Weisbarth v. Geauga Park Dist.

• Decision Date: 24 August 2007
• Docket Number: No. 06-4189.,06-4189.
• Citation: 499 F.3d 538
• Parties: Denise WEISBARTH, Plaintiff-Appellant, v. GEAUGA PARK DISTRICT, Betty Cope, Robert McCullough, Mark Rzeszotarski, Tom Curtin, Keith McClintock, Richard Sherwood, and David Kessler, Sr., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

499 F.3d 538

Denise WEISBARTH, Plaintiff-Appellant, v. GEAUGA PARK DISTRICT, Betty Cope, Robert McCullough, Mark Rzeszotarski, Tom Curtin, Keith McClintock, Richard Sherwood, and David Kessler, Sr., Defendants-Appellees.

No. 06-4189.

United States Court of Appeals, Sixth Circuit.

Argued: July 24, 2007.

Decided and Filed: August 24, 2007.

ARGUED: Joseph M. Hegedus, Ohio Patrolmen's Benevolent Assn., Columbus, Ohio, for Appellant. David S. Kessler, Blaugrund, Herbert & Martin, Dublin, Ohio, for Appellees. ON BRIEF: Joseph M. Hegedus, Ohio Patrolmen's Benevolent Assn., Columbus, Ohio, Kevin P. Powers, Ohio Patrolmen's Benevolent Assn., North Royalton, Ohio, for Appellant. David S. Kessler, Blaugrund, Herbert & Martin, Dublin, Ohio, Stephen P. Postalakis, Blaugrund, Herbert & Martin, Worthington, Ohio, for Appellees.

Before: COLE and GILMAN, Circuit Judges; MARBLEY, District Judge.^*

OPINION

RONALD LEE GILMAN, Circuit Judge.

Denise Weisbarth, a park ranger for the Geauga Park District (GPD) in Geauga County, Ohio, was fired from her job in September of 2004. Following her termination, Weisbarth filed a First Amendment retaliation action pursuant to 42 U.S.C. § 1983, asserting that the GPD fired her due to comments she had made to a consultant hired by the GPD to interview employees as part of a departmental evaluation. The district court dismissed her complaint for failure to state a claim that she had engaged in speech protected by the First Amendment. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

A. Factual background

Weisbarth began her employment with the GPD as a part-time park ranger in 1997. She became a full-time park ranger in 2003. Under Ohio law, park rangers are fully commissioned police officers. Ohio Rev.Code Ann. § 1545.13(B). During her tenure as a park ranger, Weisbarth led an initiative to institute a canine-handling team and subsequently became the department's official canine handler.

Weisbarth alleges that the Ranger Department as a whole began suffering "serious morale and performance problems" in 2003. Management responded to these problems in October of 2003 by hiring Richard Sherwood, a paid consultant, to evaluate the department. As part of Sherwood's evaluation, he rode along with Weisbarth in her patrol vehicle during one of her shifts. Weisbarth's First Amendment claim is based exclusively on the conversation that took place during this ride-along.

The first topic that Weisbarth discussed with Sherwood was a disciplinary "letter of counseling" that Weisbarth had recently received. Weisbarth told Sherwood that she intended to write her own rebuttal letter for placement in her personnel file. Sherwood allegedly told Weisbarth that he thought this proposed course of action would be unwise and contrary to "team efforts."

The second topic discussed by Weisbarth and Sherwood concerned "morale and performance problems within the Ranger Department." Weisbarth claims that, when she answered Sherwood's questions about these topics honestly, Sherwood "reported her comments to Geauga Park District as expressing a personal dislike for nearly all of her co-workers." At oral argument before the district court regarding the GPD's motion to dismiss, Weisbarth's counsel clarified that this ride-along conversation was the sole basis for Weisbarth's First Amendment claim, and that Sherwood had, as part of his departmental evaluation, spoken with all department employees individually.

The remainder of Weisbarth's complaint sets forth her subsequent interactions with the GPD management that led up to her termination. She contends that, as a result of her ride-along discussions with Sherwood, he labeled her a "source of `friction'" and developed a "strategy" for getting her fired. This strategy was allegedly put into action when Weisbarth experienced a family crisis and left town without notifying her supervisors. Upon her return, a "heated" meeting took place at which Weisbarth was questioned about her failure to provide notification prior to her absence. According to the complaint, "Weisbarth became emotional and allegedly slammed open a couple of doors as she left the meeting."

The GPD ordered psychological testing for Weisbarth in the aftermath of this meeting, and the examining psychologist found her to be unfit for duty. Weisbarth, however, obtained a second psychological evaluation through the employees' union, and that psychologist reached the opposite conclusion. In response, the GPD ordered Weisbarth to see a tie-breaking third psychologist. The third psychologist agreed with the first psychologist's assessment and found Weisbarth unfit for duty. Weisbarth was fired in September of 2004, shortly after this third evaluation. She claims that the two psychologists who found her unfit for duty conspired with the GPD, and that the real motive for her termination was her allegedly protected speech to Sherwood during the ride-along.

Weisbarth filed a grievance through her union, and the arbitrator ultimately agreed with her position. Although the arbitrator concluded that Weisbarth "should be reinstated," he also suggested that, in light of their differences, the parties "may wish to sit down and work out a separation arrangement." The record does not disclose Weisbarth's current employment status.

B. Procedural background

Weisbarth filed this § 1983 action in the United States District Court for the Northern District of Ohio in December of 2005. The defendants thereafter filed motions to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, alleging that Weisbarth had failed to state a claim that she engaged in speech protected under the First Amendment. Included in the GPD's motion to dismiss were transcripts of the testimony offered at Weisbarth's earlier arbitration hearing. Our review of that material, however, reveals that it does not further elucidate the central issue in this case regarding Weisbarth's ride-along discussion with Sherwood. The transcripts instead illustrate numerous occurrences both before and after the ride-along that caused the deterioration of Weisbarth's relationship with the GPD, such as her alleged role in a dog-bite incident and in the improper disposal of a racoon — events about which Weisbarth ultimately took (and passed) a polygraph examination. In her brief, Weisbarth also highlights testimony from the arbitration hearing indicating that she had been elected as the representative of the Ranger Department's employee union, but that fact appears to be otherwise unrelated to her claim.

The district court held a hearing to address the various defendants' motions to dismiss in August of 2006. After hearing arguments from the parties, the court issued a detailed ruling from the bench, dismissing Weisbarth's complaint. The court subsequently filed a written dismissal order that simply incorporated its earlier oral ruling. Weisbarth timely filed the present appeal from the district court's dismissal order.

II. ANALYSIS

A. Standard of review

A district court's dismissal of a complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is reviewed de novo. Weiner v. Klais & Co., 108 F.3d 86, 88 (6th Cir.1997). All well-pled allegations of the complaint are taken as true. Id. "A complaint must contain either direct or inferential allegations with respect to all material elements necessary to sustain a recovery under some viable legal theory." Id. This court conducts essentially the same analysis as the district court in that "we take the plaintiff's factual allegations as true and if it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim[ ] that would entitle [her] to relief, then . . . dismissal is proper." Id. (quotation marks omitted) (ellipses in original).

Recently, however, the Supreme Court revised the "no set of facts" portion of the Rule 12(b)(6) standard in Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). Twombly held that the "famous" no-set-of-facts formulation "has earned its retirement," and instead dismissed the plaintiff's antitrust-conspiracy complaint because it did not contain facts sufficient to "state a claim to relief that is plausible on its face." Id. at 1974 (emphasis added). Significant "uncertainty as to the intended scope of the Court's decision [in Twombly]" persists, however, particularly regarding its reach beyond the antitrust context. Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007) (applying the plausibility standard in the context of a motion to dismiss Iqbal's § 1983 claims based on qualified immunity).

The Second Circuit in Iqbal closely analyzed the text of Twombly and determined that it

is not requiring a universal standard of heightened fact pleading, but is instead requiring a flexible "plausibility standard," which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible. Id. (emphasis in original). Iqbal thus held that Twombly's plausibility standard did not significantly alter notice pleading or impose heightened pleading requirements for all federal claims. Instead, Iqbal interpreted Twombly to require more concrete allegations only in those instances in which the complaint, on its face, does not otherwise set forth a plausible claim for relief. See Iqbal, 490 F.3d at 169-70 (determining that Iqbal's excessive-force claim — premised on supervisor liability — did not require Iqbal to plead "subsidiary facts" concerning the warden's knowledge because "it [was] at least plausible that a warden would know of mistreatment inflicted by those under his command"); see also Collins v. Marva Collins Preparatory Sch., No. 1:05cv614, 2007 WL 1989828, at *3 n. 1 (S.D.Ohio July 9, 2007) (noting that eight federal district courts in the Sixth Circuit have thus far...