Hoover v. Radabaugh, 00-4537.

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: Boggs
• Citation: 307 F.3d 460
• Parties: Dale D. HOOVER, Plaintiff-Appellee, v. Patricia RADABAUGH, et al., Defendants-Appellants.
• Docket Number: No. 00-4537.,00-4537.
• Decision Date: 03 October 2002

307 F.3d 460 Dale D. HOOVER, Plaintiff-Appellee,
v.
Patricia RADABAUGH, et al., Defendants-Appellants. No. 00-4537. United States Court of Appeals, Sixth Circuit. Argued April 26, 2002. Decided and Filed October 3, 2002.

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Emily J. Lewis (argued and briefed), Farlow & Lewis LLC, Dublin, OH, for Plaintiff-Appellee.

Mitchell H. Banchefsky, Brian M. Zets (argued), Bridgette C. Roman (briefed), Julie E. Brigner, Schottenstein, Zox & Dunn, Columbus, OH, for Defendants-Appellants.

Before RYAN, BOGGS, and COLE, Circuit Judges.

BOGGS, J., delivered the opinion of the court, in which RYAN, J., joined. COLE, J., (pp. 469-470), delivered a separate opinion concurring in part and dissenting in part.

OPINION

BOGGS, Circuit Judge.

In this civil rights action for retaliation against the exercise of protected speech by a public employee, both municipal and individual defendants bring interlocutory appeals challenging the denial of their motions for summary judgment. We are first asked to determine whether we have jurisdiction, on interlocutory appeal, to consider the denial of defendants' motion for summary judgment on grounds of qualified immunity, when that denial is based on a determination by the district court that a question of fact exists as to the employer's motivation in terminating the plaintiff. We are also asked whether the rights in question are clearly established as a pure matter of law. On the first question, we conclude that we lack jurisdiction, and dismiss that portion of the appeal. On the second question, we affirm the determination of the district court that the rights in question are clearly established.

I

Dale Hoover was employed in the Circleville, Ohio, Building Department as a

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building and electrical inspector. The current action arises out of Hoover's public statements, criticizing the Department, while he was an employee. During the course of his employment, Hoover argued with his supervisor, Allyn Sheldon, over the proper procedures to be used in inspecting buildings. The disagreements were originally abstract: Hoover believed that the form checklist used by inspectors contained errors that led inspectors to approve noncompliant building projects. Mr. Sheldon did not correct the form.

Soon after, the disagreement became concrete. Sheldon instructed Hoover to approve several building projects that did not meet code. Sheldon also asked Hoover to perform plumbing inspections that Hoover was not qualified to perform. The Clifton Building dispute involved a plumbing inspection that Sheldon told Hoover to conduct, despite the fact that Hoover was not certified to perform such inspections. Hoover went, under protest, but told Clifton (the owner and a powerful local businessman) that he could only give him an opinion and could not officially approve the site. Hoover returned, later, with a plumbing inspector, Chris Patowski. Patowski informed Clifton that the plumbing was not properly vented.

Clifton then threatened to sue the Building Department. Sheldon permitted Clifton to hide the plumbing defects, to placate him. When the time for the final inspection came, Sheldon misled Patowski, indicating that Hoover had approved the plumbing. The Circleville mayor, Patricia Radabaugh, and Sheldon told Hoover to sign off on the violations and override the violations that Patowski had found. Patowski also found plumbing violations at another site, the Castle Inn project, which included non-insulated plumbing in the attic. Sheldon asked Patowski to conceal the violations; Patowski refused. The Castle Inn was also built without an architect's drawing as required by the Ohio Building Code.

The Boggs Hair Salon was also built without permit or drawing; Hoover found numerous code violations, including a number of fire hazards. The plumbing was improperly vented. Hoover informed Radabaugh and others about the violations but he was nevertheless ordered to sign off on the inspections. Hoover refused, and instead informed Mr. Boggs that he had 90 days to correct the violations. Without a final plumbing inspection and without any correction, Sheldon issued a certificate of occupancy permitting the Salon to open.

As a result of these incidents, Hoover began to voice his concerns publicly. Hoover spoke to the Building Department's Advisory Board, which is made up of local builders and realtors, about the Department's improper practices. Hoover contacted Garry Krebbs, the state chief plumbing inspector, to inform him that the Department was concealing code violations. Hoover also went to a city-wide supervisors' meeting, intending to raise his concerns. He believed that the meeting was a public one; it was not. He left when he was informed that the meeting was intended only for designated supervisors. Hoover was disciplined for attempting to attend the meeting.

Radabaugh and Sheldon warned Hoover to stop discussing the Building Department and ordered him to stop publicly discussing the fact that he had been ordered to approve non-compliant projects. Defendants told Hoover that it was inappropriate for him to "spill the bad news all over the community." Hoover was warned that his job was in jeopardy if he continued to criticize the Department publicly.

Sheldon and Hoover had a physical altercation two months later. The parties' descriptions of the incident differ widely;

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however, they agree on the following. Hoover was photocopying documents in preparation for a lawsuit against the Building Department and Sheldon. Sheldon entered the room. Hoover told Sheldon that he was getting an attorney. Sheldon responded that Hoover should not include his name in the lawsuit. Hoover informed Sheldon that Sheldon was the reason for the lawsuit, and that he would be named as a defendant. Sheldon left the room, but immediately returned. Hoover feared Sheldon was going to destroy the documents. The two shoved each other. Hoover then pushed Sheldon out of the room, and said: "If you come back in here, I'll kill you."

Immediately thereafter, Hoover was given notice of a pre-disciplinary meeting. He signed a form waiving that meeting. Hoover claims that he waived the pre-disciplinary meeting because it had been scheduled too soon for him to get an attorney; his understanding was that the meeting would take place later, when he had procured an attorney. The employee responsible for collecting the waiver, Mr. Starkey, testified that Hoover signed the waiver quickly, but denied that Hoover requested time to seek an attorney. However, Hoover acted consistently with his belief, and called that night to inform Starkey that he could not find a lawyer. Hoover then sought to have the hearing scheduled. No hearing was scheduled, and Hoover was terminated. The stated reasons for his termination were: (1) refusal to carry out work assignments; (2) using insulting, malicious, threatening, or intimidating language to his supervisor; (3) assaulting his supervisor; and (4) engaging in personal work during business. The termination letter did not notify Hoover of his right to appeal, as is required by Ohio law. Hoover did eventually appeal the decision to the Civil Service Commission; his appeal was denied because it was untimely.

Hoover then brought this civil rights action, claiming that defendants violated his First Amendment free speech rights, due process rights, and Ohio public policy in terminating him. He sued both the municipality and a number of individual defendants. The individual defendants moved for summary judgment on the grounds of qualified immunity; the municipality moved for summary judgment on the grounds that there was no city policy to restrict freedom of speech.

Upon evaluating Hoover's speech claim, the district court found that he had sufficiently made out his case to defeat summary judgment because (1) the speech was of public concern; (2) termination would chill such speech; and (3) the defendants' motivation in terminating Hoover was "a question of fact best left to the jury to decide." With respect to Hoover's due process claim, the district court held that his waiver was not knowingly made.

The district court denied defendant's motion for summary judgment on the issue of qualified immunity. The court found that the defendants did not meet their burden of showing that they would have terminated Hoover even if he had not engaged in protected speech. The individual defendants filed this interlocutory appeal for review of the qualified immunity issue.

While this appeal was pending, Hoover moved for dismissal of the individual defendants' appeal, asserting that this court lacks jurisdiction to hear an interlocutory appeal based on a factual determination made by the district court. Hoover also moved this court to dismiss the municipality's appeal, on the grounds that the municipality may not attach its appeal to the interlocutory appeal by the individual defendants. The motions were referred to the hearing panel.

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II

A. Jurisdiction and Qualified Immunity

We are asked to determine whether we have jurisdiction to hear an interlocutory appeal from a district court's decision to deny summary judgment on qualified immunity where, taking the plaintiff's facts as true, there is a genuine issue of material fact as to defendants' motivation in terminating an employee. We hold that we do not.

Jurisdiction in the case stems from 28 U.S.C. § 1291 (1994); this statute grants us jurisdiction to hear appeals from final judgments of district courts. A denial of summary judgment is generally not a final judgment. Phelps v. Coy, 286 F.3d 295 (6th Cir.2002); Johnson v. Jones, 515 U.S. 304, 309, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). However, district court denials of qualified immunity may be appealed as collateral orders where (1) the defendant is a public official asserting the defense of qualified immunity, and (2) the issue appealed concerns...