NOT RECOMMENDED FOR PUBLICATION File Name: 20a0208n.06
No. 19-3545
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
CANDICE BAIRD, ) ) FILED Plaintiff-Appellant, Apr 14, 2020 ) DEBORAH S. HUNT, Clerk ) v. ) ) HAMILTON COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES; MOIRA WEIR, in her ) ON APPEAL FROM THE ) official and individual capacities; CHERYL UNITED STATES DISTRICT ) KELLER, in her official and individual capacities; COURT FOR THE ) CHRISTOPHER BIERSACK, in his official and SOUTHERN DISTRICT OF ) individual capacities; DENNIS P. DETERS, in his OHIO ) official capacity; CHRIS MONZEL, in his official ) capacity; TODD PORTUNE, in his official capacity; ) DENISE DRIEHAUS, ) Defendants-Appellees. )
Before: GILMAN, McKEAGUE, and KETHLEDGE, Circuit Judges.
KETHLEDGE, Circuit Judge. The Hamilton County Department of Job and Family
Services suspended one of its managers, Candice Baird, after (in the Department’s judgment) Baird
showed poor judgment regarding the care of her own granddaughter. Baird later brought this suit,
claiming that the Department and some of its managers violated her First and Fourteenth
Amendment rights when they suspended her. The district court granted summary judgment to the
defendants. We affirm.
I.
In 2016, Baird was a “Children Services Manager” at the Hamilton County Department of
Job and Family Services. In that role, she supervised caseworkers and ensured that they 19-3545, Baird v. Hamilton Cty. Dep’t of Job and Family Servs., et al
understood the Department’s child-welfare policies. At home, Baird cared for her adult son,
Chico, who suffers from schizoaffective disorder, paranoia, mania, and depression. Chico lived
in an apartment building near Baird’s; she herself lived with Chico’s infant daughter, N.C., and
N.C.’s mother, Samantha Cruz.
In March 2016, a neighbor of Chico called Baird to report loud noises and shouts coming
from Chico’s apartment. Baird then called Chico, who was sobbing and distraught. He was also
babysitting N.C. by himself. Baird called a psychiatric response team (the “Crisis Unit”) to notify
them of the situation; then she went to Chico’s apartment. N.C. was unharmed when Baird got
there. Members of the Crisis Unit then arrived and observed that Chico was drunk and apparently
suicidal. They called the police, who came to the scene and eventually tasered Chico and took him
to the hospital.
A social worker with the Crisis Unit reported the incident to the Hamilton County
Department of Job and Family Services for further investigation. An investigator (albeit one from
a neighboring county) conducted a home visit, during which she interviewed Chico and Baird.
Afterward the investigator requested an emergency order to remove N.C. from Baird’s home, on
the ground that Baird was basically in denial about the danger that Chico posed to N.C. A
magistrate granted the investigator’s request and the Department removed N.C. from Baird’s home
the same day.
A few days later, Baird petitioned a magistrate for custody of N.C. The magistrate
promptly held a hearing at which the witnesses presented conflicting evidence. Specifically, the
investigator testified that Baird had concealed from her Chico’s history of domestic violence,
whereas Baird testified that the investigator had never asked her about that topic. Similarly, the
Crisis Unit’s report stated that Chico’s apartment had been in a state of disarray: the cable box had
-2- 19-3545, Baird v. Hamilton Cty. Dep’t of Job and Family Servs., et al
been ripped out of the wall, fragments of wood were strewn about, and Chico was bleeding from
his hand. Yet Baird testified that Chico’s apartment was fine. The magistrate ultimately denied
Baird’s petition on the ground that Baird did not fully appreciate Chico’s potential danger to N.C.
A few months later, the Department held a pre-disciplinary conference with Baird and her
attorney. The Department suspended Baird for 10 days, likewise finding that, despite her status
as a trained child-welfare professional, her testimony at the hearing showed that she had failed to
appreciate the danger that Chico posed to N.C.
Baird thereafter brought this suit under 42 U.S.C. § 1983, claiming that the defendants had
suspended her in retaliation for testimony at the hearing, in violation of her First Amendment
rights, and that her suspension had violated her right to due process under the Fourteenth
Amendment. Thereafter, during discovery, Baird’s attorney revealed that, during the course of
events giving rise to the suit, Baird had secretly recorded a meeting with Department personnel,
which itself violated the Department’s employment policy. That violation was Baird’s third, when
combined with the events giving rise to her suspension and an earlier unrelated incident. The
Department therefore fired her in accordance with its progressive discipline policy. Baird then
amended her complaint to include her termination. The district court granted summary judgment
to the defendants. This appeal followed.
II.
We review the district court’s grant of summary judgment de novo. Mayhew v. Town of
Smyrna, 856 F.3d 456, 462 (6th Cir. 2017).
A.
Baird argues that the Department violated the First Amendment when it suspended her in
retaliation, she says, for her testimony at N.C.’s custody hearing. To prevail on that claim, Baird
-3- 19-3545, Baird v. Hamilton Cty. Dep’t of Job and Family Servs., et al
must show, among other things, that her testimony was a matter of public concern. Id. at 464.
“Speech involves matters of public concern when it . . . relat[es] to any matter of political, social,
or other concern to the community[.]” Lane v. Franks, 573 U.S. 228, 241 (2014) (quotation marks
omitted).
Here, Baird’s testimony focused almost exclusively on questions related to her son’s
mental health, his fitness as a parent, and whether he posed a danger to N.C. The point of her
testimony was to secure custody of her granddaughter—a matter of personal interest, not one of
public concern. See Rodgers v. Banks, 344 F.3d 587, 597 (6th Cir. 2003). Baird contends that her
testimony was per se a matter of public concern because it was sworn to and given in open court.
But our circuit has not adopted that per se rule, see Rorrer v. City of Stow, 743 F.3d 1025, 1047–
48 (6th Cir. 2014), and Lane impliedly rejects it. See Lane, 573 U.S. at 241; Butler v. Bd. of Cty.
Comm’rs for San Miguel Cty., 920 F.3d 651, 657–61 (10th Cir. 2019).
Baird also contends that she raised a matter of public concern when she testified that she
saw no need for the Department to remove N.C. from her home and that, on the evening that the
Department did so, it gave Baird no reason for the removal. But those assertions amounted to a
few sentences among more than 50 pages of testimony, and likewise focused on Baird’s own
private concerns rather than the public’s. The district court was correct to grant summary judgment
on this claim.
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NOT RECOMMENDED FOR PUBLICATION File Name: 20a0208n.06
No. 19-3545
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
CANDICE BAIRD, ) ) FILED Plaintiff-Appellant, Apr 14, 2020 ) DEBORAH S. HUNT, Clerk ) v. ) ) HAMILTON COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES; MOIRA WEIR, in her ) ON APPEAL FROM THE ) official and individual capacities; CHERYL UNITED STATES DISTRICT ) KELLER, in her official and individual capacities; COURT FOR THE ) CHRISTOPHER BIERSACK, in his official and SOUTHERN DISTRICT OF ) individual capacities; DENNIS P. DETERS, in his OHIO ) official capacity; CHRIS MONZEL, in his official ) capacity; TODD PORTUNE, in his official capacity; ) DENISE DRIEHAUS, ) Defendants-Appellees. )
Before: GILMAN, McKEAGUE, and KETHLEDGE, Circuit Judges.
KETHLEDGE, Circuit Judge. The Hamilton County Department of Job and Family
Services suspended one of its managers, Candice Baird, after (in the Department’s judgment) Baird
showed poor judgment regarding the care of her own granddaughter. Baird later brought this suit,
claiming that the Department and some of its managers violated her First and Fourteenth
Amendment rights when they suspended her. The district court granted summary judgment to the
defendants. We affirm.
I.
In 2016, Baird was a “Children Services Manager” at the Hamilton County Department of
Job and Family Services. In that role, she supervised caseworkers and ensured that they 19-3545, Baird v. Hamilton Cty. Dep’t of Job and Family Servs., et al
understood the Department’s child-welfare policies. At home, Baird cared for her adult son,
Chico, who suffers from schizoaffective disorder, paranoia, mania, and depression. Chico lived
in an apartment building near Baird’s; she herself lived with Chico’s infant daughter, N.C., and
N.C.’s mother, Samantha Cruz.
In March 2016, a neighbor of Chico called Baird to report loud noises and shouts coming
from Chico’s apartment. Baird then called Chico, who was sobbing and distraught. He was also
babysitting N.C. by himself. Baird called a psychiatric response team (the “Crisis Unit”) to notify
them of the situation; then she went to Chico’s apartment. N.C. was unharmed when Baird got
there. Members of the Crisis Unit then arrived and observed that Chico was drunk and apparently
suicidal. They called the police, who came to the scene and eventually tasered Chico and took him
to the hospital.
A social worker with the Crisis Unit reported the incident to the Hamilton County
Department of Job and Family Services for further investigation. An investigator (albeit one from
a neighboring county) conducted a home visit, during which she interviewed Chico and Baird.
Afterward the investigator requested an emergency order to remove N.C. from Baird’s home, on
the ground that Baird was basically in denial about the danger that Chico posed to N.C. A
magistrate granted the investigator’s request and the Department removed N.C. from Baird’s home
the same day.
A few days later, Baird petitioned a magistrate for custody of N.C. The magistrate
promptly held a hearing at which the witnesses presented conflicting evidence. Specifically, the
investigator testified that Baird had concealed from her Chico’s history of domestic violence,
whereas Baird testified that the investigator had never asked her about that topic. Similarly, the
Crisis Unit’s report stated that Chico’s apartment had been in a state of disarray: the cable box had
-2- 19-3545, Baird v. Hamilton Cty. Dep’t of Job and Family Servs., et al
been ripped out of the wall, fragments of wood were strewn about, and Chico was bleeding from
his hand. Yet Baird testified that Chico’s apartment was fine. The magistrate ultimately denied
Baird’s petition on the ground that Baird did not fully appreciate Chico’s potential danger to N.C.
A few months later, the Department held a pre-disciplinary conference with Baird and her
attorney. The Department suspended Baird for 10 days, likewise finding that, despite her status
as a trained child-welfare professional, her testimony at the hearing showed that she had failed to
appreciate the danger that Chico posed to N.C.
Baird thereafter brought this suit under 42 U.S.C. § 1983, claiming that the defendants had
suspended her in retaliation for testimony at the hearing, in violation of her First Amendment
rights, and that her suspension had violated her right to due process under the Fourteenth
Amendment. Thereafter, during discovery, Baird’s attorney revealed that, during the course of
events giving rise to the suit, Baird had secretly recorded a meeting with Department personnel,
which itself violated the Department’s employment policy. That violation was Baird’s third, when
combined with the events giving rise to her suspension and an earlier unrelated incident. The
Department therefore fired her in accordance with its progressive discipline policy. Baird then
amended her complaint to include her termination. The district court granted summary judgment
to the defendants. This appeal followed.
II.
We review the district court’s grant of summary judgment de novo. Mayhew v. Town of
Smyrna, 856 F.3d 456, 462 (6th Cir. 2017).
A.
Baird argues that the Department violated the First Amendment when it suspended her in
retaliation, she says, for her testimony at N.C.’s custody hearing. To prevail on that claim, Baird
-3- 19-3545, Baird v. Hamilton Cty. Dep’t of Job and Family Servs., et al
must show, among other things, that her testimony was a matter of public concern. Id. at 464.
“Speech involves matters of public concern when it . . . relat[es] to any matter of political, social,
or other concern to the community[.]” Lane v. Franks, 573 U.S. 228, 241 (2014) (quotation marks
omitted).
Here, Baird’s testimony focused almost exclusively on questions related to her son’s
mental health, his fitness as a parent, and whether he posed a danger to N.C. The point of her
testimony was to secure custody of her granddaughter—a matter of personal interest, not one of
public concern. See Rodgers v. Banks, 344 F.3d 587, 597 (6th Cir. 2003). Baird contends that her
testimony was per se a matter of public concern because it was sworn to and given in open court.
But our circuit has not adopted that per se rule, see Rorrer v. City of Stow, 743 F.3d 1025, 1047–
48 (6th Cir. 2014), and Lane impliedly rejects it. See Lane, 573 U.S. at 241; Butler v. Bd. of Cty.
Comm’rs for San Miguel Cty., 920 F.3d 651, 657–61 (10th Cir. 2019).
Baird also contends that she raised a matter of public concern when she testified that she
saw no need for the Department to remove N.C. from her home and that, on the evening that the
Department did so, it gave Baird no reason for the removal. But those assertions amounted to a
few sentences among more than 50 pages of testimony, and likewise focused on Baird’s own
private concerns rather than the public’s. The district court was correct to grant summary judgment
on this claim.
The same is true of Baird’s due process claim. That claim rests on her allegation that she
had a property interest in her employment, that the Department (as a public employer) was required
to give her advance notice of any reasons for which it might suspend her, and that it failed to do
so. The premise of Baird’s argument is accurate for terminations by a public employer, see
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985), but not necessarily for
-4- 19-3545, Baird v. Hamilton Cty. Dep’t of Job and Family Servs., et al
suspensions, see Grant v. Homar, 520 U.S. 924, 929–30 (1997). In any event, the Department did
hold a pre-disciplinary conference with Baird prior to her suspension, before which it gave her
notice of the charges against her and the documents that it would rely upon to prove those charges.
And that conference had all the hallmarks of due process: Baird had the opportunity to testify,
defend herself, and cross-examine witnesses. See Loudermill, 470 U.S. at 545–46.
Yet Baird says that the Department’s notice was insufficient because it listed her testimony
at the hearing as the reason for her suspension, whereas the Department later said it suspended her
in part for an additional reason: her failure to disclose Chico’s history of domestic violence to the
investigator. But that failure itself was a source of dispute during the hearing, so she had ample
reason to know that it might be a basis for her suspension.
The district court’s judgment is affirmed.
-5-