Roberts v. Ward

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0438p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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GENELL ROBERTS; SANDRA DALE; and WILLIAM

Plaintiffs-Appellants, -

LESLIE,

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No. 05-6305

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v. >

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GEORGE WARD, individually and in his capacity as

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Commissioner of Parks, Commerce Cabinet of the

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Commonwealth of Kentucky; COMMONWEALTH OF

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KENTUCKY; and OTHER UNKNOWN OFFICIALS OF

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KENTUCKY,

Defendants-Appellees. -

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Appeal from the United States District Court

for the Eastern District of Kentucky at London.

No. 04-00262—Danny C. Reeves, District Judge.

Argued: July 20, 2006

Decided and Filed: November 27, 2006

Before: MARTIN and SUTTON, Circuit Judges; JORDAN, District Judge.*

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COUNSEL

ARGUED: Phillip J. Shepherd, LAW OFFICE OF PHILLIP SHEPHERD, Frankfort, Kentucky,

for Appellants. Robert L. Roark, WALTHER, ROARK, GAY & TODD, Lexington, Kentucky, for

Appellees. ON BRIEF: Phillip J. Shepherd, LAW OFFICE OF PHILLIP SHEPHERD, Frankfort,

Kentucky, Ned B. Pillersdorf, PILLERSDORF, DeROSSETT & LANE, Prestonsburg, Kentucky,

for Appellants. Robert L. Roark, WALTHER, ROARK, GAY & TODD, Lexington, Kentucky, for

Appellees.

*

The Honorable R. Leon Jordan, United States District Judge for the Eastern District of Tennessee, sitting by

designation.

1

No. 05-6305 Roberts, et al. v. Ward, et al. Page 2

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OPINION

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BOYCE F. MARTIN, JR., Circuit Judge. Plaintiffs Genell Roberts, Sandra Dale, and

William Leslie were employees of the Kentucky Department of Parks. They were terminated from

employment in May 2004 for failing to comply with the Department’s dress code. They

subsequently filed suit, alleging violations of their First Amendment, equal protection, and

procedural and substantive due process rights, as well as state statutes. The district court granted

a partial motion to dismiss for failure to state a claim in favor of defendants, and later dismissed the

remaining claims pursuant to the defendant’s motion for summary judgment. The plaintiffs now

appeal these dismissals. For the following reasons, we AFFIRM the district court.

I.

The district court set forth the following relevant facts in its opinion granting summary

judgment:

The Plaintiffs were seasonal workers employed to perform maintenance services at

the General Burnside State Park during the summer months. Sandra Dale, a six-

summer veteran of the park, as well as William Leslie and Genell Roberts, both four-

summer veterans, maintained “spotless work records.” (Amended Compl. at ¶¶ 3-4.)

Dale, in particular, “received several positive commendations” for her work.

On May 18, 2004, Director of Parks George Ward sent an e-mail to all managers of

Kentucky state parks which set into motion the events giving rise to this action. The

e-mail provided, in relevant part, that

we are working hard to eliminate the deficit associated with operating

the State Parks. . . . [I]t is may [sic] small details that we must pay

attention to in order to attract tourists to our Parks and provide them

outstanding experience that will make them want to come back and

visit with us.

To this end, providing outstanding customer service in a professional

atmosphere creates a very positive first impression of us to the

customer. Therefore, we have implemented a new professional

appearance policy that ALL employees must adhere to at each Park

location. Items addressed in the policy include hair length for men

above the collar, no visible body piercings with exception of in the

ear lobes for women only, no visible tattoos (long sleeves, pants,

bandages, or wrist bands are approved ways to cover), and the proper

wearing of the prescribed uniform in each department, which in most

cases includes tucking in shirts and blouses. Please be advised that

there are no exceptions to this policy. . . . Failure to comply with the

new policy is clearly insubordination.

It is your role as park managers to ensure that ALL employees

comply with Park policies. Any regular merit employee that fails to

comply with the new policy should be issued a written warning for

insubordination. If they continue to fail to comply they should be

placed on suspension. Of course, the final step, should they continue

to not comply would be termination. Any interim employee that fails

No. 05-6305 Roberts, et al. v. Ward, et al. Page 3

to comply should be given the choice to comply or be sent home.

After the initial warning, any interim employee that is observed to be

not complying is to be terminated.

(Pls.’ Resp., Ex. B.) In a followup e-mail, Ward reiterated that “if interim workers refuse to tuck in

their shirts, you may not allow them to work. Give them the choice to tuck in their shirt or go

home.” (Compl., Ex. B.)

These emails were Ward’s interpretation and implementation of the Department of Parks

(“Parks”) Policy 01-03 (promulgated in 2002, prior to Ward’s appointment), which provides that

“[s]ince employees are in daily contact with guests, vendors, and the general public, all employees

are expected to exhibit appropriate conduct and maintain a professional, business-like appearance.”

Id., Ex. A. Further, “[s]upervisors and managers are expected to communicate and monitor standards

of employee conduct and appearance that will provide a professional, positive, and safe environment

for employees, guests, and vendors. . . . Due to business needs, many employees may be required

to wear furnished uniforms or conform to appropriate levels of dress, grooming, and hygiene

standards for their work situation.” Id. Finally, “[v]isible tattoos and body piercings that are

offensive or not consistent with the mission of the Department of Parks shall be deemed to be

violations of sections A and B above.” Id.

Another policy adopted at the same time as the “shirt tucking” policy prohibited Park

employees from swimming in the pool or staying as overnight guests at the park at which they

worked. (Compl., Ex. C.) The stated reason for the policy was to ensure “separation between

employees and overnight guests” and to avoid claims of sexual harassment by Park employees. Id.

On May 19, 2004, the Plaintiffs were discharged for failing to tuck in their shirts. (Pls.’ Resp.

at 4.) Leslie also claims he was discharged because he has a “USN” tattoo on his arm, which

commemorates his service in the United States Navy. Id. Several days after their termination, the

Plaintiffs’ supervisor, John Troxell, resigned in protest. The Plaintiffs brought suit, challenging the

appearance policy and the “overnight stay” policy. D. Ct. Op., Aug. 3, 2005, at 1-3 (granting

summary judgment to defendants on plaintiffs’ remaining claims).

On September 22, 2004, the district court granted the Defendants’ partial motion to dismiss.

D. Ct. Op., Sept. 22, 2004, at 20. The district court enumerated seven claims that were made out

in the complaint: (1) wrongful discharge under state law; (2) violation of Section Two of the

Constitution of the Commonwealth of Kentucky; (3) violation of the First Amendment of the United

States Constitution; (4) violation of the Due Process Clause of the Fourteenth Amendment of the

United States Constitution; (5) violation of the Equal Protection Clause of the Fourteenth

Amendment of the United States Constitution; (6) violation of KRS § 13A (challenging the manner

by which the regulation was implemented); and (7) violation of the Kentucky Civil Rights Act, KRS

§ 344.120. Id. at 6. In granting the Defendants’ motion, the district court dismissed all claims

seeking monetary damages based on Eleventh Amendment immunity, id. at 17, all claims relating

to the “overnight stay” rule, id. at 19, and all claims brought under the Kentucky Civil Rights Act,

id. at 18. The district court also dismissed Parks Commissioner Ward as a defendant on the basis

of qualified immunity. Id. at 15.

On August 3, 2005, the district court granted Defendants’ motion for summary judgment,

dismissing the remaining claims. These included claims seeking only the equitable relief of

reinstatement of employment based on First Amendment, due process, and equal protection

violations, and violation of Section Two of the Kentucky Constitution. D. Ct. Op., Aug. 3, 2005,

at 12.

No. 05-6305 Roberts, et al. v. Ward, et al. Page 4

The plaintiffs now raise seven issues for appeal: (1) Commissioner Ward was not entitled

to qualified immunity; (2) the Commonwealth of Kentucky should not have been granted immunity

under the Eleventh Amendment; (3) the plaintiffs had standing to raise their claim under the

Kentucky Civil Rights Act, KRS § 344.120; (4) summary judgment dismissing their First

Amendment claim was inappropriate; (5) summary judgment should not have been granted with

regard to their due process claim; (6) their equal protection claim should also have survived

summary judgment; and (7) emails from Commissioner Ward created due process protections that

the Parks Department subsequently did not follow.

In their brief, the plaintiffs uniformly describe the separate dismissals of their several claims

as summary judgment dispositions, neglecting the fact that some of their claims were dismissed on

the pleadings. Because the district court addressed the various claims in separate orders, one

addressing the pleadings and the second at the summary judgment stage, we must evaluate each

claim in light of the procedural posture under which it was dismissed.

II.

We first address plaintiffs’ claims that were dismissed on the pleadings. We review de novo

motions to dismiss granted under Fed. R. Civ. P. 12(b)(6). Kottmyer v. Maas, 436 F.3d 684, 689 (6th

Cir. 2006). “When ruling on a defendant’s motion to dismiss on the pleadings, a district court ‘must

construe the complaint in the light most favorable to the plaintiff, accept all of the complaint’s

factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts

in support of his claim that would entitle him to relief.’” Id. (quoting Ziegler v. IBP Hog Market,

Inc., 249 F.3d 509, 512 (6th Cir. 2001)).

A. Qualified Immunity for Commissioner Ward

The district court ruled on the pleadings that Commissioner Ward was entitled to qualified

immunity and dismissed him as a defendant. Once a defendant raises the defense of qualified

immunity, a plaintiff “must plead the violation of a clearly established constitutional right.” Jackson

v. Schultz, 429 F.3d 586, 589 (6th Cir. 2005). Dismissal based on qualified immunity is only

appropriate if “it is clear that no violation of a clearly established constitutional right could be found

under any set of facts that could be proven consistent with the allegations or pleadings.” Id.

The plaintiffs identify several clearly established constitutional rights that they claim Ward

violated, preventing him from being entitled to qualified immunity. They claim that the prohibition

of tattoos and the requirement that park workers keep their shirts tucked in violates the First

Amendment’s protection of free speech. They also contend that the imposition, without sufficient

notice, of the dress code policies that they claim are vague and arbitrary amounts to a due process

violation under the Fourteenth Amendment. Additionally, the plaintiffs contend that the requirement

that they tuck their shirts in while working in the outdoor heat violated the Equal Protection Clause

of the Fourteenth Amendment due to health and safety implications.

1. First Amendment

The district court found that the Parks Department’s appearance policy did not implicate a

clearly established First Amendment right because it did not involve a matter of public concern, and

thus is not protected speech for a government employee. As the district court recognized, the

Supreme Court has acknowledged that when acting as an employer, a government entity has far

broader discretion to regulate the speech of its employees than it does as a sovereign regulating the

No. 05-6305 Roberts, et al. v. Ward, et al. Page 5

speech of its citizens.1 D. Ct. Op., Sept. 22, 2004, at 8 (citing Waters v. Churchill, 511 U.S. 661,

671 (1994)). For a government employee’s speech to be protected under the First Amendment, it

must, as a threshold matter, involve a matter of public concern. Garcetti v. Ceballos, 126 S. Ct.

1951, 1958 (2006). The district court ruled that neither the plaintiffs’ refusal to tuck in their shirts,

nor Leslie’s display of his Navy tattoo, involves matters of public concern, and thus was not

protected.

The Supreme Court appears to have identified two lines of cases under which a state

employer’s limitations upon the speech of its employees can violate the First Amendment. See City

of San Diego v. Roe, 543 U.S. 77, 90 (2004). The first line of cases involves instances where a

public employee speaks out about some functioning of the branch of government for which he or

she works, a matter on which he or she “[is] uniquely qualified to comment” by virtue of their job

status. Id. Because constructive criticism of the government can be a legitimate matter of concern

to its citizens, these types of statements can be protected against retaliatory conduct from supervisors

if they do not primarily involve comments about employment that are personal in nature. Id. at 83

(“a public employee’s speech is entitled to Pickering [v. Board of Education, 391 U.S. 563 (1968)]

balancing only when the employee speaks ‘as a citizen upon matters of public concern’ rather than

‘as an employee upon matters only of personal interest.’” (quoting Connick v. Myers, 461 U.S. 138

(1983))). Given that the statements go to the functioning of the government entity in question,

however, the government has some added leeway in limiting such speech due to its status as the

employer. See United States v. National Treasury Employees Union, et al., 513 U.S. 454, 466

(1995) (hereinafter NTEU).

The other line of cases involves government regulation of statements that are unrelated to

the employee’s job. See id.; City of San Diego, 543 U.S. at 90; Rankin v. McPherson, 483 U.S. 378,

388 (1987). Where the speech is unrelated to the job of the employee and involves a matter of

public concern, it appears to be entitled to greater protection, as it is less likely to disrupt the

efficient functioning of the workplace. See NTEU, 513 U.S. at 466. Both types of cases are based

on the principle that the speech must involve a matter of public concern to be protected, and that the

government must have “an adequate justification for treating the employee differently from any

other member of the general public.” Garcetti, 126 S.Ct. at 1958. This balancing test “reflects the

importance of the relationship between the speaker’s expressions and employment.” Id. The focus

of the balancing test, first articulated in Pickering v. Board of Education, 391 U.S. 563 (1968), is

whether the restrictions imposed on the speech of a government employee are “directed at speech

that has some potential to affect the entity’s operations.” Garcetti, 126 S.Ct. at 1958.

The plaintiffs provide little argument to rebut the determination that untucked shirts do not

amount to speech on a matter of public concern. There is no suggestion, for example, that they were

untucking their shirts to express their opinion on some political question. Rather, they emphasize

that the rule was arbitrary and unreasonable, and that they kept their shirts untucked because they

were uncomfortable when they tucked them in. The state, on the other hand, justifies the policy as

a regulation of their employees’ appearance. Whether or not the policy was somehow unfair as

applied to the plaintiffs, as they argue here, there is no basis for questioning the district court’s

determination that it did not involve speech on a matter of public concern, and thus does not

implicate any clearly established First Amendment rights.

Leslie’s “USN” tattoo, on the other hand, presents a potentially closer question. The district

court summarily determined that the tattoo also did not involve a matter of public concern. Leslie

1

In the district court, the plaintiffs erroneously relied upon cases involving the regulation of free speech for

public school students, which the district court noted are entirely distinguishable from cases involving the speech of

government employees given the state’s interest in efficient administration. Despite this ruling and obvious distinction,

the plaintiffs rely on the same cases here.

No. 05-6305 Roberts, et al. v. Ward, et al. Page 6

contends, however, that the tattoo expresses his “support, loyalty and affection for the U.S. Navy.”

Viewing the significance Leslie attributes to the tattoo in this light, support for the military seems

to come much closer to involving a matter of public concern than do the untucked shirts. We have

held that the subjective intent of the speaker is a relevant, albeit not controlling factor in whether

the speech is a matter of public concern. Banks v. Wolfe County Bd. of Educ., 330 F.3d 888, 894

(6th Cir. 2003). Further, Leslie’s support for the military is unrelated to his job as a state park

employee. The state argues that Leslie’s tattoo can only be said to reflect his personal service in the

Navy, and given its form as a tattoo, involves a matter of personal taste and decoration, and thus

“cannot rise to the level of speech on a matter of legitimate public concern.” Appellee’s Br. at 11.

For qualified immunity purposes, because some dress code limitations are permissible, we

find that an individual’s decision to display a tattoo such as Leslie’s is not a clearly established right.

2. Due Process

The plaintiffs claim that Ward infringed on their clearly established due process rights by

unilaterally changing the dress code policy, presumably through his May 17, 2004 email. They

claim that although the email purported to implement an existing policy, it in fact represented a new

policy altogether. They argue that this implementation did not comply with chapter 13A of the

Kentucky Revised Statutes, which requires the formal administrative procedures of public notice

and hearings.

The district court dismissed the plaintiffs’ due process claims because they had not identified

any property or liberty interest that would entitle them to due process protections prior to the change

in policy. Although an employee can obtain a property interest in continued employment where

state law or the terms of his agreement with the state creates an expectation of continued

employment, where no such expectation is created there is no property interest that would implicate

due process protections. Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 578 (1972).

Recognizing this hurdle, the plaintiffs claim that despite the lack of any applicable tenure provision,

they have “de facto tenure” under Perry v. Sinderman, 408 U.S. 593 (1972). Under Perry, a plaintiff

can show de facto tenure where the circumstances of his service and the practices of his employer

create an expectation of continued employment.

The district court rejected the plaintiffs’ de facto tenure claim, reasoning that where a state

employer provides tenure for some employees, as Kentucky does, other employees are not entitled

to de facto tenure when they are excluded from the tenure system. Because Kentucky provides some

employees with a merit system that formally provides for tenured employment, and yet plaintiffs

were specifically excluded from it, the district court found that they cannot qualify for tenure under

our decision in Edinger v. Bd. of Regents of Morehead State Univ., 906 F.2d 1136 (6th Cir. 1990).

Edinger also states that even if a tenure system exists, where the circumstances surrounding

the employment relationship “lead[] the [non-tenured] employee to reasonably believe his

employment is permanent, such actions may create a protected property interest in continued

employment.” Id. at 1140. Even so, the plaintiffs point to nothing other than their continued

employment to establish their de facto tenure. Under Roth, their continued employment is not

enough to create a property interest.

Therefore, we find no violation of the plaintiffs’ due process rights, and we affirm the district

court’s grant of qualified immunity to Commissioner Ward on this ground.

3. Equal Protection

The plaintiffs claim that the revised dress code violated their clearly established equal

protection rights under the Fourteenth Amendment, as the dress code had a much more onerous

No. 05-6305 Roberts, et al. v. Ward, et al. Page 7

impact on manual laborers who worked outside in the summer, including themselves, than it did on

office workers. The district court determined that because the policy applied to all park workers,

it did not raise any equal protection concerns. Although a facially neutral law can be challenged

under the theory of “disparate impact,” the inquiry for such a challenge focuses on whether it targets

a group that has historically been the victim of discrimination or otherwise reflects invidious

discrimination. Personnel Adm’r of Massachusetts v. Feeney, 442 U.S. 256, 273 (1979). The

plaintiffs present no argument on appeal that would establish an equal protection violation.

Because the plaintiffs’ allegations do not implicate any clearly established constitutional

rights, we affirm the district court’s grant of qualified immunity to Commissioner Ward.

B. Eleventh Amendment Immunity and Sovereign Immunity

The plaintiffs appeal the grant of Eleventh Amendment and sovereign immunity to the state,

arguing that under the exception to the Eleventh Amendment recognized in Ex Parte Young, 209

U.S. 123 (1908), their claims for prospective, injunctive relief are not barred by the Eleventh

Amendment. They acknowledge that their money damages claim can be barred. In its opinion

granting defendants’ partial motion to dismiss, however, the district court only held that the money

damages claims were barred, not the claims for injunctive relief. Because there appears to be no

actual disagreement among the parties regarding the Eleventh Amendment’s scope, we need not

address this issue.

C. Standing to Raise a Claim Under KRS § 344.120

The plaintiffs argue on appeal that they have standing to make a claim under KRS § 344.120,

the Kentucky Civil Rights Act, based on the employer’s policy that prohibited them from staying

in the park overnight or swimming in the pools. The district court did not dismiss this claim on the

basis of standing, however. Rather, it ruled that the Kentucky Civil Rights Act prohibits

discrimination in the provision of public accommodations on the basis of disability, race, color,

religion, or national origin, and the plaintiffs have not alleged that any such discrimination was

involved in the overnight stay policy. Neither have the plaintiffs described any relevant claim under

the Kentucky Civil Rights Act in their appellate brief.

Although the district court addressed the question of standing separately after ruling that the

plaintiffs failed to state a claim under the Kentucky Civil Rights Act, it did so because the plaintiffs

also challenged the overnight stay policy under Article 2 of the state constitution. D. Ct. Op., Sept.

22, 2004, at 18 n. 5. On appeal, however, the plaintiffs have only argued that they have standing

under the Kentucky Civil Rights Act, and have not addressed the state constitutional claim. Because

they do not have a cognizable claim under the Kentucky Civil Rights Act, it is unnecessary for us

to engage in a standing inquiry here.

III.

After ruling on the pleadings that Commissioner Ward was entitled to qualified immunity

and that any money damages against the state were barred under the Eleventh Amendment, the

district court allowed the plaintiffs’ case to continue insofar as they sought the injunctive relief of

reinstatement on the basis of their constitutional claims, but the district court subsequently granted

summary judgment for defendants and dismissed these claims as well. We review a district court’s

grant of summary judgment de novo, and must view “the facts and any inferences that can be drawn

from those facts . . . in the light most favorable to the non-moving party.” Bennett v. City of

Eastpointe, 410 F.3d 810, 817 (6th Cir. 2005) (citing Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986)). Summary judgment is only appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,

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

No. 05-6305 Roberts, et al. v. Ward, et al. Page 8

a judgment as a matter of law.” Id. (quoting Fed. R. Civ. P. 56). Weighing of the evidence or

making credibility determinations are prohibited at summary judgment — rather, all facts must be

viewed in the light most favorable to the non-moving party. Id.

A. First Amendment Claim

The plaintiffs tweak their argument here somewhat, claiming that they kept their shirts

untucked in protest of the dress code. This variation of their argument does not make wearing

untucked shirts a matter of public concern, rather than a personal statement about a condition of their

employment, as is required to state a First Amendment claim challenging a condition of public

employment. Thus, under the precedent discussed above, we find that the district court correctly

dismissed the free speech claim as to the plaintiffs’ wearing of untucked shirts.

Leslie’s free speech claim regarding his “USN” tattoo comes much closer to amounting to

a matter of public concern, taking at face value his contention that it is intended to show support for

the military. Whether Leslie’s tattoo is considered speech that is a matter of public concern may

turn on whether the speech is generic in nature, or whether it reflects an in-depth attempt to

contribute to public discourse. Compare Zalewska v. Cty. of Sullivan, 316 F.3d 314, 319 (2d Cir.

2003) (holding in a case involving a dress code for public employees that an employee’s wearing

of a skirt did not constitute protectable speech because it did not demonstrate “an intent to convey

a ‘particularized message’ along with a great likelihood that the message will be understood by those

viewing it”) with Rankin v. McPherson, 483 U.S. 378, 384-85 (1987) (holding that an offhanded

comment about the assassination attempt on President Reagan, given its significance in the public

discourse, was considered a matter of public concern).

However, because Leslie’s refusal to comply with the dress code provided an independent

basis for his dismissal, we need not address the closer question of the First Amendment protection

of his tattoo.

B. Due Process and Equal Protection Claims

As discussed above, the plaintiffs were not entitled to tenure or de facto tenure, and had no

property interest in their positions. As a result, they have no due process claim that they were

entitled to notice or a hearing before Commissioner Ward changed the dress code or modified the

enforcement of the pre-existing dress code. We also reject the plaintiffs’ equal protection claim,

because as discussed above, the dress code was facially neutral, and they have not made any

showing of disparate impact.

C. Due Process Based on Ward’s Email

Finally, the plaintiffs contend that Ward’s email itself created due process rights that the

Parks Department subsequently violated. Ward’s email said that park employees “should be given

a choice to comply [with the new dress code] or be sent home. After the initial warning, any interim

employee that is observed to be not complying is to be terminated.” Plaintiffs contend that they

were deprived of the procedural right of a warning, created by the email, when they were terminated

without warning.

It does not appear that this claim was presented to the district court, as it is not discussed in

the plaintiffs’ opposition brief to the defendants’ summary judgment motion. Further, the plaintiffs

do not state what protectable property interest would distinguish this claim from the plaintiffs’ other

due process claim. Finally, the record does not support the argument that they were not warned, as

it seems clear that instead the plaintiffs (and their supervisor) made clear their intention not to

No. 05-6305 Roberts, et al. v. Ward, et al. Page 9

comply with the policy.2 For these reasons, we find that the plaintiffs have failed to allege a viable

due process claim.

IV.

For the foregoing reasons, we AFFIRM the district court.

2

For example, a memo from their supervisor states that “three of them . . . have pretty much refused [and] I

believe the fourth will follow suit.” Further, Leslie testified in his deposition that he refused to comply with the policy.

Plaintiffs also admit as much in their brief. Appellant’s Br. at 10 (stating that plaintiffs “refused to comply with the

aforementioned unlawful policies that required that their shirts be tucked in.”).