■Plаintiffs appeal the district court’s grant of summary judgment to defendants in this civil rights action which challenged plaintiffs’ discharge from employment in the Police Department of Brookfield Township, Ohio. When plaintiffs did not respond to the motion, the district court based its review of the facts upon the materials presented and highlighted by the moving party, and concluded that no genuine issues of material fact existed for trial. Defendants thereupon were determined to be entitled to judgment as a matter of law. This Court agrees, finding firstly that the trial court correctly limited its review to the facts designated b.y the moving party, and secondly that it did not err in granting defendants’ motion for summary judgment.
FACTUAL BACKGROUND
In its Memorandum Opinion and Order, the District Court relied upon the factual record presented by the defendants, and concluded that, since plaintiffs did not respond with a different version, the designated facts were uncontroverted. For reasons explained at Discussion, Section I, infra, the same facts are accepted and examined in this Opinion.
Appellants Dominick Guarino and Jacquelyn Brown-Guarino were formerly employed with the Brookfield Township Police Department. Dominick was originally hired as a part-time officer and Jacquelyn, at the time known as Jacquelyn Brown, was employed as a police radio dispatcher. She was married to William Brown, another part-time police officer with the Township. Several events in early 1986 led to Dominick’s and Jacquelyn’s discharge from employment.
During a time in which the Browns were experiencing marital problems, Jacquelyn and Dominick began an intimate relationship. They each sued for divorсe — Jacquelyn filing in February. 1986 — and they have subsequently married.
On February 18, 1986, Jacquelyn wrote a letter to then-interim Chief of Police, Kenneth Hudak, expressing concern about her employment. She acknowledged that rumors and gossip of her domestic problems and of her relationship with Dominick Guarino were spreading throughout the Department.
On March 4, 1986, William Brown wrote a letter to Chief Hudak and the Brookfield Township trustees. In the letter he. complained that Dominick would visit Jacquelyn at the Brown’s home while he was away at work, many of these times while Dominick was on< duty with the Department. On one occasion, William said, he
Throughout this time period, the department and the Trustees received numerous other complaints about Dominick meeting Jacquelyn at her house while he was on duty, leaving a marked patrol cruiser parked in the drive. The Trustees and Chief Hudak informed Dominick and Jacquelyn of the complaints against them. William Brown’s letter was shown to them and they were asked to respond. On March 8, 1992, Jacquelyn replied in writing to the letter and informed the Chief and the Trustees that she was having domestic problems with her husband and that she had established a personal relationship with Dominick Guarino. She acknowledged that Dominick would meet' her at her home while he was on duty. She also described a fight she hаd with her husband at the police station while she was on duty, and recounted that she had became so upset from the fight that she left duty early and went with Dominick, never to return to her husband. Dominick also responded to the complaints in writing, similarly acknowledging that he went to Jacquelyn’s house while he was on duty. He offered in addition an assortment of explanations, which included his need to deliver to Jacquelyn a copy of rules and regulations for a local cemetery.
Thereafter, the Trustees continued to receive complaints about Dominick and Jacquelyn. On several occasions, the Trustees and Chief Hudak informed Dominick and Jacquelyn of the complaints against them and asked them to keep their “personal matters” away from the department. The Chiеf eventually recommended to. the Trustees that Dominick and Jacquelyn be discharged.
Before the Trustees took any action on this recommendation
Dominick and Jacquelyn were suspended until the next Trustee’s meeting which was scheduled for May 15, 1986. The Chief notified them of the meeting and advised them to attend. At the May 15th meeting, the Trustees confronted Dominick and Jacquelyn with the complaints against them and accused them of the following improper conduct: 1) fighting while on duty; 2) Dominick visiting Jacquelyn’s home while he was on duty; 3) allowing their personal domestic problems to interfere with their work; and 4) making unauthorized long distance phone calls from the police station. Dominick and Jacquelyn were allowed to respond, and did, denying the charges. After considering the matter, the Trustees removed the suspension and placed them on probationary status.
Shortly after this meeting, however, Chief Hudak discovered clear evidence confirming his original impression that Dominick and Jaсquelyn had violated department rules by making numerous personal long distance telephone calls from the station without prior approval, and without recording many of the calls on the log sheet. He informed the Trustees of these findings, and they finally discharged Dominick and Jacquelyn at the next meeting on June 16, 1986.
In June, 1987, plaintiffs filed this claim pursuant to 42 U.S.C. §§ 1983, 1986, 1987, and 1988 alleging that various of their constitutional rights had been Violated in the discharge decision. Specifically, they alleged that defendants violated their right to privacy, their right to freely associate, their right to be protected from deprivation of property without due process of law, and their right to equal protection under the law. They cited the 1st, 5th, 9th and 14th Amendments to the Constitution. (JA — 8, 11).
Ample time for discovery was allowed by the trial court, and trial had been scheduled to begin in the fall of 1991. On June 21, 1991, deféndants moved for summary judgment. Plaintiffs did not respond to the motion. Subsequently, on September 10, 1991, the district court determined that various facts presented by defendants were “uncontroverted,” and proceeded to examine those facts. In its Opinion, the court viewed the facts in the light most favorable to the non-moving party, but determined that the defendants had met their burden of demonstrating the absence of any genuine issue of material fact for trial on every one of the theories advanced by the plaintiffs in their pleadings. With that factual examination and those legal determinations, the court entered judgment for the defense, and this appeal followed.
STANDARD OF REVIEW
The circuit court reviews a grant of summary judgment de novo. EEOC v. University of Detroit,
DISCUSSION
I.
In their brief, the appellants argue that “... the nonmoving party [ ] was under no obligation to present evidence showing the existence of ...” genuine issues of material fact because such issues could be found “inherent in the [] documents.” (Appellant’s brief, pages 5 and 7.) Appellants say the district court erred in limiting its analysis of the evidence to the areas highlighted by the moving party, and claim that it should have been “unquestionably evident” that genuine issues existed had the district judge only reviewed “the material [ ] before the court.” (Appellant’s brief, page 8)
Appellants’ argument that the district court erred in not searching the record sua sponte is wholly without merit. The facts presented and designated by the moving party were the facts at hаnd to be dealt with by the trial court. Furthermore, their status as “the facts at hand” is maintained intact here on review. This Court will not entertain on appeal factual recitations not presented to the district court any more readily than it will tolerate attempts to enlarge the record itself.
Several other panels of this Circuit have noted — sometimes merely in passing, but usually in motions graced with a response — that there is no duty imposed upon the trial court to “search the entire record to establish that it is bereft of a genuine issue of material fact.” Street v. J.C. Bradford & Co.,
Nothing in either the Rules or case law supports an argument that the trial court must conduct its own probing investigation of the record. Beyond that, to adopt appellants’ argument would require us to carry out .on appeal a first review" of what amounts to an expanded record and would result in a substаntial and needless expenditure of judicial resources in this and countless other cases. This would defeat a central purpose of a Rule “properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to ‘secure the just, speedy and inexpensive determination of every action.’ Fed.Rule Civ.Proc. 1.” Celotex, id.,
If accepted and enforced, appellants’ argument would leave nothing to discourage the non-moving party, especially one with a reasonably arguable case, from declining (or “forgetting” or being “too busy”) to respond to a motion for summary judgment, secure in the knowledge that the district court would be required to excavate all of the prеsented record, and find for itself any nuggets of evidence that might demonstrate genuine issues of material fact. Even if the trial court were to grant the motion, this passive party could still relax, assured that he could timely file an appeal, flyspeck the factual record and the district court’s opinion, and only then, on de novo review, identify for the court of appeals the answers, the exhibits and the other facts he wishes to assert as supporting specific issues. Indeed, precisely because the review is de novo, with the appellate court standing in the same position as did the trial court, Estate of Mills, supra,
Effectively searching the record for “genuine issues” requires time, of course, but it also rеquires an adroit knowledge of the core issues of proof in the case along with an ability to recognize how various threads of testimony, woven together, could possibly defeat a dispositive motion. It is the attorneys, not the judges, who have interviewed the witnesses and handled the physical exhibits; it is the attorneys, not the judges, who have been present at the depositions; and it is the attorneys, not the judges, who have a professional and financial stake in case outcome. Thus, the free-ranging search for supporting facts is a task for which attorneys in the case are equipped and for which courts generally are not. And then, as to the element of time — if our trial courts could conjure up things for themselves, we believe that “more time” would be high on most lists. Conjuring, thоugh, still lies beyond grasp. To try to review the complete collection of exhibits, or to read each line of every page of all submitted depositions— much of which may not even be relevant to the real issues at hand — this represents to courts at both the trial and appellate levels an unrealistic ideal, an unaffordable luxury.
Additionally, it seems to us utterly inappropriate for the court to abandon its position of neutrality in favor of a role equivalent to champion for the non-moving party: seeking out facts, developing legal theories, and finding ways to defeat the motion. Such a role would carry the court far beyond simply reviewing evidence in “the light most favorable to the non-moving party,” or giving effect to inferences reasonably arising frоm the designated evidence
This Court concludes that the district judge was correct in relying on the evidence designated by defendants in their motion and was justified in concluding that the facts he relied upon were uncontrovert-ed. We must now simply determine de novo whether defendants met their -initial Rule 56 burden; i.e., whether the facts, as presented by defendants, required a determination that they were entitled to judgment as a matter of law.
II.
A. PLAINTIFFS’ RIGHT TO PRIVACY CLAIM
In their motion for summary judgment, defendants pointed to an absence of evidence in the record to support plaintiffs’ claims that a constitutional right to privacy had been violated. Because it was virtually impossible to determine from the pleadings how any privacy rights had been violated, and because of the logical difficulties in “proving a negative” (the absence of a genuine issue in this regard), defendants presented instead countervailing evidence from the record that affirmatively showed the discharges to have been justified. Specificаlly, defendants presented evidence that plaintiffs violated departmental regulations prohibiting officers and employees from using their designated on-duty time for personal business and from engaging in conduct which would “bring embarrassment and disrespect” to the Department. Additionally, evidence was presented that plaintiffs had violated departmental regulations by making numerous personal long distance phone calls without prior approval.
In their appellate brief, Jacquelyn and Dominick cite Whalen v. Roe,
Defendants properly met their burden as the moving party by suggesting and proving an absence of evidence in the record to support the plaintiffs case. Plaintiffs could have presented affirmative evidence to attempt to demonstrate that a genuine issue of material fact existed on this claim, but chose not to. Upon de novo review, the Court concludes that the district court’s judgment, founded in the defendants’ factual recitations, must be AFFIRMED.
B. PLAINTIFFS’ RIGHT TO FREELY ASSOCIATE CLAIM
As with the “privacy” claim, defendants,- in their motion for summary judgment, asserted an absence of evidence to support plaintiffs’ claim that their “right to freely associate” had been violated by discharge from employment, and demonstrаted conversely that the decisions to discharge were based on factors other than the intimate relationship Dominick and Jacquelyn had developed.
Defendants presented extensive evidence to show that the decisions to discharge were for clear violations of departmental regulations. Appellants now dispute the concept that departmental regulations were violated, and point to several facts that might call into question defendants’ stated reasons for discharge. As noted above, this Court will not brook an expansion here of the record presented to the trial court. Within the facts designated to the district court, there was no evidence sufficient for a jury to return" a verdict in plaintiffs’ favor; i.e., no evidence was at hand which would have established even a ‘prima facie case shifting the burden to defendants to demonstrate legitimate reasons for discharge. Jacquelyn and Dominick, in answering, could have presented affirmative evidence in an attempt to demonstrate, for example, that they were compelled to disclose facts about their personal lives, or that they were discharged because of their intimate relationship. They chose not to, and because defendants clearly showed an absence of material facts that could support plaintiffs’ claim, the district court’s decision must be AFFIRMED.
C. PLAINTIFFS’ DUE PROCESS CLAIM
In the motion for summary judgment, defendants presented evidence that plaintiffs were informed of the charges against them and that they were given an opportunity tо respond before they were discharged. The burden then shifted to plaintiffs to present specific facts to deny, or at least to call into question, whether there was any predeprivation notice with an opportunity to respond. Because the facts as presented by the defendants supported their proposition, the district court properly entered summary judgment on the claim.
Although appellants now point to certain portions of their deposition testimony to suggest that they were not given notice and an opportunity to respond, we say here once again that we will not widen our view of the facts on appeal beyond the record presented to the trial court. The due process claims fail for these reasons:
A 14th Amеndment due process claim arising out of discharge from employment will properly lie only if the employee has a constitutionally recognized property interest in his continued employment. See, Cleveland Board of Education v. Loudermill,
The Ohio Revised Code provides that
A patrolman, other police district employee, or police constable, who has been awarded a certificate attesting to satis*409 factory completion of an approved state, county, or municipаl police basic training program, as required by section 109.77 of the Revised Code, may be removed or suspended only under the conditions and by the procedures in section 505.491 to 505.495 of the Revised Code. Any other patrolman, police district employee, or police constable shall serve at the pleasure of the township trustees. In case of removal or suspension of any appointee, an appeal may be had from the decision of the board to the court of common pleas of the county in which the district is situated, to determine the sufficiency of the cause of removal or suspension. Such appeal shall be taken within ten days of written notice to the appointee of the decision of the board.
O.R.C. § 505.49(A).
Based on this statute and the decision in Smith v. Fryfogle,
Dominick, on the other hand, had been awarded a certificate of completion of police basic training and was therefore not subject to dismissal at will. The district court correctly held that he had a property right in continued employment and that some more extended process was due. The district court, however, reviewed defendants’ motion fоr summary judgment and agreed with the point of view, supported by the cited documents, that Dominick had received adequate notice of the complaints against him and had an opportunity to respond to the charges at the May 15, 1986, Trustees’ meeting.
To the extent that there may have been any degree of uncertainty in the district court’s mind upon review of the designated facts, we believe the district court need not have hesitated too long on the issue. Even if Dominick had not been told in these circumstances exactly what the meeting was going to be about, or had not been given a detailed opportunity to re-' spond to the charges presented against him, that state of affairs would be insufficient to justify denial of summary judgment. In Loudermill, the Supreme Court explained that the pre-termination opportunity to respond is not required to be an elaborate evidentiary hearing. Loudermill,
The trial court properly concluded that each plaintiff was afforded a form of process that was due under the circumstances, finding that each was adequately apprised of the nature of the charges and allowed an opportunity to respond. Punctuating this conclusion as to Dominick was the statutory post-deprivation appeals process he did not use. Our de novo review persuades us that summary judgment was properly granted, and that the district court’s ruling must be AFFIRMED.
D. PLAINTIFFS’ EQUAL PROTECTION CLAIM
Defendants, in the motion for summary judgment, pointed to an absence in
In this case, appellants have not suggested that they are members of a suspect class, and they have not claimed that their discharges affected the exercise of any fundamental rights. To support this count, Jacquelyn and Dominick would have to establish that the Trustees’ decision was not rationally related to a legitimate state interest such as the orderly administration of the Department. Plaintiffs could have offered a response to the defendant’s views, chose not to, and the district court correctly concluded that summary judgment should be granted on this claim. No designated evidence existed which either would prove an equal protection violation, or would call into question the defendant’s analysis
CONCLUSION
A trial court, in reviewing a motion for summary judgment, holds the moving рarty to the burden established by the plain language of Rule 56: to show “that there is no genuine issue as to material fact, and that the moving party is entitled to a judgment as a matter of law.” The fact that the non-moving party does not respond, or that the motion may otherwise seem to be unopposed, does not change this requirement or lessen the burden on the moving party or the court. See Carver v. Bunch,
In the absence of a response, the court must review carefully those portions of the submitted evidence designated by the moving party. Neither the trial nor appellate court, however, will sua sponte comb the record from the partisan perspective of an advocate for the non-moving party. Rather, in the reasoned exercise of its judgment the court may rely on the moving party’s unrebutted recitation of the evidence, or pertinent portions thereof, in reaching a conclusion that certain evidence and inferences from evidence demonstrate facts which are “uncontroverted.”
If such evidence supports a conclusion that there is no genuine issue of material fact, the trial court should determine that the moving party has carried its burden, and “judgment [] shall be rendered forthwith....” Fed.R.Civ.P. 56(c).
The trial court here held the moving party to exactly this test, examined the designated evidence, analyzed the law governing the issues in the case and determined that the movant’s burden had been met. Summary judgment was properly entered forthwith, and the judgment of the district court in each respect is accordingly AFFIRMED.
Notes
. It is acknowledged by the parties that is was the Trustees, not the Chief, who were the decision-makers with regard to possible discharge from employment.
. It seemed implicit from their appellate brief that appellants intended to convey a view that the trial judge should have been expected to read all of the material submitted by defendant (some 660 pages; see footnote 6, below). Any possible doubt on this point was resolved by appellants’ counsel at oral argument. He indeed meant all.
. E.g., testimony which might have been relevant to an analysis of their Due Process claim in which plaintiffs deny (or say they “don’t remember") being informed of the charges against them.
. Indeed, the Court notes its order dated April 7th, 1992, granting a motion to remove two newspaper articles, not part of the original record, inserted in the Joint appendix by Appellants.
. Jude v. Inez Deposit Bank,
. Consider, for example, the resources that appellants would have the courts expend in this motion alone, exploring and unearthing particular fаcts from among 459 pages of deposition transcripts and over 50 pages of memos, letters, and other documents. The Joint Appendix comprises three volumes containing over 660 pages of material. Assuming that two pages of average material can be carefully read in a minute, there are five and a half hours’ worth of pure factual inquiry here for a-judge. Beyond that, the items appended as exhibits included photocopies of notes written in a hand whose legibility is, at best, challenging, and copies of multi-.page letters which, although typewritten, are compacted to stupefying density with small font, single spacing and almost no margins. (To gain some appreciation of the effect, one need only imagine being required to carefully read all of Footnote 5, supra, and that it droned on for another six or seven pages.) The sands of time continue to run apace as the court endeavors to study and understand these profusely fact-laden volumes. Of course, any time that might be appropriate for a judge’s legal analysis of the issues only compounds the problem.
. If such "advocacy for the silent” were accepted as the trial court's proper role henceforth, appellants1 argument provides no guidance in determining how aggressive we should require trial judges to be in conducting that effort. Would there be future appeals by nonmoving parties claiming that the trial court, as it searched the record in the place of their non-responding attorneys, failed to be sufficiently inventive in its legal analysis of the facts? Or that the court failed to meеt some kind of minimal standard of competent advocacy? And would a trial court's lack of tenacity in searching for missing facts thereby deprive the litigant of some form of "effective assistance of the court”? The answer must be "no,” since down this path of illogic lies the absurd conclusion that it violates due process for the court to require the attorney to argue the case.
. The Court notes that asking an employee to respond to a charge of misconduct in writing represents a choice from among only two alternatives, the other one of which is verbal. Either response form c.ould be made publicly or privately, but the Court notes further that a written response is inherently less pressured by time, is less intrusive, is less of a personal confrontation, is far easier for the employee to state in clear and appropriate language, and carries with it only a limited chance of being subjected to on-the-spot follow-up questioning. These attributes of written responses, at least within these circumstances, appear to us generally consistent with the maintenance of individual privacy interests.
. Here again, appellants attempt to bring forward new evidence on appeal, this time an indication that the Trustees chose not to discharge a fire chief following a guilty plea to a charge of stealing governmental property. They claim that this evidences their being denied equal protection under the law. As explained in the body of this section, a Trustees’ decision not to discharge a fire chief would not be relevant to a determination of plaintiffs’ rights under this count.