124.34 is silent with to such his entitlement without him proper procedural Finally, safeguards.”). dures. Nor is the statute unconstitutional in its application. courts statute The state have acknowl is not unconstitutional on its face or as edged suspensions applied permit appeal that even short-term are sub because it does not direct First, ject requirements pro suspensions. to the minimum of due short-term the state Kurtz, App.2d although cess. v. 65 Ohio courts have Jackson held that state law does 1064; permit appeal, N.E.2d relief see also Cleveland Board Edu such an be had — -, -, Loudermill, pursuant to § cation v. under federal law 1983 where 1487, 1493, (1985) (proce deprivation process. there has been a of due 84 L.Ed.2d Second, Kurtz, by supra. dural due is not conditioned state Jackson v. fact that "wrong," property suspensions may be statute that substantive in some does not establishes Moreover, plain public employment). mean that the al an unconstitution- terest statute creates absolutely presumption irrebuttable presented suspen- that such tiff no evidence with re contends, cause, spect procedures or lack sions were for since thereof em ployed anywhere pursuant suspensions may only some else such adjudicative comporting procedure 124.34 or which short-term sus form of otherwise process. pensions imposed. Logan requirements of due the minimum Zimmer- Cf. would involve remand proposed response only of whether consideration speech or “indicative of matter of touching on a

association only with be concerned It would

concern.” day sus- additional two validity of the

pension. Judge Kennedy’s agree with further

I award, damage punitive

disposition 124.34 has holding that O.R.C. her unconstitu- to be demonstrated

not been application. in its face or on its

tional WHITTINGTON; Thelma

William Plaintiffs-Appellees,

Whittington,

Cross-Appellants, COMPANY, JERSEY ZINC

NEW

Defendant-Appellant,

Cross-Appellee. 83-3508, 83-3538.

Nos. Appeals,

United States Circuit.

Sixth 20,

Argued Feb. 23, 1985.

Decided Oct.

Case Details

Case Name: Charles L. Boals, Cross-Appellant v. Frank H. Gray, Superintendent, Ohio State Reformatory, Cross-Appellee

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Dec 9, 1985

Citation: 775 F.2d 686

Docket Number: 83-3887, 83-3896

Court Abbreviation: 6th Cir.