Romero v. City of Middletown

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

MATTHEW B. ROMERO,

Plaintiff,

Case No. 1:19-cv-307

v. JUDGE DOUGLAS R. COLE

CITY OF MIDDLETOWN, et al.,

Defendants.

OPINION AND ORDER

Plaintiff Matthew Romero alleges the City of Middletown, Douglas Adkins,

Scott Belcher, Mark Clemons, and Scott Tadych (collectively “Defendants”)

wrongfully fired him in retaliation for him raising concerns about workplace safety

and water treatment quality at the Middletown water treatment plant. The matter

is currently before the Court on Defendants’ Motion for Judgment on the Pleadings.

(Doc. 10). For the following reasons, the Court GRANTS in part and DENIES in

part Defendants’ Motion. (Doc. 10).

BACKGROUND1

Matthew Romero worked for the City of Middletown in its Water Treatment

Division for a total of ten years. (Compl., Doc. 1-3, ¶¶ 1, 8, #8, 9). He started as a plant

operator, then moved up the ranks to Process Control Supervisor. (Id. at ¶ 8, #9).

Pursuant to Ohio’s Public Employees Retirement System, he retired in March 2014.

1 Because this is a motion for judgment on the pleadings, the facts are taken from Romero’s

Complaint and assumed to be true. See Bullington v. Bedford Cty., 905 F.3d 467, 469 (6th

Cir. 2018).

(Id.). But by June 2014, Romero was back working at Middletown’s Water Treatment

Division part-time as an Assistant Plant Lab Analyst (“Assistant Lab Analyst”). (Id.

at ¶ 9). Romero alleges his job duties included “performing chemical and

bacteriological analysis of municipal drinking water samples; quality control

procedures; collecting samples; operating and maintaining sampling, analytical

procedures, and equipment; customer service; [] water quality concerns; and related

work as required by [his] supervisor.” (Id.). Performing these duties required Romero

to pass through the water treatment plant. (Id. at ¶ 10). While walking through the

plant, Romero allegedly discovered multiple incidents of mismanagement, and

unsafe, unlawful, and improper operations and conditions in the water treatment

plant, as further detailed below. (Id.).

A. Romero Raised A Series Of Concerns About Issues He Noticed Around

The Water Treatment Plant.

CO2 Tank. The first issue Romero observed involved the CO2 tank at the plant

in the spring of 2015. (See id. at ¶¶ 10–11, #9–10). One day, Romero noticed that a

warning light on the liquid CO2 tank was activated. (Id. at ¶ 10, #10). After speaking

with the plant operator, Romero examined the tank and realized the pressure gauge

was broken. (Id. at ¶ 11). Romero checked the log records and learned that the plant

operators had been inaccurately completing the internal control charts because they

were recording the broken gauge’s reading. (Id.). As a result, there was a critically

low level of liquid CO2, which could potentially result in the forty-ton tank rupturing,

risking serious injury and death to anyone in that area of the workplace. (Id.). Even

though it was not within his job duties, once Romero discovered the issue, he

immediately shut down the tank and discussed his concerns with Scott Belcher,

Middletown’s Water Treatment Manager; Mark Clemons, Middletown’s Process

Control Supervisor; and Scott Tadych, Middletown’s Public Works Director. (Id.; see

also id. at ¶¶ 3–6, #8–9).

That was apparently just the beginning. By early 2016, Romero was observing

and reporting unsafe and unlawful conditions around the plant at least weekly. (Id.

at ¶ 12, #10). These included the following:

Lime Stock. In May 2016, Romero allegedly learned some troubling

information about the city’s lime supply. A plant operator sought out Romero to speak

with him about the issue because of Romero’s knowledge and experience as a former

Process Control Supervisor. (Id.). That plant operator told him that the plant was low

on lime, and that Middletown could potentially deplete its supply before the next

delivery. (Id.). Romero alleges that failure to maintain an adequate supply of lime

would violate Middletown’s Ohio Environmental Protection Agency (“OEPA”) permit

to operate a lime softening treatment plant (id.), but does not allege that these low

lime levels at the plant created any risk to water safety or public health. In any event,

Romero took action and ordered additional lime. (Id.). He subsequently emailed

Belcher and Clemons to inform them of the situation and alert them that he had

placed an order for an emergency delivery. (Id.). Clemons told Romero that he had

already ordered extra lime deliveries. (Id. at ¶ 13, #11). But Romero knew that was

not true—Clemons later admitted as much. (Id.). Nevertheless, Clemons still became

angry with Romero and told him that running out of lime “wasn’t a big deal.” (Id.).

Romero separately emailed Belcher to tell him that “allowing the lime supply to get

so low was simple negligence.” (Id.).

Alkalinity Levels and Operator Training. A few weeks later, Romero observed

fluctuations in certain tests that indicated excessive pH and alkalinity levels in the

water. (Id. at ¶ 14). This concerned Romero and, after speaking with the plant

operators, he realized that they were uninformed about important aspects of water

quality, such as pH levels, water hardness, and alkalinity, as well as appropriate

treatment measures that needed to be taken to address these issues. (Id.). Without

this knowledge, the plant would be wasting supplies and resources used to control

water quality and placing the public health at risk. (Id.). In addition to lacking this

basic knowledge, Romero also noticed a general lack of training for the plant

operators. (See id. at ¶ 15, #11–12). For example, Romero noticed that plant operators

were not taking the elementary precautions necessary, such as routinely cleaning the

storage tanks to prevent the formation of disinfectant by-products. (Id.). These

disinfectant by-products include haloacetic acids, which have been linked to certain

cancers. (Id. at #12). Romero informed Belcher and Clemmons, who “did not seem

surprised” by Romero’s report. (Id.). They told Romero that plant operations would

improve going forward. (Id.).

Federally Mandated Test Results. In the summer of 2016, Middletown

conducted a routine lead and copper water survey at various residences within the

city. (Id. at ¶ 16, #12). Around August 3, 2016, Romero received a call from a

Middletown resident inquiring about the resident’s survey results. (Id. at ¶ 22, #14).

The call made Romero suspicious that the resident had not been notified of her survey

results. (Id.). He realized that Middletown had not delivered the federally mandated

notifications, and, by the time Romero received the resident’s call, Middletown had

already missed the deadline to send them. (Id.). Under 40 C.F.R. § 141.85,

Middletown had thirty days from receiving the lead and copper survey results to

notify the residents whose water had been tested about the results. (Id.). Romero

reported this violation to Clemons in an email. (Id.).

At this point, Romero was aware that Belcher and Clemons were becoming

increasingly hostile towards his reports of the plant’s operating conditions. (Id. at

¶ 19, #13). Romero’s work hours per week were arbitrarily reduced without

explanation. (Id.). Romero was told to limit his activities to his job responsibilities—

meaning he was not permitted to monitor operations, check the lime level, or perform

rounds at the plant. (Id.). He also noticed his colleagues’ attitudes had changed. (Id.).

The plant operators had become reluctant to engage him in conversation and ask him

questions about plant operations. (Id.). But this did not deter him from continuing to

report his concerns.

Incorrectly Preparing OEPA Reports. Romero assisted Middletown in

conducting the lead and copper water survey by preparing sample collections and

answering phone calls from residents inquiring about the survey results. (Id. at ¶ 16,

#12). Romero later learned that the test results for certain samples found that the pH

levels fluctuated outside the advised range provided for in the Secondary Drinking

Water Standards issued by the EPA, meaning water quality was at an increased risk.

(Id.).

Those increased risks could lead to serious concerns with water quality. (See

id. at ¶ 18, #12–13). For example, allowing high pH levels in the water supply

encourages the creation of trihalomethanes, which have been linked to adverse

reproductive outcomes and serious cancers. (Id. at #13). High pH levels can also

reduce the effectiveness of chlorine, which is a disinfectant used to control biological

contamination. (Id.). Plus, allowing high alkalinity levels could impair the

effectiveness of anti-corrosive agents used to prevent the release of lead and arsenic

into drinking water. (Id.).

The OEPA requires Middletown to produce what Romero calls “4 Log reports,”

which track disinfection contact time for the water processed through the treatment

plant. (Id. at ¶¶ 17, 20, #12–13). Romero spoke with Belcher and Clemons about what

impact these fluctuating pH results and low chlorine residuals would have on

Middletown’s reports. (Id. at ¶ 17, #12). Belcher and Clemons told Romero that the

pH results would not affect the data and calculations recorded in the 4 Log reports.

(Id.). But Romero knew this was false; pH results were critical to the water quality

analysis recorded in those reports. (Id.). Given this response, Romero grew concerned

that Middletown’s procedure for gathering data on the effectiveness of water

treatment disinfectant did not comply with OEPA guidelines for collecting data

recorded in the 4 Log reports. (Id.).

As a result, Romero decided to discuss the matter directly with the OEPA. (Id.

at ¶ 20, #13). He emailed the OEPA Drinking Water Division requesting guidance

with calculating the disinfectant contact time factor recorded on the 4 Log reports.

(Id.). He ended up speaking with Jeff Davidson from the OEPA on the phone. (Id.).

Romero asked Davidson whether Middletown’s testing procedures properly complied

with OEPA’s guidance, whether the current guidance document was wrong by

chance, and whether other water treatment plants were directed to collect data

differently. (Id.). Romero explained Middletown’s process for the calculations it used

in the 4 Log reports. Davidson then indicated that Middletown was preparing the

reports incorrectly. (Id.).

Romero subsequently emailed Belcher to relay what he learned from Davidson.

(Id. at ¶ 21, #14). Romero said, “I called the southwest OEPA office and spoke with

the person in charge of the drinking water section, since Dan was on extended leave.

I will leave it to you to make further adjustments, as the way you are doing it now

may be incorrect.” (Id.). Belcher never followed up with Romero to ask specifically

how Middletown might be violating OEPA’s compliance guidelines. (Id.). Instead, he

seemed unconcerned about the potential OEPA violations. (See id.).

B. Romero’s Supervisors Grew Agitated With His Reporting And

Subsequently Fired Him For Insubordination.

Romero met with Belcher and Clemons on August 4, 2016. The pair appeared

upset that Romero spoke with the OEPA regarding the plant’s potential compliance

violations. (Id. at ¶ 24, #15). Romero tried to explain that he called the OEPA for

guidance on the 4 Log reports and to reconcile Middletown’s procedures in preparing

the report with OEPA’s directions. (Id.). Belcher and Clemons told Romero that

talking to the OEPA was not part of his job duties, and that instead he should follow

the plant’s chain of command. (Id.). That meant instead of going directly to the OEPA,

Romero should have spoken with Clemons and Tadych first. (Id.).

Following the August 4th meeting, Belcher sent Romero a memorandum

concerning instructions Romero had received at the meeting. (Id. at ¶ 25). Romero

was told the purpose of the memorandum was to clarify Middletown’s policy on the

matters discussed. (Id.). Belcher, in the memorandum, told Romero he had a right to

call the OEPA to report Middletown’s regulatory violations, but Middletown’s policy

prohibited him from calling the OEPA concerning Middletown’s 4 Log reports because

that exceeded his job duties as an Assistant Lab Analyst. (Id.).

Romero subsequently requested another meeting to discuss these instructions.

(Id. at ¶ 26, #16). On August 15, 2016, Romero, Tadych, Belcher, and Clemons all sat

down to discuss the issue. (Id.). During this meeting, Belcher told Romero that, per

Middletown’s attorney, Les Landen, Middletown’s policy permitted Romero to call the

OEPA only to report serious violations, and otherwise prohibited him from calling the

OEPA for anything not related to his specific duties as an Assistant Lab Analyst.

(Id.). While Romero agreed he would follow the plant’s chain of command concerning

reporting violations to the OEPA, he disagreed with Belcher’s instructions

prohibiting him from calling the OEPA regarding matters not directly involved with

his job responsibilities. (Id. at ¶ 27). He asked Belcher to provide him with

confirmation on Landen’s instructions, specifically regarding when Romero could

contact the OEPA and for what purpose. (Id.). Belcher said he would discuss Romero’s

request with Landen and schedule another meeting with Romero to discuss Landen’s

response. (Id.).

After the August 15th meeting, Romero received another meeting summary

memorandum, this time prepared by Tadych. (Id. at ¶ 28, #16–17). That

memorandum stated that if Romero wanted to report the Middletown water

treatment plant to the OEPA, he would have to first notify the Process Control

Supervisor or Treatment Plant Manager. (Id. at #17). Operations and management

were not within his job responsibilities, the letter explained, and instead the

Supervisor or Plant Manager was responsible for OEPA compliance. (Id.). If Romero

refused to comply with these instructions and follow the chain of command before

reporting, the letter cautioned, then Romero could be disciplined up to and including

termination. (Id.).

On September 27, 2016, Romero followed up with Belcher regarding his

request that Landen confirm the OEPA reporting policy. (Id. at ¶ 29). In response,

Belcher invited Romero to meet with him, Tadych, and Clemons. (Id.). The group met

that same day. (Id. at ¶ 30). Romero was told “with emphasis” that he could only

contact the OEPA to report major violations, notwithstanding his previous

instructions. (Id.). Romero reported that he was still waiting on the confirmation of

the policy that Belcher promised from Landen. (Id.). Romero was told that he would

not be receiving that confirmation, and instead the August 15th meeting summary

memorandum served as confirmation of Landen’s instructions. (Id.).

A few weeks later, on October 13, 2016, Romero met with Tadych and Belcher.

(Id. at ¶ 31, #18). Tadych and Belcher told Romero not only that he was not permitted

to call the OEPA about anything unrelated to his specific job duties, but that he may

not voice his concerns about the Middletown plant’s operations or safety issues, or his

other observations to anyone over anything unrelated to his specific job duties. (Id.).

Romero refused. (Id.). He did not agree to stay silent on matters concerning water

quality safety and wasting public resources, irrespective of whether plant safety

violations, water quality, or other public health issues were outside the scope of his

job duties. (Id.). Tadych and Belcher told Romero that because he would not agree to

stay silent, he would be fired. (Id.).

The next day, Tadych recommended to Douglas Adkins, the Middletown

Manager, that Romero be fired for insubordination because he refused to accept

instructions prohibiting him from reporting, observing, or discussing matters or

contacting the OEPA concerning matters that were outside the scope of his job

responsibilities. (Id. at ¶ 32). Adkins agreed and terminated Romero’s employment.

(Id.).

PROCEDURAL HISTORY

Romero sued the Defendants in the Butler County Court of Common Pleas on

March 27, 2019. (See Notice of Removal, Doc. 1). He alleged two causes of action:

wrongful discharge in violation of public policy under Ohio law and retaliatorily

discharge in violation of the First Amendment. (See Compl. at #7–22). Defendants

removed the case to federal court on April 29, 2019. (See Doc. 1). On September 30,

2019, Defendants moved for judgment on the pleadings under Federal Rule of Civil

Procedure 12(c). (Doc. 10). That motion is currently before the Court.

LAW AND ANALYSIS

A. Standard Of Review.

A motion for judgment on the pleadings under Federal Rule of Civil Procedure

12(c) is analyzed in the same manner as a motion to dismiss under Rule 12(b)(6). See

Tucker v. Middleburg-Legacy Place, LLC, 539 F.3d 545, 549 (6th Cir. 2008). This

means the Court must accept all well-pled allegations as true, and draw all

reasonable inferences in the plaintiff’s favor. See Bullington v. Bedford Cty., 905 F.3d

467, 469 (6th Cir. 2018). All a plaintiff need do is provide “a short and plain statement

of the claim showing that the pleader is intitled to relief.” Keys v. Humana, Inc., 684

F.3d 605, 608 (6th Cir. 2012) (quoting Fed. R. Civ. P. 8(a)(2)).

Importantly, though, the “short and plain statement” must offer more than

mere “labels and conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “‘[A]

formulaic recitation of the elements of a cause of action will not do.’” Id. (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). There must be “sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id.

(quoting Twombly, 550 U.S. at 570). This means a complaint must contain “either

direct or inferential allegations respecting all material elements to sustain recovery

under some viable legal theory.” Bishop v. Lucent Techs., Inc., 520 F.3d 516, 519 (6th

Cir. 2008) (quotation omitted). “Conclusory allegations or legal conclusion

masquerading as factual allegations will not suffice.” Id. (citing Meziboy v. Allen, 411

F.3d 712, 716 (6th Cir. 2005)). In sum, an action will be dismissed under this standard

where “there is no law to support the claims made.” Stew Farm, Ltd. v. Nat. Res.

Conservation Serv., 967 F. Supp. 2d 1164, 1169 (S.D. Ohio 2013) (citing Rauch v. Day

& Night Mfg. Corp., 576 F.2d 697, 702 (6th Cir. 1978)). The same holds where “the

facts alleged are insufficient to state a claim.” Id.

B. Romero’s Ohio Law Wrongful Discharge Claim Fails As A Matter Of

Law As Currently Pled, But His First Amendment Retaliation Claim

Survives Judgment On The Pleadings.

Defendants argue that Romero’s Complaint should be dismissed because

(1) Romero’s wrongful discharge in violation of public policy claim fails to satisfy the

required clarity and jeopardy elements for such claims under Ohio law, (2) Romero’s

First Amendment claim does not involve private citizen speech on a matter of public

concern, and (3) even if Romero’s First Amendment claim is meritorious, the

individual defendants are entitled to qualified immunity. (See Defs.’ Mot. for J. on the

Pleadings (“Defs.’ Mot.”), Doc. 10, #83–100). The Court agrees that Romero’s wrongful

discharge in violation of public policy claim should be dismissed (albeit without

prejudice). But the Court finds that Romero alleged sufficient facts to withstand

judgment on the pleadings on his First Amendment retaliatory discharge claim.

Because the Court finds Romero’s First Amendment claim plausibly alleges a

constitutional violation, and also finds that the right at issue was clearly established

at the time the individual defendants fired Romero, the Court declines to grant the

individual defendants qualified immunity at this time.

1. Romero’s Ohio Law Wrongful Discharge In Violation Of Public

Policy Claim Fails Because He Has Not Satisfied The Clarity

Element.

Employment in Ohio, including employment with state or local government

bodies, is generally governed by the employment at-will doctrine. Wiles v. Medina

Auto Parts, 773 N.E.2d 526, 529 (Ohio 2002). Accordingly, an employer generally may

terminate an at-will employee for any reason at any time, and that terminated

employee may not sue the employer for wrongful discharge. Id. But there are

exceptions to this doctrine. One such exception, relevant here, allows a terminated

employee to bring a wrongful discharge claim when the discharge violates public

policy, which Ohio courts commonly refer to as a Greeley claim. Miracle v. Ohio Dep’t

of Veterans Servs., 137 N.E.3d 1110, 1113 (Ohio 2019) (citing Greeley v. Miami Valley

Maint. Contractors, Inc., 551 N.E.2d 981 (Ohio 1990)).

Making a claim for wrongful discharge in violation of public policy—a Greeley

claim—requires that a plaintiff establish each of four elements: (1) that a clear public

policy existed and was manifested either in a state or federal constitution, statute, or

administrative regulation, or in the common law (the “clarity element”); (2) that

dismissing employees under circumstances like those involved in the plaintiff’s

dismissal would jeopardize that public policy (the “jeopardy element”); (3) that the

plaintiff’s dismissal was motivated by conduct related to the public policy (the

“causation element”); and (4) that the employer lacked an overriding legitimate

business justification for the dismissal (the “overriding-justification element”).

Miracle, 137 N.E.3d at 1113 (citing Collins v. Rizkana, 652 N.E.2d 653, 657–58 (Ohio

1995)). The first two elements—clarity and jeopardy—are questions of law for a court

to decide. Collins, 652 N.E.2d at 658. Whereas, as a general matter, the last two

elements—causation and overriding-justification—involve factual issues for a

factfinder to decide. Id.

Not surprisingly, given this distinction, at the motion for judgment on the

pleadings stage Defendants are challenging Romero’s ability to establish the first two

elements: clarity and jeopardy. Because the Court finds Romero has not satisfied the

first element (clarity), it does not address the second (jeopardy).

In an effort to meet the clarity element, Romero claims his termination violated

two general categories of public policies. First, he says it violates public policies

generally relating to water safety, such as “requiring compliance with environmental

laws[,]” “supporting safe drinking water quality standards[,]” and prohibiting

employers from terminating employees who report “conditions reasonably likely to

cause imminent risk of physical harm to persons” and conduct “affecting water

treatment and quality posing a serious hazard or risk to the public health or safety.”

(Compl. at ¶ 36, #20). Second, he says his termination violated the public policy

“supporting work place [sic] safety for employees” and prohibiting employers from

terminating “employees who report conduct and practices contrary to this public

policy[.]” (Compl. at ¶ 36, #19). For various reasons, as explained below, neither of

those work, at least as currently pled.

As noted, “clear public policy” supporting an exception to the employment-at-

will doctrine may be found in federal or state constitutions, statutes, administrative

rules and regulations, and common law. Sutton v. Tomco Machining, Inc., 950 N.E.2d

938, 943 (Ohio 2011). One source for such a “clear public policy” is Ohio’s

whistleblower statute, Ohio Revised Code § 4113.52. This statute reflects the public

policy of protecting “whistleblowers” from retaliation, a public policy that seems

plausibly implicated on the allegations here. The problem for Romero, though, is that

the whistleblower statute also imposes strict procedural requirements that a

whistleblower must follow in order to claim protection under the statute, and Romero

concedes he did not comply with those requirements here. Therefore, he “cannot base

a Greeley claim solely upon the public policy embodied in that statute.” Kulch v.

Structural Fibers, Inc., 677 N.E.2d 308, 323 (Ohio 1997) (citing Contreras v. Ferro

Corp., 652 N.E.2d 940, 945–46 (Ohio 1995)).

Having elected not to follow the whistleblower statute’s procedural

requirements, Romero must identify some other source of “clear public policy” to

support his claim. And in doing so, he must meet two requirements. First, Romero

must both specifically identify the sources, and also identify specific policies located

within those specific sources, rather than make general assertions to broad policies

(this Opinion refers to these two collectively as the specificity requirement). Hale v.

Mercy Health Partners, 20 F. Supp. 3d 620, 639 (S.D. Ohio 2014). Second, the sources

of the public policies must parallel Ohio’s whistleblower statute (i.e., a parallelism

requirement).2 See Hale v. Mercy Health Partners, 617 F. App’x 395, 403 (6th Cir.

2 As this Court has previously pointed out, Ohio courts have implicitly imposed this

requirement. See Nelson v. A Place for Mom, Inc., No. 3:19-cv-377, 2020 WL 635797, at *3 n.2

(S.D. Ohio Feb. 11, 2020) (citing Hale, 20 F. Supp. 3d at 638, aff’d, 617 F. App’x 395 (6th Cir.

2015)). After the Sixth Circuit’s decision in Hale, where the court agreed that Ohio courts

require that a plaintiff’s claimed policy parallel Ohio’s whistleblower statute, see Hale, 617

F. App’x at 403, the Ohio Supreme Court accepted jurisdiction in an unrelated case in which

2015) (citing Dean v. Consol. Equities Realty #3, L.L.C., 914 N.E.2d 1109, 1112 (Ohio

Ct. App. 2009). This parallelism requirement means that the source for the public

policy on which Romero relies must be of a type that either (1) imposes an affirmative

duty on employees to report a violation, (2) prohibits employers from retaliating

against employees who file complaints on the topic, or (3) is designed to protect the

public’s health and safety. Id. So, for example, a child abuse statute that imposed a

reporting obligation on a person (e.g., a teacher) would satisfy the parallelism

requirement.

a. Public Policy Promoting Safe Drinking Water.

Regarding the alleged public policy relating to safe drinking water, Romero

stumbles a bit out of the gate, as he fails to cite a clear, specific source for the policies

on which he purports to rely. He acknowledges this shortcoming in his briefing,

stating that he “is not asserting the violation of a specific safety law or environmental

law to support his public policy wrongful discharge cause of action.” (Memo. in Opp’n

to Defs.’ Mot. for J. on the Pleadings (“Pl.’s Opp’n”), Doc. 12, #111). Instead of any

specific source, he alleges in his Complaint that the Court can find the source of this

public policy generally in “EPA regulations, R.C. Chapters 6109 and 6111, 40 C.F.R.

§ 141.85, the Safe Drinking Water Act, 42 U.S.C. 300f, et seq., the EPA Surface Water

the three-part standard reflected in Dean was challenged. See McGowan v. Medspace, Inc.,

150 Ohio St.3d 296 (2017). Even though McGowan presented the Ohio Supreme Court with

an opportunity to overrule the Dean standard, it chose not to do so. “Thus, absent an opinion

from the Supreme Court of Ohio expressly rejecting the Dean standard, this Court will follow

the interpretation of state law previously reached by its circuit.” Stromberger v. Tampico

Beverages, Inc., No. 1:16-cv-1117, 2017 WL 4310509, at *4 (S.D. Ohio Sept. 28, 2017).

Treatment Rule, 40 C.F.R. Part 141, and OAC Chapter 3745-81 Primary Drinking

Water Rules[.]” (Compl. at ¶ 36, #19–20).

That presents a problem, as he needs a specific, clear legal source for any public

policy he asserts. That is because, as Ohio courts routinely admonish, the public

policy doctrine must be “narrowly applied.” See, e.g., Mitchell v. Mid-Ohio Emergency

Servs., L.L.C., No. 03AP-981, 2004 WL 2803419, at *6 (Ohio Ct. App. Sept. 30, 2004)

(refusing to extend the “narrow public policy exception to the employment at-will

doctrine”) (emphasis in original). The mere fact that a particular subject matter area

(like drinking water standards) is addressed in a statute or regulation does not mean

that the statute or regulation sets forth a clear public policy. Hale, 20 F. Supp. 3d at

639. “Accepting an argument that a clear public policy is established because an

administrative regulation covers the subject matter at issue would expand the public

policy claim to all statutory and administrative enactments.” Id. Thus, Ohio courts

insist that the source of public policy must be “so manifestly clear to warrant

abrogating the employment[-]at-will doctrine.” Id. As otherwise, “the exception would

swallow the rule.” Id.

Romero’s sources are not “manifestly clear” and thus they do not pass muster.

A string cite to a collection of safety statutes and regulations doesn’t cut it. See Lesko

v. Riverside Methodist Hosp., No. 04AP-1130, 2005 WL 1482549, at *9 (Ohio Ct. App.

June 23, 2005) (finding that an employee who merely listed examples of safety

statutes failed to establish “clear public policy applicable to the facts of [the] case”).

Likewise, broadly citing entire sections of the United States Code, or “EPA

regulations” at large, is not specific enough. See Hale, 20 F. Supp. 3d at 639 (refusing

to accept that a clear public policy is established merely because an administrative

regulation covers the subject matter at issue). Nor, for similar reasons, does it work

to generally cite the entirety of chapters of the Ohio Revised Code that deal with water

pollution and safe drinking water. (See Compl. at ¶ 36, #19 (citing Ohio Rev. Code

§§ 6109, 6111)). Without citing a particular section or sections within those chapters,

such references are simply too general to meet the specificity requirement for his

claim.

Romero’s most specific citation is likely 40 C.F.R. § 141.85. But that citation

fails for a different specificity reason. That regulation perhaps can be characterized

as a public safety provision, as it lays out the procedures for notifying the public about

lead levels in their drinking water and the steps that the public can take to avoid

adverse health consequences if their water in fact has high lead levels. But, here,

Romero’s claim seems to be one of minor technical non-compliance—failure to strictly

abide by the must-send-the-report-in-thirty-days timing requirement, rather than

failure to send the report at all. (See id. at ¶ 22, #14). Moreover, nowhere does he

allege that the lead in the water was in fact high, such that failure to strictly abide

by the time limits may have lengthened the exposure of Middletown citizens to water

carrying unsafe amounts of lead.

In that sense, Romero’s reliance on 40 C.F.R. § 141.85 is similar to the source

of public policy from Hale that both the district and circuit court found merely

imposed technical requirements. In Hale, the plaintiff relied on Ohio Administrative

Code § 4729-17-03. 20 F. Supp. 3d at 637. The plaintiff claimed that § 4729-17-03

supported the public policy that pharmacies maintain proper transport and record-

keeping procedures to ensure they properly account for narcotics—which of course

could be understood as a public safety issue. Id. But the court instead treated the

provision as a record-keeping regulation, and found that, as such, it did not reflect a

public policy that was “manifestly clear” enough to warrant abrogating the

employment at-will doctrine. Id. at 639. Rather, the regulation merely created

“baseline technical requirements that [] facilities had to satisfy to operate their

facilities.” Id. at 640; see also Morris v. Dobbins Nursing Home, No. CA2010-12-102,

2011 WL 2449008, at *4 (Ohio Ct. App. June 20, 2011) (noting that “Ohio does have

an interest in ensuring that nursing home facilities are operated safely and in

accordance with the law,” but finding that the Code of Federal Regulations sections

upon which the plaintiff relied “merely provide[d] baseline technical criteria that

Dobbins Nursing Home had to meet in order to operate the nursing home facility”).

Likewise, here, 40 C.F.R. § 141.85 could be characterized as merely imposing

technical requirements that the State must meet to keep the public informed about

the lead tap water monitoring results, rather than creating a public policy promoting

safe drinking water—at least a sufficiently clear public policy in that regard to

warrant abrogating the employment-at-will doctrine.

Moreover, even if 40 C.F.R. § 141.85 could be understood as embodying a clear

public policy, Romero fails to specifically identify what that alleged public policy is.

Rather, he merely groups that citation in a list with many others (see Compl. at ¶ 36,

#19–20), which he says collectively reflect “the clear public policy of the State of Ohio

requiring compliance with environmental laws and supporting safe drinking water

quality standards[.]” (Id. at #20). That is not a specific public policy tied to a specific

legal source.

To be sure, his allegations as currently stated may well have supported a claim

under Ohio’s whistleblower statute. But, as already noted, he failed to take the

procedural steps required to perfect such a claim.

As Romero has not identified a clear, specific source for the public policy

promoting safe drinking water on which he relies, the Court declines to do so for him.

Ohio courts are clear that it is the plaintiff’s burden to identify the public policy and

the sources for that policy. Dohme v. Eurand Am., Inc., 956 N.E.2d 825, 831 (Ohio

2011). A court may not do so sua sponte, as “[t]here may be valid reasons for a

plaintiff's failure to identify and assert a specific public policy or a specific source for

that public policy.” Id. The court “may not fill in the blanks on its own motion.” Id.

All of that being said, the Court certainly does not ignore the possibility that

Ohio law or federal law may somewhere articulate a clear and specific public policy

in favor of safe drinking water, or in favor of some particular aspect of water safety.

Indeed, clear statements of such a public policy may well be located at points within

the broad swaths of law that Romero cites. Accordingly, while the Court finds that

Romero has so far failed to meet his burden of identifying a specific public policy, and

the specific source for that public policy, on which to rely as the basis for his wrongful

discharge claim, the Court will allow Romero an opportunity to amend his Complaint

to address the shortcomings identified above, if he can.

b. Public Policy Promoting Workplace Safety.

Having found that Romero has yet to specifically identify a public policy related

to drinking water safety that will support his claim, the Court now turns to the second

general area of public policy Romero identified: workplace safety. In his briefing,

Romero cites Ptylinski v. Brocar Products, Inc., 760 N.E.2d 385, 386 (Ohio 2002), for

the proposition that “Ohio public policy favoring workplace safety is an independent

basis upon which a cause of action for wrongful discharge in violation of public policy

may be prosecuted.” But the Ohio Supreme Court later clarified that merely citing

the syllabus in Ptylinski is “insufficient to meet the burden of articulating a clear

public policy of workplace safety.” Dohme, 956 N.E.2d at 830. Instead, “to satisfy the

clarity element of a claim of wrongful discharge in violation of public policy, a

terminated employee must articulate a clear public policy by citation of specific

provisions in the federal or state constitution, federal or state statutes,

administrative rules and regulations, or common law.” Id. at 831.

Here, to support his public policy regarding workplace safety, Romero does

provide specific citations—Ohio Revised Code §§ 4101.11 and 4101.12. (Pl.’s Opp’n at

#109). Section 4101.11 provides that:

Every employer shall furnish employment which is safe for the

employees engaged therein, shall furnish a place of employment which

shall be safe for the employees therein and for frequenters thereof, shall

furnish and use safety devices and safeguards, shall adopt and use

methods and processes, follow and obey orders, and prescribe hours of

labor reasonably adequate to render such employment and places of

employment safe, and shall do every other thing reasonably necessary

to protect the life, health, safety, and welfare of such employees and

frequenters.

Ohio Rev. Code § 4101.11. Likewise, § 4101.12 deals generally with employers not

forcing employees to work in unsafe environments:

No employer shall require, permit, or suffer any employee to go or be in

any employment or place of employment which is not safe, and no such

employer shall fail to furnish, provide, and use safety devices and

safeguards, or fail to obey and follow orders or to adopt and use methods

and processes reasonably adequate to render such employment and

place of employment safe. No employer shall fail to do every other thing

reasonably necessary to protect the life, health, safety, and welfare of

such employees or frequenters. No such employer or other person shall

construct, occupy, or maintain any place of employment that is not safe.

Ohio Rev. Code § 4101.11.

But, while these are specific statutes, the Ohio courts that have considered

those statutes have concluded that the policies reflected therein are “very general and

broad,” and thus the policies are not specific enough to satisfy the clarity element of

a wrongful discharge in violation of public policy claim. See Whitaker v. First Energy

Nuclear Operating Co., No. OT-12-021, 2013 WL 4792860, at *6 (Ohio Ct. App. Sept.

6, 2013); see also Galyean v. Greenwell, No. 05CA11, 2007 WL 453273, at *14 (Ohio

Ct. App. Jan. 29, 2007) (finding that § 4101.11 deals with “traditional premises

liability” and is not “sufficiently specific” to serve as a basis for the claim). The Court

is inclined to agree with these Ohio courts on this matter of Ohio law. Although these

statutes are certainly directed at the broad topic of workplace safety, and adopt a

general rule that work premises should be maintained in a safe manner, they do not

appear to articulate any specific public policy of the type that would support a

discharge in violation of public policy claim, thus falling short on the specificity front.

Thus, to date, Romero has not identified a clear source for a sufficiently specific

public policy supporting workplace safety to support a claim of discharge in violation

of public policy. Accordingly, the Court will DISMISS that claim, but for the reasons

stated above, does so WITHOUT PREJUDICE.

2. Romero Spoke As A Citizen On Matters Of Public Concern, And

Therefore His First Amendment Retaliation Claim Survives

Judgment On The Pleadings.

Defendants argue that Romero’s First Amendment retaliation claim should be

dismissed because: (1) he spoke pursuant to his official duties as a Middletown

employee, (2) on a matter not of public concern. Defendants are wrong on both

accounts, and therefore the Court denies their request for judgment on the pleadings

on this claim.

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

the 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.

To prevail on his First Amendment retaliation claim against Defendants for

terminating his employment, Romero 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). If the employee establishes a prima facie case, the burden then shifts to the

employer to demonstrate by a preponderance of the evidence that the employment

decision would have been the same absent the protected conduct. Mertins v. City of

Mount Clemens, --- F. App’x ----, No. 19-1416, 2020 WL 3032929, at *3 (6th Cir. June

5, 2020).

Romero’s speech here occurred in the context of his public employment, which

impacts the First Amendment analysis to some extent. “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, 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, but not 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 Romero’s official duties. Garcetti, 547 U.S. at 417. Speech “pursuant to the

employee’s official duties” (i.e., “employee-speech”) is unprotected. Id. at 413. But for

speech outside that realm, or in other words, 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 not, the speech, even as

citizen-speech, will not support a First Amendment claim. At bottom, if the

Defendants can show that Romero’s speech here was either (1) employee-speech or

(2) citizen-speech that did not involve a matter of public concern, then Romero’s First

Amendment claim fails as a matter of law. Conversely, if Romero can show that his

speech was citizen-speech (i.e., non-employee-speech), and that the speech involved

a matter of public concern, the analysis then continues to a third step. In that step,

the Court must balance the interests served by Romero’s speech against the City’s

need to promote “the efficiency of the public services it performs through its

employees.” Id. at 417 (quotation and citation omitted). As the description suggests,

this third step is poorly suited for resolution at the judgment on the pleadings stage.

See Baar v. Jefferson Cty. Bd. of Educ., 476 F. App’x 621, 633 (6th Cir. 2012).

a. Romero Did Not Speak Pursuant To His Official Duties,

Making His Speech “Citizen Speech.”

The first step in a public-employee First Amendment retaliatory discharge case

is determining whether the speech at issue constitutes “citizen-speech.” In making

that determination, this Court is 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 all that in mind, 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).

This inquiry is also a legal one, suitable for resolution by the Court. Colorez v. City of

Cincinnati, 441 F. Supp. 3d 560, 569 (S.D. Ohio 2020) (“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.”)

(citing Mayhew, 856 F.3d at 462–64). “Actually answering that legal question,

however, remains a difficult task.” Id. (emphasis in original).

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 (the “Weisbarth factors”). 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)). The Sixth Circuit has noted that additional considerations include

whether the statements were made to individuals “up the chain of command,” Fox v.

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

whether the content of the speech is “nothing more than the quintessential employee

beef: management has acted incompetently.” Haynes v. City of Circleville, 474 F.3d

357, 365 (6th Cir. 2007) (quotation omitted).

While the factors are helpful, the “weight and consideration afforded” to each

factor, and the “manner of resolving conflicts among them,” remains ambiguous.

Colorez, 441 F. Supp. 3d at 569. At bottom, it appears that the Court is to ask “who,

where, what, when, why, and how,” in deciding whether particular speech suffices to

support a First Amendment retaliatory discharge claim. Mayhew, 856 F.3d at 464.

Here, the only source of information regarding Romero’s job duties at this point

(i.e., before discovery has occurred) is Romero’s Complaint. There, he describes his

duties as: “performing chemical and bacteriological analyses of municipal drinking

water samples, quality control procedures; collecting samples; operating and

maintaining sampling, analytical procedures, and equipment, customer service, and

water quality concerns; and related work as required by supervisor.” (Compl. at ¶ 9,

#9).

With those job duties in mind, Romero alleges Defendants fired him for

engaging in the following speech: (1) reporting to his supervisors concerns about the

condition of the CO2 tank (Id. at ¶¶ 10–11, #9–10); (2) reporting to his supervisors

that he was forced to order lime because the stock was too low, which is against OEPA

regulations (Id. at ¶¶ 12–13, #10–11); (3) reporting to his supervisors that plant

operators did not have enough knowledge about pH and alkalinity levels (Id. at ¶ 14,

#11); (4) reporting to his supervisors that plant operators were not taking enough

precautions to prevent formation of disinfectant by-products (Id. at ¶ 15, #11–12);

(5) reporting to his supervisors that the plant’s procedure for gathering water

treatment disinfectant effectiveness was not in compliance with OEPA guidelines (Id.

at ¶ 17, #12); (6) discussing with the OEPA how Middletown incorrectly prepared its

4 Log reports (Id. at ¶ 20, #13); (7) reporting to his supervisors that Middletown had

not sent federally mandated notifications to residents about lead and copper survey

results (Id. at ¶ 22, #14); and (8) reporting to his supervisors concerns about certain

wells that tested for excessive levels of arsenic contamination and additional

miscellaneous issues involving dust suppression, secondary basin malfunction,

reservoir operations, and Middletown’s failure to disclose an inoperable lime slaker

to the OEPA (Id. at ¶ 23, #14–15).

The parties disagree about whether each instance of speech was within

Romero’s job responsibilities. Defendants claim his job responsibilities and his speech

are one in the same. In fact, Romero’s speech “owed its existence to” his employment.

(Defs.’ Mot. at #97). That is because, according to Defendants, Romero discovered

these issues while walking around the water treatment plant and walking around

the water treatment plant is one of Romero’s job duties. (See Defs.’ Reply, Doc. 13,

#134). Defendants characterize Romero raising concerns as an “inherent duty of

internal communication,” which can be a de facto duty that is within the scope of his

employment. (Id. (citing Mayhew, 856 F.3d at 465)). Defendants also claim that

Romero only talked internally, and not publicly, about his concerns. (Defs.’ Mot. at

#98). And Romero did not allege that he attempted to make any of his purported

concerns public. (Id.). For his part, Romero maintains that none of his speech involved

activities that fell within his job duties. (Pl.’s Opp’n at #117). He also claims that his

speech need not be directed toward anyone in the public to be protected by the First

Amendment. (See id. at #118).

At this juncture, viewing only the allegations in Romero’s Complaint and

accepting those allegations as true, the Court finds Romero has alleged sufficient

facts to support a claim that he was engaged in protected citizen-speech.

The “critical question” for this analysis is “whether the speech at issue is itself

ordinarily within the scope of [Romero’s] duties.” Id. The Court finds it is not. Taking

a “practical” look at Romero’s “ordinary” job duties, the Court concludes the issues

Romero raised fall more in the purview of a supervisor or plant manager, rather than

an Assistant Lab Analyst.

Certainly, the allegations in the Complaint (which must be accepted as true at

this stage) suggest that much of the speech at issue fell outside Romero’s job

responsibilities. He alleges, for example, that he raised concerns about operator

training and water treatment procedures, even though “operator training and water

treatment procedures were not included in Mr. Romero’s job responsibilities.” (Compl.

at ¶ 15, #11). He further alleges that, in response to his speech, his supervisors told

him to “limit his activities to his job responsibilities,” strongly suggesting that they

considered his speech to fall outside those responsibilities. (Id. ¶ 19, #13). Romero

further specifically alleges that he reported “concerns about wells 16 and 17, which

had tested for excessive levels of arsenic contamination,” and that he had also

reported “violations and hazards involving dust suppression, the secondary basin

malfunction, reservoir operations, and Middletown’s failure to disclose an inoperable

slaker to the OEPA,” and that “none of the issues” were “involved in Mr. Romero’s job

responsibilities.” (Id. at ¶ 23, #14–15).

Indeed, he specifically claims that one of the concerns his supervisors raised

with him was that he was speaking outside the area of his assigned responsibilities.

Romero alleges that, when he told his supervisors he had called the OEPA, he “was

told [by his supervisors] that talking to the OEPA was not part of his job duties, and

he was instructed to follow the chain of command,” (id. at ¶ 24, #15), and that such

calls “exceeded the scope of his job duties as an Assistant Lab Technician,” (id. ¶ 25).

Accepting these allegations as true, Defendants cannot have it both ways—

disciplining Romero because his speech “exceeded the scope of his job duties,” but now

defending against his claim for retaliatory discharge by asserting that the speech in

fact fell within those job duties.

In many ways, the analysis here parallels the Sixth Circuit’s in Handy-Clay v.

City of Memphis, 695 F.3d 531 (6th Cir. 2012). The City of Memphis hired Handy-

Clay as a public records coordinator. Id. at 535. Her duties included handling public

records requests, reviewing documents to prevent confidential information from

being disclosed, and recording the minutes of the Memphis Charter Commission. Id.

at 535–36. The city fired Handy-Clay after she spoke up about city employees not

properly reporting their absences on the attendance log and voiced concerns about

the city improperly using funds, among other things. Id. at 542. She sued the city for

firing her in retaliation for exercising her First Amendment rights. Two factors made

the Sixth Circuit decide that this speech fell outside her ordinary job responsibilities.

First, she was not asked to investigate the alleged misconduct or to give her

opinion on any violations. Id. In that sense, the Sixth Circuit distinguished Handy-

Clay’s case from Weisbarth, in which a park ranger made critical comments about her

department’s “morale and performance issues,” but made the comments only in

response to a paid consultant’s queries, at her employer’s behest. 499 F.3d at 543,

546. In contrast, Handy-Clay’s comments, like those of the plaintiff in Pucci v.

Nineteeth Dist. Ct., 628 F.3d 752, 768 (6th Cir. 2010), were “extraordinary rather than

everyday communication.” Likewise, here, Romero was not tasked with investigating

the conditions around the plant, nor with monitoring Middletown’s compliance with

every regulatory obligation. The comments on which he relies here were not prompted

by his supervisor’s request to inspect plant operations or to give his opinion on

whether Middletown was complying with the required regulations. And he was under

no specific obligation to report anything he saw to his supervisors.

Second, the Sixth Circuit found that Handy-Clay’s conversations with

individuals outside her department were not within her job duties as a public records

coordinator. The Sixth Circuit found this distinguished Handy-Clay’s case from Fox

and Haynes because the plaintiffs in those cases made complaints only to their

immediate supervisors. See Fox, 605 F.3d at 350 (noting that “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 performing his job”); Haynes, 474

F.3d at 364 (“The fact that Haynes communicated solely to his superior also indicates

that he was speaking ‘in [his] capacity as a public employee contributing to the

formation and execution of official policy,’ not as a member of the public[.]” (alteration

in original) (quoting Mills v. City of Evansville, 452 F.3d 646, 648 (7th Cir. 2006))).

Similarly here, while Romero did voice concerns to his supervisors, he also spoke with

people outside the water treatment plant. He spoke with an individual at the OEPA

about the Middletown plant’s compliance with their reporting procedures, a

conversation that, as noted, his supervisors specifically told him was outside his job

responsibilities.

To be sure, Defendants are correct that one common denominator across most

of Romero’s speech it that it was made to his supervisors, a factor that Defendants

likewise are correct in observing cuts in their favor. But that factor is not dispositive

here. In those cases where the Sixth Circuit emphasized that speech made “up the

chain of command” supported a finding that the speech was unprotected employee-

speech, the speech at issue involved typical “employee beef[s]” pertaining to his or her

employment. See, e.g., 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.”) (emphasis added); 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.”) (emphasis added); Fox, 605 F.3d at 350 (holding

a teacher's complaints made directly to her supervisor about class size were not

protected); Burgess v. Paducah Area Transit Auth., 387 F. App'x 538, 545 (6th Cir.

2010) (holding communications made at the workplace, related to office management,

and directed to management were not protected); Haynes, 474 F.3d at 364 (finding

first that “all of the speech at issue in this case … was made pursuant to [Haynes’s]

official duties, then also finding the fact that Haynes communicated “solely to his

superior” indicates that he was “speaking ‘in his capacity as a public employee’”). That

is a critical distinction here. In Romero’s case, he alleges that he was not making

typical employee complaints (i.e., about his job responsibilities) up the chain of

command, but rather claims that he was trying to raise the alarm about water quality

with public officials who he believed were in a position to address those concerns.

Given that the speech here falls outside the context of “employee beefs,” the cases

holding that “up the chain” communication generally constitutes employee-speech are

not dispositive on Romero’s claim.

And while it is true that Romero discovered some of these issues while walking

from Point A to Point B at the water treatment plant, and some complaints generally

concern the water treatment plant where he works, that does not mean his speech is

not protected by the First Amendment. In fact, cases find the opposite to be true—

just because the speech relates to the person’s public employment does not mean it is

employee-speech. The Supreme Court reiterated this point in Lane. The Court

emphasized that “speech made by public employees on subject matter related to their

employment holds special value precisely because those employees gain knowledge of

matters of public concern through their employment.” Lane, 573 U.S. at 240. Here,

then, the mere fact that Romero learned about these issues while he walked around

the water treatment plant at work is not dispositive. Therefore, Romero’s speech is

properly characterized as citizen-speech.

The Court reaches that same result analyzing the Weisbarth factors as well.

The first factor—the impetus for the speech—at least arguably weighs in Romero’s

favor. Although not completely explicit in his Complaint, it appears that Romero’s

speech arose from his concerns over water quality, public health, compliance with

government regulations, and general workplace safety. The last of the Weisbarth

factors—the general subject matter of the speech—also tips towards Romero. Romero

raised concerns about whether Middletown was treating and testing the water

correctly, and whether Middletown was maintaining a safe work environment. The

second and third factors, at least on the surface, weigh towards Defendants. Romero’s

comments were made while he was on the job. And his audience was generally his

supervisors, except for an employee at the OEPA. But, as already explained, those

factors are not dispositive here.

In sum, taking the allegations in Romero’s Complaint as true, Romero has

alleged sufficient facts to give rise to a plausible inference that he spoke on these

issues, both to his superiors and outside the chain of command, as a concerned

citizen—to be sure, as a concerned citizen who had “gain[ed] knowledge of matters …

through [his] employment[,]” Lane, 573 U.S. at 240, but a concerned citizen

nonetheless. Thus, his speech is not employee-speech.

b. Romero Spoke On Matters Of Public Concern.

Much like the analysis on employee/citizen-speech, the framework for deciding

whether speech relates to a matter of public concern is “not well defined.” Snyder v.

Phelps, 562 U.S. 443, 452 (2011). Courts have established guideposts, however.

“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, 573 U.S. at 241. Conduct does not have to be

illegal for it to be a matter of public concern. Mayhew, 865 F.3d at 469. And even if

the allegations prove to be untrue, the public still has an interest in hearing the

accusation. Mertins, 2020 WL 3032929, at *3. Like the question of citizen versus

employee-speech, whether or not the speech at issue involves a matter of public

concern is a question of law for the Court to decide. Hughes v. Region VII Area Agency

on Aging, 542 F.3d 169, 180 (6th Cir. 2008).

Defendants see Romero’s speech as simply quibbling about management styles

and various departmental policies, which Defendants say are not matters of public

concern. They portray Romero’s speech to the OEPA as merely criticizing

Middletown’s testing procedures, which they say is also not a matter of public

concern.

But Defendants’ arguments seem strikingly similar to the arguments the Sixth

Circuit rejected in Charvat v. Eastern Ohio Regional Wastewater Authority, 246 F.3d

607 (6th Cir. 2001). There, the plaintiff raised concerns about violations of

environmental regulations. In response, the defendant characterized the concerns as

only implicating internal management issues and therefore not a public concern. The

Sixth Circuit disagreed, saying, “[c]haracterizing Charvat's speech as regarding only

personnel issues and internal operations is disingenuous at best.” Id. at 617.

Charvat's reports about the sewage-treatment facility's violation of several

environmental regulations, “when analyzed for their ‘content, form, and context,’”

were “perfect example[s]” of protected speech “designed to increase the awareness of

regulatory violations and potential threats to the public health and safety of the

community.” Id. at 617–18.

Here, much like Charvat, Romero not only raised concerns that Middletown’s

water treatment plant had violated OEPA regulations on safe water treatment, but

also about how Middletown was maintaining the water quality and the safety of their

plant. Like Charvat, Romero’s comments were designed to increase awareness about

the potential regulatory violations. And Defendants’ ability to maintain safe drinking

water standards would certainly be newsworthy and concerning to the public. See

Lane, 573 U.S. at 241.

Accepting all factual allegations in Romero’s Complaint as true, and drawing

all reasonable inferences in Romero’s favor, the Court finds that Romero has alleged

sufficient facts to survive the Defendants’ judgment on the pleadings on his First

Amendment retaliatory discharge claim.

C. The Individual Defendants Are Not Entitled To Qualified Immunity

On Romero’s First Amendment Retaliation Claim.

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.” Colorez, 441 F. Supp. 3d at 567

(citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Accordingly, in determining

whether the individual defendants here (Douglas Adkins, Scott Belcher, Mark

Clemons, and Scott Tadych) are entitled to qualified immunity, the Court asks 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. (citing Phillips v. Roane Cty., 534

F.3d 531, 538–39 (6th Cir. 2008)). The Court already answered the first question in

the affirmative (at least at the judgment on the pleadings stage).

As for the second question, the individual defendants argue that the right here

was not clearly established. Of course, the answer on that front depends to some

extent on how the right at issue is described. The individual defendants characterize

it as the right to “engage in speech that impedes the government’s ability to fulfill its

duties and functions.” (Defs.’ Mot. at #99). Characterized in that manner, the Court

may well agree with them. But, at this stage of the litigation, without discovery, and

looking only at the pleadings, in addressing the qualified immunity issue the Court

draws all reasonable inferences in Romero’s favor as it is required to do. See Greer v.

City of Highland Park, 884 F.3d 310, 313 n.1 (6th Cir. 2018); Enoch v. Hogan, 728 F.

App’x 448, 454 (6th Cir. 2018). And the allegations do not suggest that Romero

impeded the individual defendants’ abilities to fulfill their duties and functions, as

they claim, but rather that he was encouraging them to do their jobs better. Thus,

the individual defendants’ characterization of the right does not (at least currently)

work. Rather, the right at issue here is more properly characterized as a public

employee’s right to be free from retaliation for exercising his or her right to free

speech. And “[i]t is clearly established that a State may not discharge an employee

on a basis that infringes that employee’s constitutionally protected interest in

freedom of speech.” Rankin v. McPherson, 483 U.S. 378, 383 (1987).

Because, at least for purposes of a judgment on the pleadings, Romero has

shown that a constitutional violation occurred, and that the constitutional right at

issue was clearly established at the time of Romero’s termination, the Court denies

the individual defendants’ assertion of qualified immunity for Romero’s First

Amendment claim.

CONCLUSION

Based on the foregoing, the Court GRANTS in part and DENIES in part

Defendants’ Motion for Judgment on the Pleadings. (Doc. 10). Romero’s Ohio law

wrongful discharge in violation of public policy claim is DISMISSED WITHOUT

PREJUDICE to allow him to identify specific public policies and their sources that

would meet the clarity element, as discussed above. The Court directs Romero to file

any such amended Complaint within twenty-eight (28) days.

SO ORDERED.

August 18, 2020

DATE DOUGLAS R. COLE

UNITED STATES DISTRICT JUDGE

39