Rodgers v. Banks, No. 01-4034.

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: Clay
• Citation: 344 F.3d 587
• Decision Date: 17 September 2003
• Docket Number: No. 01-4034.
• Parties: Carolyn T. RODGERS, Plaintiff-Appellant, v. Elizabeth BANKS, Defendant-Appellee.

344 F.3d 587 Carolyn T. RODGERS, Plaintiff-Appellant,
v.
Elizabeth BANKS, Defendant-Appellee. No. 01-4034. United States Court of Appeals, Sixth Circuit. Argued March 12, 2003. Decided and Filed September 17, 2003. Petition for Rehearing Denied En Banc: November 5, 2003. Pursuant to Sixth Circuit Rule 206 Rehearing and Suggestion for Rehearing En Banc Denied November 5, 2003.

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William B. Singer (argued and briefed), Cincinnati, Ohio, for Plaintiff-Appellant.

Anne E. Thomson (argued and briefed), Office of the Attorney General, Employment Law Section, Columbus, Ohio, for Defendant-Appellee.

Before: MOORE and CLAY, Circuit Judges; LAWSON, District Judge.^*

OPINION

CLAY, Circuit Judge.

Plaintiff Carolyn T. Rodgers brought this action pursuant to 42 U.S.C. § 1983, alleging, inter alia, that Defendant wrongfully terminated Plaintiff from her employment in violation of Plaintiff's First Amendment right to free speech. Plaintiff appeals from the district court's granting of Defendant Elizabeth Banks' motion for summary judgment and dismissal of Plaintiff's case. We hold that although the Eleventh Amendment bars Plaintiff from seeking money damages from Defendant, Plaintiff produced sufficient evidence of a First Amendment retaliation claim to survive summary judgment, and that the district court's dismissal of this claim was inappropriate. We therefore REVERSE the judgment of the district court.

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I.

Plaintiff was employed by the Pauline Warfield Lewis Center ("Lewis Center"), an Ohio state mental hospital in Cincinnati. She began her employment at the Lewis Center as a social worker and was eventually promoted to Director of Quality Management, a position designated in the unclassified civil service of Ohio. According to Plaintiff, the "principal task" of this position was to "prepare the Center for surveys by the Joint Commission on Accreditation of Hospitals [JCAH] and other surveying organizations." (J.A. at 7.) Defendant was the CEO of the Lewis Center. Plaintiff reported to Alice Gray, Director of Support Services, and Gray reported to Defendant.

On January 21, 1999, Defendant revoked Plaintiff's unclassified appointment. In a memo informing Plaintiff of the revocation, Defendant stated, "I no longer have confidence in your ability to function as the hospitals [sic] Quality Management Director, your verbal and written communication skills are not conducive to a cooperative work environment." (J.A. at 53.)

Specifically, the dispute concerns various statements Plaintiff made during her tenure at the Lewis Center. Defendant maintains that Plaintiff's manner and method of communication had offended and inflamed her coworkers and subordinates at the Lewis Center. In particular, Defendant highlighted an incident which began when one of the Lewis Center's psychiatrists requested that his office be moved to one of the patient units. Defendant granted the psychiatrist's request, ostensibly to encourage doctors to maintain closer physical proximity to their patients. Plaintiff, who apparently was concerned that the psychiatrist's move had compromised patient privacy in the unit, sent a memorandum to Defendant, dated August 7, 1998, in which she discussed the allocation of space in the Lewis Center's psychiatric units as it related to an upcoming JCAH survey. We reproduce the memorandum below in its entirety:

 DATE: August 7, 1998
                 TO: L. Banks, CEO
                 FROM: C. Rodgers, LISW
                 Director, Quality Management
                 SUBJECT: Survey Preparedness
                 Patient Rights and Ethics
                

In the Supplemental Recommendations last survey, we had a recommendation regarding privacy for patients. This area will be scrutinized in the coming survey with a risk of a Type I.

Patient visiting in privacy is hindered by lack of space — especially on Units 1 through 6. There are the dining room and two days [sic] rooms. The day rooms are also used for group process — we have worked very hard the last three years to have more groups on the units.

In doing a walk-around during the Mock Survey, I was amazed to see that a patient/program/visiting area had been turned into an MD's office on Unit 4.

— The forensic units need more space for patients who have low level privileges and cannot leave the unit.

— The nature of Forensic patients on a confined unit would indicate a need for as much "personal space" as possible.

— This sets a precedent for the other psychiatrists to have "special" needs that rationalize taking large patient and visiting areas for office space.

 Dr. Natarajan-Unit 1
                 Dr. Mannava-Unit 2
                 Dr. Holtman-Unit 5
                 The 1199 psychiatrist on Unit 5
                 Dr. Rodgers Wilson on Unit 6
                

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In the new architectural plan there may be a space for the unit psychiatrist, and no one is denying that this would be optimal. However, the patient's needs, including space for visits with families and privacy for visiting should be the most important factor.

R/pp/daw
                cc: Alice Gray
                 Paul Blackwell
                 M. Russ
                (J.A. at 139.)
                

According to Defendant, other communications Defendant considered inappropriate included (1) arguing with the housekeeping director about the cleanliness of the restrooms in front of other Lewis Center employees, (2) arguing with another employee and then detailing the incident in an e-mail to the Lewis Center's director of operations, and (3) presenting a quality management report at an administrative meeting in a "very angry and hostile manner" and accusing management of not caring about quality standards. Plaintiff acknowledges that these various "instances of communication" occurred (J.A. at 10-11), but she contests the manner and disruptive nature of her statements as characterized by Defendant.

Following her termination, Plaintiff filed a complaint with the district court, alleging "reverse" racial discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1). In this complaint she requested injunctive relief ordering reinstatement of Plaintiff to her job, as well as compensatory and punitive damages.¹ Plaintiff subsequently filed an amended complaint, alleging that Defendant wrongfully terminated her for exercising her First Amendment right to free speech, and requesting "damages and other relief" provided under 42 U.S.C. § 1983. (J.A. at 10-12.)

Discovery ensued, during which the depositions of Plaintiff and Defendant were taken. During Defendant's deposition, she was asked what factors contributed to Plaintiff's termination, Defendant pointed to, among other incidents, Plaintiff's August 7, 1998 memo regarding the upcoming JCAH survey and patient privacy. Defendant characterized the memo as offensive, overly critical, and inaccurate.

After discovery, Defendant filed a motion for summary judgment on both of Plaintiff's claims. Plaintiff filed a memorandum in opposition, at which time she withdrew the Title VII "reverse" racial discrimination claim but opposed summary judgment on her § 1983 First Amendment claim. In support of her First Amendment claim, Plaintiff further asserted that her termination was motivated by the August 7, 1998 memorandum she sent to Defendant.

On August 23, 2001, the district court granted summary judgment to Defendant, reasoning that Plaintiff's August 7, 1998 memo to Defendant did not touch upon a matter of public concern and, therefore, Plaintiff's First Amendment claim necessarily failed. Plaintiff's timely appeal followed.

II.

Defendant first argues that, pursuant to the Eleventh Amendment, she is immune from Plaintiff's § 1983 action to the extent that the lawsuit seeks money damages. This argument presents a legal question, which we review de novo. Timmer v. Mich. Dep't of Commerce, 104 F.3d

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833, 836 (6th Cir.1997) (citing Williams v. Kentucky, 24 F.3d 1526, 1543 (6th Cir. 1994)). We agree with Defendant that, on this record, the Eleventh Amendment precludes Plaintiff from seeking money damages from Defendant.

In general, "[s]tate governments and entities that can be considered arms of the state are immune from suits for money damages under the Eleventh Amendment." Alkire v. Irving, 330 F.3d 802, 814 (6th Cir.2003) (citing Brotherton v. Cleveland, 173 F.3d 552, 560 (6th Cir.1999)). Specifically, the Eleventh Amendment bars § 1983 suits seeking money damages against states and against state employees sued in their official capacities. Will v. Mich. Dep't of State Police, 491 U.S. 58, 66, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Therefore, § 1983 plaintiffs should "set forth clearly in their pleading that they are suing the state defendants in their individual capacity for damages, not simply their capacity as state officials." Shepherd v. Wellman, 313 F.3d 963, 967 (6th Cir.2002) (quoting Wells v. Brown, 891 F.2d 591, 593 (6th Cir.1989) (internal quotation marks omitted)).

However, a plaintiff's failure to explicitly state "individual capacity" in the complaint is not necessarily fatal to the lawsuit. Rather, in this situation we employ a "course of proceedings" test to ascertain whether a § 1983 defendant was on notice that the plaintiff intended to hold him or her personally liable, notwithstanding the plaintiff's failure to provide explicit notice. Id. at 967-68 (citing Moore v. City of Harriman, 272 F.3d 769, 772 (6th Cir. 2001) (en banc)). Pursuant to this inquiry, "we consider the nature of the plaintiff's claims, requests for compensatory or punitive damages, and the nature of any defenses raised in response to the complaint, particularly claims for qualified immunity, to determine whether the defendant had actual knowledge of the potential for individual liability." Id. at 968 (citing Moore, 272 F.3d at 772 n. 1). Additionally, we "consider whether subsequent pleadings put the defendant on notice of the capacity in which he or she is being sued." Id. (citing Moore, 272 F.3d at 772 n. 1).

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