Littler v. Ohio Ass'n of Pub. Sch. Emps.

88 F.4th 1176

Christina LITTLER, Plaintiff-Appellant, v. OHIO ASSOCIATION OF PUBLIC SCHOOL EMPLOYEES, Defendant-Appellee.

No. 22-4056

United States Court of Appeals, Sixth Circuit

Argued: October 24, 2023

Decided and Filed: December 21, 2023

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 2:18-cv-01745—Sarah Daggett Morrison, District Judge.

ARGUED: Jonathan F. Mitchell, MITCHELL LAW PLLC, Austin, Texas, for Appellant. Jacob Karabell, BREDHOFF & KAISER, P.L.L.C., Washington, D.C., for Appellee. ON BRIEF: Jonathan F. Mitchell, MITCHELL LAW PLLC, Austin, Texas, for Appellant. Jacob Karabell, Richard F. Griffin, Jr., BREDHOFF & KAISER, P.L.L.C., Washington, D.C., for Appellee. William L. Messenger, NATIONAL RIGHT TO WORK LEGAL DEFENSE FOUNDATION, INC., Springfield, Virginia, for Amicus Curiae.

Before: WHITE, NALBANDIAN, READLER, Circuit Judges.

OPINION

HELENE N. WHITE, Circuit Judge.

Plaintiff-Appellant Christina Littler appeals the grant of summary judgment to Defendant-Appellee Ohio Association of Public School Employees (OAPSE) in this 42 U.S.C. § 1983 action alleging the wrongful deduction and retention of union dues. Because the district court did not err in concluding that OAPSE was not a state actor under § 1983, we AFFIRM.

I.

A.

Christina Littler became a bus driver for the South-Western City School District in 2011. In 2015, she joined OAPSE, a public-sector union that represents over 30,000 employees in Ohio. When Littler joined the union, she signed an OAPSE membership-application card that authorized the school district to "deduct OAPSE State dues and Local dues as set forth herein . . . from [her] salary or wages and remit the same to the OAPSE State Treasurer." R.37-1, PID 1016; see Ohio Rev. Code § 4117.09(B)(2). The membership application also stated that "any withdrawal of dues deduction authorization shall be in writing, executed and delivered during the revocation period by written notice served upon the Chief Fiscal Officer of the Employer and the OAPSE State Treasurer," and that any withdrawal must happen "during a 10 day period from August 22 through August 31." R.37-1, PID 1016.

Prior to the Supreme Court's decision in Janus v. American Federation of State, County, & Municipal Employees, Council 31, — U.S. —, 138 S.Ct. 2448, 201 L.Ed.2d 924 (2018), OAPSE collected membership dues from union members and fair-share fees, i.e. reduced union fees, from bargaining-unit members who did not join the union. Under this fair-share fees scheme, the school district would, without any prior authorization from the affected employees, withhold fees from employees who did not elect to join the union. In Janus, the Supreme Court held that imposition of mandatory fair-share fees on non-union members by public-sector unions is unconstitutional. 138 S. Ct. at 2460. In response, OAPSE stopped collecting fair-share fees from non-members.

Following the Janus decision, and during the 10-day withdrawal period in August 2018, Littler sent an email to Gary Martin, the Director of Membership Services for OAPSE, and Hugh Garside, the Treasurer and CFO for the South-Western City School District, stating that she was withdrawing her union membership (and therefore her prior dues-deduction authorization too). But her withdrawal hit a snag. For many years, OAPSE had interpreted the requirement in the membership-application card that withdrawal requests be "in writing, executed and delivered" as requiring members to provide OAPSE with a hard copy of a signed document to effectuate their withdrawal. In fall 2018, OAPSE decided that emails with an attachment containing an original signature would satisfy the "in writing, executed and delivered" requirement. Littler's August 2018 email did not include an original signature, so OAPSE deemed it ineffective. After her August 2018 email, but still during the 10-day withdrawal period, an OAPSE representative left voicemails for Littler to inform her that "her attempt to withdraw her dues-deduction authorization was not effective because she had not sent a handwritten signature" with her email. Appellee Br. 4.

Littler sent a follow-up email to Martin and Garside on August 28, 2018, stating that she "do[es] not authorize any deductions from [her] pay for union fees." R.52-4, PID 1915. But when the 2018-2019 dues deduction period began in November 2018, the union-dues deductions continued. Littler again emailed Garside, stating that she opted out of the union and asking why dues were still being withheld. Garside explained to Littler that OAPSE was responsible for the deduction list and that she would "need to discuss this with them." Littler reached out to the OAPSE accounting office to explain the situation but received no response. Littler alleges that OAPSE and South-Western City School District deducted $31.64 from each of her November 5, 2018, November 20, 2018 and December 5, 2018 paychecks.

In February 2019, OAPSE again changed its interpretation of the withdrawal policy. Under the new policy, OAPSE accepted emails from union members seeking to withdraw even without original signatures. It retroactively applied the new policy by honoring any emailed withdrawals sent by members during the 2018 withdrawal period. That included Littler. OAPSE notified Littler on February 19, 2019 that it was honoring her withdrawal and sent her a check for the dues deducted since August 2018, plus interest.

B.

Littler filed this action alleging that OAPSE illegally deducted dues from her paycheck in violation of Janus and the First Amendment and that she never freely gave consent to the union to deduct dues. She asserts claims under 42 U.S.C. § 1983 and several state laws and seeks a declaration of rights under the Declaratory Judgment Act, 28 U.S.C. § 2201. In July 2020, the district court granted summary judgment for OAPSE based on its conclusion that Littler had not validly withdrawn from the union under the contract formed by the membership-application card because she did not present evidence that she sent her withdrawal notice to the OAPSE State Treasurer. Littler v. Ohio Ass'n of Pub. Sch. Emps., No. 2:18-CV-1745, 2020 WL 4038999, at *4 (S.D. Ohio July 17, 2020), rev'd and remanded, No. 20-3795, 2022 WL 898767 (6th Cir. Mar. 28, 2022). But because the district court considered that issue sua sponte and Littler did not have sufficient opportunity to present evidence or argument regarding the recipients of her attempted withdrawal, we reversed the grant of summary judgment and remanded the case. Littler v. Ohio Ass'n of Pub. Sch. Emps., 2022 WL 898767, at *7. We instructed the district court to "provide Littler the opportunity to present evidence and argument regarding the requirement that she submit any withdrawal to the OAPSE treasurer." Id. We separately instructed the district court to reconsider addressing "OAPSE's argument that it is not a state actor subject to suit under 42 U.S.C. § 1983 . . . given the importance of the issue to the viability of this lawsuit." Id.

On remand, the district court assumed that Littler validly withdrew from the union, addressed only the state-action issue, and held that Littler had failed to show that OAPSE was a state actor. Littler v. Ohio Ass'n of Pub. Sch. Emps., No. 2:18-CV-1745, 2022 WL 17082686, at *2-4 (S.D. Ohio Nov. 18, 2022). Accordingly, the district court granted OAPSE summary judgment on Littler's § 1983 claim, id. at *4, and declined to exercise supplemental jurisdiction over Littler's remaining state-law claims, id. at *5.¹

II.

The sole question on appeal is whether the district court erred in granting OAPSE summary judgment on Littler's 42 U.S.C. § 1983 claim based on its conclusion that OAPSE was not acting "under color" of state law when it continued to deduct union fees from Littler's paycheck after Littler's August 2018 email. We review a district court's grant of summary judgment de novo. Evoqua Water Techs., LLC v. M.W. Watermark, LLC, 940 F.3d 222, 231 (6th Cir. 2019). Summary judgment is appropriate when the non-moving party fails "to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

To succeed on a claim under § 1983, Littler must prove that she was deprived of a right "secured by the Constitution or laws of the United States" and that such deprivation was "caused by a person acting under color of state law." Tahfs v. Proctor, 316 F.3d 584, 590 (6th Cir. 2003) (quoting Ellison v. Garbarino, 48 F.3d 192, 194 (6th Cir. 1995)). To show that a private defendant, like OAPSE, was acting under color of state law, Littler must show that the private actor's conduct causing the deprivation was "fairly attributable to the State." Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). Conduct causing a deprivation is only fairly attributable to the state if (1) it is "caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the State is responsible" and (2) "the party charged with deprivation must be a person who may fairly be said to be a state actor." Id.

Littler's claim fails on the first prong: she cannot show that the alleged deprivation was caused by any governmental policy or decision. The crux of her argument that OAPSE's actions are fairly attributable to the state is that the school district itself withheld Littler's wages, and it did so at OAPSE's request pursuant to their collective bargaining agreement (CBA). Notably, Littler does not challenge the validity of the CBA or any state law providing for such agreements. She argues instead that OAPSE improperly instructed the school district to withhold her wages after she withdrew her union membership. Such conduct does not invoke the authority of a state statute or rule. Instead, it...