Mazzola v. Togliatti

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

-----------------------------------------------------------------------

:

LEONARD MAZZOLA, :

: CASE NO. 1:19-cv-02519

Plaintiff, :

:

vs. : OPINION & ORDER

: [Resolving Docs. 62, 71, 73]

ANTHONY TOGLIATTI, , :

:

Defendants. :

:

-----------------------------------------------------------------------

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:

Plaintiff Leonard Mazzola worked nearly 24 years as an Independence, Ohio police

officer.1 With this lawsuit, he brings First Amendment retaliation claims against Defendants

Independence Mayor Togliatti, Independence Police Chief Kilbane, and Independence

Law Director O’Brien. Mazzola also sues Defendant City of Independence.2 Plaintiff also

alleges that Defendants Togliatti, Kilbane, and O’Brien violated his civil rights under Ohio

law.3

Defendant Togliatti filed a Motion for Summary Judgment,4 Defendants Kilbane and

O’Brien filed another Motion for Summary Judgment,5 and Defendant City of

Independence filed a third Motion for Summary Judgment.6 The Court addresses each

here.

1 Doc. 1 at 3.

2 at 17, 19.

3 at 20.

4 Doc. 62.

5 Doc. 71.

For the following reasons, the Court DENIES Defendants’ Motions for Summary

Judgment, with the exceptions that the Court GRANTS Defendant Togliatti’s motion for

summary judgment on Plaintiff’s false light claim and GRANTS Defendant O’Brien’s

motion for summary judgment.

I. Background

Plaintiff Mazzola worked as a Lieutenant and patrol commander in the

Independence police force. Mazzola was near the top of the chain of command in the

force, reporting only to the deputy police chief and Defendant Chief Kilbane.7

With this case, Plaintiff Mazzola says Defendants forced him to resign his Lieutenant

position8 because Defendants believed---Plaintiff says falsely---that Plaintiff had been the

source for a television news report that Independence’s Police Chief and Mayor enforced

a traffic ticket quota requirement.9 Plaintiff previously expressed his concern about the

traffic ticket quota to Human Resources10 and Defendant Mayor Togliatti.11

Plaintiff says Defendants retaliated against Plaintiff Mazzola for being understood to

have exercised his First Amendment rights. Plaintiff and the reporter12 say Plaintiff had not

sourced a critical television news report but Defendants believed he had13 and forced his

retirement in retaliation.

II. Discussion

a. Summary Judgment Standard

7 Doc. 71-3 at 2.

8 Doc. 83 at 4.

9 Doc. 62-1 at 3; Doc. 71-3 at 4–5; Doc. 83 at 2–3.

10 Doc. 83 at 1–2.

11 .

12 Doc. 83 at 6.

13 Doc. 71-3 at 7–9, Doc. 62-1 at 3–4.

A party is entitled to summary judgment if “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there

is no genuine issue as to any material fact and that the moving party is entitled to judgment

as a matter of law.”14 “A genuine dispute of material fact exists ‘if the evidence is such that

a reasonable jury could return a verdict for the nonmoving party.’”15 The Court views all

of the evidence in the light most favorable to the nonmoving party.16 The nonmoving party

“must show sufficient evidence to create a genuine issue of material fact”17 as to each of

the claim’s required elements. A scintilla of evidence is not enough to defeat a summary

judgment motion.18

b. First Amendment Retaliation

Plaintiff brings First Amendment retaliation claims under 42 USC § 1983 against

Defendants Togliatti, Kilbane, O’Brien, and the City of Independence.19

In July 2018, Defendant former-Mayor Togliatti asked Defendant Police Chief

Kilbane to explain a traffic ticket decline.20 Seemingly in response to Mayor Togliatti’s

questions regarding the lost ticket revenue, Chief Kilbane sent Plaintiff Mazzola an email

asking for increased traffic citations.21 Chief Kilbane repeated this order to Plaintiff Mazzola

14 Fed. R. Civ. P. 56(c).

15 , 880 F.3d 256, 262 (6th Cir. 2018) (quoting ,

477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

16 , 506 F.3d 496, 500-501 (6th Cir. 2007) (citation

omitted).

17 (citation omitted).

18

19 Doc. 1 at 19.

20 Doc. 62-1 at 1.

21 .

in a memo two weeks later.22 In part, Chief Kilbane directed Mazzola to prepare a written

action plan for any officers who failed to issue sufficient tickets.23

Plaintiff Mazzola believed Mayor Togliatti and Police Chief Kilbane had misread

the police department’s citation statistics.24 Mazzola also claims that he thought a traffic

citation quota would be unfair. Nonetheless, Plaintiff Mazzola instructed the officers he

supervised to “conduct two to three enforcement actions per shift and believed he was

following Kilbane’s order to increase citations.”25

Several months later and in early September 2018, Defendant Chief Kilbane brought

disciplinary charges against Plaintiff Mazzola related to the ticket quota/productivity

requirement.26 With his charges, Chief Kilbane alleged “violations of several departmental

orders, including insubordination.”27

At the September 2018 disciplinary hearing, Plaintiff Mazzola says he again tried to

explain why he believed Chief Kilbane had misinterpreted the Department statistics and

why he disagreed with the traffic ticket quota.28 Mazzola says the meeting was

“confrontational.”29

22 Doc. 62-1 at 1; Doc. 71-3 at 2.

23 Doc. 71-3 at 3 (citing Kilbane Dep. AtDoc. 65 at 154).

24 Doc. 83 at 1.

25 Doc. 83 at 1–2.

26 Doc. 71-3 at 3; Doc. 83 at 2; 62-1 at 2.

27 Doc. 71-3 at 3; Doc. 83 at 2; 62-1 at 2.

28 Doc. 83 at 2.

29 Doc. 67 at 223:6–13.

After the September 2018, disciplinary hearing, Chief Kilbane did not discipline

Mazzola but required Mazzola comply with the ticket quota.30 Although he had earlier

argued against the ticket quota, Mazzola says he complied with Defendant Chief Kilbane’s

instruction and reprimanded an officer for not meeting a ticketing goal.31

On January 14, 2019, Fox 8 News television reporter Ed Gallek ran a story reporting

that Independence pressured police officers to issue more traffic tickets. Gallek cited

internal police department documents, including an email and a Mazzola memorandum

about the quota/requirement.32 In the television report, Gallek did not identify his source,

although reporter Gallek later said the source was not Mazzola.33

Mazzola maintains that he did not give the documents to Gallek and says he did

not give the documents to anyone else to pass on to Gallek.34

While these internal documents are public record, Defendants say the documents

were improperly disclosed to reporter Gallek and that there was no news report mention

of the documents in Gallek’s news report.35

In March 2019, Defendant City hired a private investigator to investigate how news

reporter Gallek obtained city documents.36 Defendant Chief Kilbane also required

Mazzola take a polygraph test though the police department’s policy only allowed

30 Doc. 62-1 at 2; Doc. 71-3 at 3–4.

31 Doc. 83 at 2; Doc. 71-3 at 4.

32 Doc. 62-1 at 3; Doc. 71-3 at 4–5; Doc. 83 at 2–3.

33 Doc. 83 at 6.

34 Doc. 83 at 2–3.

35 Doc. 71-3 at 6; Doc. 62-1 at 3.

36 Doc. 71-3 at 6; Doc. 62-1 at 3–4. According to Plaintiff, the investigation was authorized by

Defendant Togliatti at Defendant Kilbane’s request. Doc. 83 at 3.

polygraph tests in criminal investigations, not administrative ones.37 Mazzola’s polygraph

test results were interpreted as “indicative of deception.”38

The parties differ on the timeline and nature of events following the polygraph test,

but Plaintiff Mazzola ultimately took early retirement. In summary, Mazzola claims that

Defendants threatened that Plaintiff Mazzola could take early retirement or Independence

would begin disciplinary efforts to demote him while putting him on a Brady-Giglio list

that would be given to all criminal defendants whose cases he was involved with.39 In

contrast, Defendants claim that Mazzola retired before the City took any definitive

disciplinary actions.40

Plaintiff says Defendants forced his retirement to retaliate because Defendants

believed Plaintiff had sourced the critical television news report discussing traffic ticketing

quotas. Plaintiff says he had not sourced the story and, says that even if he had sourced

the story, it would be First Amendment protected conduct.

To establish a First Amendment retaliation claim, Plaintiff Mazzola must show that

1) he engaged in constitutionally protected speech or conduct, 2) that Defendants took “an

adverse action against [him] that would deter a person of ordinary firmness from continuing

to engage in that speech,” and 3) that there is a causal connection between the adverse

employment action and the constitutionally protected speech.41

37 Doc. 83 at 3. Plaintiff notes that the third-party investigator’s notes “about a First Amendment

discussion” stated that “retaliation could be a problem.” Defendants claim that the polygraph test was

ordered at the third-party investigator’s suggestion. Doc. 71-3 at 8; Doc. 62-1 at 4.

38 62-1 at 4.

39 Doc. 83 at 5. Plaintiff’s deposition suggests that this call may have been earlier, around 2:00

PM. Doc. 67 at 314:12–13. Doc. 83 at 4; Doc. 71-3 at 9.

40 Doc. 71-3 at 9.

41 , 939 F.3d 732, 739 (6th Cir. 2019).

In turn, to be constitutionally protected, a public employee’s speech or conduct

must satisfy three requirements: First, the employee must speak on a “matter of public

concern.”42 Second, the employee must speak in their capacity as a private person, “not

as an employee pursuant to [their] official duties.”43 Third, the employee “must show that

his speech interest outweighs ‘the interest of the State, as an employer, in promoting the

efficiency of the public services it performs through its employees.’”44

i. Constitutionally Protected Speech

Plaintiff’s speech and perceived speech were constitutionally protected.

Plaintiff contends that he engaged in protected speech when he discussed his

concerns related to the ticket quota/requirement with Human Resources officials and with

Defendant Mayor Togliatti. In addition, Plaintiff Mazzola claims Defendants wrongly

believed Mazzola to have engaged in protected speech by giving documents to and

speaking with reporter Gallek.45 Defendants believed Mazzola gave the documents to

reporter Gallek, even though Mazzola says he did not.

In both instances, the speech was a matter of public concern. “Speech involves

matters of public concern when it can be fairly considered as relating to any matter of

political, social, or other concern to the community, or when it is a subject of legitimate

news interest; that is, a subject of general interest and of value and concern to the public.”46

42 , 856 F.3d 456, 462 (6th Cir. 2017) (citing , 461 U.S. 138,

143 (1983)).

43 (citing , 547 U.S. 410, 421 (2006)).

44 (quoting , 391 U.S. 563, 568 (1968)).

45 Doc. 85 at 8–9. In , a supervisor’s mistaken belief that employee had

engaged in protected speech, when employee had not, did not bar a claim for First Amendment retaliation.

136 S.Ct. 1412 (2016).

46 , 939 F.3d at 739 (citing , 573 U.S. 228, 241 (2014)).

In other words, the speech is of public concern if it “involves issues about which

information is needed or appropriate to enable the members of society to make informed

decisions about the operation of their government.”47 Whether speech is a matter of public

concern is a question of law for the Court to decide.48

Although non-binding precedent, the Sixth Circuit has said that police ticket quotas

are of public concern.49 The public can reasonably have concerns and interest regarding

whether ticket quotas caused officers to issue tickets.

Plaintiff Mazzola also raised questions regarding whether Police Chief Kilbane and

Independence targeted out-of-town drivers for stricter enforcement. Again, disparate

ticketing treatment is a public concern.

Plaintiff spoke in his private citizen capacity. The essential question is “whether the

speech at issue is itself ordinarily within the scope of an employee's duties, not whether it

merely concerns those duties.”50 While Plaintiff implemented and oversaw the

quota/productivity requirement, his job duties did not task him to express concerns to then-

Mayor Togliatti or Human Resources—he spoke outside of the chain of command.

Likewise, Plaintiff enjoyed no media responsibilities regarding the

quota/productivity requirement. “Speech outside the chain of command is less likely to be

47 , 253 F.3d 891, 898 (6th Cir. 2001) (internal citations

omitted).

48 , 241 Fed. App’x. 244, 249 (6th Cir. 2007) (citing , 547 U.S.

at 418).

49 , 118 Fed. Appx. 27, 30 (6th Cir. 2004).

50 , 573 U.S. at 240.

within an employee's ordinary job responsibilities.”51 As in , Mazzola’s

responsibilities did not include raising ethical concerns with the Mayor or the media.52

Finally, the City’s “interests in ensuring that internal police documents are released

according to [its] policies”53 do not outweigh Mazzola’s free speech interests. The third

element instructs that the employee’s speech must be sufficiently important to “outweigh

the state’s interest, as an employer, in promoting the efficiency of the public services it

performs through its employees.”54 “In striking the balance, courts should consider

whether an employee's comments meaningfully interfere with the performance of her

duties, undermine a legitimate goal or mission of the employer, create disharmony among

co-workers, impair discipline by superiors, or destroy the relationship of loyalty and trust

required of confidential employees.”55

While the City may have had a legitimate efficiency interest in following official

public document release procedures,56 it does not outweigh Mazzola’s interest in speaking

to Togliatti or, as Defendants believed, to the media. As Plaintiff notes, Mazzola’s speech

did not interfere with his ability to perform his duties—he implemented the quota

requirement—or otherwise impact police department’s operations.57

Plaintiff has shown that he engaged in constitutionally protected speech.

51 , 939 F.3d at 740.

52 .

53 Doc. 71-3 at 13.

54 , 695 F.3d 531, 540 (6th Cir. 2012) (internal quotation omitted).

55 24 F.3d 1526, 1536 (6th Cir.1994). Defendants cite for

the argument that, in the context of police departments, courts should show “deference to the city's

judgment on the matter of discouraging public dissension within its safety forces.” 188 Fed. Appx. 465,

469–70. That case is distinguishable, however, as the employee’s speech in that case dealt with an internal

employment dispute and caused considerable disruption within the police force. . at 470.

56 , 573 U.S. at 242.

57 Doc. 83 at 11.

ii. Adverse Action

To continue his First Amendment retaliation claim, Plaintiff must show that

Defendants took “an adverse action against [him] that would deter a person of ordinary

firmness from continuing to engage in that speech.”58

Defendants hang their summary judgment on arguments that they did not formally

start an official discipline procedure against Plaintiff before his resignation.

But, First Amendment retaliation adverse action claims are not limited to formal

demotion, firing, or discipline.59 Constructive discharge can be an adverse action.60

Constructive discharge claims requires a plaintiff show that 1) the employer deliberately

created intolerable working conditions, “as perceived by a reasonable person,” 2) the

employer intended to force the employee to quit, and 3) the employee actually quit.61

Viewed in the light most favorable to Mazzola, while deciding whether to retire, he

believed that Defendants gave him an ultimatum: Take early retirement and preserve his

clean disciplinary record or face demotion “down to patrolman, where he would be

supervised by his former subordinates and performing work far below his experience level

(and for far less money), while being publicly branded a liar any time he testified in court.”62

58 , 939 F.3d at 739.

59 Defendants argue that an investigation, such as the one in this instance, cannot be an adverse

action. Doc. 71-3 at 15 (citing , 710 F.App’x 646, 650 (6th Cir. 2017)). Some of

Defendants legal support is persuasive but nonbinding, , 205 F.3d 150, 158

(5th Cir. 2000), while some is not directly on point. , 710 F.App’x at 650. Investigations could

be adverse actions. , 2077 F. Supp. 3d. 769, 780 (N.D. Ohio 2016) (stating that an

investigation could be an adverse action, given “its length and many stages”). In this instance, though,

Plaintiff’s constructive discharge claim is sufficient to weigh against summary judgment.

60 , 939 F.3d at 740 (citing , 665 F.3d 732, 739 (6th Cir. 2012)).

61 , 655 F.3d at 740.

62 Doc. 83 at 14.

This Court will not give summary judgment here. A reasonable jury could find that

the threatened punishment, although not formally implemented, went beyond “criticisms

and public challenges” that are insufficient to show intolerable working conditions.

Further, a jury could find that Defendants’ actions in relaying the planned demotion and

other punishments, that Mazzola saw as a done deal, were intended to push him toward

early retirement.63

iii. Causal Connection

Finally, sufficient evidence establishes a causation issue that defeats summary

judgment. To establish a First Amendment retaliation claim, a plaintiff must show a causal

connection between the constitutionally protected speech and the adverse employment

action.64

Plaintiff Mazzola did not decide to retire out of the blue. Plaintiff argues that his

discussions with Human Resources and Defendant Togliatti about the traffic quota and

Defendants mistaken belief that Plaintiff Mazzola spoke to reporter required him to retire

or face severe punishment.65 Defendant O’Brien’s email regarding potential charges

provides one example of evidence that suggests Plaintiff’s fears were legitimate.

Defendants respond that Plaintiff’s unsubstantiated punishment fear after a failed

polygraph test led him to retire. They argue that insufficient evidence shows causation.66

63 , 665 F.3d at 739 (“To determine if there is a constructive discharge, both the employer's

intent and the employee's objective feelings must be examined.”) (internal citation removed).

64 939 F.3d at 739.

65 Doc. 83 at 15.

66 Doc. 71-3 at 18–19.

This is a question of material fact that is appropriate for a factfinder, not summary

judgment.67

For these reasons, Defendants Kilbane, O’Brien, and Togliatti’s motion for summary

judgment for Plaintiff’s First Amendment retaliation claims are denied.

c. Defendant City of Independence’s Liability

Defendant City of Independence also moves for summary judgment on Plaintiff’s

42 U.S.C. § 1983 First Amendment retaliation claim. Municipalities are liable when the

allegedly unconstitutional municipal action “implements or executes a policy statement,

ordinance, regulation, or decision officially adopted and promulgated by that body's

officers,’ or where such actions emanate from informal governmental custom.”68

This is not a claim, rather, a plaintiff must establish that a

municipality was the “moving force” by “showing that the municipality had a ‘policy or

custom’ that caused the violation of his rights.”69

A plaintiff can show a policy or custom by proving: “(1) the existence of an illegal

official policy or legislative enactment; (2) that an official with final decision making

authority ratified illegal actions; (3) the existence of a policy of inadequate training or

supervision; or (4) the existence of a custom of tolerance or acquiescence of federal rights

violations.”70

67 , 175 F.3d 378, 399 (6th Cir. 1999).

68 , 703 F.3d 887, 902 (6th Cir. 2013)(citing 436

U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)).

69 , 962 F.3d 852, 879–880 (6th Cir. 2020) (citing , 436 U.S. at 690).

70 , 925 F.3d 793, 828 (6th Cir. 2019)

As described above, for the purposes of summary judgment, Plaintiff Mazzola has

established a prima facie constitutional violation. In making a claim, Mazzola must

show that the City was responsible for the constitutional violation.71

Mazzola makes two main arguments: First, that a policymaker (Defendant Mayor

Togliatti) or an authorized subordinate (Kilbane or O’Brien) violated Mazzola’s speech

rights through their investigation and their disciplinary ultimatum.72 And second, that City

policy is a prior restraint in violation of the First Amendment because it limits employees’

ability to speak to the media and release documents or information without “proper

authorization.”73

On the first argument, when a “plaintiff alleges that an unconstitutional municipal

policy is evinced by a single decision by a municipal official, ‘only those municipal officials

who have ‘final policymaking authority’ may by their actions subject the government to

§ 1983 liability’ and that state law determines whether a municipal official has “final

policymaking authority.”74 Plaintiffs show that the Independence City Charter gives the

mayor final employment decision authority.75 Regarding employee practices, the mayor

makes the policy and he makes the policy when he ratifies subordinates actions..76

Plaintiff’s claim against the City survives summary judgment. Whether the mayor

ratified the investigation or the potential punishment are factfinder questions.

71 , 358 F.3d 377, 382 (6th Cir. 2004).

72 Doc. 84 at 14–18.

73 at 18-20.

74 , 959 F.3d 748, 762 (6th Cir. 2020) (citing , 485 U.S.

112 (1988)).

75 Doc. 84 at 15.

76 , 485 U.S. at 127.

Defendant City counters that neither Defendant former Mayor Togliatti nor

Defendant Kilbane had final policymaking authority over Plaintiff’s employment because

the City’s Civil Service Commission can review the mayor’s employment decisions and

because Mazzola’s Collective Bargaining Agreement permitted a grievance of employment

decisions.77

But Defendant City relies upon cases involving different facts where the

policymakers were not, as here, alleged to be the mayor or the “final word” in the city.78

Further, the issue here is more whether a final policymaker offered Mazzola an ultimatum—

face demotion or retire—and less whether the investigation and polygraph test were actions

indicative of a city policy.

On this point, the Plaintiff’s citation of persuades even though

it is not controlling: “Whether an official is a policymaker ‘depends on whether [his] word

is final within [the City’s] structure of government, not on whether a neutral decisionmaker

ultimately can undo its decisions.’”79

For these reasons, summary judgment fails on Plaintiff’s claim. In addition,

Plaintiff’s second liability argument need not be fully considered. Still the it could

be a viable argument: With this argument, Plaintiff Mazzola contends that the investigation

and the alleged retaliation against him were based upon city policies restricting employees’

abilities to give interviews or release information without prior authorization. Plaintiff

Mazzola says the restrictions are unconstitutional prior restraints on speech.80

77 Doc. 73-3 at 6–9.

78 . at 7-9.

79 Doc. 84 at 16 (citing , 120 F.Supp. 3d 206, 215 (D. Conn. Aug. 10, 2015)).

80 at 18. , 925 F.3d 793, 828 (6th Cir. 2019).

According to Mazzola, the city is liable in this case because the city’s policies

“preemptively” restrict employees’ speech, even when they are speaking as private

citizens, by requiring them to seek authorization from a government official. The policies

threaten punishment if they do not seek permission.81 The record is not clear whether this

is an example of ““unbridled discretion in the hands of government official or agency.”82

But Defendant’s argument that the City’s policies are not prior restraints because employees

are not totally barred from speaking does not prevail here.83

d. Qualified Immunity

Defendants Togliatti, Kilbane, and O’Brien each argue that they are entitled to

summary judgment based on qualified immunity.

The doctrine of qualified immunity provides that “government officials performing

discretionary functions generally are shielded from liability for civil damages insofar as

their conduct does not violate clearly established statutory or constitutional rights of which

a reasonable person would have known.”84 Relying upon the Sixth Circuit

decision, Plaintiff has alleged facts sufficient to support his claim that he engaged

in constitutionally protected speech (or was believed to have done so) that motivated

Defendants adverse action against him. Plaintiff Mazzola satisfies the first prong of the

qualified immunity inquiry.85

81 Doc. 84 at 19.

82 , 915 F.Supp. 919, 923 (N.D. Ohio 1996) (citing

, 486 U.S. 750, 757 (1988)).

83 Doc. 89 at 11.

84 457 U.S. 800, 818 (1982).

85

The Sixth Circuit in went on to say that it has “long recognized that a

public employer may not retaliate against an employee for her exercise of constitutionally

protected speech.”86 Kilbane and Togliatti each participated in hiring, firing, and oversight

of the police department in different ways and should have known that retaliation for First

Amendment speech in the form of constructive discharge is not permitted. Defendant

O’Brien, however, is entitled to qualified immunity. In this instance, O’Brien, as attorney

for the City, served as a conduit not a decisionmaker for potential punishment.

O’Brien’s involvement was largely limited to relaying information. Defendant

O’Brien, Defendant City’s law director, testified that he told union lawyer Phillips that the

City planned to punish Mazzola and “expected Phillips” to relay that information.87

Further, O’Brien emailed Phillips just before noon and outlined the City’s potential charges

against Mazzola.88 The record does not show that Mazzola ever saw this email.89

The evidence is insufficient to show that he was acting in a “discretionary” capacity

to violate Mazzola’s First Amendment rights. As the interlocutor between the City and

Phillips and as the City’s law director, the evidence does not show that Defendant O’Brien

clearly violated Mazzola’s rights or that he had any decision-making input into the alleged

retaliation scheme. In other words, it is not clear that “a hypothetical official, standing in

86 (citing , 502 F.3d 484, 495 (6th Cir. 2007);

, 131 F.3d 564, 580 (6th Cir. 1997)).

87

88 Doc. 83 at 4. The charges included “Lying during a formal internal investigation on the

unauthorized dissemination of departmental documents; Lying to the Mayor regarding performance

measurement standards allegedly approved by the Chief[;] Intentionally ignoring a previous departmental

order, ten (10) incidents of usurping his superiors to directly communicate with City officials and

employees regarding departmental staffing, training, and policies and procedures[;] [and] The release of

departmental documents outside of the police department[.]” at 4–5 (citing O’Brien Dep.Doc. 80 at

97:23–99:12; Defs.’ Ex. 56 to O’Brien Dep.)).

89 Doc. 62-1 at 6; Doc. 62-14. However, Phillips and O’Brien had spoken on the phone before

O’Brien sent that email and Phillips indicated that Mazzola was considering retirement. Doc. 62-1 at 6.

the [O’Brien]'s shoes, would necessarily have understood that taking the steps challenged

by the plaintiff would violate the plaintiff's clearly established” First Amendment Rights.90

e. State Law Claims

Defendants Togliatti, Kilbane, and O’Brien argue that they are entitled to summary

judgment on Ohio law claims of civil liability for criminal interference with civil rights

pursuant to R.C. 2307.60 and R.C. 2921.45 because Mazzola’s rights were not violated.91

Because the Court finds that Plaintiff has shown sufficient evidence to raise a jury issue of

a constitutional violation, Defendants are not entitled to summary judgement.

f. False Light Claim Against Defendant Togliatti

Defendant former-Mayor Togliatti asserts that he is entitled to summary judgment

on Plaintiff Mazzola’s Ohio false light claim.

After Plaintiff filed this suit on October 28, 2019 and “less than a week before the

mayoral election,” Defendant Togliatti posted a video to his campaign’s Facebook page,

stating that the lawsuit’s allegations were false. 92 Plaintiff Mazzola claims Mayor Togliatti

“falsely accus[ed] Mazzola of filing suit to harm him politically,” and “recklessly cast

Mazzola’s motivations in a false light.”93 Togliatti responds that his statements were

opinion and that he is immune from false light liability under Ohio law.94

In Ohio,

one who gives publicity to a matter concerning another that places the other before

the public in a false light is subject to liability to the other for invasion of his privacy

if (a) the false light in which the other was placed would be highly offensive to a

90 , 128 F.3d 301, 309 (6th Cir. 1997).

91 Doc. 71-3 at 20; Doc. 62-1 at 16.

92 Doc. 62-1 at 6–7.

93 Doc. 85 at 19.

94 Doc. 90-1 at 15.

reasonable person, and (b) the actor had knowledge of or acted in reckless disregard

as to the falsity of the publicized matter and the false light in which the other would

be placed.95

In turn, publicized means “that the matter is made public, by communicating it to the

public at large, or to so many persons that the matter must be regarded as substantially

certain to become one of public knowledge.”96 The statement must be false but “[i]t is

enough that he is given unreasonable and highly objectionable publicity that attributes to

him characteristics, conduct or beliefs that are false, and so is placed before the public in

a false position.”97

The real question, then, is whether the video placed Mazzola in a false light that a

reasonable person would find “highly offensive” and whether the actor had knowledge of

the falsity or acted with reckless disregard.98 Viewed in the light most favorable to

Mazzola, the video implies that Mazzola filed this “suit to harm [Togliatti] politically.”

Defendant Togliatti said that this lawsuits allegations were “absolutely false” and that he

was blindsided by the suit.”99 Further, Mazzola contends that his reputation was harmed

when Togliatti claimed that Mazzola had failed his polygraph test, “despite the fact that, as

of October 28, 2019, the polygraph examiner had not issued any report.”100

The Court finds insufficient evidence to find Mayor Togliatti’s video highly

offensive. Togliatti’s video’s statement that Mazzola’s claim was untrue was insufficient to

95 , 113 Ohio St.3d 464, 473 (Ohio 2007).

96 . at 472.

97 , No. 3:13–cv–00132; 2014 WL 2048190, at *12–13 (S.D. Ohio May

19, 2014) (citing Restatement (Second) of Torts § 652E (Am. Law Inst. 1977)).

98 , No. 25655, 2011 WL 2853215, at *3.

99 Doc. 85 at 19. Mazzola notes that Togliatti had received letters alerting him to a litigation hold

in the matter for months, so the suit was not a surprise. Doc. 7 at 23.

100

be highly offensive. For example, in a different case, plaintiff made a viable false light

claim where defendant published plaintiff’s personal information (such as name, address,

and photograph) and falsely labeled him a registered sexual offender.101 In another case,

defendants publicized that their neighbor-plaintiffs were cutting down trees and polluting

streams on their property, when plaintiffs showed that was not the case.102 Unlike these

cases, Togliatti’s video speaks more to his opinion than it attributes “characteristics,

conduct or beliefs that are false” to Mazzola.

III. Conclusion

For the foregoing reasons, the Court DENIES Defendants’ summary judgment

motions with the exceptions that the Court GRANTS Defendant Togliatti’s motion for

summary judgment on Plaintiff’s false light claim and GRANTS Defendant O’Brien’s

motion for summary judgment.

IT IS SO ORDERED.

Dated: October 15, 2020

JAMES S. GWIN

UNITED STATES DISTRICT JUDGE

101 , No. 25655, 2011 WL 2853215, at *3–4.

102 , 40 N.E.3d 588, 599 (Ohio Ct. App. 2015).

, No. No. C–090747, 2010 WL 3328631, at *3–4 (Ohio Ct. App. Aug. 25, 2010) (finding no

viable false light claim were article misquoted dancer to say that he knew he was expected to have sex with

customers as part of his job because the “gist of the article” did not paint him in a false light.)