448 F.3d 887 (6th Cir. 2006), 05-5981, Miller v. Administrative Office of Courts

Docket Nº:05-5981.
Citation:448 F.3d 887
Party Name:Beverly L. MILLER, Plaintiff-Appellant, v. ADMINISTRATIVE OFFICE OF THE COURTS, Judge Thomas B. Wine, in his individual capacity, Tim Vize, in his individual and official capacities, and Judge James M. Shake, in his official capacity, Defendants-Appellees.
Case Date:May 23, 2006
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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448 F.3d 887 (6th Cir. 2006)

Beverly L. MILLER, Plaintiff-Appellant,

v.

ADMINISTRATIVE OFFICE OF THE COURTS, Judge Thomas B. Wine, in his individual capacity, Tim Vize, in his individual and official capacities, and Judge James M. Shake, in his official capacity, Defendants-Appellees.

No. 05-5981.

United States Court of Appeals, Sixth Circuit.

May 23, 2006

Argued: April 26, 2006

Rehearing and Rehearing En Banc Denied Aug. 25, 2006.

Appeal from the United States District Court for the Western District of Kentucky at Louisville. No. 01-00339—Charles R. Simpson III.

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[Copyrighted Material Omitted]

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COUNSEL

ARGUED:

Thomas E. Clay, CLAY, KENEALY, WAGNER & ADAMS, Louisville, Kentucky, for Appellant.

Cynthia Blevins Doll, WYATT, TARRANT & COMBS, Louisville, Kentucky, Robert E. Stopher, BOEHL, STOPHER& GRAVES, Louisville, Kentucky, Margaret EM. Keane, GREENEBAUM, DOLL & McDONALD, Louisville, Kentucky, for Appellees.

ON BRIEF:

Thomas E. Clay, CLAY, KENEALY, WAGNER & ADAMS, Louisville, Kentucky, for Appellant.

Cynthia Blevins Doll, Lisa C. DeJaco, WYATT, TARRANT & COMBS, Louisville, Kentucky, Robert E. Stopher, Robert D. Bobrow, BOEHL, STOPHER & GRAVES, Louisville, Kentucky, Margaret E.M. Keane, Melissa Norman Bork, Laurel S. Doheny, GREENEBAUM, DOLL & McDONALD, Louisville, Kentucky, for Appellees.

Before: SUHRHEINRICH, GILMAN, and ROGERS, Circuit Judges.

OPINION

RONALD LEE GILMAN, Circuit Judge.

After Beverly Miller was fired from her job of over 24 years as the jury-pool manager for Jefferson County, Kentucky, she sued the Administrative Office of the Courts (AOC) as well as various county officials. She alleged a First Amendment violation on the basis that her termination was in retaliation for bringing to light various administrative problems, and further claimed that she was deprived of her right to due process because she was not afforded notice or an opportunity to be heard prior to her termination. Miller also brought a claim under the Kentucky Whistleblower Act.

The district court dismissed the claims against the individual defendants in their official capacities and against the AOC on the basis of Eleventh Amendment sovereign immunity. Miller's claims against the officials in their individual capacities were dismissed on the basis of qualified immunity. She now appeals the dismissal of her individual-capacity claims and the dismissal of her Kentucky Whistleblower Act claim. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

A. Factual background

1. Miller's employment as jury-pool manager

In 1976, Miller was hired to serve as the jury-pool manager for Jefferson County, Kentucky by then-Chief Judge Michael McDonald. She reported directly to the Chief Judge. Miller retired in 1999, but soon thereafter was reappointed to the same job. Instead of being called the "jury-pool manager" after her reappointment, however, Miller was classified as a "professional-services supervisor." But her pay did not change, and she performed the same duties managing the jury pool. She continued to perform these duties until she was fired on April 24, 2001.

The issue of whether Miller served as a tenured or nontenured employee was a "difficult" one, according to the district court. Judge McDonald, who hired Miller, testified that the position was tenured. He said that the position was essential to the operation of the court and should not be subject to replacement with each new chief judge. Her appointment letter, however, stated that Miller was "to serve at the pleasure of the Court." Miller argues

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that, in addition to Judge McDonald's intent to hire her as a tenured employee, two other sources of information show that she was a tenured employee: the Court of Justice (COJ) policies and the CO J Personnel Documents.

The COJ policies state that they apply to employees and officials unless a "specific exception [is] clearly indicated." AOC Director Cicely Lambert testified that this provision sets up a system whereby employees of the AOC are considered to be tenured unless they are specifically listed in the "exceptions" portion of the rule. Job classifications like "secretaries for judges in all courts," "law clerks and staff attorneys," and "trial court administrators" are listed among the exceptions. The defendants argue that Miller falls under the exception for the job classification of "trial court administrators," even though her official title was "jury-pool manager" and later "professional-services supervisor."

Under the COJ policies, tenured employees are entitled to various pre-termination procedures, but nontenured employees "serve at the pleasure of their respective appointing authority" and are not so entitled. The defendants acknowledge that Miller was not afforded the pre-termination procedures required for tenured employees, but insist that she was not tenured and therefore not entitled to those procedures.

In addition to the COJ policies, Miller points to the fact that she served a probationary period, a requirement only for tenured employees. She also claims that her annual pay increment was inconsistent with the COJ policies regarding nontenured employees.

The defendants, on the other hand, highlight that Miller has conceded that she was not a "classified" or "merit" employee under Kentucky Revised Statutes Chapter 18A. Under Chapter 18 A, these types of employees are considered to be tenured and are entitled to the pre-termination procedures. Ky. Rev. Stat. § 18A.095(3). Miller calls this argument a "red herring," contending that the appropriate places to look to determine the tenured status of a COJ employee are the COJ policies and the employee's personnel file, not the listings in Chapter 18A.

2. The nature of Miller's complaints that allegedly resulted in her termination

In her complaint, Miller alleges that her termination resulted from two separate communications that she initiated about issues of court administration. One involved her complaints regarding "fraud, waste, and mismanagement in the conduct of the Chief Court Administrator Tim Vize and the Court Administrator Roger McCubbins" that "direct[ly] resulted]" in her termination, in violation of the Kentucky Whistleblower Act. The other concerned an email she sent regarding the loss of privately donated funds, allegedly causing her termination in violation of her right to free speech under the First Amendment. These two sets of allegations will be addressed in turn.

a. Miller's complaints regarding Vize and McCubbins

Miller claims that she disclosed to Chief Judge Wine, AOC Director Lambert, Vize, and others, both verbally and in writing, that Vize and McCubbins "were being paid to perform duties with respect to the jury pool which they, in fact, had never performed." The job descriptions for "Chief Court Administrator" and "Court Administrator" have two relevant sections—"Characteristics of the Class" and "Examples of Duties." Under the "Characteristics of the Class" heading, both descriptions state that the employee "performs highly responsible

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duties in . . . jury management." Then, as an example of these duties, both descriptions state that the employee "[ajssists in the calling and pooling and coordination of jurors, answers public inquiries and individual juror complaints and questions, distributes and handles juror questionnaires."

Miller sent a letter on April 23, 2001 to Judge Wine, Vize, McCubbins, and others highlighting that these duties were not being performed. Specifically, she stated: "As you know, for over 20 years, the Court Administrators in Jefferson County have not performed these duties assigned by AOC."

b. Miller's complaint regarding the loss of privately donated funds

On April 19,2001, Miller sent an email message to over 3 5 recipients, including Judge Wine, the AOC, and the judges of Jefferson County. The substance of this email—titled "Loss of funding for new orientation video"—is set forth below:

In February, 1999, I applied for grant money from the Louisville Bar and Kentucky Bar Foundations for the purpose of updating our jury orientation film. Several other people put a lot of time and effort into securing money for this project, including former Chief Circuit Judge Jeff Morris, Chief District Judge Bill Ryan, Judge William Knopf, Dan Goyette, Creighton Mershon, Bill Schneider and others.

We were awarded money from both Foundations (as a joint venture) in spring of 1999. Unfortunately, the timing coincided with the loss of staff in our office which left us critically understaffed for over a year. In September we were assigned a clerk but our staffing shortage...

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