*1 from defense counsel’s drawn ence to be argument.”). of evidence and
presentation suggestion counsel’s defense
Given wit-
closing prosecution argument had a Washington
nesses fabricated regarding remarks
gun, prosecution’s supporting defense
the lack of evidence improper. rendition were
counsel’s Forrest, United
See States (6th Cir.2005) (observing prosecu- response
tion’s “made comments were closing presented in the theories factual defense, prosecu- and the
argument point out the lack of
tor was entitled theories.”) supporting those by plainly err
The district did sponte sua that the Govern-
failing to find or com- indirectly
ment the burden shifted Washington’s testify. failure to
mented plainly
Nor err
failing prosecutor’s re- find directly impugned or implicitly
marks
integrity or institutional role defense
counsel; prosecutor’s remarks were counsel’s at the merit defense
directed
arguments, counsel. not at defense
We affirm. ALOMARI, Plaintiff-Appellant,
Omar DEPARTMENT OF PUBLIC
OHIO
SAFETY, Defendant-Appellee.
No. 14-3922. Appeals, Court of
United States Circuit.
Sixth 9, 2015.
Sept. *2 sessions, Plain-
During training these tiffs conflicted with the views views often example, law officials. For enforcement training session at November officials, Plaintiff Ohio law enforcement explained presentation which he made *3 generally into four cate- that Muslims fell Islamists, Fundamentalists, Jihad- gories: ists, Af- Moderate Muslims. and Secular remarks, Sheets, an Plaintiffs Todd ter Depart- Police Officer with the Columbus (“CPD”), in- gave presentation a on ment SUHRHEINRICH, BEFORE: com- Officer ternational terrorism. Sheets CLAY, BATCHELDER, and Circuit said, He mented Plaintiffs statements. Judges. Fundamentalist, Is- “I’m not sure about Muslim, stop I a or Jihadist. When lamist SUHRHEINRICH, Judge. Circuit Fundamentalist, they’re ask if a I don’t me, they’re To all Islamist or Jihadist. (“Plaintiff’) suit filed Omar Alomari Officer Sheets claimed that same.” of Public Department the Ohio in Central Ohio had links Arab Muslims (“ODPS”), Thomas Director Safety terrorism, vio- that Islam commanded and Charles, Thomas Director former ODPS Afterwards, complained Plaintiff lence. Stickrath, Ohio Homeland Se- former and com- Director Vedra about Officer Sheets’s (“OHS”) curity Director William Vedra ments, they alleging implied all Arabs “Defendants”), alleging, inter (collectively, suspects, Muslims were terrorist and alia, Defendants discriminated presentation. Plaintiffs which contradicted origin, against him on national the basis Plaintiff the inconsistent believed further al- religion, race. and messages confuse enforcement. could law against his exercise of leged retaliation a January In attended speech. The First Amendment protected training at two-day session the Columbus granted summary judgment district court session, Academy. pre- At a Police this following rea- for Defendants. For Christianity claimed that and Islam senter sons, we AFFIRM. 1,400 than have been conflict more OHS, In a division November Muslims use violence to years, and will ODPS, Plaintiff as contract within hired conquer the entire world to and convert full- employee. permanent, He became that he presenter Plaintiff told the Islam. Liaison Officer Multicultural one time opinions, irresponsible “giving year reported later. Plaintiff John Ov- commu- to the law enforcement facts” OHS, and then erly, Director immediately Executive nity. During and after Vedra, Overly’s session, successor. training complained William (1) building pro- officials, Deputy including Plaintiffs duties included numerous CPD OHS, Rockwell; relationships Deputy law ductive between Director Chief John enforcement, com- Depart- Arab and Muslim Martin the Ohio Sheriffs Steve ment; munities; (2) Regional Unit researching authoring Coordination OHS Stefanik; Fusion Supervisor commu- Andrew OHS publications on Arab Muslim Ana- nities; Research to Center Counterterrorism research presenting Presson; Strate- Senior lyst OHS training law Ben enforcement sessions. Tracy port Plain- titled “A Guide to Arab and Islamic gic Planning Officer Proud. Selim, Policy Culture.” George tiff also emailed Department
Advisor at the U.S. Home- 18, 2010, On March soon after Plaintiffs (“DHS”) Security’s of Civil land Office testimony Congress, The Re- before Jawa Liberties, Rights and Civil to voice his port, anonymously-authored internet public supported concern that funds DHS blog, published an article titled “Muslim training Finally, biased because sessions. Security publish- Ohio Leader: Homeland ” session, did not Vedra attend ‘classic ing propaganda.’ Islamiát On report summarizing drafted April Report published Jawa event The report and sent it him. asserting destroyed article that OHS training stated the first day “Agents thousands of Radical- full of history inaccuracies about the and ization” brochures the brochures Islam, tenets of as well as Arab culture. promoted groups that the FBI linked to *4 19, April 2010, terrorism. And on The 15, 2010, April 13 CPD Between Report posted criticizing Jaiva an. article a day training held two-and-a-half session Plaintiff and Director Vedra for their in- “Understanding entitled the Threat quoted teraction with CAIR. The article an Although America.” not at- anonymous source who stated that at a event, tend the someone in attendance enforcement, meeting with law Director pre- called Plaintiff and him that the told “explained Vedra that we continue to work disparaging senter made remarks about just gang- with CAIR like meet we with him. Specifically, presenters showed dealers, bangers, drug underlings, mafia picture a audience taken of Plaintiff guys’ criminal informants and other ‘bad a representative and Director Vedra with gather information.” from on the Council Re- American-Islamic 2010, 20, April Report On The Jawa (“CAIR”). presenter lations The deemed precipitated released an Plain- article a organization” CAIR to be “terrorist discharge piece tiffs The re- from OHS. thus that Plaintiff alleged and Director previous employer, vealed that Plaintiffs Vedra “met with terrorists.”1 On the eve- (“Co- College Community Columbus State 13, 2010, ning April Plaintiff notified State”), lumbus had fired Plaintiff en- presenters Director that these Vedra made gaging relationship in a sexual with fe- “personal” “destroy” attacks and tried day, male The Jawa student. next con- subsequently him. Director Vedra Report again reported Columbus Deputy tacted and met with CPD “violating State had fired Plaintiff for their Rockwell, agreed and the two that CPD policy by sleeping sexual harassment allow OHS and Plaintiff “vet” would taking infidel coeds his It also classes.” speakers. future reported employee, that another ODPS Martin, presented argument Plaintiff also his Olen his falsified credentials. concerning Islamic the Unit- Martin for the radicalism Coordinator North- Initiative, operation ed States House on Homeland ern Border Committee 17, Security part gathered security intelligence on March 2010. As national on his presentation, produced waterways a brochure between Ohio and Canada. contention, “Agents of To in- support titled re- this the article Radicalization” CAIR, keep open some CAIR were under from allowed Because officials but it them to investigation, agents organization. FBI FBI ordered its lines of with the communication personally representatives adopted position. not meet with OHS the same in- background pro- ployment application image Linkedln of Martin’s eluded file, packet, from found no reference degrees vestigation two Suffield which listed Report described University. The Jawa in ei- employment at Columbus State “illegal diploma mill.” as an that institution Although computer- ther document. blog another issued April On during employment ized credit check concerning lawsuit report investigation Columbus background listed conduct- with whom he against the student that infor- employer, a previous State as relationship.2 ed a sexual not mation was listed elsewhere articles, reporters background investigation packet. Botos As a result these inquire whether the May contacted ODPS Plaintiff on then interviewed previ- of Plaintiffs department was aware conceded that he did 2010. Plaintiff history with Columbus employment ous employers “many” previous include approached Plain- Director Vedra State. application, in- employment on the ODPS allegations him if the tiff and asked cluding State. Plaintiff stated Columbus that he did true. Plaintiff admitted resigned Columbus State as that he Columbus State include agree- part of an arbitration settlement relationship that he had application and confronted Plain- ment. But Botos when teaching there. After while with student showing Plaintiff tiff with documentation conversation, spoke Director Vedra wrongful filed a termination Cathy Collins-Taylor. supervisor, with his Rights Ohio Civil State with Columbus *5 two administrative decided Commission, Plaintiff instead claimed in appropriate would be investigation to terminate State threatened Columbus situation, that human re- Plaintiffs but inquired why his Botos then employment. allegations con- sources could handle investigation while at Plaintiff was under reasoned cerning Martin. Director Vedra averred Columbus Plaintiff State. for essentially paid if his that even Martin “relationship” a with Columbus had mill,” his miscon- degrees “diploma from a student, that she was but asserted State than that of still less serious duct However, Plaintiff subse- not his student. degrees Plaintiff those himself, stating that quently contradicted posi- for Martin’s requirements minimum classes, in of his the student enrolled one tion. him to end the relation- prompted which 7, 2010, May assigned Kath- On ODPS ship. Botos to conduct the administrative leen interview, Botos with After the worked that Plaintiff investigation allegations into records in-house obtain ODPS counsel job information about his to include failed public via records from Columbus State employment ap- in his at Columbus State requests. on these records and her Plaintiffs em- Based plication. Botos reviewed discharge. years grievance After two professor after 2. Plaintiff worked as a at Columbus 1996, litigation, parties ultimately In reached to 1996. June State from 1991 1999,. 19, January relationship agreement. On began settlement Plaintiff an intimate Lenk, County in Lenk the Franklin State. Plaintiff sued Sheri student at Columbus Pleas, (1) alleging relationship inten- September in Court of Common Lenk ended the distress; (2) 1996, neg- attempted tional infliction of emotional to restart it numer but then distress; (3) 1996, However, ligent tor- infliction of emotional ous times. December contract; (4) with a tious interference Lenk a sexual harassment claim filed summary judg- investigation, negligence. for conducting moved Lenk Plaintiff. After 31, 2000, the court em ment on March which removed Plaintiff as an State Columbus 9, granted August ployee filed a same month. Plaintiff, interview with Botos mately drafted a decided to terminate Plaintiff. He report on report June 2010. The reasoned probably would First, four reached conclusions. have hired Plaintiff if he had disclosed his purposely past employers omitted several full employment history in application. his employment from application, including On June Plain- ODPS terminated Columbus State. employment. indi- tiffs cated that Columbus State terminated 13, 2011, On July a com- filed Plaintiffs employment after discovering (1) plaint, alleging six claims: national ori- student,3 his relationship awith which con- discrimination, gin VII; in violation of Title tradicted resigned that he Plaintiffs (2) religious discrimination, in violation of Third, although Columbus State. VII; (3) discrimination, Title racial in vio- Plaintiff declared that he omitted his work 1981; (4) § lation of 42 U.S.C. retaliation at Columbus State because it was irrele- violation, discrimination, opposing vant to the position sought, in reality (5) 1981; § 42 U.S.C. equal pro- denial of performed relevant duties such as tection, 1983; § of 42 violation U.S.C. teaching an Arabic class coordinating retaliation, First Amendment courses on Islam and the Middle East at § violation 42 U.S.C. parties 1983. The Columbus State. Finally, Plaintiff disre- filed cross motions for summary judgment. garded the on his instructions granted The district court Defendants’ mo- application, which required disclosing all tion for summary judgment and denied previous employers. Given the circum- Plaintiffs motion for summary judgment. stances departure from Co- First, the district court dismissed Plain- State, lumbus his failure to disclose origin, tiffs national religion, and race dis- employment history created the appear- crimination claims under Title VII ance impropriety. § holding U.S.C. that no reasonable After conducting pre-disciplinary juror hear- objectively could conclude that Plain- ing Plaintiff, ODPS Director race, Stickrath tiffs religion, or origin national im- *6 29, 2010, meeting held a on to June discuss properly motivated the decision to termi- the results of Botos’s administrative inves- him. nate the court refused to tigation to and make a decision concerning address Plaintiffs hostile work environ- Plaintiffs discipline. claim, Various offi- which ment Plaintiff raised for the cials, Vedraj including Director first time summary attended on judgment, because meeting. In-house counsel Heather Plaintiff not properly plead did such a Reed-Frient also Third, attended the meeting. claim. dismissed Plain- Director input Stickrath received from the tiffs race discrimination and retaliation meeting, individuals at the and ulti- § 1981, claims 42 under U.S.C. concluding argument, At parties oral disputed relationship ment related with Lenk. actually whether Columbus State panel fired Plain- informed Plaintiff that would be Overwhelming tiff. separated evidence the record if resign. he did not choose to indicates that Columbus State terminated resign "said that he would not and employment. 16, Plaintiff's On December grieve separation that he wished deci- 1996, Montanaro, Doug Later, the Chair of faculty Colum- sion.” when members wrote Department, bus State’s Humanities sent a letters President of Columbus State Zitlow, memorandum to alleging Erv disciplinary process that Plaintiff’s Human Montanaro safeguards, Resources. described a they lacked sufficient referred meeting during panel charged which the "firing” "discharge." Plaintiff’s Finally, investigating Plaintiff's misconduct him found the Vice President for Academic Affairs ex- guilty professional plicitly misconduct and harass- upheld “discharge.” Plaintiff’s 564 claim are disparate Title VII treatment acting [a] under color state individuals Cnty. Deleon v. Kalamazoo alleged § viola- same.” 1981
law committed (6th Comm’n, 914, F.3d 917-18 Rd. tions, prose- 739 properly and Plaintiff Cir.2014). analysis therefore single A will 1983, § claims under the sole cute these claims. suffice Plaintiffs Fi- address such remedy misconduct. available rejected consti- nally, the court Plaintiffs analyze this under mixed- We argument, reasoning retaliation tutional gave suf analysis motive protect First did not Amendment discrimina notice of mixed-motive ficient because it speech Plaintiffs related for sum complaint tion in his and motion Offi- as Liaison job a Multicultural duties plaintiff mary judgment. VII “[A] Title cer, no connection be- causal existed asserting only claim need a mixed-motive speech his termi- tween produce sufficient to convince a evidence This appeal nation. followed. that: took ad jury the defendant plain action
verse sex, tiff; (2) race, color, religion, II. or motivating factor for origin national grant a district court’s We review employment ac the defendant’s adverse v. judgment de novo. Smith summary Inc., Marine, Spees James tion.” v. 617 821, Educ., Bd. 708 825 Perkins F.3d 380, 390 Cir.2010) (6th (quoting F.3d White (6th Cir.2013). Summary ap- is judgment 381, F.3d Corp., v. Baxter Healthcare “if the movant there propriate shows that (6th Cir.2008)). Plaintiff can establish dispute material genuine is no as by introducing di discrimination “either judg- the movant fact and entitled prov byor of discrimination rect evidence ment as matter law.” Fed.R.Civ.P. ing inferential and circumstantial evidence 56(a). support which inference dis would To the Plaintiff also raises issues extent Potter, crimination.” DiCarlo concerning discovery on appeal on limits (6th Cir.2004) 408, 414 Kline v. (quoting however, sanctions, we re- discovery (6th Auth., 337, Valley Tenn. F.3d those for an of discre- view claims abuse Cir.1997)), grounds by, overruled other Magazine, v. Scene tion. Bentkowski Servs., Inc., Fin. 557 U.S. FBL Gross Cir.2011). F.3d L.Ed.2d 119 129 S.Ct. (2009). both Although addressed Claims A. Discrimination below, and circumstantial direct circumstantial evidence on only he cites the district *7 appeal. origin improperly his national dismissed brought religious claims and discrimination 1. Remarks Director Vedra § 1983 be-
under Title U.S.C. VII remarks provide or Plaintiff identifies several cause Plaintiff direct failed as discriminatory by Director evi Vedra circumstantial circumstantial evidence discriminatory to fire intent to terminate dence animus motivated the decision First, hearing civil establishing at a service “The him. him.4 elements § Plaintiff’s before the Person appeal 1983 and State Equal Protection claim under (“SPBR”), Board of Review establishing a violation of nel elements for appeal. origin religious discrimination Plaintiff also cited racial discrimination 4. complaint, only national his but he addresses treatment, replaced Vedra plaintiff stated he must demonstrate with a woman “to a signal send to- the comparable employees nearly are community you’re America,” that —that aspects. identical in all relevant Noble v. Int’l, Inc., and that 715, (6th he believed Plaintiff Brinker overempha- 391 F.3d Cir.2004). sized outreach to community. the Arab that he and allegedly Director Vedra told Martin similarly employees were situated group of law First, enforcement officials that in two respects. “we Plaintiff contends continue to just work with CAIR like we their misconduct was similar. Al- dealers, gangbangers, meet with drug though ma- employment history omitted underlings, informants, fia criminal application, from his reasons, other guys’ gather ‘bad Martin “provided information.” false information regard- ing his educational during achievement Plaintiff claims that the district court employment process by intentionally [mis- erred because it did not wheth evaluate representing legitimate that he had de- er these remarks circumstan constituted grees.” disagree. We Plaintiff omitted tial evidence of discriminatory intent. past his employment history with Colum- argument, however, waived this bus seemingly State discovery avoid because he claimed in his motion for his sexual misconduct at that institution. summary judgment that Director Vedra’s contrast, In Martin disclosed his actual remarks comprised only direct evidence credentials, albeit from a “diploma mill.” of discrimination. not presented “[I]ssues Guard, Inc., Wright See v. Murray to the district court but raised for the (6th Cir.2006) F.3d (holding that appeal first time on are not properly be employees two similarly situated fore this court.” Wyckoff J.C. Assocs. & alleged where “their acts of misconduct Co., Standard Fire Ins. nature, very are different there (6th Cir.1991). Plaintiff does not legitimate are why reasons supervisor] [a dispute the district court’s determination differently”). would treat them that these remarks did not amount to di rect discrimination because Plaintiff further contends Martin’s they required jurors to draw inferences misconduct was to Plaintiffs analogous that discriminatory animus Di motivated provided misdeeds because Martin false rector Vedra’s remarks. See Johnson information about when he obtained his Co., Kroger Cir. degrees length time he attended 2003). Accordingly, argument Plaintiff’s University. example, Suffield For Martin fails. deposition testified at his that he obtained both of degrees his but his em- Disparate 2. Treatment ployment application stated that he re- Plaintiff further claims Di degree ceived one 1996 and another in rector investigate Vedra’s decision to Similarly, Martin testified Plaintiff for omitting job history his full complete did not coursework obtain employment application, but not his degree, but application investigate including Martin for a “di *8 years stated that it took two complete ploma mill” his employment application, on degree one years and three to complete an example was of disparate treatment However, the other. the not record does prompted by discriminatory intent. indicate that Director Vedra knew these In order to establish the existence of a false details at the time he decided to discriminatory disparate motive on investigate based Plaintiff and not All Martin. degree had,” investigated. he was not that concerning
the
these falsehoods
testimony,
subsequently
whether he felt
deposition
comes
When
asked
from Martin’s
being
target
investiga-
of an
long
the decision to Plaintiffs
the
which
after
occurred
fact
something
tion “had
to do
terminate Plaintiff.
America,”
Arab
Di-
Deputy
that
was
he
avers that he and Mar-
Plaintiff
replied,
Mack
“I sure did.” Howev-
rector
similarly
their
tin
situated because
er,
testimony si-
Deputy Director Mack’s
“unique.”
both
Martin was
positions were
multaneously
disparate
reveals that
Border
the Northern
Coordinator
treatment between Plaintiff and Martin
Initiative,
that
“important project”
by
different miscon-
motivated
their
security intelligence on
gathered national
duct,
According Deputy
not
animus.
waterways
and Canada.
between Ohio
Mack,
told him
Director
Director Vedra
Liaison
a Multicultural
Offi-
Similarly, as
just
“you
that
don’t like his de-
cer,
position
a
that was “one
Plaintiff held
[sicj
grees
degree.”
it’s not a
don’t
mean
However, Plain-
country.”
of a
kind in
such, beyond pure speculation, Deputy
As
superficial, generalized com-
tiff offers a
provide
Director Mack’s
no evi-
assertions
parison.
plaintiff
employee
and the
“[T]he
discriminatory
dence
a
motive behind
plaintiff
compare
with whom the
seeks
disparate
of Plaintiff and
treatment
must
similar
‘all of
himself or herself
be
”
ju-
Consequently,
Martin.
no reasonable
Ercegovich
aspects.’
v.
relevant
discriminatory ani-
ror could believe that
Co.,
Goodyear Tire
Rubber
&
in-
mus motivated Plaintiffs administrative
(citation omitted).
(6th Cir.1998)
vestigation or termination.
positions may have been
While both
disparate
unique,
disparity in
treat-
B. Hostile Work Environment Claim
Plaintiff and Martin
be
ment
can
between
the district
explained by
prominence
Plaintiffs
in concluding
that Plaintiff did
erred
job
public
position. Plaintiffs
a
present
work environment
hostile
scope:
national
he attended law enforce-
judgment phase.
the summary
claim until
present
training
order
ment
sessions
alleges
pleaded
that he
sufficient
topics
on
like Islamic cul-
research
broad
complaint
put
facts in his
on
Defendants
radicalization,
ture
testified
claim.
notice
before the U.S. House Committee
Security on one occasion.
In
Generally,
plaintiff
Homeland
a
cannot
raise
contrast,
summary
local
Martin’s role was
and less
the first
at the
time
prominent coordinating
operation
judgment stage.
Carter
Ford Mo-
See
—
(6th Cir.2009).
waterways
Co.,
between Ohio
monitored
tor
security
time,
for national
threats.
“magic
Canada
At
in the
the same
no
words”
complaint
necessary
are
state a claim—
lastly'argues
courts must
instead “examine the sub-
ignored
deposition testimony
plaintiffs allegations.”
stance of
Stevens
Deputy Director Earl Mack. In his
OHS
Ctr., Inc.,
Med.
Saint Elizabeth
Mack
deposition, Deputy
spec-
Director
Cir.2013).
Fed.Appx.
discriminatory animus
ulated that
motivat-
undisputed
It
investigate
did not
ed Director Vedra’s decision
explicitly allege
legal theory
of hostile
Deputy
Plaintiff over Martin.
complaint.
in his
At
Mack
did
understand work environment
explained
time,
why
complaint
of an
subject
the same
Plaintiff was
investi-
Martin,
to harassment
its
gation
who
make some references
“lie[d]
while
*9
complaint
alleged
argues,
part,
facts section. The
speech
Plaintiff
that his
“presenters
trainings
constitutionally protected
had
perpetrat-
at the
because he
spoke
a
“as
citizen.”
v.
two-year campaign
Geauga
a
Weisbarth
harass and
ed
Dist.,
(6th
538,
Park
reputation
Cir.
destroy Plaintiffs
and character
2007) (citation omitted). However, Plain
reason
is an
simple
based
that he
tiff
pursuant
his
made
criticisms
his
Muslim,”
in-
Arab
individuals
official duties
as
cultural
liaison.
volved
Ohio law enforcement counter-
public employees
“[W]hen
make state
training
terrorism
published
obtained and
duties,
pursuant
ments
to their official
public records
order
Plaintiff.
harass
employees are not
as
speaking
citizens for
But these
to raise a
facts were insufficient
purposes,
First
Amendment
the Con
claim for hostile work environment be-
stitution does not insulate
communi
their
they
cause
not
this
indicate that
employer
cations from
discipline.” Garcet
by
harassment
non-ODPS
out-
employees
Ceballos,
410, 421,
ti v.
547 U.S.
126 S.Ct.
workplace
impacted
side
the official
1951,
(2006).
E. Denial of Motions 1986), a a test for case articulated Compel Discovery counsel, parties depose opposing can when applied deposition of the three points throughout At the contro- various termination, resulting attorneys. versy a. Communications mate- supplemental reviewing the After Meeting April 2010 Plain- rials, judge denied magistrate points. remaining two on the motion privilege tiffs the assertion challenging In in camera review First, on the relying meeting between April over the Reed-Frient, Yedra, Plaintiff, and Reed- supplied affidavit ap- failed privilege Frient, “ODPS judge determined Reed-Friend during the June provide plied to communications provide in order affi- [Plaintiff! Reed-Frient’s interviewed meeting *12 legal of that advice.” purpose primary the davit revealed legal advice obtain to meeting was concluded, correctly As the district of Plaintiffs results concerning ODPS of purpose record indicates “the judge The termination. investigation and to meeting for ODPS was [April 2010] foreclosed that Shelton inqui- further held regarding media legal advice seek light attorneys “[i]n of deposition ODPS’s termi- employment and Plaintiffs ries into action well in this involvement The of counsel’s State.” district nation from Columbus lawsuit, as well in pieces into of evidence it two before blossomed court relied on First, Di- would depositions making determination. danger that as the deposition in his litigation strategy.” rector stated Vedra expose counsel’s of “enough an inquiries of the the media to both objections Plaintiff filed legal to with needed “consult issue” The district he orders. judge’s magistrate stat- fromgo there.” arid claims Plaintiffs judge reconsidered 2010 April that at the in his deposition ed adopting the compel, to motion denied him that she told meeting, Reed-Frient points. on all reasoning judge’s magistrate circumstances to wanted understand Plaintiffs termination surrounding Attorney-Client Privilege ODPS help in order to Columbus State applies privilege inquiries. attorney-client to those response prepare The is kind legal advice ]here “[w seeking ad whether disputes 351, Baxter, 134 F.3d v. sought.” Reed is consid to the media response vice for a Cir.1998). “Fundamentally, legal place, al in the first “legal ered advice” ap interpretation advice involves circuit has this recognizes though future guide to legal principles plication Plaintiff cites issue. addressed re In past conduct.” or conduct to assess cases that deemed several district (2d Erie, Cir. Cnty. to relations attorney's media advice about 2007). involves a communication See, When re Chevron e.g., In non-legal. be matters, “con non-legal we legal (S.D.N.Y. both F.Supp.2d Corp., purpose predominant sider 2010) attorney’s whether communi that an (holding solicit to or is render the communication “substan privileged cations were not when predomi This Id. at 420. legal predominant suggested advice.” tial evidence” dynami assessed professional “should be purpose nant “not rendition role was being lobbying, and services, politics, advice cally light but legal and in relations”); City rendered, the relation public as well as sought or media and 196 F.R.D. Corp., rendered Rexnord Springfield be ship advice can between an attor (D.Mass.2000) (finding that legal authorities consulting the only by anticipation “prepared non-lawyer.” ney’s given by a documents be advice can privileged). were not inquiries” of media Id. at 420-21. However, organization’s as the court noted house counsel and an em- denying objections magis- employee Plaintiffs to the must ployee, “sufficiently be judge’s trate order: being questioned aware” that or she provide organization order present is distinct from the case legal Upjohn States, advice. Co. United that Plaintiff cites cases 383, 394, April of the 2010 449 U.S. 101 S.Ct. principal purpose (1981). above, meeting Attorney explained L.Ed.2d 584 As was Reed-Frient however, deposition gather information so that she could Plaintiffs own testi- respond mony her on advise client how indicates that he aware Reed- Frient, merely was not in- a lawyer, present gather the matter. She in making volved or media business information in order advise on decision, sought but rather advise her to respond inquiries, how to the media respond inqui- great client how to media legal act with ramifications. Accord- into ries Co- ingly, the district court did not its abuse lumbus State. Plaintiffs claim. denying discretion *13 (cid:127) Advising respond to a client on how to b. at Communications inquiries important legal impli
media
has
Meeting
June 2010
public
cations
when that client will issue
Dong
statement
an employee.
about
See
attorney-client
that the
Univ.,
113,122
guk Univ. v. Yale
not
privilege did
cover communications
(2d Cir.2013) (involving defamation claim that
at
2010 meeting
occurred
June
the
stemming
response
inqui
to media
purpose
because the
of
to
meeting
the
ries).
potential
legal
liabili
Given the
concerning
make a business
Plain-
decision
ty,
input
Reed-Frient’s
on how to draft a
tiffs employment
discipline,
not
to
response
media
was essential.
legal
magistrate
render
advice. But the
judge made a
fact
finding of
that “the
if
Plaintiff further claims that even
the
render,
of
purpose
meeting
the
was to secure
of that
purpose
meeting
towas
legal
to
advice,
[Reed-Frient’s]
advice related
the
legal
to
Defendants needed
estab-
investigation,”
of
results
the administrative
actually
lish that Reed-Frient
used
an
crediting
supplied
affidavit
Reed-
information
at
gathered
meeting
she
that
Frient
camera that detailed the sub-
by advising
depart-
the communications
meeting
of the
at that
stance
discussion
respond
ment on how to
the media
legal
role as
and clarified Reed-Frient’s
inquiries. But
privilege protects
com-
judge
The
relied on
advisor.
“necessary
legal
munications
to obtain
ad-
magistrate judge’s factual
con-
finding
vice.” In re
Healthcare
Columbia/HCA
cluding
privilege applied
that
com-
Corp. Billing
Litig.,
Practices
during
meeting.
(6th Cir.2002) (citation
the June
munications
omitted
added).
emphasis
sug-
No caselaw
alleges
that Director Stickrath’s
gests that
privileged
communications are
deposition testimony contradicts Reed-
only
they
dispense
when
are utilized
instance,
For
Frient’s affidavit.
legal advice.
“[p]urpose
stated
Stickrath
personally meeting
investigation
also asserts
to talk
no
had
reason to believe that Reed-Frient
and the decision
be made
[Plaintiff]
Furthermore,
to provide
any
collected information in
discipline.”
order
terms
legal
privilege
advice. In order for the
to Director
not “recall”
Stickrath did
whether
meeting
attach to
in-
purposes
litigation
communications between
was for
being
prin-
an
legal
present
repeatedly
at
denied
assistant
or whether
counsel was
However,
meeting.
cipal
the district court
Id. at *1. The district court
position.
compel
disposal, including
plaintiffs
at
motion
the record
its
denied the
had
during
deposition, and still
held
Director Stickrath’s
disclosure
conversations
to credit
affidavit.
session of the school board on
decided
Reed-Frient’s
executive
position
attorney-client privilege.
“A district
is in the
basis of
Id.
best
weigh the evidence and evaluate witness
Fifth Circuit held that
the district
Preciado,
credibility])]”
United States v.
its discretion mak-
court did
abuse
(8th Cir.2003).
determination,
ing
reasoning
just
F.3d
privilege protected
as the
full and frank
further
that even if
contends
legal
advice
discussions
facilitate
be-
meeting
pro
Reed-Frient attended
corporation
its attorneys,
tween a
advice,
presence
legal
her
vide
policy
encouraging full
dictates
“[s]imilar
oc
all communications that
immunize
communication
a school board and
between
meeting.
curred at the
reliance
Id.
*2.
its counsel.”
at
The court noted:
Inc.,
Freight Sys.,
v. Yellow
Marten
partici-
attorney
The [school] District’s
96-2013-GTV,
A.
WL 13244
No.
CIV.
sessions,
pated in all
executive
(D.Kan.
There,
6, 1998), misplaced.
Jan.
each of which
discussed
the Board
the minutes
found
legality
plain-
refusing
to rehire [the
(“ERC”)
Employee Review Committee
nothing
tiff]. There is
in the record
meeting
by counsel were non-
attended
indicating
of the communica-
privileged
primary
function
“[t]he
purposes
tions was for
other than the
was to
“what
of the committee”
decide
*14
of
procurement
advice. While the
legal
employment
action to take
em
Board
did
their
members
discuss
rea-
sought
ployee.”
Any legal
Id. at
advice
*8.
plaintiff],
for refusing
sons
to
[the
rehire
during
meeting was' “inci
or received
the
the discussions occurred
the context
of
is
dental to considerations
what most
of
of
inquiring
legality
about the
those
of
operation
for the
prudent
successful
the
reasons.
empha
The
business.” Id.
court further
of
voting
“[a]s
sized
member
the
Id.
court thus
The
concluded that “the
acting merely
ERC ...
was not
[counsel]
attorney-client
all
privilege protects
com-
attorney rendering legal advice.”
as an
meeting
during
munications
between a
voted,
beyond
Id.
counsel
he went
When
pur-
board
for the
attorney
school
and its
legal
simply providing
advice and instead
advice,
pose
obtaining
of
even
legal
those
an act of
“perform[ed]
the business.” Id.
directly
not
communications
addressed
attorney.”
the
Id.
properly
court
found Mar-
The district
distinguishable
ten
“Reed-Frient
to all
privilege applied
because
Just as the
the
part
during
of
communications
school
was
committee
determine
the
board
status,
... and
session in Rush
the pri-
was
executive
because
only brought
meeting
mary purpose
meeting
into the
Plain-
of that
was
ob-
after
advice,
represented by
legal
privilege similarly
had
counsel in tain
tiff
been
the
disciplinary proceedings.”
all
from the
previous
Rush
covers
communications
June
District,
Municipal
meeting
purpose
v. Columbus
School
its
was to
99-60910,
acquire legal
Although
Cir.
No.
WL 1598021
advice.
28, 2000),
plaintiff
is
Sept.
point.
testimony suggests
on
The
Stickrath’s
the
dis-
of
employer,
primary purpose
in Rush sued
a school
the June
meet-
trict,
ing
provide
after
advice
alleging racial discrimination
was
business
instead
advice,
of in-
applied
deposition
not Shelton
the
legal
of
the
Id,
house
The Massillon Man-
relying
its
on the
counsel.
abuse
discretion
determination,
agement court first
that Shel-
magistrate judge’s
which
determined
affidavit,
to the
squarely applied
deposition
ton
credited Reed-Frient’s
purpose
meeting
was to
in-house counsel: “Given that the Shelton
primary
the
developed
applied
...
the
legal
case itself
advice.
provide
to a
heightened
deposition
standard
Deposition
of In-House Counsel
attorney, it
opponent’s in-house
could
be clearer that the standard was intended
adopted
This circuit has
the so-
apply
attorneys engaged
by
in-house
rule,”
called
states that a
“Shelton
which
opposing party
the
with involvement
the
party
depose opposing
only
can
counsel
*4,
being litigated.”
matter
Id. at
The
(1)
it
no
where
has “shown that
other
plaintiff
then concluded that
...;
means
to obtain
exist
the information
depose
could not
in-house
defendant’s
(2)
information
is
sought
relevant and
attorney played a
counsel because the
role
nonprivileged;
information
ensuing
litigation.
The defendant’s
crucial to the
case.”
preparation
“responsibility
planning
counsel bore
Nationwide Mut. Ins.
v. Home Ins.
Co.
directing
aspects
company’s
all
Co.,
(6th Cir.2002) (quot
affairs,
legal
overseeing all of
litigation,
its
Shelton,
1327).
ing
F.2d at
providing legal
compa-
advice to
litigation
in Shelton stemmed from
ny’s
at
departments.”
various
Id.
*5.
of a
in a
car
death
child
“rollover”
Moreover, he was involved with the lease
accident, and the case involved the at
negotiating
at
beginning,
issue
tempted deposition of
in-house counsel
terms,
drafting
some
its
as well as
company
inquire
an automotive
advising
plaintiff
legal
related
is-
the existence
of rollover
documentation
“early
sues. Id. The counsel
also told
company.
tests and accidents
held
litigation
on” that
if
could ensue
the mat-
Eighth
Defendants that Alomari’s al
leged impropriety failing to disclose that — resigned auspicious than cir under less than im
cumstances —is worse Martin’s
propriety lying having attended
college. majority argu bolsters this
ment interpreting ambiguous hearsay to find that Vedra treated Martin more LETVIN; Phillips, Michael Keith favorably because whether Martin’s de Plaintiffs-Appellants, grees bogus consequence of little if majority correctly him. Even has LEW, Secretary Treasury; Jack identified one Vedra’s motivations for Donovan, Secretary HUD; Shaun treating favorably, Alomari less Alomari’s Flagstar Bank, FSB; Bank of Amer claim would be foreclosed. “Mixed- ica, N.A., Home Successor to BAC means that could still motive” Defendants Servicing, L.P., Country Loans fka many legiti be even if liable Vedra had Servicing, L.P., wide Home De Loans action, taking mate reasons for the adverse fendants-Appellees. long so as of his one reasons was the unlawful No. 14-2147. consideration Alomari’s Arab heritage. Fine Fur See Wexler White’s of Appeals, United States Court niture, Inc., Cir. Sixth Circuit. 2003). Mack, Alomari’s Deputy Director *17 Sept. supervisor, direct informed Vedra agency needed treat Alomari and Mar
tin they deceiving alike both