Colorez v. City of Cincinnati, Ohio

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

GARY COLOREZ,

Plaintiff,

v. Case No. 1:17–cv–737

JUDGE DOUGLAS R. COLE

CITY OF CINCINNATI,

et al.,

Defendants.

OPINION AND ORDER

In this action, Gary Colorez, a public employee, claims he was terminated in

retaliation for exercising his First Amendment rights. Now before this Court is a

Motion for Summary Judgment (Doc. 21) by the three defendants—the City of

Cincinnati and two of its employees, Maraskeshia Smith and Harry Black (the “City

Defendants”). The Court heard oral argument on January 22, 2020. For the following

reasons, the Court GRANTS the Defendants’ Motion and DISMISSES WITH

PREJUDICE the remaining claim against the City Defendants.

FACTUAL BACKGROUND

A. Colorez Begins Employment with the City of Cincinnati.

The City of Cincinnati (the “City”) hired Plaintiff Gary P. Colorez (“Colorez”)

on June 18, 2017, as the Superintendent of the Neighborhood Operations Division

(“NOD Superintendent”), which is part of the City’s Public Services Department,

commonly called “Sanitation.” (Defs.’ Proposed Undisputed Facts (“Defs.’ Prop.

Facts”), ¶ 1, Doc. 21-1, #4411). Colorez’s job duties required him to manage City

functions, including sanitation, greenspace, trash collection, and lot abatement. (Id.

at ¶ 7). Colorez understood his “job was to make sure [trash collection and greenspace

maintenance] was done efficiently.” (Id.). While employed, Colorez reported directly

to Joel Koopman (“Koopman”), the Deputy Director of Public Services, who in turn

reported to Defendant Maraskeshia Smith (“Smith”), the Director of Public Services.

(Colorez Dep., 15–16, Doc. 20, #224–25). Smith reported to the other individual

Defendant, then-City Manager Harry Black (“Black”).

Colorez’s official job description and responsibilities were detailed in the

position’s Class Specification (a form of job description for City jobs). (Colorez Dep.

Ex. 2, Doc. 20-2, #379–83). Colorez maintains he did not see this job description before

being hired, and disputes whether some of the functions set forth in that description

were in fact part of his job. (Colorez Dep. at 33–35, #242–44). During his deposition,

though, he admitted to exercising many of the listed duties, including oversight,

professional development, labor, contract interpretation, and payroll as it related to

his department. (See id. at 33–37, #242–46). Colorez stated he “was supposed to work

closely with the director and the deputy director … [and was] responsible for

development and presentation of information … to a certain extent.” (Id. at 37, #246).

As more fully discussed below, this dispute regarding the scope of Colorez’s job

duties potentially matters to this Motion, in that Colorez is claiming retaliatory

discharge in violation of his First Amendment rights. The First Amendment offers

1 Pin citations are to the corresponding PageID number.

substantially less protection for job-related speech by a public employee (which this

Opinion calls “employee-speech”) than for non-job-related speech by that same

employee (referred to here as “citizen-speech”). Accordingly, the narrower the scope

of Colorez’s job, the more likely that the speech at issue falls into the latter category,

and thus the more likely it can serve as the basis for a First Amendment retaliation

claim.

B. Colorez Raises Concerns About City Practices.

During his short tenure with the City, Colorez expressed several concerns

about various City practices. He believes that these comments, whether individually

or cumulatively, provided the impetus for his termination. His concerns related to the

City’s: (1) recycling program; (2) procurement system; (3) greenspace mowing;

(4) street sweeping; and (5) abandoned lot abatement. (Compl., ¶ 12–21, Doc. 1, #6-8).

Given the First Amendment framework that applies, due consideration is warranted

as to the relationship, if any, between each issue and Colorez’s job. To ascertain that,

this Court must first explore more fully the nature of each of the listed concerns and

the manner in which Colorez raised them.

Colorez was concerned with how the City conducted its metal recycling

program. (Colorez Dep. at 96, #305). Namely, he believed the City should be receiving

money for its metal recyclables rather than paying a vendor to haul away and recycle

metal waste. (Id. at 95, #304). Colorez raised this issue during a meeting he had with

Sue Magness, who Colorez recalled as the City’s “Director of Environmental

Services.” (Id. at 95–96, #304–05). When Magness told him to look into the issue and

call her back, Colorez inquired to Chris Callahan (a fellow employee), and then

pressed the matter further with Smith, his supervisor two steps up. (Id. at 96–97,

#305–06). He and Smith discussed the recycling program “within that week, [or a]

couple days [of him learning about the issue] … but it had to be maybe late July, early

August somewhere in there.” (Id. at 97–98, #306–07). Their discussion occurred “in

the hallway” of the “Public Services Hopple Street building.” (Id. at 98, #307).

Colorez also took issue with the City’s procurement methods, specifically the

use of BFX, LLC (“BFX”). (Colorez Dep. at 62–64, #271–73). BFX provided the City

with products that Colorez and his team used in connection with their work for the

City. (Id. at 55–56, #264–65). The BFX program was a pilot program, attempting to

centralize and streamline City purchasing and third-party facilities services. (Black

Dep. Ex. 6, Doc. 18-6, #133–59). Colorez thought that the prices BFX charged the City

were exorbitant; he believed procurement through other means, including his

employees being able to purchase materials directly, would save money for both his

department and the City. (Colorez Dep. at 75–77, #284–86). Specifically, he raised

concerns about how much the City was paying for paper towels (Compl. at ¶ 21, #7–

8), paint, (Colorez Dep. at 64–65, #273–74), garbage can liners, (id. at 54–56, #263–

64), other “inferior goods,” (id. at 50–51, #259–60), and service fees to pressure wash

a garage (id. at 76, #285).

Colorez asserts that he took these concerns directly to Smith, (id. at 56–57, 77,

#265–66, 286), but it appears from the record he only raised them with her orally, as

no one has pointed to any written documentation reflecting these concerns. Colorez

could not remember exactly when his conversation with Smith occurred, but he

thought it was roughly “during the time when [he] was speaking with [Smith] about

all [his] concerns, the three or four occasions [they] had together.” (Id. at 77, #286).

These conversations, some of which also included Koopman, occurred at the Hopple

Street Building, during both a staff meeting and in one-off conversations. (Id. at 57–

58, #266–67).

Colorez was also troubled by the quality and payment structure for contracted

greenspace mowers, a system he believed promoted waste. (See id. at 83, #292). These

contractors were responsible for mowing and maintaining particular City

greenspaces, including parks, which fell under Colorez’s supervision. (Id. at 14, 83–

88, #223, 292–97). As Colorez understood it, part of his job was to ensure that grass

on City property was cut in an efficient and cost-effective manner; he believed the

contractors were working in opposition to this goal. (Id. at 16, #225). Based on

concerns workers in his department raised, Colorez investigated this issue and

discovered that the contract mowers were not completing work, but were submitting

invoices, which the City often paid without investigation. (Id. at 88–89, #297–98). As

citizen complaints about overgrown grass accumulated, Colorez instructed John

Erwin (a City employee) to cross-reference those complaints with the lots assigned to

the contract mowers. (Id. at 88–89, #297–98). Discovering overlap, Colorez took this

issue to Smith. (Id. at 84–85, #293–94).

Colorez similarly questioned the efficiency of contracted street sweepers who

cleaned City streets. (Id. at 53, #262). Colorez claimed he knew the street sweepers

were not performing their duties because he lived downtown. (Id.). He confirmed his

suspicions when he reviewed the sweepers’ contract, which he requested via email

from Robert Armacost (a City employee). (Id. at 78–79, #287–88). Colorez then

reviewed GPS tracking data (or lack thereof) that was “supposed to be attached with

the [streetsweeper] invoices.” (Id. at 80, 82, #289, 291). Sensing inefficiency, coupled

with a lack of corroborating GPS data, Colorez concluded his employees could do a

better job. (Id. at 79–80, #288–89). He discussed this idea with Smith, to whom he

suggested that “if the City would sweep [the streets at issue], that we would save a

huge amount of money and it would get done on a nightly basis.” (Id. at 51, 53–54,

83, #260, 262–63, 292). After being rebuffed, he voiced this same concern during a

staff meeting. (Id. at 79–80, #288–89).

Finally, Colorez took issue with various costs the City incurred for abandoned

lot abatement. (Id. at 89–91, #298–300). After analyzing the before and after photos

of a typical abatement project, Colorez determined the small amount of work

completed “did not justify the … exorbitant cost.” (Id. at 92, #301). Then, after

reviewing the bills sent to the City from the private contractors, Colorez compared

them to what he believed it would cost for his employees to do the same work and he

concluded the latter would be more efficient. (Id. at 93–94, #302–03). He again went

to Smith. (Id. at 91, #300).

C. Colorez’s Employment Ends and He Sues the City.

In the end, Colorez’s tenure with the City lasted approximately ten weeks;

Smith terminated his employment on September 8, 2017. (Black Dep. Ex. 3, Doc. 18-3,

#116). Colorez believes his inquiries about recycling, procurement, mowing, street

sweeping, and lot abatement were the impetus for his discharge.

Based on this belief, on November 3, 2017, Colorez filed his Complaint

asserting five claims, all predicated on different theories of liability, but all related to

his tenure with the City. These claims included wrongful termination in violation of

Ohio public policy (Count One); violation of Ohio’s whistleblower protection laws

(Count Two); abuse of power as to Black and Smith (Count Three); and two § 1983

claims: one for retaliatorily discharge in violation of the First Amendment (Count

Four), and the other asserting the City Defendants violated his substantive Due

Process rights under the Fourteenth Amendment (Count Five). (Compl. at ¶¶ 25–50,

#8–11).

After answering, the City Defendants moved for judgment on the pleadings as

to all five claims. (Doc. 10). On August 3, 2018, Judge Black, who was then assigned

to the case, issued an Order granting the motion in part. (Doc. 14). Specifically, Judge

Black granted the City Defendants’ motion as to Counts One, Two, Three and Five,

but denied the motion as to Count Four, the First Amendment allegation, because

the Complaint did not clearly indicate whether Colorez’s speech was made pursuant

to his official duties. (Id. at #86–87). With discovery now complete, Defendants ask

this Court to revisit this remaining question.

PENDING MOTION

In their Motion for Summary Judgment (Doc. 21), the City Defendants argue

Colorez’s claim fails as a matter of law, either on the merits or on qualified immunity

grounds. On the merits, they contend that there is no genuine dispute that Colorez’s

speech was employee-speech, and thus his termination, whether in retaliation for

that speech or not, cannot form the basis for a First Amendment claim. Alternatively,

they argue that, even if a constitutional violation occurred, under Monell there can

be no municipal liability for the City, and that Black and Smith are individually

entitled to qualified immunity.

DISCUSSION

A. Standard of Review on Summary Judgment.

Summary judgment is proper “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). The burden is on the moving party to conclusively

show no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986); Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994). Once the

movant presents evidence to meet its burden, the nonmoving party may not rest on

its pleadings, but must come forward with significant probative evidence to support

its claim. Celotex, 477 U.S. at 324; Lansing Dairy, 39 F.3d at 1347.

This Court does not have the responsibility to sua sponte search the record for

genuine issues of material fact. Betkerur v. Aultman Hosp. Ass’n, 78 F.3d 1079, 1087

(6th Cir. 1996); Guarino v. Brookfield Twp. Trs., 980 F.2d 399, 404–06 (6th Cir. 1992).

The burden falls upon the nonmoving party to “designate specific facts or evidence in

dispute.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986). If the

nonmoving party fails to make the necessary showing for an element upon which it

has the burden of proof, the moving party is entitled to summary

judgment. Celotex, 477 U.S. at 323.

Whether summary judgment is appropriate depends upon “whether the

evidence presents a sufficient disagreement to require submission to a jury or

whether it is so one-sided that one party must prevail as a matter of law.” Amway

Distribs. Benefits Ass’n v. Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir.

2003) (quoting Anderson, 477 U.S. at 251–52). In sum, Colorez, at this stage, must

present some “sufficient disagreement” which would necessitate submission to a jury.

See Moore v. Phillip Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir. 1993) (quoting

Anderson, 477 U.S. at 251–52). In making that determination, though, this Court

must view the evidence in the light most favorable to the non-moving party, here

Colorez. See Cox v. Ky. Dep’t of Transp., 53 F.3d 146, 150 (6th Cir. 1995) (“In arriving

at a resolution, the court must afford all reasonable inferences, and construe the

evidence in the light most favorable to the nonmoving party.”); Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

The sole remaining claim—retaliatory termination in violation of the First and

Fourteenth Amendments—arises under 42 U.S.C. § 1983. This poses two separate

yet related issues for summary judgment, each requiring its own analysis. First, “[t]o

state a claim under 42 U.S.C. § 1983, a plaintiff must set forth facts that, when

construed favorably, establish (1) the deprivation of a right secured by the

Constitution or laws of the United States (2) caused by a person acting under the

color of state law.” Sigley v. City of Parma Heights, 437 F.3d 527, 533 (6th Cir. 2006).

Second, this Court must address the question of qualified immunity. “Under

the doctrine of qualified immunity, ‘government officials performing discretionary

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

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

a reasonable person should have known.’” Phillips v. Roane Cty., 534 F.3d 531, 538

(6th Cir. 2008) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Accordingly,

“‘[i]n determining whether the government officials in this case are entitled to

qualified immunity, [this Court] ask[s] two questions: First, viewing the facts in the

light most favorable to the plaintiff, has the plaintiff shown that a constitutional

violation has occurred? Second, was the right clearly established at the time of the

violation?” Id. at 538–39 (citing Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th

Cir. 2006)). This Opinion addresses the constitutional question first: determining

whether the public employee speech at issue here is entitled to First Amendment

protection.

B. Colorez’s First Amendment Claim Fails as a Matter of Law.

The First Amendment “guarantees freedom of expression” and prohibits

Congress, and by incorporation state actors, from restricting “the rights of individuals

to speak freely.” U.S. CONST. amend. I; see Gitlow v. People of State of N.Y., 268 U.S.

652, 666 (1925) (incorporating the First Amendment). The First Amendment protects

speech rights of a public employee. As relevant here, a public employer cannot

retaliate against an employee based on the employee’s exercise of his or her First

Amendment rights. If a person acting under color of state law violates this

prohibition, that gives rise to a cause of action under § 1983. See Okla. City v. Tuttle,

471 U.S. 808, 822–23 (1985).

Here, Colorez asserts claims against Black and Smith in both their individual

and official capacities. The latter claims, however, are treated as claims against their

employer, the City of Cincinnati. See Will v. Mich. Dep’t of State Police, 491 U.S. 58,

71 (1989) (noting official capacity § 1983 claims are claims against the official’s office).

Thus, the official-capacity claims against the two merge into the claim against the

City. See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 690, n.55 (1978)

(“[O]fficial capacity suits … represent only another way of pleading an action against

an entity of which an officer is an agent.”); Everson v. Leis, 556 F.3d 484, 493 n.3 (6th

Cir. 2009) (collecting cases). Accordingly, this Court starts with the

individual-capacity claims against Black and Smith, and then turns to the claim

against the City.

1. Not all public employee-speech has First Amendment protection;

rather, such protection is reserved for citizen-capacity speech.

To prevail on his First Amendment retaliation claim against Black and Smith

for terminating his employment, Colorez must prove “(1) he was engaged in a

constitutionally protected activity; (2) he was subjected to adverse action or deprived

of some benefit; and (3) the protected speech was a ‘substantial’ or ‘motivating factor’

in the adverse action.” Haddad v. Gregg, 910 F.2d 237, 243 (6th Cir. 2018) (citation

omitted). Colorez maintains he engaged in “constitutionally protected” speech, and

that this speech was the motivating factor for his termination. But because the speech

at issue occurred in the context of Colorez’s public employment, the First Amendment

analysis is somewhat different.

“When a citizen enters government service, the citizen by necessity must

accept certain limitations on his or her freedom.” Garcetti v. Ceballos, 547 U.S. 410,

418 (2006). While a public employee does not shed their First Amendment rights

merely because of their government employment, the First Amendment’s protection

is not as robust as it is in other contexts. In particular, public employee speech

receives First Amendment protection only when the employee “speak[s] as a citizen

addressing matters of public concern.” Id. at 417 (citing Pickering v. Bd. of Educ. of

Twp. High Sch. Dist. 205, Will Cty., 391 U.S. 563, 568 (1968)). In adopting this

limitation, the Court sought to accommodate the inherent tension between affording

public employees adequate First Amendment protection without constitutionalizing

every employee grievance. See id. at 420.

This Court’s resolution of the pending motion requires a three-step inquiry

under Garcetti. The first question is whether the speech at issue was made pursuant

to Colorez’s official duties. Garcetti, 547 U.S. at 417. Speech “pursuant to the

employee’s official duties” (i.e., “employee-speech”) is unprotected. Garcetti, 547 U.S.

at 413. But for speech outside that realm, where the public employee is speaking as

a citizen (i.e., “citizen-speech”), the second step asks whether the speech touches on a

matter of public concern. Id. (citations omitted). If Colorez’s speech here was either

(1) employee-speech or (2) citizen-speech that did not involve a matter of public

concern, his First Amendment claim fails as a matter of law. If, however, Colorez can

satisfy both inquiries, the third step requires balancing Colorez’s First Amendment

right with the City’s need to promote “the efficiency of the public services it performs

through its employees.” Id. at 417 (quotation and citation omitted).

Moreover, in making the pursuant-to inquiry, this Court is also mindful that

Garcetti is not the Supreme Court’s last word on the employee-speech/citizen-speech

dichotomy. More recently, in Lane v. Franks, 573 U.S. 228, 240 (2014), the Supreme

Court modified Garcetti’s “official duties” language by adding the term “ordinary.”

That is, under Lane, to take advantage of the “official duties” exception to First

Amendment protection (i.e., to show that the speech is employee-speech outside the

protection of the First Amendment), the public employer must show the speech

related to the employee’s “ordinary job responsibilities.” Id. And the Sixth Circuit, in

an even more recent decision, concluded that the Supreme Court’s intent in adding

the word “ordinary” was to avoid transforming broad swaths of speech by employees

into unprotected employee-speech “simply because it concern[ed] … the speaker’s

public employment.” Mayhew v. Town of Smyrna, 856 F.3d 456, 463 (6th Cir. 2017).

Keeping in mind Garcetti’s tripartite analytic framework, as clarified by Lane, the

Court now turns to whether the speech at issue here can give rise to a First

Amendment claim.

2. Whether public employee-speech is protected is a legal question,

determined by a multi-factor balancing test.

The initial trick in a public-employee First Amendment retaliatory discharge

case is determining whether the speech at issue constitutes “citizen-speech.” As the

Sixth Circuit observed, “[d]etermining whether an employee speaks as a private

citizen or as a public employee can be challenging,” but the “inquiry is a practical

one.” Mayhew, 856 F.3d at 464 (quotation omitted).

As the Court is facing this issue in the context of a motion for summary

judgment, a threshold consideration is whether the “pursuant-to inquiry” (i.e.,

whether Colorez’s speech was made pursuant to his “official duties”) constitutes a

question of law or a question of fact. If the latter, there is a greater likelihood that

jury involvement would be warranted to resolve the issue. The Sixth Circuit has

confirmed though, that, notwithstanding some cases from other Circuits suggesting

otherwise, the pursuant-to inquiry is a legal question that this Court must resolve.

See Mayhew, 856 F.3d at 462–64 (quoting Connick v. Myers, 461 U.S. 138, 148, n.7

(1983)) (“In sum, the district court did not err by concluding that the determination

as to whether Mayhew engaged in protected speech was one of law.”); see also Fox v.

Traverse City Area Pub. Sch. Bd. of Educ., 605 F.3d 345, 350 (6th Cir. 2010) (noting

cases from other circuits, but dismissing them as “irrelevant” on this point).

Actually answering that legal question, however, remains a difficult task.

Despite Garcetti, Lane, and a substantial body of precedent, there is still no

“comprehensive framework for defining the scope of an employee’s duties.” Mayhew,

856 F.3d at 464. Rather, as noted above, courts are to make a “practical” inquiry. See

id. (quoting Garcetti, 547 U.S. at 424). To assist in that endeavor, the Sixth Circuit

has identified several “factors to consider” including: (1) the impetus for the speech;

(2) the setting of the speech; (3) the speech’s audience; and (4) the general subject

matter.2 See Aquilina v. Wrigglesworth, 759 F. App’x 340, 344 (6th Cir. 2018) (citing

Weisbarth v. Geauga Park Dist., 499 F.3d 538, 540–41 (6th Cir. 2007)). In other words,

the court asks “who, where, what, when, why, and how.” Mayhew, 856 F.3d at 464

(collecting cases).

As is often the case with open-ended, multi-factor balancing tests, the guidance

the Weisbarth factors offer can be under-determinative in a given case. While the

factors are clearly stated, the weight and consideration afforded each, and the

manner of resolving conflicts among them, is more ambiguous. That being said, one

recurring theme in Sixth Circuit case law appears to be that employee-speech made

solely “up the chain of command” will not support a First Amendment claim. See

Mayhew, 856 F.3d at 466 (“When a public employee raises complaints or concerns up

the chain of command at his workplace about his job duties, that speech is undertaken

in the course of his job.”); Keeling v. Coffee Cty., 541 F. App’x 522, 527 (6th Cir. 2013)

(holding the speech was not protected because “[m]ost importantly, her speech

pertained to her employment … and was made up the chain of command.”); Fox, 605

F.3d at 350 (holding a teacher’s complaints made directly to her supervisor about

class size were not protected); Burgess v. Paducha Area Transit Auth., 387 F. App’x

538, 545 (6th Cir. 2010) (holding communications made at the workplace and directed

2 These factors are sometimes referred to as the “Handy-Clay” factors. See Henderson v. City of Flint,

751 F. App’x 618, 623–24 (6th Cir. 2018) (“The Handy-Clay factors weigh in favor of concluding that

[the employee’s] report to [the insurer] occurred in her official capacity.”); Handy-Clay v. City of

Memphis, 695 F.3d 531, 539 (6th Cir. 2012). But recently, the Sixth Circuit has also referred to these

factors as the “Weisbarth” factors. Aquilina, 759 F. App’x 340, 344 (6th Cir. 2018) (citing Weisbarth v.

Geauga Park Dist., 499 F.3d 538, 540–41 (6th Cir. 2007)). It is a distinction without a difference; the

latter nomenclature is used here.

to management were not protected); Haynes v. City of Circleville, 474 F.3d 357, 364

(6th Cir. 2007) (“The fact that Haynes communicated solely to his superior also

indicates he was speaking ‘in his capacity as a public employee’”). The Sixth Circuit

has never expressly adopted that position, though, so whether that factor in and of

itself is dispositive is an open question.

3. Applying the Sixth Circuit’s test, Colorez’s speech constituted

employee-speech pursuant to his ordinary job responsibilities.

With the Sixth Circuit’s guidance in hand, the Court now turns to the speech

at issue here. To start, the Court notes that, if the “chain of command” factor is

dispositive, that presents problems for Colorez, as he points to nothing in the record

suggesting he voiced any of the concerns he raised here to anyone but his supervisors

or other City employees. And even if it is not dispositive, a trek through the four

Weisbarth factors and the Sixth Circuit's precedent regarding each, while perhaps

making it a slightly closer call, ultimately leads to the same destination: Colorez’s

speech is unprotected.

Colorez alleges several instances of speech that he says give rise to protection.

More specifically, he cites to concerns he expressed about street sweeping, abandoned

lot abatement, contracted greenspace mowers, metals recycling, and procurement.

This Court addresses each of these in turn.

At oral argument, Colorez conceded, and rightly so, that his concerns as to the

first three topics—street sweeping, abandoned lot abatement, and greenspace

mowing—directly related to matters that were part of his ordinary job duties as the

NOD Superintendent. On these, Garcetti is dispositive, even without reference to

Weisbarth: “[W]hen public employees make statements pursuant to their official

duties, the employees are not speaking as citizens for First Amendment purposes[.]”

Garcetti, 547 U.S. at 421. Thus, Colorez’s speech on those topics cannot support his

First Amendment retaliation claim. Separately, even were that not the case, Colorez

made his comments on these topics “up the chain of command,” which, as noted,

strongly suggests (and arguably even compels) a finding that those incidences of

speech are not protected. See, e.g., Mayhew, 856 F.3d at 466.

Finally, putting that aside and applying the Weisbarth factors, even in the

manner most favorable to Colorez, likewise compels the conclusion that his

allegedly-protected speech on these three topics was actually made pursuant to his

ordinary job duties. In particular, the impetus for the speech was to make the

department he managed more efficient; the setting of the speech was at work; the

speech’s audience was his supervisors or the employees who reported to him; and the

general subject matter related to his job responsibilities. See Weisbarth, 499 F.3d at

540–41. There is simply no way to conclude otherwise on the facts here. Thus, for any

or all of those reasons, Colorez’s speech on those three topics does not support a § 1983

retaliatory termination case.

The remaining two categories of speech on which Colorez relies—his

complaints about the metal recycling program and BFX procurement—require a

closer look at the Weisbarth factors, but the end result is the same. Admittedly, the

first factor—the impetus for the speech—is perhaps equivocal. As to both of these

programs, Colorez argued that the changes he was proposing could save the City

money—for example, on the BFX issue, he testified that he had reported to his

supervisors that direct purchasing could be “a big cost savings to taxpayers.” (Colorez

Dep. at 65, #274). On one hand, an interest in saving the City money certainly seems

consistent with Colorez’s job responsibilities of assisting the City to operate in an

efficient manner, but it is also perhaps consistent, as Colorez argues now, of concerns

he has as a taxpayer about the City’s profligate spending. Thus, this factor is perhaps

a draw.

The next two Weisbarth factors, though, cut strongly in favor of characterizing

his comments here as employee-speech. As for the speech’s setting, Colorez made all

his comments on both of these topics while at work; nothing in the record suggests

otherwise. The audience for Colorez’s comments included Sue Magness, Chris

Callahan, and Smith, all of whom were either City employees or Colorez’s direct or

indirect superiors. Moreover, unlike Aquilina (discussed below), Colorez did not have

some “ultimate [public] audience” in mind. His comments were not made with the

thought, or even the hope, that the person to whom he spoke would inform the public.

And despite now arguing that he had concerns about “corruption” regarding the BFX

purchasing issue, he did not to speak to a reporter, did not write a “Dear Editor” letter

to the Cincinnati Enquirer, and did not publicly raise his concerns at a city council

meeting.3 There are countless ways Colorez could have chosen to speak out, protected

by the First Amendment, but he opted for none of them. These factors weigh strongly

3 The Court does not provide these as examples of actions that would necessarily afford First

Amendment protection, but rather as examples that may have changed the analysis under the

Weisbarth factors.

in favor of finding that his workplace comments constituted employee-speech, rather

than speech entitled to First Amendment protection.

Fourth and finally, subject matter: This is again a closer call, but again tips in

favor of characterizing the speech here as employee-speech. On the BFX procurement

front, there is no dispute that, as the NOD Superintendent, Colorez necessarily

oversaw, instructed, or was involved with procurement in connection with his

ordinary or de facto job duties. (See, e.g., Colorez Dep. at 50–51, 54–56, 64–65, 75–77,

#259–60, 263–64, 273–74, 284–86). Indeed, the principal concerns Colorez expressed

about BFX procurement related to the allegedly exorbitant prices being charged for

products used in his department. That strikes this Court as necessarily job related.

Metal recycling, on the other hand, was neither part of Colorez’s “official duties,” nor

his de facto job responsibilities as NOD Superintendent. But trash collection was

among his official duties and recycling is at least somewhat related to that issue.

Given all of the facts here, a holistic application of the four Weisbarth factors

ineluctably leads to the conclusion that Colorez’s comments on recycling, as well as

his comments on the BFX procurement matter, constitute speech pursuant to his

official capacity as a public employee, not speech as a private citizen. In reaching this

result, the Court is mindful that one concern about multi-factor balancing tests is

that they can often serve as a type of judicial Rorschach test. That is especially true

in close cases, but this is not such a case. Considering the undisputed facts, the speech

here firmly falls on the employee-speech side of the Garcetti divide, and therefore

does not give rise to First Amendment protection.

A review of Sixth Circuit First-Amendment-retaliatory-discharge case law

further confirms this result. In Holbrook v. Dumas, 658 F. App’x 280, 281–83 (6th

Cir. 2016), for example, the court concluded a fire chief’s speech, which consisted of

an email to his firefighters, was unprotected because the email primarily addressed

the department’s potential closure and firefighter job cuts. Affirming summary

judgment in the employer’s favor, the court found Holbrook “communicated … with

fire department employees in furtherance of his responsibilities as Fire Chief.” Id. at

288. In reaching that result, the court noted Holbrook signed the email as “Fire

Chief,” sent the email from his official account, addressed it to fire department

employees, and the content was an employment matter. Id. The who, what, when,

where, why, and how all indicated “Holbrook communicated pursuant to his official

duties,” and “his speech was therefore not protected.” Id. at 289. The district court’s

weighing of the Weisbarth factors supported this conclusion. Id. at 288. What seemed

to particularly drive the court’s decision was that the speech ultimately “owe[d] its

existence to a public employee’s professional responsibilities.” Id. at 288 (quotation

omitted). Given that fact, Holbrook’s claims that he communicated “as a concerned

friend or citizen” did not fly. Id. at 289. Just so here. Colorez’s complaints “owed their

existence” to his professional responsibilities and thus constituted employee-speech.

Moreover, Holbrook is just one example of many cases applying the Weisbarth

factors that ultimately hold speech unprotected when it occurs at work and is related,

even if sometimes loosely, to the employee’s job. See, e.g., Henderson v. City of Flint,

751 F. App’x 618, 622 (6th Cir. 2018) (denying protection to a city administrator

because reporting financial mismanagement to the city’s chief legal officer “bore all

the markers of official action”); Mayhew, 856 F.3d at 464–66 (denying protection to a

wastewater treatment lab supervisor because the speech that he asserted was

protected was actually within his ordinary job duties); Housey v. Macomb Cty., 534 F.

App’x 316, 317–19 (6th Cir. 2013) (denying protection to a court official who was

terminated after reporting misconduct, but whose speech was not protected because

“ensuring compliance with established [employer] polices” was “part of what he, as a

probate court register, was employed to do”) (quotation and citation omitted); Fox,

605 F.3d at 348 (denying protection to a teacher who directed comments to a

supervisor, not the general public); Haynes v. City of Circleville, 474 F.3d 357, 364

(6th Cir. 2007) (denying protection to a police officer tasked with training police dogs

who spoke out about the potential effects of reduced K-9 training). All of these cases

recognize the importance of courts respecting the distinction between

employee-speech and citizen-speech, lest courts end up constitutionalizing the

employee grievance process, thereby interfering with public employers’ ability to

manage their workplaces. Garcetti, 547 U.S. at 420.

To be sure, there are also cases in which the pursuant-to analysis comes out

the other way. But typically that is so only if there is some specific fact that the

employee identifies that serves to cleanly divorce the speech at issue in the particular

case from the public employee’s workplace duties. In Aquilina v. Wrigglesworth, 759

F. App’x 340, 346 (6th Cir. 2018), for example, the Sixth Circuit found that a judge

was engaged in citizen-speech when she permitted a reporter to view a video, largely

because the reporter’s involvement implied an eventual public audience for the video

materials. Similarly, in Boulton v. Swanson, 795 F.3d 526, 533 (6th Cir. 2015), the

Sixth Circuit held that speech by a public employee about departmental training was

citizen-speech, but largely because the speech occurred while the employee was

engaged in labor arbitration and participating in that arbitration as a union leader,

not acting in his typical employee capacity. Finally, in Westmorland v. Sutherland,

662 F.3d 714, 719–20 (6th Cir. 2011), the Sixth Circuit held a fire-rescue diver’s

speech protected because it occurred while he was off-duty, out-of-uniform, and at a

public city council meeting, despite the speech being about policies within his

department. In each of these cases, there was some factor that delineated a clear

breaking point between the employee’s job and the speech at issue.

Here, there is no such clear delineation. This means that Colorez’s speech is

decidedly more like the speech at issue in Weisbarth, Mayhew, Holbrook, Haynes, or

Fox than it is to the speech in Aquilina, Boulton, or Sutherland. Unlike the latter

cases, Colorez has not identified any specific factor clearly divorcing his speech from

his job duties. Accordingly, Colorez has not raised a genuine dispute of material fact

as to Garcetti’s first prong. It is unnecessary, therefore, to determine whether his

speech involved a matter of public concern,4 or to engage in the employee/employer

4 The framework for deciding whether speech relates to a matter of public concern is “not well defined”

either. Snyder v. Phelps, 562 U.S. 443, 452 (quoting San Diego v. Roe, 543 U.S. 77, 83 (2004) (per

curiam)). There are, however, guideposts: “Speech involves matters of public concern when it can be

fairly considered as relating to [1] any matter of political, social, or other concern to the community,

or [2] when it is a subject of legitimate news interest; that is, a subject of general interest and of value

and concern to the public.” Lane v. Franks, 573 U.S. 228, 241 (2016) (quoting Phelps, 562 U.S. at 453).

Separately, Sixth Circuit case law suggests that in addition to falling within one of these two

categories, there is another aspect to the public-concern inquiry. In particular, speech regarding

alleged “breach[es] of public trust” or allegations of corruption are more often than not a “matter of

balancing test.5 As a result, there is no constitutional violation, meaning that Black

and Smith are entitled to summary judgment on the individual-capacity claims

against them.

C. Monell Liability and Qualified Immunity.

With the claims against the individual defendants gone, two issues remain,

but they merit only quick discussion. The first is Colorez’s claim against the City (and

his official-capacity claims against Smith and Black, which, as noted above, are one

and the same with his claim against the City). It is well settled that there is no

respondeat superior liability under § 1983. Monell, 436 U.S. at 691. To be sure, a

political subdivision, here the City, is a “person” under § 1983, and can be liable under

that statute, but only if a plaintiff “show[s] that the alleged federal right violation

occurred because of a municipal policy or custom.” Thomas v. City of Chattanooga,

398 F.3d 426, 429 (6th Cir. 2005) (citations omitted). That means in turn that, while

municipalities may be sued directly, a threshold for liability under Monell is that a

public concern.” See Handy-Clay, 695 F.3d at 543 (quotation omitted) (citing Connick v. Myers, 461

U.S. 138, 148 (1983)); Solomon v. Royal Oak Twp., 842 F.2d 862, 865 (6th Cir. 1988) (“This Court has

held that speech disclosing public corruption is a matter of public interest and therefore deserves

constitutional protection.”). Cf., e.g., Handy-Clay, 695 F.3d at 543 (“We have noted that the mere fact

that public monies and government efficiency are related to the subject of a public employee’s speech

does not, by itself, qualify that speech as being addressed to a matter of public concern.”). Regardless,

this case does not require this Court to reach that issue.

5 The Supreme Court announced the standard for this balancing test in Pickering v. Bd. of Educ., 391

U.S. 563, 568 (1986). It “requires a court to balance the interests of the public employee ‘as a citizen,

in commenting upon matters of public concern, and the interest of the State, as an employer, in

promoting the efficiency of the public services it performs through its employees.’” Handy-Clay, 695

F.3d at 544 (quoting id. at 568). This shifts the burden to the employer, who must “proffer legitimate

grounds for the allegedly retaliatory action at issue.” Id. (citing Hughes v. Region VII Area Agency on

Aging, 542 F.3d 169, 180 (6th Cir. 2008)). This Court need not reach this issue either.

“federal right violation occurred.”6 Id. For the reasons discussed above, the Court

finds that Black and Smith have not individually violated Colorez’s constitutional

rights; Colorez has not alleged anyone else did either. Given that, the City cannot be

liable. Monell, 436 U.S. at 691.

Separately, apart from the merits of the constitutional claim, there is the

question of whether Black and Smith are entitled to qualified immunity. That is, in

order to prevail on a § 1983 claim, not only must Colorez identify a constitutional

violation, but he must also show the violation was of a “clearly established” right. See

Saucier v. Katz, 533 U.S. 194, 200–01 (2001). As Saucier made clear, though, a court

is free to consider the question of whether a right is clearly established either before

or after it determines whether a violation occurred at all. Id. Here, this Court elected

to address the latter question first—whether any constitutional violation occurred.

As the undisputed facts show that no such violation occurred, any further discussion

of qualified immunity is unnecessary, and thus unwarranted. See BellSouth

Telecomm., Inc. v. Farris, 542 F.3d 499, 505 (6th Cir. 2008) (“‘If it is not necessary to

decide more, it is necessary not to decide more.’”) (quoting PDK Labs. Inc. v. DEA,

362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in

judgment)).

6 Whether the governmental actor who actually committed the constitutional violation must be named

as a defendant in the action that seeks to impose municipal liability is a separate question. See

Anderson v. Jones, No. 1:17-cv-327, slip op. at 20–23 (S.D. Ohio Feb. 19, 2020) (Cole, J.) (discussing

Sixth Circuit caselaw on this issue). Here it does not matter though, as Colorez has not suggested some

other City employee, whom he did not name as a defendant in this action, violated his constitutional

rights.

CONCLUSION

For the reasons above, the Court GRANTS Defendants’ Motion for Summary

Judgment (Doc. 21) and DISMISSES WITH PREJUDICE the remaining claim

against the City Defendants. The Court DIRECTS the Clerk to enter judgment

accordingly.

SO ORDERED.

February 26, 2020

DATE DOUGLAS R. COL

UNITED STATES DISTRICT JUDGE

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