Rebecca Buddenberg v. Robert Weisdack

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 19a0247p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

REBECCA BUDDENBERG, ┐

Plaintiff-Appellee, │

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│

v. > No. 18-3674

│

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ROBERT WEISDACK, et al., │

Defendants, │

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JAMES BUDZIK, │

Defendant-Appellant. │

┘

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 1:18-cv-00522—Dan A. Polster, District Judge.

Decided and Filed: September 20, 2019

Before: MERRITT, MOORE, and WHITE, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Monica A. Sansalone, Timothy T. Brick, GALLAGHER SHARP LLP, Cleveland,

Ohio, for Appellant. Subodh Chandra, Donald P. Screen, Sandhya Gupta, Patrick Kabat, THE

CHANDRA LAW FIRM LLC, Cleveland, Ohio, for Appellee.

_________________

OPINION

_________________

HELENE N. WHITE, Circuit Judge. In this interlocutory appeal, Defendant-Appellant

James Budzik seeks reversal of the district court’s denial of his motion to dismiss based on

qualified immunity. Plaintiff-Appellee Rebecca Buddenberg, formerly the fiscal coordinator for

the Geauga County, Ohio, Health District, alleges that she was retaliated against by her

No. 18-3674 Buddenberg v. Weisdack, et al. Page 2

supervisor for reporting ethical violations she observed. Budzik served as outside legal counsel

for the Health District during the relevant time period, and allegedly facilitated and contributed

to the acts of retaliation. Accepting as true the factual allegations in Buddenberg’s complaint,

she has plausibly alleged violations of her clearly established First Amendment rights.

We therefore AFFIRM.

I.

Rebecca Buddenberg began working at the Geauga County Health District on February 2,

2015. (Second Amended Complaint, R. 31, PID 366 ¶ 11.) In her role as fiscal coordinator,

Buddenberg was responsible for certain aspects of the Health District’s fiscal management,

including processing payroll and accounts payable, preparing fiscal reports, and contributing to

the department budget process. (Id. ¶ 12.) Buddenberg also performed various human-resource

functions, including “maintaining personnel records, overseeing FMLA processes, and acting as

the liaison for employee-benefits coordination and injury-reporting between the department and

the County Commissioners.” (Id. ¶ 13.) Her duties did not include reporting internal ethical

violations or allegations of discrimination to the Board of Health. (Id. ¶ 14.) Defendant Robert

Weisdack, Health Commissioner of Geauga County, was Buddenberg’s immediate supervisor

until roughly April 2016, when Dan Mix became her supervisor. (Id. ¶ 15.) Buddenberg then

reported to Mix, who reported directly to Weisdack. (Id. ¶ 16.)

Early in her tenure, Buddenberg received positive performance reviews from both

Weisdack and Mix. Four months after she started, Weisdack gave Buddenberg a glowing

review: “I consider Rebecca a professional-minded person”; “Rebecca shows she [is] very

ethical”; “Rebecca’s attitude is great and has a lot of motivation”; “Rebecca is very genuine in

her desire to do more and has great initiative.” (Id. at PID 367 ¶ 17.) Mix gave Buddenberg a

similarly positive review the next year. (Id. ¶ 19.)

Beginning in fall 2016, Buddenberg became aware of several possible ethical violations

by Weisdack. Buddenberg learned that the Health District had obtained a state grant for tire

removal, and, “in the absence of competitive bids, Mr. Weisdack, along with two Health District

sanitarian workers, themselves began to undertake the work.” (Id. at PID 96 ¶ 21.) Buddenberg

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was concerned that Weisdack’s independent work represented a conflict of interest, as he “was

holding meetings during the day about the evening work activities . . . all without seeking Board

approval for any contracts.” (Id. at PID 368–69 ¶ 23.) Buddenberg and Mix informed Weisdack

that his work as an independent contractor would require approval from other local officials, but

Weisdack ignored them. (Id. ¶ 21–22.)

Around the same time, Buddenberg approached Weisdack about an apparently sex-based

pay disparity between two employees within the Health District. (Id. at PID 369 ¶ 24.) When

she broached the issue with him, Weisdack “disparaged [Buddenberg], telling her that she wasn’t

a lawyer, that he knew what he could do, and that he had already forgotten more that morning

than she could ever learn in a lifetime.” (Id. ¶ 25.)

Buddenberg then reported Weisdack’s potential conflict of interest and the disparate-pay

issue to the Board of Health at a meeting on October 24, 2016. She also voiced other concerns

about unethical conduct by Weisdack, such as accepting gifts from contractors to whom the

Health District issued permits, ignoring Buddenberg’s suggestion to install GPS units in agency

vehicles to ensure proper use of department resources, failing to enforce attendance and break

policies, failing to honor the reference-check policy for new hires, and disregarding the

recommendations of the employees’ health-and-safety committee. (Id. ¶ 26.)

Within forty-eight hours of her report to the Board of Health, Weisdack instructed Mix to

change Buddenberg’s work schedule. (Id. at PID 372 ¶ 33.) Buddenberg had always maintained

a flexible schedule that allowed her to take college classes and help take care of her grandson.

(Id. ¶ 33.) As a result of Weisdack’s order, Buddenberg was forced to quit school and “became

limited in her ability to take care of her grandson.” (Id.) Mix believed that Weisdack’s decision

to change Buddenberg’s schedule was in retaliation for Buddenberg’s report; he texted

Buddenberg, “he was mad at you for going to [the] board . . . He told me to get rid of you.” (Id.

¶ 36.) Two other employees continued to enjoy a flexible schedule, suggesting that Buddenberg

was targeted by Weisdack. (Id. ¶ 35.) Mix also noted a change in Weisdack’s behavior after the

October 24, 2016 meeting. In a statement to the board, Mix wrote, “He became dictator-like in

his dealings with staff. Since that date Bob has spent most of his energy intimidating staff

members, instilling a[] sense of fear, and aligning staff members against one another.” (Id. ¶ 39.)

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Buddenberg continued to report Weisdack’s conduct to the Board. From October 31,

2016 to February 1, 2017, Buddenberg wrote multiple emails to several members of the Board of

Health and to the Board’s attorney in which she detailed Weisdack’s ongoing acts of retaliation.

(Id. at PID 374–376.) Despite her reports, the Board failed to intervene. Indeed, on November

29, 2016, the Board renewed Weisdack’s contract. (Id. at PID 377 ¶ 51.) In January 2017, Mix

was forced to resign. (Id. at PID 380–81 ¶ 62.) On February 15, 2017, having exhausted internal

channels of communication, Buddenberg filed a charge of retaliation with the Equal

Employment Opportunity Commission (EEOC). (Id. at PID 381 ¶ 67.)

Four days after receiving notice of Buddenberg’s EEOC filing, Weisdack issued a

“Notice of Proposed Disciplinary Action” (Notice) against Buddenberg. (Id. at PID 383 ¶ 72.)

Weisdack drafted the Notice with the assistance of attorney James Budzik. (Id. at PID 384 ¶ 73.)

The Notice alleged that Buddenberg was “rude, unprofessional, and disrespectful”; that she

“willfully demean[ed] and verbally abus[ed] the Health commissioner”; that she “ma[de] a false

claim in order to obtain a benefit”; that she defied a directive from Weisdack not to transfer

“contaminated” furniture from the Maintenance Department to the Health Department; that she

incorrectly stored documents in her office; that she failed to complete payroll assignments on

time; and that she shredded documents without authorization. (Id. at PID 383–84 ¶ 72.)

According to Buddenberg’s complaint, the allegations “skewed facts,” were “flat-out lies,” or

were “downright bizarre and obviously pretextual.” (Id. at PID 386 ¶ 81–83.) Also, the Notice

“involved conduct for which others were not disciplined.” (Id.)

At Buddenberg’s disciplinary hearing on March 3, 2017, “Mr. Budzik played the leading

role in grilling Ms. Buddenberg.” (Id. at PID 388 ¶ 87.) Budzik was “aggressive and unfair”

during the hearing, “aggressively cut[ting] her off when she tried to answer” and “gaslighting”

her. (Id. at PID 390 ¶ 91.) Although Buddenberg refuted the charges and provided

documentation to explain her position, Budzik was “condescending” and “intimidating.” (Id. ¶

91–92.) At the close of the two-hour hearing, Budzik offered to settle the disciplinary charges if

Buddenberg would accept a demotion and a salary reduction of nearly $1,000 per month, and

drop all her retaliation claims, including her EEOC charge. (Id. at 391 ¶94.) Buddenberg asked

to have a witness present during this interaction, but Budzik refused. (Id.)

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Four days later, at a meeting of the Board of Health, Buddenberg asked to make a

statement about the disciplinary hearing directly to the Board, but Budzik “stated she could do so

only if she agreed to discuss settlement.” (Id.) Buddenberg declined. Budzik then

recommended that the Board take disciplinary action against her. On March 16, 2017, the Health

District issued an order sustaining “nearly all of the bogus allegations” in the Notice, suspending

Buddenberg for three days without pay, demoting her to a clerical position, and substantially

reducing her pay. (Id. at 392–93 ¶ 99–100.) Budzik and Weisdack drafted the order. (Id. at 393

¶ 101.)

Buddenberg continued to work under Weisdack for almost two months, but found the

work environment intolerable. She resigned on May 27, 2017. (Id. at PID 397 ¶ 128.)

Buddenberg filed her complaint in the Northern District of Ohio, naming Weisdack, the

Geauga County Health District, several members of the Board of Health, and Budzik as

defendants. (R. 1, PID 1.) She filed an amended complaint (R. 3, PID 90), and a second

amended complaint. (R. 31, PID 363.) Buddenberg asserted claims of retaliation under Title

VII, 42 U.S.C. § 2000 et seq., retaliation under the Fair Labor Standards Act, 29 U.S.C.

§ 215(a)(3), First Amendment retaliation under 42 U.S.C. § 1983, and various state-law causes

of action.

Budzik filed a motion to dismiss. (R. 14, PID 156.) As relevant here, Budzik argued that

he was entitled to qualified immunity because Buddenberg’s complaint failed to allege facts

establishing a violation of a clearly established First Amendment right. (Id. at PID 170–74.)

Budzik argued that Buddenberg’s internal complaints were within the scope of her official

duties, and thus did not constitute protected speech. (Id. at PID 172.) Budzik further asserted

that Buddenberg’s allegations did not show that Budzik was “plainly incompetent in representing

the Health District.” (Id. at PID 174.)

The district court denied Budzik’s motion, stating that “the determination of whether

Budzik is entitled to qualified immunity is premature and cannot be determined at this stage in

the litigation.” (R. 38, PID 483.) The district court noted, however, that “Budzik may raise this

defense if he develops a factual record to support it.” (Id.)

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II.

We generally have jurisdiction only over “final decisions of the district courts.”

28 U.S.C. § 1291. However, “a district court’s order rejecting qualified immunity at the motion-

to-dismiss stage of a proceeding is a ‘final decision’ within the meaning of § 1291.” Courtright

v. City of Battle Creek, 839 F.3d 513, 517 (6th Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S.

662, 671 (2009)). We therefore have jurisdiction over Budzik’s appeal.

“When a defendant appeals the denial of a motion to dismiss based on qualified

immunity, we review de novo whether the complaint alleges [a] violation of a clearly established

constitutional right.” Id. (quoting Heyne v. Metro. Nashville Pub. Sch., 655 F.3d 556, 562 (6th

Cir. 2011)). In reviewing Budzik’s motion to dismiss, the complaint is viewed in the light most

favorable to Buddenberg, the allegations in the complaint are accepted as true, and all reasonable

inferences are drawn in Buddenberg’s favor. See Gavitt v. Born, 835 F.3d 623, 639–40 (6th Cir.

2016). Legal conclusions couched as factual allegations need not be accepted as true. Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007).

To survive a motion to dismiss, a plaintiff must allege facts that “plausibly mak[e] out a

claim that the defendant’s conduct violated a constitutional right that was clearly established law

at the time, such that a reasonable officer would have known that his conduct violated that right.”

Johnson v. Moseley, 790 F.3d 649, 653 (6th Cir. 2015). There are two steps to our qualified-

immunity inquiry. We determine whether the facts alleged make out a violation of a

constitutional right, and we ask whether the right at issue was clearly established when the event

occurred so that a reasonable officer would have known that his conduct violated it. Courtright,

839 F.3d at 518 (quoting Martin v. City of Broadview Heights, 712 F.3d 951, 957 (6th Cir.

2013)).

We have cautioned that “it is generally inappropriate for a district court to grant a

12(b)(6) motion to dismiss on the basis of qualified immunity.” Wesley v. Campbell, 779 F.3d

421, 433 (6th Cir. 2015). “Although an officer’s entitlement to qualified immunity is a threshold

question to be resolved at the earliest possible point, that point is usually summary judgment and

not dismissal under Rule 12.” Id. at 433–34 (internal citation and quotation marks omitted).

No. 18-3674 Buddenberg v. Weisdack, et al. Page 7

III.

To establish a prima facie case of First Amendment retaliation, Buddenberg must show

three elements: first, that she engaged in constitutionally protected speech or conduct; second,

that Budzik took an adverse action against her that would deter a person of ordinary firmness

from continuing to engage in that speech; and third, that a causal connection exists between the

protected speech and the adverse employment action. Benison v. Ross, 765 F.3d 649, 658 (6th

Cir. 2014).

A. Constitutionally Protected Speech

We engage in a three-step inquiry to determine whether speech by a public employee is

protected. Mayhew v. Town of Smyrna, 856 F.3d 456, 462 (6th Cir. 2017). First, we ascertain

whether the speech addressed a matter of public concern. Id. (citing Connick v. Myers, 461 U.S.

138, 143 (1983)). Second, we determine whether the employee spoke as a private citizen or as

an employee pursuant to her official duties. Id. (citing Garcetti v. Ceballos, 547 U.S. 410, 421

(2006)). Third, we balance the interests of the parties and determine if the employee’s speech

interest outweighs “the interest of the State, as an employer, in promoting the efficiency of the

public services it performs through its employees.” Id. (quoting Pickering v. Bd. of Educ., 391

U.S. 563, 568 (1968)).

“Speech involves matters of public concern when it can be fairly considered as relating to

any matter of political, social, or other concern to the community, or when it is a subject of

legitimate news interest; that is, a subject of general interest and of value and concern to the

public.” Lane v. Franks, 573 U.S. 228, 241 (2014) (citation and internal quotation marks

omitted). Buddenberg’s complaint alleges that she reported a conflict of interest by her

supervisor, sex-based pay disparities within the Health District, and several other instances of

maladministration, to authorities both within and outside of her chain of command. We have

found that speech addresses a matter of public concern when it alleges the misuse of public

funds, Chappel v. Montgomery Cty. Fire Protection Dist. No. 1, 131 F.3d 564, 576–77 (6th Cir.

1997), or discrimination, Hughes v. Region VII Area Agency on Aging, 542 F.3d 169, 182 (6th

Cir. 2008). Allegations of public corruption “are exactly the type of statements that demand

No. 18-3674 Buddenberg v. Weisdack, et al. Page 8

strong First Amendment protections.” Mayhew, 856 F.3d at 468 (quoting Handy-Clay v. City of

Memphis, 695 F.3d 531, 543 (6th Cir. 2012) (collecting cases)). Accordingly, accepting

Buddenberg’s allegations as true, her speech is constitutionally protected.

The second element of the inquiry asks whether the employee spoke as a private citizen

or as a public employee. In Garcetti, the Supreme Court held that “when public employees make

statements pursuant to their official duties, the employees are not speaking as citizens for First

Amendment purposes, and the Constitution does not insulate their communications from

employer discipline.” 547 U.S. at 421. The Supreme Court later clarified that “[t]he critical

question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an

employee’s duties, not whether it merely concerns those duties.” Lane, 573 U.S. at 240.

Buddenberg’s speech was not within her ordinary job responsibilities. As fiscal

coordinator for the Geauga County Health District, Buddenberg processed biweekly payroll,

prepared monthly fiscal reports to the Board, processed accounts payable, and assisted with

budget processes. Buddenberg also performed some human-resource functions. However, the

complaint makes clear that Buddenberg’s ordinary duties did not include reporting employee

misconduct to the Board, thus distinguishing this case from those in which the plaintiff’s job

functions included overseeing department operations and “report[ing] any appropriate situations

and accidents immediately to management.” See, e.g., Mayhew, 856 F.3d at 465. Further,

Buddenberg went outside the chain of command by bringing her complaints to the Board.

Speech outside the chain of command is less likely to be within an employee’s ordinary job

responsibilities. See Handy-Clay, 695 F.3d at 542–43.

The third step of the inquiry asks whether “the relevant government entity had an

adequate justification for treating the employee differently from any other member of the general

public” based on the government’s needs as an employer. Garcetti, 547 U.S. at 418 (discussing

Pickering, 391 U.S. at 568). However, as the Supreme Court has explained, in cases involving

allegations of official misconduct and public corruption, “the employer’s side of the Pickering

scale is entirely empty.” Lane, 573 U.S. at 242.

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Accordingly, Buddenberg’s allegations establish that that her speech was protected by the

First Amendment.

B. Adverse Action

Next we must evaluate whether Buddenberg has sufficiently alleged that an adverse

action was taken against her that “would chill or silence a person of ordinary firmness from

future First Amendment activities.” Dye v. Office of the Racing Comm’n, 702 F.3d 286, 303 (6th

Cir. 2012) (citation omitted). We have previously noted that examples of adverse actions

“include discharge, demotions, refusal to hire, nonrenewal of contracts, and failure to promote.”

Thaddeus-X v. Blatter, 175 F.3d 378, 396 (6th Cir. 1999) (en banc) (citation omitted).

Constructive discharge may also constitute an adverse action for First Amendment purposes.

See Savage v. Gee, 665 F.3d 732, 739 (6th Cir. 2012).

Buddenberg has sufficiently alleged an adverse action. She alleges that after she filed her

charge with the EEOC, Budzik and Weisdack drafted the Notice of Proposed Disciplinary Action

against her. Buddenberg further alleges that this Notice contained multiple statements of fact

that Budzik and Weisdack knew were either untrue or purposefully distorted. During the

subsequent hearing on the Notice, Budzik aggressively interrogated Buddenberg on these

charges, despite knowing that they were baseless. After the hearing, Budzik attempted to

intimidate Buddenberg into accepting a settlement in which she would abandon her retaliation

charges, be demoted, and receive significantly less pay. Budzik allegedly refused to allow

Buddenberg to have a witness present during this meeting. (R. 31, PID 391 ¶ 94.) When

Buddenberg declined Budzik’s settlement offer, Weisdack and Budzik presented bogus

disciplinary charges to the Board, which approved them. Buddenberg was suspended for three

days, demoted to a clerical position, and her pay was slashed nearly in half. (Id. at PID 393 ¶

100.) Buddenberg “suffered from depression” as well as “sleeplessness, nausea, and high blood

pressure” as a result. (Id. at PID 397 ¶ 127.) Finally, the conditions at the workplace “became

so intolerable that Ms. Buddenberg was forced to resign.” (Id. ¶ 128.) These allegations

establish the requisite adverse action. See Dye, 702 F.3d at 303 (demotion is an adverse action);

Clay v. United Parcel Serv., Inc., 501 F.3d 695, 710 n.6 (6th Cir. 2007) (deprivation of increased

compensation resulting from a failure to train is an adverse action).

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C. Causation

To determine whether a causal connection existed between the protected conduct and the

adverse action, we consider “whether the alleged adverse action ‘was taken at least in part

because of the exercise of the protected conduct.’” Holzemer v. City of Memphis, 621 F.3d 512,

525 (6th Cir. 2010) (quoting Siggers-El v. Barlow, 412 F.3d 693, 699 (6th Cir. 2005)).

Buddenberg must demonstrate that her speech was “a substantial or motivating factor in the

employer’s decision to take the adverse employment action against her.” Handy-Clay, 695 F.3d

at 545 (quotation and alteration omitted). We also note that “[a] defendant’s motivation for

taking action against the plaintiff is usually a matter best suited for the jury.” Id. (quoting Paige

v. Coyner, 614 F.3d 273, 282 (6th Cir. 2010)).

The chronology of events alleged in Buddenberg’s complaint supports an inference of

causation. Temporal proximity between the protected activity and the adverse action can support

a causal connection. See Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008).

Weisdack, with Budzik’s assistance, issued Buddenberg’s Notice of Proposed Disciplinary

Action four days after receiving notice of Buddenberg’s EEOC charge. The “sham” hearing

took place three days after that. Budzik appeared before the Board and recommended that the

Board take disciplinary action against Buddenberg a mere eleven days after receiving notice of

Buddenberg’s EEOC charge. Given the rapid sequence of events, Buddenberg’s allegations

support an inference that her protected speech caused her discipline. See, e.g., Dye, 702 F.3d at

306 (“A lapse of two months . . . is sufficient to show a causal connection”).

IV.

Because Buddenberg has alleged sufficient facts to support her claim that she engaged in

constitutionally protected conduct that motivated the defendants to engage in an adverse action

against her, she has satisfied the first prong of the qualified-immunity inquiry. That leaves the

question whether the right was clearly established—whether a reasonable official in Budzik’s

position would have been aware of the violation. Budzik concedes for the purposes of this

appeal that he is a state actor. (Reply Br. at 3.)

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We have long recognized that a public employer may not retaliate against an employee

for her exercise of constitutionally protected speech. See, e.g., See v. City of Elyria, 502 F.3d

484, 495 (6th Cir. 2007) (“a public employee’s right to speak on matters of public concern

without facing improper government retaliation [is] settled”); Chappel, 131 F.3d at 580

(“All public officials have been charged with knowing that public employees may not be

disciplined for engaging in speech on matters of public concern. . . .”). Buddenberg’s right to

report public corruption, unethical conduct, and sex-based discrimination within her workplace

was clearly established.

Budzik is therefore not entitled to qualified immunity at this phase of the litigation.

V.

For the reasons stated above, we AFFIRM.