Petition for Writ of Certiorari — Leslie v. Johnson (No. 07-509)

07-5090CT15 2007

No. CI) OFFICE OF THE CLERK

In the

Supreme Court of the United States

MARK A. LESLIE,

Petitioner,

v.

BRUCE JOHNSON, et al.,

Respondents

On Petition for a Writ of Certiorari

To the United States Court of Appeals

For the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

Mark A. Leslie, Pro Se

76 S. Powell Ave.

Columbus, OH 43204

(614) 274-7620

QUESTIONS PRESENTED

1. Whether the federal court’s determination of a

state government employee’s Free Exercise claim under the

First Amendment, which is asserted in the context of such

employment, must apply the ex ante criteria of Employmen'

Div. v. Smith. or may apply instead the ex post balancing

test of Pickering v. Board of Education.

2. Whether a government employee's free exercise

claim must prima facie show as a causation element that

the defendant supervisor specifically intended to restrain o1

prohibit the employee’s religious expression or only show

that the supervisor’s actions had the effect of restricting or

burdening such expression. Mt. Healthy City Sch. Dist. v.

Doyle.

3. Whether the applicability and neutrality criteria

adopted in Employment Div. v. Smith , as interpreted and

applied by the federal courts, “faithfully serve the purpose

of the Constitution” and “represent the correct

understanding of the Free Exercise Clause”, or whether

this Court should adopt different constitutional criteria for

free exercise claims under the First Amendment.

PARTIES TO THIS PROCEEDING

Petitioner:

Mark A. Leslie

Respondents:

Bruce E. Johnson

Douglas A. Garver

Richard V. Everhart

Marlo B. Tannous

Rita R. Parise

Heather L. Cunningham

Counsel of Record for Respondents in the Sixth Circuit

Court of Appeals:

Jack W. Decker

Principal Assistant Attorney General

The Attorney General of Ohio

Employment Law Section

150 E. Gay Street, 22"4 Fir

Columbus, OH 43215-3167

(614) 644-7257 (PH) (614) 752-4677 (telefax)

elsreview@ag.state.oh.us

RULE 29.6 STATEMENT

Pursuant to Supreme Court Rule 29.6, Petitioner

states that he has no parent companies or nonwholly owned

subsidiaries.

TABLE OF CONTENTS

QUESTIONS PRESENTED..... ................. ie:

PARTIES TO THIS PROCEEDING ................... il

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Ee TTT Gs os Cn kW eo SEN shoe ER es il

PEPE PE PLT TOMPOR EEO ov ck cc cs eee vereceroves iN

ge oy ie oweb. 64d ep eee eared 1

ee ce we pls Ue a re aa spe wane wad

CONSTITUTIONAL PROVISIONS INVOLVED ........ 1

NE la need es Ve ot UN ees CO

A. The Continuing Relevance of Faith................. é

le ee re i ig ns oka «WW hs WD 2

REASONS FOR GRANTING THE PETITION ........... 4

I. The Questions Presented Are Important to.......... 7

Defining the Place of Religious Belief and

Action in American Life and Governance

Il. The Circuits Are Divided Over the Appropriate... ... 22

Procedure For Determining Free Exercise Claims

eM eS oop Sows e ek eee eee wee eee y$

APPENDIX

Opinion of the Sixth Circuit Court of Appeal... Appx. p. 1

Opinion and Order of the District Court, ...... Appx. p. 8

Southern District of Ohio

ill

TABLE OF AUTHORITIES

Cases: Page(s)

Altman v. Minnesota Dept of Corrections,........ 14, 22

251 F.3d 1199 (8th Cir. 2001)

American Family Ass'n, Inc. v. F.C.C.,........... 24

065 F.3d 1156, (D.C. Cir. 2004)

Asselin v. Santa Clara County, 185 F.3d 865 ..... 16

(9th Cir. 1999)

Atty Gen. v. Desilets, 418 Mass. 316 (1994)........ 9

Ballweg v. Crowder Contracting Co., 247 Va. 205,...9

440 SE2d 614 (1994)

Baz v. Walters, 782 F. 2d 701 (7* Cir. 1986)....... 14, 15

Berry v. Dept of Social Services, 447 F.3d 642... 14, 15, 16

(9th Cir. 2006),

Blackhawk v. Pennsylvania, 381 F.3d 202,......... 24

3d Cir. 2004)

Booth v. Maryland, 327 F.3d 377 (4th Cir. 2003)... 22, 25

Brown v. Borough of Mahaffey, Pa., 35 F.3d 846... . 25

(3d Cir. 1994)

Brown v. Polk County, Iowa, 37 F.3d 404 ... 12, 14, 15, 16

(8th cir. 1994)

Brown v. Polk County, 61 F.3d 650 ........... 14, 22, 27

(8th Cir. en banc 1994)

iV

Burlington Northern & SantaFe Railway Co. v

White, 74 U.S.L.W. 4423 (2006)

Cantwell v. Connecticut , 310 U.S. 296 (1939)

Catholic Charities of Sacramento, Inc. v

Superior Court, 32 Cal 4t4 527, 10 Cal. Rptr 283 (2004)

Churchill v. Waters, 511 U.S. 661 (1994)... 10, 11, 12, 13,

17, 20. 23, 33

Church of Lukumi Bablu Ayev. ...... 3, 8, 18, 19, 20, 21

City of Hialeah, 508 U.S. 520 (1993)

City of Boerne v. Flores, 521 U.S. 507 (1997). . .8, 9, 20

Connick v. Myers, 461 U.S. 138 (1983) 10, 11, 12

County of Allegheny v. American Civil Liberties... . 10

Union, 492 U.S. 573 (1989)

Crawford-el v. Britton, 522 U.S. 574 (1998)

Cutter v. Wilkinson, 544 U.S. 709 (2005)

Daniels v. City of Arlington, Texas, 246 F.3d 500. . 15, 22

(5th Cir 2001).

Employment Div. v. Smith, 494 U.S. 872 (1990) .3, 7, 18, 19

Endres v. Indiana State Police, 334 F.3d 18

(7th Cir. 2003)

Erickson v. Bd. of Gov’s St. Colleges & Univ

207 F.3d 945, 950 (7 Cir. 2000)

Fortin v. Roman Catholic Bishop of Portland,....... 9

2005 ME 57, 871 A.2d 1208 (2005)

Fraternal Order of Police Newark Lodge No. 12 v... .22

City of Newark, 170 F.3d 359 (3d Cir. 1999)

Garcetti v. Ceballos, 547 U.S.___, (2006)........... 11

Genas v. State of N.Y. Dept of Correctional ....... 22, 23

Services, 75 F.3d 825 (2.4 Cir 1996)

Grace United Methodist v. City of Cheyenne......... 28

451 F.3d 643 (10t Cir. 2006)

Grossbaum v. Indianapolis-Marion County ........ 26

Building Auth., 100 F.3d 1287 (7th Cir. 1996) |

Hartman v. Moore, 547 U.S. 250 (2006)........... ; 23

Hartman v. Stone, 68 F.3d 973, (6th Cir. 1995)...... 25

Hobbie v. Unemployment Appeals Comm’n......... 12

of Fla, 480 U.S. 136 (1987)

Humphrey v. Lane (2000) 89 Ohio St.3d 62........ 5, 9

Hunt v. Hunt, 162 Vt. 423, 648 A.2d 843 (1994)...... 9

Jeffs v. Stubbs, 970 P.2d 1234 (Utah 1998).......... 9

Keyishian v. Bd of Regents, 385 U.S. 589 (1967) ..... 11

Knight v. Connecticut. Dept Public Health,...... 14, 15, 22

275 F.3d 156 (2°4 Cir 2001)

Knights of Columbus #94 v. Town of Lexington,....... 24

272 F.3d 25 (1st Cir 2001)

vi

Lawson v. Washington, 296 F.3d 799 ........ 14, 22, 27

(9th Cir. 2002)

LeBlanc-Sternberg v. Flet-*er, 67 F.3d 412 ....... 24

(2™4 Cir 1995).

Locke v. Davey, 540 U.S. 712 (2004)............ 21, 28

Lumpkin v. Brown, 109 F.3d 1498 (9'» Cir. 1997)... 14

Lynch v. Donnelly, 454 U.S. 668 (1984) ............ 13

McDaniel v. Paty, 435 U.S. 618 (1978). ............ 8

McDonnell Douglas Corp. v. Green,............... 5

422 U.S. 792 (1973)

Mt. Healthy City Sch Dist Bd of Educ. v............ 21

Doyle, 429 U.S. 274, 287 (1977)

North Carolina v. Carignan, 2006-COA05-825........ 9

(Ct App 2005)

Open Door Baptist v. Clark County, 140 Wn2d 143, ...9

995 P.2d 33 (1999) "

Pickering v. Board of Education, .. .3, 10, 11, 12, 13, 14, 15,

391 U.S. 563 (1968) 16, 17

Prater v. City of Burnside, Ky., 289 F.3d 417 ....... 25

(6t Cir. 2002)

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)... . 21

Shagalow v. State, Dept of Human Resources, ........ 9

725 N.W.2d 380 (MN 2006)

Sherbert v. Verner, 374 U.S. 398 (1963)............ 7,8

Shrum v. City of Coweta, OK., 449 F.3d 1132...... 23, 27

(10% Cir. 2006)

Tarsney v. O’Keefe, 225 F.3d 929,935 ............. 26

(8th Cir. 2000) :

Texas Dept of Community Affairs v. Burdine,........ 5

450 U.S. 248 (1981)

Thomas v. Review Bd., 450 U.S. 707 (1981)........... 7

Torcaso v. Watkins, Clerk, 367 U.S. 488 (1961)........ 8

Turner v. pauey, 462 Um. Pe te@ee). .........-.0000- 9

Wallace v. Jaffree, 472 U.S. 38 (1985)............... 13

Wisconsin v. Miller, 202 Wis2d 56, ..........:....... 9

549 NW2d 235 (1996)

* * * * * * *

Mark A. Leslie v. Ohio Dept. of Development, ........ 3

Case No. 02-WHB-03-0112, Ohio Personnel

Board of Review

Leslie v. Ohio Dept of Development, Case No.......... 4

O5CVF-05-5501, (Com. Pl, Franklin Cty, OH)

Leslie v. Ohio Dept of Development, Case No. ......... 4

06AP-628, 2007-Ohio-1170 (10% Dt. Ct. App. 2007)

Leslie v. Ohio Dept of Development, Case No.......... 5

07-0750, Ohio Sup. Ct. (2007)

* * * * * * *

Vill

Constitutional and Statutory Provisions Pages

The First Amendment to the U.S. Constitution........ 1

Fourteenth Amendment to the U.S. Constitution....... 1

Ohio Constitution, Articte 1,$ 7... 00. cscs wee ccces 5

Religious Freedom Restoration Act of 1993,........... 8

42 U.S.C. §§ 2000bb to bb-4

Religious Land Use and Institutionalized Persons...... 9

Act of 2000, 42 U.S.C. §2000cc

ee ar es I 6 vv COCR Oke ew eee eee passim

Title Vil, 42 U.S.C. 20000... 2. ew ee es 14, 22, 25, 26, 27

Paeh. omek: Mame We. GEE. . ... coe cc kvvsivcavewtbent 8

Se See; Ss HN bes a os ko ae eee 8

a eS Ss ee eee eee 8

Pa es Ss PU + a 3 as eva week Hae eb ei eaa eee 8

ees Ca CO PO Oc hae ae econ eee 8

eee ee: A SI: OPPs os a cece 3 8 oo nea 8

es: Se NE I soso c-dn es oh bw ewe a ee 8

Pee. ek, A, Se ok ce one os deka weet eaa bene 8

eee ee. GANGEE ee OES y o.v 6 een wk 0s 04 oes ee dee 4

Ci Ot OO ee ee x

a I a gS ae p oe a ek 8

ey MI TIE gg. k 6. ce Ks ep eepe ces enna euawed 8

ee ee I cs sc bes ules eae sew es eae 8

Tex Civ. Prac. & Rem. Code Ann. §110.003. ............ 8

Other Authorities Page(s

James 2:26, The Bible, American Standard Version....2

Table No. 525, All Governments — Employment and... .6

Payroll by Function: 1999; Statistical Abstract of the

United States at p. 330.

Frederick Mark Gedicks, The Rise and Fall ofthe..... 19

Religion Clauses, 6 BYU J. Publ. L. 499 (1992)

Carol M. Kaplan, The Devil isin the Details: ......... 19

Neutral, Generally Applicable Laws and Exceptions

from Smith. 75 N.Y.U. L. Rev. 1045, 1046 (2000) |

Douglas Laycock, Summary and Synthesis: The Crisis. .19

in Religious Liberty, 60 Geo. Wash. L. Rev. 841 (1992)

William P. Marshall, In Defense of Smith and Free... . .19

Exercise Revisionism, 58 U. Chi. L. Rev. 308 (1991)

Michael W. McConnell, Free Exercise Revisionism...... 19

and the Smith Decision, 57 U. Chi. L. Rev. 1109 (1990)

James M. Oleske, Jr., Undue Burdens and the Free..... 19

Exercise of Religion: Reworking a “Jurisprudence of

Doubt”. 85 Geo. L.J. 751 (1997)

M. Hamilton, The Supreme Court Issuesa............ 28

Monumental Decision”: FindLaw website:

http://writ.news.findlaw.com/hamilton/20040227. html.

PETITION FOR A WRIT OF CERTIORARI

=

OPINIONS BELOW

The opinion of the Sixth Circuit Court of Appeals

(Appx., infra, pp. 1 --7 is unreported; however, the opinion

appears at 2007 U.S. App. LEXIS 17775 and at 2007 WL

2052236. The Opinion and Order of the District Court,

Southern District of Ohio (Appx., infra, pp. 8 -- 62) is

unreported; however, the Opinion and Order appears at

2006 U.S. Dist. LEXIS 24064 and at 2006 WL 7457700.

JURISDICTION

The court of appeals’ judgment was entered on

July18, 2007. The jurisdiction of this Court is invoked

under 28 U.S.C. §1254(1). The jurisdiction of the District

Court was invoked under 28 U.S.C. §§1331, 1343(a)(3), and

1343(a)(4) with reference to 42 U.S.C. §1983, 28 U.S.C.

§2201(a), and 28 U.S.C. §2202.

CONSTITUTIONAL PROVISIONS INVOLVED

The First Amendment to the U.S. Constitution

provides in relevant part:

Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof;

The Fourteenth Amendment to the U.S. Constitution

provides in relevant part:

“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.

STATEMENT

A. The Continuing Relevance of Faith

This case raises important questions concerning the

protection of expressions and activities of religious faith

against government prohibitions and interferences.

In American history the Bible has been and

continues to be the primary source for inspiration and

guidance for the beliefs and actions of American people of

faith. The Bible says that “faith apart from works is dead.”

James 2:26, American Standard Version. According to this

Court, the Constitution says that faith in the form of pure

belief cannot be restrained by government but that faith in

the form of works can be regulated to “safeguard the peace,

good order and comfort of the community.” Cantwell v.

Connecticut _, 310 U.S. 296, 304 (1939) It seems that in

Cantwell this Court implicitly accommodated the

possibility that religious faith could be regulated into

irrelevancy (ie. death) by restricting the works expressing

faith. Thus, the relevancy of faith is dependent in large

part upon the “good faith” of government leaders and the

courts that create, administer, and interpret the laws that

regulate works of faith.

B. The Proceedings Below

In it decision below, the Sixth Circuit Court of

Appeals stated that the factual background of this case was

thoroughly discussed in the district court’s opinion and

order. The Circuit Court made no reference to the

Statement of Facts and Statement of the Case furnished by

this Petitioner in his briefs that had highlighted numerous

salient facts that had been disregarded by the District

Court in its Opinion. Neither did the Circuit Court address

any of the six issues submitted to it by this Petitioner for

review, including the following: “JV. The District Court

erred in deciding that the balancing standards of Pickering

vu. Bd. of Education apply to Leslie’s religious expressions

because he was a government employee.“ and “V. The

District Court erred in deciding that the free exercise

standards of Employment Div. v. Smith do not apply to

Leslie’s religious expressions.” Rather, the Circuit Court

upheld the Order granting the Defendants’ Motion for

Summary Judgment upon causation grounds.

The ruling of the District Court below that is the

primary basis for this Petition is that the Pickering’

balancing test applies to Petitioner’s Free Exercise claim”

instead of the rules of Employment Div. v. Smith and

Church of Lukumi Babalu Aye y. City of Hialeah’.

The facts provided in the District Court’s opinion

were selectively drawn and interpreted by that Court from

the hundreds of pages of transcript of the record hearing

held in Petitioner’s whistleblower action against the Ohio

Department of Development (““ODOD”) before an

Administrative Law Judge of the Ohio Personnel Board of

Review (“OPBR’”)4. The testimony in such administrative

hearing was focused primarily upon satisfying the

Administrative Law Judge’s improper application of the

McDonnell Douglas — Burdine ® disparate impact

discrimination evidentiary criteria to a retaliatory

| Pickering v. Bd. of Education, 391 U.S. 563 (1968)

2 “The Pickering balancing test. is apphcable in this case because the

government is acting as the employer and the governments interest in

maintaining an efficient workplace exists regardless of whether the

employee is trying to exercise his right to free speech or his right to the

free exercise of religion.” Order and Opinion, Appx. pp. 50-51.

> Employment Div. v. Smith, 494 U.S. 872 (1990); Church of Lukumi Babalu Ave

v. Citv of Hialeah, 508 U.S. 520 (1993)

4 Mark A Leslie v. Ohio Dept. of Development,, Case No. 02-W HB-03-

0112 Ohio Personnel Board of Review. Defendants submitted a full

copy of this transcript to the District Court below; however. the

transcript was never delivered to the Sixth Cireuit Court.

5 McDonnell Bouglas Corp. v. Green. 422 U.S. 792 (1973): Texas Dept of

Community Affairs v. Burdine, 450 U.S. 248 (1981). Compare

Burlington Northern & SantaFe Railway Co. v. White. 74 US LW

1423 (2006) at pp. 7—12 of the Slip Opinion

discharge claim arising from whistleblower reports that

should have been protected under Ohio Revised Code

§124.341.

In Petitioner’s appeal of the OPBR’s decision

dismissing the whistleblower complaint®, the Common

Pleas Court found that Petitioner had presented a prima

facie case of actions protected by ORC §124.341. However,

the Common Pleas Court relied upon several conclusions

and characterizations of the District Court’s Opinion below

to uphold the OPBR’s decision on the grounds that

Petitioner had “harassed” a female co-worker with

communications that were insubordinate to a directive from

Petitioner's supervisors. It is these same communications

that Petitioner has claimed to be protected expressions of

religious faith in all of his State and federal proceedings.

Petitioner appealed the decision of the Common

Pleas Court to the Franklin County Court of Appeals’. The

Court of Appeals determined that the Common Pleas Court

had used “harass” in its vernacular sense (ie. pestering,

annoying), not in an adjudicative way (e.g., quid pro quo,

hostile work environment).® Nevertheless, the County

Court of Appeals upheld the Common Pleas Court’s

decision because, in the Court’s opinion, the Petitioner's

discharge was not targeted at his religious communications

since the ODOD supervisors had forbidden all non-business

communications with Petitioner’s female co-worker.” The

* Leshev. Ohio Dept of Development. Case No. O5CVEF-05-5501. (Com.

Pl. Franklin Cty, OH)

* Leshe v. Ohio Dept of Development. Case No. OGAP-628. 2007-Ohio —

1170 (10% Dt. Ct. App. 2007)

8 The federal District Court below never clarified this vernacular versus

adjudicative usage. Neither did the District Court offer any reasoning

for its use of the term “harass’.

¥ Only the Petitioner had been barred from any form of personal

communication directed to the specified female co-worker. Business

communications from Petitioner to the female co-worker were exempt

from the prohibition. Personal communications initiated by the

specified female co-worker to Petitioner were exempt (although

presumably. Petitioners responses to such communications were

prohibited), Personal communications from Petitioner to any other co-

Court concluded that it could not find that ODOD’s

articulated reason for dismissing Petitioner was unlawful

because the religious content of Petitioner's

communications was not pertinent to the ODOD

supervisors decision to discharge Petitioner. !°

Petitioner appealed the decision of the County Court

of Appeals to the Ohio Supreme Court!'. In his

Memorandum in Support of Jurisdiction for his

discretionary appeal of a substantial constitutional

question relating to religious expression, Petitioner argued

that his Ohio constitutional liberty of religious expression

set forth in Ohio Const. Art. I, §7, which had been

expansively interpreted by the Ohio Supreme Court in

Humphrey v. Lane, (2000) 89 Ohio St.3d 62,'2 had been

violated by his discharge in direct and immediate response

to expressions of his religious faith directed to his

government co-worker. The Ohio Supreme Court declined

jurisdiction of Petitioner’s appeal as not involving any

substantial constitutional question."

REASONS FOR GRANTING THE PETITION

This case highlights the clash of important

constitutional principles in the context of government

service — ie., the fundamental, historic liberty of religious

worker were not restricted. All other co-workers could address persona!

communications of any type to the specified female co-worker

' This conclusion was contradicted by documentary evidence and direct

testumony that had been presented in the OPBR administrative

hearing. Portions of this evidence and testimony appear in the

Appendix submitted to the Sixth Circuit Court below

1! Leshe v. Ohio Dept of Development, Case No. 07-0750. Ohio Sup. Ct

(filed: April 26, 2007)

'2 In Humphrey. the Ohio Supreme Court retained the strict scrutiny

analysis for religious exercise claims made under Ohio Const. Article |

$7

is Entry, Case No. 2007-0750. Ohio Sup. Ct.. filed July 25. 2007. This

entry was filed seven days after the Sixth Circuit Court filed its

decision below on July 18, 2007

expression and the preservation of this liberty vel non when

a citizen accepts government employment versus a

contemporary prioritizing of order and efficiency in

government service and in the summary judgment

processing of cases involving constitutional liberties. This

case identifies various and conflicting procedures that the

federal courts are adopting in summary judgment

proceedings to determine constitutional protection vel non

- of religious expression by government employees “in

balance” with government’s efficiency justification.

This case also addresses a constitutional aberrance

that prejudices the First Amendment liberty of religious

expression for more than 17.4 million State and local

government employees, as well as such liberty for more

than 2.7 million federal employees.'* It is an aberrance

that prejudices the beneficial influence that religious belief,

expression, and action has made and may hereafter make

upon the decisions and actions of government officials — at

a time when there is a demonstrated and urgent need for

ethics and morality in government and public life. This

case focuses squarely upon previous Free Exercise decisions

that have prompted fervent adverse responses from

Congress, State governments, and religious leaders

throughout our nation. This case presents to this Court the

opportunity to correct an aberrance that only this Court can

remedy.

This case highlights the importance of judicially

created procedures in preserving substantive constitutional

liberties from government infringement.

The decisions of both the District Court and Court of

Appeals below and their reasoning of the separate issues

addressed in each decision are erroneous.

‘4 Table No. 525. All Governments - Employment and Payroll by

Function: 1999: Statustical Abstract of the United States at p. 330

I. The Questions Presented Are Important to

Defining the Place of Religious Belief and Action in

American Life and Governance.

a. Works of Faith in the Government Workplace

The First Amendment to the Constitution states a

facial presumption that U.S. citizens — state government

employees included — will be protected from government

interference with their expressions of religious faith. When

this federal free exercise liberty was first imposed upon

state governments, Cantwell v. Connecticut, 310 U.S. 296

(1939), there was no distinction made between government

as employer versus government as sovereign.

When the strict scrutiny constitutional analysis was

adopted by this Court for reviewing claims grounded upon

this federal and state free exercise liberty, Sherbert v.

Verner, 374 U.S. 398 (1963), there was no distinction made

between government as employer versus government as

sovereign.

When the “least restrictive means” test was added to

the strict scrutiny analysis for Free Exercise claims,

Thomas v. Review Bd., 450 U.S. 707 (1981), there was no

distinction made between government as employer versus

government as sovereign.

When this Court replaced the presumption favoring

exemptions for works of faith with a presumption favoring

the enforcement of facially neutral laws of general

applicability, Employment Div. v. Smith, supra, there was

no distinction made between government as employer

versus government as sovereign. The anti-discrimination,

rational basis presumption of the Smith decision did not

discriminate against works of faith by government

employees.

When this Court supplemented the Smith

presumption with strict scrutiny review standards for

government regulations that were administered in ways

that discriminated against works of faith, Church of

Lukumi Bablu Aye v. City of Hialeah, 508 U.S. 520 (1993),

there was no distinction made between government as

employer versus government as sovereign.

On the contrary, in two cases involving the

government as employer or prospective employer, this

Court applied free exercise constitutional principles to state

governments acting in their capacities as employers.

Torcaso v. Watkins, Clerk, 367 U.S. 488 (1961);

McDaniel v. Paty, 435 U.S. 618 (1978). '

In 1993 Congress enacted the Religious Freedom

Restoration Act of 1993 (““RFRA”)!’ to reestablish the

presumption favoring exemptions for works of faith even

from generally applicable. In the origina) legislation and in

the amendment thereto adopted in 2000, there was no

distinction made between government as employer versus

government as sovereign. |

Numerous states responded to this Court's decision

in City of Boerne v. Flores, 521 U.S. 507 (1997) by enacting

“State RFRAs’” to establish a presumption for religious

exemptions from their respective state laws or

regulations.'® Ohio’s Supreme Court and other state

18 Eligibility for public office cannot be conditioned upon religious

belief. This Court cited its earlier holding in Wieman v. Updegraff. 344

U.S. 183 (1952): “... whether or not an abstract night to public

emplovment exists. Congress could not pass a law providing that no

federal emplovee shall attend mass or take any active part in

missionary work”

'5 This Court cited the Sherbert. decision in determining that by

conditioning the employee's free exercise of his religion upon his

surrendering his right to seek public office. the State of Tennessee had

unconstitutionally encroached upon the employee's free exercise of

religion. 435 U.S. at 626. Ironically. in the case herein submitted to

this Court, the ODOD conditioned the employee's continued

employment. upon his surrender of his exercise of religious expression

7 42 U.S.C. §§ 2000bb to bb-4 (1994)

‘8 See, e.g.. Ala. Const. Amend No. 622: Ariz. Rev. Stat. §41-1493:

Conn Gen. Stat. §52-571b: Fla. Stat. Ch. 761; Idaho Code Title 73. Ch.

4: 775 ill. Comp. Stat. 35. Mo. Rev State §1.302: N.M. Stat. Ann. §28-

22-3: 51 Okla. Stat. §253: 71 Penn Stat. §2401: RL. Gen Laws §42-

80.1: S.C. Code Ann. §1-32-40; Tex Civ. Prac. & Rem. Code Ann

§110.003

supreme courts adopted strict scrutiny rules that applied

even to neutral laws of general applicability.'® None of

these State statutes or court rulings “discriminated”

between government as employer versus government as

sovereign.

In response to the Boerne decision, Congress enacted

the Religious Land Use and Institutionalized Persons Act of

2000 (“RLUIPA”), which reinstated the strict scrutiny

standard as to religious practices by prisoners in state and

federal correctional institutions and as to the enforcement

of state or federal land use or zoning regulations that

substantially burden religious exercise. This Court upheld

RLUIPA against an Establishment Clause challenge in the

decision of Cutter v. Wilkinson, 544 U.S. 709 (2005). By

this legislation State government as employer is obliged

pursuant to a strict scrutiny standard to direct and

supervise government employees (e.g., corrections officers)

to facilitate certain religious practices of inmates. It is

ironic that inmates in State correctional institutions now

receive more stringent constitutional consideration for their

religious liberty than do the government employees who

supervise them. Compare, Turner v. Safley, 482 U.S. 78

(1987).

This Court continues to permit accommodation of

religious expression without violating-the First Amendment

in its “modern” Establishment Clause jurisprudence. See,

Cutter v. Wilkinson, supra, (Thomas, concurring in

'* See,. Humphrey v. Lane (2000) 89 Ohio St.3d 62; Catholic Charities

of Sacramento, Inc. v. Superior Court, 32 Cal 4 527, 10 Cal. Rptr 283

(2004); Fortin v. Roman Catholic Bishop of Portland, 2005 ME 57, 871

A.2d 1208 (2005); Atty Gen. V. Desilets, 418 Mass. 316 (1994); North

Carolina v. Carignan, 2006-COA05-825 (Ct App 2005); Shagalow v.

State, Dept of Human Resources, 725 N.W.2d 380 (MN 2006); Jeffs v.

Stubbs, 970 P.2d 1234 (Utah 1998); Hunt v. Hunt, 162 Vt. 423, 648

A 2d 843 (1994); Ballweg v. Crowder Contracting Co., 247 Va. 205, 440

SE2d 614 (1994); Open Door Baptist v. Clark County, 140 Wn2d 143.

995 P.2d 33 (1999). Wisconsin v. Miller, 202 Wis2d 56. 549 NW 2d 235

(1996)

2 42 U.S.C. §2000ce

judgment); County of Allegheny v. American Civil Liberties

Union, 492 U.S. 573 (1989) (Kennedy, concurring in

judgment). It is peculiar that the religious expressions of

government employees — even outside working hours and

outside the workplace - receive substantially less

accommodation from government as employer than these

same citizens might receive from government as sovereign.

When, as in the case submitted herein, a written invitation

from one government employee to a Christian co-worker to

assist established Christian ministries becomes a

punishable event, any hope for or expectation of even de

minimis accommodation is nullified.

In 1968 this Court articulated the distinction

between government as employer versus government as

sovereign into First Amendment jurisprudence. Pickering

v. Board of Education, 391 U.S. 563 (1968). See, also

Connick v. Myers, 461 U.S. 138 (1983), Churchill v. Waters,

511 U.S. 661 (1994). In Pickering this Court adopted and

applied the sovereign versus employer distinction to a claim

of First Amendment speech — not to religious expression.

The constitutional principles originated in Pickering were

specifically directed toward free and unhindered debate on

matters of public importance — the core value of the Free

Speech Clause. Pickering, 391 U.S. at p. 573. In Waters,

this Court said that First Amendment “speech” may involve

verbal tumult, discord, and even offensive utterance as

necessary side effects of the process of open debate. 511 U.S

at p. 672.

The acknowledgement in Waters of the possibility of

tumultuous debate on matters of public concern and the

strong statements favoring government order and efficiency

over employee speech have not heretofore infiltrated this

Court’s analysis of Free Exercise claims. On the contrary,

in Pickering this Court said that when the fact of

employment is only tangentially and insubstantially

involved in the subject matter of public speech, the speaker

must be viewed more as a member of the general public

than as a government employee — ie., that government

must respond as sovereign rather than as employer.

Pickering, 391 U.S. at p. 574. 2! More recently, this Court

stated that “[e]mployees who make public statements

outside the course of performing their official duties retain

some possibility of First Amendment protection because

that is the kind of activity engaged in by citizens who do

not work for the government.” Garcetti v. Ceballos, 547

U.S.___, 126 S. Ct. 1951 (2006) (p. 12 of slip opinion). This

Court further concluded that First Amendment protection

is not extended to public statements made by government

employees pursuant to their official duties but that such

protection will extend to statements made outside such

employment duties. /d. at pp. 9, 12 (slip opinion).

In the Waters decision (See, 511 U.S. at p. 674) and

in the Connick decision (See, 461 U.S. at p. 147), this Court

clarified that the Pickering test would be applied only to

speech upon matters of public concern and not to matters of

private concern. If this limitation is enforced to its fullest

extent against the religious expression of government

employees — which generally have de minimis or no relation

to the public interest or the government’s interests as

employer — these works of faith would have no

constitutional protection because of this primacy of

government efficiency. At worst, the constitutional

principle stated in Keyishian v. Bd of Regents, 385 U.S. 589

(1967) and restated in Pickering and all of its progeny

would be overturned de facto as to all religious expression

by government employees — ie., a citizen does in fact

surrender his First Amendment hberty of religious

expression when he accepts government employment. At

best, that liberty would be totally suspended while the

21 See. also. Connick. 461 U.S. at p. 157 (Brennan, J., dissenting):

“The balancing test. articulated in Pickering comes into play only when

a public employee's speech implicates the governments interest as

employer When public employees engage in expression unrelated to

their employment while away from the workplace. their First

Amendment rights are, of course, no different from those of the general

public ~

hi

employee was at work or otherwise directly or indirectly

engaged in employment related or affiliated activities.

In light of the contextual differences in content, cost,

form, constitutional risks and maxims, tone, and listener

response, See, Connick, 461 U.S. at pp. 147-48; Waters, 511

U.S. at pp. 668, 671, it is no surprise that this Court has

never ruled or suggested that the Pickering test per se

should be applied to Free Exercise claims by government

employees. 2? Accordingly, the Circuit Courts and District

Courts have failed to adopt consistent, uniform, reliable

procedures for determining the Free Exercise claims of

government employees. (See, infra). This Court has created

and required that certain procedures be followed in order to

ensure that First Amendment speech standards are

appropriately applied. See, Waters, 511 U.S. at p. 669.

There is a significant and timely need for this Court to

define the procedures and standards that will be applied by

the federal courts to the Free Exercise claims of

government employees. — especially if this Court remains

committed to finding accommodation between the Free

Exercise Clause and the Establishment Clause. See, Cutter

v. Wilkinson, supra, Hobbie v. Unemployment Appeals

Comm’n of Fla, 480 U.S. 136, 144-145 (1987)

The constitutional aberrance is this: despite the

development of a large body of case law principles and state

and federal legislation establishing procedural protections

for religious expression, and despite the fact that such

procedures do not differentiate between state government

as sovereign and government as employer, and despite the

numerous descriptions by past and present members of this

Court of the importance of religious belief, ethics, and

°° “The Supreme Court has never identified a legal analysis governing

whether an adverse employment action infringes a public employee's

right to free exercise of religion. Although we apply a Pickering

balancing analysis in the context of public employees and free speech. it

is unclear what analysis applies in the context of public employees and

free exercise of religion ~ Brown v_ Polk County. 37 F.3d 404, 408 (8

Cir. en bane 1994)

works to the founding of our nation?" and to the integrity of

and loyalty to our democratic, representative process of

government!: nevertheless, the federal courts are

discriminating against state government employees by

excluding them from the procedural standards of both the

religious exemption presumptions and the anti-

discrimination presumptions established by such case law

and legislation for Free Exercise claims.

This diminution of fundamental religious liberty

occurs each time a federal court treats a State employee's

Free Exercise claim as a First Amendment speech claim

and thereafter bends the eligibility criteria and balancing

standards of Pickering, supra, Connick, supra, and Waters,

supra, to reject the employee's claims -- rather than

applying the standards of Smith, supra, or Lukumi Babalu

Aye, supra. Even though the Pickering line of cases are

factually irrelevant to religious expression and the

Pickering rules and the explanations thereof do not

reasonably align to the varied forms of protected religious

expression; nevertheless, the federal courts persist in “shoe-

horning” the Free Exercise claims of State government

employees into the Pickering analysis. This bending of

precedent and reason has occurred because this Court has

so prominently prioritized government efficiency (Waters at

pp. 674-75) and because this Court has not identified

constitutional principles and procedures for balancing the

Free Exercise rights of government employed citizens with

the government's interest in workplace efficiency and

order.*”

eg. religion. morality. and knowledge. being essential to good

government and the happiness of mankind “Wallace. Jaffree 14172

US. 38 (1985) (CA Rehnquist. dissenting). ‘The dissent included this

quote from the Northwest Ordinance. | Stat. 50. that was enacted by

the Furst Congress prior to the passage of the Bill or Rights

' See eg Lynch vy. Donnelly. 154 US 668 (1984)

“(Wie beheve that the Supreme Court might well adopt for tree

exercise cases that arise in the context of public employment an

analvsis hke the one enunciated in Pickering v— Board of kedueation

(citation omitted) That case dealt with free speech rather than the tre:

13

One Court applied the Pickering test merely because

the Appellant was a government employee. Baz v. Walters.

782 F. 2d 701 (7 Cir. 1986). One Court assumed

“arguendo” that the employee's religious expression touched

upon a matter of public concern before applying the

Pickering test. Knight v. Connecticut. Dept Public Health,

275 F.3d 156 (2™ Cir 2001). 2° One Court applied the

Pickering test after it decided that the test applied to any

First Amendment communication by a government

employee and that the test best permitted a public

employer to navigate safely between Free Exercise Clause

and the Establishment Clause. Berry v. Dept of Social

Services, 447 F.3d 642 (9'» Cir. 2006), See also, Brown v.

Polk County, Iowa, 37 F.3d 404 (8' cir. 1994). One Court

decided that public statements evidencing the religious

faith of a government official holding a prestigious office

were subject to the Pickering test because those statements

were newsworthy. Lumpkin v. Brown, 109 F.3d 1498 (9'»

Cir. 1997). On rehearing, one Court ignored both the Smith

Rule and the Pickering test for government employee Free

Exercise claims and created a third test based upon Title

VII undue hardship considerations. Brown v. Polk County.

lowa, 61 F.3d 650 (8" Cir en banc 1995). In a later decision

that same Court ruled that the issue of undue hardship

would be decided by applying the Pickering balancing test.

Altman v. Minnesota Dept of Corrections, 251 F.3d 1199

(8'> Cir. 2001). Later. another Court decided that a

government employee's §1983 Free Exercise claim would be

analyzed and decided upon the same criteria as a religious

discrimination claim under Title VII. Lawson v.

Washington, 296 F.3d 799 (9'» Cir. 2002). One Court has

exercise of religion. but because the analogy ts such a close one. and

because we see no essential relevant differences between those right-

we shall endeavor to apply the principles of Pickering to the case at

hand” Brown vy. Polk County. 61 F 3d 650 08" Cir en bane 1995)

(emphasis added)

© The District Court adopted this rationale in its decision below (\pps

pp 32-53)

14

finally conceded that a government employee's religious

expression is not a matter of public concern and is.

therefore, not entitled to evaluation under the Pickering

test and not otherwise entitled to First Amendment

protection. Daniels v. City of Arlington, Texas, 246 F.3d 500

(5 Cir 2001).

With only occasional exceptions, the federal courts

are uniformly determining that, on balance, the state

employee's interest in religious expression is outweighed by

the State’s interest in workplace efficiency, regardless if the

employee asserts a religious expression claim in addition to

or in lieu of a speech claim 2’ See, e.g.. Brown v. Polk

County, supra; Knight v. Connecticut. Dept Public Health,

supra; Berry v. Dept of Social Services, supra: Baz v.

Walters, supra.

State Attorneys General are re-characterizing

religious expression as speech of religious content so that

the summary judgment analysis will be shifted to a

Pickering balancing test rather than the Free Exercise

principles developed by this Court and adopted by the state

courts, Congress and the State legislatures. It is ironic that

one Court of Appeals expressly denied to a government

employee-plaintiff the benefit of the “stricter” analysis of

the Smith Rule in favor of the more lenient analysis of the

Pickering balancing test. Berry v. Dept of Social Services,

supra at pp. 648-49.

In the Berry decision and the other decisions

adopting the Pickering analysis for Free Exercise claims.

the Circuit Courts have made no effort to G) acknowledge

the distinguishing characteristics between speech and

religious expression under this Court's First Amendment

decisions, (11) explain how the content of Appellant's

religious expressions constituted “matters of public

concern”, or (ii) explain how the nature of religious

But, see, Tucker y. State of Cal. Dept of Educ. 97 F 8d 120049 Cor

1996) (rule prohibiting religious expression by only one government

employee in the workplace during working hours is overbroad

unreasonable and not supported by sulficient state interests)

expression per se comports with this Court's description

and application of the balancing test in the actual Pickering

decision or its description of matters of public concern in

Connick v. Myers, supra.

In some instances the federal courts justified

avoiding the more “stringent” analyses of the Smith rule

and the Lukumi corollary by concluding that upholding

religious expression pursuant to those rules might result in

the State’s violating the Establishment Clause. See, Berry

v. Dept of Social Services, supra; Brown v. Polk County,

lowa, 37 F.3d 404 (8'» cir. 1994). In other decisions. the

court utilized the State’s generalized concern with an

Establishment Clause violation as the “compelling interest”

that “trumps” the employee's constitutional interest in

religious expression. See, Asselin v. Santa Clara County.

185 F.3d 865 (9'» Cir. 1999).

Armed with the conclusions and analyses of these

federal court decisions, State government supervisors (such

as respondents in this case)”* are insulated from

consequences for burdening or prohibiting religious

expression by subordinates inside or outside the workplace

and during or after working hours -- ie. the same religious

expressions that the State as sovereign is obliged to

respect. The present case exemplifies the power of the

State to intentionally prohibit by means of threats anda

discipline the historically presumed privilege of one

government employee to invite a co-worker to participate in

a Christian ministry.

If State supervisors may use the Pickering test to

justify the restraint of religious expression by government

employees in deference to workplace efficiency, then by

logical extension the Federal government should be entitled

to use the same Pickering test as a defense against federal

~ Bruce Johnson ts the former Director of the Ohio Department ot

Development CODOD') ‘The other defendants were senior officers of

ODOD who provided legal and administrative services to the Ohio

Housing Finance Agency. which until -luly 1 2005 was a State agency

seniced by emplovees of ODOD

16

employee claims grounded upon RFRA - 1e., RFRA claims

of federal employees are subordinate to the government s

defense of workplace efficiency - either as a matter of

procedure under the Pickering analysis or as a per se

compelling state interest pursuant to the “significant”

interest rule of the Waters decision. In other words, if the

efficiency considerations that were prioritized in the Waters

decision have constitutional precedence. then the

government’s “constitutionalized” interest in efficiency

should per se “trump” the federal employee's rights of

religious expression in the governments summary

judgment motion, despite the presumption of such rights

arising from both the First Amendment and by an Act of

Congress (1e., RFRA).

World history reveals that dictatorship and

autocratic enforcement of government rules or commands

may be a highly efficient form of governance; however, such

efficiency invariably subverts the liberties treasured by

Americans since the founding of the colonies and the

adoption of the Bill of Rights. It can be safely assumed that

government supervisors named as defendants in Free

Exercise claims will uniformly assert in summary judgment

motions this superceding interest in government efficiency.

The Summary Judgment Motion and the briefs submitted

by the Respondents in this action are a case in point.

Government supervisors should not be permitted to

suppress First Amendment liberties with episodic or

“prophylactic rules” based upon unsubstantiated claims of

possible abuses that might impair administrative

efficiency." Religious expression deserves more

accountability from government supervisors than any ex

post efficiency interest that a court might rationally

conceive for restricting works of faith. Approving the

Pickering balancing test for Free Exercise claims imposes

upon government-emploved individuals a substantial

procedural burden of justifying their acts of faith ex post

United States v Treasury Employees 513 US 1541995)

() Connor -}. coneurring)

after government supervisors have infringed or threatened

such liberties and after government attorneys have

opportunity to “rationalize” the supervisors’ actions. On

the other hand, establishing a procedure for Free Exercise

claims that imposes ex ante conditions to promulgating and

administering restrictions upon religious expression by

government supervisors and that recognizes the employees

interest as “citizens of faith” in balance with the

government’s efficiency concerns will provide the

20,000,000 government employees — including supervisors

a national, uniform standard for defining and limiting the

boundaries of religious expression that will be protected

under our federal Constitution.

b. The Consequence of the Smith Rules to the Liberty of

Religious Expression.

Since its inception, the plurality decision in

Employment Div. v. Smith, supra, has been vigorously

criticized — both as to its reasoning and as to its

establishing a pro-government presumption of upholding by

summary judgment government regulations that Free

Exercise claimants cannot sufficiently prove to be

discriminatorily targeted at religious practices or motivated

by subjective religious animus.*° For some time this

criticism continued unabated from members of this Court?!

“ “In my view. today s holding dramatically departs from well settled

First Amendment jurisprudence... . and is incompatible with our

Nation s fundamental commitment to individual religious liberty.

Smith. 494 US. at p. 891 (O'Connor. J.. concurring)

[I]t effeetuates a wholesale overturning of settle law concerning the

Religion Clauses of our Constitution. Smith. 494 US. at p 908

(Blackmun. J.. dissenting. and joined by Brennan. -]. and Marshall. -J )

‘“T continue to believe that Smith was wrongly decided. because it-

ignored the value of religious freedom as an affirmative individual

liberty. and treated the Free Exercise Clause as no more than an

antidiscrimination principle. Church of Lukumi Babalu Aye... 508 US

atp 578 (Blackmun. J. and O Connor. J. concurring in pudgment)

“(We are left with a free exercise yurisprudence in tension with itself. a

tension that should be addressed and that may legitimately be

18

and from scholarly commentators.” Commentators have

noted the confusion and diverging procedural processes in

the federal courts as they interpret the critenia and

reasoning of the Smith decision." (See, description of

varying federal court procedures, infra) Some

commentators are devising “models” of how to interpret and

apply the Smith criteria and reasoning to mitigate this

confusion and lack of uniformity.*! Congress and twenty-

four states responded with procedures that rejected the pro-

government, anti-discrimination presumptions of the Smith

decision* in favor of the exemption presumptions crafted

by this Court in the pre-Smith Free Exercise decisions.

In hight of these numerous, continuing, widespread

negative responses to the Smith decision, is it time for this

Court to reexamine the doctrines, presumptions, and

interpretations of the Smith decision and determine

addressed. by reexamining the Smith rule in the next case that would

turn upon its application. Church of Lukumi Babalu Ave. 508 US. at

»p. 964. (Souter. -J.. concurring in judgment).

“| believe that we should reexamine our holding n Smith... In its

place. | would return to a rule that requires government to justify any

substantial burden on religiously motivated conduct by a compelling

state interest and to impost that burden only by means narrowly

tailored to achieve that interest. City of Boerne.521 US at p. 548

(1997) (O'Connor. J.. dissenting): also, (Souter. J.. dissenting). and

(Brever. J.. dissenting).

2 See. e.g.. Michael W. McConnell. Free Exercise Revisionism and the

Smith Decision. 57 U. Chi. L. Rev. 1109 (1990). Wilham P. Marshall. In

Defense of Smith and Free Exercise Revisionism, 58 U. Chi. L. Rev) 308

(1991). Frederick Mark Gedicks. The Rise and Fall of the Religion

Clauses. 6 BYU J. Publ. L. 499 (1992). Douglas Laveoek. Summary and

Svnthesis: The Crists in Religious Liberty. 60 Geo. Wash. lL. Rev. 841

(1992)

“In the wake of Smith. confusion abounds in the lower courts. which

interpret the Court's new test in significantly divergent ways. Carol

M Kaplan. The Devil is in the Details: Neutral. Generally Applicable

Laws and Exceptions from Smith 75 NYU L Rev. 1045. 1046 (2000)

‘James M. Oleske. Jr. Undue Burdens and the Free Exereise of

Religion Reworking a “Jurisprudence of Doubt) = &5 Geo L-l 75]

(1997). Carol M_ Kaplan. supra. footnote 34

See. footnotes 18. 19. 20. 21. supra

19

whether they “faithfully serve the purpose of the

Constitution” and “represent the correct understanding of

the Free Exercise Clause?” ** The case submitted herein

provides this Court with that long awaited opportunity.

c. Reliable First Amendment Procedures are Important to

Preserving Substantive First Amendment Liberties.

In the preservation of First Amendment liberties.

judicial procedure is important. This Court has stated that

some procedures may “be constitutionally required in

proceedings that may penalize protected speech”. See,

Waters, 511 U.S. at p. 669. However, this Court has not

transferred wholesale all of the procedures that have been

established for proceedings affecting First Amendment

speech claims over to proceedings affecting Free Exercise

claims. This Court has not specifically transferred the

Pickering procedure to the free exercise proceedings of

government employees. This Court has not specifically

transferred the standards of its equal protection cases to

free exercise proceedings."

Neither has this Court transferred the “substantial

or motivating factor” causation element of government

employee First Amendment speech cases to Free Exercise

* City of Boerne v. Flores. 521 U.S. at pp. 545. 565 (O Connor. -J..

dissenting. joined by Brever. J.)

» (See. Church of Lukumi Babalu Aye... Section If €\) (2) that was

joined by only two justices)

“In its opinion below. the Sixth Circuit Court upheld the District

Courts dismissal of the Petitioners remaining Free Exercise claim on

the secondary grounds that the Petitioner failed to prove “that the

religious content of his expression was a “substantial or “motivating

factor in {Appellee s] decision to terminate him. a showing that ts hi-

burden to establish. and only then the defendants to rebut) (Appx pp

9-6) The Sixth Cireuit Court stated that an employee must link the

speech in question to the defendants decision to dismiss him) The

Court ruled that the Petimoner had not proved that the Appellees

“sought to punish him speefically for the rehgious content of his

communications The Circuit Court required the Petitioner to prove

intentional. hostile animus to the rehgious content of his expression as

20)

proceedings. Grafting such a causation element into Free

Exercise jurisprudence would prescribe a subjective animus

requirement (ie. targeting religious practices for disfavored

treatment) for Free Exercise claims that this Court has

thus far avoided. See, Church of Lukumi Babalu Aye, Inc.,

supra, (Scalia, concurring in part and concurring in

judgment), (Souter, J., concurring in part and concurring in

judgment). Members of this Court have noted on various

occasions their desire to avoid or minimize judicial

“psychoanalysis” of subjective animus as an element of

claims based upon the Free Exercise or Speech clauses of

the First Amendment. See, e.g., Crawford-el v. Britton, 522

U.S. 574 (1998); Locke v. Davey, 340 U.S. 712 (2004)

(Scalia, J. and Thomas, J., dissenting).

Notwithstanding the blurred perception of the Free

Exercise Clause by some courts (See, footnote 25 supra).

there are significant differences between the content,

purposes, and history of the Free Exercise Clause and the

speech clause of the First Amendment. In recent times,

however, many federal courts have transformed the Free

Exercise liberties of government employees into limited

public concern speech in order to facilitate the efficient

dismissal of Free Exercise claims. There are no assurances

that other First Amendment speech criteria, employment

discrimination criteria, or qualified immunity criteria such

as “but for” causation”, alternative motivating rationale".

mixed motives"', or pretextual dissembling' will not also

be incorporated into Free Exercise jurisprudence to uphold

the efficient use of a supervisor’s censoring powers unless

part of the causation element of his §1983 Free Exercise claim. See.

Prater v. City of Burmside, Ky... 289 F.3d 417 (6! Cir. 2002) (Free

Exercise claimant must show that the government discriminators

actions intentionally sought to burden religious activities)

See, Hartman v. Moore. 547 U.S. 250. 260 (2006)

See, Mt. Healthy City Sch Dist Bd of Educ Vo Doyle. 429 U.S. 274

287 (1977)

4° See, Price Waterhouse ¥. Hopkins. 490 U.S. 228 (1989)

= See, Crawford -ely. Britton. 522 U.S 574 (1998) (Rehnquist. CJ

dissenting)

this Court adopts procedures for Free Exercise claims that

are directed toward balancing the government’s interest in

order and efficiency with the citizen’s interest in exercising

and defending unabusive religious expression.

II. The Circuits Are Divided Over the Appropriate

Procedure for Determining Free Exercise Claims

a. Works of Faith in the Government Workplace

The decisions cited in Subpart a of Section I, supra,

demonstrate that numerous procedural approaches have

been adopted thus far by the Circuit Courts in deciding

Free Exercise claims of government employees: (i) The

Pickering standards are applied with an assumption that

the religious expression is a matter of public concern,

Knight v. Connecticut. Dept Public Health, supra (24 Cir.):

(ii) Title VII undue hardship considerations, Brown v. Polk

County, lowa, supra (8'> Cir en banc), are evaluated using

the Pickering balancing test, Altman v. Minnesota Dept of

Corrections, supra (8 Cir.); Gu) the same criteria as a

religious discrimination claim under Title VII are applied

Lawson v. Washington, supra (9‘» Cir.); and (iv) such

religious expression by a government employee is not a

matter of public concern and is, therefore, not entitled to

First Amendment protection Daniels v. City of Arlington,

Texas, supra (5' Cir.).

In addition to these inconsistent approaches, four

Circuits have ruled upon the Free Exercise claims of

government employees by using the “stricter” neutrality

and applicability standards of Employment Div. v. Smith,

supra. See, Genas v. State of N.Y. Dept of Correctional

Services, 75 F.3d 825 (24 Cir 1996) (Sabbath observance by

corrections officer); Fraternal Order of Police Newark Lodge

No. 12 v. City of Newark, 170 F.3d 359 (3d Cir. 1999)

(police officer wearing a beard): Booth v. Maryland, 327

F.3d 377 (4th Cir. 2003) (length of correction officer's hair):

Shrum v. City of Coweta, OK., 449 F.3d 1132 (10 Cir,

2006) (Sunday work schedule for a police officer).

It appears that in the Second Circuit Sabbath

observance is reviewed under the Smith Free Exercise

criteria (Genas, supra); however, verbal communication is

reviewed under the Pickering speech criteria (Knight,

supra). Will this Court abide these divergent swings of

judicial procedure for the Free Exercise claims of

government employees?

In the preservation of constitutional liberties,

judicial procedure is important.'? The procedure adopted

by a federal court will generally de facto determine the

boundaries of a substantive liberty as well as the respective

rights and obligations of the litigants — just as the specified

rules of “football” would determine the outcome of a contest

between the Washington Redskins and the D.C. United.

The respect historically shown by this Court for the role

and benefits in American history and governance of

constructive works of faith belies any tolerance for a

patchwork, ex post system of balancing that imposes

ponderous evidentiary burdens upon Free Exercise

advocates while favoring the government with court-

rationalized, unsubstantiated, and generalized concerns for

workplace efficiency or individuated sensitivities.

There is a clear and present need for this Court to

establish clear, precise, and uniform procedural standards

for defining the constitutionally protected boundanies of

religious expression by government employees.

b. Uniform Procedures are Important to Preserving

Substantive First Amendment Standards for all Citizens.

The Circuit Courts are now implementing the Smith-

Lukumi non-discrimination principles in an ever-widening

disarray of procedures.

' “We agree that itis important to ensure not only that the

substantive First Amendment standards are sound. but also that thes

are apphed through reliable procedures Waters 511 US at p G6e

33

The D.C. Circuit Court described the Free Exercise

criteria as regulations that target in practical effect

religious faith to an extreme degree. American Family

Ass'n, Inc. v. F.C.C., 365 F.3d 1156, 1171 (D.C. Cir. 2004).

The Court also stated that the “differential impact” of the

challenged regulation was not so severe as to create a

religious gerrymander. Thus, vocabulary and concepts

from equal protection and discriminatory impact

jurisprudence are now infiltrating Free Exercise

jurisprudence and are opening the door to a variety of new

prima facie evidence criteria and affirmative defenses.

The First Circuit has applied a “content-based” test:

whether the government regulation evinces a content-based

_ animus against religious expression and, therefore,

discriminates against a particular religion or religious

practice. Knights of Columbus #94 v. Town of Lexington,

272 F.3d 25 (1* Cir 2001). Requiring evidence of subjective

intention — or lack thereof - is gaining acceptance in Free

Exercise jurisprudence.

The Second Circuit has concluded that the Smith and

Lukumi decisions require a determination of whether a law

is based on religious animus or has the objective of

targeting religious beliefs. Evidence that would support a

claim of disparate treatment under the Fair Housing Act

(Title VIII) is relevant to this determination. LeBlanc-

Sternberg v. Fletcher, 67 F.3d 412 (2™ Cir. 1995). Thus. a

Free Exercise claim will require evidence that infers that

animus against the religious group or activity was a

significant factor in the promulgation or administration of

the burdensome regulation.

In Blackhawk v. Pennsylvania, 381 F.3d 202, 209 (3d

Cir. 2004), then Judge Alito summarized the teachings of

Court. This summary succinctly sets forth the non-

discrimination principles of Smith and Lukumi without

supplementing them with vocabulary and concepts from

equal protection. Title VI1, and other discrimination cases.

This summary has not been referenced in any other Circuit

Court decisions. In Brown V. Borough of Mahaffey, Pa., 35

F.3d 846 (3d Cir. 1994), the Court identified the

determinative summary judgment issue as whether the

defendants intentionally impeded the plaintiffs’ religious

activity. Thus, the claimant’s burden of producing evidence

of actual religious animus is playing a determinative role in

Free Exercise jurisprudence.

The Fourth Circuit Court of Appeals has considered

official action that targets religious conduct for distinctive

treatment, government hostility that is masked or overt,

and meticulous review of “governmental categories” to

eliminate “religious gerrymanders”. Booth v. Maryland,

327 F.3d 377 (4 Cir. 2003). In that case the District Court

had ruled that a government employee must plead

simultaneously a Title VII discrimination claim in order to

preserve a First Amendment Free Exercise claim based

upon inconsistent enforcement of a facially neutral

regulation. The District Court’s novel rule was overturned.

The Sixth Circuit Court has ruled that when a Free

Exercise claimant challenges a facially neutral law on the

basis of its administration, the claimant must show that

the government intentionally sought to burden religious

activity. Prater v. City of Burnside, Ky., 289 F.3d 417 (6'

Cir. 2002). The Court ruled that the claimant must show

more than disparate impact in order to prove

discriminatory animus toward religion by the government.

Id. at p. 429. The Court also ruled that “an inference of

religious discrimination based upon disparate treatment

requires evidence that a party was treated differently from

a similarly situated party with a different religious

affiliation”. Jd at p.429. However, the Sixth Circuit Court

had previously recognized that Free Exercise neutrality

includes neutrality between religion and non-religion.

Hartman v. Stone, 68 F.3d 973 (6th Cir. 1995). Thus, if a

facially neutral law substantially burdens a religious

practice, the Free Exercise claimant must prove with direct

evidence that an intentional. discriminatory animus

against the claimant’s particular beliefs or practices

motivated the burdensome regulation."

The Seventh Circuit Court has ruled that only

express or intentional discrimination violates the Free

Exercise Clause. Erickson V. Bd. of Gov’s St. Colleges &

Univ., 207 F.3d 945, 950 (7'» Cir. 2000). Inferences of

disparate impact have no “constitutional footing” following

the Smith decision. /d. On the other hand, the Court has

stated that the subjective motives of government actors

should not be confused with the “object” of a law in a Free

Exercise claim because only two Justices approved the

portion of the Lukumi decision discussing the motives

behind the contested ordinances. Grossbaum v.

Indianapolis-Marion County Building Auth., 100 F.3d 1287.

Note [3] (7 Cir. 1996). The Court has yet to clarify how

the Free Exercise claimant may prove the express,

intentional discriminatory object of a burdensome law

without also furnishing direct proof of religious animus by

the government actors legislating or enforcing the law.

The Seventh Circuit Court has also held that the

application of the facial neutrality criteria of the Smith

decision to a Title VII accommodation claim will direct the

venue of the Title VII action into a State court. Endres v.

Indiana State Police, 334 F.3d 18 (7'" Cir. 2003). Why must

a Free Exercise advocate navigate this procedural

labyrinth?

The Eighth Circuit Court has ruled that the Free

Exercise protections “pertain if the law at issue

discriminates against some or all religious beliefs or

regulates or prohibits conduct because it is undertaken for

religious reasons, [citations omitted]. and it is not violated

in the absence of a showing of direct governmental

compulsion”. Tarsney v. O'Keefe, 225 F.3d 929, 935 (8

Cir. 2000) (emphasis added). This statement appears to

require proof of discriminatory intent or religious animus

and of government compulsion directly targeted at the

~ See. footnote 38. supra. as to the Circuit Court's ruling below

religious practice or belief. However. the Eighth Circuit

has also ruled that

“in the governmental employment context. the first

amendment protects at least as much religious

activity as Title VII does. [citations omitted].

Another way of framing that holding is to say that

any religious activities of employees that can be

accommodated without undue hardship to the

governmental employer, see 42 U.S.C. §200034).

are also protected by the first amendment. In other

words, if a governmental employer has violated

Title VII, it has also violated the guarantees of the

first amendment. Brown v. Polk County, IA, 61

F.3d 650, 654 (8'' Cir. 1995).

Although it is not clear. these statements of law appear to

be irreconcilable.

The Ninth Circuit Court has ruled that a §1983 Free

Exercise claim shall be procedurally determined in

accordance with the procedures for establishing a prima

facie case of religious discrimination claim under Title VII

(42 U.S.C. 2000e-2(a)(1). Lawson v. Washington, 296 F.3d

799 (9'» Cir. 2002). citing Brown, 61 F.3d 650, supra.

The Tenth Circuit Court has expressly rejected the

Fighth Circuit's ruling that the first amendment protects at

least as much religious activity as Title VII does. The

Tenth Circuit Court ruled that “the religious

accommodation requirements of Title VIT, 42 U.S.C.

§2000e(j). extend bevond the dictates of the Free Exercise

Clause, as interpreted by Smith.” Shrum v. City of Coweta,

OKLA... 449 F.3d 1132, 1143 (10' Cir. 2006). However. the

Court also ruled that “the Free Exercise Clause is not

confined to actions based upon animus.’ /d at p. 1145. On

the other hand. the Tenth Circuit Court has also ruled that

secular exceptions to a neutral. generally applicable zoning

law burdening religious activity do not automatically create

a claim for a religious accomodation: and the Court adopted

a fact-specific inquiry to determine whether the challenged

rule had been motivated by discriminatory animus or had

been administered in a manner discriminatory to religious

groups. Grace United Methodist v. City of Cheyenne, 451

F.3d 643 (10 Cir. 2006).

These decisions indicate that the various Circuit

Court interpretations and applications of the Smith-

Lukumi neutrality and applicability criteria for Free

Exercise claims have developed as many exemptions, fact-

specific determinations, and lack of uniformity as the strict

scrutiny criteria and religious exemption analysis that

preceded Smith. Added to this situation will be the Circuit

Courts’ interpretation and application of this Court’s

decision in Locke v. Davey, 540 U.S. 712 (2004). This

decision adds the “far milder” exception to a State’s facial

disfavor of religion. Justice Scalia has suggested that this

Court may be moving toward a “proof of substantial

concrete harm” requirement for Free Exercise claims. See,

Locke, 540 U.S. at p. 731 (Scalia, J., dissenting). Professor

Marci Hamilton concluded that this Court made clear that

strict scrutiny will not be applied absent a showing of

government's hostility to religion.” Does this Court desire

to encourage this trend toward “psychoanalysis” in Free

Exercise jurisprudence?

Does this state of jurisprudence warrant the

reconsideration of the Smith-Lukumi procedural analysis

as the optimal means of securing and preserving religious

liberties in the manner intended by the First Congress and

the first thirteen States and in the manner desired by a

significant host of Americans today? The case submitted

herein provides the opportunity for such reconsideration.

“The Supreme Court [ssues a Monumental Decision’. FindLaw

website: http.//writ.news findlaw.com/hamilton/20040227 html

Professor Hamilton also objects to works of faith conducted by members

of this Court. “Did the Six Supreme Court Justices Who Chose to

Attend the 54% Annual “Red Mass” Exercise Bad Judgment? . Findlaw

website http //writ news findlaw com/hamuilton/2007 1003 hem!

(10/3/2007)

2%

Conclusion.

In our culturally diverse society, the racial, ethnic,

and religious composition of our government workforce has

changed and continues to evolve. This diversity may

provide government supervisors with excuses to suppress

works of faith under the guise of ensuring efficiency from

disruption caused by styles of dress, practices of prayer,

symbols of faith, religious media, or “proselytizing”

invitations that they consider offensive. If faith apart from

works does eventually die, then the ethics, morality, self-

control, altruism, diligence. modesty, humility. self-

sacrifice, and other precepts of faith that have influenced

government decisions and empowered individual courage

throughout America’s history may eventually wither and

die as well.

The manner in which the “religion clauses” of the

First Amendment to the Constitution are interpreted and

applied by this Court to preserve unabusive religious

expression from ex ante intimidation and from interference

that is ex post rationalized by “government-as-employer

will serve as a harbinger of the respect vel non that all

Americans of faith may expect from the federal courts when

confronting interference with religious expression by

“government-as-sovereign .

There is a clear and present need for this Court to

establish uniform procedural standards for defining the

constitutionally protected boundaries of religious

expression. These boundaries should respect the

importance of both religious belief and also works of faith in

American history and in contemporary American culture

and governance. This case presents to this Court the

opportunity to fulfill this need.

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

Mark A. Leslie, Pro Se

76 S. Powell Ave.

Columbus, OH 43204

614-274-7620 (H)

614-975-8800 ©

maleslie@sbcglobal.net

NOT RECOMMENDED FOR FULL-TEXT

PUBLICATION

No. 06-3527

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED |

MARK A. LESLIE, ) July 18, 2007

) Leonard Green, Clerk

Plaintiff-Appellant, )

)

V. ) On Appeal from the United States

) District Court for the Southern

BRUCE JOHNSON, _) District of Ohio

ET AL,

)

Defendants-Appellees. )

)

Before: BOGGS, Chief Judge: CLAY and ROGERS, Circuit

Judges.

BOGGS, Chief Judge. Mark A. Leslie, an attorney

licensed in Ohio and proceeding pro se. appeals a district

court grant of summary judgment in favor of the

defendants in his civil rights action filed under 42 U.S.C.

1983'. We affirm.

Leslie's original complaint included state law claims that were omitted from his

amended complaint. The distnct court nevertheless addressed those claims. and

declined to exercise supplemental jurisdiction over them in light of 1s resolution

of the federal claims

App. pl

I

The factual background of this case was thoroughly

discussed in the district court’s opinion and order. In brief,

Leslie worked as an in-house attorney for the Ohio

Department of Development from July 2000 until his

dismissal in March 2002. As of August 22, 2000—after a

short period as an intermittent employee— -he served as

Chief of Compliance. and was responsible for. among other

things, reviewing loan programs and particular loan

closings for the Ohio Finance Authority, a subsidiary

agency of the ODOD. During the course of his employment.

he questioned the validity of a number of proposals and

transactions, the details of which are irrelevant to his

appeal.

Also during the course of his employment. Leslie

became separated from his wife, and subsequently began

seeking a relationship—beyond his existing professional]

one—with Karen Banyai, manager of OHFA’s Housing

Development Loan Program and Housing Development

Appx p 2

Assistance Program. There is some dispute as to the exact

nature of the interactions, and the clarity with which

Banyai initially indicated her lack of interest in a romantic

relationship with Leslie. There is, however, no dispute that

Leslie persisted, and that after ODOD supervisors and

Human Resources officials became aware of the situation,

he was told specifically not to have any further personal

communications with Banyai. After a brief period of

apparent compliance, Leslie again began making overtures,

including a call to Banyai’s home on Thanksgiving Day. and

passing her a note about church-affiliated prisoner

outreach programs. He was again warned by his superiors

to cease all such contacts. Within a few weeks, however, he

had made a further phone call to Banyai’s home and given

her written materials, including materials from a religious

group with which Leshe worked, and a note inviting her to

help him and the group develop a spreadsheet for their

volunteer directory. After discussions among management,

and Leslie's admission that he made the overtures in

question, ODOD’s director terminated Leslie for

insubordination for his continued unwelcome contact with

Banyai.

Il

Leslie initially pursued a “whistleblower” First

Amendment claim, arguing that his discharge was in

retaliation for his speech questioning OHFA loans and

programs (some of which had occurred in the period leading

up to his dismissal), which, he contends, were matters of

public concern. He now concedes, however, in his reply

brief, that the Supreme Court's recent decision in Garcetti v

Ceballos, 1 26S. Ct. 1 95 1 (2006), precludes his federal

claim under the First Amendment, inasmuch as it made

clear 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.” Jd. at 1960. There is no question,

and Leslie now concedes, that his allegedly whistle blowing

Appx p 4

speech was the product of his official duties, which required

him to review OHFA practices.

Ill

Leslie continues to maintain, however, that the

communications to Banyai that precipitated his dismissal

constituted protected religious expression, and that his

dismissal was in retaliation, thus violating his free

expression rights under the First Amendment. We review

the district court’s grant of summary judgment de novo.

Lukowski v. CSX Transp., Inc., 416 F.3d 478, 482 (6th Cir.

2005). Summary judgment is appropriate where “the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits. if any, show

that there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of

law” Fed R Civ P 56(c)

Leshe has failed to proffer evidence to support a

conclusion that the religious content of his expression was a

“substantial” or “motivating factor’ in ODOD's decision to

Appx p 45

terminate him, a showing that is his burden to establish,

and only then the defendant’s to rebut. Mt. Healthy City

Sch Dist Bd of Educ v Doyle, 429 U S 274, 287 (1977),

Perry v McGinnis, 209 F 3d 597, 604 (6th Cir. 2000). Leslie

“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” him. Bailey

vu. Floyd County Bd. of Educ ex rel Towler, 106 F 3d 135,

145 (6th Cir 1997) (Ginternal citations omitted)

In this case, Leslie has failed to present evidence

linking the religious aspect of his speech and

communications to the ODOD’s decision to terminate his

employment. The evidence undisputedly shows that Leslie

repeatedly harassed Banyai with unwanted, invasive, and

personal communications both at her home and at work.

The record further shows that Leslie's supervisors made

several attempts to get Leslie to cease such

communications. Leslie repeatedly ignored those

Appx p.6

instructions—as he admits, claiming only that he failed to

understand the precise scope of the instructions—and

continued to communicate with Banyai on matters only

some of which in any way concerned religion. He has

offered no evidence to suggest that ODOD would have

sought to punish him specifically for the religious content of

his communications. Thus, even if Leslie’s communications

concerning the activities of religious organizations

amounted to protected speech—a question we need not

reach—-there is no basis for a reasonable juror to conclude

that it was this speech, rather than Leslie’s repeated

insubordination and unwelcome contact with Banyai, that

motivated his termination.

IV

For the foregoing reasons, the district court's grant of

summary judgment in favor of the defendants is

AFFIRMED.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Filed: 3/14/2006 |

Mark Leslie, Document 43 |

Plaintiff,

-V— Case No. 2:04 -CV-OO80

JUDGE SMITH

Magistrate Judge Kemp

Bruce Johnson, et al.,

Defendants.

OPINION AND ORDER

Plaintiff asserts that Defendants violated his First

and Fourteenth Amendment rights when they terminated

his public employment for allegedly harassing a female co-

worker. Both sides move for summary judgment For the

reasons that follow. the Court grants Defendants’ Motion

for Summary Judgment and denies Plaintiffs Motion for

Partial Summary Judgment

I. Facts

A. Parties

Plaintiff Mark Leslie is an individual citizen of the

State of Ohio. Plaintiff worked as an in-house attorney for

the Ohio Department of Development (““ODOD”). ODOD

terminated his employment, effective March 1, 2002.

Defendants are Bruce E. Johnson, ODOD’s Director:

Douglas A. Garver, ODOD’s former Assistant Director;

Richard V. Everhart, ODOD’s former Executive Director of

the Ohio Housing Finance Authority (“OHFA”), Mario B

Tannous, ODOD's Chief Legal Counsel, Heather L

Cunningham, ODOD’s former Director of Human

Resources, and Rita R Parise, OHFA’s Director of Planning,

Preservation. All of the individuals are named in their

individual capacities only (Am Compl 4/4 6 -11)

Plaintiff asserts a 42 USC §1983 claim for violation

of his First and Fourteenth Amendment rights, an O.R.C. §

4112 claim for religious discrimination and retaliation, and

a claim for wrongful discharge.

Appx p 9

B. State proceedings

After Plaintiffs employment with ODOD was

terminated on March 1, 2002, he filed an appeal with the

State Personnel Board of Review of Ohio (“SPBR’),

claiming to have been fired for “whistle-blowing” activity

under O.R.C. § 124.341. (Am. Compl. 4/4] 39, 45-47). An oral

evidentiary hearing was conducted by an Administrative

Law Judge (“ALJ”) of the SPBR on December 8-10, 29, 2003

and May 17-19, 2004. Testimony and documentary evidence

presented to the SPBR are part of the record in the instant

case. On May 9, 2005, the SPBR issued a decision

upholding the ALJ's decision in favor of ODOD. In its order

the SPBR stated:

Wherefore, it is hereby ORDERED that the

instant appeal be DISMISSED principally for

Appellant's failure to establish a prima facie case.

pursuant to R.C. 124.03 and R.C. 124.341 and

secondarily for Appellant's failure to rebut

Appellee’s demonstration that Appellant was,

indeed, removed due to Appellent’s creation and

perpetuation of an untenable working environment

for co-worker Karen Banyai and due to his

insubordination in failing to cease and desist from

these actions in the face of clear and repeated

Appx p lv

instructions to do so, pursuant to RC 124.03 and RC

124.341

Finally, Leshe has filed a complaint with the Ohio

Inspector General and a mandamus action in the Franklin

County Court of Appeals, both of which have been

dismissed. Am. Compl.9{ 38, 40-44). State ex rel. Leslie v.

Ohio Housing Finance Agency, 2003-Ohio-6560. 2003 Ohio

App. LEXIS 5856 (Franklin Dec. 9, 2003). The Ohio

Supreme Court affirmed the dismissal of Leslie’s

mandamus action, and further held that the attorney-client

privilege applies to communications between state agencies

and their in-house counsel. State ex rel. Leslie v. Ohio

Housing Finance Agency, 105 Ohio St.3d 261, 824 N.E.2d

990 (2005).

C. Employment history

Leslie began work for ODOD as “Chief of

Compliance” on August 22, 2000, after having previously

worked for thirty days as an intermittent employee. Leslie's

position was in the unclassified service.” (Leslie Tr-3, 32:

Am. Compl. 4) 13). Leslie began by assisting ODOD Chief

Legal Counsel Marlo Tannous, but his job was quickly

transposed to one providing legal services for the Ohio

Housing Finance Authority (‘OHFA”). For OHFA, Leshe

became responsible for developing new loan documents,

reviewing existing loan programs and closing loans. His

position description, which stated that his job was to

“provide a full range of legal advice and services to ODOD,”

was accurate. (Leslie Tr-2, 106-07; Tr-3, 46-47).

Throughout his career at ODOD, Leslie was directly

supervised by and reported to Mario Tannous, ODOD's

Chief Legal Counsel and a Deputy Director. (Leslie Tr-2,

112- 13; Tr-3 , 39- 41 , 66). He was indirectly supervised

by Rita Parise. (Leslie Tr-3, 32-34; Appellant's Ex. 51).

Among his peers was Karen Banyai, the Manager of

OHFA’s Housing Development Loan Program and Housing

- Unclassified employees have no tenure nghts under Ohio law. See ORC §

124.34. Chnstophel v. Kukulinsky. 61 F.3d 479 (6th Cur. /995) “When a public

employee has no property nght in continued employment. the employee may be

discharged without a hearing or notice.” Curby .. Archon. 216 F 3d 549, S55 (6th

Appn p. I2

Development Assistance Program, where many of ODOD's

loans were underwritten. (Leslie Tr-3, 60-62; Banyai Tr-6, 1

1 8).

While an intermittent employee, Leslie referred to

Rita Parise of OHFA as “his client.” (Leslie Tr-2, 110-11).

On January 30, 2002, Leslie wrote, “If my attorney

responsibilities run to the Board,” then the OHFA board

should have reviewed certain loan changes. (Leslie Tr-3, 54-

56; Appellant's Ex. 26 at 4 1). On March 22, 2002, Leslie

wrote Michael Hardesty of the Attorney General's Office.

“It was always clear that I was serving as an attorney for

OHFA and ODOD” and referred to “my legal opinion as

agency counsel.” (Leslie Tr-3, 58-59; Appellee’s Ex. 17).

Leslie stated that his job was to “provide a full range of

legal advice and services to ODOD.” (Leslie Tr-3, 46-47:

Appellant's Ex. 49). “I'm in the legal department. I’m

around other attorneys. J] am acting as an attorney would

act.” (Leshe Tr-3, 51 -52). He rendered numerous “opinions

Cur 2000). citing Chnstophel 61 F 3d at 482. 485

Appx p 13

about legal issues.” (Leslie Tr-3, 71-72). Regardless of

whether or not Plaintiff was an attorney for purposes of

privileged communications, he was still performing the

basic function of legal counsel for a state agency.

D. Karen Banyai

Leslie avers that his relationship with Karen Banyai

was at first “professional” but “pretty casual “. They called

each other nicknames such as “Red Bear” and “Marvin the

Martian,” and Banyai shared some details about her family.

(Leshe Tr-6, 30-31). Leslie was an “evangelical Christian,”

and thought Banyai was interested in his religious views.

(Leslie Tr-6, 99-100). Although Banyai is a Christian as

well, she recalls little religious discussion with Leslie and

had formed few impressions of his beliefs (Banya Tr-6, 168-

69)

According to Banyai, her working relationship with

Leshe started out positive, but eventually became

“challenging” in that she and Leslie wasted a lot of time

trading e-mails in which Leslie used a great deal of

Appx p. 14

=

technical jargon or legalese. Banyai found such exchanges

to be unproductive. At other times, she believed Leslie was

argumentative or uncooperative, creating a “challenging”

work relationship. (Banyai Tr-6, 120-21, 162-68). Banyai

had just taken over a new program with new staff about the

time Leslie was hired, so she needed to have good

relationships with her co-workers and keep the lines of

communications open in order to meet her new

responsibilities - and to avoid trading time-consuming e-

mails with Leslie. (Banyai Tr-6, 128-29).

Near the end of May 2001, Leshe started to have

marital difficulties, and on August 1, 2001 , his wife moved

out of their home. On June 22, 2001, Leslie asked Banyai

to accompany him to lunch at First Watch in Columbus,

during which he to:d her of his impending divorce. On the

way back to the office, Leslie asked Banyai if he could see

her socially. According to Leshe, Banyai was “okay with

just being -- I think she used the term buddies.” and

otherwise wanted to think about it. (Leslie Tr-6,. 31-34: see

Appx p !5

also, Banya Tr-6, 123-24).

The following weekend Leslie called Banyai at home

to ask her to dinner at La Chatelaine in Worthington, Ohio.

on Monday, June 25, 2001 , when Banyai was not scheduled

to work.. Banyai viewed the occasion simply as two co-

workers getting together, where each drove and paid

separately. (Banyai Tr-6, 124). Leslie denies calling Banyai

at home and says the dinner date had been arranged at

work the preceding week. (Leslie Tr-6. 34).

At La Chatelaine, Leslie again proposed having a

social relationship. Banyai responded that they might have

lunch together occasionally, but that their relationship

could progress no further because Leslie was amidst a

divorce. (Banyai Tr-6, 124-25). Lesh recalls having asked

Banyai “who loves you” at the La Chatelaine dinner, in

connection with having discussed the Walk to Emmaus and

the Kairos Ministry, two religious programs in which he

was attempting to interest Banyai. (Leslie Tr-6, 33-37). He

denies that Banyai told him she was uncomfortable having

Anpn p. 16

a social relationship, and thought Banyai was

“contemplating” one because she had not said “no” yet.

(Leslie Tr-6, 38).

A week or so later, Leslie entered Banyai’s office and

again suggested a dating relationship. (Banyai Tr-6, 125-

26). A couple of days later, she told Leslie that a social

relationship was not in the cards, that she did not date co-

workers because of a prior bad experience, and she did not

date people in the midst of divorces. (Banyai Tr-6, 126,

162). Leslie protested that a divorce could take “years,” but

Banyai responded that they remained co-workers anyway,

so that a dating relationship remained out of the question.

(Banyai Tr-6, 127).

Leslie's recollection is similar, except he conflates the

two conversations into one. “But for these two facts [co-

worker and divorce], she would have been interested in

somebody like me because she had had the opportunity to

get to know me through working with me “ (Leslie Tr-6, 38-

39). Leslie’s understanding was that the door was open to

Appx p. 1?

being “buddies” with Banyai, but not to dating. (Leslie Tr-6.

40).

Banyai testified that within a day or so Leslie asked

her if she found him attractive. Banyai said she did not

know him well enough to respond. Leslie proposed that

they find a way for her to get to know him better. Banyai

repeated that she did not date co-workers or recent

divorcees (Banyai Tr-6, 127) Leslie’s recollection of this

conversation is again different He recalls that he asked

Banyai to “reconsider” her “policy.” to which she replied.

“are you final yet*” Leslie interpreted this to mean “when

will you be available*” (Leslie Tr-6, 40-42)

On September 18, 2001, Leslie sent an e-mail to

Banyai’s home computer [Appellee’s Exs. 11-12]:

KB: I appreciated your sitting and talking with me

today. (sic) Your haircut looks very cute (is that a

permissible description for a “mature” woman when she

looks nice). As you know, I am biased because I am

attracted to you — even with your glasses on that keep

sliding down your nose as you push back your thick

brown tresses. It looks like your hair is getting darker ...

very nice.

As I know. you are very concerned about giving me any

Appx p. 18

(Appellee Ex. 9). Banyai viewed the e-mail as “extremely

personal,’ “inappropriate” and “creepy. (Banyai, Tr-6, | 30-

encouragement because of professional and emotional

boundaries that you have established and expect me to

respect. I admit that I am not doing a good job of

respecting them.

Is there a middle ground’ A set of circumstance where I

can enjoy your companionship and begin to find out

more about you without disrespecting your concerns and

boundaries. I hope so.

I like your smile. I tease you so that I can see you smile

— a sincere smile. I like your sincere warm smile .. .

very much.

I would like to spend more time together to learn more

about the non-professional Karen. Is there a warm,

comfortable Karen who isn’t focused on accomplishing

something ... A movie Karen ... a fire in the chimney

Karen ...acookout Karen .. . a walk in the park Karen

...amunistry Karen ...a Karen at worship ...a

campfire and s’mores Karen . .. a Karen who shares

scripture and prayer... a small fellowship Karen... a

Karen whose soul radiates a spirit-filled beauty that

shines forth from her eyes, her smile, and her dimples?

That is a mystery that I would like to explore. I hope

that will be possible soon. Any encouragement would be

appreciated.

I hope you are taking care of your foot. Walks and talks

on crisp autumn Sunday afternoons are good therapy for

the soul .. . but not for injured feet.

Peace. Mark

Appx p 1°

3 1: Cunningham Tr-5, 5 1). Leslie testified that the

September 18, 2001 e-mail was meant to communicate his

interest in getting to know Banyai on several levels, “one of

which could have led to a romantic relationship.” (Leslie Tr-

6, 44-46; Appellee’s Ex. 9). Banyai did not respond to

Leshe’s message. (Leshe Tr-6. 46).

At about the same time. Banyai began to receive a

number of calls at home from Leslie. She started to screen

her home calls and refused to answer if Leslie was the

caller. (Banyai, Tr-6, 130-31). Leshe admits making several

unanswered calls to Banyais residence. (Leslie Tr-6, 42-43)

On September 28. 2001 , Leslie sent another e-maul

to Banyai’s home computer, which stated:

Hi. Would you please loosen up the boundary just long

enough to let me take you to dinner on your birthday?

Please??

(Banyai Tr-6, 131 : Leslie Tr-6, 55-56; Appellee’s Ex. 10). In

addition, Leslie left a phone message offering to take

Banyai out to celebrate her birthday. (Banyai Tr-6, 131).

Leslie also says he sent Banyai a birthday card offering to

Appx p. 20

escort her to dinner on her birthday. (Leslie Tr-6, 55-56).

Banyai was uncertain how to approach Leslie to tell

him “no” any more directly than she had already done,

because she did not want their work relationship to

deteriorate. At. work, Banyai was walking on “eggshells.”

(Banyai Tr-6, 170-72).

Banyai did not believe she was encouraging Leslie’s

attentions. (Banyai Tr-6, 133). Leslie understood that

Banyai was not interested in “dating” but he did not

consider a birthday dinner to be “dating.” (Leslie Tr-6, 58).

Leshe appears to have drawn encouragement from the fact

that Banyai merely ignored him, and never directly told

Leslie to quit leaving unreturned messages for her at home.

(Leshe Tr-6, 56-57). Banyai, on the other hand, recalls that

the Monday after the birthday invitation, Leslie said he

was getting a “very clear message” “personally” but

inquired if he and she were “OK” “professionally.” Banyai

replied that their professional relationship was satisfactory.

(Banyai Tr-6, 133).

Appx p 21

In early October 2001, Banyai was facing foot

surgery. Leslie offered to help Banyai get around after her

surgery and run errands for her. (Leslie Tr-6, 58-60; Banyai

Tr-6, 134). Leslie denies having prefaced his offer with “J

know you re ignoring me and you really don't like me, but

I'd like to help you anyway,” but Banyai recalls such an

introduction (Leslie Tr-6, 60, Banyai Tr-6, 134). Leslie then

he offered to help her Banyai’s friend. Suzy Wilson, with

whom Banyai had arranged her post-surgical care. Banyai

refused this offer as well. (Leslie Tr-6. 58-60; Banyai Tr-6,

134).

Around this same time, Banyai and Leslie were

having a disagreement at work. Parise told Banyai to go

into Leslie's office, close the door and work it out. Banyai

did not feel comfortable doing this, so Banyai told Parise

about Leslie's unwelcome advances. Parise offered to take

action, but Banyai told her that she thought she had the

situation under control. Parise told Banyai to come to her if

there were further incidents and suggested that Banyai not

Appr p 22

interact with Leslie alone. (Banyai Tr-6, 135-36: Parise Tr-

2, 93; Parise Tr-6, 184).

On Sunday, October 5, 2001, Columbus Day

Weekend, Banyai was leaving her apartment complex with

a friend when she believed she saw Leslie driving into the

complex. Banyai returned home immediately to check her

apartment for intruders (Banyai Tr-6, 1 36-37). Leshe

admits he drove by Banyai's apartment. “It was a bad

judgment on my part based upon basically just an impulse

that I would go up and see if she would be willing to do one

of those friendship activities by taking a walk” (Leslie Tr-6,

60-62). This was upsetting to Banyai because Leslie's

unannounced arrival made her feel insecure in her home.

She had thought that her professional relationship with

Leslie was acceptable and that it was or should have been

clear to Leslie that they were not going to have a social

relationship. She had said “no” to dating, stopped returning

his calls and did not return his e-mails. (Banyai Tr-6, 137-

38).

Appx p. 25

The next working day, Tuesday, October 7, 2001.

Banyai confronted Leslie and asked if it had been him she

had seen at her apartment complex. Leslie admitted

driving by. saying that he wanted to invite Banyai to walk

with Leslie and his dog “Katie” at Highbanks Metro Park..

Banyai immediately went to Parise and told her it was time

to take the next step. (Leslie Tr-6, 62-63; Banya Tr-6, 138:

Panse Tr-2, 94; Parise Tr-6. 186-87).

Later that same day, Parise summoned Leslie to a

meeting with Tannous and Deputy Director of Human

Resources Heather Cunningham. (Parise Tr-6. 187).

Tannous told Leslie that “no means no with respect to any

kind of dating invitations” and “they talked about the fact

that they didn't want me to have any kind of personal

communication with Ms. Banyai.” (Leslie Tr6, 63-64; Parise

Tr-2, 94). Parise and Cunningham told Leslie that “you

don't cal] her, you don’t e-mail her and you dont go to her

house.” (Parise Tr-6, 188: Cunningham Tr-5, 51, 58). Leslie

was “embarrassed” by his actions and said he understood

Appx p. 24

their instructions. (Leslie Tr-6, 65; Parise Tr-2, 94; Parise

Tr-6, 188). “At that point in time | felt that they told me

not to do anything that was of a personal nature with

Karen.” (Leshe Tr-6, 65-66). Later that day Leslie left a

voice mail for Cunningham and Tannous apologizing for his

inappropriate conduct and promising that it would never

happen again. Cunningham took this message from Leslie

to mean that he understood the boundaries established by

ODOD regarding Leslie’s future contact with Banyai.

(Cunningham Tr-5, 97, 101).

Parise advised Banyai of their discussion with Leslie.

Everything seemed fine to Banyai for about a month

afterwards. She and Leshe might exchange passing

questions such as “how was your weekend?” but beyond

these commonplace superficialities, there were no real

“personal” remarks or inquiries (Banyai Tr-6, 139-40)

On re-direct examination, Leslie claimed that the

conversation with Tannous, Parise and Cunningham

“created confusion in my mind,” because he thought the

Appx p 25

direct order given to him was “tied to the event of pulling

into the parking lot “. Leshe noted that “personal

communications’ was undefined. Because Banyai shared

the most superficial of one-line pleasantries with him at

work, Leslie says he somehow interpreted “no personal

communications’ to mean it was permissible to telephone

Banyai at home on family holidays. (Leslie Tr-6. 96-98).

One such remark may have been to ask what Leslie was

doing for Thanksgiving. (Leslie Tr-6, 66-67: Banyai Tr-6.

140).

On Thanksgiving Day. Leslie phoned Banyai at home

and asked if the call was overstepping his “boundaries.”

Banyai said yes and hung up. (Leslie Tr-6, 67: Banyai Tr-6.

140, 175). Leslie had just wanted “to talk” because his

children had accompanied his ex-wife for the holiday. and

Leslie was left at home alone (Leslie Tr-6, 67-68).

Banyai did not report this to Parise because she did

not want to jeopardize her work relationship with Leslie.

(Banyai Tr-6, 140-41, 175). Leslie, however. volunteered to

Appx p. 26

Parise that he had slipped up and telephoned Banyai at her

home over the Thanksgiving weekend. Leslie also

mentioned his Thanksgiving contact with Banyai to

Cunningham, who reminded Leslie once more that such

contacts with Banyai were forbidden. (Leslie Tr-6. 68-69.

103-04; Parise Tr-6, 190-91).

On January 4, 2002, Leslie delivered copies of a

Columbus Dispatch article about a prison outreach effort

that provided Holiday cookies to prisoners. One copy was

intended for Parise, the other for Banyai. Although he

denies doing so, Leslie apparently placed Parise’s copy in

Banyais box and vice versa. (Leslie Tr-6. 71-73; Banyai Tr-

6, 143-45; Parise Tr-6, 192; Appellee’s Exs. 11-12). The

handwritten message at the bottom of the copy intended for

Banyai mentioned a religious program to teach computer

skills to pre-release inmates. “What is needed is volunteers

to teach. Know anybody with a warm heart with computer

skills they are willing to teach to others? If you do please

have them contact me.” [Appellee’s Ex. 12]. Although he

Appx p 2’

admits these articles were clearly not work-related. Leshe

“didn’t consider this to be dating. I didn’t consider this to be

anything that even approached a personal relationship ~

(Leslie Tr-6, 71-73).

Parise did not object to religious nature of the article,

but rather to Leslie’s apparent disregard for management's

instructions to leave Banyai alone (Parise Tr-6, 195).

Parise thought the “warm heart” comment, along with the

invitation to contact Leslie, clearly crossed the “line”

because of their personal nature. She quickly instructed

Leslie to stop these sorts of contacts. (Leslie Tr-6, 73-74:

Banyai Tr-6, 145-46) . Parise warned Leslie that if he did

something like this again, she would do something about it.

meaning she would recommend disciplinary action. (Parise

Tr-6, 195).

Between January 24, 2002, and February 4, 2002.

within less than three weeks of Parise’s warning, Leslie

suddenly took it upon himself to “discover” and write

memos about four new alleged violations of law in the way

Appx p 28

OHFA customarily did business. Many of these “violations”

had happened months earlier, or had happened many times

before. Leslie claims that “I didn’t go looking for

[violations] . . . I basically disclosed what I was seeing in

the course of working on loan transactions.” (Leslie Tr-3,

161-62).

Around Valentine’s Day, Leshe asked Banyai if he

might send her a religious Valentine She said “no,” and

warned Leslie that such communications could get him in

trouble. (Banyai Tr-6, 146) Leshe does not remember

whether this incident occurred (Leslie Tr-6, 76)

Within a couple of days, Leslhe asked Banyai if she

would go to lunch with him and another co-worker. Banyai

again refused, and again cautioned Leslie that he was not

to contact her on a social basis. Leshe asked Banyai to

“think about it,” but Banyai was not interested. (Banyai Tr-

6, 146, 178). Banyai did not know how to make it clearer to

Leslie that she did not want to have anything to do with

him on a personal basis. (Banyai Tr-6. 1-47).

Appx p. 29

Leslie still claims to have been confused as to what

was required of him. All that he acknowledges he

“understood was that Rita didn’t like the reference to a

person with a warm heart because there was still non-work

related communication that would occur from time to time

with Karen just in the course of interacting.” (Leslie Tr-6,.

Cunningham recalls having had three separate

meetings with Leslie regarding his contacts with Banyai.

(Cunningham Tr-5, 51).

Shortly after Valentine's Day, Banyai received a

telephone call at home from Leslie. Leslie claimed he

wanted to discuss “projects” with Banyai. After Banyai

objected to being called at home, Leslie asked to discuss

these apparently urgent matters at work.. Banyai, who was

under the impression the projects must be work-related,

agreed. (Banyai Tr-6, 147). Leslie acknowledges that the

call happened and that Banyai told him (again) not to call

her at home, but claims he told Banyai that he had

“personal information” for her. (Leslie Tr-6, 78-79). The

point, apparently, is that irrespective of the instructions

Leslie had received from Tannous, Parise and

Cunningham, Banyai was otherwise permitted to undo this

order by somehow “consenting” in some way to receiving

“personal” information.

The following week, Leslie either handed Banyai a

packet of information or Jeft it in her mailbox. This

included another invitation to participate in one of Leslie's

religious projects by providing computer support to

“Bethlehem on Broad Street,” and materials on how to

create a will. (Banyai Tr-6, 148 ; Leslie Tr-6, 80; Appellee’ s

Ex. 13). While admitting that these materials were not

work~related, Leslie characterizes his telephone call and

“gifts” to Banyai as “sort of an impulse decision on my part”

and a “kind gesture.” (Leslie Tr-6, 80-81). But by this time

the ever mounting non-work related communication from

Leslie -- religious or otherwise -- was causing Banyai

distress (Banyai Tr-6, 179).

Appx p. 31

Banayi found Leslie’s behavior to be unsettling.

worried about Leshe reappearing at her apartment, and did

not want to answer her home telephone. Banyai did not

want to be so confrontational with Leslie that it would ruin

their work relationship and prevent her from obtaining

legal advice necessary to move projects forward (Banyai Tr-

6. 148-50) Nonetheless, Banyai showed the materials to

Parise. (Parise Tr-6, 197). Banyai then met with

Cunningham and told her that she was feeling intimidated

bv Leslie’s continued advances to the point that she was on

the verge of seeking a restraining order. (Cunningham Tr-

5, 41).

Throughout this sorry tale. Leslie blames the

“victim” for “encouraging him by demonstrating even the

slightest civility, from which he inferred ambiguity or even

interest, “It gets a little blurry because . . . it's hard to

understand if [Banyai] talks about things in the office [with

others] in my presence and then... I provide her with |

information about things that don't really involve me’ such

Appx p. 32

as the will-making kit.” (Leslie Tr-6, 82). Leslie claimed

that what his managers had really prohibited was

overtures about “dating or romance,” not about other

“personal” matters, and that “I could do some

communication that was strictly on a friendship level that

had nothing to do with romance [or] dating, and basically

involved religious topics.” (Leslie Tr-6, 81, 82-83). Leslie

didn’t think any of the directions he had been given

prohibited religious proselytizing “because | felt that that

would have been illegal and I know that Marlo wouldn't

have ordered me to do something illegal.” (Leslie Tr-6, 115-

16).

Leslie may or may not have been fixated upon

Banyai's every action, but if he was “confused,” it was

only because he had ignored everything that Tannous,

Parise and Cunningham had been telling him for almost

five months. According to his own testimony:

e After his Columbus Day weekend visit to Banyai's

apartment complex, Leslie was told to have no

Appx p. 33

“personal communications’ with her. (Leslie Tr-6. 63-

64, 65-66):

e After Thanksgiving, Cunningham told Leslie that

calling Banyai at home just to “talk” was

inappropriate. (Leslie Tr-6. 68-69): and

e In early January. Parise told Lesle that strikingly

similar “friendship” and “religious” overtures about

a “warm heart” and prison ministries were highly

inappropriate (Leslie Tr-6. 73-7-4)

On February 19. 2002, Tannous, Parise and

Cunningham met with Leslie and asked him two questions.

Cunningham asked whether he had contacted Banyai at

home over the weekend. Leslie admitted he had. but

asserted he could properly do so because the cal] was not on

working time. The second was whether Leslie gave

Appellee’s Ex. 13 to Banyai. Again. Leslie admitted this

was the case. (Leshe Tr-3. 163-64: Tannous Tr-4. 17):

Parise Tr-6, 197).

Tannous and Cunningham then meet with Garver

App, p 34

and Everhart, explained that Leslie had yet again

disobeyed their clear directions to have no further non-work

contact with Banyai. They considered ODOD’s history of

very low tolerance with this type of unwanted harassment

and suggested that a recommendation be made to the

Director that Leslie's employment be terminated for

insubordination and because of the potential liability for

ODOD should Leslie persist in his unwelcome pursuit of

Banyai (Tannous Tr-4, 173, 175, 180, Garver Tr-7, 52)

During this meeting, none of the participants discussed

Leslie’s criticisms or written memoranda criticizing OHFA’s

programs or business practices (Tannous Tr-4, 175)

Cunningham, Tannous, and Garver then met with

Director Bruce Johnson and made the consensus

recommendation to the Director that Leslie be removed for

insubordination. (Cunningham Tr-5, 48, Johnson Tr-6, 21)

Director Johnson made the decision to terminate Leslie's

employment based upon Leslie’s insubordination and his

continued unwelcome contact with Banyai The Director

App. p 35

was not even aware that Leslie had raised claims that some

OHFA practices were illegal (Johnson Tr-6, 21).

The next meeting, with Tannous, Cunningham, and

Assistant Director Bruce Velt occurred on March 1, 2002.

Leslie was offered the opportunity to resign in exchange for

a two-week extension of his employment, but he declined

(Cunningham Tr-5, 86-88. Leslie Tr-3, 31, 34-35. Tr-6, 85.

Appellant's Ex 56). Cunningham told Leslie that “we have

decided to go in a different direction “. No other

explanation was given. Leslie was then presented with a

letter of removal. (Leslie Tr-3, 28-30; Appellant's Ex. 57).

Leslie’s harassment of Banyai did not end with his

removal. Incredibly. Leslie left voice mail and e-mail

messages asking Banyai for a job reference -- as if Banyai

might be inclined to recommend his employment. He sent a

bizarre and disturbing greeting card to Banyai s home

“forgiving” her for a multitude of misdeeds for which

Banyai undoubtedly did not feel in need of forgiveness.

along with Kairos religious information (Lesle Tr-6, 85-89.

Appr p 36

Banyai Tr-6, 151-53, Appellee’s Exs. 14, 14A). Without her

permission, Leslie gave Banyai’s name as a “kind-hearted

person” (again) to the “Bethlehem on Broad Street Church,”

with which Leslie was affiliated but Banyai had no

dealings, in the expectation that the church would contact

Banyai — which it did (Leslie Tr-6, 90-91 . Banyai Tr-6, |

53-54, Appellee’s Ex 15) Leslie transmitted a long series of

unsolicited religious e-mails to Banyai at home (Leslie Tr-6,

89, 91-92, Banyai Tr-6. 154; Appellant's Exs. 61 , 62. 63,

64). Finally, Leslie sent Banyai an Easter card. (Banyai Tr-

6, 154-55: Appellee’s Ex. 21).

Banyai did not respond to these communications in

any way. except to report them to ODOD (Leslie Tr-6. 93).

She was extremely upset but the communications she had

received after Leslie's termination, and was at a loss at how

to get him to stop harassing her. (Banyai Tr6, 156). She did

not want a religious or any other kind of relationship with

Leslie and thought she had made that clear. (Banyai Tr-6.

156).

Apps p 3”

Leslie claims he was still “confused” even after his

termination (Leslie Tr-6, 94-95). He thought Banyai had

“acted in a way that resulted in my termination, but “I sill

was willing to consider her a person that I could relate to in

Christ even though | wouldn't be relating to her in any

other fashion. (Leslie Tr-6, 93).

E. Leslie’s Alleged Whistleblowing

Ohio Revised Code § 124 341, known as Ohio's

whistleblower statute, contains a prohibition against taking

disciplinary action against either a classified or unclassified

employee for reporting violations of statutes, rules. or

regulations, or the misuse of public resources which the

employee has become aware of in the course of his

employment. Plaintiff claims that he blew the whistle

concerning five areas of activities 1) Equity Bridge loans. 2)

the West Tech loan. 3) Seed Money loans to Victoria Place

Limited Partnership. 4) the HOME Investment Partnership

Act loan to Woda Colonial Park: and 5) collateralization otf a

App p +s

Compensating Balance loan in relation to Oak Hull Bank.’

Leslie asserts that Defendants terminated his employment

in retaliation for five sets of memoranda he wrote regarding

the aforementioned loan issues Plaintiff prepared these

memos in August and September 2000, and January and

February 2002, questioning what he alleged to be

wrongdoing at ODOD Plaintif claims that he was fired in

violation of his free speech rights under the First

Amendment (Am Comp! 4" 16, 20-24, 50).

Plaintiff filed the instant action on January 30, 2004,

asserting that his discharge violated his First and

Fourteenth Amendment rights to freely exercise his

religion and freely associate with others. Plaintiff also

asserts an 0 RC § 4112 claim for religious discrimination

and retaliation, and a claim for wrongful discharge. (Am.

Compl.44j 19, 27, 33-35, 51-52).

‘ Each of these alleged whistle blowing activities is discussed in detail in the

ALJ's Report and Recommendation and adopted by the SPBR’s Order The SPBR

held that Plaintiff failed to establish a causal connection between his reporting

and/or whistle blowing and his removal The Court has found that collateral

estoppel bars Plainuff from raising those same claims again in this Cour and

:berefore i 1s not necessary to address the details of these claims in this Order

Appx p. 39

Il. Summary Judgment

The standard governing summary judgment is set forth in

Fed. R. Civ. P. 56(c), which provides:

The judgment sought shali be rendered forthwith if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment

as a matter of law

Summary judgment will not lie if the dispute about a

material fact is genuine; “that is, if the evidence is such

that a reasonable jury could return a verdict for the

242, 248 (1986). Summary judgment is appropriate,

however, if the opposing party 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 Corp. v. Catrett, 477 U.S. 3

1 7, 322 (1 986): see: Matsushita Electric Industrial Co Ltd

v Zenith Radio Corp, 475 U S 574, 588 (1986)

When reviewing a summary judgment motion, the

App, p 40

1. nm”, A i A ie a

es

Court must draw all reasonable inferences in favor of the

nonmoving party, and must refrain from making credibility

Sanderson Plumbing Prods Inc , 530 U.S. 133. 150-51

(2000).4 The Court disregards all evidence favorable to the

moving party that the jury would not be not required to

believe. Id. Stated otherwise, the Court must credit

evidence favoring the nonmoving party as well as evidence

favorable to the moving party that is uncontroverted or

unimpeached, if it comes from disinterested witnesses. Id.

The Sixth Circuit Court of Appeals has recognized

that Liberty Lobby, Celotex, and Matsushita have effected

“a decided change in summary judgment practice.”

ushering in a “new era” in summary judgments. Street v J

* Reeves involved a motion for judgment as a matter of law made during the

course of a tral under Fed R Civ P 50 rather than a pretrial summary judgment

under Fed R Civ P 56. Nonetheless. standards applied to both kinds of motions

are substantially the same One notable difference. however. is that in ruling on a

mouon for judgment as a matter of law. the Court. having already heard the

evidence admutted in the trial. views the entire record. Reeves. 530 U S at 150. In

contrast. un ruling on a summary judgment mouon the Court wil) not have heard all

of the evidence and accordingly the non-moving party has the duty to point out

those portions of the paper record upon which it relics in asserting a genuine issue

of matenal fact. and the court need not comb the paper record for the benefit of tne

nonmoving party In re Morns 260 F 3d 654, 665 (6th Cir 2001) As such. Reeves

did not announce a new standard of revicw for summarn judgment motions

Appx p 4}

C Bradford & Co , 886 F 2d 1472, 1476 (6th Cir 1989). The

court in Street identified a number of important principles

applicable in new era summary judgment practice. For

example, complex cases and cases involving state of mind

issues are not necessarily inappropriate for summary

judgment. Id. at 1479.

Additionally, in respending to a summary judgment

motion, the nonmoving party “cannot rely on the hope that

the trier of fact will disbelieve the movant’s denial of a

disputed fact. but must ‘present affirmative evidence in

order to defeat a properly supported motion for summary

judgment ‘* (quoting Liberty Lobby. 177 U S at 257) The

nonmoving party must adduce more than a scintilla of

evidence to overcome the summary judgment motion. Id. It

is not sufficient for the nonmoving party to merely “show

that there is some metaphysical doubt as to the material

facts.” Id. (quoting Matsushita, 475 U.S. at 586).

Moreover, “|t]he trial court no longer has a duty to

search the entire record to establish that it is bereft of a

Appx p 42

genuine issue of material fact.” Id at 1479-80. That is. the

nonmoving party has an affirmative duty to direct the

court’s attention to those specific portions of the record

upon which it seeks to rely to create a genuine issue of

material fact. In re Moms, 260 F 3d 654, 665 (6'’Cir 2001)

Ili. Discussion

A. Plaintiffs Free Speech/Whistleblower Claim

Defendants argue that Plaintiffs claim that he was

terminated in violation of his free speech rights under the

First and Fourteenth Amendment (“whistleblower claim’)

is barred by collateral estoppel. Collateral estoppel

“prevents a party from relitigating issues of fact or law

which were necessarily decided by a previous final

judgment.” Smith v. Sushka, 117 F.3d 965, 969 (6th Cir

1997). The Full Faith and Credit Clause requires that Ohio

law be applied to determine the preclusive effect of the

decision of an Ohio judicial or quasi-judicial body in a

federal action. Id. Hapgood v. City of Warren, 127 F.3d

490, 493 (6th Cir. 1997).

Appx p 43

Ohio law gives issue and claim preclusive eflect to

“those administrative proceedings which are ‘of a judicial)

nature and where the parties have had an ample

opportunity to litigate the issues involved in the proceeding

* Set Products Inc v Bainbridge Twp Bd of Zoning Appeals.

31 Ohio St.3d 260. 262 (1987). Proceedings before the SPBR

are manifestly quasi-judicial in nature, and the Sixth

Circuit has given issue preclusive effect to the SPBR s

resolution of factual disputes in Smith vy, Sushka. 117 F.3d

at 969.

According to the court in Smith. Ohio law requires

that the “identical issue was actually litigated. directly

determined, and essential to the judgment of the prior

action. Id. at 969. The test set forth in Smith in

determining the identity of issues involves:

a consideration of the evidence presented in

support of each. If the same facts or evidence

would sustain both, the two actions are considered

the same within the rule that the judgment in the

former is a bar to the subsequent action. If.

however. the two actions rest upon different sets of

facts, or if different proofs would be required to

sustain the two actions. a judgment in one is no

Appx p 44

bar to the maintenance of the other....

Id., quoting Monahan v. Eagle Pitcher Indus., 21 Ohio

App.3d 179 (1984).

While Plaintiff may actually be arguing two separate

claims, one pursuant to ORC § 124.341 and the other

pursuant to 42 U.S.C. §1983, each share the common

element that the retaliatory action must have been

motivated by Plaintiffs “whistle-blowing” speech. The

evidence Plaintiff used before the SPBR is the same

evidence being set forth in this case. Essentially the same

record has been established before the SPBR and now

before this Court, relying on the same testimony and

exhibits. The SPBR not only held that Plaintiff failed to

establish a prima facie case pursuant to 0 RC §124.03 and

124.341, but that he was discharged for his harassment of

Ms Banyai despite repeated warnings to stop. Therefore,

Plaintiff is barred from relitigating the issue of whether his

termination was the result of his “whistle-blowing” speech.

Collateral estoppel! applies in this case to all

Defendants, despite the fact that they were not all named

Appx p. 45

in the proceeding before the SPBR. The rule that mutuality

of parties is a requisite to collateral estoppel is relaxed in

appropriate cases. Goodson v. McConough Power Equip,

Inc.. 2 Ohio St.3d 19 (1983). The Goodson court explained

that “under those facts where it was shown that the party

defendant clearly had his day in court on the specific issue

brought into litigation within the later proceeding, the

nonparty plaintiff could rely upon the doctrine of collateral

estoppel to preclude the relitigation of that specific issue.”

Id. at 200-01 . Therefore. regardless of the parties named in

each action or in what capacity they are named, Plaintiff

had the opportunity to litigate the motivation of the ODOD.

which includes the actions of the individuals making the

determinations. and therefore is bound by the decision in

the SPBR appeal.

Plaintiff argues that the decision of the SPBR cannot

preclude him from raising the same issues before this Court

because he has appealed the decision to the common pleas

court and may further appeal to the state appellate courts.

Appx p 46

Plaintiff asserts “[i]t is simply too soon for this Court to

make procedural preclusions of the ments of Plaintiff's

clayms in this Action in reliance upon State administrative

rulings that are subject to reversal by the common pleas

court or the State appellate courts.” (P1’s Response to Defs’

Supp. Mem. at 3). While it is true that the SPBR’s decision

has been appealed and is subject to modification and/or

reversal, that does not mean that issue preclusion is not

applicable in this case The Restatement of Judgments 2d

(1982), § 13, states

The rules of res judicata are applicable only

when a final judgment is rendered. However,

for purposes of issue preclusion (as

distinguished form merger and bar), “final

judgment” includes any prior adjudication of an

issue in another action that is determined to be

sufficiently firm to be accorded conclusive

effect.

Defendants correctly point out that Ohio law on this point

is sparse, but do direct the Court to Wilkins V. Jakeway,

993 F Supp. 635, 645-46 (S.D.Ohio 1998). In Wilkins, the

Court held that a decision by another branch of the Court

was preclusive as to a second action before the Court, even

Appx p 47

though the appeal of the first action had not been resolved.

Id. The Court therefore finds that the decision by the

administrative judge, which was ultimately affirmed by the

SPBR is sufficiently firm to be accorded conclusive effect in

accordance with the aforementioned Restatement.

Even if Plaintiff were not barred by collateral

estoppel from asserting his claims relating to the

whistleblower issues, the speech contained in those

memoranda would not be related to matters of public

concern and therefore would not constitute a constitutional

violation. Plaintiff, in his memos. was merely raising

general questions about the manner im which OHFA

operated. Plaintiff was merely expressing concern over

documentation of a loan program and questioning whether

the Board was informed of a modification in another

program. In Rodgers v. Banks. 344 F.3d 587. 598 (6th Cir.

2003). the Court explained that while whether public offices

are operated in accordance with the law is generally a

matter of public concern. not all statements about office

App. p 48

operations relate to matters of public concern under

Connick. Plaintiff's speech is much like that in Thomson v.

Scheid, 977 F.2d 1017 (6th Cir. 1992), in which a fraud

investigator's communications about whether fraud by

another county official were to be investigated were not

protected. The Court held the speech did not involve a

matter of public concern because his point was to merely

raise questions about the procedure or manner in which the

investigation was to be conducted. Jd. Plaintiffs speech in

this case, therefore, does not involve a matter of public

concern. Plaintiff does not assert that his employer is

violating specific laws, but he was merely expressing his

concern over procedural matters.

B Plaintiffs Free Exercise of Religion Claim

Plaintiff alleges Defendants violated his First and

Fourteenth Amendment rights when he was terminated.

Defendants, however. argue that Plaintiff was not

terminated for exercising constitutionally protected speech.

but rather because he was harassing a female co-worker.

Appx p 49

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Defendants also argue that they are entitled to qualified

immunity.

The First Amendment provides as follows

Songress 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 people

peaceably to assembie, and to petition the

Government for a redress of grievances.

lS. Const. amend. IJ. Plaintiff contends that Defendants

violated his right to free exercise of his religion, and his

right to free speech.” Plaintiff and Defendants each argue

that a different standard should govern the analysis of

Plaintiffs claims. Plaintiff proposes that the standard set

forth in Employment Division v Smith. 194 U S 872 (1990).

which involved a free exercise of religion claim where the

government was acting as sovereign. should be applied in

this case Defendants. however, correctly argue that the

standard set forth in Pickering v. Board of Education, 391

LS 563 (1 968). The Pickering balancing test is applicable

in this case because the government Is acting as the

/

Appx p 8

employer and the government's interest in maintaining an

efficient workplace exists regardless of whether the

employee is trying to exercise his right to free speech or his

right to the free exercise of religion. Therefore, considering

the Pickering balancing test can and has been applied to

any First Amendment claim, including a mixed claim of the

right to free speech and free religious expression. the Court

will apply the test to the case at bar. See Collins v

Voinovich, 150 F 3d 575 (6th Cir 1998), Monks v Marlinga,

923 F 2d 423 (6th Cir 1991), Cummings v Kilroy, 908 F

Supp 507 (SD Ohio 1995)

When a public employee, like the Plaintiff in this

case, alleges that he was terminated for engaging in

freedom of speech that is protected, the Court must

consider three elements. First, the speech must be

constitutionally protected. Bloch v Ribar, | 56 F 3d 673.

678 (6th Cir 1998). Speech is protected if it is on a subject

of public concern Connick v Myers. 461 U S 138, 143 (1983).

’ Plainuff has apparently abandoned his claim that Defendants s1olated his meht te

association

Appx p il

Second. the Court must decide whether the “interest of the

employee as a citizen, in commenting on matters of public

concern, outweighs the employer’ s interest in promoting

the efficiency of the public services it performs through its

employees “ Pickering, 391 U S at 568. Third, the Court

must consider whether there was an adverse action that

constitutes an injury that would likely chill a person of

ordinary firmness from engaging in the protected activity

and whether plaintiff's speech was a substantial or

motivating factor in the emplover's adverse action. Bloch. 1

56 F 3d at 678

Plaintiffs speech and other communications in this

case consisted of telephone calls to a co-worker. Ms. Banyai.

both at work and at her home. leaving voicemail messages.

sending her emails. leaving religious materials in her

workplace mailbox, and visiting Ms. Banyai'’s home.

Defendants seem to concede that Plaintiffs speech involved

a matter of public concern in stating that “[a]lthough

expressions of personal religious faith, or religious

App. p 5?

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solicitations do not fit neatly under Connick, most courts

assume arguendo that such expressions are of “public

concern.”. Defs’ Mot for Summ. J. at 49. In Knight v State

of Connecticut Dep't of Public Health, 275 F 3d 156, 164

(2nd Cir 2001), the Court stated that most cases involving ~

expressions of religious faith turn on whether the speech

was disruptive under Pickering.

After finding that Plaintiffs speech involved a

matter a public concern, the Court must now apply the

Pickering balancing test to determine if the employee's free

speech interests outweigh the efficiency interests of the

government as an employer. 391 US. at 568. If the

balancing test weighs in favor of Plaintiff, establishing that

the his speech was protected, then the Court will turn to

the final element.

While the Pickermg court declined to “attempt to lay

down a general standard against which all such statement

may be judged.” it has identified some factors that are

indicative of a disruptive work environment and would

Appx p 5%

justify a restriction on speech. /d. at 569. For example.

courts should determine whether the speech tends to

disrupt “the kind of close working relationships for which it

can persuasively be claimed that personal loyalty and

confidence are necessary to their proper functioning, or

whether the speech implicated the maintenance of

“discipline by immediate supervisors “ /d at 570. The Sixth

Circuit has also set forth similar guidelines:

In order to justify a restriction on speech of public

concern by a public employee, plaintiffs speech

must impair discipline by superiors, have a

detrimental impact on close working relationships.

undermine a legitimate goal or mission of the

employer, impede the performance of the speaker s

duties, or impair harmony among co-workers.

Brandenburg v. Housing Authority of Irvine, 253 F.3d 891.

899 («th Cir. 2001).

The Court in Waters v. Churchill, 511 U.S . 661. 673

(1994), gives deference to the employer's reasonable

prediction of disruption, stating:

[W]e have consistently given greater deference

to government predictions of harm used to

justify restriction of employee speech than to

predictions of harm used to justify restriction

on the speech of the public at large. Few of the

Appx p 54

examples we have discussed involved tangible.

present interference with the agency's

operation The danger in them is mostly

speculative. ... [W]e have given substantial

weight to government employers’ reasonable

predictions of disruption, even when the speech

involved is on a matter of public concern, and

even though when the government is acting as

sovereign our review of legislative predictions

of harm is considerably less deferential.

Accordingly, “the government need not ‘allow events

to unfold to the extent that the disruption of the office and

the destruction of working relationships is manifest before

taking action.” Jackson v. Leighton, 168 F.3d 903, 910 (6th

Cir. 1999). “When someone who is paid a salary so that she

will contribute to an agency's effective operation begins to

do or say things that detract from the agency's effective

operation begins to do or say things that detract from the

agency's effective operation, the government employer must

have some power to retrain her” Waters v Churchill, 511 U

S 661 . 675 (1994)

Plaintiff, in this case. was hired and paid a salary to

provide timely and accurate legal advice to ODOD.

However. over the course of Plaintiffs employment. he was

Appx p. 45

warned repeatedly about his contact and actions toward his

coworker, Ms. Banyai. Considering the need for Plaintiff

and Ms. Banyai to work closely together and Plaintiffs

failure to abide by his supervisors instructions. he was

disrupting the office and ultimately the effective operation

of ODOD. Therefore. Defendants were justified in placing

restrictions on Plaintiffs speech because of the disruption it

caused.

Plaintiff argues that he could not have subjected Ms

Banyai to religious harassment since she claims to be a

Christian too. Not only is there no caselaw to support such

an argument, but it ignores Ms. Banvais testimony that

the religious communications from Plaintiff were just as

unwelcome as the romantic communications. Applying the

Pickering balancing test, Plaintiffs free speech interests do

not outweigh the government's interest having an efficient

workplace. Plaintiffs interest in continuing to

communicate with an unwilling listener, Ms Banya, about

religious or mixed religious and romantic issues is limited

Appr p 56

at best. However, Defendants interest in preventing

harassment of its employees is great. Defendants are

entitled to take action against harassment before it rises to

a level that would be actionable by the victim.®

Even if the Pickering balancing test weighed in favor

of Plaintiff, Plaintiffs alleged protected speech was not a

substantial or motivating factor in his termination. It is

clear from the facts and Plaintiffs own admissions that he

was harassing his co-worker. Ms Banyai. Despite being

warned, Plaintiffs disruptive conduct continued and

Defendants were forced to terminate Plaintiff's

employment. Therefore. Plaintiff was terminated because

he was harassing a coworker, not because he engaged in

protected speech. Further. Defendants’ warnings to

Plaintiff were just that. warnings to quit harassing Ms.

Banyai. ODOD essentially forbade Plaintiff from having

any non-business-related contact with Ms Banyai. While

’ The standard set forth in Title VII cases is that the emplover should act before

the harassment becomes So severe and pervasive that it has actually altered the

victim's working conditions See Faraghers City of Boca Raton. 524US 77S

805-06 (1998)

Appx p. 35?

Plaintiff may think this restriction was only applied to him.

it was essentially ODOD enforcing its policy against

harassment. Defendants. therefore, were not placing any

restrictions or limitations en Plaintiffs religious speech. but

rather. his harassing speech and conduct

C. Qualified Immunity

In addition to asserting that they did not violate any

of Plaintiffs constitutional rights. the Defendants also

assert that they are entitled to qualified immunity from

Plaintiffs First Amendment claim because Plaintiff has

failed to demonstrate a violation of clearly established iaw

in her Complaint. The doctrine of qualified immunity

shields government officials from liability. as well as from

suit, as long as their official conduct “does not violate

clearly established statutory or constitutional rights of

which a reasonable person would have known’. Harlow v.

Fitzgerald, 457 U.S. 800. 818 (1982). To determine whether

a state actor is entitled to qualified immunity. this Court

must apply the following two-step analysis. First.

Appx p 38

determine whether the plaintiff has demonstrated the

violation of a constitutionally protected nght. Second,

examine “whether the right is so ‘clearly established’ that a

reasonable official would understand that what he is doing

violates that right “ Brennan v Township of Northviile, 78

F 3d 1152, 1154 (6thCir 1996)

a Constitutional Violation

The threshold question is whether plaintiffs

allegations establish a constitutional violation. Hope v

Pelzer, 536 U S 730 (2002). Plaintiff has alleged that

Defendants violated his right to free speech and the free

exercise of religion under the First Amendment, The Court,

however. has already analyzed whether Plaintiff has

sufficiently alleged that Defendants violated his

constitutional rights above. After concluding that Plaintiff

has failed to allege a constitutional violation, Defendants

are entitled to qualified immunity.

2. Clearly Established Constitutional Rights

Even if Plaintiff were to have sufficiently alleged a

Appx p 59

constitutional violation, he could not prove that the

violation was of a clearly established statutory or

clearly established if a reasonable official would understanc

that what he is doing violates that nght. Jd.

Plaintiff cannot point to a decision that held that an

employer was not justified in terminating an emplovee who

was harassing another employee. In fact. Plaintiff failed to

cite any relevant caselaw clearly establishing any of his

theories or claims. A reasonable government emplover. like

Defendants in this case, would have terminated an

employee for harassing another emplovee to prevent any

Title VII repercussions. Therefore. Defendants are entitled

to qualified immunity on Plaintiff's claims against them |

D Plaintiffs Fourteenth Amendment Claim

Plaintiffs Fourteenth Amendment claim is

predicated on his First Amendment claims. Even if Plaintiff

had asserted separate constitutional claims in his Amended

Complaint, he has failed to establish any constitutional

Appx p 60

violations committed by Defendants. Therefore.

Defendants are entitled to summary judgment on all

Plaintiff's constitutional claims.

E. Plaintiffs State Law Claims

Plaintiff's initial complaint contained state law

claims, however, they were omitted from his amended

complaint Nonetheless. the Court declines to exercise

supplemental jurisdiction

over Plaintiffs state law claims because it has granted

Defendants’ Motion for Summary Judgment on all

Plaintiffs federal claims. It is well settled that a District

Court may decline to exercise supplemental jurisdiction

over statelaw claims once it has dismissed all claims over

which it possessed original jurisdiction. Saglioccolo v Eagle

Ins. Co, 1 12 F 3d 226, 233 (6th Cir. 1997). Indeed, the

Sixth Circuit has recognized that if all federal claims are

dismissed before trial. remaining state claims generally

should be dismissed. Jd.: Taylor v. First of Am. Bank--

Wayne. 973 F 2d 1284. 1287 (6th Cir 1992) Therefore.

Appx p ol

pursuant to 28 US C §1367(c)(3) and (d). the Court will

dismiss Plaintiff's state law claims against Defendants

without prejudice.

IV. Disposition

Based on the above, the Court GRANTS Defendants’

Motion for Summary Judgment (Doc. 10). and DENIES

Plaintiffs Motion for Partial Summary Judgment (Doc. 30)

The Clerk shall enter final judgment in favor of

Defendants, and against Plaintiff, dismissing this action in

its entirety with prejudice

The Clerk shall remove this case from the Court's

pending cases and motions lists.

The Clerk shall remove Does. 10 and 30 from the

Court's pending motions list.

IT IS SO ORDERED.

/s/ George C Smith

GEORGE C. SMITH. JUDGE

UNITED STATES DISTRICT

COURT

Appx p 0?