Doe v. City of Mansfield

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

JANE DOE, et al., ) Case No. 1:19-cv-02901

)

Plaintiffs, ) Judge J. Philip Calabrese

)

v. ) Magistrate Judge David A. Ruiz

)

CITY OF MANSFIELD, et al., )

)

Defendants. )

)

OPINION AND ORDER

This case presents close and difficult questions arising from a workplace

dispute in a police department between a supervisor and her subordinate that

escalated to the point where a public records request resulted in the disclosure of

deeply personal and embarrassing information about the supervisor’s childhood

sexual history, leading to serious trauma and injury. Plaintiffs Jane Doe and her

husband John Doe claim Defendants the City of Mansfield; David Remy, the City’s

Human Resources Director; and Freeman Nixon, a police officer in the Mansfield

Police Department, violated her rights protected by the federal Constitution and

State law by publicly disclosing that information about her sexual history. The

parties move for summary judgment on their respective claims and defenses.

One difficulty in this case arises from the competing standards the Ohio

Supreme Court and the Sixth Circuit use to evaluate the parties’ respective claims

and defenses. In cases such as this, which may be somewhat unusual, those differing

standards will place officials in a difficult position—between the Scylla of State public

records law and the Charybdis of constitutional federal privacy rights. Ultimately,

the Ohio Supreme Court and the Sixth Circuit might need to settle on a common

standard to govern primary conduct going forward (the Ohio Supreme Court adopted

its standard after the events at issue). But that task does not fall to the Court in this

case. Instead, the Court must follow Sixth Circuit precedent on matters of federal

law and the Ohio Supreme Court on State law, wherever they lead. For that reason,

and those that follow, the Court DENIES Plaintiff’s motion for partial summary

judgment (ECF No. 43; ECF No. 57); GRANTS IN PART AND DENIES IN PART

the City’s and Mr. Remy’s motion for summary judgment (ECF No. 49); and GRANTS

IN PART AND DENIES IN PART Officer Nixon’s motion for summary judgment

(ECF No. 50; ECF No. 51).

Also before the Court is the City of Mansfield’s and Mr. Remy’s motion for

judgment on the pleadings. Previously, the Court ordered that their motion for

judgment on the pleadings be fully incorporated into their motion for summary

judgment. (Minute Entry, Jan. 28, 2021.) Accordingly, the Court DENIES AS

MOOT the motion for judgment on the pleadings (ECF No. 32).

STATEMENT OF FACTS

The parties largely agree on the following events. Defendant Freeman Nixon

has been employed by the Mansfield Police Department for about five and a half years

as a patrol officer. (ECF No. 47, PageID #379; ECF No. 51-3, PageID #542.) Officer

Nixon has known Plaintiff Jane Doe since he started working there. (ECF No. 47,

PageID #380; ECF No. 51-3, PageID #543; ECF No. 43-2, PageID #277.) At some

point, Ms. Doe became a sergeant and was Officer Nixon’s supervisor. (Id.) The two

had a difficult relationship. (ECF No. 43-2, PageID #278–79, #281; ECF No. 57-2,

PageID #693–94.)

As his supervisor, Sgt. Doe approached Officer Nixon “with a picture of [him]

on her cell phone with a penis drawn on it, made some comments and then went on

her way.” (ECF No. 47, PageID #381; ECF No. 51-3, PageID #544; ECF No. 43-2,

PageID #279; ECF No. 57-2, PageID #693; see also ECF No. 46, PageID #362–63

(“[T]hey had drawn a humongous penis just over his . . . body.”); ECF No. 51-2, PageID

#526.) The picture was part of a group text in which Officer Nixon was not included.

(ECF No. 47, PageID #381; ECF No. 51-3, PageID #544; ECF No. 46, PageID #362;

ECF No. 51-2, PageID #525.) He does not recall what remark Sgt. Doe made when

she showed him the photo, but testified that she brought it to him in “a joking

manner” rather than in a manner of concern. (ECF No. 47, PageID #382; ECF

No. 51-3, PageID #545.) Sgt. Doe testified that they both laughed over the photo and

that Officer Nixon claimed whoever sent it was “just jealous.” (ECF No. 46, PageID

#363; ECF No. 51-2, PageID #526.) Officer Nixon did not immediately report the

incident to a supervisor out of “fear of retaliation.” (ECF No. 47, PageID #382; ECF

No. 51-3, PageID #545.) Sgt. Doe testified that she was reprimanded for not sending

the photo up the chain of command. (ECF No. 46, PageID #363; ECF No. 51-2,

PageID #526.)

A couple months later, in June 2018, Officer Nixon and Sgt. Doe had another

incident at work in which she wrote up Officer Nixon for insubordination after he

used department resources to wash his car, allegedly in violation of a direct order

from Sgt. Doe. (ECF No. 47, PageID #383; ECF No. 51-3, PageID #546; ECF No. 43-2,

PageID #281; ECF No. 57-2, PageID #694.) The charged offense was cause for

termination, so Officer Nixon figured reporting the earlier incident regarding the

altered photograph “wasn’t going to stop what she was already doing to me.” (ECF

No. 47, PageID #384; ECF No. 51-3, PageID #547; ECF No. 43-2, PageID #281; ECF

No. 57-2, PageID #694.) Officer Nixon avers that Sgt. Doe lied about the car washing

offense and was upset that he “could have been fired for something [he] didn’t do.”

(ECF No. 47, PageID #385; ECF No. 51-3, PageID #548; ECF No. 43-2, PageID #282;

ECF No. 57-2, PageID #695.) The offense was eventually lowered to misuse of public

property. (ECF No. 47, PageID #385; ECF No. 51-3, PageID #548.)

A. The Public Records Request

After reporting the earlier incident involving the photograph, Officer Nixon

was not informed how it was resolved or whether Sgt. Doe had been disciplined in

connection with it, so he made a public records request for his personnel file and

Sgt. Doe’s. (ECF No. 43-5, PageID #342; ECF No. 57-5, PageID #766; ECF No. 47,

PageID #386 & #394; ECF No. 51-3, PageID #549 & #557; ECF No. 43-2, PageID

#283; ECF No. 57-2, PageID #696.) He also requested his file to verify its accuracy.

(ECF No. 47, PageID #394; ECF No. 51-3, PageID #557.) He made both requests on

December 10, 2018. (ECF No. 43-5, PageID #342; ECF No. 57-5, PageID #766; ECF

No. 48, PageID #410, 422; ECF No. 51-4, PageID #573.)

The public records request went to Defendant David Remy, who is a lawyer

admitted to practice in the State of Ohio. (ECF No. 43-3, PageID #304.) He was the

Human Resource Director for the City of Mansfield from December 2011 to December

2018. (Id.) Before that, from 2001 to November 2011, he was the City Law Director.

(Id.) And before that, starting in 1993, he worked as the chief prosecutor for the City.

(Id.) Mr. Remy testified that, when one employee requests another employee’s

personnel file, the human resources department undertakes a review and redaction

process, pursuant to City policy. (ECF No. 43-3, PageID #305; ECF No. 57-3, PageID

#721.) He reviewed all requests for personnel files that came to the office and

personally determined whether redactions were appropriate in his capacity as human

resources director. (ECF No. 43-3, PageID #306; ECF No. 48, PageID #411; ECF

No. 51-4, PageID #574.)

One document contained in Sgt. Doe’s file was the result of a polygraph

interview from a prior job application to the Ohio State Highway Patrol. (ECF No. 47,

PageID #386–87; ECF No. 43-2, PageID #283–84.) That document contained details

about abuse in her relationship with her former fiancé; a suspension from college due

to low grades; and traffic citations omitted from her employment application. (ECF

No. 43-6, PageID #344.) It also contained the disclosure at issue (ECF No. 47, PageID

#387–88; ECF No. 51-3, PageID #549–50; ECF No. 43-2, PageID #285; ECF No. 57-2,

PageID #698; ECF No. 43-6, PageID #344; ECF No. 57-6, PageID #768; ECF No. 46,

PageID #376; ECF No. 51-2, PageID #539) and was placed in Sgt. Doe’s personnel file

as part of an investigative packet the police department collects when it hires

someone (ECF No. 43-3, PageID #308; ECF No. 57-3, PageID #724).

Mr. Remy did not consult with anyone while reviewing Ms. Doe’s file to respond

to Officer Nixon’s request. (ECF No. 43-3, PageID #306; ECF No. 48, PageID #411;

ECF No. 51-4, PageID #574.) Sometimes, if an unusual situation came up, he

consulted the Law Department, though he did not do so here. (ECF No. 43-3, PageID

#306, 311-12; ECF No. 57-3, PageID #728-79; ECF No. 48, PageID #411; ECF

No. 51-4, PageID #574.)

B. The Disclosure at Issue

Mr. Remy fulfilled Officer Nixon’s request by December 17, 2018, a week after

Officer Nixon made the request. (ECF No. 48, PageID #410, #423; ECF No. 51-4,

PagelD #578, #586.) Officer Nixon retrieved both files and reviewed their contents.

(ECF No. 47, PageID #386; ECF No. 51-3, PageID #549; ECF No. 43-2, PageID #2838;

ECF No. 57-2, PageID #696; ECF No. 48, PageID #413; ECF No. 51-4, PageID #576.)

Sgt. Doe’s personnel file contained the following statement regarding her sexual

history when she was a minor:

(ECF No. 43-6, PageID #344; ECF No. 57-6, PageID #768.) According to Sgt. Doe,

this behavior resulted from sexual abuse, though she concedes that a reader of that

information from the polygraph might not have known as much and that she never

told anyone about prior sexual abuse. (ECF No. 43-4, PageID #3826; ECF No. 57-4,

PagelID #746.)

When reviewing Sgt. Doe’s file, Mr. Remy read this information. (ECF

No. 43-3, PageID #309; ECF No. 57-3, PageID #726.) He viewed it as “an unflattering

incident in [Sgt. Doe’s] life” (id.) that occurred when she was a minor (ECF No. 43-3,

PageID #311; ECF No. 57-3, PageID #728), but determined that Ohio law did not

provide an exception for its disclosure as a public record (ECF No. 43-4, PageID

#312–13; ECF No. 57-3, PageID #729–30; ECF No. 53, PageID #632; see also ECF

No. 48, PageID #412; ECF No. 51-4, PageID #575). Before releasing Sgt. Doe’s

personnel file without redactions, Mr. Remy gave no consideration to federal law

beyond the requirements of the Health Insurance Portability and Accountability Act

of 1996. (ECF No. 43-3, PageID #313, #315.) Nor did he advise Officer Nixon not to

share the contents of the personnel files with anyone else. (ECF No. 48, PageID #412;

ECF No. 51-4, PageID #575.)

In his testimony, Officer Nixon said that, when he read this information, he

became concerned that Sgt. Doe might be unfit for her position as a police officer.

(ECF No. 47, PageID #395; ECF No. 51-3, PageID #558.) Other parts of Sgt. Doe’s

personnel file also concerned Officer Nixon about her fitness to serve as a police

officer. (ECF No. 47, PageID #395–98; ECF No. 51-3, PageID #558–62; ECF No. 43-2,

PageID #290–93; ECF No. 57-2, PageID #703–05.) In his opinion, “I don’t see that

she should have been hired originally.” (ECF No. 47, PageID #399; ECF No. 51-3,

PageID #562.)

Officer Nixon showed the document to one sergeant and two officers in the

department. (ECF No. 47, PageID #388, #389; ECF No. 51-3, PageID #551, #552;

ECF No. 43-2, PageID #295, #297; ECF No. 57-2, PageID #707, #709; see also ECF

No. 46, PageID #358; ECF No. 51-2, PageID #521.) First, he showed the file to the

sergeant who helped him with the public records request and who had later asked

about Plaintiff’s file. (ECF No. 43-5, PageID #342; ECF No. 57-5, PageID #766; ECF

No. 47, PageID #394, #398; ECF No. 51-3, PageID #557, #561.) Officer Nixon brought

the disclosure at issue to the sergeant’s attention, along with other information he

found concerning. (ECF No. 47, PageID #398; ECF No. 51-3, PageID #561.) Officer

Nixon says he did so out of concern because Sgt. Doe appeared as an offender, not a

victim, and . (ECF No. 43-2, PageID #293;

ECF No. 57-2, PageID #705.)

Officer Nixon then showed the file to two officers simultaneously, but does not

recall whether he pointed out to them the specific information at issue. (ECF No. 47,

PageID #390; ECF No. 51-3, PageID #553; ECF No. 43-2, PageID #288; ECF No. 57-2,

PageID #701.) He testified that he showed the officers the file after one asked him

about it. (ECF No. 47, PageID #392; ECF No. 51-3, PageID #555.) One of those

officers indicated to Officer Nixon that he should not share publicly the disclosed

information. (ECF No. 47, PageID #393; ECF No. 51-3, PageID #556.) After that,

Officer Nixon did not show the file to anyone else at the department. (ECF No. 47,

PageID #393; ECF No. 51-3, PageID #556.) Even when another officer later

approached him and asked about Sgt. Doe’s personnel file, Officer Nixon “never gave

an answer.” (ECF No. 47, PageID #400; ECF No. 51-3, PageID #563; ECF No. 43-2,

PageID #294; ECF No. 57-2, PageID #703.)

After Sgt. Doe filed suit, Officer Nixon told his friend about the lawsuit. (ECF

No. 43-2, PageID #289; ECF No. 57-2, PageID #702.) He also told “some close family

members” an “all inclusive story from the beginning to the end of what happened.”

(ECF No. 43-2, PageID #294–95; ECF No. 57-2, PageID #706–07.)

C. The Aftermath

Sgt. Doe testified that when she learned about Officer Nixon’s disclosure to her

colleagues, she “literally lost my mind.” (ECF No. 43-4, PageID #329; ECF No. 57-4,

PageID #750.) When she contacted her supervisor after learning about the disclosure,

he told her to leave work and go home, which she did. (ECF No. 43-4, PageID #330;

ECF No. 57-4, PageID #751.) She called her husband from the car and “got through

a conversation with him” “because of course he didn’t know” about the information

disclosed. (Id.) She hyperventilated on the way home and testified that “the next six

weeks of my life is a complete blur.” (ECF No. 43-4, PageID #330–31; ECF No. 57-4,

PageID #751–52.)

She visited the emergency room in February 2019 with stomach and back

problems, testifying that she “couldn’t eat,” but she was not admitted to the hospital.

(ECF No. 43-4, PageID #331–32; ECF No. 57-4, PageID #752–53.) She did not work

for six weeks and started seeing a counselor within the first week of the disclosure.

(ECF No. 43-4, PageID #331; ECF No. 57-4, PageID #752.) Sgt. Doe testified that she

retained a lawyer shortly before she started seeing a psychologist after the disclosure.

(ECF No. 43-4, PageID #328; ECF No. 57-4, PageID #748.) Previously, she had never

had psychological treatment (id.), but she suffered from depression for the first six

months to a year afterward (ECF No. 46, PageID #366; ECF No. 51-2, PageID #529).

She now sees two mental health professionals. (ECF No. 43-4, PageID #332; ECF

No. 57-4, PageID #753.) One prescribes medications, and the other offers counseling

services. (Id.)

After six weeks, Sgt. Doe returned to work. (ECF No. 43-4, PageID #333; ECF

No. 57-4, PageID #754.) To avoid running into Officer Nixon, she does not accept

overtime hours. (Id.) She testified that she is now irritable and has trouble focusing

on work. (Id.) During the course of this lawsuit, she filed for disability to leave the

police department due to post-traumatic stress related to this injury and for an

unrelated physical injury. (ECF No. 43-4, PageID #338; ECF No. 57-4, PageID #759.)

Officer Nixon was terminated for disclosing the information in Sgt. Doe’s

personnel file. (ECF No. 43-4, PageID #330, #337; ECF No. 57-4, PageID #751, #785.)

He went to work as a deputy in the Ashland County Sherriff’s Department from about

August 2019 to February 2020, when he returned to his position in Mansfield after

prevailing in the grievance from his termination. (ECF No. 47, PageID #379; ECF

No. 51-3, PageID #542; ECF No. 43-2, PageID #277.) He testified that the basis for

his restoration is that “[a]ll the policy violations against me were found unsustained.

There was no supporting evidence.” (ECF No. 47, PageID #380; ECF No. 51-3,

PageID #543; ECF No. 43-2, PageID #277.)

STATEMENT OF THE CASE

Plaintiff Jane Doe filed suit and asserts causes of action for (1) violation of her

substantive due-process right to privacy under the Fourteenth Amendment; (2) false

light; (3) invasion of privacy and public disclosure of private facts; (4) slander; and (5)

intentional infliction of emotional distress. (ECF No. 27, ¶¶ 27–57, PageID #143–46.)

Plaintiff’s husband joins in the complaint, asserting a claim for loss of consortium.

(Id., ¶¶ 58–59, PageID #146.)

After amendment of the complaint, the City of Mansfield and Mr. Remy moved

for judgment on the pleadings. (ECF No. 32.) When the case was re-assigned, the

parties had completed discovery and requested a schedule for summary judgment

briefing, which incorporated the arguments for judgment on the pleadings the City

and Mr. Remy made. (Minute Order, Jan. 28, 2021.)

Plaintiff Jane Doe moves for partial summary judgment. (ECF No. 43; ECF

No. 57.) Plaintiffs seek summary judgment on liability related to all claims except

the consortium claim, which rises or falls with the other claims. Officer Nixon moves

for summary judgment (ECF No. 50; ECF No. 51), and Defendants City of Mansfield

and Mr. Remy move for summary judgment (ECF No. 49).

ANALYSIS

Summary judgment is appropriate “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). On a motion for summary judgment, “the judge’s

function is not [] to weigh the evidence and determine the truth of the matter but to

determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 249 (1986). “The party seeking summary judgment has the initial

burden of informing the court of the basis for its motion” and identifying the portions

of the record “which it believes demonstrate the absence of a genuine issue of material

fact.” Tokmenko v. MetroHealth Sys., 488 F. Supp. 3d 571, 576 (N.D. Ohio 2020)

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). Then, the nonmoving party

must “set forth specific facts showing there is a genuine issue for trial.” Id. (citing

Anderson, 477 U.S. at 250).

“When the moving party has carried its burden under Rule 56(c), its opponent

must do more than simply show there is some metaphysical doubt as to the material

facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

Instead, the Court determines “whether the evidence presents a sufficient

disagreement to require submission to a jury” or whether the evidence “is so one-

sided that one party must prevail as a matter of law.” Id. at 251–52. In doing so, the

Court must view evidence in the light most favorable to the non-moving party.

Kirilenko-Ison v. Board of Educ. of Danville Indep. Schs., 974 F.3d 652, 660 (6th Cir.

2020) (citing Matsushita Elec. Indus. Co., 475 U.S. at 587).

If a genuine dispute exists, meaning “the evidence is such that a reasonable

jury could return a verdict for the nonmoving party,” summary judgment is not

appropriate. Tokmenko, 488 F. Supp. 3d at 576 (citing Anderson, 477 U.S. at 250).

However, if “the evidence is merely colorable or is not significantly probative,”

summary judgment for the movant is proper. Id. The “mere existence of some factual

dispute between the parties will not defeat an otherwise properly supported motion

for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Anderson,

477 U.S. at 247–48).

“Just as a plaintiff may not rely on conclusory allegations to proceed past the

pleading stage, so too a plaintiff may not rely on conclusory evidence to proceed past

the summary-judgment stage.” Viet v. Le, 951 F.3d 818, 823 (6th Cir. 2020) (citations

omitted). “Conclusory statements unadorned with supporting facts are insufficient

to establish a factual dispute that will defeat summary judgment.” Id. (quoting

Alexander v. CareSource, 576 F.3d 551, 560 (6th Cir. 2009).

I. Substantive Due Process Privacy Violation

Plaintiff claims the City and Mr. Remy violated her Fourteenth Amendment

privacy rights by disclosing Jane Doe’s private information to Officer Nixon by way

of her unredacted personnel file. (ECF No. 27, ¶ 35, PageID #144.) Plaintiff moves

for summary judgment on this claim against Mr. Remy. (ECF No. 43-1, PageID #264;

ECF No. 57-1, PageID #679.) Mr. Remy and the City also move for summary

judgment. (ECF No. 49, PageID #429, #438.)

To succeed on her claim against Mr. Remy under 42 U.S.C. § 1983, Plaintiff

must prove that (1) Mr. Remy acted under color of State law and (2) the offending

conduct deprived Plaintiff of rights federal law secures. Bloch v. Ribar, 156 F.3d 673,

677 (6th Cir. 1998) (citation omitted). As for her claim against the City, “[t]o succeed

on a § 1983 claim against a local government, the plaintiff must also prove that the

injury about which she complains was caused by an unconstitutional government

policy or custom.” Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir. 2008) (citing

Monell v. Department of Soc. Servs., 436 U.S. 658, 694 (1978)).

Because Mr. Remy was acting in his official capacity as the Human Resource

Director for the City when he turned over Sgt. Doe’s personnel file (ECF No. 43-3,

PageID #304), there is no dispute he was acting under color of State law. Accordingly,

the Court turns to whether a constitutional violation occurred.

I.A. Plaintiff’s Constitutional Privacy Rights

Broadly speaking, the Fourteenth Amendment protects a person’s privacy in

different ways. Bloch, 156 F.3d at 683. At issue in this case is the protection of “an

individual’s right to control the nature and extent of information released about that

individual.” Id. (citing Whalen v. Roe, 429 U.S. 589, 599–600 (1977); Nixon v.

Administrator of Gen. Servs., 433 U.S. 425, 457 (1977); Kallstrom v. City of Columbus,

136 F.3d 1055 (6th Cir. 1998)). The Sixth Circuit narrowly construes the holdings of

Whalen and Nixon to extend this right, which it refers to as the right to informational

privacy, “only to interests that implicate a fundamental liberty interest.” Id. at 684

(citing J.P. v. DeSanti, 653 F.2d 1080, 1090 (6th Cir. 1981); Kallstrom, 136 F.3d at

1061). Such an interest involves “rights that can be deemed ‘fundamental’ or ‘implicit

in the concept of ordered liberty.’” DeSanti, 653 F.2d at 1090.

Thus far, the Sixth Circuit has recognized only two instances of informational

privacy that implicate a fundamental liberty interest: (1) a release of information

that could lead to bodily harm, Kallstrom, 136 F.3d at 1061, and (2) the release of

information of a sexual, personal, and humiliating nature, Bloch, 156 F.3d at 684.

Where the information disclosed falls into one of those two categories, a court must

“balance the government’s interest in disseminating the information against the

[Plaintiff’s] right to information privacy” to determine whether the informational

right to privacy has been violated. Jones v. City of Brunswick, 704 F. Supp. 2d 721,

742 (N.D. Ohio 2010) (quoting Bloch, 156 F.3d at 685).

I.A.1. Privacy Interest

Plaintiff argues that the disclosure at issue was of a sexual, personal, and

humiliating nature and is, therefore, protected as a fundamental liberty interest

under Bloch. (ECF No. 43-1, PageID #267; ECF No. 57-1, PageID #682.) In Bloch,

the plaintiff was raped by an unknown assailant. After many months with no

apparent progress in the investigation, the plaintiff and her husband criticized

investigators and the sheriff personally. In response, the sheriff released highly

personal and extremely humiliating details of the rape. The court held that the

plaintiff pled a fundamental constitutional right to privacy “in preventing

government officials from gratuitously and unnecessarily releasing the intimate

details of the rape where no penological purpose is being served” sufficient to

withstand a motion to dismiss. Bloch, 156 F.3d at 686. In so holding, the court

recognized an individual right to informational privacy. Id. at 683. In subsequent

cases, the Sixth Circuit has confirmed that Bloch acknowledges a constitutional

privacy right with respect to information that is “sexual, personal, and humiliating”

in nature. Lee v. City of Columbus, 636 F.3d 245, 260 (6th Cir. 2011) (quoting

Lambert v. Hartman, 517 F.3d 433, 440 (6th Cir. 2008) (citing Bloch, 153 F.3d at

685)). This is the fundamental right on which Plaintiff bases her claim.

A reasonable jury can find that the disclosure at issue, on its face, revealed

information of a sexual, personal, and humiliating nature—even assuming it does not

relate to childhood sexual abuse as Plaintiff claims. The information revealed in

Bloch involved “highly personal and extremely humiliating” details of a rape that the

victim plaintiff had not even shared with her husband. Bloch, 156 F.3d at 676.

Similarly, the information disclosed here relates to the sexual acts of a minor that a

reasonable jury could find “fall outside the realm of ‘conventional’ practices which are

generally accepted without controversy, ridicule, or derision” and are, therefore,

humiliating. Ray v. Himes, No. 2:18-cv-272, 2019 WL 11791719, at *8 (S.D. Ohio

Sept. 12, 2019) (citation omitted). The information is undoubtedly personal to

Plaintiff and, as in Bloch, something Sgt. Doe kept from her husband until after its

disclosure. (ECF No. 43-4, PageID #330, #337; ECF No. 57-4, PageID #751, #758.)

Accordingly, the disclosure at issue implicates Plaintiff’s informational privacy rights

under the Fourteenth Amendment, and a reasonable jury could find the disclosure

involved information of a personal, sexual, and humiliating nature.

Mr. Remy argues, correctly, that an informational privacy right arises only

where the interest at stake implicates a fundamental right and that the Supreme

Court has deemed fundamental matters touching on sexuality or choices about sex,

marriage, procreation, contraception, family relationships, child rearing, and

education. (ECF No. 49, PageID #433; ECF No. 54, PageID #639.) He maintains that

the information disclosed does not fall into any of those categories and that the facts

here are distinguishable from Bloch such that the disclosure does not implicate any

informational privacy right.

In essence, Mr. Remy would limit the constitutional right identified in Bloch

to the particular facts of that case; specifically, the disclosure of “gruesome details

regarding a rape attack that were voluntarily disclosed by a government official, in

retaliation for the victim’s criticism of the criminal investigation.” (ECF No. 49,

PageID #434–35.) He contends that Bloch did not create a general right to the

nondisclosure of merely sensitive or intimate information and that the information

volunteered during Plaintiff’s pre-hiring polygraph exam is not constitutionally

protected because it does not relate to sexuality or family life. (Id., PageID #433.)

Mr. Remy does not provide any binding authority limiting the privacy right in

Bloch to humiliating details of a rape or to personal, sexual, and humiliating

information revealed at a retaliatory official press conference. Nor has the Court’s

research located any. Defendant is correct that Bloch did not create a general right

to informational privacy in all sensitive or intimate information. But Bloch also did

not create a privacy right limited to the particular facts before it. To the contrary,

the Sixth Circuit has confirmed that Bloch acknowledged a right to privacy in

“intimate matters” of a “sexual, personal, and humiliating nature.” Lambert, 517

F.3d at 443 (holding that the disclosure of financial information did not implicate the

fundamental privacy interest acknowledged in Bloch). Although the disclosure and

facts here differ from those in Bloch, the privacy right in “sexual, personal, and

humiliating” information still applies. Lambert, 517 F.3d at 440. And a reasonable

jury could, and may well, conclude that the information disclosed here was sexual,

personal, and humiliating. Indeed, it relates to the conduct of a minor.

Defendant also relies on Mattox v. City of Forest Park, 183 F.3d 515, 522 (6th

Cir. 1999). (ECF No. 49, PageID #436.) Mattox involved a First Amendment

retaliation claim that required the court to consider whether the “plaintiffs

sufficiently allege[d] [a] violation of a constitutionally or statutorily protected right[.]”

Id. at 520. There, a member of city council who was one of the plaintiffs initiated an

investigation into the fire department after receiving complaints from several

firefighters, including the other plaintiff. Id. at 517. The defendants prepared a

report and a video overview of the report. Id. at 518. The report was made available

to the press and general public, and the video was “shown on local-access television

as many as nine times just prior to the” election in which the plaintiff member of city

council was running to retain her seat. Id. Subsumed in the 690-page report was

information about the plaintiff firefighter’s sexual relations with some of her

colleagues and information that “touched on a traumatic childhood incident.” Id. at

522–23. That sensitive information about the plaintiff firefighter was not included

in the introduction or overview sections of the report or in the overview video. Id. at

523.

In the context of a First Amendment retaliation claim, the Mattox Court

considered whether the dissemination of that information rose to the level of the

disclosures at issue in Bloch and determined that it did not. Id. at 522–23. The court

noted that the “traumatic childhood incident was not the focus of the report, or of the

investigation, or even of the questions being asked in the interview.” Id. at 523.

Rather, the plaintiff volunteered information about the traumatic event “by way of

analogy as an aside during a legitimate line of questioning” contained in the report.

Id. Although the Mattox Court emphasized the nature of the disclosure in addition

to its content, it did so to determine whether the disclosure was retaliatory under the

First Amendment, which is not at issue here. Further, recognizing that the disclosure

in Mattox (not described in detail there) presented a close question, the court held

that the disclosures were not the focus of the report and did not rise to the level of

those in Bloch. Id. at 522–23.

Relying on Mattox, Defendant argues that the information revealed about

Plaintiff falls short of the disclosure in Bloch and that “information in background

profiles is not constitutionally protected.” (ECF No. 49, PageID #436.) Neither Bloch

nor Mattox support the proposition Defendant advances. As for the comparison to

Bloch, as already discussed, a reasonable jury could find that the information at issue

here is sufficiently sexual, personal, and humiliating to rise to the level of a violation

of Sgt. Doe’s information privacy rights. As for Mattox, there is no indication that the

traumatic childhood incident involved personal, sexual, and humiliating acts or that

the revealing personal statements disclosed took place before adulthood and bear any

resemblance to the disclosures in Bloch or this case. And unlike Mattox, the record

shows that the disclosure at issue here was a focus—if not the focus—of Officer

Nixon’s publicizing of Sgt. Doe’s personnel file following its disclosure.

Finally, Defendant directs the Court to cases where the Sixth Circuit declined

to find an informational privacy right in financial records, social security numbers,

and medical records. (ECF No. 49, PageID #434.) But these cases bear no

resemblance to the disclosure at issue here. Plaintiff does not claim an informational

privacy right in similar information. In short, the excerpt from the polygraph report

at issue involves information that is not merely intimate and sensitive, but also

permits a reasonable jury to find it is sexual, personal, and humiliating.

I.A.2. Narrowly Tailored to a Compelling State Interest

Still, to establish a constitutional violation, the Court must balance the privacy

interest at issue against Defendants’ interest in making the disclosure. Bloch, 156

F.3d at 684. The City’s disclosure “will be upheld under the substantive due process

component of the Fourteenth Amendment only where the governmental action

furthers a compelling state interest, and is narrowly drawn to further that state

interest.” Kallstrom, 136 F.3d at 1064 (citation omitted).

I.A.2.a. Compelling Interest

Defendant argues that the disclosure did not violate the Fourteenth

Amendment because the information disclosed is subject to disclosure as a public

record under Section 149.43 of the Ohio Revised Code, Ohio’s Public Records Act.

(ECF No. 49, PageID #436.) Ohio’s Public Records Act is construed “liberally in favor

of broad access, and any doubt is resolved in favor of disclosure of public records.”

State ex rel. Cincinnati Enquirer v. Hamilton Cnty., 75 Ohio St.3d 374, 1996-Ohio-

214, 662 N.E.2d 334, ¶ 11 (1996). The Act defines public records as “records kept by

any public office, including, but not limited to, state, county, city, village, township,

and school district units” and goes on to list several categories that are not public

records, such as medical records, adoption records, DNA records, or intellectual

property records. Ohio Rev. Code § 149.43(A)(1).

Plaintiff maintains that the disclosure did not serve a compelling interest

because the particular information at issue does not promote accountability of the

government to the public. (ECF No. 43-1, PageID #270; ECF No. 57-1, PageID #685.)

But Ohio law treats the “personnel records of city employees a[s] public records [that]

are subject to disclosure” under the Act. State ex rel. Lorain Journal Co. v. City of

Lorain, 87 Ohio App. 3d 112, 115, 621 N.E.2d 894, 896 (Ohio Ct. App. 1993) (ordering

police department to provide newspaper with polygraph results of seven police officer

applicants). Further, the Sixth Circuit “assume[s] that the interests served by

allowing public access to agency records rises to the level of a compelling state

interest.” Kallstrom, 136 F.3d at 1065. In Kallstrom, the court explained that the

compelling interest served by disclosure under the Act is “to shed light on the state

government’s performance, thereby enabling Ohio citizens to understand better the

operations of their government” and “the workings of [their] law enforcement

agencies[.]” Id. Under Circuit precedent, the Court agrees that the Ohio Public

Records Act provides a compelling interest justifying disclosure.

I.A.2.b. Narrowly Tailored

While Plaintiff’s personnel file constitutes a public record under the Ohio

Public Records Act, the information within it subject to informational privacy

protection under the Fourteenth Amendment cannot be disclosed unless disclosure

“narrowly serves a compelling state interest.” Kallstrom, 136 F.3d at 1061. The

question that remains is whether the disclosure of the information at issue narrowly

served the compelling governmental interest. Narrow tailoring “turn[s] on whether

it is the least restrictive and least harmful means of satisfying the government’s

goal . . . .” United States v. Brandon, 158 F.3d 947, 960 (6th Cir. 1998).

Plaintiff argues that the disclosure here did not narrowly serve the compelling

interest of complying with the disclosure requirements of the Ohio Public Records

Act. (ECF No. 43-1, PageID #270; ECF No. 57-1, PageID #685.) In Kallstrom, the

city argued that the Act required the disclosure of police offers’ names, home

addresses, phone numbers, family members’ names, and driver’s licenses to criminal

defense counsel who represented individuals associated with a violent gang against

whom the officers had testified. Kallstrom, 136 F.3d at 1065. The court disagreed

that the disclosure was narrowly tailored, reasoning that passing the personal

information into the hands of defense counsel who shared it with his clients did not

“in any way increase[] public understanding of the City’s law enforcement agency[.]”

Id.

Here, Mr. Remy reviewed the personnel file, determined that redactions were

not necessary under State law, and disclosed the file in full to Officer Nixon. The

record shows that Mr. Remy did not even consider Sgt. Doe’s informational privacy

interest protected under the Fourteenth Amendment or whether any means short of

full disclosure of the information at issue, such as redaction or inspection without

copying, would permit a narrow tailoring of any required disclosure.

Mr. Remy relies on the Ohio Supreme Court’s recent decision in State ex rel.

Summers v. Fox, 163 Ohio St. 3d 217, 2020-Ohio-5585, 169 N.E.3d 625, to defend

against Plaintiff’s informational privacy claim. There, a prosecutor responded to a

request for records relating to the prosecution of a defendant for sexual battery. His

file included a victim’s detailed statement, including graphic sexual content,

describing how the defendant coerced her into a sexual relationship in a different case

in a different county. That information ended up on a Facebook page the defendant’s

parents hosted seeking to expose what they considered unjust prosecutions of their

son. Then, the defendant’s father made formal public records requests, which were

denied. On a writ of mandamus to compel compliance with the records request, the

Ohio Supreme Court addressed various substantive and procedural issues, including

mootness and the ability of a parent to obtain records the statute bars the defendant

from directly obtaining, among others. In this context, the Ohio Supreme Court

distinguished Bloch on the ground that it “is not a public-records case and it did not

create the categorical exception to disclosure under federal law” under Section

149.43(A)(1)(v) of Ohio’s Public Records Act. Id. at ¶ 41.

Based on Summers, though decided after the events giving rise to this lawsuit,

Mr. Remy argues that Plaintiff’s personnel file is a public record and was properly

disclosed under State law. (ECF No. 49, PageID #437.) Unlike Summers, this case

is not a public records case under State law. Rather, the Fourteenth Amendment, to

which the Ohio Public Records Act must yield under the Supremacy Clause, governs

the disclosure in this case. Admittedly, Summers and Bloch might, in certain

circumstances in the future, create conflicting standards governing responses to

public records requests. For that reason, one can hope that the Ohio Supreme Court

and the Sixth Circuit will reconcile their competing views should cases such as this

prove more common than the case law suggests. On the record presented, however,

Mr. Remy, a trained lawyer and human resources professional, failed to consider

Sgt. Doe’s longstanding informational privacy interests. Disclosure of her personnel

file without any redaction of the sexual, personal, and humiliating information at

issue was not narrowly tailored to serve a compelling governmental interest.

I.B. Qualified Immunity

Mr. Remy argues that he is entitled to qualified immunity on Plaintiff’s

individual capacity claim against him. (ECF No. 49, PageID #429.) Qualified

immunity shields law enforcement officers and public officials against suit where

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

which a reasonable official would be aware. Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982); Barnes v. Wright, 449 F.3d 709, 715 (6th Cir. 2006). Beyond the benefit of

guarding against potentially disabling threats for civil damages, the doctrine protects

public officials from undue interference in the performance of their duties. Dickerson

v. McClellan, 101 F.3d 1151, 1157 (6th Cir. 1996). “[T]he issue whether qualified

immunity is applicable to an official’s actions is a question of law.” Summers v. Leis,

368 F.3d 881, 885 (6th Cir. 2004).

To determine if qualified immunity bars suit, the Court employs a three-step

inquiry. First, the Court must determine if a constitutional violation occurred.

Barnes, 449 F.3d at 715 (quotation omitted). Second, the Court determines if the

right was clearly established and one which a reasonable officer would have known

at the time. Id. (quotation omitted). Third, the Court determines if the plaintiff has

identified sufficient evidence to show that the defendant’s conduct was objectively

reasonable in light of the clearly established right. Id. (quotation omitted); Binay v.

Bettendorf, 601 F.3d 640, 651 (6th Cir. 2010). Because the Court determines that a

reasonable jury could find that the disclosure at issue involves information of a

sexual, personal, and humiliating nature that meets the Circuit’s standard for an

informational privacy violation under the Fourteenth Amendment, the Court only

considers the other two prongs of the qualified-immunity analysis.

I.B.1. Clearly Established Right

When Mr. Remy disclosed the information at issue, the informational privacy

right at issue was clearly established. “A right is ‘clearly established’ when its

‘contours . . . [are] sufficiently clear that a reasonable official would understand that

what he is doing violates that right.’” Guertin v. Michigan, 912 F.3d 907, 932 (6th

Cir. 2019) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). To determine

whether a right is clearly established to provide “fair warning” that the conduct at

issue was unconstitutional, courts “look first to decisions of the Supreme Court, then

to decisions of [the Sixth Circuit] and other courts within our circuit, and finally to

decisions of other circuits.” Id. (quotations omitted). The “precise situation” need not

have previously been held unlawful, but “existing precedent must have placed the . . .

constitutional question beyond debate.” Id. (quotation omitted); White v. Pauly, 137

S. Ct. 548, 551 (2017) (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015)). “Finally, ‘an

action’s unlawfulness can be ‘clearly established’ from direct holdings, from specific

examples describing certain conduct as prohibited, or from the general reasoning that

a court employs.’” Guertin, 912 F.3d at 932 (quoting Baynes v. Cleland, 799 F.3d 600,

612 (6th Cir. 2015)).

In Bloch, the court affirmed the dismissal of the plaintiff’s privacy claim,

finding that the sheriff was not on notice that such a privacy right existed at the time

of the alleged violation. Bloch, 156 F.3d at 687. But the Sixth Circuit advised that

“any future violation will not allow an official . . . to claim the lack of reasonable

notice that is necessary to sustain a defense of qualified immunity.” Id. Bloch was

decided in 1998, some twenty years before Mr. Remy disclosed the information at

issue. Subsequent cases from the Circuit confirm that Bloch reads Whalen and Nixon

as establishing an informational privacy right that protects “sexual, personal, and

humiliating” information. Lee, 636 F.3d at 260; Lambert, 517 F.3d at 440. He cannot

claim that Plaintiff’s right to informational privacy was not clearly established at the

time of disclosure.

I.B.2. Objectively Reasonable

Because Sgt. Doe’s informational privacy right was clearly established well

before the events at issue, a reasonable jury could find that Mr. Remy’s conduct on

the facts and circumstances in the record was not objectively reasonable. The record

shows that Mr. Remy gave no consideration to Sgt. Doe’s informational privacy rights.

That failure, the Court cannot say, is objectively reasonable. Moreover, the record

demonstrates that Mr. Remy received the request on December 10, 2018 and

completed it by December 17, 2018. (See, e.g., ECF No. 43-5, PageID #342; ECF

No. 48, PageID #410, #423.) He was a trained lawyer and a human resources

administrator responding in an office setting to an open records request over several

days. Unlike a police officer responding to a dynamic scene in real time, Mr. Remy

had time to consider whether the disclosure would violate Sgt. Doe’s constitutional

privacy rights, but did not do so. For these reasons, Mr. Remy is not entitled to

qualified immunity, and Plaintiff may present her federal constitutional claim

against Mr. Remy in his individual capacity to a jury to determine whether the

information disclosed is sexual, personal, and humiliating as a matter of fact and

whether Mr. Remy’s failure to consider Sgt. Doe’s information privacy rights was

objectively reasonable.

I.C. Official Capacity Claim Against Mr. Remy

Defendants argue that, to the extent Plaintiffs bring their claim against

Mr. Remy in his official capacity, the City is the real party in interest. (ECF No. 49,

PageID #438.) “[O]fficial-capacity suits . . . represent only another way of pleading

an action against an entity of which an officer is an agent.” McPherson v. Cuyahoga

Cnty., No. 1:20-cv-00639, 2021 WL 2841582, at *12 (N.D. Ohio July 8, 2021) (quoting

Everson v. Leis, 556 F.3d 484, 493 n.3 (6th Cir. 2009) (quoting Monell, 436 U.S. at 690

n.55)). Because Plaintiff brought her claim against the City, Mr. Remy is entitled to

summary judgment to the extent the claim is also brought against him in his official

capacity.

I.D. Monell Claim Against the City

Plaintiff asserts her Fourteenth Amendment claim against the City of

Mansfield under Monell v. Department of Social Services, 436 U.S. 658 (1978). The

City moves for summary judgment on that claim. (ECF No. 49, PageID #439.) To be

liable under Monell, the entity, “through its deliberate conduct,” must have been “the

‘moving force’ behind the injury alleged” and have “intentionally” deprived the

plaintiff of a federally protected right. Board of Cnty. Comm’rs v. Brown, 520 U.S.

397, 404–05 (1997). Local governing bodies can be sued under Section 1983 only

where an official policy or custom causes the alleged constitutional violation. Johnson

v. Hardin Cnty., 908 F.2d 1280, 1285 (6th Cir. 1990) (citing Monell, 436 U.S. at

690–91).

An official policy includes “a policy statement, ordinance, regulation, or

decision officially adopted and promulgated . . . .” Johnson, 908 F.2d at 1285 (quoting

Monell, 436 U.S. at 690). In contrast, a custom “has not received formal approval

through . . . official decisionmaking channels.” Id. (quoting Monell at 690–91).

“Before a custom can be the basis for a civil rights violation, the custom must be ‘so

permanent and well settled as to constitute a ‘custom or usage’ with the force of law.’”

O’Brien v. City of Grand Rapids, 23 F.3d 990, 1004 (6th Cir. 1994) (quoting Feliciano

v. Cleveland, 988 F.2d 649, 655 (6th Cir. 1993) (quoting Monell, 436 U.S. at 691)).

Under Monell and its progeny, there are four ways a plaintiff can demonstrate a

policy or custom that could allow for municipal liability:

(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.

Lipman v. Budish, 974 F.3d 726, 747 (6th Cir. 2020) (quoting Burgess, 735 F.3d at

478).

The City argues that it is entitled to summary judgment on Plaintiff’s Monell

claim because there is no evidence of an underlying constitutional violation (ECF No.

49, PageID #440) and because Mr. Remy’s conduct cannot be found to shock the

conscience (Id., PageID #441–42). In opposition to the City’s motion, Plaintiff argues

that Mr. Remy acted with deliberate indifference and that there is a genuine issue of

material fact as to whether he had authority from the City sufficient to create liability

for his actions. (ECF No. 52, PageID #613.)

I.D.1. Underlying Constitutional Violation

For the reasons explained above, a reasonable jury could find that the

disclosure of the information at issue violated Sgt. Doe’s informational privacy rights

the federal Constitution protects. Accordingly, the Court need not address the City’s

argument that no underlying constitutional violation occurred further.

I.D.2. Deliberate Indifference

Initially, the City argued that Plaintiff’s Monell claim must fail because there

is no evidence of a constitutional violation that “shocks the conscience.” But as

Plaintiff correctly points out, the “shocks the conscience” standard does not apply

where cases do not involve excessive force or physical injury. (ECF No. 52, PageID

#611 (citing Waters v. Drake, 105 F. Supp. 3d 780, 799–800 (S.D. Ohio 2015).) In

Waters, the court conducted an extensive review of case law regarding the proper

standard that applies to governmental conduct for a Monell claim that does not

involve the use of physical force. Waters, 799–800. The Court agrees with the

conclusion of the Waters Court that the “‘shocks the conscience’ standard should be

limited to the exclusive context of cases involving the use of physical force.” Id. at

801; see also Lininger v. St. Mary’s City Sch. Dist. Bd. of Educ., No. 3:16-cv-2853, 2019

WL 188050, at *10 (N.D. Ohio, Jan. 14, 2019).

Defendants ultimately agree that the more appropriate standard is one of

deliberate indifference. (ECF No. 54, PageID #643.) “‘Deliberate indifference’ is the

reckless disregard of a substantial risk of serious harm; mere negligence or even gross

negligence, will not suffice.” Santiago v. Ringle, 734 F.3d 585, 591 (6th Cir. 2013).

The record before the Court shows that the City’s policy—whether officially or

through Mr. Remy’s custom or practice—for reviewing and redacting files in response

to public records requests is limited to consideration of State law, specifically Ohio’s

Public Records Act, and some federal laws such as HIPAA, but fails to account for the

well-established constitutional right of informational privacy. The City maintains a

policy about redaction in a personnel manual. (ECF No. 53, PageID #629.) Mr. Remy

testified that the City’s policy is to not redact a personnel file where an officer

requests his own file, but to redact where an officer requests another’s file. (ECF

No. 43-3, PageID #305; ECF No. 57-3, PageID #721.) When reviewing Plaintiff’s

personnel file after receiving Officer Nixon’s request for it, Mr. Remy testified that

“my policy was to read . . . police personnel documents so that I could properly redact

based upon, on [Section] 149.43 and, and the—and the exemptions or exceptions to

it.” (Id., PageID #309.) As for the disclosure at issue, Remy testified that “[t]here

was nothing in this statement that indicated to me that it fit into any exception within

the Public Records Act.” (Id., PageID #312; ECF No. 57-3, PageID #729; see also ECF

No. 53, PageID #632.) For that reason, he did not redact the information.

Mr. Remy’s testimony confirms that the City disclosed Plaintiff’s personnel file

under Ohio’s Public Records Act, without regard to the federal Constitution’s

protections for informational privacy. Therefore, the record creates a genuine issue

of material fact whether Mr. Remy’s practice of reviewing and redacting, or failing to

do so, rises to the level of a policy or custom of the City and whether his failure to

consider the constitutional limitations on disclosure was an act of deliberate

indifference to Plaintiff’s constitutional rights. Accordingly, the City is not entitled

to summary judgment on Plaintiff’s Monell claim.

I.D.3. Mr. Remy’s Policymaking Authority

In opposition to the City’s motion, Plaintiff also argues that the record presents

a genuine dispute of material fact whether Mr. Remy had authority from the City

sufficient to set City policy and thereby create municipal liability for his actions.

(ECF No. 52, PageID #613.) In reply, the City maintains that it cannot be liable

under Monell because of an absence of evidence that Mr. Remy had sufficient

authority to establish municipal policy. (ECF No. 54, PageID #645.) Although the

parties argue the issue as a matter of fact, “[w]hether a governmental official is vested

with the authority to make official policy is a question of state law.” DePiero v. City

of Macedonia, 180 F.3d 770, 786 (6th Cir. 1999) (citing Jett v. Dallas Indep. Sch. Dist.,

491 U.S. 701, 737 (1989)). The City cites no statute or case law that final authority

for the policy or practice at issue did not rest with Mr. Remy. Moreover, review of the

record on summary judgment shows that Mr. Remy testified several times about the

City’s policy for review, redaction, and disclosure of an employee’s personnel file.

(See, e.g., ECF No. 57-3, PageID #721–22, #726.) At no time did Mr. Remy even

suggest he did not have the type of decision-making authority that might avoid

Monell liability for the City. To the contrary, he described the City’s policy as “my

policy,” suggesting (at least when construed in favor of the non-movant) that he had

the authority to bind the City in this regard. Based on the record, including

Mr. Remy’s deposition testimony, the City is not entitled to a summary judgment on

this basis.

II. False Light

Plaintiff concedes that this claim fails in light of the Ohio Supreme Court’s

decision in Summers, 2020-Ohio-5585, ¶ 41. (ECF No. 52, PageID #598, #614; ECF

No. 58, PageID #779, #795.) Accordingly, the Court need not consider the claim. Cf.

Maxwell v. United States, 617 F. App’x 470, 477 (6th Cir. 2015).

III. Invasion of Privacy/Public Disclosure of Private Facts

Plaintiff concedes that this claim fails in light of the Ohio Supreme Court’s

decision in Summers v. Fox, 2020-Ohio-5585, ¶ 41. (ECF No. 52, PageID #598 & #614;

ECF No. 58, PageID #779, #795.) Accordingly, the Court need not consider it.

IV. Slander

Plaintiff concedes that this claim fails in light of the Ohio Supreme Court’s

decision in Summers, 2020-Ohio-5585, ¶ 41. (ECF No. 52, PageID #598 & #614; ECF

No. 58, PageID #779, #795.) Accordingly, the Court need not consider it.

V. Intentional Infliction of Emotional Distress

Plaintiff alleges that Officer Nixon intentionally caused her to suffer emotional

distress. (ECF No. 27, ¶¶ 53–57, PageID #146.) Plaintiff and Officer Nixon each

move for summary judgment on this claim. (ECF No. 43-1, PageID #261; ECF No.

57-1, PageID #676; ECF No. 50-1, PageID #470; ECF No. 51-1, PageID #507.) To

succeed on this claim, Plaintiff must prove four elements under Ohio law:

(1) the defendant intended to cause emotional distress or knew or

should have known that its conduct would result in serious emotional

distress to the plaintiff;

(2) defendant’s conduct was outrageous and extreme beyond all

possible bounds of decency and was such that it can be considered as

utterly intolerable in a civilized community;

(3) defendant’s conduct was the proximate cause of plaintiff’s psychic

injury; and

(4) plaintiff’s emotional distress was serious and of such a nature

that no reasonable person could be expected to endure it.

Flagg v. Staples the Office Superstore E., Inc., 138 F. Supp. 3d 908, 919–20 (N.D. Ohio

2015) (quoting Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1110 (6th

Cir. 2008) (quoting Ekunsumi v. Cincinnati Restoration, Inc., 120 Ohio App.3d 557,

698 N.E.2d 503, 506 (Ohio Ct. App. 1997)).

Plaintiff argues that she has adduced sufficient evidence on each element and

is entitled to summary judgment. (ECF No. 43-1, PageID #261–64; ECF No. 57-1,

PageID #676–79.) Officer Nixon argues that he could not have engaged in outrageous

conduct merely by disclosing truthful information available as a public record and

that he could not have acted knowingly, intentionally, or maliciously. (ECF No. 50-1,

PageID #470–73; ECF No. 51-1, PageID #507–10.) The crux of the parties’

disagreement is whether liability for intentional infliction of emotional distress

attaches to disclosure of true information that was voluntarily disclosed by Plaintiff

then incorporated into a public record and lawfully obtained pursuant to a public

records request. Officer Nixon argues he could not have had the requisite intent or

engaged in outrageous conduct where he merely disclosed information available in

Plaintiff’s personnel file that any member of the public could have requested and

viewed. Plaintiff counters that information lawfully acquired can still be put to

actionable use and that Officer Nixon used her personnel file tortiously.

This formulation of the dispute misses the mark somewhat because the

disclosure at issue on its face involves the sexual conduct of a minor—whether

involving childhood sexual abuse or not. Therefore, the question becomes whether

Officer Nixon’s disclosure to his co-workers of information involving his supervisor’s

sexual conduct as a minor constitutes a tort even if Officer Nixon did not know

Mr. Remy’s production of it may not have been proper.

V.A. Outrageousness

Because the parties focus on the element of outrageousness, the Court begins

its analysis there. Ohio defines extreme and outrageous conduct narrowly, generally

requiring a “recitation of the facts to an average member of the community [to] arouse

his resentment against the actor, and lead him to exclaim, ‘Outrageous!’” Flagg, 138

F. Supp. 3d at 920 (quoting Yeager v. Local Union 20, 6 Ohio St. 3d 369, 374–75, 453

N.E.2d 666 (1983)). “[M]ere insults, indignities, threats, annoyances, petty

oppressions or other trivialities” do not suffice. Yeager, 6 Ohio St. 3d at 375. To be

liable, the conduct must have been “so outrageous in character, and so extreme in

degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious,

and utterly intolerable in a civilized community.” Flagg, 138 F. Supp. 3d at 919

(quoting Long v. Ford Motor Co., 193 Fed. App’x. 497, 503 (6th Cir. 2006)).

Officer Nixon believed he lawfully obtained the information about Sgt. Doe he

disclosed pursuant to a public records request. He shared that information with a

sergeant who assisted Officer Nixon in making the public records request and who

asked Officer Nixon about the contents of Plaintiff’s personnel file. He also shared

the information with two other officers and some of his personal friends outside the

police department. After one of the officers advised Officer Nixon not to share the

information with anyone else at work, he heeded that advice and only shared the

information with a few personal friends or family members. Officer Nixon also

testified that he shared the information out of concern that Plaintiff was unfit to

perform her professional duties. A reasonable jury might credit that explanation or

find it pretextual. A reasonably jury might also find that Officer Nixon deliberately

circulated the information as part of his escalating feud with Sgt. Doe.

Officer Nixon maintains that obtaining information through a public records

request defeats a claim for intentional infliction of emotional distress as a matter of

law. For this proposition, he relied on two cases. First, in Readylink Healthcare v.

Lynch, No. 04-55890, 2006 U.S. App. LEXIS 17694, at *5 (9th Cir. July 13, 2006), the

court agreed that, under California law, “the publication of true and public-record

information is not outrageous conduct within the meaning of cases interpreting the

tort of intentional infliction of emotional distress.” This statement came in the

context of a business dispute, the particular facts of which the opinion does not

provide. Therefore, it is of little persuasive value. Second, Officer Nixon argues he

lacked information about the nature of the information giving rise to Plaintiff’s claim,

citing Burel v. Burel, No. L-10-1057, 2010-Ohio-6216, ¶ 48 (Ohio Ct. App. 2010). That

case involves a paternity dispute and factually has no bearing where, as here, the

information on its face involves the sexual conduct of a minor.

Moreover, the use of even true information lawfully obtained remains subject

to background legal constraints, such as defamation, however narrowly those limits

might apply. The tort of intentional infliction of emotional distress is another.

Plaintiff points to Hale v. City of Dayton, No. 18800, 2002 WL 191588 (Ohio Ct. App.

Feb. 8, 2002), as an example of conduct less outrageous than Officer Nixon’s, but

which the court found sufficient for a claim of intentional infliction of emotional

distress to survive summary judgment. (ECF No. 43-1, PageID #263; ECF No. 57-1,

PageID #678.) In Hale, the defendant downloaded an internet image of an obese

woman who resembled a coworker, the plaintiff, and showed it to at least fifteen other

coworkers over two days, while making comments that he thought the image

resembled plaintiff. Hale, 2002 WL 191588, at *1. The court determined that the

plaintiff presented sufficient evidence that the defendant’s conduct was extreme and

outrageous to overcome summary judgment on her claim for intentional infliction of

emotional distress. The court reasoned that the defendant showed the photo to more

than a dozen coworkers, made statements suggesting that the obese woman in the

photo looked like the plaintiff, and knew that his conduct would embarrass the

plaintiff in their “male-dominated body-conscious” work environment (a fire

department). Id. at *7.

Here, Officer Nixon showed or verbally disclosed the information to one higher-

ranking sergeant and two fellow officers in the workplace. Even accounting for some

of the personal acquaintances with whom Officer Nixon shared the information, the

total number of disclosures was less than in Hale. Further, there is no evidence that

Officer Nixon made suggestive or embarrassing comments when he disclosed the

information. To the contrary, Officer Nixon testified that he shared the information

because it gave him concern about Plaintiff’s fitness to perform her job duties.

On the other hand, Hale did not involve the disclosure of the sexual conduct of

a minor. And it involved the disclosure of public information lawfully obtained.

Although the disclosure here does not necessarily involve childhood sexual abuse, on

its face it reveals the sexual conduct of a minor. Disclosing such conduct to colleagues

and friends could be considered extreme and outrageous, that is, going “beyond all

possible bounds of decency.” Flagg, 138 F. Supp. 3d at 919. A reasonable jury could

find as much, even if Officer Nixon’s concern about Plaintiff’s fitness as a police officer

was genuine. Perhaps a jury will not find liability, as is likely. But the disputes of

fact in this record would permit a jury to find that the disclosure of the sexual conduct

of a minor to co-workers goes beyond the bounds of decency. Accordingly, Plaintiff’s

claim does not fail as a matter of law on the outrageousness element.

V.B. The Other Elements

Nor do the other elements of the claim (intent, causation, and injury) merit

summary judgment for Defendant on the facts and circumstances presented.

V.B.1. Intent

“The tort of intentional infliction of emotional distress does not require proof

of specific intent or the use of a strict intent standard.” Kovacs v. Bauer, 118 Ohio

App. 3d 591, 596, 693 N.E.2d 1091, 1094 (Ohio Ct. App. 1996) (citing Potter v. Troy,

78 Ohio App. 3d 372, 382, 604 N.E.2d 828 (Ohio Ct. App. 1992)). Officer Nixon argues

that, because the disclosure related to Plaintiff’s fitness for duty as a police officer,

she is a public official, and her claim is subject to the actual malice standard. (ECF

No. 50-1, PageID #472; ECF No. 51-1, PageID #510.) Police officers acting in their

official capacities are public officials and are only protected from public discussion

and criticism where the published statement was made with actual malice. Bross v.

Smith, 80 Ohio App. 3d 246, 608 N.E.2d 1175, 1180 (Ohio Ct. App. 1992) (citing

Mueller v. Storer Commc’ns, 46 Ohio App. 3d 57, 58, 545 N.E.2d 1317, 1319 (Ohio Ct.

App. 1988)). Actual malice requires “knowledge that [the published statement] was

false or [made] with reckless disregard of whether it was false or not.” Bross, 608

N.E.2d at 1179–80 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 281

(1964)). Plaintiff concedes that she might be a public figure when acting within the

scope of her official duties, but argues that whether Officer Nixon’s disclosure related

to her fitness as a police officer presents a disputed factual issue. (ECF No. 52,

PageID #616; ECF No. 58, PageID #797.)

Officer Nixon testified that he disclosed the information in Sgt. Doe’s personnel

file out of genuine concern that she was not fit as a police officer. In that event, Officer

Nixon argues that a higher standard requiring malice applies. A jury may well accept

such a rationale for Officer Nixon’s disclosure, but that explanation for the disclosure

presents a dispute of fact. The record also shows that Sgt. Doe and Officer Nixon

had a troubled relationship at work and engaged in an escalating tit-for-tat pattern

that could lead a jury to view the disclosure as intentionally embarrassing or

harassing and unrelated to good-faith concerns about Sgt. Doe’s fitness for duty.

Further, the face of the disclosure reveals a co-worker’s sexual conduct while a minor,

which is highly personal and sensitive. On these facts, reasonable finders of fact

could differ as to whether Officer Nixon knew or should have known his disclosure of

the information would cause Plaintiff emotional distress and whether he acted with

the requisite intent.

V.B.2. Causation and Injury

Defendant’s conduct must also have caused Plaintiff’s psychic injury and the

injury suffered must be so serious “that no reasonable person could be expected to

endure it.” Flagg, 138 F. Supp. at 919–20 (quoting Talley, 542 F.3d at 1110). “The

Ohio Supreme Court has described ‘serious emotional distress’ as ‘emotional injury

which is both severe and debilitating . . . [it is] found where a reasonable person,

normally constituted, would be unable to cope adequately with the mental distress

engendered by the circumstances of the case.’” Torres v. White, 46 F. App’x 738, 756

(6th Cir. 2002) (quoting Paugh v. Hanks, 6 Ohio St. 3d 72, 78, 451 N.E.2d 759 (1983)).

A reasonable jury could find that Officer Nixon’s disclosure caused Plaintiff to suffer

serious mental anguish. After the disclosure, Plaintiff testified that she could not

work for six months, suffered depression, sought counseling, and required

medication.

V.C. Question of Law or Question of Fact

In Ohio, “[i]t is well accepted that intentional infliction of emotional distress

claims may entirely appropriately be dealt with on summary judgment or in a motion

to dismiss.” Cummings v. Greater Cleveland Reg’l Transit Auth., 88 F. Supp. 3d 812,

821 (N.D. Ohio 2015) (quoting Miller v. Currie, 50 F.3d 373, 377–78 (6th Cir. 1995)).

For example, “it is well-established under Ohio law that discrimination, by itself, is

insufficient to support an intentional infliction of emotional distress claim.” Fuelling

v. New Vision Med. Labs. LLC, 284 Fed. App’x 247, 261 (6th Cir. 2008) (citation and

quotation omitted). The same is true where a plaintiff merely alleges “[t]ermination

of employment, without more, . . . even when [sic] the employer knew that the

decision was likely to upset the employee.” Jones v. Wheelersburg Local Sch. Dist.,

2013-Ohio-3685, ¶ 42 (quotation and citation omitted). Similarly, a claim that the

defendant falsely accused the plaintiff of a crime also does not constitute extreme and

outrageous conduct. Id., ¶ 43 (citation omitted).

But ruling on an intentional infliction of emotional distress claim as a matter

of law is not always appropriate. See Miller, 50 F.3d at 378 (reversing district court’s

dismissal of claim). Plaintiff has not alleged extreme and outrageous conduct based

solely on discrimination or termination of employment or other conduct that has been

determined, as a matter of law, to fall short of the high standard for the tort. For the

reasons discussed, the Court cannot determine as a matter of law whether Officer

Nixon’s conduct was extreme and outrageous, beyond all bounds of decency, or made

with the requisite intent on the record before it. Accordingly, those issues are factual

ones for a jury to resolve, and neither Plaintiff nor Defendant is entitled to a summary

judgment on this claim.

VI. Consortium

Loss of consortium is a derivative claim that cannot stand on its own. See Jolly

v. Dynegy Miami Fort, LLC, 500 F. Supp. 3d 659, 673 (S.D. Ohio 2020) (citing Paugh

v. R.J. Reynolds Tobacco Co., 834 F. Supp. 228, 232 (N.D. Ohio 1993)) (dismissing

claims for pain and suffering, loss of consortium, and punitive damages because

“[t]hose claims only succeed if” the substantive claims survive). Because some of

Plaintiff Jane Doe’s claims survive, so too does the derivative consortium claim to the

same extent.

CONCLUSION

The Court DENIES Plaintiff’s motion for summary judgment. The Court

GRANTS IN PART AND DENIES IN PART the City’s and Mr. Remy’s motion for

summary judgment. Specifically, the Court GRANTS Mr. Remy summary judgment

on the claims brought against him in his official capacity and DENIES summary

judgment to Mr. Remy individually and to the City. The Court GRANTS IN PART

AND DENIES IN PART Defendant Nixon’s motion for summary judgment.

Specifically, the Court GRANTS Defendant Nixon’s motion on Plaintiffs’ claims other

than intentional infliction of emotion distress and DENIES Defendant’s motion with

respect to that claim. The Court DENIES AS MOOT Defendant the City’s and

Mr. Remy’s motion for judgment on the pleadings.

SO ORDERED.

Dated: December 27, 2021

J. Philip Calabrese

United States District Judge

Northern District of Ohio

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