Opinion
Case No. 3:18 CV 2236
2019-12-27
Gregg FLEDDERJOHANN, Plaintiff, v. CELINA CITY SCHOOL BOARD OF EDUCATION, et al., Defendants.
Brian J. Butler, Marc D. Mezibov, Cincinnati, OH, for Plaintiff. Christian M. Williams, Pepple & Waggoner, Cleveland, OH, Jacqueline Walsh Brickman, Pepple & Waggoner, Independence, OH, for Defendants.
Brian J. Butler, Marc D. Mezibov, Cincinnati, OH, for Plaintiff.
Christian M. Williams, Pepple & Waggoner, Cleveland, OH, Jacqueline Walsh Brickman, Pepple & Waggoner, Independence, OH, for Defendants.
ORDER GRANTING SUMMARY JUDGMENT
JACK ZOUHARY, U.S. DISTRICT JUDGE INTRODUCTION
Plaintiff Gregg Fledderjohann taught for Celina City Schools for twenty-two years (Doc. 21-2 at 19). He was terminated as a result of events following the administration of a 2016 state-mandated reading test for third graders. A dispute over that three-day test has now stretched past three years. Defendants move for summary judgment (Doc. 24), which is appropriate where there are no disputed facts on which a reasonable jury could find for Plaintiff. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Plaintiff's dispute with his fellow teachers led him to file a Complaint. What follows is whether his claim of free speech precludes his termination.
BACKGROUND
Plaintiff's Reprimands
In the final years of his career with the Celina City School District ("the District"), Plaintiff taught third grade (Doc. 21-2 at 19–20). In 2016, Defendant Schmiesing, the Superintendent of the Celina City School Board ("the Board"), issued Plaintiff a written reprimand for violations of "Staff Ethics" in the classroom (Doc. 22-41). These violations included asking students to "keep secrets" from their parents, accessing non-educational websites during schools hours, and referring to students' grades and personally identifiable information (id. at 1–2). Subsequently, Schmiesing transferred Plaintiff to the high school to work as a substitute for the remainder of the school year (id. at 2). In August 2016, Plaintiff was involved in a dispute with Jenna Hodge, a fellow third-grade teacher, over his allegedly-stolen supplies (Doc. 22-42). Hodge called Defendant Ahrens, the building principal, which prompted Schmiesing to conduct another investigation (id. ). Following that investigation, Schmiesing issued Plaintiff a second reprimand in September 2016 (id. ).
AIR Assessment
In November 2016, the District's third-grade teachers administered the American Institutes for Research English Language Arts Assessment ("AIR Assessment"). The AIR Assessment is "high stakes" because, as part of the Third Grade Reading Guarantee, the District must take certain actions if students fail (Doc. 21-2 at 101). As a proctor, Plaintiff was responsible for "uphold[ing] mandated security procedures" and "maintain[ing] the security of [his] room" (id. at 57, 41). Leading up to the Assessment, teachers undergo training, administer several practice tests, and certify that they will report any irregularities immediately to designated school officials. For Plaintiff, any such reports would go to Defendant Ahrens and Renee Simcoe (the Building Test Coordinators) or Defendant Luebke (the District Test Coordinator) (id. at 133).
ODE Complaint
On December 22, 2106 -- over a month after proctoring the AIR Assessment -- Plaintiff sent an email to Ohio Department of Education ("ODE") employee Jennifer Vaughn (id. at 135). In that email, Plaintiff alleged several violations of AIR Assessment protocols including: administrators signing students back into their tests to "recheck" answers, teachers looking over students tests and "tell[ing] students what to do and what buttons to push," and teachers leaving large instructional posters on AIR-related topics within view during the exam (Doc. 22-12 at 2). He alleged that "certain personnel are doing things to ‘look good’ at other educators' expense ... doesn't seem right" (id. at 2). Plaintiff concluded by asking for reassurance his communication would remain confidential: "Last, this must remain annomynous [sic]. I'm sure I would be fired" (id. at 3). He signed the email "concerned educator" (id. ).
Vaughn responded later that day indicating that the allegations, if true, constituted violations of the testing protocols, and seeking names of specific individuals involved in the alleged misconduct (Docs. 22-13; 22-14). Plaintiff responded on December 28, that Hodge, who was the head of the third-grade reading department, made the remarks relating to changing student answers, and also advised other teachers to leave their prompts and posters up (Doc. 22-15). He further alleged Ahrens went into classrooms, logged students back into their exams, and "told them to go over and reread the script and answers," and that Luebke "was fully aware and present" (id. ).
Hodge relayed the anonymous complaint to Schmiesing, with instructions for the District to investigate (Doc. 22-16). Schmiesing initiated a public records request and learned that Plaintiff had submitted the ODE complaint (Docs. 21-5 at 65; 22-18). Schmiesing then interviewed Plaintiff and "over fifteen" other potential witnesses to the violations (Doc. 21-5 at 77–112). Among those interviewed were Ahrens, Luebke, Hodge, and five students from Plaintiff's classroom (id. at 85–86). Schmiesing submitted his report, along with the witness statements, to ODE (Doc. 22-24). The report concluded no test violations occurred (id. at 77–79). ODE then informed Plaintiff that it agreed with the conclusions of the investigation and was closing the inquiry (Doc. 29).
Board Investigation and Administrative Proceedings
Schmiesing next initiated an investigation into whether Plaintiff submitted a false report to ODE (Doc. 21-5 at 45). On April 21, 2017, Schmiesing advised Plaintiff he was suspended pending the outcome of the investigation (Doc. 22-21). Schmiesing conducted a "pre-termination hearing" with Plaintiff and his legal counsel on September 5 (Doc. 21-5 at 56–57). On September 18, the Board adopted a resolution declaring its intent to consider terminating Plaintiff's teaching contract (Doc. 22-29). The resolution alleged Plaintiff "submitted a report to ODE that contained allegations he knew were false and/or were intentional misrepresentations of events" (id. at 1).
On September 20, two days after learning of the Board's resolution, Plaintiff requested a hearing before a referee pursuant to O.R.C. Section 3319.16 (Doc. 22-46). The referee conducted a five-day record hearing, during which Plaintiff, through counsel, called witnesses, introduced evidence, and cross-examined the Board's witnesses (Docs. 21-2 at 211–212; 22-47 at 1). In May, a Report and Recommendation ("R&R") issued, finding that the Board proved, by a preponderance of the evidence, each of the grounds contained in its September 18 resolution, and that the Board had cause to terminate Plaintiff (Doc. 22-47 at 5). The R&R further found Plaintiff did not act in good faith (id. at 6). On June 18, 2018, the Board, relying on the R&R, adopted a resolution terminating Plaintiff's employment based on "good and just cause" under O.R.C. Section 3319.16 (Doc. 22-49 at 1). Plaintiff then timely filed this suit in September 2018 (Doc. 1).
DISCUSSION
Plaintiff alleges his suspension and termination constituted retaliation for speech protected by the First Amendment. To allege a prima facie retaliation case, Plaintiff must first prove his speech was protected. He fails.
The ODE Complaint Was Not a Matter of Public Concern.
The First Amendment only protects employees when they speak on "matters of public concern." Connick v. Myers , 461 U.S. 138, 143, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). The first step of the inquiry -- whether the speech involved such a matter -- is the same with respect to private and public employees. See Garcetti v. Ceballos , 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). If it does not, public officials enjoy "wide latitude" in responding without "intrusive oversight by the judiciary in the name of the First Amendment." Connick , 461 U.S. at 146, 103 S.Ct. 1684. In short, the key question is whether Plaintiff's speech "more closely resembled an employee's complaints regarding his superior's actions and his own responsibilities as a[n] [employee] than a citizen's speaking out on a matter of public decisionmaking." Garvie v. Jackson , 845 F.2d 647, 651 (6th Cir. 1988).
Here, the ODE complaint was clearly related to his issues with three fellow staff members. Plaintiff asked rhetorically: "If there are no consequences to said above or the whole school or penalties for teachers who did not participate in above practices which I understand to be wrong, what would be the reason for an educator or concerned party, or administrator to report such known abuse?" (Doc. 22-12). Most importantly, Plaintiff admitted he did not believe this rose to the level of a public concern (Doc. 21-2 at 137):
Q: Would it be fair to say that in your making the report that you did to Ms. Vaughn, you thought this is a serious matter?
A: No, not necessarily. I wanted to clear my conscious. I wouldn't say, I wouldn't say I really made a report. I was, more or less, asking for questions and clarity because of the concerns I had with the integrity of the test.
Q: So you had concerns you were seeking clarification on?
A: Yes.
Specifically, Plaintiff was concerned " ‘certain people’ [were] doing things to put a feather in their hat or make ‘them’ look good" (Doc. 22-15).
Plaintiff's attempt to recast himself as a whistleblower on state-sponsored cheating is unavailing. Nowhere in his briefing does Plaintiff explain why -- if he felt an obligation under O.R.C. Section 3319.151 to report fellow faculty members for "assist[ing] a student in cheating on an assessment" (Doc. 30 at 15) -- he decided to wait over a month to do so. Indeed, before the AIR Assessment, Plaintiff certified: "If I have reason to believe that there has been an assessment security violation committed by a student or staff member, or a violation of the ethical use of assessments by a staff member, I must immediately contact the designated school official" (Docs. 21-2 at 160–61; 22-39). Further, Plaintiff testified (Doc. 21-2 at 162):
A: I really didn't believe there was a violation. After one, two, three, four things happened, it just seemed strange that I missed some opportunities to help my students.
Q: What do you mean it seems strange you missed opportunities? What does that mean?
A: Was I supposed to leave my posters up, was Mr. Ahrens allowed to come in? And I testified previously that I looked in the mirror and I thought I goofed up here and I needed to call the State for clarification.
By his own admission, Plaintiff's search for clarification -- thirty-five days after administration of the AIR Assessment -- was not an attempt "to hold [his] superiors accountable for misconduct" (Doc. 30 at 15).
Plaintiff asserts the "integrity of state-mandated tests is undoubtedly a matter of public concern" (Doc. 30 at 14). This Court agrees. Yet the focus is not "what might incidentally be conveyed by the fact that the employee spoke in a certain way, [but] the point of the speech in question." Rodgers v. Banks , 344 F.3d 587, 597 (6th Cir. 2003) (citing Dambrot v. Cent. Mich. Univ. , 55 F.3d 1177, 1187 (6th Cir. 1995) ) (citation omitted). Therefore, "[c]ontroversial parts of speech advancing only private interests do not necessarily invoke First Amendment protection." Id. Plaintiff's ODE complaint did not involve "issues about which information is needed or appropriate to enable the members of society to make informed decisions about the operation of their government." Brandenburg v. Hous. Auth. of Irvine , 253 F.3d 891, 898 (6th Cir. 2001) (quoting McKinley v. City of Eloy , 705 F.2d 1110, 1114 (9th Cir. 1983) ). Rather, it dealt with a "quintessential employee beef" between Plaintiff, his superiors, and a fellow third-grade teacher -- meaning it is unprotected. Rodgers v. Banks , 344 F.3d 587, 597 (6th Cir. 2003) ("Internal personnel disputes or complaints about an employer's performance do not touch upon a matter of public concern and therefore fall outside the scope of First Amendment-protected speech.") (citation omitted). See also Connick , 461 U.S. at 147, 103 S.Ct. 1684 ("When a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior.") (citation omitted).
Plaintiff Was Speaking as a Public Employee.
Assuming the ODE complaint did involve a matter of public concern, Plaintiff must next show he was speaking as a private citizen rather than as an employee pursuant to his official teaching duties. Mayhew v. Town of Smyrna , 856 F.3d 456, 462 (6th Cir. 2017). See also Weisbarth v. Geauga Park Dist. , 499 F.3d 538, 545 (6th Cir. 2007) (holding that "even employee speech addressing a matter of public concern is not protected if made pursuant to the employee's official duties"). The question of whether a public employee's speech is protected is one of law, and this Court considers the content and context of the statement, including to whom it was made. Fox v. Traverse City Area Pub. Sch. Bd. of Educ. , 605 F.3d 345, 350 (6th Cir. 2010) ; Haynes v. City of Circleville , 474 F.3d 357, 362 (6th Cir. 2007). The answer depends on "whether the speech at issue is itself ordinarily within the scope of an employee's duties, not whether it merely concerns those duties." Lane v. Franks , 573 U.S. 228, 240, 134 S.Ct. 2369, 189 L.Ed.2d 312 (2014).
Plaintiff argues he was speaking as a private citizen when he emailed ODE because "the speech at issue itself is [not] ordinarily within the scope of [his] duties" (Doc. 30 at 9). Alternatively, he asserts that even if it does involve the subject matter of his employment, that does not automatically render it employment speech (Doc. 30 at 9–10). As outlined by the District in its job description for teachers, one of Plaintiff's primary job duties entailed "Proctor[ing] state/district testing activities as directed" (Doc. 22-38 at 1). His duties clearly included such proctoring and upholding mandated security protocols (Doc. 21-2 at 41). Further, even if the duty to uphold AIR Assessment security protocols was not in his job description, "[s]peech by a public employee made pursuant to ad hoc or de facto duties not appearing in any written job description is nevertheless not protected if it owes its existence to [the speaker's] professional responsibilities." Fox , 605 F.3d at 348 (6th Cir. 2010) (citations and internal quotation marks omitted). No matter which way Plaintiff argues, he loses.
Plaintiff signed the email "concerned educator" (Doc. 22-12 at 3). Clearly he was speaking in his position as teacher, rather than as a private citizen. As Defendants point out, this case is much like Schmersal v. Major , 753 F. Supp. 2d 691 (N.D. Ohio 2010), where a nurse: (1) sent a letter to the Ohio Board of Nursing alleging that registered nurses were not following appropriate procedures; and (2) made statements regarding her supervisors and their duties during a disciplinary proceeding. Id. at 698–99. Those statements were unprotected because they "were directly related to what she perceived to be her official duties." Id. at 699. The same is true here. Plaintiff emailed ODE "asking for questions and clarity because of the concerns [he] had with the integrity of the test" (Doc. 21-2 at 137). Such concerns arose "pursuant to his duties as a [teacher]." Garcetti , 547 U.S. at 421, 126 S.Ct. 1951. In light of the above, this Court need not reach the issue of whether Plaintiff's free-speech interest outweighs any of Defendants' interests.
Defendants Did Not Terminate Plaintiff for Protected Speech.
Plaintiff's claim fails not only because his speech was not protected, but also because he was not terminated for exercising his First Amendment rights. The Board considered terminating Plaintiff based upon "intentional misrepresentations of events" (Doc. 22-47 at 5). This prompted Plaintiff's request for a hearing before a referee, who found the following (id. at 2–7):
• "[All] Third Grade teachers indicated if they had reason to believe a staff member had committed a violation, they understood they must immediately contact the designated school official."
• "No staff members, including Mr. Fledderjohann, reported any alleged test violations to Mr. Luebke, Principal Ahrens, or Ms. Simcoe during or after the November 2016 AIR assessment."
• "On December 22, 2016, over a month after the AIR assessment , Mr. Fledderjohann sent an email to Jennifer Vaughn ... with an attachment containing the [allegations referenced above]."
• "After receiving assurances he would remain anonymous, and there would be consequences for the individuals he identified, Mr. Fledderjohann ... report[ed] Ms. Hodge, Principal Ahrens, and Mr. Luebke had violated Test Security Protocols."
• "Th[ose] three staff members ... had been involved in past disciplinary proceedings against Mr. Fledderjohann."
• "Dr. Schmiesing['s] ... Report determines no test violations had occurred, [and] ... further notes there were reasons for the Board to question Mr. Fledderjohann's credibility."
• "I also concur with the ODE, and I also find and believe there were no testing violations, as claimed by Mr. Fledderjohann."
• "I find the Board has proven, by a preponderance of the evidence, each of the specifications set forth in the Board's September 18, 2017 Resolution of Intention to Consider [Plaintiff's termination]."
• "I find from the evidence Mr. Fledderjohann submitted a report to ODE regarding Principal Ahrens, Mr. Luebke, and Ms. Hodge containing allegations he knew were false and/or contained intentional misrepresentations of events."
• "I find a preponderance of the Evidence supports a determination the Board has good and just cause to terminate Mr. Fledderjohanns' employment contracts."
• "Commonsense tells me reporting a teacher to the Ohio Department of Education alleging Testing Violations by a Teacher is a ‘serious matter’ ... [which] could have ... ended the careers of a teacher and two ... administrators."
• "In his defense, Mr. Fledderjohann alleges he acted in ‘good faith;’ I disagree. I find Mr. Fledderjohann did not act in ‘good faith’ for the following reasons: (1) If Mr. Fledderjohann believed in good faith the alleged testing violations had occurred; I believe he would have at once reported the violation. This is a commonsense conclusion on my part, but it is also what was required of Mr. Fledderjohann to do, pursuant to the training provided to him prior to the administration of the test; [and] (2) [i]n accusing Principal Ahrens, Mr. Luebke, and Ms. Hodge of testing violations, I find he did not do so in ‘good faith,’ but rather out of retaliation and retribution against them for their involvement in prior disciplinary matters relating to [him]."
• "I find Mr. Fledderjohann made false and intentional misrepresentations to the Ohio Department of Education accusing Mr. Luebke, Ms. Hodge, and Principal Ahrens of Testing Violations."
• "I find this conduct by Mr. Fledderjohann to be a ‘serious matter.’ In doing so, I find Mr. Fledderjohann did not act in ‘good faith.’ "
• "I find the Board's policy of requiring a teacher to refrain from knowingly or willfully making false statements about a colleague ... to be reasonable and appropriate. I find Mr. Fledderjohann has violated this policy, and I find this violation by Mr. Fledderjohann to be ... disruptive to the mission of the Celina City Schools, and these accusations by Mr. Fledderjohann create a detrimental effect on the District, because it prevents staff members from working together, because of distrust and suspicion, thus creating a hostile work environment."
• "I find there is ‘good and just cause’ for the Board's Request for Termination of Mr. Fledderjohann's Teaching Contract, and as Referee, I approve this Request of the Board."
While this Court is not bound by these findings, administrative proceedings -- such as the one here under Section 3319.16 -- may preclude actions in federal court. Featherstone v. Columbus Pub. Sch. , 39 F. Supp. 2d 1020, 1023–25 (S.D. Ohio 1999). For the Section 3319.16 hearing to preclude this suit, the issue of whether he was terminated for exercising his First Amendment rights must have been decided by the referee. See Pingle v. Richmond Heights Local Sch. Dist. Bd. of Educ. , 2015 WL 6501449, at *6 (N.D. Ohio 2015) (citing Nelson v. Jefferson Cty. , 863 F.2d 18 (6th Cir. 1988) ).
The referee considered the Board's stated reasons for Plaintiff's termination (Doc. 22-47 at 4–5). He found the stated reasons were adequate, the Board's policy regarding such actions was reasonable, and that the Board had "good and just cause" to terminate Plaintiff (id. at 5). However, he did not determine whether the Board's proffered reasons were the actual reasons for Plaintiff's termination. See Pingle , 2015 WL 6501449, at *7 ("With respect to [the plaintiff's] retaliation claim, while the referee and Board concluded that [his emails] ... were adequate to support termination, the issue of whether the emails were the true motivation—or a pretext—for his dismissal was not determined."). So Plaintiff is correct -- that determination is one for this Court to make. But he cannot avoid the referee's findings of fact. See Id. ("To the extent that specific facts determined by the referee are relevant to plaintiff's discrimination and retaliation claims, those facts cannot be relitigated by the parties."); Univ. of Tenn. v. Elliott , 478 U.S. 788, 797, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986) (holding that federal courts should "apply principles of issue preclusion to the factfinding of administrative bodies acting in a judicial capacity"); Flis v. Voinovich , 162 F.3d 1161 (6th Cir. 1998) ("Ohio recognizes the doctrine of administrative res judicata so long as the administrative body acted in a judicial capacity to resolve factual disputes that the parties had a fair opportunity to litigate before it, the factual disputes resolved were relevant to issues properly before the agency, and the parties have an opportunity to seek review of any adverse findings.") (citations omitted).
The referee determined the ODE complaint "contain[ed] allegations [Plaintiff] knew were false and/or contained intentional misrepresentations of events" (Doc. 22-47 at 6). Such conduct violated the District's policy against "knowingly or willfully making false statements about a colleague," resulting in his termination (id. at 7). The truthfulness of Plaintiff's accusations was "directly at issue" in the Section 3319.16 hearing. Plaintiff is stuck with those findings.
Although the referee did not determine those reasons were the actual cause for Plaintiff's termination, this Court finds they were. Plaintiff fails to "produce[ ] enough evidence to create a material issue of disputed fact about whether [he] was actually fired because of [the] disruptive statements." Waters v. Churchill , 511 U.S. 661, 662, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994). He points to no protected speech that could serve as an improper basis for his termination. True, public employees are generally not required to prove the truth of their speech in order for it to be protected. Chappel v. Montgomery Cty. Fire Prot. Dist. No. 1 , 131 F.3d 564, 576 (6th Cir. 1997). But in this case, Defendants have established Plaintiff "knew or was recklessly indifferent to the fact that his speech was false." See id. (citing Williams v. Com. of Ky. , 24 F.3d 1526, 1535–36 (6th Cir. 1994) ). Plaintiff was terminated for making a false complaint. That complaint was not protected. See Gossman v. Allen , 950 F.2d 338, 342 (6th Cir. 1991) (citing Pickering v. Board of Educ. , 391 U.S. 563, 574, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) ).
CONCLUSION
Plaintiff's personal quarrel with his fellow teachers led to a false ODE report. The First Amendment does not afford public employees protection under such circumstances. Defendants' Motion for Summary Judgment (Doc. 23) is granted. Time to put the pencils down. Class dismissed.
IT IS SO ORDERED.