983 F.2d 1353 (6th Cir. 1993), 91-4071, Mertik v. Blalock

Docket Nº:91-4071.
Citation:983 F.2d 1353
Party Name:Barbara MERTIK, Plaintiff-Appellant, v. Linda BLALOCK; Joseph Tal, Jr.; City of Parma Heights; Greenbrier Figure Skating Club; Winterhurst Figure Skating Club; City of Lakewood; Lakewood School District Board of Education, Defendants-Appellees.
Case Date:January 15, 1993
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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983 F.2d 1353 (6th Cir. 1993)

Barbara MERTIK, Plaintiff-Appellant,


Linda BLALOCK; Joseph Tal, Jr.; City of Parma Heights;

Greenbrier Figure Skating Club; Winterhurst Figure Skating

Club; City of Lakewood; Lakewood School District Board of

Education, Defendants-Appellees.

No. 91-4071.

United States Court of Appeals, Sixth Circuit

January 15, 1993

Argued June 8, 1992.

Rehearing and Rehearing En Banc

Denied March 17, 1993.

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[Copyrighted Material Omitted]

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Timothy N. Toma (argued and briefed), Michael P. Lavigna, Euclid, OH, for Barbara Mertik.

Leo R. Ward, Tim S. Williams (argued and briefed), Ward & Associates, C. Anthony Stavole, Stavole & Miller, Cleveland, OH, for Linda Blalock, Joseph A. Tal, Jr., City of Parma Heights.

Donald L. Reiman (briefed), Cassidy & Mottl, Parma Heights, OH, for Greenbrier Figure Skating Club.

George Glavinos, Jr., Westlake, OH, for Winterhurst Figure Skating Club.

Roger D. Tibbetts, Lakewood, OH, Richard G. Lillie, Corso, Lillie & Kelly, Cleveland, OH, Michael E. Murman, Lakewood, OH, for City of Lakewood.

Susan C. Hastings, Arthur A. Kola, Squire, Sanders & Dempsey, Cleveland, OH, for Lakewood School Dist. Bd. of Educ.

Before: KENNEDY and SILER, Circuit Judges; and JOINER, Senior District Judge. [*]

JOINER, Senior District Judge.

Plaintiff, Barbara Mertik, appeals the dismissal of her federal civil rights claim pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief can be granted. Plaintiff's suit was removed from state court to the

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United States District Court for the Northern District of Ohio. Following the dismissal of the one count asserting federal constitutional claims, the district court remanded the balance of the suit to state court. This appeal concerns only the propriety of the dismissal of the federal claims. For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings.


Plaintiff Mertik brought this action against defendants, two private ice skating clubs, two municipalities which owned or operated the ice rinks used by the clubs, and two individual employees of one of the municipalities. Mertik is a professional ice skating instructor who provides figure skating lessons to students at the two skating rinks. After being denied access to the defendant cities' rinks, Mertik brought this action under 42 U.S.C. § 1983 alleging that the defendants violated her procedural and substantive due process rights as guaranteed by the Fifth and Fourteenth Amendments to the federal Constitution.

Following the institution of this appeal, Mertik voluntarily dismissed her claims against one of the defendant ice skating clubs and the defendant city which allegedly owned or operated the rink at which that club's students were taught. 1 Consequently, we address only the facts and law pertinent to the remaining defendants.

Whether the district court properly dismissed Mertik's civil rights claim pursuant to Federal Rule of Civil Procedure 12(b)(6) is a question of law subject to de novo review. Dugan v. Brooks, 818 F.2d 513, 516 (6th Cir.1987). The factual allegations of the complaint must be accepted as true, Kerasotes Michigan Theatres, Inc. v. National Amusements, Inc., 854 F.2d 135, 136 (6th Cir.1988), cert. dismissed, 490 U.S. 1087, 109 S.Ct. 2461, 104 L.Ed.2d 982 (1989), and construed in the light most favorable to the plaintiff, Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). "A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984).

It is against this standard that we review the following allegations, all accepted as true, and all taken exclusively from Mertik's second amended complaint.

Plaintiff's Allegations

Barbara Mertik has been a professional figure skating coach for 25 years. She contracts independently to provide skating lessons to students at the defendant Greenbrier Figure Skating Club at a rink owned by defendant city of Parma Heights. Mertik's students purchase ice time either from the Greenbrier Club or directly from Parma Heights. Mertik has complied with all conditions required of her to maintain what she terms are "staff privileges" to teach at the Greenbrier Club. Based on the course of conduct and custom in the trade, Mertik is entitled to maintain these staff privileges as long as she fulfills her obligations to the club.

Approximately 15 students contracted with Mertik for figure skating lessons for the summer months of 1991, and purchased ice time directly from Parma Heights. Mertik and the students contracted for lessons in reliance on representations by the Greenbrier Club and Parma Heights that Mertik would be provided privileges at Greenbrier. Further, Mertik and the students were induced by the Greenbrier Club and Parma Heights to rely on these promises and representations.

Mertik was charged with gross sexual imposition by a former student. The allegations on which the charge was premised were false, and the charge was set aside nolle prosequi in Parma Municipal Court. No other such allegations had ever been made against Mertik in her 25 years as a professional figure skating coach. Mertik's students and their parents were aware of the criminal charge that had been

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brought against her, but recognized that the charge was unfounded. They wanted Mertik to continue to provide skating lessons during the summer months of 1991.

On July 9, 1991, when Mertik attempted to take the ice at Greenbrier to give a lesson, she was ordered off the ice by defendant Linda Blalock, the manager of the rink and an employee of defendant Parma Heights. Blalock threatened to have Mertik arrested if she went on the ice to teach. According to Blalock, this order was given under the authority of defendant Joseph A. Tal, Jr., Parma Heights' Director of Recreation. Mertik claims that Blalock's order was given despite Mertik's right to maintain privileges at the Greenbrier Club and her students' rights to select her as their coach. Neither Blalock nor Tal had the lawful authority to prohibit Mertik from providing lessons on ice time bought and paid for by her students.

Blalock publicized to third persons false and unsubstantiated allegations of child abuse about Mertik without privilege to do so and in reckless disregard of their falsity. Moreover, both Blalock and Tal falsely publicized to third parties that Mertik failed to fulfill her commitments to the Greenbrier Club, knowing these statements to be false, or in reckless disregard of their falsity.

Procedural History; Plaintiff's Constitutional Claims

Mertik's complaint was initially filed in Cuyahoga County Common Pleas Court. Mertik claimed that defendants Blalock, Tal, the City of Parma Heights, and the Greenbrier Figure Skating Club (1) tortiously interfered with contracts between Mertik and her students; (2) breached their contracts with Mertik; (3) were promissorily estopped from denying Mertik "staff privileges" to teach at the city's rink on the basis of representations made to Mertik on which she reasonably relied; and (4) slandered her.

Mertik's fifth count was brought under 42 U.S.C. § 1983 and alleged that the defendants violated her right to substantive and procedural due process by deprivation of constitutionally protected property and liberty interests, and that defendants violated her right to equal protection of the laws, contrary to the Fifth and Fourteenth Amendments to the federal Constitution. Mertik alleges in this count that the defendants' actions were taken under color of state law, have operated to deny her employment opportunities, have stigmatized her, and have harmed her reputation. Mertik claims that she was entitled to prior notice and an opportunity to be heard before her privileges at Greenbrier were revoked and the accusations against her were publicized. She further claims that defendants' actions were neither random nor unauthorized, and that it was not unfeasible or impractical for the defendants to have provided notice and hearing prior to depriving her of protected property and liberty interests.

On the basis of Mertik's federal constitutional law claims in count 5, defendants removed the action to the federal court. Upon review of Mertik's complaint, the district judge ordered Mertik to show cause why count 5 should not be dismissed for failure to state a claim on which relief could be granted. Mertik briefed the question, and filed a motion for leave to file a second amended complaint. The district court considered the allegations in the proposed second amended complaint, but then dismissed count 5 under Fed.R.Civ.P. 12(b)(6). The balance of the case was remanded to state court.

District Court's Ruling

In a memorandum opinion and order, the district court addressed each of Mertik's constitutional claims. 2 The district court found that Mertik enjoyed no constitutionally protected property interest in continued employment such that her employment could not be terminated without a pre-deprivation hearing. A property interest in continued employment, the district court held, is accorded only to public employees who may not be discharged at will:

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Mertik is clearly not a public employee. Although she is given staff privileges at public ice rinks, she does not allege that she is anything but an 'at will' employee, hired by her students. Thus, Mertik fails to make out a claim that any constitutionally protected property interest has been taken from her by the...

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