Katula v. Delaware County Board of Elections

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ROBERT KATULA,

Plaintiff,

Civil Action No. 2:23-cv-2199

v. JUDGE EDMUND A. SARGUS, JR.

Magistrate Judge Kimberly A. Jolson

DELAWARE COUNTY BOARD

OF ELECTIONS, et al.,

Defendants.

OPINION AND ORDER

This matter is before the Court on Defendants Delaware County Board of Elections and

Peg Watkins’s Motion for Judgment on the Pleadings. (Mot., ECF No. 13.) For the reasons stated

below, the Court DENIES Defendants’ Motion.

BACKGROUND

This case arises from Plaintiff Robert Katula’s termination from the Delaware County

Board of Elections (the “Board”). While Defendants dispute Katula’s allegations, the Court must

take Katula’s factual allegations as true at this stage of the case. The primary dispute in the case,

and a dispositive issue for the pending Motion, is the nature of Katula’s position. The Court first

summarizes the nature of Katula’s role, then recounts his termination.

I. Katula’s Employment

Katula was employed by the Board as an “election specialist.” (Am. Compl. ECF No. 9, ¶

8.) Katula contends that his role as an election specialist was merely “administrative” and required

the “impartial” assignment of poll workers, and thus did not require subscription to a political

ideology. (Id. at ¶¶ 9–10.) Defendants, instead, assert that Katula was hired as a “Democratic

Election Specialist,” a position the Board classifies as one that is filled “by balancing out political

representation.” (Answer, ECF No. 12, ¶¶ 5, 6.)

According to Defendants, “Election Support Specialists are hired based on partisan

affiliation to effectively comply with Ohio law regarding responsibilities of election officials

which must require employees of opposite political parties to perform the same function at the

same time.” (Id. at ¶ 6.) In support of this contention, Defendants provided meeting minutes for

the hiring of Katula as a “Democratic worke[r]” (Answer, Ex. A, ECF No. 12-1, at PageID # 80),

and for the hiring of a “part time Republican Election Support Specialist.” (ECF No. 12-2, Ex. B,

at PageID # 83.) Defendants suggest that these meeting records demonstrate that Katula and “his

Republican counterparts” were hired “based on their partisan affiliation.” (Defs. Mot., ECF No.

13, at PageID # 97.) Moreover, Defendants stated that partisan affiliation is an “essential

requirement” of the election specialist position (Answer, ECF No. 12, ¶ 23), and that they checked

Katula’s voter registration to ensure he was a Democrat. (Id. ¶ 6.)1

II. Katula’s Politics and Termination

While Katula identifies as a “moderate” Democrat, he indicates that he had “grown

frustrated” with the polarized nature of American politics. (Am. Compl. ¶¶ 17, 25.) During his

time working for the Board, he maintained an intimate relationship with a Republican. (Id. ¶ 20.)

Watkins was aware of Katula’s relationship (Answer, ECF No. 12, ¶ 15), and Katula alleges that

Watkins had openly expressed disapproval. (Am. Compl., ECF No. 9, ¶ 21.) Katula states that he

disagreed with Watkins’ “extreme approach” and “far” left political leanings. (Id. ¶¶ 18–20.)

Nevertheless, the two continued to work together “without incident.” (Id. ¶ 22.)

1 Katula is a member of the Delaware County Democratic Party, of which Watkins is the chair.

(Id. ¶¶ 14, 15.)

On the evening of April 6, 2023, outside of work hours, Katula took his political grievances

online. (Id. ¶ 23.) He posted—on his Facebook page—that he was a “middle of the road, right

leaning person” and that “[m]ost so-called progressives are in a box so small that they should be

called little idealogues.” (Id.) When Katula returned to work on April 10, he realized he no longer

had access to the office and was escorted to meet with Watkins. (Id. ¶¶ 27, 28.) During this

meeting, Watkins informed Katula that his post, along with other “prior statements,” raised

question of his party loyalty and he would be considered for termination as a result. (Id. ¶ 29;

Answer, ECF No. 12, ¶ 22.) Katula was, indeed, terminated. Watkins alleges that she fired Katula

based on his Facebook post and “prior statements suggesting a lack of loyalty to the Democratic

Party,” (Answer, ¶ 22) and not because of his relationship with a Republican. (Id. ¶ 35.)

Katula has filed a two-count complaint in this Court alleging a claim of First Amendment

Retaliation in Violation of 42 U.S.C. § 1983 for his termination based on his Facebook post (Am.

Compl., ECF No. 9, ¶¶ 34–40), and a Fourteenth Amendment Retaliation claim for his termination

based on his protected intimate association with a Republican. (Id. ¶¶ 42–44.) Defendants moved

for judgment on the pleadings on the two claims. (Mot., ECF No. 13.) Katula responded in

opposition (Pl. Resp., ECF No. 14), and Defendants replied (Reply, ECF No. 15.)

STANDARD OF REVIEW

The Federal Rules of Civil Procedure provide that, “after the pleadings are closed—but

early enough not to delay trial—a party may move for judgment on the pleadings.” Fed. R. Civ.

P. 12(c). The standard of review for a Rule 12(c) motion for judgment on the pleadings is identical

to the standard for a motion to dismiss under Rule 12(b)(6). Sensations, Inc. v. City of Grand

Rapids, 526 F.3d 291, 295 (6th Cir. 2008). To state a claim upon which relief may be granted,

plaintiffs must satisfy the pleading requirements set forth in Rule 8(a). While Rule 8(a)(2) requires

a pleading to contain a “short and plain statement of the claim showing that the pleader is entitled

to relief,” in order “[t]o survive a motion to dismiss, a complaint must contain sufficient factual

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

556 U.S. 662, 677–78 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A

claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (clarifying

the plausibility standard articulated in Twombly). Furthermore, “[a]lthough for purposes of a

motion to dismiss [a court] must take all the factual allegations in the complaint as true, [it][is] not

bound to accept as true a legal conclusion couched as a factual allegation.” Id. at 677–79 (quoting

Twombly, 550 U.S. at 55) (internal quotations omitted).

ANALYSIS

Because determining whether Watkins is entitled to qualified immunity necessarily

overlaps with determining whether Katula has pled plausible First and Fourteenth Amendment

claims, the Court will address (I) Katula’s First Amendment claim; (II) Katula’s Fourteenth

Amendment claim; and then (III) whether Watkins is entitled to qualified immunity.

I. Katula’s First Amendment Retaliation Claim

First Amendment retaliation claims under § 1983 require a plaintiff to show (1) that his

speech was constitutionally protected, (2) he was subject to “adverse action or was deprived of

some benefit,” and (3) the protected speech was a “substantial” or “motivating factor” for the

adverse action. Brandenburg v. Hous. Auth. of Irvine, 253 F.3d 891, 897 (6th Cir. 2001) (quoting

Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). Public employees

face additional hurdles to show their speech was constitutionally protected. As a public employee,

Katula must demonstrate that (1) he was speaking as a private citizen, (2) on a matter of public

concern, and (3) his interest in commenting on the matter outweighed the state’s interest as an

employer. Westmoreland v. Sutherland, 662 F.3d 714, 718–19 (6th Cir. 2011) (citing Garcetti v.

Ceballos, 547 U.S. 410, 417 (2006)).

Under the third element’s balancing requirement, the balance favors the government as a

matter of law where the discharge of a policymaking employee is related to his political or policy

views. Rose v. Stephens, 291 F.3d 917, 923 (6th Cir. 2002) (the “Rose presumption”). For the

Rose presumption to apply in the government’s favor, the plaintiff must (1) have held a

policymaking position and (2) have spoken “on a matter related to political or policy views.”

Dixon v. Univ. of Toledo, 702 F.3d 269, 275 (6th Cir. 2012). While the parties dispute whether

Katula was speaking as a private citizen or that the speech was a matter of public concern, the crux

of the issue is the classification and nature of Katula’s position. If it was a policymaking position,

the balance would tip in Defendants’ favor as a matter of law.

Given the extensive rules governing First Amendment claims for public employees, the

Court first discusses the applicable law for determining whether an employee holds a policymaking

position. Second, the Court applies the law to Katula’s claim.

A. The Branti Exception for Policymaking Employees

Dismissals based on an individual’s political party are generally unconstitutional unless

partisan affiliation is an appropriate requirement of the position. Caudill v. Hollan, 431 F.3d 900,

908 (6th Cir. 2005) (discussing the “Branti exception” and citing Branti v. Finkel, 445 U.S. 507

(1980)). In creating the Branti exception, the Supreme Court held that a plaintiff must first make

a prima facie case that his dismissal was due to his political affiliation. Branti, 445 U.S. at 517.

If so, the burden shifts to the defendant to show that the plaintiff’s job was a “policymaking

position,” and thus a patronage dismissal was constitutional. Id. at 517–18. A position falling

under the Branti exception is thus shielded from constitutional scrutiny with respect to partisan-

based dismissals. Moreover, the Sixth Circuit has held that the discharge of a policymaking public

employee “on the basis of speech related to his political or policy views” is presumptively

constitutional. Rose, 291 F.3d at 921. However, defendants have the burden under Branti to

demonstrate that Katula’s position was a “policymaking” position as a matter of law.

The Sixth Circuit has held that, to determine whether a job constitutes a “policymaking”

position, the ultimate inquiry is not whether a position may be appropriately labelled as involving

“policymaking,” but rather whether the hiring authority can “demonstrate that party affiliation is

an appropriate requirement for the effective performance of the public office involved.” Lane v.

City of Lafollette, 490 F.3d 410, 419 (6th Cir. 2007) (quoting Branti, 445 U.S. at 518). The inquiry

focuses on the “inherent duties” of the position, and not on the position as it was performed by the

plaintiff. Id. (citing Faughender v. City of N. Olmstead, 927 F.2d 909, 913 (6th Cir. 1991)).

Whether political affiliation is an “appropriate” consideration for the position is a question of law.

Sowards v. Loudon Cnty., 203 F.3d 426, 435 (6th Cir. 2000); see also Rice v. Ohio Dept. of Transp.,

14 F.3d 1133, 1142 (6th Cir. 1994) (“[T]he test is not whether party affiliation and support are

essential to the effective performance of the public office involved; the test, under Branti, is

whether these are ‘appropriate’ requirements.”). While this is a matter of law, the inquiry is

governed by the “nature of the responsibilities” and must be made on a case-by-case basis.

Peterson v. Dean, 777 F.3d 334, 341–42 (6th Cir. 2015). A court must thus “look beyond the mere

job title and examine the inherent duties of the position at issue.” Id. at 342 (citing Lane, 490 F.3d

at 419).

To aid in its “policymaking” analysis, the Sixth Circuit elucidated four categories of

government employment within the scope of the Branti exception. McCloud v. Testa, 97 F. 3d

1536, 1557 (6th Cir. 1996). The four McCloud categories are:

Category One: positions specifically named in relevant federal, state, county, or

municipal law to which discretionary authority with respect to the enforcement of

that law or the carrying out of some other policy of political concern is granted[];

Category Two: positions to which a significant portion of the total discretionary

authority available to category one position-holders has been delegated; or

positions not named in law, possessing by virtue of the jurisdiction's pattern or

practice the same quantum or type of discretionary authority commonly held by

category one positions in other jurisdictions[];

Category Three: confidential advisors who spend a significant portion of their

time on the job advising category one or category two position-holders on how to

exercise their statutory or delegated policymaking authority, or other confidential

employees who control the lines of communications to category one positions,

category two positions or confidential advisors[];

Category Four: positions that are part of a group of positions filled by balancing

out political party representation, or that are filled by balancing out selections made

by different governmental agents or bodies[].

Id. at 1557 (footnotes omitted). Each of these categories were derived from the reasoning in Branti

and sought to cover specific examples. The Sixth Circuit stated that category four, for example,

was “formulated to accommodate the example given in Branti that an election judge could be

dismissed without violating the First Amendment where state law requires that one election judge

be a Democrat and the other a Republican.” Id. (citing Branti, 445 U.S. at 518). The McCloud

court gave its own illustrative examples, including the following for a category four position:

[A] gubernatorially-appointed Democratic economist placed on a revenue

forecasting committee consisting by law of two economists (one Republican and

one Democrat) chosen by the state legislature, two economists of similar party

affiliation chosen by the governor, and one economist of any party chosen by the

president of the state’s most prominent university.

Id. at 1557–58.

The employee’s position, however, is not required to fit neatly into one of the four

categories to be considered “policymaking” under the Branti exception. Feeney v. Shipley, 164

F.3d 311, 318 (6th Cir. 1999). The “touchstone” of a court’s Branti inquiry is whether the hiring

party can show that partisan affiliation is “an appropriate requirement for the effective

performance” of the position. Libertarian Party of Ohio v. Wilhelm, 988 F.3d 274, 281 (6th Cir.

2021) (quoting Branti, 445 U.S. at 518). Furthermore, if a position is ambiguous with respect to

whether it falls into one of the four categories, the ambiguity must be construed in favor of the

governmental defendants when the position is unclassified or non-merit under state law. McCloud,

97 F.3d at 1557 (citing Rice, 14 F.3d at 1143).

Bare assertions that political membership is essential to job performance is insufficient to

carry the government’s burden to demonstrate that partisan affiliation is an appropriate

requirement for the position. See id. at 1558. Where the evidence offered by the governmental

defendants is insufficient to show the inherent duties of the position, the Sixth Circuit has found

summary judgment or qualified immunity inappropriate as a matter of law. See e.g., Caudill v.

Hollan, 431 F.3d 900, 910 (6th Cir. 2005) (holding that where defendant could not show that a

deputy county clerk position fell under any of the McCloud categories, dismissal of a clerk position

with routine duties for political affiliation was a constitutional violation); Lane v. City of Lafollette,

490 F.3d 410, 420–22 (6th Cir. 2007) (holding summary judgment was inappropriate where the

record “disclose[d] neither the inherent duties of the [plaintiff’s former position], nor the duties of

the position as envisioned by Defendants,” thus defendants failed to demonstrate political

affiliation was an appropriate requirement for the position as a matter of law).

In McCloud, the Sixth Circuit affirmed the district court’s denial of qualified immunity

because it found the duties of McCloud’s position as a staff attorney unclear. 97 F.3d at 1560.

Citing the “barren record” before the court without any “helpful state or county law” to help discern

the requirements of the position, the court held that it simply could not conclude that the defendant

was entitled to qualified immunity as a matter of law. Id. at 1561 (citing “uncertainties about the

facts and the absence of any citations” to a governing statute). Indeed, as the Sixth Circuit

suggested:

[When] a governmental employee may be nothing more than a supervisor with a

glorified title who is simply performing functions over which he or she has no

discretion, or no discretion of political significance, then this court cannot grant

qualified immunity to a governmental defendant with respect to adverse

employment actions taken against such lower-level public employees in an

interlocutory appeal . . . . In these circumstances, resolution of the qualified

immunity issue will need to await further proceedings.

Id. at 1559.

Thus, where the inherent duties of the position are unclear from the record and there is no

statutory provision that mandates partisan balancing, the government does not benefit from the

favorable presumption. Moreover, where statutory provisions or duties performed by the plaintiff

do not suggest that partisan affiliation is an appropriate requirement, courts have found the Branti

exception inapplicable. See e.g., Sowards v. Loudon Cnty., 203 F.3d 426, 438 (6th Cir. 2000)

(reversing the district court’s grant of summary judgment to defendants, finding party affiliation

was not an appropriate requirement of a county jailer, who by law was tasked with attending to the

needs of inmates); but see Peterson v. Dean, 777 F.3d 334, 347 (6th Cir. 2015) (“[T]he fact that

some duties of the administrator may be classified as ‘ministerial’ does not preclude the

determination that other designated duties . . . are policymaking and inherently political tasks.”).

B. Whether Katula was employed in a “policymaking position”

Considering these standards, the Court now turns to whether Katula’s “election specialist”

role is a policymaking position under Branti. In reviewing the limited record before it, the Court

cannot conclude that Katula was in a policymaking position at this juncture.

A dispositive issue for the Defendants’ motion is whether Katula’s “election specialist”

position is subject to the Branti exception as a matter of law. Mumford v. Basinski, 105 F.3d 264,

270–71 (6th Cir. 1997). If Katula’s position were classified as and continued to be viewed as a

policymaking position under Branti, then his First Amendment claim must fail. Likewise, if

Katula’s position is ambiguous with respect to its policymaking status, the ambiguity should be

construed in favor of the Defendants. If, however, the position’s status is unclear or the record

cannot sufficiently establish that Katula’s job is considered a policymaking position or a position

filled to balance political representation, then judgment on the pleadings is inappropriate.

For Defendants to meet their burden of showing that Katula’s position falls under the

Branti exception, they must show either (1) that the inherent duties of the position are political in

nature or that partisan affiliation is an appropriate requirement for the position; or (2) the

legislature has delineated, by statute, that the particular position is political, in which case the Rice

cannon requires judicial deference to the legislative determination. See Caudill, 431 F.3d at 909

(citing Rice, 14 F.3d at 1143).

Defendants argue that Katula’s position may be classified as a “category four” position

under McCloud. (Defs. Mot., ECF No. 13, at PageID # 97.) Defendants point to a recent Sixth

Circuit decision to support their contention and argue that Katula could be terminated based on his

policy-related speech. Citing Schwamberger v. Marion County Board of Elections, Defendants

argue that Katula held a similar “policymaking” position and may properly be terminated for

political affiliation. (Id. (quoting Schwamberger v. Marion Cty. Bd. of Elections, 988 F.3d 851,

857–59 (6th Cir. 2021)).) In Schwamberger, the Sixth Circuit affirmed dismissal of the plaintiff’s

complaint, finding that her position as a deputy director at the county board of elections fell under

the category four Branti exception. 988 F.3d at 857. Unlike Katula’s position, however, Ohio law

required Ms. Schwamberger’s deputy director position to include members of opposite political

parties. Id. at 854–55 (citing R.C. § 3501.091 (“The director and deputy director shall be of

opposite political parties.”)). The court found four relevant sections of the Ohio Revised Code

that suggested the deputy director position was required to be filled through partisan balancing and

could be terminated at the discretion of the board or the Secretary of State. Id. (citing R.C. §§

3501.11(D), 3501.09, 3501.16). The court held that Ohio law made Ms. Schwamberger a

policymaking employee under category four, and thus her speech related to the board’s election

policies was unprotected. Id. at 857.

Katula’s position is less of a category four match. Defendants have not offered evidence

that his position is required—by Ohio law—to be filled through partisan balancing, whereas Ohio

law expressly required that Ms. Schwamberger’s position be filled with a member of the opposing

political party. Indeed, both Defendants and Katula agree there that there is “no such requirement”

under Ohio law that mandates partisan balancing for Katula’s position. (Pl. Resp., ECF No. 14, at

PageID # 113; Defs. Reply, ECF No. 15, at PageID # 121.) Instead, Defendants contend that

filling roles by partisan affiliation is a “necessary measure to comply” with state laws that “restrict

the party membership of ballot workers performing certain tasks.” (Reply, at PageID # 121.)

Whether Katula ever performed these tasks or whether the Board contemplated him to perform

such tasks is absent from the record.

Defendants’ citation to Ohio law is unavailing. Defendants cite to several provisions of

the Ohio Revised Code that require both the board and the directors to reflect political balancing,

as well as those that require certain election procedures to be followed by “bipartisan teams of

election officials,” to suggest that partisan affiliation is an appropriate requirement of all Board

employees. (Defs. Mot., ECF No. 13, at PageID # 99.) While the Sixth Circuit has held that “the

entire operation of the election commission is a matter of political concern where the party in

power is granted, by statute, control over the management of local elections in a manner that the

major political party believes best comports with the requirements of the law,” Peterson v. Dean,

777 F.3d 334, 349 (6th Cir. 2015), there is nothing in the Revised Code that requires all board

employees be hired to balance partisan affiliation.

Defendants reference provisions such as R.C. 3509.05(C)(3)(d) and R.C. 3505.31 as

support for the proposition that all county board of election employees are appointed to balance

out party representation. (Mot., ECF No. 13, at PageID # 99.) Yet, the plain language of the

statutory scheme suggests that only specified positions are required to be filled with an eye to

political balancing. Defendants argue that any employee of a county board of elections is hired to

balance out party representation because four provisions of the Revised Code have procedures that

require bipartisan election officials. (Id.) However, even interpreting the statutory scheme as a

whole, it is unclear from the statutes that all employees falling under the “election official”

umbrella of R.C. 3501.01(U) are appointed to fulfill partisan balancing. (Id.); R.C. 3501.01(U)(3)-

(8). That the language throughout the chapter makes specific reference to when a position requires

partisan balancing undercuts Defendants’ position. See e.g., R.C. 3505.31 (requiring a voting

location manager and a board employee to be of different political parties to deliver ballot

containers); R.C. 3505.331(B)(3)(a) (requiring “bipartisan teams of election officials to physically

examine and hand count randomly sampled ballots”); R.C. 3501.09 (“The director and deputy

director shall be of opposite political parties”); R.C. 3501.16 (“vacancies in the office of

chairperson, director, or deputy director shall be filled . . . from persons belonging to the same

political party as that to which the outgoing officer belonged”).

Nor does McCloud answer the question for this Court. Defendants argue that McCloud

only requires that the position be “part of a group of positions filled by balancing out political party

representation.” (ECF No. 13, at PageID # 98.) Indeed, the McCloud court read the Branti

exception broadly, holding that patronage dismissal is constitutionally permissible if the

government defendants can demonstrate that partisan affiliation is an appropriate qualification,

even if the position does not fall neatly within one of the four categories. 97 F.3d at 1557.

However, courts have not deferred to the government based on the invocation of a talismanic

phrase, but rather have focused the inquiry on the underlying duties required of the position or

legislative determinations on the nature of the position.

Nor does this Court read McCloud so broadly. The McCloud court specifically created

category four as an example for judgeships “where state law requires that one election judge be a

Democrat and the other a Republican.” McCloud, 97 F.3d at 1557 (emphasis added) (citing Branti,

445 U.S. at 518). And the Sixth Circuit’s own illustrative example contemplated roles where

balancing was explicitly required by state law. Id. at 1557–58 (discussing positions where state

law required the positions to be filled by political balancing). Thus, while McCloud described

category four positions as those which are filled to balance out party representation, generally, all

examples given involved state law requiring such balancing—circumstances which are absent

here.

Despite Defendants’ suggestion that the Board comprises partisan employees all the way

down its ranks, the precise nature of Katula’s position is unclear from the pleadings and statutes

alone. Defendants have not suggested that Katula’s position requires the kind of discretion central

to the policymaking inquiry, and instead argue that whether Katula “served as a grunt or line

worker” is “legally irrelevant.” (Defs. Reply, ECF No. 15, at PageID # 120.) Under Defendants’

interpretation of Sixth Circuit law, it is sufficient for the government to declare that the position is

filled by balancing political party representation. (Id. at PageID # 121.) This misinterprets the

Sixth Circuit’s decisions, which do not merely take the governmental defendant’s bare assertion

that it hired an individual because of their partisan affiliation. See e.g., Lane v. City of Lafollette,

490 F.3d 410, 420–22 (6th Cir. 2007); McCloud, 97 F. 3d at 1561. Indeed, while the Board may

have made affiliation with the Democratic Party a requirement for Katula’s position, it has not yet

demonstrated that such requirement is appropriate. Nor have Defendants shown that Ohio law

requires them to fill Katula’s position to balance political party representation, as contemplated in

McCloud.

As in McCloud, the “barren record” before the Court is insufficient to find that Katula’s

position falls under the Branti exception as a matter of law, and thus judgment on the pleadings

on the First Amendment claim is inappropriate. For these reasons, the Court DENIES Defendants’

Motion regarding Katula’s First Amendment claim.

II. Katula’s Fourteenth Amendment Retaliation Claim

Defendants argue that Katula has failed to state a plausible Fourteenth Amendment claim.

Specifically, Defendants argue that Katula has not plead a causal connection between his

relationship with a Republican and his termination. (Defs. Mot., ECF No. 13, at PageID # 101.)

The Court disagrees. First, the Court summarizes what Katula must plead to state a claim. Second,

the Court applies this law to Katula’s Amended Complaint. Construing all reasonable inferences

in Katula’s favor at this early stage of litigation, the Court finds he has adequately pleaded a claim

for relief under the Fourteenth Amendment.

A. Substantial or Motivating Factor in the Adverse Action

The Fourteenth Amendment protects a person’s right to intimate association. Hartwell v.

Houghton Lake Community Schools, 755 Fed. App’x 474, 476 (6th Cir. 2018).

In Hartwell, the Sixth Circuit outlined two trajectories of analysis at the early stages of a

claim alleging retaliation in violation of the Fourteenth Amendment. Id. at 479 (“We always apply

a tier of scrutiny to intimate-association cases when legitimate governmental interests at least

partially motivate a challenged government action. But sometimes we need not apply that

framework in detail at the summary judgment stage because there is enough evidence for a

reasonable jury to find that the only motivating factor was punishment.”). Where there may be

evidence for a reasonable jury to find that the only motivating factor for the adverse action was for

punishment or “purely illegitimate reasons,” the governing inquiry is an “isolated action” test. Id.

The threshold inquiry for the Court is thus whether the claim challenges an existing policy, or

instead arises from an isolated adverse action “not justified or authorized by any preexisting

policy.” Dade v. Franklin Cnty., No. 2:17-CV-552, 2019 WL 2422247, at *4 (S.D. Ohio June 10,

2019), aff’d sub nom. Dade v. Baldwin, 802 F. App’x 878 (6th Cir. 2020).

When the claim is based on an isolated action, such as here, a plaintiff must demonstrate

that (1) he was involved in a protected intimate association, and (2) that his “protected conduct

was a substantial or motivating factor of the termination.” Hartwell, 755 Fed. App’x at 479.

Causation may be shown through “the temporal proximity between the discovery of protected

conduct and an adverse action,” Id. at 480 (citing Mickey v. Zeidler Tool & Die Co., 516 F.3d 516,

525 (6th Cir. 2008)), but at the very least, the plaintiff must establish a causal connection between

the subjective motivation of the defendant and the termination. Dade v. Baldwin, 802 Fed. App’x

878, 882–83 (6th Cir. 2020). If a plaintiff can make such a showing, then a defendant has the

burden to prove that it would have fired the plaintiff regardless of the relationship. Hartwell, 755

Fed. App’x at 480.

Two cases demonstrate these rules. First, consider the facts of Hartwell, where a plaintiff

could not demonstrate sufficient causation. There, the Sixth Circuit affirmed summary judgment

in favor of the defendants where there was evidence suggesting poor performance by the plaintiff,

Ms. Hartwell, and a resistance to feedback, with any “retaliation” centering on “bad behavior”

rather than her intimate association. Id. at 480. Ms. Hartwell alleged that her contentious

relationship with her husband and his ex-wife, as well as incidents involving her stepchildren who

attended Houghton Lake, led the school to reprimand and later fire her. Id. at 475–76. However,

the court highlighted significant evidence regarding Ms. Hartwell’s poor performance, suggesting

the motivation for the adverse action was performance-based and not punishment for her intimate

association. Id. at 479 (“Simply put, Houghton Lake fired Hartwell because she performed poorly

inside the classroom and acted inappropriately outside the classroom.”). Consequently, no

reasonable jury could have found that Ms. Hartwell’s intimate associations were a substantial or

motivating factor in her termination. Id. at 480. The court likewise held that the school could

survive a rational basis review, as her intimate association put the school at legal risk and could

permissibly be a factor in her termination. Id. at 480–81.

Second, consider Sowards v. Loudon County. There, the Sixth Circuit allowed an intimate

association claim to survive dismissal. In Sowards, the plaintiff presented sufficient evidence to

permit a reasonable jury to conclude her termination was substantially motivated by her protected

association, as she had been a dependable employee and “had never been involved in any serious

disciplinary action.” 203 F.3d 426, 434 (6th Cir. 2000). Ms. Sowards alleged that her relationship

with her husband, who ran against her employer in the primary for County Sheriff, led to her losing

her position as a jailer at the Sheriff’s Department. Id. at 433. The court rejected the defendants’

contention that she was terminated for poor performance. Id. at 433–34. The court understood

the record as evincing an unblemished work history prior to her husband’s campaign, which,

coupled with the Sheriff’s elucidating statements as to her (lack of) political support, demonstrated

that her protected intimate association could be found to be a motivating factor in her termination.

Id. at 433–35.

B. Whether Katula sufficiently alleged that his relationship was a substantial or

motivating factor in the adverse action

Here, Katula’s allegation that he was terminated because of his intimate association with a

Republican sits somewhere between the factual poles of Soward and Hartwell. Unlike the plaintiff

in Soward, there are other explanations for Katula’s firing—namely, the April 6 Facebook post.

Indeed, the Board and Watkins state that Katula’s post was the reason for his termination. (Am.

Compl., ECF No. 9, ¶ 29.) Katula acknowledges such reasoning in his complaint, but also adds

that, upon information and belief, Watkins “retaliate[d] against him for engaging in an intimate

relationship with a member of the Republican Party.” (Id. at ¶ 31.) This conclusion is drawn from

Katula’s allegation that Watkins was displeased with his intimate relationship with a Republican

and “openly expressed her disapproval” by calling him outside of working hours to interrogate

him on the relationship. (Id. at ¶¶ 20–21.) However, like the plaintiff in Hartwell, significant time

elapsed between the discovery of the existence of Katula’s protected association and his

termination. Indeed, Katula undercuts his own assertion by stating that at all relevant times he had

maintained such relationship and that he and Watkins “continued to work at the Board of Elections

without incident” until his April 6 post. (Id. at ¶ 22.)

Defendants have suggested that Katula was free to intimately associate with any individual,

regardless of political affiliation (Answer, ECF No. 12, ¶ 15), but that his “public statements” and

“other activities” suggesting a lack of party loyalty were concerning (Id. at ¶ 12) and ultimately

led to his termination. (Id. at ¶ 22.)

Accordingly, whether Katula has carried his low burden of pleading a causal connection

between his relationship and his termination is a close call. No adverse actions arose after Watkins

learned of the relationship and called Katula to express her disapproval, and the timeline of when

such actions occurred during his three-year tenure at the Board are unclear form the pleadings.

However, Katula argues that Watkins was “looking for any excuse to terminate him” after learning

of his relationship, and that the “benign nature of the April 6 Facebook post” suggests that “it can

reasonably be inferred that Watkins had continued to harbor an ongoing resentment towards

Katula.” (Pl. Resp., ECF No. 14, at PageID # 110, 114.) Further evidence of these assertions may

be developed during discovery, and thus judgment on the pleadings is not appropriate.

Drawing all reasonable inferences in Katula’s favor at this early stage of litigation, the

Court DENIES Defendants’ Motion regarding Katula’s Fourteenth Amendment claim.

III. Qualified Immunity

A government official performing discretionary functions is shielded from civil liability

for damages under the qualified immunity doctrine if their conduct does not violate a clearly

established statutory or constitutional right of which a reasonable person would have known.

Heggen v. Lee, 284 F.3d 675, 686 (6th Cir. 2004) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). Courts have traditionally evaluated the application of qualified immunity under a two-

step inquiry, Saucier v. Katz, 533 U.S. 194, 201–02 (2001), though a court may address the two

prongs in either order. Pearson v. Callahan, 555 U.S. 223, 236 (2009).

Under the first prong, courts asks whether, in the light most favorable to the plaintiff, the

facts alleged demonstrate that the official violated a constitutional right. Saucier, 533 U.S. at 201.

Under the second prong, the court assesses whether the public official violated a “clearly

established” legal rule, such that it would be evident to a reasonable official that the pertinent

conduct was unlawful. Beck v. Hamblen Cnty., 969 F.3d 592, 599 (6th Cir. 2020). While the

original Saucier sequence of analysis—that is, discerning the constitutional right as a threshold

matter—may be appropriate to the circumstances, district courts may exercise discretion as to

which analysis to address first. Pearson, 555 U.S. at 236. Where the resolution of the first prong

may depend on a “kaleidoscope of facts not yet fully developed,” id. at 239, it may prove less

cumbersome to address whether there existed a clearly established right at the outset. See e.g.,

Lawler v. Hardeman Cnty., 93 F.4th 919 (6th Cir. 2024).

Here, as discussed above, both the relevant First Amendment and Fourteenth Amendment

violations have delineated contours in case law that would likely give notice to a public official as

to what conduct is within the bounds of constitutional permissibility under the second prong. The

more difficult inquiry—though dispositive for both parties—is whether Katula can establish a

constitutional violation under the first prong of a qualified immunity analysis. Consequently,

whether a constitutional right at issue has been violated should be addressed as the first step.

The rights at issue, however, can likely only be determined as a matter of law based on

information not currently developed in the record. Because neither constitutional violation can

likely be established or dismissed as a matter of law on the pleadings alone, the qualified immunity

doctrine would be inappropriate to apply at this stage. The McCloud court aptly described this

issue:

It will frequently be possible to find that a governmental defendant who takes an

adverse action against a public employee is entitled to qualified immunity because

it will be undisputed that the position falls into the category of positions akin to

cabinet secretaries, or akin to confidential assistants to cabinet secretaries. When,

however, a governmental employee may be nothing more than a supervisor with a

glorified title who is simply performing functions over which he or she has no

discretion, or no discretion of political significance, then this court cannot grant

qualified immunity to a governmental defendant with respect to adverse

employment actions taken against such lower-level public employees in an

interlocutory appeal such as this. In these circumstances, resolution of the qualified

immunity issue will need to await further proceedings.

McCloud, 97 F.3d at 1559.

Accordingly, the Court will not find that Watkins is entitled to qualified immunity at this

stage.

CONCLUSION

For the reasons stated herein, the Court DENIES Defendants’ Motion for Judgment on the

Pleadings. (ECF No. 13.)

This case remains open.

IT IS SO ORDERED.

7/11/2024 s/Edmund A. Sargus, Jr.

DATE EDMUND A. SARGUS, JR.

UNITED STATES DISTRICT JUDGE