Silberstein v. City of Dayton

• Decision Date: 03 March 2006
• Docket Number: No. 05-3630.,05-3630.
• Citation: 440 F.3d 306
• Parties: Susan Fisler SILBERSTEIN, Plaintiff-Appellee, v. CITY OF DAYTON, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

440 F.3d 306

Susan Fisler SILBERSTEIN, Plaintiff-Appellee, v. CITY OF DAYTON, et al., Defendants-Appellants.

No. 05-3630.

United States Court of Appeals, Sixth Circuit.

Argued: December 6, 2005.

Decided and Filed: March 3, 2006.

COPYRIGHT MATERIAL OMITTED

ARGUED:

Dawn M. Frick, Surdyk, Dowd & Turner Co., Dayton, Ohio, for Appellants. Jeffrey M. Silverstein, Jeffrey

M. Silverstein & Associates, Dayton, Ohio, for Appellee.

ON BRIEF:

Dawn M. Frick, Edward J. Dowd, Surdyk, Dowd & Turner Co., Dayton, Ohio, for Appellants. Jeffrey M. Silverstein, Jeffrey M. Silverstein & Associates, Dayton, Ohio, for Appellee.

Before: MARTIN, COLE, and GILMAN, Circuit Judges.

OPINION

COLE, Circuit Judge.

This case arose as a § 1983 claim brought by Plaintiff-Appellee Susan Fisler Silberstein for alleged wrongful termination in violation of her First and Fourteenth Amendment rights. City of Dayton Civil Service Board Members James Lindsey ("Lindsey"), Talbert Grooms ("Grooms"), and Betty Toney ("Toney") (collectively referred to herein as the "Board Members"), moved for summary judgment based on the defense of qualified immunity as to both the First Amendment and Fourteenth Amendment claims. The Board Members now appeal the district court's May 28, 2004 order denying summary judgment to all three Board Members as to Silberstein's Fourteenth Amendment claim and denying summary judgment to Lindsey and Grooms as to Silberstein's First Amendment claim. For the reasons set forth below, we affirm the district court's decision as to the Fourteenth Amendment qualified immunity claim, but reverse the district court's decision as to the First Amendment qualified immunity claim.

I. Background

Plaintiff-Appellee Silberstein was employed by the City of Dayton from August 1989 to August 2002. From October 11, 1999, until her termination in 2002, Silberstein held the title of Assistant Chief Examiner of the Civil Service Board (the "Board"). Silberstein was offered the Assistant Chief Examiner position by Sandra Huggins, the Secretary/Chief Examiner for the Civil Service Board. The district court described Silberstein's position as "encompass[ing] the supervision of technical and administrative operations of the Civil Service office, including, but not limited to, the supervision of other analysts administering civil service examinations and assisting in the development of rules, policies, and procedures applicable to carrying out the Civil Service Board's directives." According to Silberstein's deposition testimony, her duties included taking board meeting minutes, drafting correspondence for Huggins's signature, writing narratives for annual reports, proofreading questions for fire department promotional tests, and working on special projects such as statistical analysis of historical retention trends and evaluation of new testing methods. In her position as Assistant Chief Examiner, Silberstein reported directly to Huggins.

About the time that Silberstein began in this position, Dayton's City Commissioners were pursuing the implementation of a diversity plan for the city's fire department. Silberstein and Huggins both expressed disagreement with the plan that was being proposed. In October 2001, Silberstein prepared a report for the Board on the problems that she and her staff saw with the diversity plan that was under consideration. Also about this time, changes were made to the composition of the Civil Service Board; Lindsey joined the Board in January 2002, and Grooms around May 2002. At least one newspaper article, included in the record, attributes these Board replacements to the disputes concerning the fire department's diversity plan. Silberstein testified in deposition that around this time the City Commission began passing ordinances that ordered the Civil Service Board to take specific action to pass particular new diversity rules, a procedure which she believed was in contravention of the proper procedures for passing new Civil Service rules.

On July 25, 2002, without prior notice, Grooms sent Silberstein a letter placing her on paid administrative leave. According to Lindsey's deposition testimony, the Board had been having difficulties "getting Ms. Silberstein to respond to [their] request for action," and there was a general feeling among the Board Members that "Ms. Silberstein and Ms. Huggins ... were being obstructionists." According to Lindsey's and Grooms's deposition testimony, during the time that Silberstein was on paid leave, the Board was seeking a legal opinion from the city's Law Department regarding Silberstein's employment category in order to determine the required procedures for terminating her employment.

On August 24, 2002, the Dayton Daily News published a letter written by Silberstein that criticized the Dayton City Commission's recent actions in their efforts to implement a new diversity plan. On August 29, 2002, the Board held a meeting at which it voted to terminate Silberstein. Among the topics discussed at the Board meeting was Silberstein's recent letter to the newspaper. Silberstein received a letter the same day stating that "it is apparent to the Board that you are either unwilling or unable to effectively serve the current Board." Silberstein was given no other reason for her termination. Silberstein filed a notice appealing her removal from the Board. She received a letter in response informing her that she did not have a right to appeal.

Silberstein filed her complaint in the Southern District of Ohio in November 2002. Defendants filed a motion for summary judgment in which the Board Members raised the defense of qualified immunity. The district court denied each Board Member's defense of qualified immunity as to Silberstein's Fourteenth Amendment claim, but, in light of the Board Members' argument that they relied upon the advice of counsel, the district court observed that "extraordinary circumstances may yet require the application of qualified immunity" to the Board Members, depending upon the "substance of the advice provided by their attorneys." The order granted Toney's summary judgment motion on the defense of qualified immunity for Silberstein's First Amendment retaliation claim on the ground that Toney was not present at the board meeting where the Board Members voted to terminate Silberstein, but the court rejected Grooms's and Lindsey's qualified immunity defenses to Silberstein's First Amendment claim.

The defendants then filed a motion to partially alter or amend the judgment and to supplement the record, pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, seeking to introduce the legal reports they claim to have relied upon from their counsel regarding Silberstein's employment category. The district court denied the defendants' Rule 59(e) motion.

The defendants appeal the district court's (1) denial of Grooms's, Lindsey's, and Toney's Fourteenth Amendment qualified immunity defenses, and (2) denial of Grooms's and Lindsey's First Amendment qualified immunity defenses.

II. Legal Framework

The district court's denial of summary judgment based on the Board Members' qualified immunity defenses is immediately appealable as a collateral order, since the issue appealed concerns only whether the facts alleged show a violation of a clearly established constitutional law and does not concern which facts the parties might be able to prove. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Williams v Mehra, 186 F.3d 685, 690 (6th Cir.1999) (en banc). We review a district court's qualified immunity determination de novo. Sanderfer v. Nichols, 62 F.3d 151, 153 (6th Cir.1995). Once the qualified immunity defense is raised, the burden is on the plaintiff to demonstrate that the officials are not entitled to qualified immunity. Barrett v. Steubenville City Schs., 388 F.3d 967, 970 (6th Cir.2004).

Qualified immunity protects government officials performing discretionary functions unless their conduct violates a clearly established statutory or constitutional right of which a reasonable person in the official's position would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The Supreme Court has recently articulated a two-prong test for evaluating a qualified immunity question: First, taken in the light most favorable to the party asserting the injury, do the facts alleged show that the officer's conduct violated a constitutional right? Second, is the right clearly established? Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. (citing Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)); see also Radvansky v. City of Olmsted Falls, 395 F.3d 291, 302 (6th Cir. 2005) (requiring plaintiff to establish that official's action was "objectively unreasonable in light of the clearly established constitutional rights").

III. Silberstein's Fourteenth Amendment Claim

A. Whether Silberstein suffered a Due Process violation

The first prong of the qualified immunity analysis asks whether a constitutional violation has occurred. Saucier, 533 U.S. at 201, 121 S.Ct. 2151. In evaluating whether a Fourteenth Amendment Due Process Clause violation occurred, we must determine whether Silberstein had a property interest that entitled her to due process protection, and, if answering in the affirmative, must then determine what process was due. Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982).

1. Property interest

Property interests do not derive from the Constitution, but rather are created and defined by "existing rules or understandings that stem from independent sources such as state law...." Bd. of Regents of State Colls....