Savage v. Gee
| Decision Date | 29 February 2012 |
| Docket Number | No. 10–3839.,10–3839. |
| Citation | 665 F.3d 732,33 IER Cases 193,275 Ed. Law Rep. 570 |
| Parties | Scott A. SAVAGE, Plaintiff–Appellant, v. E. Gordon GEE, individually and in his capacity as President of the Ohio State University, et al., Defendants–Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
OPINION TEXT STARTS HERE
ARGUED: Thomas W. Condit, Cincinnati, Ohio, for Appellant. Drew C. Piersall, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. ON BRIEF: Thomas W. Condit, Cincinnati, Ohio, for Appellant. Drew C. Piersall, Jack W. Decker, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.Before: MARTIN, GUY, and GRIFFIN, Circuit Judges.
Scott Savage appeals the district court's grant of summary judgment in favor of Defendants E. Gordon Gee, President of The Ohio State University, in his individual and official capacity; Karen A. Holbrook, former President of the University, in her individual capacity; Nancy K. Campbell, Assistant Vice President of the Office of Human Resources at the University, in her individual and official capacity; T. Glenn Hill, a human resources consultant at the University, in his individual and official capacity; the members of the board of trustees of the University, all in their individual and official capacities; and five University Professors. Savage sought damages and injunctive relief, alleging that he was constructively discharged in retaliation for the exercise of his First Amendment rights; that the University's sexual harassment policy is unconstitutionally vague and overbroad; and several other constitutional claims. The district court found that Savage had waived his damages claims by previously raising related claims before the Ohio Court of Claims, and that his claims for injunctive and declaratory relief were without merit. Savage appeals this decision, arguing that monetary relief is not barred here, and that the district court erred in dismissing his injunctive and declaratory claims. For the following reasons, we AFFIRM the decision of the district court.
Savage was Head of Reference and Library Instruction at The Ohio State University's Bromfield Library in Mansfield, Ohio, from August 2004, until his resignation on June 27, 2007. Savage assisted faculty and students with research, helped prepare course bibliographies, and taught students research methods. Savage's direct supervisor, Elizabeth Burns, was the director of the library. In February 2006, Savage joined a committee formed to choose a book that would be assigned to all incoming freshmen. Other members of the committee included faculty members Hannibal Hamlin, Norman Jones, and Committee Chair Donna Hight, the Student Affairs Director. After several committee members recommended books that the parties characterize as “liberal,” Savage wrote to Hight to propose the book Freakonomics by Steven Levitt and Stephen Dubner. Hight forwarded Savage's proposal to the entire committee on March 2, noting that she had received a request that the committee not “choose an ideologically or politically or religiously polarizing book.” On March 3, Hamlin responded by e-mail to the entire committee stating that a book that “seriously engage[s] the students in an issue or issues of real importance ... is bound to be at least somewhat divisive.”
On March 8, Savage replied to Hamlin in an e-mail to the committee: His e-mail listed four book titles, providing a short description of each book. One of the books, The Marketing of Evil by David Kupelian, contains a chapter describing homosexuality as aberrant human behavior. Savage's description of the book did not mention this chapter.
On March 9, Jones, who is gay, responded, describing Savage's suggestion as “anti-gay” and “homophobic tripe.” Savage responded to Jones on the same day, defending his suggestion of The Marketing of Evil. Savage, Hamlin, and Jones continued to exchange e-mails on the issue. Hamlin and Jones criticized the book as bigoted and homophobic and, eventually, questioned Savage's competence and professionalism as a librarian. Jones sent an e-mail to Burns, stating that Savage's recommendation “severely damage[d]” Jones's “confidence in the library and its staff” and would affect his use of library staff.
On March 9, Burns sent an e-mail to the Dean of the University's Mansfield campus, Evelyn Freeman, and Jones, describing Jones's e-mail as a “personal assault” on Savage. That same day, Savage withdrew from the book selection committee. Another professor, Jim Buckley, sent an e-mail to all University faculty and staff stating that Savage had made him “fearful and uneasy being a gay man on this campus.” On March 12, Jones sent an e-mail to the entire Mansfield campus summarizing the argument and stating that Savage's continued endorsement of the book amounted to calling Jones “and Jim and other gay and lesbian people ‘evil.’ ”
During a regularly-scheduled faculty assembly meeting on March 13, the faculty voted on a motion to “bring this episode to the attention of the sexual harassment officer” of the University. At a meeting, two days later the faculty rescinded the motion but participants noted that individuals could file their own complaints related to the issue with Human Resources.
On March 16, Professor Gary Kennedy, on behalf of Buckley and Jones, filed a “Discrimination/Harassment Complaint Form” against Savage, claiming “harassment based on sexual orientation.” On March 20, Hamlin filed what he described as a “report” with Human Resources, complaining about Savage's “inappropriate behavior.” Glenn Hill, an employee relations consultant at the University, handled the complaints of Kennedy and Hamlin. Hill interviewed five or six faculty members to investigate the complaints against Savage.
On April 11, Savage filed a complaint of harassment against Phelps, Jones, Buckley, Hamlin, and Kennedy for filing false complaints of sexual harassment against him. Hill was also assigned to investigate Savage's complaint.
On April 20, Savage received a letter from Hill stating that the University had determined that there was no basis for the harassment charges filed against him. On April 26, Savage received another letter from Hill stating that there was no basis for the complaint filed by Savage. Despite the resolution of the complaints, Hamlin told Dean Freeman that he thought Savage should be fired. Dean Freeman replied that Savage would not be fired. Faculty and staff continued to exchange e-mails and letters about Savage's behavior through April and May. Hamlin and Phelps told other faculty members that the harassment issue had not been resolved and questioned how the faculty could continue to work with Savage.
On July 5, 2006, Savage took a leave of absence from his job because of his “extreme emotional distress” related to the accusations against him and his belief that the University had not “taken any meaningful action to vindicate” him. He later renewed this leave. Savage testified that, at the time he took and renewed the leave, he intended to return to his job.
In addition to this case, Savage filed two other lawsuits relating to the facts herein. In March 2007, Savage filed suit against several University officials in the Richland County Ohio Court of Common Pleas. On April 7, Savage filed suit in the Court of Claims of Ohio asserting federal and state law claims against University officials and the University itself. The University moved to dismiss these claims. According to Savage, the “nasty and derisive tone” of the University's attorneys in its motion to dismiss convinced him that he would have “no institutional backing at the highest administrative level were he to return” to the University. On June 27, 2007, Savage resigned. On July 29, 2008, after some discovery and motions, Savage dismissed his Court of Claims action.
On March 10, 2008, before dismissing his Court of Claims action, Savage filed this action in federal court. In his Complaint, Savage alleged several claims for damages: constructive discharge in retaliation for engaging in protected speech pursuant to 42 U.S.C. § 1983; an equal protection violation pursuant to § 1983 and § 1985; and an action for neglecting to prevent a § 1985 violation pursuant to § 1986. Savage also sought injunctive relief, claiming that the University's sexual harassment policy is unconstitutionally vague and overbroad, both facially and as applied to Savage, and seeking reinstatement.
The Defendants filed a motion for summary judgment on January 7, 2009, invoking Leaman v. Ohio Department of Mental Retardation & Development Disabilities, 825 F.2d 946 (6th Cir.1987) (en banc). The Defendants argued that Savage had waived all federal and state damages claims against state officials arising from the above-recited facts by bringing an action in the Court of Claims. On February 10, Savage moved the district court to certify a question about the validity of Leaman to the Supreme Court of Ohio. The district court denied both the motion to certify and the motion for summary judgment, the latter without prejudice. Subsequently, the Defendants renewed their motion for summary judgment. The district court found that Savage's claims for damages were barred by Leaman; his right to free speech was not infringed because his speech was not protected; he was not constructively discharged; he lacked standing to bring a facial challenge to the University's sexual harassment policy; and that his as-applied challenge to the policy failed because he sustained no cognizable harm because of the policy. Savage appeals ...
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