Haynes v. City of Circleville, Ohio

• Decision Date: 25 January 2007
• Docket Number: No. 06-3070.,06-3070.
• Citation: 474 F.3d 357
• Parties: David H. HAYNES, Plaintiff-Appellee, v. CITY OF CIRCLEVILLE, OHIO et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

474 F.3d 357

David H. HAYNES, Plaintiff-Appellee, v. CITY OF CIRCLEVILLE, OHIO et al., Defendants-Appellants.

No. 06-3070.

United States Court of Appeals, Sixth Circuit.

Argued: December 6, 2006.

Decided and Filed: January 25, 2007.

ARGUED:

John T. McLandrich, Mazanec, Raskin & Ryder, Cleveland, Ohio, for Appellants. James R. Kingsley, Circleville, Ohio, for Appellee.

ON BRIEF:

John T. McLandrich, David J. Sipusic, Mazanec, Raskin & Ryder, Cleveland, Ohio, for Appellants. James R. Kingsley, Circleville, Ohio, for Appellee.

Before: BATCHELDER, GILMAN, and SUTTON, Circuit Judges.

OPINION

RONALD LEE GILMAN, Circuit Judge:

David H. Haynes, a former City of Circleville police officer and handler for the police department's canine unit, filed suit against the City and Police Chief Harold Wayne Gray, Jr. in the Pickaway County (Ohio) Court of Common Pleas. He alleged a violation of Ohio's whistleblower statute, a violation of common law public policy, and retaliatory discharge for exercising his First Amendment rights. Haynes contends that he was fired for protesting proposed cutbacks in canine training. He asserted that this reduction in training was likely to cause an imminent risk of physical harm to the public. The defendants removed the lawsuit to the United States District Court for the Southern District of Ohio, where they subsequently moved for summary judgment on all of the claims against them. Chief Gray also raised the defense of qualified immunity.

The district court granted the defendants' motion as to Haynes's state-law claims, but denied the motion as to the First Amendment retaliation claim. Chief Gray timely filed an interlocutory appeal for review of the court's decision to deny him the defense of qualified immunity. For the reasons set forth below, we REVERSE the district court's judgment as to Chief Gray and REMAND with instructions to dismiss the First Amendment claim as to both defendants.

I. BACKGROUND

A. Factual background

In April of 1991, Circleville hired Haynes as a patrolman. The City authorized the creation of a canine unit in 1996. Haynes claims that Circleville's decision to do so was based at least in part on research and input from both himself and former Chief of Police John Kinney. Chief Gray replaced Chief Kinney in January of 1999. According to Haynes, the canine unit is classified as part of the patrol unit, so Haynes was still considered a patrolman as well as a canine handler from the time the canine unit was created. Haynes and Circleville entered into a separate employment agreement to cover Haynes's duties as a canine handler. This agreement was an addendum to the collective bargaining agreement between the Ohio Patrolmen's Benevolent Association and Circleville that covered Haynes's duties as a patrolman.

When the canine unit was created, Haynes was paired with a dog named Bronco for approximately three and a half years. Haynes worked as a patrol officer for 28 hours per week and spent 12 hours per week training his dog. The canine training took place at Wachtmeister Canine Training, Ltd. in Dublin, Ohio, and the 12 hours of weekly training generally occurred during the course of one day. According to Haynes, he and Bronco routinely spent no more than 4 hours of the day in Dublin on actual training. Haynes occasionally spent more than 12 hours per week at Wachtmeister, including time spent for travel and meals. He was paid for all of this additional time.

Haynes resigned from the Circleville police force in the fall of 2000 in order to serve a one-year tour of duty in Kosovo as a police monitor with the U.S. State Department. Upon his return to Ohio in the fall of 2001, Chief Gray rehired Haynes in his former patrol and canine-handler capacities. Haynes claims that Circleville considered him to be the administrator of the canine program, in addition to being a handler, from October of 2002 through January of 2003.

In February of 2003, Chief Gray instituted a cost-containment measure under which canine handlers and their dogs were allowed to train at Wachtmeister only once every three weeks rather than weekly. Chief Gray also informed Haynes that the maximum compensation for any training day spent in Dublin would be limited to eight hours, including travel time.

Haynes was upset with this turn of events, prompting him to write a long memo to Chief Gray that expressed his displeasure at the reduction in training. The February 24, 2003 memo stated in pertinent part as follows:

Now we are about to change boats mid-stream and I expect that there will be serious negative consequences for doing so. Words like "deliberate indifference," "negligence" and "failure to train" will someday be brought up with respect to the Circleville Police Department's Canine Program. My response will be, "I told them so."

. . .

You know, or should know, that any deviation from the old training regime will probably result in an expensive learning experience. But I will not be paying the bill. You have received my last words of caution. It is all on you now — I hope nothing bad comes of it. I will train K9 Rex in accordance with this new plan, no overtime on Dublin weeks and no more than 2 hours on Circleville weeks — 172 hours per year. It will be interesting.

. . .

I guess that despite the fact that I trained the dog; have over 6,000 hours of Canine Training experience, over 15 years of Law Enforcement experience does not warrant a consultation.

Chief Gray responded by letter on February 27, 2003, addressing Haynes's concern about the cutbacks in training in some detail. He offered Haynes the choice of complying with the new training parameters or resigning from his position as a canine handler. Shortly thereafter, a scheduling officer called Haynes on a day when his shift was close to starting and asked him to report for duty and assist with a drug search. Haynes refused to come in. The parties dispute why he refused. Haynes claims that he was feeling the effect of withdrawal from Paxil, a prescription antidepressant medication, and was unfit to come in to work. The officer who called Haynes, on the other hand, said that Haynes flatly refused to come in, without explanation, and told the officer "that's just the way it goes." After Haynes refused to report for work, Chief Gray relieved Haynes of his duties as a canine handler.

Chief Gray subsequently placed Haynes on administrative leave as of March 10, 2003 and ordered a psychological evaluation. The psychological evaluation was scheduled for March 13, 2003. Under Ohio law, "[a]n appointing authority may require that an employee submit to medical or psychological examinations." Ohio Admin. Code 123:1-33-01 (2004). An employee's "refusal to submit to an examination, the unexcused failure to appear for an examination, or the refusal to release the results of an examination amounts to insubordination, punishable by the imposition of discipline up to and including removal." Id. Haynes notified Chief Gray that he would not submit to the examination until he had time to seek the advice of his attorney, although he was not "refusing" to participate in the evaluation.

Later in the day on March 10, 2003, officers went to Haynes's house to pick up his canine equipment. Haynes gave the officers a box wrapped in Christmas paper that contained the equipment. Affixed to the box was a Daffy Duck tag addressed to Chief Gray that read "Do not open until Christmas." Haynes described this action as "controlled venting."

B. Procedural background

On March 12, 2003, Haynes notified Chief Gray that he was filing a labor grievance with the City and with the Circleville Police Department, claiming that there had been no cause to remove him from his canine-handler duties, to place him on administrative leave, or to order him to submit to a psychological evaluation. The record does not reflect the outcome of this grievance procedure, or whether a formal grievance was even filed.

Chief Gray notified Haynes on March 18, 2003 that Haynes would be subject to a pre-disciplinary hearing on March 24, 2003. The purpose of the hearing was to give Haynes a chance to respond to the following allegations of misconduct: multiple counts of insubordination, neglect of duty, unsatisfactory performance, disrespect, failure to report to duty as required, conduct unbecoming an officer, and sick-leave violations. Haynes's attorney asked for a one-day continuance, which was granted. In the interim, Haynes's attorney proposed a settlement under which Haynes would resign as a canine handler but would retain his job as a patrolman. The attorney's settlement letter stated that "[i]t is unfortunate that what was intended to be a thoughtful, provocative, intelligent exchange of information to work out a training disagreement was perceived and misapprehended to be a `threat.'" Whether any settlement discussions actually took place is not reflected in the record.

The disciplinary hearing took place as rescheduled on March 25, 2003. Haynes explained that the intent of his February 24, 2003 memo was not to be insubordinate, but to "cover his rear end in court" should there be legal ramifications as a result of the reduced canine training. Haynes and Chief Gray discussed the other allegations in detail, concluding with Chief Gray noting that "the situation we're in has caused a lot [of] turmoil and a lot of problems for our department." Circleville terminated Haynes's employment the next day.

Haynes filed suit in the state Court of Common Pleas against Chief Gray and Circleville in November of 2003, asserting a claim under Ohio Rev.Code Ann. § 4113.52 (Ohio's whistleblower statute), a violation of common law public policy, and a claim for retaliatory discharge based on the exercise of his First Amendment rights. The defendants removed the suit to federal court. They later moved for summary judgment on all claims. Particularly relevant to this appeal, Chief Gray argued that ...