Myers v. City of Centerville

• Decision Date: 21 July 2022
• Docket Number: 21-3850
• Citation: 41 F.4th 746
• Parties: James MYERS, Plaintiff-Appellee, v. CITY OF CENTERVILLE, OHIO, Defendant, Wayne Davis; Matthew Brown, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

41 F.4th 746

James MYERS, Plaintiff-Appellee,

v.CITY OF CENTERVILLE, OHIO, Defendant,Wayne Davis; Matthew Brown, Defendants-Appellants.

No. 21-3850

United States Court of Appeals, Sixth Circuit.

Argued: April 28, 2022

Decided and Filed: July 21, 2022

ARGUED: Dawn M. Frick, SURDYK, DOWD & TURNER CO., L.P.A., Dayton, Ohio, for Appellants. Laura Welles Wilson, FREKING MYERS & REUL LLC, Cincinnati, Ohio, for Appellee. ON BRIEF: Dawn M. Frick, Edward J. Dowd, SURDYK, DOWD & TURNER CO., L.P.A., Dayton, Ohio, for Appellants. Laura Welles Wilson, Katherine Daughtrey Neff, FREKING MYERS & REUL LLC, Cincinnati, Ohio, Jeffrey M. Silverstein, FREKING MYERS & REUL LLC, Dayton, Ohio, for Appellee.

Before: SUHRHEINRICH, MOORE, and CLAY, Circuit Judges.

SUHRHEINRICH, Circuit Judge.

By nearly all accounts, James Myers was a model employee for the City of Centerville, steadily climbing the Police Department's ranks over three decades to become a detective sergeant. In 2015, however, Myers started causing headaches for the City's bigwigs—in a smalltown, Frank Serpico sort of way. He reported several serious allegations of misconduct among the Department's upper brass, some of which have yet to be fully investigated. He also stood up for an acquaintance in the Public Works Department, whom he thought the City had unfairly fired. The City returned the favor, suspending Myers without pay for five days. Not long thereafter, the City fired Myers, allegedly for secretly recording a meeting between him, City Manager Wayne Davis, and Police Chief Matt Brown. Myers sued the City, Davis, and Brown, alleging a First Amendment retaliation claim under 42 U.S.C. § 1983 and several state-law claims.

The defendants moved for judgment on the pleadings, arguing (among other things) that Myers failed to state a claim and that Davis and Brown are entitled to qualified immunity and statutory immunity under Ohio law. The district court summarily denied the motion, which Davis and Brown now appeal. We hold that the district court erred by failing to meaningfully analyze their assertions of immunity at the pleadings stage, but we affirm after concluding that Myers plausibly alleged a First Amendment retaliation claim and that the defendants are not yet entitled to qualified or statutory immunity.

I. Background

Because this appeal comes to us from the denial of a motion for judgment on the pleadings, we assume as true the facts alleged in Myers's complaint and draw all reasonable inferences in his favor. Coley v. Lucas County , 799 F.3d 530, 536–37 (6th Cir. 2015). The following facts are thus taken from his complaint.

A. Allegations Against Lavigne & Robertson

In 2015, Myers reported to his supervisors, then-Lieutenant Matt Brown (defendant here) and then-Police Chief Bruce Robertson, that another supervisor in the Department created, possessed, and "possibl[y] disseminat[ed]" "sexually explicit photos of minors." That supervisor apparently was Lieutenant Lavigne,¹ who transferred illicit images from minors’ cell phones to his personal cell phone; those minors were being investigated "as part of a ‘sexting’ complaint at Centerville High School." Over the coming years, Myers continued to pursue this allegation against Lavigne (and a separate allegation that Lavigne violated a City ordinance), which largely fell on deaf ears. Chief Robertson promised to follow up, but he ultimately investigated only the ordinance violation, for which Lavigne received "an oral reprimand."

In 2018, Myers went up the chain of command. He sought whistleblower protection and met with City Manager Wayne Davis (another defendant here) to report new allegations "related to theft in office and dereliction of duty" against Chief Robertson, and to repeat the child-pornography allegation against Lavigne. That led to Myers meeting with an outside attorney appointed by Davis; the attorney said he would investigate the claims against Robertson "at [Davis's] request," but that the claims against Lavigne would be investigated by an outside agency (the Kettering Police Department) "due to the[ir] severity." After learning of the investigation against him, Robertson "abruptly retired," and the City appointed Lieutenant Brown as interim police chief.

Myers was interviewed but not hired for the vacant chief post; the City picked Brown instead. The hiring panel for that position included Lavigne, which Myers viewed as "highly unethical and improper" given Myers's allegations against him.

To air those complaints, Manager Davis held a meeting with Chief Brown and Myers on August 1, 2018. Myers made an audio recording of this meeting. Although the meeting was called to discuss the chief hiring process, it devolved into rehashing Myers's earlier allegations against Robertson and Lavigne. Davis asserted that " ‘full on’ investigations were conducted into" Myers's allegations. "When Myers confront[ed]" Davis and Brown "about the findings of the investigations, he [wa]s advised that no criminal wrongdoing was found after being reviewed by ‘multiple prosecutors.’ " Myers asked which prosecutors, "and Chief Brown did not answer."²

By February 2020, Kettering had yet to conduct "a formal investigation or [a] review[ ] [of] the case [regarding Lavigne] with a prosecutor." In the meantime, Myers was passed over not only for the chief's position, but two vacant lieutenant positions as well. And although he was admitted to the FBI National Academy after being waitlisted for several years, Quantico rescinded that offer after its background investigator spoke to Lavigne.

Mindful of that context, we review the facts supporting Myers's First Amendment claim.

B. The "Brannon Letter" and its Fallout

In October 2018, Myers learned that Brad Kavalunas, a longtime employee of the City's Public Works Department "with whom [Myers] was familiar," was fired for actions and speech that the City deemed "bigot[ed]" and harassing. Although Myers was not involved in any investigation leading to Kavalunas's termination, Kavalunas asked him for "a character letter." Myers obliged, writing a letter off-the-clock and at home; that letter, which the parties dub the "Brannon Letter," was later given to Manager Davis by Kavalunas's attorney.

The letter explained that Myers has known Kavalunas for over two decades, that he's a caring person and a good employee, and that his professional reputation is one "of diligence, trustworthiness, and dependability." Myers thus wrote that he "was both surprised and saddened" to learn of Kavalunas's alleged misconduct, given that Myers could not recall "one instance" in which Kavalunas behaved in the way alleged. Myers also expressed his admiration for the "sense of teamwork and comradery among" the Public Works staff, and that he "long[s] for such unity among my fellow brothers and sisters in law enforcement."

And Myers went on. First, he recalled witnessing "many instances of ... ‘shop or locker room talk’ " among the Public Works staff, language that "was frequently inappropriate." He described Public Works as having a "culture where grown men were accustomed to behaving as adolescents"—conduct that "was pervasive and not limited to just a select few employees." Second, Myers placed Kavalunas's alleged misconduct in the context of that culture, explaining that "the workplace conduct alleged [against Kavalunas] is or was much more systemic"—his alleged behavior "was just part of the everyday norm" of Public Works. Third, he argued that such conduct "should certainly not be justified," but "it seems ill-advised to single out one individual as the ‘poster child’ for the same or similar conduct displayed by many in the same group over the last two plus decades." And, given Kavalunas's long tenure with the City, Myers thought "an alternative to termination" would have "better served" the City.

In November 2018, Myers was summoned to discuss the Brannon Letter with the City's human resources manager and its outside labor counsel. At no point during that meeting did they tell Myers that he did anything wrong or that the contents of the letter were disparaging to the City. Later the next month, however, Myers was called into Lavigne's office; Lavigne "informed [Myers] that he was being brought up on internal charges" relating to the letter. Lavigne did not specify which rules or polices were allegedly violated, despite Myers's "asking repeatedly." Myers thought Lavigne was retaliating against him in part for his previous complaints, so he refused to continue the interview without a union representative present; the interview was rescheduled.

Lavigne ultimately asserted that Myers "potentially violated several City and Departmental rules by writing the letter," one of which "was insubordination because Myers had allegedly been told in the past not to intervene with the investigation or disciplinary matters of other employees"—a point renewed the next month in a memo penned by Chief Brown. Myers "denied and refuted" that he was ever so told. In June 2019, Manager Davis suspended Myers for five days without pay "for allegedly being insubordinate and for criticism of the City" in the letter.

There things stood until November 2019. At that point, the City learned that Myers recorded the August 1, 2018, meeting (the one called to discuss Myers's concerns about the chief hiring process). The City placed Myers on paid administrative leave pending an investigation of the recording.

The investigation took its course, and Davis fired Myers in March 2020—not for writing the Brannon Letter, but "for alleged misconduct involving purported dishonesty related to withholding of the audio recording." The City later issued a press release (republished "almost verbatim" in the newspaper), which Myers claims "was factually inaccurate, prejudicial, defamatory, and retaliatory."

In June 2020, the City's Personnel Appeals Board affirmed Myers's prior five-day suspension based on the Brannon Letter. "Immediately" thereafter, the City again...