*3 RYAN, BOGGS, Before COLE, Circuit Judges.
BOGGS, J., delivered the opinion court, RYAN, J., in joined. which COLE, J., 469-470), (pp. delivered a separate opinion in concurring part and dissenting part. OPINION BOGGS, Judge. Circuit In this rights civil action for retaliation against the exercise of speech by public employee, both municipal and in- dividual bring interlocutory ap- peals challenging the denial of their mo- tions for summary judgment. We are first asked to determine whether juris- we have diction, on interlocutory appeal, to consid- er the denial of defendants’ motion for summary grounds of qualified immunity, when that denial is based on a by determination the district court that a question of fact exists as to the employer’s motivation in terminating the plaintiff. We are also asked whether rights question are clearly as a pure established matter of law. On the question, first conclude that we jurisdiction, lack and dis- miss portion of the appeal. On the second question, we affirm the determina- tion of the district court that are established. I Emily J. Lewis (argued briefed), LLC, Dublin, Farlow OH, & Lewis Dale Hoover was employed in the Cir- Plaintiff-Appellee. cleville, Ohio, Building Department as a also built without archi- Inn was cur- Castle inspector. building and electrical by the Ohio drawing required as tect’s out of Hoover’s arises action rent Building Code. Department, statements, criticizing During the employee. he was an while also built Hair Salon was Boggs argued Hoover employment, of his course drawing; found permit without Sheldon, over Allyn supervisor, his violations, including a num- numerous code in in- to be used proper procedures plumbing hazards. The ber of fire disagreements buildings. The specting Ra- Hoover informed improperly vented. believed abstract: Hoover originally were the violations and others about dabaugh inspectors used checklist that the form sign off was nevertheless ordered but he *4 ap- to inspectors refused, that led errors and contained inspections. the Hoover Mr. building projects. noncompliant had 90 prove Boggs Mr. that he instead informed form. correct the did not the violations. Without days Sheldon to correct any without inspection and plumbing final became after, disagreement the Soon correction, certificate issued Sheldon to Hoover instructed Sheldon concrete. open. to the Salon occupancy permitting did that building projects several approve incidents, Hoover these also asked Hoo- a result of As code. Sheldon not meet publicly. Hoo- that voice his concerns inspections began to perform plumbing ver to Building Department’s the spoke The ver to perform. to was not Hoover local Board, up of Advisory is made plumb- which dispute involved Building Clifton realtors, Depart- about the Hoover to builders told inspection that Sheldon ing Hoover con- practices. improper ment’s was conduct, fact that Hoover despite the Krebbs, chief the state Garry tacted inspections. such perform certified to not the inform him that inspector, to plumbing told Clif- went, but protest, under Hoover viola- concealing code Department was busi- (the local powerful and a owner ton city-wide also went to Hoover tions. nessman) him an only give that could he raise his meeting, intending to supervisors’ the officially approve not and could opinion meeting He believed concerns. later, returned, with a Hoover site. one; He left it was not. awas Pa- Chris Patowski. inspector, plumbing meeting informed he was when plumbing Clifton informed towski supervi- designated only for was intended vented. properly was attempt- disciplined Hoover was sors. Build- to sue the then threatened Clifton meeting. ing to attend the Clif- permitted Department. Sheldon ing Hoover Sheldon warned Radabaugh and defects, pla- to plumbing to hide the ton Building Depart- discussing the stop to final for the the time him. When cate stop publicly him to and ordered ment Patowski, came, Sheldon misled inspection or- been fact that he had discussing the approved had that Hoover indicating non-compliant projects. approve dered Patricia mayor, The Circleville plumbing. inap- it was Hoover that told Defendants Hoover Sheldon told Radabaugh, and all bad news “spill for him propriate and override violations off on the sign was warned community.” Hoover over Pa- had found. that Patowski violations continued if he job jeopardy that his was plumbing also found violations towski publicly. Department to criticize which site, project, Inn the Castle another physical al- had a in the at- Sheldon plumbing included non-insulated parties’ later. The months two to conceal tercation Patowski asked Sheldon tic. widely; incident differ descriptions of violations; refused. Patowski however, they agree on the following. his appeal was denied it un- Hoover was photocopying timely. documents in preparation for a lawsuit against the Build- Hoover then brought civil this ing Department and Sheldon. Sheldon en- action, claiming that defendants violated tered the room. Hoover told Sheldon that his First Amendment free speech rights, he was getting attorney. re- Sheldon due process rights, and Ohio public policy sponded that Hoover should not include in terminating him. He sued both the his name in the lawsuit. Hoover informed municipality and a number of individual Sheldon that Sheldon reason for defendants. The individual defendants lawsuit, and that he would be named as moved for summary judgment on the a defendant. room, Sheldon left the but grounds immunity; the munici- immediately returned. Hoover feared pality moved for summary judgment on Sheldon was going to destroy the docu- the grounds that there was no city policy ments. The shoved two each other. Hoo- to restrict freedom of speech. then pushed
ver Sheldon out of the room, Upon evaluating Hoover’s speech claim, and said: “If you here, come back I’ll the district court found that he had suffi- *5 you.” kill ciently made out his case to defeat sum- mary (1) judgment because was Immediately thereafter; Hoover giv- public concern; (2) termination would en notice a pre-disciplinary meeting. chill (3) such speech; and the defendants’ signed He a form waiving that meeting. motivation in terminating Hoover was “a Hoover claims that he waived pre- question of fact best left to the jury to disciplinary meeting it had been decide.” respect With to Hoover’s due too scheduled soon for get him to an attor- process claim, the district court held that ney; his understanding was that the meet- his waiver was not knowingly made. ing later, take place when he had procured an attorney. The employee re- district court denied defendant’s sponsible for collecting motion waiver, for summary judgment Mr. on the issue Starkey, qualified testified that Hoover signed immunity. The court found quickly, waiver but denied that did not meet their requested time to seek an burden showing they attorney. How- would have ever, Hoover acted terminated Hoover consistently if even he his had not en- belief, gaged in and called night speech. to inform Star- The individual key that he could defendants filed not this lawyer. find a interlocutory appeal Hoo- ver for sought then review of qualified to have the hearing immunity sched- issue. uled. No hearing scheduled, and While appeal this was pending, Hoover Hoover was terminated. The stated rea- moved for dismissal of the individual de- sons for his (1) termination were: refusal appeal, fendants’ asserting that this court to carry out (2) assignments; work using jurisdiction lacks to hear an interlocutory insulting, malicious, threatening, or intimi- appeal based on a factual determination dating language to (3) his supervisor; as- made the district court. Hoover also saulting supervisor; (4) his and engaging moved this court to dismiss the municipali- personal work during business. The ty’s appeal, on grounds that the munic- termination letter did notify Hoover of ipality may not attach its appeal to the right his to appeal, as required is by Ohio interlocutory appeal by the individual de- law. Hoover did eventually appeal fendants. The motions were referred to decision to the Civil Commission; Service the hearing panel.
465 whether rather than II genuine record demonstrates Qualified Immuni- A. Jurisdiction 298, Phelps, 286 F.3d fact for trial.” ty 561, Rieger, v. 150 F.3d quoting Berryman whether we determine are asked to We Cir.1998) (internal quotations 563 interlocutory an to hear have omitted). citations court’s decision from a district appeal im- qualified summary deny perform officials “[G]overnment where, facts taking munity functions, generally are discretionary ing true, issue of materi- is as liability damages civil shielded from in ter- motivation to defendants’ al fact as not violate their conduct does as insofar We hold that employee. minating statutory or constitu clearly established not. do person of which reasonable tional Fitzger Harlow v. known.” would have case stems in the Jurisdiction 2727, 800, 818, 73 ald, 102 S.Ct. 457 U.S. (1994); § this 1291 statute 28 U.S.C. from (1982). If L.Ed.2d 396 from appeals to hear us grants only im official is not applicable, A deni courts. judgments of district final immune from damages, but is mune from not a generally summary judgment al of 511, 472 Forsyth, v. U.S. suit. Mitchell Coy, Phelps judgment. final (1985). 411 86 L.Ed.2d 105 S.Ct. Jones, (6th Cir.2002); 515 Johnson two-step employs pro Circuit Sixth L.Ed.2d S.Ct. U.S. im questions deciding cess in However, (1995). court deni district First, the court wheth munity. considers *6 immunity may appealed be qualified of als facts, a er, there has been (1) plaintiffs on the defen where as collateral orders Second, the court violation. constitutional asserting de official public a dant is that involved (2) whether violation considers immunity, and qualified of fense of constitutional “clearly facts established not which concerns appealed would have person but which a reasonable prove, able to might be parties McClellan, 101 v. a vio Dickerson facts reflect known.” alleged certain whether (6th Cir.1996). 1151, 1158 v. law. Cohen F.3d of lation established Corp., U.S. Loan 337 Industrial Beneficial case is the defendants’ of this The crux (1949); 1221, 541, L.Ed. 1528 93 69 S.Ct. they If terminating in Hoover. motivation 511, 105 472 S.Ct. Forsyth, v. U.S. Mitchell protected speech, of his fired him because (1985). Adding one 2806, 411 86 L.Ed.2d If denied. immunity should be qualified wrinkle, Court held Supreme final insub- him of his they terminated Jones, 304, 515 U.S. 115 S.Ct. v. Johnson The dis- ordination, is true. opposite (1995), that circuit 2151, 238 132 L.Ed.2d a ques- that trict court decided jurisdiction over always have courts do not whether the fact as of tion material a district court appeals from interlocutory mo- impermissible entertained qualified summary judgment denial of must We discharging Hoover. tives only where exists immunity; as to motiva- this decision decide whether pure ruling is confined district court’s factual one. legal is a tion Therefore, of officials ly questions law. Dickerson, first tasked we are Under ruling an immediately appeal adverse may plaintiffs determining whether with immunity; on their defense violation, a constitutional spell out facts however, appeal if the may only do so they whether determining then of law and abstract [issue] a “neat presents 466
violation of a clearly established (1968). con- L.Ed.2d 811 “In striking the bal right. stitutional today We hold ance, courts should consider whether an do not have review fac- employee’s comments meaningfully inter tual determination of the district court that fere performance with the duties, of her there was a issue of material fact undermine a legitimate goal or mission of toas or not whether the defendants enter- the employer, create disharmony among tained unconstitutional motivations.1 Be- co-workers, impair discipline by superiors, cause the determination of the district or destroy . relationship loyalty and court was factual and did not signifi- raise trust required of confidential employees.” legal questions, cant we dismiss that issue v. Williams Commonwealth 24 Ky., jurisdiction. for lack of (6th Cir.1994). Second, F.3d the defendants’ adverse action must consti 1. Constitutional Violation tute injury likely chill The threshold inquiry court person ordinary firmness from engaging must undertake in protected Bloch, activity. 156 F.3d analysis is whether allegations, if Third, at 678. “the adverse action [must true, establish a constitutional violation. be] motivated at least in part as a response Hope Pelzer, -, - U.S. 122 S.Ct. to the exercise of the plaintiffs constitu 2508, 153 (2002), L.Ed.2d 666 quoting Sau tional rights.” Ibid. Katz, cier 533 U.S. 121 S.Ct. (2001). 150 L.Ed.2d Here, Hoo Here, Hoover’s speech included ver has stated claim for a violation of his informing state officials and citizen boards rights to free speech under the First about the procedures improper used being Amendment. When a public employee al by the Circleville Building Department. leges that he was terminated in retaliation When an institution aspect oversees some speech, we look to three safety, the operation correct First, elements. must be con that institution is a matter of public con stitutionally protected. Ribar, Bloch v. cern. Mattox v. City Park, Forest Cir.1998). Speech *7 515, (6th Cir.1999) F.3d 521 protected is if it (wrongdoing is subject on'a concern, by a municipal fire department Connick v. Myers, 138, held to 461 be U.S. 143, 103 sufficient public S.Ct. 75 (1983); L.Ed.2d to 708 interest merit First moreover, subject protection). Amendment matter must be As the district sufficient importance to court correctly outweigh concluded, the in the interest in terest of the state in conducting public safety its affairs outweighs the state’s interest in a collegial manner. v. Bd. in Pickering conducting its affairs collegially. Ter Educ., 391 U.S. 88 S.Ct. 20 mination is an adverse action that would 1. Johnson does contemplate not However, whether or to facts. Johnson also held that a not we jurisdiction review, would have to on decision, district court factual including the interlocutory appeal, utterly an incorrect de- genuine decision that a issue of material fact termination exists, genu- district court a is not a “final appealable decision” ine issue of material fact existed 1291; § between the under this was despite tire fact that parties. Johnson constrained review on inter- review of that determination would be purely locutory appeal factual, legal, to ques- legal. believe, Because do not we in this tions. The case, determination as to whether or that the district court incorrectly deter- genuine not a issue of material fact exists mined that genuine there was a issue of mate- is, truth, between parties legal fact, in a deter- rial we note but do not answer this mination, although it does involve question. reference By Hoover’s justify termination. ordinary firm- Hoover’s in a speech person chill physical Mattox, description, Sheldon initiated at 521. 183 F.3d ness. contact, extremely and aggressive was Amend of a First part third The may have to de- threatening, intended to the defendants’ looks claim ment intended to stroy documents Hoover When terminating Hoover. in motivation turn, alleged, in a lawsuit. Sheldon use issue, “sum is at intent the defendants’ hostile, threatening and that Hoover was inappropriate.” particularly mary contact, physical initiated that Hoover Walker, F.2d ohnic Mar room, and threat- out of shoved him Cir.1986). act taken retali An fac- quintessential his life. This is ened constitutionally of a the exercise ation for question. tual even if the actionable right if for proper taken would have been action Further, evidence at trial indi- adduced Bloch, reason. a different for at- disciplined cated 681-82. ac- speak publicly to about the tempting Department. Hoover was tions of decision Hoard find this Circuit’s
We
attempting to attend the su-
censured for
(6th Cir.1999),
Sizemore,
nied this of a free- motivation fact as to the element at 209-11. The Sixth Circuit Id. pealed. precedent, we our speech violation. Under that, court held the district held review the determina- lack exist- of material fact that a it makes such a district court when tion of defendant’s refusal ed as to whether the Hoard, F.3d factual determination. affiliation, the political was based on rehire at 218. *8 jurisdiction to consid- court had no appeals evidence plaintiffs sufficiency er Clearly 2. Established Constitutional Id. 218. motivation. at to defendant’s as Rights case, a nonre- assert In this Hoover’s termination: taliatory reason for above, As noted the Sixth Cir determine two-part test cuit a uses solely fired because that was they argue he by quali an official is whether How- against Sheldon. his death threat facts make immunity. If a point to a fied ever, evidence pieces several violation, the court a moti- out constitutional the actual regarding conflict factual whether First, proceed determine dif- must accounts then of defendants. vation established. right clearly was not that physical confronta- to whether fer as 426, County, 203 F.3d v. Loudon Sowards and Hoover would tion between Sheldon 468 ” (6th Cir.2000). 438 The test for whether a its immunity ruling.... Ibid.
right
clearly
is
established was set out in Defendants assert that we should hold that
Fitzgerald,
Harlow
457 U.S.
102 their conduct in terminating Hoover met
(1982):
S.Ct.
Defendants
when
Boyd
criminal
Baeppler,
does
merely
flee,
Cir.2000),
In this
(i)
court erred
the district
review: whether
applied
district court
the
that
intimation
immunity to the indi-
denying qualified
in
determining
in
legal standard
wrong
terminating
the
for
vidual defendants
really
reasonableness;
(ii)
defendants
what
rights;
wheth-
speech
on his free
based
determination,
preliminary
in denying quali-
is the
erred
contest
the
court
er
district
summary judgment,
of denial
to the individual
by way
fied
claim
process
of material
due
procedural
Hoover’s
for
that there
of a
terminating
pre-disciplinary
in
lack
notice
for
of'
their motivation
as to
fact
(in)
court
the district
meeting;
whether
to be
question
In order for
Hoover.
immunity for
denying qualified
in
erred
argue
must
the defendants
legal,
purely
claims for
process
due
procedural
Hoover’s
legal standard
that,
Boyd,
in
different
as
to
his
appeal
his ability
lack of notice of
an em
applies when
of reasonableness
(iv)
termination;
the district
whether
and
behavior;
for
in violent
engages
ployee
summary judgment
denying
in
court erred
se reasonable
per
that
it is
example,
princi-
based
to the
of Circleville
City
physi
following
employee
an
terminate
majority
liability. The
municipal
ples of
protected
what
no matter
altercation
cal
I
Because
only the first issue.
considers
in,
no
and
employee engaged
activity the
merit some
all four issues
that
believe
altercation;
for the
at fault
who is
matter
I
with the
attention,
disagree
and because
employed
court
the district
that
the first
analysis of
majority’s
scope of the
evaluating
in
reason
standard
incorrect
issue,
separately.
I write
ableness.
issue, although we decline
On the first
We de-
unavailing.
argument
over
interlocutory appellate
of rea-
a new standard
to establish
cline
immunity for
qualified
the denial of
We
workplace violence.
for
sonableness
claim,
so because
we do.
that, as a
court
the district
agree with
appeal.
in
facts
their
dispute
appellants
law,
are
rights
here
pure
matter
interlocutory appeal
in an
Our
official
a reasonable
clearly established:
us
immunity allows
a denial of
terminating
employee
know
in the context
law
consider issues of
motivation,
part,
quiet-
even
evidence
facts or the
undisputed
“the
about
public speech
ing
plain
light
most favorable
viewed
violates
Department
of the
illegal activities
F.3d
Long, 275
Klein v.
tiff.”
that,
lack
Beyond
the Constitution.
(6th Cir.2001),
filed, 70
cert.
petition for
the district court’s
jurisdiction to review
(No.
2002)
01-1742);
(May
USLW 3758
they
as
to factual issues
as
determination
F.3d
Rieger, 150
Berryman
actual motivation.
defendants’
relate to
Cir.1998) (“A
who is denied
defendant
an interlocu
immunity may file
only if that
with this Court
tory appeal
Ill
legal
pure
the abstract
involves
appeal
by reasons,
alleged
we affirm
the facts
the above
For
issue whether
clearly
violation
plaintiff constitute
court’s determination
district
limitation,
law.”).
established,
Despite
were
established
beyond
argument
their
extend
appellants
the appeal
the remainder of
dismiss
the evidence
facts or
undisputed
jurisdiction.
lack of
*10
light
Comm’n,
viewed in a
most
35, 51,
favorable to the County
514 U.S.
115 S.Ct.
plaintiff
they
ask this
(1995);
Court
address
cause neither of those issues involves dis
puted fact, questions jurisdic we have
tion consider arguments both here. Rather than here, belabor those issues I May Sharon ROCKWELL, simply my note agreement with the dis Petitioner-Appellee, trict thoughtful court’s treatment of those issues, see Hoover Radabaugh, 123 (S.D.Ohio 2000). YUKINS, F.Supp.2d Joan Respondent-Appellant. 422-25
Finally, City No. 00-1992. of Circleville seeks to have this Court pendent exercise appellate United States Court of Appeals, jurisdiction over its claim on princi- based Sixth Circuit. ples municipal However, liability. 3,Oct. 2002. pendent exercise of appellant jurisdiction only proper where there an inextrica- MARTIN, Before: Judge; Chief link ble pendent between the appellate BOGGS, BATCHELDER, DAUGHTREY, claim and the claim over which we have MOORE, COLE, CLAY, GILMAN, and jurisdiction. See Swint v. Chambers GIBBONS, Circuit Judges.