Colorez v. City of Cincinnati, Case No. 1:17–cv–737

441 F.Supp.3d 560

Gary COLOREZ, Plaintiff,

v.CITY OF CINCINNATI, et al., Defendants.

Case No. 1:17–cv–737

United States District Court, S.D. Ohio, Western Division.

Signed February 26, 2020

Brian Paul Gillan, George M. Reul, Jr., Randolph Harry Freking, Freking Myers & Reul LLC, Cincinnati, OH, for Plaintiff.

William Christopher Hicks, Office of the City Solicitor, Emily E. Woerner, City of Cincinnati, Cincinnati, OH, for Defendants.

OPINION AND ORDER

DOUGLAS R. COLE, UNITED STATES DISTRICT JUDGE

In this action, Gary Colorez, a public employee, claims he was terminated in retaliation for exercising his First Amendment rights. Now before this Court is a Motion for Summary Judgment (Doc. 21) by the three defendants—the City of Cincinnati and two of its employees, Maraskeshia Smith and Harry Black (the "City Defendants"). The Court heard oral argument on January 22, 2020. For the following reasons, the Court GRANTS the Defendants' Motion and DISMISSES WITH PREJUDICE the remaining claim against the City Defendants.

FACTUAL BACKGROUND

A. Colorez Begins Employment with the City of Cincinnati.

The City of Cincinnati (the "City") hired Plaintiff Gary P. Colorez ("Colorez") on June 18, 2017, as the Superintendent of the Neighborhood Operations Division ("NOD Superintendent"), which is part of the City's Public Services Department, commonly called "Sanitation." (Defs.' Proposed Undisputed Facts ("Defs.' Prop. Facts"), ¶ 1, Doc. 21-1, #441¹ ). Colorez's job duties required him to manage City functions, including sanitation, greenspace, trash collection, and lot abatement. (Id. at ¶ 7). Colorez understood his "job was to make sure [trash collection and greenspace maintenance] was done efficiently." (Id. ). While employed, Colorez reported directly to Joel Koopman ("Koopman"), the Deputy Director of Public Services, who in turn reported to Defendant Maraskeshia Smith ("Smith"), the Director of Public Services. (Colorez Dep., 15–16, Doc. 20, #224–25). Smith reported to the other individual Defendant, then-City Manager Harry Black ("Black").

Colorez's official job description and responsibilities were detailed in the position's Class Specification (a form of job description for City jobs). (Colorez Dep. Ex. 2, Doc. 20-2, #379–83). Colorez maintains he did not see this job description before being hired, and disputes whether some of the functions set forth in that description were in fact part of his job. (Colorez Dep. at 33–35, #242–44). During his deposition, though, he admitted to exercising many of the listed duties, including oversight, professional development, labor, contract interpretation, and payroll as it related to his department. (See id. at 33–37, #242–46). Colorez stated he "was supposed to work closely with the director and the deputy director ... [and was] responsible for development and presentation of information ... to a certain extent." (Id. at 37, #246).

As more fully discussed below, this dispute regarding the scope of Colorez's job duties potentially matters to this Motion, in that Colorez is claiming retaliatory discharge in violation of his First Amendment rights. The First Amendment offers substantially less protection for job-related speech by a public employee (which this Opinion calls "employee-speech") than for non-job-related speech by that same employee (referred to here as "citizen-speech"). Accordingly, the narrower the scope of Colorez's job, the more likely that the speech at issue falls into the latter category, and thus the more likely it can serve as the basis for a First Amendment retaliation claim.

B. Colorez Raises Concerns About City Practices.

During his short tenure with the City, Colorez expressed several concerns about various City practices. He believes that these comments, whether individually or cumulatively, provided the impetus for his termination. His concerns related to the City's: (1) recycling program; (2) procurement system; (3) greenspace mowing; (4) street sweeping; and (5) abandoned lot abatement. (Compl., ¶ 12–21, Doc. 1, #6-8). Given the First Amendment framework that applies, due consideration is warranted as to the relationship, if any, between each issue and Colorez's job. To ascertain that, this Court must first explore more fully the nature of each of the listed concerns and the manner in which Colorez raised them.

Colorez was concerned with how the City conducted its metal recycling program. (Colorez Dep. at 96, #305). Namely, he believed the City should be receiving money for its metal recyclables rather than paying a vendor to haul away and recycle metal waste. (Id. at 95, #304). Colorez raised this issue during a meeting he had with Sue Magness, who Colorez recalled as the City's "Director of Environmental Services." (Id. at 95–96, #304–05). When Magness told him to look into the issue and call her back, Colorez inquired to Chris Callahan (a fellow employee), and then pressed the matter further with Smith, his supervisor two steps up. (Id. at 96–97, #305–06). He and Smith discussed the recycling program "within that week, [or a] couple days [of him learning about the issue] ... but it had to be maybe late July, early August somewhere in there." (Id. at 97–98, #306–07). Their discussion occurred "in the hallway" of the "Public Services Hopple Street building." (Id. at 98, #307).

Colorez also took issue with the City's procurement methods, specifically the use of BFX, LLC ("BFX"). (Colorez Dep. at 62–64, #271–73). BFX provided the City with products that Colorez and his team used in connection with their work for the City. (Id. at 55–56, #264–65). The BFX program was a pilot program, attempting to centralize and streamline City purchasing and third-party facilities services. (Black Dep. Ex. 6, Doc. 18-6, #133–59). Colorez thought that the prices BFX charged the City were exorbitant; he believed procurement through other means, including his employees being able to purchase materials directly, would save money for both his department and the City. (Colorez Dep. at 75–77, #284–86). Specifically, he raised concerns about how much the City was paying for paper towels (Compl. at ¶ 21, #7–8), paint, (Colorez Dep. at 64–65, #273–74), garbage can liners, (id. at 54–56, #263–64), other "inferior goods," (id. at 50–51, #259–60), and service fees to pressure wash a garage (id. at 76, #285).

Colorez asserts that he took these concerns directly to Smith, (id. at 56–57, 77, #265–66, 286), but it appears from the record he only raised them with her orally, as no one has pointed to any written documentation reflecting these concerns. Colorez could not remember exactly when his conversation with Smith occurred, but he thought it was roughly "during the time when [he] was speaking with [Smith] about all [his] concerns, the three or four occasions [they] had together." (Id. at 77, #286). These conversations, some of which also included Koopman, occurred at the Hopple Street Building, during both a staff meeting and in one-off conversations. (Id. at 57–58, #266–67).

Colorez was also troubled by the quality and payment structure for contracted greenspace mowers, a system he believed promoted waste. (See id. at 83, #292). These contractors were responsible for mowing and maintaining particular City greenspaces, including parks, which fell under Colorez's supervision. (Id. at 14, 83–88, #223, 292–97). As Colorez understood it, part of his job was to ensure that grass on City property was cut in an efficient and cost-effective manner; he believed the contractors were working in opposition to this goal. (Id. at 16, #225). Based on concerns workers in his department raised, Colorez investigated this issue and discovered that the contract mowers were not completing work, but were submitting invoices, which the City often paid without investigation. (Id. at 88–89, #297–98). As citizen complaints about overgrown grass accumulated, Colorez instructed John Erwin (a City employee) to cross-reference those complaints with the lots assigned to the contract mowers. (Id. at 88–89, #297–98). Discovering overlap, Colorez took this issue to Smith. (Id. at 84–85, #293–94).

Colorez similarly questioned the efficiency of contracted street sweepers who cleaned City streets. (Id. at 53, #262). Colorez claimed he knew the street sweepers were not performing their duties because he lived downtown. (Id. ). He confirmed his suspicions when he reviewed the sweepers' contract, which he requested via email from Robert Armacost (a City employee). (Id. at 78–79, #287–88). Colorez then reviewed GPS tracking data (or lack thereof) that was "supposed to be attached with the [streetsweeper] invoices." (Id. at 80, 82, #289, 291). Sensing inefficiency, coupled with a lack of corroborating GPS data, Colorez concluded his employees could do a better job. (Id. at 79–80, #288–89). He discussed this idea with Smith, to whom he suggested that "if the City would sweep [the streets at issue], that we would save a huge amount of money and it would get done on a nightly basis." (Id. at 51, 53–54, 83, #260, 262–63, 292). After being rebuffed, he voiced this same concern during a staff meeting. (Id. at 79–80, #288–89).

Finally, Colorez took issue with various costs the City incurred for abandoned lot abatement. (Id. at 89–91, #298–300). After analyzing the before and after photos of a typical abatement project, Colorez determined the small amount of work completed "did not justify the ... exorbitant cost." (Id. at 92, #301). Then, after reviewing the bills sent to the City from the private contractors, Colorez compared them to what he believed it would cost for his employees to do the same work and he concluded the latter would be more efficient. (Id. at 93–94, #302–03). He again went to Smith. (Id. at 91, #300).

C. Colorez's Employment Ends and He Sues the City.

In the end, Colorez's tenure with the City lasted approximately ten weeks; Smith terminated his employment on September 8, 2017. (Black Dep. Ex. 3, Doc. 18-3, #116). Colorez...