United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
L. LITKOVITZ, UNITED STATES MAGISTRATE JUDGE
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).
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).
matter is before the Court on the following summary judgment
• 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).
Summary judgment standard
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)).
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).
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).
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.
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).
Disputed and undisputed facts
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.
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). Plaintiff was
an at-will employee who served at the pleasure of Judge
Stephens. (Id., ¶ 8).
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., ¶
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).
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).
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. (Doc. 141-5,
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).
The parties' entitlement to summary judgment on the
First Amendment right to free exercise of plaintiffs religion
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.
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)).
First Amendment law
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).
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)).
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)).
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).
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).
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.
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).
Plaintiff's prima facie case
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)).
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.).
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
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
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
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.
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.
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
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).
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.
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.
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.").
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.
Substantive due process claim against Stephens (Count
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
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).
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
Id. at *4.
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.
Plaintiffs substantive due process claim based on the
exercise of her First Amendment right
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).
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.)).
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.).
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)).
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.").
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.
Plaintiffs substantive due process claim based on a liberty
interest in her reputation
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). 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., ¶ 23; Maxwell Depo., Doc. 133 at 38, 39).