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Edelstein v. Stephens

United States District Court, S.D. Ohio, Western Division

August 6, 2019

KIMBERLY EDELSTEIN, Plaintiff,
v.
JUDGE GREG STEPHENS, et al., Defendants.

          Barrett, J.

          REPORT AND RECOMMENDATION

          KAREN L. LITKOVITZ, UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Plaintiff Kimberly Edelstein brings this action alleging violations of her rights under federal and state law by defendants Butler County, Ohio Common Pleas Judge Greg Stephens, Butler County Prosecutor Michael Gmoser, and Butler County Assistant Prosecutor Dan Ferguson. Plaintiff filed an amended complaint on July 21, 2017 (Doc. 20), which is the operative complaint in the lawsuit. Plaintiff brought 20 claims against defendants. The relevant facts of the amended complaint are summarized in the Report and Recommendation on defendants' motion for partial dismissal of the complaint (Doc. 22) dated February 16, 2018. (Doc. 31). The district judge adopted the Report and Recommendation in part and denied defendants' motion as to Counts I, VI, VII, VIII and XV. (Doc. 40).

         The claims that remain pending before the Court are plaintiffs claims for injunctive relief (Count I); violation of plaintiffs First Amendment right to free exercise of her religion under 42 U.S.C. § 1983 against defendant Stephens (Count III); violation of plaintiff s Fourteenth Amendment right to equal protection of the law under § 1983 against defendant Stephens (Count V); violation of plaintiff s Fourteenth Amendment right to substantive due process under § 1983 against defendants Stephens, Gmoser, and Ferguson, respectively (Counts VI, VII, VIII); unlawful termination based on religious discrimination in violation of Ohio Rev. Code §§ 4112.02 and 4112.99 against defendant Stephens (Count IX); defamation against defendant Stephens (Count XV); and intentional interference with a business relationship against defendant Gmoser (Count XIX). (Docs. 31, 40).

         This matter is before the Court on the following summary judgment motions:

• Plaintiffs first motion for partial summary judgment on Counts VII, VIII and XIX of the amended complaint (Doc. 140), defendants' response (Doc. 148). and plaintiffs reply (Doc. 154);
• Plaintiffs second motion for partial summary judgment on Count VI of the amended complaint (Doc. 141), defendants' response (Doc. 148), and plaintiffs reply (Doc. 155); and
• Defendants' motion for summary judgment (Doc. 143), plaintiffs response (Doc. 149), and defendants' reply (Doc. 152).

         II. Summary judgment standard

         A motion for summary judgment should be granted if the evidence submitted to the Court demonstrates that there is no genuine issue as to any material fact, and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477U.S. 242, 247 (1986). Under Fed.R.Civ.P. 56(c), summary judgment should be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." All evidence, and all inferences drawn therefrom, should be construed in the light most favorable to the non-moving party. Satterfield v. Tenn., 295 F.3d 611 615 (6th Cir. 2002) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio, 475 U.S. 574, 587 (1986)).

         The function of the reviewing court is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine factual issue for trial. Anderson, 477 U.S. at 249. The court is not required to search the entire record for material issues of fact, Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989), but the court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52. The party opposing summary judgment must "do more than simply show that there is some metaphysical doubt as to the material facts." See Matsushita. 475 U.S. at 586. The party opposing a motion for summary judgment "must make an affirmative showing with proper evidence" to defeat the motion. Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009) (citing Street, 886 F.2d at 1479). "Speculation does not create a genuine issue of fact” Hedberg v. Indiana Bell Tel. Co., Inc., 47 F.3d 928, 932 (7th Cir. 1995).

         There is no genuine issue for trial if the record, considered as a whole, could not lead a reasonable jury to find for the non-moving party. Miles v. Givaudan Flavors Corp., 521 Fed.Appx. 364 (6th Cir. 2013) (citing Matsushita, 475 U.S. at 587). "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380 (2007). Facts that are not blatantly contradicted by the record "remain entitled to an interpretation most favorable to the non-moving party." Coble v. City of White House, Tenn., 634 F.3d 865, 870 (6th Cir. 2011). In addition, the court "must disregard all evidence favorable to the moving party that the jury is not required to believe." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000) (citation omitted). It is the jury's function, not the function of the court, to make credibility determinations, weigh evidence, and draw legitimate inferences from the facts. Id. at 150 (citing Anderson, 477 U.S. at 255).

         It is not necessary that the submissions of a party opposing summary judgment be in a form that is admissible at trial, but a party must present "enough evidence that will be admissible at trial to demonstrate that a genuine issue on a material fact exists." Alexander, 576 F.3d at 558; see also Fed. R. Civ. P. 56(c)(1)(A), (4) (requiring an affidavit or declaration to "set out facts that would be admissible in evidence"). An affidavit used to support a motion for summary judgment must be "made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant... is competent to testify on the matters stated." Fed.R.Civ.P. 56(c)(4). Affidavits that simply repeat vague and conclusory allegations from the complaint are not sufficient to create a genuine issue of material fact. Emmons v. McLaughlin, 874 F.2d 351, 358 (6th Cir. 1989).

         The court cannot consider hearsay evidence not subject to any exception when deciding a summary judgment motion. Alexander, 576 F.3d at 558 (citation omitted). Hearsay evidence includes a statement that is not made by the declarant while testifying at trial or hearing and that is offered in evidence to prove the truth of the matter asserted. Fed.R.Evid. 801(c). An opposing party's statement that is offered against the party is not hearsay if it meets certain conditions, including if the opposing party "manifested that it adopted [the statement] or believed [the statement] to be true"; the statement "was made by a person whom the party authorized to make a statement on the subject"; or the statement "was made by the party's agent or employee on a matter within the scope of that relationship and while it existed." Fed.R.Evid. 801(d)(2). This Court has held that if properly authenticated and offered against the opposing party, "internet chat logs containing [the opposing party's] statements" are admissible as non-hearsay evidence. U.S. v. Edingion, No. 2:10-cr-335, 2011 WL 13130880, at *3 (S.D. Ohio Apr. 12, 2011).

         III. Disputed and undisputed facts

         The parties agree on some relevant facts, but many of the facts that are material to the resolution of the parties7 motions are disputed. The parties' versions of the facts are set forth below. The facts are undisputed except where noted.

         Plaintiff was employed as a staff attorney/magistrate in the Butler County, Ohio Court of Common Pleas for Judge Patricia Oney for approximately nine years. Defendant Judge Stephens hired plaintiff as a staff attorney/magistrate position when he assumed Judge Oney's former position on March 14, 2016. (Stephens Aff, Doc. 126-10, ¶¶2, 8[1]). Plaintiff was an at-will employee who served at the pleasure of Judge Stephens. (Id., ¶ 8).

         On Thursday, July 28, 2016, Edelstein told Stephens she would need to take eight, non-consecutive days off in October 2016 for the Jewish High Holy Days. (Id., ¶ 22).[2] Stephens responded by exclaiming, "Holy Cow!" (Id., }, Plaintiff asserts that Stephens "yelled" at her, "Holy Cow, eight days!" (Plaintiff Aff, Doc. 141-5, ¶¶3, 4). Plaintiff alleges it was clear to her that Stephens was angry because he was frowning and yelling at her, and this was the first and only time he had yelled at her. (Id., ¶ 4). Plaintiff alleges that Stephens then "calmed down" after she explained the days were work-restricted and she had taken them off for nine years without a problem from Judge Oney, and he then waved dismissively at her and said "fine." (Id., ¶¶ 9-10: Plaintiff Depo. I, Doc. 131 at 31). Stephens told plaintiff to email his bailiff, Jamie Wilson, and Stephens's judicial assistant, Melinda Barger, the days she would be off, which plaintiff did immediately. (Pltf. Depo. I, Doc. 131 at 31). Plaintiff sent an email to Stephens and Barger informing them of the days she would be off on Thursday, July 28, 2016 at 1:52 p.m. (Id.; Stephens Aff., Doc. 126-10, Exh. 2).

         Defendant Stephens alleges that later in the day after this conversation, he observed strife among his personal staff (Stephens Aff, Doc. 126-10, ¶¶ 27-31). Stephens asserts "the tension still seemed evident the next morning, and [he] noticed [plaintiffs] door was closed." (Id., ¶ 29). The parties disagree as to who the source of the stress was. According to Stephens, "Ms. Barger reported that Ms. Edelstein was only communicating with her by email, seemingly trying to avoid direct communication. Ms. Barger also told me that Ms. Edelstein walked by her and avoided looking at her, holding up a file to block her view of Ms. Barger." (Id., ¶¶ 30, 31). According to plaintiff, Barger stopped talking to plaintiff after she requested the time off and emailed the staff about it. (Pltf. Aff., Doc. 141-5, ¶ 12; Pltf. Depo. I, Doc. 131 at 82-83).

         Stephens made the decision to terminate plaintiff almost immediately after her request and took steps toward doing so the following morning, Friday, July 29. According to Stephens, when he saw that the tension among his staff persisted the morning after plaintiffs request, he decided "[his] personal staff could no longer operate that way and decided to speak with the Court Administrator, Gary Yates, about terminating Ms. Edelstein." (Stephens Aff., Doc. 126-10, ¶ 32). On July 29, Stephens spoke with Yates about terminating plaintiff. (Id.; Doc. 141, Exh. 4). At 3:23 p.m. on Friday, July 29, Stephens emailed Yates and informed Yates that he "anticipate[d] letting her go" after she finished the magistrate's docket on August L 2016. (Doc. 141, Exh. 4, Stephens's 7/29/2016 3:23 p.m. email to Yates). Stephens asserts he met with Barger and Wilson on Monday, August 1, "[a]fter that weekend passed and [he] had made the decision to terminate" plaintiff in order "to gather their input on the decision." (Stephens's Official Capacity Interrogatory Responses (OC ROGs), Doc. 126-10, No. 2). Plaintiff alleges the meeting occurred "after lunch'' and lasted over two hours.[3] (Doc. 141-5, ¶ 15).

         On Monday, August 1. 2016, Stephens terminated plaintiff. Stephens went to plaintiffs office that morning with Barger as a witness and told plaintiff she was being terminated. (Stephens Aff, Doc. 126-10, ¶ 35). Stephens alleges he told plaintiff she was being terminated because of personality conflicts between her and the rest of his personal staff and her "persistent arguing and combative attitude with him." (Id., ¶¶ 35-36; Stephens OC ROGs, Doc. 126-10, No. 3; Stephens Official Capacity Requests for Admissions (OC RFAs), Doc. 126-8, No. 6; Stephens Individual Capacity Interrogatory Responses (IC ROGs), Doc, 126-9, No. 15). Elsewhere Stephens claims that he told plaintiff she was not working out because "she was not gelling with the rest of the staff," and when plaintiff disputed his reason he said he "was not going to discuss it further." (Stephens Aff, Doc. 126-10, ¶ 35). Plaintiff alleges that Stephens told her she did not "fit in'1 and she had to pack her desk and leave by noon. (Pltf. Depo. I, Doc. 131 at 173; Pltf. Aff, Doc. 141-5, ¶ 17). Plaintiff further alleges that when she asked both Stephens and Barger what they meant by "fit in," neither responded. (Pltf. Depo. I, Doc. 131 at 115-117). The termination letter Stephens sent to plaintiff gave no reason for the termination. (Doc. 149-1, Pltf. Aff., ¶ 7; Id.. Exh. 2).[4]

         IV. The parties' entitlement to summary judgment on the pending claims

         A. First Amendment right to free exercise of plaintiffs religion (Count III)

         Plaintiff brings a claim against defendant Stephens under 42 U.S.C. § 1983 for violation of her First Amendment right to freely exercise her religion. (Doc. 20, ¶¶ 76-85). Plaintiff alleges that Stephens terminated her employment on or about August 1, 2016, because she attempted to exercise her right to practice her deeply-held religious beliefs by taking eight non-consecutive days of leave from work to observe the Jewish High Holy Days.

         Defendant Stephens moves for summary judgment on plaintiffs First Amendment claim. (Doc. 143). Stephens does not dispute that the first two elements of a First Amendment claim are satisfied as (1) plaintiff engaged in constitutionally-protected activity, and (2) plaintiff was terminated. (Id. at 5). However, Stephens contends plaintiffs claim fails because there is no causal connection between the two events. (Id.). Stephens alleges there is no dispute that plaintiff was terminated three days after she requested and received permission to take time off for the Jewish holidays in October 2016. (Id., citing Pltf. Depo. I, Doc. 131 at 29; Am. Complt., Doc. 20, ¶¶ 78-79). Stephens argues, though, that the close temporal proximity cannot suffice to establish a retaliatory motive on his part. (Id. at 5-6, citing Skinner v. Bolden, 89 Fed.Appx. 579. 579-80 (6th Cir. 2004); Smith v. Campbell, 250 F.3d 1032, 1038 (6th Cir. 2001); King v. Zamiara, 680 F.3d 686, 695 (6th Cir. 2012)). Stephens argues that the undisputed facts show he would have taken the same action in the absence of plaintiff s protected conduct, and he is therefore entitled to summary judgment on plaintiffs First Amendment claim. (Id. at 7, citing Thaddeus-X v. Blatter, 175 F.3d 378, 386 (6th Cir. 1999)).

         1. First Amendment law

         A plaintiff may bring a claim under 42 U.S.C. § 1983 "against anyone who, under color of state law, deprives a person of rights, privileges, or immunities secured by the Constitution or conferred by federal statute." Wurzelbacher v. Jones-Kelley, 675 F.3d 580, 583 (6th Cir. 2012) (citations omitted). Plaintiff brings a § 1983 claim premised on the allegation that Stephens terminated her employment in retaliation for plaintiffs exercise of her First Amendment right to practice her religion. To state a First Amendment retaliation claim, plaintiff must plead that (1) she engaged in conduct that is protected under the First Amendment; (2) the defendant took an adverse action against her "that would deter a person of ordinary firmness from continuing to engage in that conduct"; and (3) the defendant's "'adverse action was motivated at least in part by the plaintiffs protected conduct." Id. at 583 (citing Mezibov v. Allen, 411 F.3d 712, 717 (6th Cir. 2005) (citing in turn Thaddeus-X, 175 F.3d at 394).

         Plaintiff has the burden to show by a preponderance of the evidence that "the adverse action was motivated at least in part by the protected conduct." King, 680 F.3d at 694 (quoting Thaddeus-X, 175 F.3d at 399). A "motivating factor" is "one without which the action being challenged simply would not have been taken." Holzemer v. City of Memphis, 621 F.3d 512, 525 (6th Cir. 2010) (quoting Greene v. Barber, 310 F.3d 889, 897 (6th Cir. 2002)). The determination of a "[a] defendant's motivation for taking action against the plaintiff is usually a matter best suited for the jury." Paige v. Coyner, 614 F.3d 273, 282 (6th Cir. 2010) (citing Harris v. Barnhorst, 513 F.3d 503, 519-20 (6th Cir. 2008)).

         Two factors are pertinent to whether a retaliatory motive existed; (1) whether the defendant knew of the protected conduct; and (2) whether the timeline of events, including temporal proximity between the protected activity and the adverse action, supports an inference of causation. Bright v. Gallia County, Ohio, 753 F.3d 639, 653-54 (6th Cir. 2014) (citing Handy-Clay v. City of Memphis, 695 F.3d 531, 545-46 (6th Cir. 2012); King, 680 F.3d at 695; Paige, 614 F.3d at 282-83). The chronology of events can support an inference of causation which satisfies the third factor of a First Amendment retaliation claim. Handy-Clay, 695 F.3d at 546. More specifically, the temporal proximity between protected conduct and retaliatory acts alone can be sufficient to create an inference of retaliatory motive, King, 680 F.3d at 695-96 (citing Paige, 614 F.3d at 282-83; Muhammad v. Close, 379 F.3d 413, 417-18 (6th Cir. 2004)).

         "Where an adverse employment action occurs very close in time after an employer learns of a protected activity, such temporal proximity between the events is significant enough to constitute evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation." Dye v. Office of the Racing Comm '«, 702 F.3d 286, 305-06 (6th Cir. 2012) (quoting Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008)), However, "where some time elapses between when the employer learns of a protected activity and the subsequent adverse employment action, the employee must couple temporal proximity with other evidence of retaliatory conduct to establish causality." Id. (quoting Mickey, 516 F.3d at 525).

         The Sixth Circuit has held that a lapse of two to three months is sufficient to satisfy the causal connection prong of a retaliation claim. Dye, 702 F.3d at 305-06 (citing Seeger v. Cincinnati Bell Tel Co,, 681 F.3d 274, 283 (6th Cir. 2012) ("nearness in time" between return from FMLA leave and termination - three weeks after employee's reinstatement and less than two months after he first notified the employer of his medical leave - "suffices in these circumstances to meet the low threshold of proof necessary to establish a prima facie case of retaliatory discharge"); Bryson v. Regis Corp., 498 F.3d 561, 571 (6th Cir. 2007) (three months held to be sufficient to establish causal connection based on temporal proximity because "a plaintiffs burden in establishing a prima facie case is not intended to be an onerous one") (internal quotation marks and alterations omitted); Singfield v. Akron Metro. Housing Auth., 389 F.3d 555, 563 (6th Cir. 2004) (lapse of three months sufficient to show a causal connection)). See also Paige, 614 F.3d at 282-83 (one week lapse between the protected conduct and the adverse action created an inference of retaliatory motive); Handy-Clay, 695 F.3d at 546 (strong inference of causation arose where the plaintiff was terminated the day after she engaged in the protected conduct) (citing Holzemer, 621 F.3d at 526).

         Where the temporal proximity between the protected conduct and the adverse action is not "extremely close" so as to permit an inference of retaliatory motive, the Sixth Circuit often requires evidence in addition to temporal proximity to permit the inference of an improper motive. Holzemer, 621 F.3d at 526 (quoting Vereecke v. Huron Valley Sch. Dist., 609 F.3d 392, 401 (6th Cir. 2010)). However, where the temporal proximity is close and the employer has knowledge of the protected conduct, it is for the jury to decide whether a plausible rationale offered by the employer for the termination is the actual reason or whether the true reason for the termination was retaliation. Bright, 753 F.3d at 654.

         If plaintiff makes a prima facie showing, the defendant must "show[] by a preponderance of the evidence that it would have reached the same decision .. . even in the absence of the protected conduct;' Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Sowards v. Loudon Cty., 203 F.3d 426, 431 n.l (6th Cir. 2000) ("[I]n a First Amendment retaliation case, once a plaintiff shows that her constitutionally protected conduct was a substantial factor in an adverse employment decision, the burden of persuasion shifts to the defendant" to make this showing).

         2. Plaintiff's prima facie case

         There is no dispute that the first two factors of a First Amendment retaliation claim are satisfied here. (See Doc. 143 at 5). First, plaintiff engaged in protected activity by requesting time off from work to observe the Jewish High Holy Days. Second, plaintiff suffered an adverse action when her employment was terminated. Thus, the question to be resolved is whether plaintiff has produced evidence "that would allow a jury to find that [Stephens] was motivated at least in part by" plaintiffs protected conduct. See Bright, 753 F.3d at 653-54 (citing Paige, 614 F.3d at 282). In making this determination, the Court cannot resolve credibility issues, which is the role of the jury. Maxey v. State Farm Fire and Cas. Co., 689 F.Supp.2d 946, 952 (S.D. Ohio 2010) (c\tmg Adams v. Metiva, 31 F.3d 375, 378 (6th Cir. 1994)).

         To carry her burden on the third element of her prima facie case, plaintiff relies on the extremely close temporal proximity between her request for time off to observe the Jewish High Holy Days and her termination. Defendant Stephens argues there is no causal connection between plaintiffs leave request and her termination. (Doc. 143 at 5; Doc. 152 at 3-6). Stephens contends that under well-settled Sixth Circuit law, "unless the adverse employment action immediately follows the protected activity at issue, temporal proximity alone is insufficient to demonstrate causation in a retaliation case." (Doc. 152 at 3, citing Mickey, 516 F.3d at 525-26) (emphasis added by defendants). Defendant alleges that the Sixth Circuit has consistently followed Mickey's rationale: i.e., where temporal proximity is extremely close (as in that case, where the employer received notice of the protected activity and terminated the employee on the same day), temporal proximity is at least prima facie evidence of causation because it would be impossible for plaintiff to cite other evidence of retaliation between the time of the protected conduct and the termination. (Id. at 3-4, citing Mickey, 516 F.3d at 525-26). Stephens alleges the rationale does not apply here because "[h]e did not come to the decision [to terminate plaintiff] in a matter of hours; it took him [four] days to ultimately act on a decision he had been contemplating for months" due to internal conflicts between plaintiff and him and plaintiff and other members of his staff and alleged reports from Barger of problems she had working with plaintiff (Doc. 152 at 5). Stephens alleges that events occurring both before and after plaintiffs protected activity led to the decision. (Id.). Stephens argues that his failure to write up plaintiff for these issues does not mean they did not occur. (Id., citing Doc. 149 at 5). Stephens argues his position is buttressed by affirmative evidence of the sequence of events, which shows he received reports that negatively impacted his impression of plaintiff; he noticed tension among his staff that persisted from the time he spoke with plaintiff on Thursday until Friday; he spoke with Yates about his concerns and considerations; and he thought about his decision over the weekend. (Id.).

         Plaintiff has satisfied her burden to produce evidence which would allow a reasonable jury to find that Stephens's decision to terminate her was motivated at least in part by her protected conduct. Under the circumstances of this case, temporal proximity alone is sufficient to carry plaintiffs burden on the third element. Stephens took steps to terminate plaintiff almost immediately after she requested time off for the Jewish High Holy Days. Plaintiff made her leave request around lunchtime on Thursday, July 28, 2016. Stephens spoke with Yates the next morning, July 29, about terminating plaintiff, which was no more than 24 hours after plaintiff had asked for time off to observe the Jewish High Holy Days. (Stephens Aff, Doc. 126-10, ¶ 32; Doc. 143 at 7), Stephens informed Yates the afternoon of Friday, July 29, that he had decided to terminate plaintiff after the magistrate's docket on Monday, August 1. (Doc. 141, Exh. 4). Stephens "gave the matter more thought over the weekend/'' (Stephens Aff., Doc. 126-10, ¶ 34). Stephens asserts that when "he still wished to terminate" plaintiff on Monday - four days after her request for time off- he met with Barger and Wilson to "gather their input on his decision" and went to plaintiffs office and terminated her. (Doc. 152 at 5). Stephens terminated plaintiffs employment on Monday morning, August 1, as he had told Yates the previous Friday he planned to do. (Stephens Aff., Doc. 126-10, ¶ 35). Thus, by Stephens' own account, the temporal proximity is extremely close. At most, less than four full days, two of which were weekend days, elapsed between plaintiffs protected activity and her actual termination. Far less time - less than one full day - passed after plaintiff made her request and Stephens decided to take the first step toward terminating plaintiff, which was to speak with Yates about it.

         In arguing that the temporal proximity is not close enough to establish the third element of plaintiff s prima facie case, Stephens acknowledges the rationale underlying the decision in Mickey. Defendant argues that unless the adverse employment action "immediately follows" the protected activity, temporal proximity alone is insufficient to establish causation. Stephens contends that the more time that passes between the protected activity and the adverse action, the greater the chance some other event will occur that motivates the adverse action. (Doc. 152 at 3, citing Mickey, 516 F.3d at 525-26). However, defendant misapplies that rationale to the undisputed facts of this case.

         First, defendant disputes plaintiffs allegation that he decided to terminate her and "took concrete steps" to do so "between three and five work hours" after she requested eight days off to observe the Jewish High Holy Days. (Doc. 152 at 4, citing Doc. 149 at 6-7). Stephens claims instead that he "considered terminating [plaintiff] the day after he granted her time off for the upcoming October1 and that he "spoke with Gary Yates and other members of his personal staff about his inclinations that same day." (Doc. 152 at 4) (emphasis added). Stephens argues that it is inaccurate "to say that this occurred within 'three to five hours' following Stephens [sic] conversation" for two reasons: (1) he had considered terminating plaintiff for months because of internal conflicts between plaintiff and Stephens and other members of his personal staff; and (2) the evidence shows that "he would have made the same decision absent [plaintiffs] request for time off." (Doc. 152 at 4-6). Neither reason proffered by defendant for reframing the temporal proximity between the two events is relevant to whether plaintiff has established the third prong of her prima facie case. The undisputed evidence supports a finding that defendant decided on Friday, July 29, 2016, the day after plaintiffs leave request, to terminate her the following Monday, August 1, 2016, and that defendant discharged plaintiff on that date as planned. Thus, only one day elapsed between plaintiffs protected activity and Stephens* s decision to take the adverse action, and four days elapsed between the protected activity and the adverse action itself.

         Further, although Stephens may have given some prior thought to terminating plaintiff as early as May 2016, whether he did so is not undisputed. (See Doc. 152 at 5; Doc. 143 at 6, citing OC ROGS, Doc. 126-10, Nos. 2, 6, 12; Stephens Aff, Doc. 126-10, ¶¶ 13, 15, 18; Doc. 142-1 at 5-8). Stephens has produced Facebook messages to show that he discussed a job position with Dan Gehr (Doc. 142-1 at 5-8), but that evidence does not unequivocally establish that Stephens discussed the possibility of Gehr taking plaintiffs job. And even assuming Stephens considered hiring Gehr to take plaintiffs place in early May 2016, there is no evidence that Stephens gave further consideration to terminating plaintiff prior to her leave request or that he ever took a step toward terminating plaintiff before that time. Rather, Stephens admits that he ultimately decided to give plaintiff more time after speaking with Gehr and that he hoped things would work out. (Stephens. Aff., Doc. 126-10, ¶ 18). Whatever thought Stephens may have given to terminating plaintiff, the undisputed evidence shows that he did not actually decide to terminate her and act on his decision until after she requested leave time to observe the Jewish High Holy Days. The extremely close temporal proximity between plaintiffs leave request and her termination is sufficient to create an inference of a causal connection.

         Whether the temporal proximity between the protected activity and adverse action is construed as one day or four days, defendant has not offered a cogent explanation for why this very brief period of time is insufficient to establish an improper motive for purposes of establishing a prima facie case. The undisputed evidence shows that Stephens decided to terminate plaintiff no more than one work day after she requested time off for the Jewish High Holy Days. There is no evidence that Stephens ever wavered from his initial decision to terminate plaintiff. (Doc. 152 at 4). Stephens simply asserts that he gave the termination decision "more thought" over the two weekend days between plaintiffs request and her actual termination. (Stephens Aff, Doc. 126-10, ¶ 34). Stephens has not pointed to an intervening event that occurred over the weekend which could have produced an alternative motivation for the termination. Plaintiff requested leave on Thursday afternoon, Stephens made the decision the following day to terminate plaintiff and Stephens followed through on his decision less than four full days and no more than two work days later on Monday, August 1. The Sixth Circuit has repeatedly recognized such a brief time period is sufficient to establish causation based on temporal proximity alone.

         In short, plaintiff has come forward with sufficient evidence to establish a prima facie case of First Amendment retaliation based on her termination. In this situation, "where the adverse action comes directly on the heels of the protected activity," it is "nearly impossible to come up with other evidence that the adverse employment action was retaliatory." See Montell v. Diversified Clinical Servs, Inc., 757F.3d 497, 506 (6th Cir. 2014) (citing Mickey, 516 F.3d at 525). Under established Sixth Circuit law, the temporal proximity is sufficient to establish a causal connection between the protected activity and the termination, 3. Defendant's stated reason for the termination

         Because plaintiff has satisfied her burden of production on the elements of her prima facie case, defendant must "show[] by a preponderance of the evidence that [he] would have reached the same decision .. . even in the absence of the protected conduct." Mt. Healthy, 425 U.S. at 287. Defendant alleges he has made the required showing and that he is entitled to summary judgment on plaintiffs First Amendment retaliation claim because he would have taken the same action in the absence of the protected activity. (Doc. 143 at 7). Stephens asserts that he granted every leave request plaintiff made, including her request for leave to observe the Jewish High Holy Days in October and her request in March or April for six days of leave for Passover. (Doc. 143 at 6-7, citing Stephens IC RFA, Doc. 126-7, No. 12; Stephens OC RFA, Doc. 126-8, No. 1; Stephens Aff., Doc. 126-10, ¶¶ 12, 22-25; Pltf. Depo. 1, Doc. 131 at 29). Stephens argues the "evidence is undisputed that [h]e decided to terminate [plaintiff] after once again witnessing and learning of internal strife between [plaintiff] and other members of his personal staff," and plaintiff offers no evidence to refute Stephens's evidence that he would have terminated her regardless of her request. (Doc. 152 at 6).

         There are genuine issues of material fact as to whether Stephens terminated plaintiff for engaging in conduct protected under the First Amendment. First, plaintiff denies that she ever requested time off for the specific purpose of observing the Passover holiday at the start of her employment with Stephens. (Doc. 149 at 5-6, citing Pltf. Depo. I, Doc. 131 at 138-39). Plaintiff testified that she discussed with Stephens "two preplanned weeks" of leave that she had previously arranged to take and that he gave her permission to take the planned leave; however, she contends that she did not tell Stephens that one of the weeks was to observe Passover. (Pltf. Depo. 1, Doc. 131 at 138-39). Further, while Stephens ostensibly gave plaintiff permission to take eight days off in October for the Jewish High Holy Days, he effectively nullified his approval by terminating her only days later. Given the sequence of events, his initial affirmative response to her request is not evidence that Stephens would have terminated plaintiff even if she had not made the request.

         Further, Stephens has not produced evidence that shows plaintiff was reprimanded for her behavior in the workplace or evidence which documents disruptive behavior in the workplace. Plaintiff asserts that she never had a conversation with Stephens about problems getting along with Barger or Wilson (Doc. 149-1, Plaintiff Aff., ¶ 2), she never had a conversation with Barger about communication issues or difficulties getting along with others (Id., ¶ 3), and she had never been reprimanded by Stephens about any issues with her work or her relationship with other chambers' staff members. (Doc. 141-5. Pltf. Aff., ¶ 18). Stephens admits that he never gave plaintiff a verbal or written reprimand about her conduct in chambers. (Stephens OC RFA, Doc. 126-8, No, 5). He concedes that he never spoke to plaintiff about allegedly "butting heads" with or "barking orders"' to Barger; he never witnessed or spoke to plaintiff about an alleged incident where she demanded the scheduling book from Barger; and he never spoke to plaintiff about closing her office door or asked her why she was closing it. (Id., Nos. 9, 10, 14, 15, 17). A reasonable juror could infer from Stephens's failure to reprimand or discipline plaintiff that her termination was not based on her conduct in chambers or her inability to get along with Stephens's personal staff.

         Further, the source of alleged internal strife among personnel in Stephens's chambers is disputed. Stephens admits that he lacked personal knowledge about intra-office strife, the reason he purportedly relied on for terminating plaintiff, and that he instead relied on information relayed to him by Barger. (Stephens OC RFA, Doc. 126-8, Nos. 9-14). Stephens concedes that there was a "'lack of communication on July 27, 2018 [between Barger and plaintiff], which seemed strained," but he had "no personal knowledge whether this situation resulted from a 'refusal' to speak on Plaintiffs part." (Id., No. 11). Plaintiff has submitted affidavit evidence and testimony that she was not the source of strife among Stephens's personal staff but that Barger was the problem. (See Pltf. Aff, Doc. 141-5, ¶ 12; Pltf. Depo. I, Doc. 131 at 82-83, 113-14, 115-16). Defendant has not submitted an affidavit or testimony from Barger to refute plaintiffs allegation. A jury could disbelieve Stephens's highly vague and subjective reason for terminating plaintiff and find based on plaintiffs version of events that she did not cause tension in Stephens's chambers or create any other issues among defendant's personal staff. Cf. Grano v. Dept of Dew of City of Columbus, 699 F.2d 836, 837 (6th Cir. 1983) (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)) (holding in the employment discrimination context that the articulated reasons for the adverse decision "must be 'clear and specific' to rebut the prima facie case and guarantee that the plaintiff will be afforded 'a full and fair opportunity' to demonstrate pretext."). See also Kimble v. Wasylyshyn, 439 Fed.Appx. 492, 497 (6th Cir. 2011) (citing Grano, 699 F.2d at 837) C'[T]he legitimacy of the articulated reason for [an] employment decision is subject to particularly close scrutiny where the evaluation is subjective.").

         4. Conclusion

         There is no dispute that plaintiff engaged in conduct protected by the First Amendment, and Stephens took an adverse action against plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct. There are disputed issues of fact as to whether the adverse action was motivated at least in part by plaintiffs protected conduct so as to satisfy the third element of plaintiff s prima facie case. See Wurzelbacher, 675 F.3d at 583. There are also genuine issues of material fact as to whether defendant Stephens would have terminated plaintiff in the absence of her protected conduct. Accordingly, defendant Stephens is not entitled to summary judgment on plaintiffs First Amendment retaliation claim under § 1983 as a matter of law.

         B. Substantive due process claim against Stephens (Count VI)

         Plaintiff moves for summary judgment on her substantive due process claim brought under § 1983 against defendant Stephens (Doc. 20, Count VI). (Doc. 141). Defendant Stephens opposes plaintiffs motion (Doc. 148) and has filed a cross-motion for summary judgment on the claim (Doc. 143). The issues presented by the parties' summary judgment motions are: (1) whether plaintiffs substantive due process claim is barred as duplicative of her First Amendment retaliation claim, and (2) if not, whether plaintiff has come forward with sufficient evidence to pursue a substantive due process claim against Stephens under an alternative theory of liability.

         1. Procedural background

         Plaintiff brings a claim against defendant Stephens for violation of her substantive due process rights under the Fourteenth Amendment. (Doc. 20, Am. Complt., ¶¶ 110-124, Count VI). Plaintiff alleges that defendant Stephens deprived her of the fundamental rights of property and liberty without due process and arbitrarily abused his power as a government official by terminating plaintiff, a public figure, suddenly and without notice. (Id., ¶ 110-114). Plaintiff alleges that terminating her in this manner created the impression that she had committed a serious violation of procedure, law, or ethics and devastated her reputation in the legal community. (Id., ¶ 112). Plaintiff further alleges that Stephens "published and/or made knowingly false statements" to members of the legal community "that [she] was a poor worker" in that she procrastinated, destroyed work product, was dishonest, was abusive to co-workers, and acted unprofessionally in the workplace. (Id., ¶¶ 115-118). Plaintiff claims that the statements related to her "reputation" and her "professionalism" and "constituted defamation per se." (Id., ¶ 118). Plaintiff alleges that Stephens's statements and continued actions over the course of six or eight months prevented her from obtaining employment and from "continuing in her career." (Id., ¶¶ 116-117, 119). Plaintiff alleges that Stephens used his official power as a sitting judge to discriminate against her and to damage her reputation in the legal community, and he acted with malice, ill-will, and/or a spirit of revenge. (Id., ¶¶ 120-121).

         Judge Barrett issued an Order in this case denying defendant Stephens's motion to dismiss the substantive due process claim against him. (Doc. 40; see Edelstein v. Stephens, No. 1:17cv305, 2018 WL 1558868, at *4 (S.D. Ohio Mar. 31, 2018). Judge Barrett addressed plaintiffs substantive due process claims against each of the individual defendants. He recognized that "substantive due process only protects a narrow class of interests, including those enumerated in the Constitution, those so rooted in the traditions of the people as to be ranked fundamental, and the interest in freedom from government actions that shock the conscience." Id. (citations and internal quotations omitted). Judge Barrett summarized the governing law as follows:

The Sixth Circuit has explained that "a person's reputation, good name, honor, and integrity are among the liberty interests protected by the due process clause of the [F]ourteenth [A]mendment." Parrino v. Price, 869 F.3d 392, 398 (6th Cir. 2017) (quoting Quinn v. Shirey, 293 F.3d 315, 319 (6th Cir. 2002)). "To establish a deprivation of a protected liberty interest in the employment context, [the plaintiff] must "demonstrate stigmatizing governmental action which so negatively affects [her]... reputation that it effectively forecloses the opportunity to practice a chosen profession." Id. (quoting Joelson v. United States, 86 F.3d 1413, 1420 (6th Cir. 1996)). The plaintiff must also have alleged "that the stigmatizing information was publicly disclosed."

Id. Judge Barrett found that plaintiff had stated a claim for violation of her substantive due process rights by Stephens because she alleged in the amended complaint that:

Stephens terminated Plaintiffs employment in a manner which "created the impression that Plaintiff had committed a serious violation of procedure, law or ethics and devastated Plaintiffs reputation in the legal community/' (Doc. 20, ¶¶ 86-87). Plaintiff alleges further that Defendant Stephens "published and/or made statements to third parties that Plaintiff was a poor worker" and "made derogatory comments about Plaintiff to members of the legal community." (Doc. 20, ¶¶ 90, 91). Plaintiff claims that "[t]hese comments resulted in Plaintiff being unable to secure employment and effectively prevented Plaintiff from continuing in her career." (Doc. 20, ¶¶ 92). Therefore, the Court concludes that Plaintiff has adequately alleged a substantive due process claim based on the termination of her employment, (citation omitted).

Id. at *4.

         Judge Barrett did not explicitly address whether plaintiffs allegations against defendant Stephens supported a claim under the "shocks the conscience" standard of the substantive Due Process Clause, but he addressed whether statements allegedly made by defendants Gmoser and Ferguson satisfied the standard. Id. at *5. Judge Barrett found the following statements do not rise to the "conscience-shocking level": (1) allegedly false statements made by Gmoser in bad faith which he knew to be false or made with reckless disregard for the truth, about plaintiffs work performance, which he published to a potential employer of plaintiff, that her "work was 'disjointed'; that he had trouble 'getting stuff back from her on foreclosures'; and he 'had a problem getting things'" (Doc. 20, ¶¶ 191, 197); and (2) Ferguson's response to a potential employer when asked his opinion about Edelstein that, "Oh she's horrible" (Id., ¶ 208). Edelstein, 2018 WL 1558868, at *5. Judge Barrett found that plaintiff had, however, stated a claim for violation of her substantive due process rights under Counts VI, VII, and VIII to the extent her claim "is based upon a deprivation of a protected liberty interest in the employment context." Id. at *6.

         2. Plaintiffs substantive due process claim based on the exercise of her First Amendment right

         Plaintiff alleges that Stephens violated her substantive due process rights when he terminated plaintiff after she requested time off to observe the Jewish High Holy Days. (Doc. 141 at 4-5). Plaintiff alleges she has a liberty interest "in not being denied employment for exercising her First Amendment right." (Id. at 5; see Adkins v. Bd of Educ. of Magoffin Cty, 982 F.2d 952, 955 (6th Cir. 1993)). Plaintiff argues that she must establish two material facts to prevail on her claim that Stephens violated the substantive Due Process Clause by terminating her for exercising a First Amendment right: (1) a First Amendment right existed, and (2) she was terminated for exercising a First Amendment right. (Doc. 141 at 5). She alleges there is no dispute that the right to observe her "religious holidays free from the interference of the government or government officials" is a right guaranteed under the Free Exercise Clause of the First Amendment. (Id. at 5). Plaintiff further alleges there is no dispute that she was "denied employment for exercising a First Amendment right." (Id.). She alleges that the law does not require her to show more and to establish that Stephens acted with a discriminatory motive to establish her substantive due process claim. (Id. at 10). Plaintiff alleges that the reasons Stephens gave for her termination - problems between plaintiff and other members of Stephens's staff- were fabricated after the fact and show there is no dispute that the reason she was terminated is because she "attempted to exercise her right to observe her religion." (Id. at 9).

         In response. Stephens argues that plaintiff is not entitled to summary judgment on her substantive due process claim against him because the claim is duplicative of plaintiff s claim for First Amendment retaliation. (Doc. 148 at 3-5). Stephens asserts that when a more specific constitutional provision applies, a cause of action cannot be based on a deprivation of substantive due process. (Doc. 148 at 4, citing Albright v. Oliver, 510 U.S. 266, 273 (1994) ("Where a particular Amendment 'provides an explicit textual source of constitutional protection' against a particular sort of government behavior, 'that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims."') (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)); Brandenburg v. Hous. Auth. of Irvine, 253 F.3d 891 (6th Cir. 2001) ("Any claim for a violation of Brandenburg's substantive due process right to free speech is duplicative of her First Amendment retaliation claim," so that the district court correctly held the defendant was entitled to judgment as a matter of law on the plaintiffs substantive due process claim.)).

         Plaintiff alleges in reply that she has demonstrated "she was deprived of a particular constitutional guarantee." (Doc. 155 at 6). Plaintiff contends that "[t]he substantive due process claim in Count VI. . . arises from [the alleged] First Amendment violation, as Stephens created a false reason for the termination (pretext) that resulted in an unjustified label of infamy and a substantive due process violation/' (Id. at 8). Plaintiff asserts that under the case law, she has a liberty interest in her reputation and career and in the right to "practice [her] profession without the burden of an unjustified label of infamy. . . ” (Doc. 155 at 9, quoting Joelson, 86 F.3d at 1420). Plaintiff alleges that Stephens has "placed a label of infamy on [her] that precluded [her] from practicing her profession and from having an active and successful career" by "putting forth a pretext for the termination, i.e. that she was abusive to co-workers, procrastinated to the detriment, not just of her employer, but of the entire Court," and that, because of her personality, she "could not 'get along' with the other members of his staff." (Id. at 9, 12). Plaintiff alleges she is not precluded from bringing a substantive due process claim for violation of her First Amendment rights because the two claims she brings are "not alternative claims, but distinct claims." (Id. at 9-12). Plaintiff concedes that both claims are based on the same event - "a discriminatory termination" - and that both claims address "the real reason for the termination and Stephens' fabricated reason for the termination." (Id. at 13). She asserts, though, that the claims differ because her substantive due process claim also addresses "the stigmatizing aspects of the termination as a result of the sudden and unprofessional manner in which plaintiff was terminated." (Id.).

         Stephens distinguishes the authority plaintiff cites for the proposition that a First Amendment right may constitute a liberty interest protected under the Due Process Clause. Defendant argues that first, while Adkins "seemingly recognizes a liberty interest in not being denied public employment for exercising one's First Amendment rights," the case involved only a First Amendment claim and not a due process claim. (Doc. 148 at 4-5, citing Adkins, 982 F.2d at 955). In addition, Stephens contends that the language from Adkins on which plaintiff relies comes from the decision in Jackson v. City of Columbus, 67 F.Supp.2d 839, 858 (S.D. Ohio 1998), which cites Adkins but found a liberty interest in a First Amendment right in the context of procedural rather than substantive due process claims. Id. at 5 (citing Jackson, 67 F.Supp.2d at 858). Defendant alleges that "all cases citing Jackson for this proposition have similarly applied it only in the context of procedural-due-process deprivations." (Id., citing Ellsworth v. City of Lansing, 205 F.3d 1340 (table), 2000 WL 191836 (6th Cir. Feb. 10, 2000); Karuna v. Kellogg, No. 00-cv-694, 2001 U.S. Dist. LEXIS 23944, *49-50 (D. Or. Nov. 21, 2001); Ritchie v. Coldwater Cmty. Sch., No. 1:1 l-cv-530, 2012 WL 2862037 (W.D. Mich. July 11, 2012)).

         The law is well-settled that, "[w]here a particular Amendment 'provides an explicit textual source of constitutional protection' against a particular sort of government behavior, 'that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.7" Albright, 510 U.S. at 273 (quoting Graham, 490 U.S. at 395); see also Brandenburg, 253 F.3d at 900; H.M. v. Bd. of Educ. of the Kings Loc. Sch. Dist, No. 1:14-cv-64, 2015 WL 4624629, at *3 (S.D. Ohio Aug. 3, 2015) (citing County of Sacramento v. Lewis, 523 U.S. 833, 840 (1998); Estate of Dietrich v. Burrows, 167 F.3d 1007, 1013 (6th Cir. 1999)). The Sixth Circuit has consistently adhered to this rule. See Thaddeus-X, 175 F.3d at 387 (citing Albright, 510 U.S. at 273) (quoting in turn Graham, 490 U.S. at 395). See also Handy-Clay, 695 F.3d at 547. The Sixth Circuit has explicitly held that "[a]ny claim for a violation of [a] substantive due process right to free speech is duplicative of [a] First Amendment retaliation claim." Id. at 547 (quoting Brandenburg, 253 F.3d at 900) (citation omitted)). Thus, a free speech retaliation claim must be pursued under the First Amendment and cannot be evaluated under substantive due process standards. Id. (citing Thaddeus-X, 175 F.3d at 387). See also Williams v. Luttrell, CIV.A. 06-2777, 2007 WL 3236662, at *8 (W.D. Tenn. Nov. 1, 2007) ("In this case, it appears that the Plaintiffs Fourteenth Amendment substantive due process claim is based on his allegation that the Defendant retaliated against him for exercising his First Amendment rights. As such, it is duplicative of his First Amendment claim and must therefore be dismissed.").

         Plaintiff premises her substantive due process claim against Stephens on a liberty interest under the First Amendment. Under the well-settled law, plaintiffs claim for deprivation of her liberty interest as guaranteed by the First Amendment must be analyzed under that specific constitutional provision. Plaintiff cannot base her cause of action on the substantive Due Process Clause given that a more specific constitutional provision applies. Plaintiffs substantive due process claim is duplicative of her First Amendment claim insofar as she claims a deprivation of a liberty interest rooted in the First Amendment, and her substantive due process claim is therefore foreclosed by controlling precedent.

         3. Plaintiffs substantive due process claim based on a liberty interest in her reputation

         Plaintiff also alleges that Stephens violated her substantive due process rights when he terminated plaintiff "in such a manner as to ruin her reputation and cause her to be stigmatized to the extent she was unemployable:' (Doc. 141 at 4-5). Plaintiff claims that Stephens deprived her of a liberty interest in her reputation and career. (Id. at 10, citing Joelson, 86 F.3d at 1420). Plaintiff claims her termination was "stigmatizing" because she was "a public official" of Butler County who "dealt with the legal community through phone calls, emails and in-person appearances." (Id. at 11, citing Pltf. Aff, Doc. 141-5, ¶ 20). She alleges that "[t]erminations from court positions were 'unusual'" and do not occur "very often." (Id., citing Judge Keith Spaeth Depo., Doc. 135 at 13; see also Tammy Maxwell Depo., Doc. 133 at 32, 41 (knew of two terminations in the 22 years she worked in the court); Yates Depo. I, Doc. 136 at 24 (knew of two terminations in 14 years)). Plaintiff contends that her termination was "the talk" around the courthouse for a few days. (Doc. 141 at 12, citing Spaeth Depo., Doc. 135 at 13, 15).[5] She alleges that attorneys expressed surprise that she had not been given notice or allowed to resign because "this type of termination is generally considered unprofessional among lawyers and reserved for instances when the employee has committed wrongdoing." (Id., citing Doc. 141-5, Pltf. Aff., ΒΆ 23; Maxwell Depo., Doc. 133 at 38, 39). Plaintiff ...


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