DeCrane v. Eckart

12 F.4th 586

Sean DECRANE, Plaintiff-Appellee,

v.Edward ECKART, in his official and individual capacities; City of Cleveland, Ohio, Defendants-Appellants.

No. 20-3620

United States Court of Appeals, Sixth Circuit.

Argued: April 29, 2021

Decided and Filed: September 1, 2021

Rehearing En Banc Denied October 14, 2021

ARGUED: David R. Vance, ZASHIN & RICH CO., L.P.A., Cleveland, Ohio, for Appellants. Subodh Chandra, THE CHANDRA LAW FIRM LLC, Cleveland, Ohio, for Appellee. ON BRIEF: David R. Vance, Jon M. Dileno, ZASHIN & RICH CO., L.P.A., Cleveland, Ohio, William Menzalora, CITY OF CLEVELAND, Cleveland, Ohio, for Appellants. Subodh Chandra, Donald Screen, Patrick Haney, THE CHANDRA LAW FIRM LLC, Cleveland, Ohio, for Appellee.

Before: GUY, DONALD, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Someone in the City of Cleveland's fire department leaked embarrassing information to the media about its chief's insufficient training hours. Sean DeCrane, the director of the Fire Training Academy, was not that person. But, according to DeCrane, Edward Eckart thought he was. DeCrane alleges that Eckart facilitated several harmful personnel actions against him because of this mistaken belief—all in violation of the First Amendment. Eckart's response? He argues that the First Amendment does not protect speech made as part of an employee's government job, see Garcetti v. Ceballos , 547 U.S. 410, 421–22, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), and that DeCrane would have leaked the information pursuant to his job duties as the training director. The district court denied Eckart qualified immunity on this argument, holding that our precedent clearly established that DeCrane would have tipped off the media as a private citizen rather than a public employee. We agree and affirm this part of the court's decision. We dismiss Eckart's other two arguments for lack of jurisdiction in this appeal's interlocutory posture.

I

Given this case's procedural posture, we recite the facts (many of which are disputed) in the light most favorable to DeCrane. See Beck v. Hamblen County , 969 F.3d 592, 598 (6th Cir. 2020). DeCrane started as a firefighter with the City of Cleveland's Division of Fire in the 1990s, eventually working his way up to battalion chief. In August 2012, DeCrane became the director of training at the city's Fire Training Academy.

The same year, DeCrane applied to be the chief of the Division of Fire. He went through a two-step interview process—an interview with a panel followed by one with the mayor. The panel included Eckart, an assistant director in the Department of Public Safety that oversees the Division of Fire. After the panel rated DeCrane second behind Daryl McGinnis, the mayor chose McGinnis to be the next chief. In early 2013, Eckart informed DeCrane of the decision. During their call, DeCrane said he was surprised by this choice. He told Eckart that McGinnis had fallen behind in his required continuing-education hours. When confronted with this claim, McGinnis assured Eckart that his training was up to snuff.

McGinnis was lying. Someone tipped off the media about McGinnis's deficient training. Six months after his promotion, a reporter asked for his training records. McGinnis then came clean that his training was, in fact, inadequate. The city put him on leave the next month; he resigned a day or two later. The ensuing media coverage reflected poorly on the city.

DeCrane did not leak the tip about McGinnis's deficient training, which was an open secret in the Division of Fire. According to DeCrane, however, Eckart mistakenly believed that he was the leak's source. DeCrane contends that Eckart (among others) subjected him to a three-year campaign of retaliation for this misperceived leak. DeCrane was not disciplined or demoted.

But he says that he endured four types of retaliatory actions.

1. Lack of Promotions . DeCrane alleges that he received no further promotions because of the mistaken belief that he was the leaker. Chief McGinnis's abrupt departure left a vacancy at the top. Although DeCrane applied for the position, Patrick Kelly began serving as the interim chief in August 2013. Kelly received the promotion even though DeCrane's interview score from a few months earlier had been higher. In late 2013, DeCrane interviewed to be the permanent chief, but Kelly received that appointment too.

DeCrane was next passed over for assistant chief in early 2015. A panel ranked him last of eleven candidates. In May 2015, DeCrane confronted Eckart about his lack of promotions. When DeCrane suggested that Eckart thought that he had disclosed McGinnis's training deficiencies to the media nearly two years earlier, Eckart allegedly slammed his fist on a table and shouted "[y]ou have to admit it's pretty coincidental" that the leak occurred a few months after DeCrane alerted him of the issue. DeCrane Dep., R.145, Page 260. (Eckart disputes this account.)

Chief Kelly resigned later that year. DeCrane interviewed to be the interim chief. Angelo Calvillo was appointed instead. DeCrane was passed over a final time when the city named Calvillo the permanent chief in April 2016.

2. Misconduct Charges . DeCrane next alleges that he faced unfounded misconduct charges because of the mistaken belief that he leaked McGinnis's training deficiencies. In January 2015, a firefighter named Larry Moore filed a complaint alleging that, on DeCrane's orders, a captain asked him to record Training Academy information inaccurately. Eckart directed the Office of Integrity Control, Compliance, and Employee Accountability (which goes by "OIC") to investigate the complaint. He tasked the OIC with reviewing not just Moore's specific allegations but also the Training Academy's general recordkeeping practices.

The OIC recommended that the city bring charges against DeCrane (among others) for the wrongdoing alleged by Moore and the failure to keep accurate records. Yet, after the OIC interviewed DeCrane in October 2015, Jim Votypka, the OIC head, informed Eckart that Moore's allegations of intentional wrongdoing "could not be substantiated." Mem., R.139-17, PageID 9309. DeCrane was nevertheless brought in for a second interview (an unusual occurrence) about two months later in December 2015. Eckart questioned DeCrane about McGinnis: "How/why did you know Daryl McGinnis was deficient at continuing education for EMT?" Eckart Dep., R.140, PageID 9641.

The same month as this interview, state auditors reviewed the Training Academy's records and concluded that they were "exceptionally well kept and complete." Review, R.147-19, PageID 11693. Given the Academy's history of sloppy recordkeeping, this finding came as good news. A short time later, Votypka told Eckart that the Academy's recordkeeping was "now efficient, organized and in keeping with a professional organization." Mem., R.139-18, PageID 9320. Rather than dismiss the charges against DeCrane, however, Eckart sat on them. He did not notify DeCrane of their dismissal until December 2016, a year after the favorable audit.

3. Other Academy Issues . DeCrane next suggests that the city undermined his work at the Training Academy in retaliation for the alleged leak of McGinnis's deficient training. After news broke of the issue in August 2013, the mayor ordered an audit of all training records for all firefighters. On the day of the order, a group that included Eckart seized the Academy's records. The city had never before confiscated records in such dramatic fashion. Despite requests that the records be returned, the Academy also did not receive them back for months. DeCrane claims that the seizure slowed his efforts to improve the Academy's poor recordkeeping.

In 2014, the city also tried (but failed) to outsource firefighter training to a local college. Eckart initiated and oversaw that process. According to a declaration from Chief Kelly, Eckart offered to drop the outsourcing efforts if Kelly replaced DeCrane as the Training Academy's director. (Kelly disputed his own account in a second declaration, but we must resolve this conflict in DeCrane's favor.)

4. Last-Day Event . DeCrane alleges a final retirement-related slight tied to the belief that he was the leaker. When he retired from the Division of Fire in September 2016, his coworkers threw him the standard last-day party. Calvillo, who by then was the chief, had a policy requiring certain events to receive prior approval. DeCrane's party was shut down because it purportedly did not comply with this policy.

* * *

A month later, DeCrane sued Eckart, Votypka (the OIC head), Christopher Chumita (an OIC investigator), and the City of Cleveland. As relevant for this appeal, DeCrane brought constitutional claims under 42 U.S.C. § 1983. He alleged that the individual defendants retaliated against him in violation of the First Amendment, and he sought to hold the city liable for this retaliation under Monell v. Department of Social Services , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The district court granted summary judgment to Votypka and Chumita on the First Amendment retaliation claim and to the city on the Monell claim. DeCrane v. Eckart , 2020 WL 2475357, at *6–11 (N.D. Ohio May 13, 2020). But it denied summary judgment to Eckart on the First Amendment claim. Id. at *7–11. Eckart now appeals this part of the court's decision.

II

DeCrane's complaint alleged that Eckart violated the First Amendment by retaliating against him because of the media leak about Chief McGinnis's deficient training. To hold Eckart liable under § 1983, DeCrane needed to establish two things. See District of Columbia v. Wesby , ––– U.S. ––––, 138 S. Ct. 577, 589, 199 L.Ed.2d 453 (2018). He first needed to make out a constitutional violation by establishing the three elements for his claim: that the First Amendment protected the media leak, that Eckart took an adverse action against him, and that a causal connection existed between the leak and the action. See Rudd v. City of...