Gillman v. Schlagetter

777 F.Supp.2d 1084

Jeff GILLMAN, Plaintiff,

v.Douglas SCHLAGETTER, et al., Defendants.

Case No. 3:08–cv–454.

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

Aug. 30, 2010.

David D. Brannon, Brannon & Associates, Jason Phillip Walker, Pyper Alexander & Nordstrom, LLC, Dayton, OH, for Plaintiff.Cheri B. Hass, Paul Bernhart, Downes Fishel Hass Kim LLP, Columbus, OH, for Defendants.Dwight Dean Brannon, Brannon & Associates, Dayton, OH.

ENTRY AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Doc. 45), DENYING PLAINTIFF JEFF GILLMAN'S MOTION FOR PARTIAL SUMMARY JUDGMENT, (Doc. 52) AND ORDERING CLERK TO STRIKE PLAINTIFF JEFF GILLMAN'S MOTION FOR PARTIAL SUMMARY JUDGMENT. (Doc. 51).

THOMAS M. ROSE, District Judge.

Pending before the Court are two motions: Defendants' Motion for Summary Judgment (Doc. 45) and Plaintiff Jeff Gillman's Motion for Partial Summary Judgment (Doc. 52).¹ Defendants' Motion for Summary Judgment (Doc. 45) requests that the Court grant Defendants summary judgment on Plaintiff's claim under 42 U.S.C. § 1983 for terminating Plaintiff's employment allegedly in violation of speech protections afforded by the First and Fourteenth Amendments, on Plaintiff's claim of abuse of process, on Plaintiff's claim for common law conspiracy and on Plaintiff's claim for intentional infliction of emotional distress. Motion of Plaintiff for Summary Judgment (Doc. 52), by contrast, requests that the Court grant Plaintiff summary judgment on his claim for abuse of process.

I. Background

This case involves events concerning the termination Plaintiff Jeff Gillman's employment as a Deputy in the Shelby County Sheriff's Office. Plaintiff reported to and was supervised by Defendant Lieutenant Joanie Henry. Defendant Sheriff Doug Schlagetter supervised Lieutenant Henry. (Henry Dep. Tr. at 4.)

In the months leading up to the November 2008 Shelby County Sheriff's Election, Deputy Jeff Gillman posted on the Sidney Daily News forum under the pseudonyms “sidirect10” and “pelonis44.” (Doc. 60 Ex. 1.) In the election, Gillman supported the challenger to Sheriff Doug Schlagetter and made many posts opining on the suitability of each candidate. (Doc. 60 Ex. 1, Doc. 60 Ex. 2.) On August 25, 2008, Gillman posted allegations about his supervisor, Lieutenant Henry, on the Sidney Daily News forums. (Defs.' Ex. L at 9.) On August 26, 2008, Gillman posted allegations on the forum regarding the personal life of Patty Davis, a Sheriff's Office employee with whom he was intimately involved. (Defs.' Ex. L at 5, Gillman Dep. at 186.) Upon seeing the forum post about her, Davis, posing as her husband under the name “Gilbert Narley,” sent an email to Sidney Daily News Online Forum Administrator David Collins on September 13, 2008 complaining about the statements made about her and requesting the identity of “sidirect10,” the username which appeared on the aforementioned comments. (Collins Aff. at 2, Davis Aff. at ¶ 2.)

Two points should be noted at this juncture. First, the Sidney Daily News forum's terms of service allowed the forum administrators to reveal users' identities “in the event of a formal complaint or legal action arising from any situation caused by ... use of this forum.” Second, the Shelby County Sheriff's Office has a policy that forbids deputies from gossiping about any employee, failing to cooperate with an investigation, or publicly criticizing or ridiculing the Sheriffs' Office, its policies, personnel or supervisors.

Between September 13 and September 15, 2008, Sidney Daily News Online Forum Administrator Collins sent the IP address of “sidirect10” to Patty Davis and banned “sidirect10.” (Defs.' Ex. M at 22–23.) He also passed along his suspicions that “sidirect10” was someone within the Sheriff's Office. (Arbitration R. at 104–05.) Upon “sidirect10” being banned, Gillman began contacting Collins in an increasingly threatening manner using his other pseudonym, “pelonis44.” (Collins Aff., Doc. 52 Ex. 7.)

Davis gave this IP address to Sergeant Wick, who determined that it was one of two unverified IP addresses with external access to the internal Sheriff's Office network. (Henry Dep. at 9.) By comparing the IP address provided by Collins with the list of IP addresses given external access to the Sheriff's Office network, Wick knew that the IP address belonged to one of a “very few select people,” of which Gillman was part. (Wick Dep. at 13.) At that point, to “corroborate Wick's suspicion” that Gillman was posting as “sidirect10” (Schlagetter Dep. at 129), Henry asked Wick to request a subpoena, which was granted on September 18, 2008 (Doc. 52 Ex. 4, Henry Dep. at 9, Wick Dep. at 18). The deadline for responding was set as October 3, 2008. (Doc. 52 Ex. 4.) Defendants claim that they never served the first subpoena (Schlagetter Dep. 124, Wick Dep. at 10) because of the Sheriff's concern that at that point the investigation was only “internal and not criminal” (Schlagetter Dep. at 140). Eventually, however, a subpoena was sent to WatchTV to verify the owner of the IP address used by “sidirect10.” (Schlagetter Dep. at 138.)

Meanwhile, on October 2, 2008, Davis's husband had received an anonymous call claiming that Gillman and his wife were having an affair. (Henry Dep. at 18–19.) When Davis finally confessed the affair to him on the morning of October 4, 2008, he grabbed his shotgun and left. (Schlagetter Dep. at 47, Henry Dep. at 19.) He drove around for approximately 14 hours, possibly in search of Gillman, and was described as being in a “suicide by cop” mindset. (Pl.'s Ex. 8, Gillman Dep. at 199.) The report stated that Davis's husband “may be suicidal and homicidal” and later that evening, a “be on the lookout” was issued. (Pl.'s Ex. 11 at 4, Schlagetter Dep. at 60.) Around midnight, the Bellefontaine police stopped Davis's husband and turned him over to the Sheriff's Office, from which he was released shortly thereafter. (Pl.'s Ex. 8.)

Almost a month after Defendants obtained the September 18 subpoena, on October 16, 2008, Henry contacted Sidney Daily News Online Forum Administrator Collins regarding the Sheriff's Office's internal investigation of Gillman and requested that Collins provide them with posts from the forums relating to the Sheriff's election. (Collins Aff. at 9, Henry Dep. at 12.) That same day Collins came to the Sheriff's office and discussed both the forum posts and the threatening emails from “pelonis44” with the Sheriff's Office for the first time. (Henry Dep. at 12, Collins Aff. at 1.) Following the meeting with Collins, the Sheriff's Office requested a second subpoena. (Schlagetter Dep. at 124; Arbitration Record at 149; Doc. 28 at Q. 11; Henry Dep. at 10,13; Wick Dep. at 21.) The day after Collins met with the Sheriff's Office, October 17, 2008, Lieutenant O'Leary, Lieutenant Henry, and Lieutenant Henman conducted an investigatory interview with Gillman. (Henry Dep. at 15, Doc. 52 Ex. 2.) The officers asked Gillman whether he was “sidirect10,” which he denied. (Gillman Dep. at 206–07.) After the interview, Gillman was placed on administrative leave.

The Sheriff's Office had a policy that required employees to direct all inquiries by the news media to the Sheriff or his designee. (Def. Ex. D.) Additionally, on September 24, 2008, Sheriff Schlagetter distributed an internal memo reminding all employees that dissemination of information to the news required prior approval. (Def. Ex. E.) Despite knowing the policy and receiving the memo, on October 18, 2008, Gillman confirmed to the Sidney Daily News facts pertaining to him regarding an October 17 story published about the behavior of Davis's husband on October 2, 2009. (Gillman Dep. at 198–99, Def. Ex. O.)

At the conclusion of the internal investigation on October 28, 2008, Sheriff Schlagetter terminated Gillman, stating as his reasons for doing so that Gillman used the Sidney Daily News online forum to demean, verbally abuse and humiliate employees of the Sheriff's Office, and that he discourteously treated Collins in threats made after Collins removed him from the online forum. (Gillman Dep. at 68–69.) On October 29, 2008, the Sheriff's Office received a response to the subpoena from WatchTV that showed Gillman as the owner of the IP address belonging to “sidirect10.” (Doc. 52 Ex. 4.)

Gillman grieved his termination to an arbitrator, as allowed under his union's collective bargaining agreement. On December 8, 2009, the arbitrator found that Gillman threatened Collins and that Gillman willfully demeaned, verbally abused and humiliated his coworkers by posting comments on the online forum concerning their sex lives. The arbitrator concluded that the Sheriff's Office had just cause to terminate Gillman's employment.

On December 10, 2008, Plaintiff filed suit in the United States District Court for the Southern District of Ohio, Western Division at Dayton, alleging infringement of Plaintiff's First Amendment rights, wrongful discharge, abuse of process, conspiracy, and intentional infliction of severe emotional distress. (Doc. 2.) On February 26, 2009, Defendants filed a Motion to Dismiss (Doc. 6), which the Court granted on May 18, 2009, thereby dismissing one of his First Amendment claims, the wrongful discharge claim, and Defendant Shelby County Board of County Commissioners (Doc. 11).

After discovery was completed, both Plaintiff and remaining Defendants filed motions for summary judgment on March 1, 2010. (Doc. 45, Doc. 52.) Plaintiff requested partial summary judgment on his state law claim for abuse of process. Defendants requested summary judgment on all remaining claims, asserting qualified immunity, state statutory immunity, and lack of constitutional violation.

II. Standard of Review

Federal Rule of Civil Procedure 56 and associated case law establishes the standard of review applicable to motions for summary judgment. Rule 56 provides that summary judgment “shall be rendered forthwith if the...