Appendix — Ibarra v. Lexington-Fayette Urban County Government (No. 07-329)

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 06-5691

[Filed July 13, 2007]

ABDON IBARRA

Plaintiff-Appellant

Vv.

LEXINGTON-FAYETTE URBAN COUNTY

GOVERNMENT; TERESA ISAAC,

Individually and in her capacity as

Mayor and Chief Executive Officer for

the Lexington-Fayette Urban County

Government; ALAYNE WHITE, Individually

and in her capacity as Conunissioner of

Social Services for Lexington-Fayette

Urban County Government

Defendants-Appellees

ee ee ee ee a LL a a La ae ee ae

MANDATE

Pursuant to the court’s disposition that was filed 2/23/07

the mandate for this case hereby issues today.

COSTS: NONE

2a

A True Copy.

Attest:

Ms. Patricia J. Elder

Senior Case Manager

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APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 06-5691

[Filed July 5, 2007]

ABDON IBARRA

Plaintiff-Appellant,

Vv.

LEXINGTON-FAYETTE URBAN COUNTY

GOVERNMENT, ET AL.,

Defendant-Appellees.

ee ee ed

BEFORE: MERRITT, DAUGHTREY, and

GRIFFIN, Circuit Judges

ORDER

The court having received a petition for rehearing en

banc, and the petition having been circulated not only to the

original panel members but also to all other active judges of

this court, and no judge of this court having requested a vote

on the suggestion for rehearing en banc, the petition for

rehearing has been referred to the original panel.

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The panel has further reviewed the petition for rehearing

and concludes that the issues raised in the petition were fully

considered upon the original submission and decision of this

case. Accordingly, the petition is denied.

ENTERED BY ORDER OF THE COURT

/s/

Leonard Green, Clerk/m

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APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 06-5691

[Filed February 23, 2007]

ABDON IBARRA

Plaintiff-Appellant,

V.

LEXINGTON-FAYETTE URBAN COUNTY

GOVERNMENT; TERESA ISAAC; AND

ALAYNE WHITE,

Defendants-Appellees.

ee i ee ee

NOT RECOMMENDED FOR

FULL-TEXT PUBLICATION

ON APPEAL FROM

THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF KENTUCKY.

Before: MERRITT, DAUGHTREY, and GRIFFIN, Circuit

Judges.

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OPINION

PER CURIAM. The plaintiff, Abdon Ibarra, appeals from

two district court rulings that resulted in the dismissal of his

amended complaint against the Lexington-Fayette Urban

County Government (LFUCG), Mayor Teresa Isaac, and

Commissioner Alayne White. In that filing, Ibarra alleged that

defendant Isaac slandered him and that all three defendants

unconstitutionally retaliated against him for exercising his

First Amendment rights of free speech and association. In

light of the United States Supreme Court’s recent decision in

Garcetti v. Ceballos, 126 S.Ct. 1951 (2006), we conclude that

Ibarra has failed to establish that the speech he highlights was

entitled to protection under the First and Fourteenth

Amendments to the United States Constitution. It thus

becomes unnecessary to review the propriety of the district

court’s determination that the piaintiff failed to establish a

temporal link between the speech in question and his eventual

termination. Moreover, we agree that the district court’s

rulings on the questions of the alleged infringement of the

plaintiff's right of association and the allegation of defamation

were correct in all respects and, therefore, affirm those

rulings for the reasons given in the district court’s

memorandum opinion.

FACTUAL AND PROCEDURAL BACKGROUND

The facts relating to this litigation are not seriously

disputed by the parties and were succinctly stated by the

district court in its memorandum opinion ruling on the

defendants’ motion to dismiss Ibarra’s amended complaint. In

that decision, the district judge summarized:

Ibarra was employed by the Lexington-Fayette Urban

County Government (“LFUCG”) as “Coordinator of

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Immigrant Services” from December 20, 1999, to

August 27, 2003. After the election of Mayor Teresa

Isaac (“Mayor Isaac” or “Isaac”) in November, 2002,

Ibarra expressed concerns and complaints relating to

the treatment of the local Hispanic community.

According tothe amended complaint those expressed

concerns included, but are not limited to:

1. In December of 2002, Ibarra told Bruce Edwards,

a member of Mayor Isaac’s staff, that a non-profit

organization partially funded by the LFUCG had a

history of racial discrimination.

2. In January of 2003, Ibarra advised Alayne White,

Commissioner of Social Services for the LFUCG, that

another non-profit Hispanic organization was

requiring cash “kickbacks” from Hispanic laborers

who sought assistance from the organization.

3. In January of 2003, Ibarra told Mayor Isaac that

two individuals who wanted to provide Hispanics with

“unofficial identification cards” were proposing

excessive fees for those cards and that he had been

working on a project to provide government

sanctioned identification cards at a much lower cost.

4. In January of 2003, Ibarra advised Council

member, Paul Brooks, that Hispanic workers in the

Cardinal Valley area were being charged for services

represented as free and overcharged for other various

services. Ibarra proposed that a Resolution be adopted

by the LFUCG Council to help “quell the tide” of

overcharges.

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5. In January of 2003, Ibarra drafted a proposed

Resolution relating to the abuses and mistreatment of

the Hispanic Community.

6. In February of 2003, during the now infamous ice

storm, Ibarra discussed with the Lexington Herald-

Leader some of the “serious communication problems

due to ‘English only’ public announcements to the

local Hispanic community regarding life threatening

and dangerous alternative heating sources.”

Plaintiff claims that all of these communications were

made to public officials and/or the newspaper for

public dissemination.

Ibarra claims that, due to these expressions of

concern, he was subjected to a pattern of retaliatory

conduct by the LFUCG, Mayor Isaac, and

Commission Wayne [sic]. For example, Ibarra claims

he was removed from projects, told to stop certain

investigations, told not to speak on certain subjects,

and issued “severe” reprimands. He also claims that

a resolution he helped prepare was pulled from the

LFUCG Council’s agenda. Ibarra’s amended

complaint states that this retaliatory conduct ultimately

concluded with his termination on August 27, 2003.

Following his termination, Ibarra applied for

unemployment benefits. The Kentucky Division of

Unemployment Insurance conducted a hearing, the

result of which was a ruling stating that Ibarra was

“discharged for reasons other than misconduct” and

an award of unemployment benefits.

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Also subsequent to Ibarra’s termination, on August

27, 2003, Mayor Isaac conducted an audit of the

Cardinal Valley Empowerment Project, a non-profit

organization incorporated by Ibarra. The LFUCG also

initiated a LFUCG police investigation into Ibarra’s

financial activities at the Cardinal Valley Center. As

explained in correspondence from the LFUCG to

Ibarra, attached to the Amended Complaint, the audit

and investigation were to wrap up some “loose ends”

regarding Ibarra’s employment, and close out his

relationship with the LFUCG. Ibarra cooperated with

the audit. In connection with the audit, Mayor Isaac

telephoned Ibarra’s wife, Lori Ibarra (“Lori”), and

advised her that her husband had set up several bank

accounts in her name; that her husband failed to

provide requested financial records; and that her

husband was in serious trouble. Ibarra claims that

Mayor Isaac’s conduct constituted both “outrageous

conduct by intentional infliction of emotional distress

and slander.”

Because Ibarra did not file his original complaint in this

matter until August 18, 2004, the district court determined

that Kentucky’s applicable one-year statute of limitations

barred all claims for personal injury alleged in the complaint

except for the claim of retaliation relating to the plaintiff's

August 27, 2003 termination. See KY. REV. STAT. ANN.

§ 413.140(1)(a). Furthermore, the court dismissed Ibarra’s

claim for intentional infliction of emotional distress because

the alleged acts of the defendants did not constitute conduct

sufficiently outrageous to justify imposition of tortious

liability. Likewise, the district court dismissed the plaintiff's

slander cause of action, concluding that the single telephone

call from Isaac to Lori Ibarra did not place the plaintiff “into

a position of public hatred, contempt, ridicule; cause him to

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be shunned or avoided, or injure him in business or

occupation.” Finally, the district judge ruled that Ibarra’s

freedom of association claim must also be dismissed because

the “amended complaint makes no factual allegations as to

how Ibarra’s freedom of association was hindered by acts of

Mayor Isaac, Alayne White, or the LFUCG. Moreover,

Plaintiff's amended complaint fails to state with whom he was

prevented from associating.”

Subsequently, the district court also granted summary

judgment in favor of the defendants on the remaining

retaliation cause of action. In doing so, the district judge

concluded that “[t}]he Court need not determine whether

Ibarra’s speech constituted constitutionally protected speech

because he cannot show that his speech was a motivating

factor in the defendants’ decision to terminate his

employment.” The court also noted:

Ibarra has not demonstrated that his protected conduct

in January, February, and March of 2003 led to his

termination several months later in August of 2003.

Furthermore, Ibarra has not presented any evidence

that he engaged in any protected conduct after March

of 2003 that served as a motivating factor in his

dismissal.

Before this court, Ibarra now concedes the propriety of

the district court’s dismissal of the intentional infliction of

emotional distress claim. He continues to assert, however, the

viability of the other causes of action asserted in his amended

complaint.

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DISCUSSION

As recognized by this court sitting en banc:

A retaliation claim essentially entails three

elements: (1) the plaintiff engaged in protected

conduct; (2) an adverse action was taken against the

plaintiff that would deter a person of ordinary

firmness from continuing to engage in that conduct;

and (3) there is a causal connection between elements

one and two -- that is, the adverse action was

motivated at least in part by the plaintiffs protected

conduct.

Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999). In

this case, the parties do not dispute that Ibarra was subjected

to an adverse action (termination) that would deter a

reasonable individual from engaging in the conduct that

prompted the employment decision. The district court,

assuming for the sake of argument that Ibarra’s speech was

constitutionally protected, nevertheless concluded that the

relatively innocuous comments made by the plaintiff in

January-March 2003 could not be taken as motivation for the

termination of Ibarra’s employment a full five months latcr.

After the district court’s ruling, however, the United States

Supreme Court released its opinion in Garcetti v. Ceballos,

126 S.Ct. 1951 (2006), which held explicitly “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.” /d. at 1960.

That opinion, obviously, has direct implications for this case.

By now, the legal principle that “the First Amendment

protects a public employee's right, in certain circumstances,

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to speak as a citizen addressing matters of public concern” is

beyond legitimate dispute. See id. at 1957. This protection

exists, moreover, even in some instances in which the

expressions are made at the workplace during work hours.

See id. at 1959. Nevertheless, when an individual acts not as

a citizen, but rather merely performs “the tasks he was paid

to perform, [he] act[s] as a government employee. The fact

that his duties sometimes required him to speak or write does

not mean his supervisors were prohibited from evaluating his

performance.” Jd. at 1960.

Ibarra’s complaint alleges that his position as

“Coordinator of Immigrant Services” required him to

undertake the following duties and responsibilities:

to act as liason [sic] for the LFUCG with the Hispanic

community and to promote institutional changes and

updates; to improve service delivery to the Hispanic

community; to implement educational programs; to

achieve cultural competence within the comprehensive

service being provided to the community such as

health, education, mental health, police services, and

all other fields relevant to the improvement and

support of the Hispanic community as a whole; to

ensure that the Hispanic community made a smooth

transition into the educational, social and economic

infrastructure of the community as a whole; and to

ensure that they affirmatively availed themselves of

the rights and protections of the legal and justice

system operating within the Commonwealth of

Kentucky.

Hence, the plaintiff was, by his own admission, charged

with the responsibility of advocating for the Hispanic

community with the various governmental agencies and social

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service providers in the Lexington-Fayette County area.

Indeed, as Ibarra himself conceded in his amended complaint,

the comments he made that he now alleges were the catalyst

for the adverse employment decision concerned “problems,

dangers, abuses and/or mistreatment of the Hispanic

community” and “were made, in large part, in response to

inquiries by public officials, including, but not exclusively,

Mayor Teresa Isaac, members of the Mayoral staff, various

LFUCG Council members, and the newspaper, the Lexington

Herald Leader.” Consequently, the comments made by the

plaintiff constituted no more than a part of the performance of

the tasks that he was hired and paid to complete. The

restriction by the defendants of such “speech that owes its

existence to a public employee’s professional responsibilities

does not infringe any liberties the employee might have

enjoyed as a private citizen. It simply reflects the exercise of

employer control over what the employer itself has

commissioned or created." Garcetti, 126 S.Ct. at 1960.

The speech that the plaintiff emphasizes to support his

allegation of a constitutional violation was, therefore, not

constitutionally-protected speech, given the context in which

the comments were made. Because Ibarra thus failed to

establish the first element of his retaliation claim, we necd not

engage in an analysis of whether that speech was a motivating

factor in the decision to terminate the plaintiff's employment.

The district court’s rejection of the retaliation claim was thus

proper, as were the rulings on the other claims brought by the

plaintiff.

CONCLUSION

For the reasons set out above, we AFFIRM the judgment

of the district court granting summary judgment to the

defendants and dismissing the complaint in this case.

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APPENDIX D

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF KENTUCKY

LEXINGTON

Civil Action No. 5:04-395-JMH

[Filed May 4, 2006]

ABDON IBARRA,

Plaintiff,

¥.

Nee Nee Ne”

LEXINGTON-FAYETTE URBAN )

COUNTY GOVERNMENT, et al., )

Defendants. )

)

MEMORANDUM OPINION AND ORDER

This matter is before the Court on the Lexington-Fayette

Urban County Government (“LFUCG”), Mayor Teresa Isaac,

and Commissioner Alayne White’s (collectively referred to as

“Defendants”) motion for partial summary judgment on

damages [Record No. 22] and motion for summary judgment

on liability [Record No. 26]. Plaintiff Abdon Ibarra has

responded [Record Nos. 30 & 32], to which Defendants have

replied [Record Nos. 35 & 34}. Defendants have also filed a

motion for partial summary judgment on Ibarra’s claims

against Mayor Isaac and Commissioner White in their official

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capacities [Record No. 25], to which Plaintiff did not file a

response, and the response time has passed. Fully briefed,

and the Court being duly advised, this matter is ripe for

decision.

BACKGROUND

Ibarra was employed by the LFUCG, as “Coordinator of

Immigrant Services” from December 20, 1999, to August 27,

2003. Ibarra’s duties in this position included acting as a

liaison between the LFUCG and the Hispanic community to

ensure that people in that community were receiving adequate

services. After the election of Mayor Isaac in November

2002, Ibarra expressed concerns about the local Hispanic

community. Ibarra claims that all of these communications

were made to public officials and/or to newspapers for public

dissemination. Because he expressed these concerns, Ibarra

contends, he was subjected to a pattern of retaliatory conduct

by the LFUCG, Mayor Isaac, and Commissioner White,

Commissioner of Social Services for the LFUCG, which

culminated in his termination on August 27, 2003. Ibarra

claims he was removed from projects, told to stop certain

investigations, told not to speak at a meeting, reprimanded for

speaking to the press without prior approval, and issued

additional “severe” reprimands.

Ibarra brought suit against the LFUCG, Mayor Isaac, and

Commissioner White under 42 U.S.C. § 1983 for retaliating

against him for exercising his First Amendment rights and

under Kentucky law for intentional infliction of emotional

distress and slander. In its November 9, 2004, Memorandum

Opinion and Order granting in part and denying in part

Defendants’ motion to dismiss, the Court held that “[t]he only

act alleged in Count IJ of Ibarra’s amended complaint that may

be the subject of a timely claim of retaliation under § 1983 is

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the termination of Ibarra’s employment on August 27, 2003.”

Because the Court dismissed Ibarra’s claims of slander and

intentional infliction of emotional distress, Ibarra’s § 1983

claim for retaliation based upon his termination was the only

claim to withstand Defendants’ motion to dismiss.

STANDARD OF REVIEW

Defendants have moved the Court pursuant to Federal

Rule of Civil Procedure 56(c) to grant summary judgment in

their favor. “Summary judgment is appropriate when there

are no genuine issues of material fact in dispute and the

moving party is entitled to judgment as a matter of law.”

Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792,

797 (6th Cir. 2005)(citing Fed. R. Civ. P. 56(c)). The

moving: party bears the initial burden to show the absence of

a genuine issue of material fact. Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986). This burden is met by showing the

court that there is an absence of evidence on a material fact on

which the nonmoving party has the ultimate burden of proof

at trial. Jd. at 325. A fact is material if its resolution will

affect the outcome of the lawsuit. Waters v. City of

Merristown, 242 F.3d 353, 358 (6th Cir. 2001); see

Pharakhone v. Nissan N. Am., Inc., 324 F.3d 405, 407 (6th

Cir. 2003) (“ If, under the governing law, the outcome would

be the same regardless of how a factual dispute is resolved,

the dispute is no bar to summary judgment.”). Once the

moving party satisfies its burden, the burden then shifts to the

nonmoving party to “come forward with some probative

evidence to support its claim.” Lansing Dairy, Inc. v. Espy,

39 F.3d 1339, 1347 (6th Cir. 1994). Entry of summary

judgment is appropriate “against a party who fails to make a

showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will

bear the burden of proof at trial.” Celotex, 477 U.S. at 322.

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When determining the merits of a summary judgment

motion, “the evidence, all facts, and any inferences that may

be drawn from the facts must be viewed in the light most

favorable to the nonmoving party. “ Landham v. Lewis

Galoob Toys, Inc., 227 F.3d 619, 622 (6th Cir. 2000); see

Multimedia 2000, Inc. v. Attard, 374 F.3d 377, 380 (6th Cir.

2004). The Court must not weigh the evidence, but must

decide whether there are genuine issues for trial. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “The mere

existence of a scintilla of evidence in support of the

[nonmoving party’s] position will be insufficient; there must

be evidence on which the jury could reasonably find for the

[nonmoving party].” Jd. at 252. Although the disputed issue

need not be “resolved conclusively in favor of the nonmoving

party,” Plaintiff, as the nonmoving party in this case, “must

present significant probative evidence that makes it necessary

to resolve the parties’ differing versions of the dispute at

trial.” 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435

(6th Cir. 1987)(citation omitted).

ANALYSIS

I. Defendants’ Motion for Partial Summary Judgment

on Plaintiffs Claims Against Mayor Isaac and

Commissioner White in Their Official Capacities

In his complaint, Ibarra brought claims against Mayor

Isaac and Commissioner White in their individual and official

capacities. “A suit against an individual in his official capacity

is the equivalent of a suit against the governmental entity.”

Matthews v. Jones, 35 F.3d 1046, 1049 n.14 (6th Cir. 1994).

“There is no longer a need to bring official-capacity actions

against local government officials, . . . local government units

can be sued directly for damages and injunctive or declaratory

relief.” Kentucky v. Graham, 473 U.S. 159, 167 (1985)(citing

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Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978)). The

court in Leach v. Shelby County Sheriff, 891 F.2d 1241 (6th

Cir. 1989) instructed, “a suit under section 1983 normally

should be brought against either or both of two defendants:

the local public official in his individual capacity and the local

government which employs or is sought to be held responsible

for the acts of that local public official.” Jd. at 1244-45. As

Ibarra has named the LFUCG in his suit, his claims against

Mayor Isaac and Commissioner White in their official

Capacities are redundant and will be dismissed.

II. Defendants’ Motion for Summary Judgment on

Plaintiff's Remaining Claim Under § 1983

A government employee has the right to speak out on

matters of public concern without fear of reprisal from his or

her employer. Dambrot v. Cent. Mich. Univ., 55 F.3d 1177,

1185 (6th Cir. 1995). To prevail on his First Amendment

retaliation claim, Ibarra, as a public employee, must establish:

“(1) that [he] was engaged in a constitutionally

protected activity; (2) that the defendant’s adverse

action caused [him] to suffer an injury that would

likely chill a person of ordinary firmness from

continuing to engage in that activity; and (3) that the

adverse action was motivated at least in part as a

response to the exercise of [his] constitutional rights.”

Leary v. Daeschner, 228 F.3d 729, 737 (6th Cir. 2000)

(quoting Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998)).

When there is evidence that the adverse employment action

was the result of both speech and non-speech motives, the

public employee must show that his or her speech was a

motivating factor in the employer’s decision. See Mt. Healthy

City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285-87

19a

(1977). If the plaintiff establishes the above three elements,

the burden of persuasion shifts to the defendants, who must

show by a preponderance of the evidence “‘that [they] would

have taken the same action even in the absence of the

protected conduct.’” Leary, 228 F.3d at 737 (quoting Jackson

v. Leighton, 168 F.3d 903, 909 (6th Cir. 1999)).

The Court need not determine whether Ibarra’s speech

constituted constitutionally protected speech because he

cannot show that his speech was a motivating factor in the

defendants’ decision to terminate his employment. In this

case, Ibarra “must link the speech in question to the

{defendants’] decision to dismiss [him].” Bailey v. Floyd

County Bd. of Educ., 106 F.3d 135, 145 (6th Cir. 1997).

Ibarra must present “sufficient evidence to allow a reasonable

factfinder to conclude, by a preponderance of the evidence,

that [his] speech, at least in part, motivated the defendants to

discharge [him].” Cockrel v. Shelby County Sch. Dist., 270

F.3d 1036, 1055 (6th Cir. 2001). It is undisputed that

termination is an adverse action that serves to chill an

ordinary person such as Ibarra from continuing to speak out

about issues facing the Hispanic community. See id. Key to

the Court’s analysis is determining whether Ibarra has shown

that Defendants’ decision to terminate him was motivated by

his protected speech. As outlined below, however, Ibarra has

failed to create a genuine issue of material fact that his speech

was a motivating factor in his termination.

Ibarra claims that he was terminated because he expressed

concern about several issues regarding Lexington’s Hispanic

community. He contends that the following examples support

his argument that he was terminated in retaliation for

exercising his First Amendment right to free speech:

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1. Before Mayor Isaac began her term and while

Ibarra was serving under former Mayor Pam Miller,

Hispanic publication E/ Mundo interviewed Ibarra. At

a meeting on March 13, 2003, Ibarra was

reprimanded by Commissioner White for interviewing

with the publication without receiving prior approval

for the interview.

2. In December of 2002, Ibarra told Bruce Edwards,

Mayor Isaac’s press secretary, that the Hispanic

Initiative Network (“H.I.N”), a _ non-profit

organization partially funded by the LFUCG, had a

history of racial discrimination. In January of 2003,

Ibarra advised Commissioner White that Ben

Figueras, president of another non-profit Hispanic

organization, was requiring cash “kickbacks” from

Hispanic laborers who sought assistance from the

organization. Commissioner White subsequently

admonished Ibarra not to tell anyone else and to stop

his investigation until she contacted him.

3. In January of 2003, Ibarra told Mayor Isaac that

two individuals who wanted to provide Hispanics with

“unofficial identification cards” were proposing

excessive fees for those cards and that he had been

working on a project to provide Mexican government

sanctioned identification cards at a much lower cost.

Ibarra was later removed from the project. The project

was assigned to Commissioner White, whom Ibarra

complains did nothing to advance the project.

4. In January of 2003, Ibarra advised Council

Member Paul Brooks that Hispanic workers in the

Cardinal Valley area were being charged for services

represented as free and overcharged for various other

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services. Ibarra proposed that a resolution be adopted

by the LFUCG Council to help stop the overcharging.

In January of 2003, Ibarra drafted a proposed

resolution relating to the abuses and mistreatment of

Lexington’s Hispanic community. The proposed

resolution was later pulled from the agenda for the

LFUCG Council meeting and was never discussed

again. At a March 13, 2003, meeting, Ibarra was

reprimanded for discussing and drafting the resolution

without first consulting or receiving approval from

Commissioner White.

5. In February of 2003, Ibarra discussed with the

Lexington Herald-Leader some of the “serious

communication problems due to ‘English only’ public

announcements to the iocal Hispanic community

regarding life threatening and dangerous alternative

heating sources” used during an ice storm. (Amended

Compl. ¢ i8f.) Commissioner White subsequently

reprimanded Ibarra for speaking to the newspaper

without prior approval from Commissioner White or

Mayor Isaac. At the March 13, 2003, meeting, Ibarra

was again reprimanded for speaking to the newspaper

without prior approval.

6. Ibarra’s duties and responsibilities included

actively participating at task force meetings sponsored

by the LFUCG. In March 2003, Commissioner White

directed Ibarra not to speak out at a task force

meeting.

Ultimately, however, Plaintiff fails in his efforts to

identify a causal link between his protected conduct and his

termination. When asked in his deposition if he believed that

his comments about Ben Figueras led to his termination,

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Ibarra replied that his speaking out about Figueras could have

been a factor. Ibarra testified that Figueras later met with

Commissioner White at her office. He suspects, but admitted

in his deposition that he has no proof, that they spoke about

terminating him. When pressed for evidence that his

comments about Figueras led to his termination, Ibarra

admitted that he did not have any proof, but that he “deduced

that from what I’ve gone through.” (Ibarra Dep. Vol. 1, June

30, 2005, 152:6-7.) As the Sixth Circuit held in Harbin-Bey

v. Rutter, 420 F. 3d 571 (6th Cir. 2005), “conclusory

allegations of retaliatory motive ‘unsupported by material

facts will not be sufficient to state . . . a claim under

§ 1983.’” Id. at 580 (quoting Gutierrez v. Lynch, 826 F.2d

1534, 1538 (6th Cir. 1987)).

Ibarra admitted in his deposition that Mayor Isaac had

discretion to assign the identification card project to

Commissioner White. He also stated that he did not have any

evidence that Mayor Isaac gave the project to Commissioner

White because she was upset by Ibarra’s speaking out on the

issue. Moreover, Ibarra has not presented any evidence that

he was terminated because he expressed interest in pursuing

the identification card project.

Before he started on the resolution for Council Member

Brooks, Ibarra did not inform Commissioner White of his

plans to began work on the project. Ibarra concedes in his

deposition that it was reasonable for Commissioner White to

require him to talk to her before working on a resolution with

a council member (Ibarra Dep. Vol. 1, 153:6.) Ibarra

complains specifically about how Commissioner White did not

inform him of that requirement in a “constructive non-

reactionary way.” (/d. 153:7-8) When asked whether he felt

it was unreasonable for Commissioner White, his supervisor,

to know what he was working on, Ibarra agreed that keeping

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Commissioner White informed was not an unreasonable

request. Ibarra noted that Commissioner White told him that

they, presumably Social Services, worked for the Mayor, not

the Council. Ibarra emphasized, however, that he objected to

her “demeanor” and analogized it to a drill sergeant telling

him to “drop and do ten.” (/d. 157:19.) Ibarra does not

submit any evidence that Commissioner White or Mayor Isaac

were adverse to the content of the resolution or that he was

terminated because he spoke out about the need for a

resolution to protect Lexington’s Hispanic community from

being defrauded or overcharged by service providers. Based

on Plaintiff's testimony, Commissioner White’s criticism was

limited to her dissatisfaction with Ibarra for working on the

resolution without speaking with her first.

Ibarra attempts to raise a genuine issue of material fact by

claiming that Defendants forbade him from speaking to the

press. The memo submitted by Ibarra detailing the discussion

during the March 13, 2003, meeting at which Ibarra was

reprimanded for speaking to the press states that Ibarra was

non-compliant with the expectations of his superiors by

“[iJnterviewing with El Mundo, without obtaining prior

approval for the interview” and for “[{i]nterviewing with the

Lexington Herald-Leader without prior approval.” In his

deposition, Ibarra explains that after March 13, 2003, he

remembered Commissioner White telling him, “I need to

know everything before you speak to the press. And don’t

speak to the press. I need to know everything before. . . .

Explain what you want to talk to the press about, but don’t

talk to the press without me knowing everything.” (Ibarra

Dep. Vol. 1, 178:18-25.) Ibarra claims that he understood her

to mean that he could not speak to the press. Ibarra’s own

emails, however, belie this conclusion about Commissioner

White’s instructions. Ibarra submitted emails he wrote to

Commissioner White on April 24, 2003, and July 2, 2003,

24a

that show that he continued to speak to newspaper reporters

after clearing the interviews with Mayor Isaac’s press

secretary, Bruce Edwards. Furthermore, Ibarra has not

presented evidence that Defendant’s decision to terminate his

employment was motivated by his speaking to the press.

Ibarra conceded that the meeting at which he was told by

Commissioner White to be quiet was a meeting at which

Commissioner White told all LFUCG employees, except the

meeting’s moderator, to be quiet so that the audience

members would be able to voice their concerns. Most

troubling to Ibarra was the way in which Commissioner White

silenced him: “I mean, it’s not how — what things are said

but how they’re said that conveys a lot. And to me it

conveyed: You shut up.” (Ibarra Dep. Vol. 1, 142:25-143:2.)

Plaintiff's dissatisfaction with the “way” in which

Commissioner White ordered him to be quiet during a

meeting does not give rise to liability under § 1983. Again,

Ibarra has not presented evidence that supports his theory that

his protected conduct was a motivating factor in the

defendants’ decision to terminate him.’

' Regarding the othe: examples presented by Ibarra, even if the

Court assumes arguendo that Commissioner White’s instructions to

Ibarra (1) to not get involved in a police investigation of an

immigrant smuggling scheme, (2) to not attend monthly budget

meetings, (3) to relocate to a downtown office from his office at the

Cardinal Valley Center, and her criticism of Ibarra for (4) not

reporting to the downtown offices during the February 2003 ice

storm and (5) for approving the establishment of a health clinic

when a city contract was not in place are examples of Ibarra being

reprimanded for engaging in conduct protected by the First

Amendment, Ibarra has not shown that the decision to terminate

him was based on that conduct. Furthermore, the Court reminds

Ibarra of its holding in its November 9, 2004 Memorandum

25a

Ibarra has not presented evidence to establish that he was

terminated because he spoke out about issues that affect

Lexington’s Hispanic community. He has not pointed to

“*specific, nonconclusory allegations’ reasonably tinking [his]

speech to [his termination].” Bailey, 106 F.3d at 144 (citing

Wright v. Illinois Dep’t of Children & Family Servs., 40 F.3d

1492, 1500 (7th Cir. 1994)). Plaintiff has not presented any

evidence that Defendants objected to the things that Ibarra

was saying — local residents are being scammed, burning

charcoal indoors is a dangerous alternative heating source,

allowing certain individuals to produce identification cards

will be unduly expensive for Lexington’s Hispanic residents

— instead, Defendants have presented evidence that they

objected to the way in which Plaintiff was proceeding with his

work without notifying his supervisor of his activities

beforehand.’

At the March 13, 2003 meeting, Ibarra was reprimanded

for non-compliance in the following areas: approaching

Opinion and Order: “Even if the Court were to construe these

actions as § 1983 violations, the claims are barred as all actions

occurred more than one year before this action was filed on August

18, 2004.”

* Ibarra has stated that Commissioner White, when referring to

Ibarra’s participation in a couple of newspaper articles, said that he

had “pissed some people off.” (Ibarra Dep. Vol. 2, July 30, 2005,

54:13.) Even if Ibarra could show that Defendants disagreed with

his statements, that showing, without more, would still be

insufficient. See Bailey, 106 F.3d at 145 (“The nonmoving party

may not rely on the mere fact that an adverse employment action

followed speech that the employer would have liked to prevent.

Rather, the employee must link the speech in question to the

defendant's decision to dismiss her.” (citations omitted)).

26a

Council Member Paul Brooks about the resolution without

seeking prior approval from Commissioner White,

interviewing with E/ Mundo and the Lexington Herald-Leader

without seeking prior approval, not calling Commissioner

White during the ice storm, and approving the establishment

of a health clinic when there was no legal contract in place

authorizing its establishment. Plaintiff has conceded that, in

the March 13, 2003, memo and meeting, he was informed of

how he was not complying with certain expectations of Mayor

Isaac and her staff. Plaintiff argues that the March 13, 2003,

meeting and memo “criticized and reprimanded [him] for his

speech activities,” and because the meeting and memo were

mentioned in Commissioner White’s August 26, 2003, memo

recommending Ibarra’s termination, the August memo

“inextricably link{s] Ibarra’s prior speech to his subsequent

termination.” The Court is not persuaded by Ibarra’s attempts

to connect the two memos to create a genuine issue. The

August 2003 memo contains only one reference to the March

2003 meeting and memo: “Over the past eight months, I have

periodically met with Mr. Ibarra. On March 13, 2003, Milton

Dohoney, Gerald Smith and I met with Mr. Ibarra to discuss

several job performance factors (see attached). Mr. Ibarra

does not comply with the job requirements and he does not

comply with supervision.” The March memo criticizes

Plaintiff's actions in speaking to the press and working on a

resolution without prior approval. Whether Plaintiff felt

“castigated” by the remarks made at the March 2003 meeting

is immaterial. Moreover, in the August 26, 2003 memo,

Commissioner White does not mention any disagreement or

dissatisfaction with Ibarra for expressing his views about

Lexington’s Hispanic community to the public or to her.’

‘ Instead, in the memo, she bases her decision to recommend

Ibarra’s termination on the following: Ibarra would not consistently

27a

Ibarra has not met his burden of presenting probative

evidence that he was terminated because he exercised his First

Amendment rights. Without any evidence that Defendants

terminated him because he spoke out about certain issues,

Ibarra cannot survive summary judgment on his § 1983

claim.*

Furthermore, the evidence that Plaintiff has submitted

does not remedy the temporal disconnect between Ibarra’s

statements and his termination. Several courts have

provide her with a schedule of his work activities, he had not

responded to her request for suggestions and/or goals for improving

his work performance, he had not complied with her requests to

schedule a visit to the Cardinal Valley Center, he did not attend two

August 2003 meetings and did not provide an excuse for his

absences, and in general, he had not complied with supervision.

* [barra claims that his case is almost identical to that of the plaintiff

in Cockrel v. Shelby County School District, but unlike Cockrel,

Ibarra has not presented “several pieces of evidence [that] work in

{his} favor.” Cockrel, 270 F.3d at 1056. In Cockrel, the Sixth

Circuit noted the following favorable evidence: the defendants

initiated an early evaluation of Cockrel, Cockrel was the only

tenured teacher to receive more than one evaluation within three

years, the defendants instituted an open-ended evaluation after

Cockrel engaged in the protected conduct in dispute, the evaluation

was a factor in terminating Cockrel, attached to the evaluation were

several letters from parents and staff critical of Cockrel’s decision

to engage in the protected conduct. /d. Commissioner White met

with Ibarra for his yearly evaluation on June 30, 2003 and July 1,

2003. In contrast to Cockrel’s situation, Ibarra neither claims that

his evaluation was initiated in response to him engaging in protected

conduct nor does he provide evidence that Defendants evaluated

him more frequently than his co-workers or surprised him with

early or unscheduled evaluations.

28a

considered the length of time between the protected conduct

and the adverse employment action as a factor in determining

whether a plaintiff has linked his conduct to his former

employer’s adverse action. See Timm v. Wright State Univ.,

375 F.3d 418, 423 (6th Cir. 2004); Hafford v. Seidner, 183

F.3d 506, 515 (6th Cir. 1999); Cooper v. City of North

Olmsted, 795 F.2d 1265, 1272 (6th Cir. 1986); Dixon v.

Gonzalez, 382 F. Supp. 2d 911, 918 (E.D. Mich. 2005). In

this case, Ibarra has not demonstrated that his protected

conduct in January, February, and March of 2003 led to his

termination several months later in August of 2003.

Furthermore, Ibarra has not presented any evidence that he

engaged in any protected conduct after March of 2003 that

served as a motivating factor in his dismissal.°

> Based on Ibarra’s submitted correspondence, in the five to six

months that elapsed between Ibarra’s protected conduct in the first

three months of 2003 and his termination in August 2003, Ibarra

continued to (1) inform Defendants of ways to assist Lexington’s

Hispanic community, see E-mail from Abdon Ibarra, to Alayne

White (Mar. 6, 2003, 08:24) (regarding emergency response plan);

E-mail from Abdon Ibarra, to Teresa Isaac (Apr. 3, 2003, 12:19)

(discussing disturbances in Valley Park), (2) work at the Cardinal

Valley Community Center, see E-mail from Abdon Ibarra, to

Loretta Cory (Aug. 20, 2003, 08:19) (notifying Cory that he would

be working at the Center that day), (3) speak to the press, see E-

mail from Abdon Ibarra, to Alayne White (Apr. 24, 2003, 20:42)

(discussing Ibarra’s comments to a reporter on a new school

superintendent); E-mail from Abdon Ibarra, to Alayne White July

2, 2003, 07:42) (informing Commissioner White that he had spoken

to reporters), and (4) attend training sessions, see E-mail from

Abdon Ibarra, to Loretta Cory (July 16, 2003, 07:22) (regarding

leadership training). Again, Ibarra does not present evidence that

his protected conduct, whether it occurred before or after March of

2003, motivated Defendants to discharge him.

29a

CONCLUSION

Ibarra’s job duties as Immigrant Services Coordinator

included assisting the LFUCG in understanding the needs of

Lexington’s Hispanic community. Although Ibarra argues that

he was terminated because he spoke out about these issues, he

has failed to produce evidence linking that speech to his

termination. Without that evidence, he cannot set forth a

prima facie case for retaliation in violation of the First

Amendment. As the Court will grant summary judgment in

favor of Defendants, Defendants’ motion for partial summary

judgment on damages is denied as moot.

Accordingly, and for the reasons stated above, IT IS

ORDERED:

(1) that Defendants’ motion for summary judgment on

Plaintiff's claims against Mayor Isaac and Commissioner

White in their official capacities [Record No. 25] be, and the

same hereby is, GRANTED;

(2) that Defendants’ motion for summary judgment

[Record No. 2 6] be, and the same hereby is, GRANTED;

and

(3) that Defendants’ motion for partial summary judgment

on damages {Record No. 22] be, and the same hereby is,

DENIED AS MOOT.

This the 4th day of May, 2006.

Signed By:

Joseph M. Hood /s/JMH

United States District Judge

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APPENDIX E

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

LEXINGTON

Civil Action No. 5:04-395-JMH

[Filed May 4, 2006]

ABDON IBARRA,

Plaintiff,

V.

LEXINGTON-FAYETTE URBAN

COUNTY GOVERNMENT, et ail.,

Defendants.

Ne eee ee eee ee”

|

JUDGMENT

In accordance with the Order of even date and entered

contemporaneously herewith,

IT IS HEREBY ORDERED:

(1) That this action be, and the same hereby is,

DISMISSED AND STRICKEN FROM THE ACTIVE

DOCKET.

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(2) That all pending motions be, and the same hereby are,

DENIED AS MOOT.

(3) That all scheduled proceedings be, and the same

hereby are, CONTINUED GENERALLY.

(4) That this Order is FINAL AND APPEALABLE and

THERE IS NO JUST CAUSE FOR DELAY.

This the 4th day of May, 2006.

Signed By:

Joseph M. Hood /s/IMH

United States District Judge

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APPENDIX F

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

LEXINGTON

Civil Action No. 5:04-395-JMH

[Dated November 9, 2004]

ABDON IBARRA,

Plaintiff,

V.

LEXINGTON-FAYETTE URBAN

COUNTY GOVERNMENT, ef ai.,

Defendants.

ee ee ee ee ee a

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Defendants’ motion to

dismiss [Record No. 9]. Plaintiff has responded [Record No.

10}, to which Defendants have replied [Record No. 11]. The

matter having been fully briefed, and the Court being duly

advised, this matter is ripe for decision.

STATEMENT OF THE CASE

For purposes of a Fed. R. Civ. P. 12(b)(6) motion to

dismiss, opposing counsel and the Court must accept

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Plaintiff's allegations as true. Consequently, the following

factual background is based on Plaintiff Abdon Ibarra’s

(“Ibarra”) complaint, as amended.

Ibarra was employed by the Lexington-Fayette Urban

County Government (“LFUCG”) as “Coordinator of

Immigrant Services” from December 20, 1999, to August 27,

2003. [Amended Complaint 414]. After the election of Mayor

Theresa Isaac (“Mayor Isaac” or “Isaac”) in November,

2002, Ibarra expressed concerns and complaints relating to

the treatment of the local Hispanic community. [Amended

Complaint 44 16, 17, 18]. According to the amended

complaint those expressed concerns included, but are not

limited to:

1. In December of 2002, Ibarra told Bruce Edwards,

a member of Mayor Isaac’s staff, that a non-profit

organization partially funded by the LFUCG had

a history of racial discrimination. [Amended

Complaint 418a].

2. In January of 2003, Ibarra advised Alayne White,

Commissioner of Social Services for the LFUCG,

that another non-profit Hispanic organization was

requiring cash “kickbacks” from Hispanic laborers

who sought assistance from the organization.

[Amended Complaint 41 8b].

3. In January of 2003, Ibarra told Mayor Isaac that

two individuals who wanted to provide Hispanics

with “unofficial identification cards” were

proposing excessive fees for those cards and that

he had been working on a project to provide

government sanctioned identification cards at a

much lower cost. [Amended Complaint 41 8c].

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4. In January of 2003, Ibarra advised Council

member, Paul Brooks, that Hispanic workers in

the Cardinal Valley area were being charged for

services represented as free and overcharged for

other various services. Ibarra proposed that a

Resolution be adopted by the LFUCG Council to

help “quell the tide” of overcharges. [Amended

Complaint 418d].

5. In January of 2003, Ibarra drafted a proposed

Resolution relating to the abuses and mistreatment

of the Hispanic Community. [Amended Complaint

q18e].

6. In February of 2003, during the now infamous ice

storm, [barra discussed with the Lexington Herald-

Leader some of the “serious communication

problems due to ‘English only’ public

announcements to the local Hispanic community

regarding life threatening and dangerous

alternative heating sources.” [Amended Complaint

q18f].

Plaintiff claims that all of these communications were made

to public officials and/or the newspaper for public

dissemination.

Ibarra claims that, due te these expressions of concern, he

was subjected to a pattern of retaliatory conduct by the

LFUCG, Mayor Isaac, and Commissioner Wayne. [Amended

Complaint 421]. For example, Ibarra claims he was removed

from projects, told to stop certain investigations, told not to

speak on certain subjects, and issued “severe” reprimands.

{Amended Complaint 422]. He also claims that a resolution

he helped prepare was pulled from the LFUCG Council's

35a

agenda. [Amended Complaint 422]. Ibarra’s amended

complaint states that this retaliatory conduct ultimately

concluded with his termination on August 27, 2003.

[Amended Complaint 423}.

Following his termination, Ibarra applied for

unemployment benefits. [Amended Complaint 427]. The

Kentucky Division of Unemployment Insurance conducted a

hearing, the result of which was a ruling stating that Ibarra

was “discharged for reasons other than misconduct” and an

award of unemployment benefits. [Amended Complaint 428].

Also subsequent to Ibarra’s termination, on August 27,

2003, Mayor Isaac conducted an audit of the Cardinal Valley

Empowerment Project, a non-profit organization incorporated

by Ibarra. [Amended Complaint 438}. The LFUCG also

initiated a LFUCG police investigation into Ibarra’s financial

activities at the Cardinal Valley Center. [Amended Complaint

439]. As explained in correspondence from the LFUCG to

Ibarra, attached to the Amended Complaint, the audit and

investigation were to wrap up some “loose ends” regarding

Ibarra’s employment, and close out his relationship with the

LFUCG. Ibarra cooperated with the audit. [Amended

Complaint $38]. In connection with the audit, Mayor Isaac

telephoned Ibarra’s wife, Lori Ibarra (“Lori”), and advised

her that her husband had set up several bank accounts in her

name; that her husband failed to provide requested financial

records; and that her husband was in serious trouble.

[Amended Complaint $40]. Ibarra claims that Mayor Isaac’s

conduct constituted both “outrageous conduct by intentional

infliction of emotional distress and slander.” [Amended

Complaint 443}.

36a

STANDARD OF REVIEW

Defendants have moved the Court pursuant to Fed. R.

Civ. P. 12(b)(6) to dismiss Plaintiff's claims against them. A

district court may dismiss a suit pursuant to Fed. R. Cir. P.

12(b)(6) if the plaintiffs fail to state a claim for which relief

may be granted. See Decker v. Merrill-Lynch, Pierce, Fenner

and Smith, Inc., 205 F.3d 906, 909 (6th Cir. 1995). A

complaint should only be dismissed when “it appears beyond

doubt that the Plaintiff can prove no set of facts in support of

his claim which would entitle him to relief.” Conley v.

Gibson, 355 U.S. 41, 45-46 (1957); Columbia Natural

Resources, Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir.

1995). While “[{aJll factual allegations are deemed true and

any ambiguities must be resolved in plaintiff's favor” Persian

Galleries Inc. v. Transcontinental Ins. Co., 38 F.3d 253, 258

(6th Cir. 1994), the Court “need not accept as true legal

conclusions or unwarranted factual inferences.” Gahafer v.

Ford Motor Co., 328 F.3d 859, 891 (6th Cir. 2003) (quoting

Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir.

1987)). While a complaint need only give “fair notice of what

the plaintiff's claim is and the grounds upon which it rests”

Lawler v. Marshall, 898 F.2d 1196, 1199 (6th Cir. 1990)

(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)), the

plaintiff must assert more than bare legal conclusions. Jn re

DeLorean Motor Co., 991 F.2d 1236, 1240 (6th Cir. 1993)

(citing Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d

434, 436 (6th Cir. 1988)). “In practice, ‘a ... complaint must

contain either direct or inferential allegations respecting all

the material elements to sustain a recovery under some viable

legal theory.’” Scheid, 859 F.2d at 436 (quoting Car

Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th

Cir. 1984), cert. denied, 470 U.S. 1054 (1985) (quoting In re

Plywood Antitrust Litigation, 655 F.2d 627, 641 (Sth Cir.

1981)).

37a

DISCUSSION

Defendants argue that the actions stated in Count I of

Ibarra’s amended complaint, with the exception of termination

of employment, are time barred in that the conduct

complained of occurred more than one year prior to the filing

of this action. Defendants further argue that Ibarra’s § 1983

claim, as stated in Count One of his amended complaint, must

fail as the record in this action, and matters of which this

Court may take judicial notice, demonstrate that Ibarra’s

employment was not terminated in response to the exercise of

his constitutional rights. Defendants state that Count II -

claims for intentional infliction of emotional distress and

slander - must be dismissed because the conduct alleged in the

amended complaint is not sufficiently outrageous to support

such a claim and the statements made were not defamatory.

Finally, Defendants claim that Count III of the amended

complaint does not allege any acts in violation of Ibarra’s civil

rights apart from those acts alleged in the proceeding portions

of the amended complaint. The Court will examine each of

these arguments below.

I. Section 1983 Claims

The only act alleged in Count I of Ibarra’s amended

complaint that may be the subject of a timely claim of

retaliation under § 1983 is the termination of Ibarra’s

employment on August 27, 2003. Ibarra’s other allegations of

retaliation - removal from a project, admonishments, a

proposed resolution being pulled from an agenda, reprimands,

directions not to attend certain meetings, a change of office

location, and a derogatory comment - do not rise to the level

of “an action caus[ing] the plaintiff to suffer an injury that

would likely chill a person of ordinary firmness from

continuing to engage in that activity.” Bloch v. Ribar, 156

38a

F.3d 673, 678 (6th Cir. 1998). Moreover, even if the Court

were to construe these actions as § 1983 violations, the claims

are barred as all action occurred more than one-year before

this action was filed on August 18, 2004. KRS 413.140; Ford

v. Hill, 874 F. Supp. 149, 151 (E.D. Ky. 1995).

Accordingly, Ibarra’s only timely claim of retaliation under

§ 1983 relates to his termination from employment.

To prevail on a First Amendment retaliation claim, a

public employee must establish:

(1) that [he] was engaged in a constitutionally

protected activity; (2) that the defendant’s adverse

action caused [him] to suffer an injury that would

likely chill a person of ordinary firmness from

continuing to engage in that activity; and (3) that the

adverse action was motivated at least in part as a

response *o the exercise of [his] constitutional rights.

Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036, 1048

(quoting Leary v. Daeschner, 228 F.3d 729, 737 (6th Cir.

2000)). If the plaintiff establishes the above three elements,

the burden of persuasion shifts to the defendants, who must

show, by a preponderance of the evidence, that they “*would

have taken the same action even ip the absence of the

protected conduct.’” Jd. (quoting Leafy, 228 F.3d at 737).

Seemingly, the temporal disconnect between Ibarra’s

statements and the alleged adverse action hinders Ibarra’s

ability to demonstrate that the defendants were retaliating

against him. However, with the limited amount of information

before the Court at this time, the Court is unable to say that,

beyond doubt, “the Plaintiff can prove no set of facts in

support of his claim which would entitle him to relief.”

Conley, 355 U.S. at 45-46. Accordingly, Ibarra’s § 1983

39a

claim for retaliation, relating to his termination from

employment, withstands Defendants’ motion to dismiss.

II. Intentional Infliction of Emotional Distress and Slander

A. Intentional Infliction of Emotional Distress

In his amended complaint, Ibarra alleges that an audit of

the Cardinal Valley Empowerment Project, a police

investigation into Ibarra’s activities at the Cardinal Valley

Center, and a telephone conversation between Mayor Isaac

and Ibarra’s wife amounted to outrageous and intolerable

conduct which caused Ibarra severe emotional distress. In

Craft v. Rice, 671 S.W.2d 247 (Ky. 1984), the Kentucky

Supreme Court adopted the tort of intentional infliction of

emotion distress based upon outrageous conduct contained in

the Restatement (Second) of Torts, Section 46 (1965). In

order to establish such a claim the Plaintiff must show

(1) intentional or reckless conduct by the purported

wrongdoer, (2) proof of conduct so outrageous and

intolerable that it offends against the generally

accepted standards of decency and morality, (3) a

causal connection between the wrongdoer’s conduct

and the emotional distress, and (4) emotional distress

that is severe. Additionally, the Plaintiff must

demonstrate that the Defendants solely intended to

cause the plaintiff emotional distress when engaging in

the conduct. The evaluation of the criteria should be

‘stringent,’ and the action must be ‘utterly intolerable

in a civilized community,’ a type of ‘harassment

intended to cause extreme emotional distress.’

Smith v. Franklin County, 227, F. Supp.2d 667, 683-84 (E.D.

Ky. 2002) (internal citations omitted). Kentucky law is clear

40a

that a claim of outrage or intentional infliction of emotional

distress will not lie for “petty insults, unkind words and minor

indignities; the action only lies for conduct which is truly

outrageous and intolerable.’” Banks v. Fritsch, 39 S.W.3d

474, 481 (Ky. App. 2001).

While Ibarra was resentful and upset about the audit,

investi, ation, and telephone call, the Court does not believe

he has shown that Defendants’ actions constituted outrageous

conduct, nor that he has suffered severe emotional distress

according to the criteria set forth in Rice, supra. The conduct

alleged of Mayor Isaac simply does not stack up against the

factual backdrop of other claims of outrage that have been the

subject of judicial consideration and opinion in Kentucky. '

' Holmes v. Montgomery, 2003 WL 1786518 (Ky. App. 2003) (strip

search of minor children in public school did not rise to the level of

conduct that shocks the conscience and thus the complaint failed to

allege the existence of facts that would support damages for the

intentional infliction of emotional distress); Wilson v. Lowe's Home

Center, 75 S.W.3d 229 (Ky. App. 2001) (Africa..-American

employee’s allegations that he was subjected to racial remarks on

nearly a daily basis by his coworkers and supervisors for a period

of approximately seven years were sufficient to establish claim for

intentional infliction of emotional distress); Humana of Kentucky v.

Seitz, 796 S.W.2d 1, 3 (Ky. 1990) (The Kentucky Supreme Court

determined as a matter of law that a woman who gave birth to a

stillborn baby could not maintain an action for outrage despite the

fact that (1) it took 12-15 minutes for hospital personnel to respond

to her cries for assistance, (2) a nurse told her to “shut up” because

she was disturbing other patients; and (3) when she inquired what

would become of her baby, a nurse told her that it would be

“disposed of” at the hospital); Whittington v. Whittington, 766

S.W.2d 73 (Ky. App. 1989) (Alleged conduct of husband in

committing adultery and, during pendency of divorce proceedings,

endorsing checks with wife's name and spending the proceeds, and

4la

Accordingly, Ibarra’s amended complaint fails to state a claim

for intentional infliction of emotional distress.

B. Slander

The Kentucky Court of Appeals has explained that a

plaintiff must establish four elements tn order to state a claim

of defamation. Those four elements are “(1) defamatory

language (2) about the plaintiff (3) which is published and (4)

which causes injury to reputation.” Columbia Sussex Corp. v.

Hay, 627 §.W.2d 270, 273 (Ky. App. 1981), review denied.

A statement is defamatory if it “tends to (1) bring a person

into public hatred, contempt or ridicule; (2) cause him to be

shunned or avoided; or, (3) injure him in his business or

occupation.” McCall v. Courier-Journal & Louisvilie Times

Co., 623 S.W.2d 882, 884 (Ky. 1981).

Ibarra alleges that Isaac slandered him in a single

telephone conversation with Ibarra’s wife. As told by Ibarra,

Mayor Isaac advised Ibarra’s wife via telephone that her

husband had set up several bank accounts in her name; that

her husband failed to provide requested financial records; and

that her husband was in serious trouble. Even if Ibarra’s

other assets, in violation of prejudgment attachment of marital

assets, and threatening wife that he would leave the country and she

would receive nothing unless she agreed to settlement on his terms,

did not reach the level of outrageousness required for the tort of

outrageous conduct causing severe emotional distress); Craft v.

Rice, 671 S.W.2d 247 (Ky. 1984) (In Craft, the Kentucky Supreme

Court held that the alleged harassment - including keeping Craft

under surveillance, threatening to put her husband in jail, and

forcing her vehicle off the road - that took place over a period of

months was enough to satisfy the threshold requirements for the tort

of outrageous conduct).

42a

allegations are true, the Court cannot conclude that such

conduct rises to the level necessary to establish a claim for

defamation. Reasonable minds would not differ in finding

such statements insufficient to bring Ibarra into a position of

public hatred, contempt, ridicule; cause him to be shunned or

avoided, or injure him in _ business or occupation.

Accordingly, Ibarra’s amended complaint fails to state a claim

for slander upon which relief may be granted.

Ili. Count Ill

Count III of [barra’s amended complaint includes an all-

inclusive constitutional claim wherein Ibarra alleges that the

actions of the defendants previously set out in Counts I and II

deprived him of his First Amendment rights of free speech

and freedom of association and assembly. Specifically, Ibarra

claims that Mayor Isaac’s actions after Ibarra’s termination

from employment, were “retaliatory in nature and were

intended to deprive, dissuade, inhibit, deter, discourage,

prevent, and/or limit Ibarra’s constitutional freedom of

speech, association and/or assembly as a private citizen

speaking out on matters of public interest and public

concern.” [Amended Complaint 445].

In his response to Defendants’ motion to dismiss, Ibarra

states that Count III is a freedom of association claim. Ibarra

is correct in his assertion that the right of freedom of

association has been recognized as a viable cause of action by

both the United States Supreme Court and United States Court

of Appeals for the Sixth Circuit. Plaintiff contends his

amended complaint presents violations of (1) freedom of

expressive association, and (2) freedom of intimate

association. The Court, however, is unable to see how

Ibarra’s amended complaint sets forth a claim for either.

Plaintiff's amended complaint makes no factual allegations as

43a

to how Ibarra’s freedom of association was hindered by acts

of Mayor Isaac, Alayne White, or the LFUCG. Moreover,

Plaintiff's amended complaint fails to state with whom he was

prevented from associating.

Throughout Plaintiff's response to Defendants’ motion to

dismiss, [barra focuses on the “notice” pleading requirements

of Fed. R. Cir. P. 8, and argues that his claims are not

subject to any “heightened” pleading requirements. While this

is in fact true, it does nothing to save his amended complaint

from being dismissed for failure to state a claim upon which

relief can be granted. The United States Court of Appeals for

the Sixth Circuit has explained that a plaintiff may not hide a

deficient complaint behind the guise of “notice” pleading:

Although [the] standard for Rule 12(b)(6) dismissals

is quite liberal, more than bare assertions of legal

conclusions is Ordinarily required to satisfy federal

notice pleading requirements. In practice, a complaint

must contain either direct or inferential allegations

respecting all the material elements to sustain a

recovery under some viable legal theory.

Scheid vy. Fanny Farmer Candy Shops, Inc., 859 F.2d 434,

436-37 (6th Cir. 1988) (internal citations omitted). In Scheid,

the Court granted the Rule 12(b)(6) motion to dismiss stating

that, “when a complaint omits facts that, if they existed,

would clearly dominate the case, it seems fair to assume that

those facts do not exist.” Scheid, 859 F.2d at 437 (internal

Citations omitted). The same reasoning bears true for the case

sub judice.

44a

Accordingly, for the reasons stated above,

IT IS ORDERED,

(1) that Defendants’ motion to dismiss [Record No.9 ] be,

and the same hereby is, GRANTED IN PART and DENIED

IN PART;

(2) that, with the exception of Ibarra’s 42 U.S.C. § 1983

claim for retaliation based upon his termination from

employment, all of Plaintiff's claims are DISMISSED WITH

PREJUDICE.

This the 9th day of November, 2004.

Signed By:

Joseph M. Hood /s/JMH

United States District Judge

APPENDIX G

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

LEXINGTON DIVISION

Civil Action No. 04-395-JMH

[Filed August 25, 2004]

ABDON IBARRA,

Plaintiff,

Vv.

LEXINGTON-FAYETTE URBAN

COUNTY GOVERNMENT, ef ai.

Defendants.

AMENDED COMPLAINT

* * *

COUNT I

14. Ibarra was employed as the Coordinator of Immigrant

Services for the Defendant, Lexington-Fayette Urban County

Government (hereinafter LFUCG) from on or about

December 20, 1999 until the date of his wrongful involuntary

termination on or about August 27, 2003.

46a

15. Ibarra’s duties and responsibilities throughout his

employment as Coordinator of Immigrant Services included,

but not exclusively, the following: to act as liason for the

LFUCG with the Hispanic community and to promote

institutional changes and updates; to improve service delivery

to the Hispanic community; to implement educational

programs; to achieve cultural competence within the

comprehensive service being provided to the community such

as health, education, mental health, police services, and all

other fields relevant to the improvement and support of the

Hispanic community as a whole; to ensure that the Hispanic

community made a smooth transition into the educational,

social and economic infrastructure of the community as a

whole; and to ensure that they affirmatively availed

themselves of the rights and protections of the legal and

justice system operating within the Commonwealth of

Kentucky..

47a

APPENDIX H

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

LEXINGTON DIVISION

Civil Action No. 04-395-JMH

[Filed December 2, 2004]

ABDON IBARRA,

Plaintiff,

-

LEXINGTON-FAYETTE URBAN

COUNTY GOVERNMENT, et ai.

Defendants.

Nee ee eee eee ee”

ANSWER

ELECTRONICALLY FILED

* * *

14. Regarding the averments in paragraph 14 of the

amended complaint, the defendants admit that Ibarra was an

employee of the LFUCG from on or about December 20,

1999 until on or about August 27, 2003. The defendants deny

that Ibarra was wrongfully terminated. The defendants are

without knowledge or information sufficient to form a belief

48a

as to the truth of all other averments in paragraph 14 of the

amended complaint.

15. Regarding the averments in paragraph 15 of the

amended complaint, the defendants affirmatively state that

Ibarra’s job duties and responsibilities were only those

described in the job description for his position, and therefore

deny al! averments in paragraph 15 of the amended complaint

inconsistent with that job description.

xk * *

49a

APPENDIX I

First Amendment

Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof; or abridging

the freedom of speech, or of the press; or the right of the

people peaceably to assemble, and to petition the Government

for a redress of grievances.

Fourteenth Amendment

Section. 1. All persons born or naturalized in the United

States and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

Section. 2. Representatives shall be apportioned among the

several States according to their respective numbers, counting

the whole number of persons in each State, excluding Indians

not taxed. But when the right to vote at any election for the

choice of electors for President and Vice President of the

United States, Representatives in Congiess, the Executive and

Judicial officers of a State, or the members of the Legislature

thereof, is denied to any of the male inhabitants of such State,

being twenty-one years of age, and citizens of the United

States, or im any way abridged, except for participation in

rebellion, or other crime, the basis of representation therein

50a

shall be reduced in the proportion which the number of such

male citizens shall bear to the whole number of male citizens

twenty-one years of age in such State.

Section. 3. No person shall be a Senator or Representative in

Congress, or elector of President and Vice President, or hold

any Office, civil or military, under the United States, or under

any State, who, having previously taken an oath, as a member

of Congress, or as an officer of the United States, or as a

member of any State legislature, or as an executive or judicial

officer of any State, to support the Constitution of the United

States, shall have engaged in insuriection or rebellion against

the same, or given aid or comfort to the enemies thereof. But

Congress may by a vote of two-thirds of each House, remove

such disability.

Section. 4. The validity of the public debt of the United

States, authorized by law, including debts incurred for

payment of pensions and bounties for services in suppressing

insurrection or rebellion, shall not be questioned. But neither

the United States nor any State shall assume or pay any debt

or obligation incurred in aid of insurrection or rebellion

against the United States, or any claim for the loss or

emancipation of any slave; but al] such debts, obligations and

claims shall be held illegal and void.

Section. 5. The Congress shall have power to enforce, by

appropriate legislation, the provisions of this article.

Sla

APPENDIX J

42 U.S.C. § 1983. Civil action for deprivation of rights.

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the

District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights,

privileges, Or immunities secured by the Constitution and

laws, shall be liable to the party injured in an action at law,

suit in equity, or other proper proceeding for redress, except

that in any action brought against a judicial officer for an act

or omission taken in such officer’s judicial capacity,

injunctive relief shall not be granted unless a declaratory

decree was violated or declaratory relief was unavailable. For

the purposes of this section, any Act of Congress applicable

exclusively to the District of Columbia shall be considered to

be a statute of the District of Columbia.