Buddenberg v. Weisdack

• Docket Number: 1:18-cv-00522
• Decision Date: 16 January 2024
• Parties: REBECCA BUDDENBERG, Plaintiff, v. ESTATE OF ROBERT K. WEISDACK, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

1

REBECCA BUDDENBERG, Plaintiff,
v.
ESTATE OF ROBERT K. WEISDACK, et al., Defendants.

No. 1:18-cv-00522

United States District Court, N.D. Ohio, Eastern Division

January 16, 2024

Jennifer Dowdell Armstrong, Magistrate Judge

OPINION AND ORDER

J. Philip Calabrese, United States District Judge.

This case involves a fairly routine employment dispute between Plaintiff Rebecca Buddenberg and her former employer, Defendant Geauga County Health District, and its former Commissioner, the late Robert Weisdack. Describing as routine any public-sector wrongful termination claim implicating the First Amendment and allegations of retaliation for whistleblowing might not be fair. To the extent it is, this action started out as such a case. Its litigation has been anything but. After two interlocutory appeals, the parties engaged in contentious scorched-earth discovery that required intensive supervision and involvement by the Court, culminating in competing allegations of spoliation and misconduct and a motion for sanctions. Even that high-level summary does not do justice to the level of resources the parties dedicated to litigation of what should have been a fairly straightforward case.

2

Ruling on the parties' competing motions for summary judgment presents the primary task before the Court. Additional evidentiary issues complicate what the Supreme Court characterizes under the best of circumstances as the difficult job of balancing a public employee's free speech rights and a public employer's interest in efficient operations, Garcetti v. Ceballos, 547 U.S. 410, 418 (2006); Connick v. Myers, 461 U.S. 138, 150 (1983), which will never be easy “unless one side of the scale is relatively insubstantial,” United States v. National Treasury Emps. Union, 513 U.S. 454, 482 (1995) (O'Connor, J., concurring). This is not an easy case. Neither side of the scale is insubstantial. On the one hand, Ms. Buddenberg brought matters of public concern about her boss, a public official, to the District's governing body. On the other hand, she strategically pursued these issues, and the District has an interest in efficiently managing its operations and providing governmental services to the public.

To resolve the difficult issues bound up with these questions, the parties compiled a massive record, particularly relative to the size of the case. And that record applies not just to the primary claims of retaliation that have driven this litigation but to the numerous claims and defenses under federal and State law that the parties litigate. Beyond the inherently difficult questions on the merits, this case presents additional challenges. There are several threshold questions regarding certain evidentiary matters and other objections to the record on summary judgment. These issues implicate, among other things, the testimony of three prominent lawyers tendered as expert witnesses in this case. Then, the parties make competing requests

3

to reopen discovery on the basis of the crime-fraud exception to the attorney-client privilege and for sanctions based on alleged spoliation of evidence. In this omnibus ruling, the Court addresses all these pending matters.

STATEMENT OF FACTS

Plaintiff and Defendants filed cross-motions for summary judgment. In this procedural posture, the Court construes the facts in Defendants' favor in ruling on Plaintiff's motion for summary judgment, and in Plaintiff's favor in ruling on Defendants' motions for summary judgment. Where the record presents material disputes or competing versions of the facts, the Court so notes. With that, the record on summary judgment consists of over 425 pages of briefs and more than 10,500 pages of evidentiary materials. It establishes the following facts.

A. The Geauga County Health District

Ohio law divides the State into health districts made up of the political subdivisions with certain geographical areas. See Ohio Rev. Code §§ 3709.01 & 3709.051. The Geauga County Health District is a public health district organized under Ohio law located in Geauga County, Ohio, approximately 30 miles east of Cleveland. (See ECF No. 31, ¶ 7, PageID #365.) It serves over 95,000 residents and has as many as thirty employees. (ECF No. 206-1, PageID #9558.) The District is responsible for “protecting and promoting the health of the residents of Geauga County through programs and activities designed to address safety, health, and general well-being.” (ECF No. 195-36, PageID # 5278; ECF No. 195-14, PageID #5007.) Additionally, it maintains “wells, plumbing, sewage, and septic tanks.” (ECF No. 195-36, PageID # 5278.)

4

A board of health consisting of five members governs a health district. Ohio Rev. Code § 3709.02(A). The board of health appoints a commissioner who operates as the “executive officer of the board” and “enforce[s] all sanitary laws and regulations in the district.” Id., § 3709.11.

On February 2, 2015, Plaintiff Rebecca Buddenberg began work as the Fiscal Coordinator for Defendant Geauga County Health District. (ECF No. 203-1, PageID #8477.) Defendant Robert Weisdack, the District's Health Commissioner at the time, hired Ms. Buddenberg. (ECF No. 180-1, PageID #1978.) For most of the time she worked for the District, Dan Mix was Ms. Buddenberg's direct supervisor. (ECF No. 203-1, PageID #8482-83; ECF No. 180-1, PageID #1981, #1985-86.) Mix served as the fiscal officer for the District, worked closely with Mr. Weisdack and, along with Mr. Weisdack, reported to the volunteer Board of Health. (ECF No. 180-1, PageID #1987.)

A.1. Ms. Buddenberg's Work at the District

Ms. Buddenberg's official job description included duties like managing the District's accounts payable, handling payroll, preparing fiscal reports for the Board, and maintaining personnel records. (ECF No. 194-38; ECF No. 180-1, PageID# 1980.) But her daily duties differed from her job description. (ECF No. 204-1, PageID #8847-54.) For example, she never met with the Health District Advisory Council or registered birth and death records. (ECF No. 204-1, PageID #8846 & #8848.) Mr. Weisdack testified that Ms. Buddenberg's “ordinary or ad hoc” job duties did not include reporting to the Board possible ethics violations, perceived violations of contracts or policies, or gender equity issues. (ECF No. 180-1 Page ID #1988.) Indeed,

5

her formal job description does not include reporting ethical issues to the Board. (ECF No. 194-38, PageID #4830-34.) Moreover, Plaintiff maintains that Ms. Buddenberg was not a policymaker for the District (ECF No. 221, PageID #12036)-a fact Defendants do not dispute (ECF No. 258, PageID #14684).

Ms. Buddenberg received generally favorable performance reviews. (See generally ECF No. 194-39; ECF No. 195-36, PageID #5279.) Four months after she started with the District, Mr. Weisdack conducted her first performance evaluation and made positive comments. (ECF No. 194-39, PageID #4835-37.) An area needing improvement was that Ms. Buddenberg should “not be so aggressive on policy issues.” (Id., PageID #4836; ECF No. 180-1, PageID #1991.) In April 2016, Mr. Weisdack gave Ms. Buddenberg another positive performance review. (ECF No. 180-1, PageID #1995-96.) After this review, Ms. Buddenberg received a raise in excess of the average for other employees that year. (Id., PageID #1997-98.)

A.2. Mr. Weisdack's Alleged Mismanagement

At the center of Plaintiff's claims lie three areas of alleged mismanagement on the part of Mr. Weisdack: (1) a failure to correct a gender-pay gap; (2) an unapproved personal labor contract; and (3) his general unprofessional and domineering management style. At his deposition, Mr. Weisdack agreed that these issues present matters of public concern. (ECF No. 180-1, PageID #2038.) These issues arose against the backdrop of the end of Mr. Weisdack's contract with the District in November 2016, at which time he was expected to retire. (ECF No. 203-1, PageID #8547-48.)

6

A.2.a. Gender Pay Disparity

By June 2016, Ms. Buddenberg learned that a female District employee was paid less than a male employee in the same position although the woman had better credentials and experience. (ECF No. 203-1, PageID #8526-28.) After the employee was hired, sometime between 2015 and October 24, 2016, Mix and the female employee's supervisor, Mike Tusick, complained to Mr. Weisdack about the unequal pay between the two employees. (ECF No. 180-1, PageID #2089-90.) Mr. Weisdack agreed that their concerns were reasonable (id., PageID #2090) and that he did not handle the situation as well or as quickly as he should have (id., PageID #2133-34).

Sometime in June 2016, the female employee and Tusick came to Ms. Buddenberg with their concerns about the pay disparity. (ECF No. 203-1, PageID #8527-29.) Ms. Buddenberg raised this issue with Mr. Weisdack, Mix, and Tusick. (ECF No. 203-1, PageID #8535.) When confronted with the issue, Mr. Weisdack said, “We are going to look at it” and that he “wasn't a lawyer.” (ECF No. 180-1, PageID #2095 & #2100.) Also, he told Ms. Buddenberg that she was not a lawyer either. (Id.) Mr. Weisdack did not address the pay disparity with the Board until a compliance review several months later, in December 2016. (ECF No. 180-1, PageID# 2095.) Eventually, the District corrected the disparity but only after Ms. Buddenberg raised the issue with the Board. (ECF No. 180-1, PageID #2073-74; ECF No. 197-42, PageID #6784.)

A.2.b. Unapproved Tire Contract

In the fall of 2016, Mr. Weisdack performed tire removal services for the District without an approved contract. (ECF No. 180-1, PageID #2010-15.) By way

7

of background, the District received a grant of approximately $23,000 from the Ohio Environmental Protection Agency for tire removal. (Id., PageID #2010-11.) Without a competitive bidding process, Mr. Weisdack and two other employees of the District performed the work themselves, removing some 2,000...