NOT RECOMMENDED FOR PUBLICATION File Name: 20a0075n.06
No. 19-3621
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED CLINTON J. DADE, ) Feb 03, 2020 ) DEBORAH S. HUNT, Clerk Plaintiff-Appellant, ) ) v. ) ON APPEAL FROM THE ) UNITED STATES DISTRICT DALLAS BALDWIN, Sheriff, in his official ) COURT FOR THE capacity; ZACHARY SCOTT, in his individual and ) SOUTHERN DISTRICT OF official capacity, ) OHIO ) Defendants-Appellees. )
Before: BATCHELDER, LARSEN, and MURPHY, Circuit Judges.
LARSEN, Circuit Judge. Clinton Dade, a deputy in the Franklin County Sheriff’s Office,
got into a physical altercation with the mother of his children. The sheriff’s office then dismissed
Dade for violating the office’s rules of conduct. Dade filed an action under 42 U.S.C. § 1983 in
federal court, claiming that he was fired, not because of his conduct, but because of his intimate
relationship with the mother of his children. Such a firing, he argued, violated the First and
Fourteenth Amendments to the United States Constitution. Dallas Baldwin, the current county
sheriff, and Zachary Scott, the former county sheriff, moved for summary judgment, arguing that
Dade’s firing did not violate the Constitution. The district court agreed and granted their motion.
We AFFIRM. No. 19-3621, Dade v. Baldwin
I.
When reviewing a district court’s grant of summary judgment, we consider the facts and
all related inferences “in the light most favorable to the party against whom summary judgment
was entered.” Franklin Am. Mortg. Co. v. Univ. Nat’l Bank of Lawrence, 910 F.3d 270, 275 (6th
Cir. 2018) (quoting Villegas v. Metro. Gov’t of Nashville, 709 F.3d 563, 568 (6th Cir. 2013)). We
set out the following facts accordingly.
Dade began work as a deputy sheriff in the Franklin County Sheriff’s Office in September
2015. As a deputy in that office, he was required to follow its Rules of Conduct. Relevant here,
Rule 102.19 prohibited Dade from associating with “[w]rong [e]lements,” that is, with known
felons, in all but a few circumstances (the Wrong‑Elements Rule); Rule 102.29 required him to
avoid “unbecoming conduct”—conduct that would reflect poorly on him or the office—“both on
and off duty” (the Unbecoming‑Conduct Rule); and under Rule 102.43, he could be “suspended
or dismissed” for any “violations of rules” (the Dismissal Rule).
Before joining the sheriff’s office, Dade had a son with Michelle Whitehall.1 Dade
described his relationship with Whitehall as romantic because they “would have sex” but explained
that he “wouldn’t say” that he and Whitehall had ever been “boyfriend and girlfriend” because
they had never dated “exclusively” and had never lived together.
Early in Dade’s tenure as a deputy sheriff, Whitehall filed a complaint against Dade,
claiming that he “had beaten her on several occasions,” had “dragged her out of his vehicle while
she was pregnant,” and that he “drinks and drives.” Internal affairs opened an investigation and
interviewed Dade. Dade admitted that there had been “some aggressive situations” but claimed
1 Whitehall gave birth to a second child, a daughter, during Dade’s employment with Franklin County, but Dade did not learn that he was the father of that child until after his employment had ended. -2- No. 19-3621, Dade v. Baldwin
that in each Whitehall had “attacked him and he pushed her away to create distance between them
so he could call 911.” When Whitehall did not respond to the investigators’ various attempts to
contact her, internal affairs recommended that the investigation be closed as “unfounded.”
As part of the investigation, additional, but ancillary, information came to light.
Investigators learned that Whitehall had pleaded guilty to unlawful sexual conduct with a minor
in 2006 and was a registered sex offender. They also learned that she had pleaded guilty in 2016
to failing to provide her correct address to the sex offender registry. Dade knew about Whitehall’s
criminal record prior to joining the sheriff’s office.
Shortly after the investigation closed, internal affairs learned that Dade had been “involved
in a domestic violence/assault with” Whitehall on August 9 and that the Columbus Police had
responded to the incident and had taken a report. Dade recounted that, on that night, “around 1am
[sic], I was told by [Whitehall] that I could come over and she would perform oral sex on me.”
When Dade arrived at Whitehall’s home, she got into his car, he offered her wine, and they “talked
about [their] son” while she drank. After about fifteen minutes, Dade suggested that they go to a
local bar, where he purchased beer “to go” before returning to Whitehall’s home. Upon their
return, Whitehall “began performing oral sex” on Dade, but stopped when the two began to argue
about whether Dade allowed his girlfriend near his and Whitehall’s son.
According to Dade, Whitehall then “began to get in [his] face.” He asked her to get out of
the car, but she refused and began “tossing papers and other items out of [the] vehicle.” Dade
warned her that he would call the police if she did not stop; she instead punched Dade and scratched
his face. When she put him in a headlock, he “bit[] her on the stomach so she would release her
hold on [him].” Once he was free, he got out of the car and called 911, but Whitehall grabbed the
phone from his hand before he could report his location. He got the phone back and got in the car,
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intending to leave, but Whitehall “climbed in” the backdoor. Halfway down the street, Dade
stopped the car, got out and “pull[ed] [Whitehall] out of the vehicle by her leg.” She got up and
began punching him; in response, he “pushed up against her chest and she fell back to the ground.”
Dade ultimately returned to his home; Columbus police contacted him there.
The ensuing police report listed Whitehall as the victim and Dade as the offender. But
because Dade and Whitehall gave “conflicting statements” and there were no “independent
witnesses,” internal affairs could not determine who had been the “primary physical aggressor.”
After internal affairs submitted the case file to human resources, the human resources director,
Lindsay Rasey, wrote a memo to Sheriff Scott raising “issues” with Dade’s conduct “relat[ing] to
his employment at the Sheriff’s Office” and recommending that he be terminated because of his
“propensity to place himself in compromising situations where his conduct is unbecoming of a
Deputy Sheriff.” From the facts surrounding the August 9 altercation and Dade’s prior conduct,
Rasey concluded that Dade had violated the Wrong‑Elements, Unbecoming‑Conduct, and
Dismissal Rules.
The Wrong‑Elements Rule prohibits officers from “associat[ing] or dealing[] with persons
whom they know . . . have a reputation . . . for involvement in felonious or criminal behavior,
except . . . when unavoidable because of other personal relationships.” The Unbecoming‑Conduct
Rule requires officers to “conduct themselves at all times, both on and off duty, in such a manner
as to reflect most favorably on the Office.” “Unbecoming conduct” is defined to include that
“which brings the Office into disrepute or reflects discredit upon the individual as a member of the
Office, or that[] which impairs the operation, or efficiency of the Office or the individual.”
Sheriff Scott accepted Rasey’s recommendation and “remov[ed] [Dade] from service” for
“failing to comply with rules and regulations and standards of conduct.” Dade then filed a § 1983
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action in federal court, alleging that he was fired, not for his conduct, but because of his association
with the mother of his children. He claimed that this association is an “intimate relationship”
protected under both the First and Fourteenth Amendments to the United States Constitution;
therefore, firing him based on the Wrong-Elements Rule violated his constitutional rights. He also
argued that the Wrong‑Elements Rule is unconstitutionally vague.
Baldwin and Scott moved for summary judgment, arguing that the Constitution does not
protect Dade’s association with Whitehall, but even if it did, Dade was terminated not “because he
was with [Whitehall] on August 9, but because of how he behaved that night.” The district court
granted the motion. It first determined that the “intimate‑association doctrine” sounds in the
Fourteenth Amendment, not the First, and so granted summary judgment to defendants on Dade’s
First Amendment Claim. It then determined that the Wrong‑Elements Rule did not violate the
Fourteenth Amendment and so granted summary judgment to defendants on that issue as well.
Finally, the district court determined that Dade’s conduct was “clearly proscribed” by the
Wrong‑Elements Rule; he therefore could not demonstrate that the rule was impermissibly vague.
Dade timely appealed.
II.
“We review a district court’s summary judgment decision de novo, applying the same
standards the district court used.” Franklin, 910 F.3d at 275. Summary judgment is proper where
“there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). “Because a motion for summary judgment ‘necessarily
implicates the substantive evidentiary standard of proof that would apply at the trial,’ we must
determine ‘whether reasonable jurors could find by a preponderance of the evidence that the
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[non‑moving party] is entitled to a verdict.’” Baker v. City of Trenton, 936 F.3d 523, 529 (6th Cir.
2019) (alteration in original) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).
Intimate‑Association Challenge. In his complaint, Dade alleged that he was fired for
“engaging in constitutionally protected activity.” Specifically, he claimed he was terminated for
“maintaining a relationship with his son’s mother” which, he contended, is “a constitutionally
guaranteed right of the First and Fourteenth Amendment[s] to freedom of association.” The
Supreme Court has noted that the Constitution protects a right to “‘freedom of association’ in two
distinct senses”: “freedom of intimate association” and “freedom of expressive association.”
Roberts v. U.S. Jaycees, 468 U.S. 609, 617–18 (1984). The Court described the former right as
protecting from “undue intrusion by the State” certain “choices to enter into and maintain certain
intimate human relationships.” Id. The latter right protects associations maintained “for the
purpose of engaging in those activities protected by the First Amendment—speech, assembly,
petition for the redress of grievances, and the exercise of religion.” Id. at 618.
We use a retaliation framework to evaluate Dade’s claim that he was fired because he
exercised a right of intimate association. See Sowards v. Loudon County, 203 F.3d 426, 431 (6th
Cir. 2000); see also Hartwell v. Houghton Lake Cmty. Sch., 755 F. App’x 474, 476 (6th Cir. 2018)
(describing the plaintiff’s claim that she was “fired . . . because of her relationships with her
husband and stepchildren” as advancing “a retaliation theory”). For a retaliation claim to survive
summary judgment, there must be a genuine dispute of material fact about whether “(1) the
plaintiff engaged in protected conduct; (2) an adverse action was taken against the plaintiff that
would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) there
is a causal connection between elements one and two,” that is, the defendants’ adverse action was
“substantially motivated by the exercise of [the plaintiff’s] constitutional rights.” Sowards,
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203 F.3d at 431, 433–34 (quoting Thaddeus–X v. Blatter, 175 F.3d 378, 394 (6th Cir.1999) (en
banc)). The plaintiff bears the burden of establishing “a causal connection between the protected
conduct and the adverse action.” Thaddeus–X, 175 F.3d at 399. When determining whether the
plaintiff has carried his burden, we are concerned with “the subjective motivation of the
defendants.” Id. “Once the plaintiff has met his burden, . . . the burden of production shifts to the
defendant” to “show that he would have taken the same action in the absence of the protected
activity.” Id. “If the defendant can show that he would have taken the same action in the absence
of the protected activity, he is entitled to prevail on summary judgment.” Id.
It is important to be precise about the nature of Dade’s claim: Dade asserts that he was
terminated because he associated with Whitehall in order to co‑parent their son. He argues that
the co‑parent association is an intimate association protected under both the First and the
Fourteenth Amendments. Unfortunately, there is some confusion in this circuit about “which
provision of the Constitution protect[s] th[e intimate association] right.” Hartwell, 755 F. App’x
at 477–78 (noting the confusion and concluding that the intimate association right arises out of the
Fourteenth Amendment). We need not resolve that question, however, or even determine whether
there is an intimate association right to co‑parent, because we conclude that no reasonable jury
could find that Dade’s termination was “substantially motivated” by Dade’s exercise of such a
right. See Baker, 936 F.3d at 529; Sowards, 203 F.3d at 433–34.
Scott’s stated reason for terminating Dade was that Dade had “fail[ed] to comply with rules
and regulations and standards of conduct.” Scott’s decision was based on Rasey’s memo, which
concluded that Dade had violated multiple rules, any of which was a ground for discipline,
including termination. Rasey supported her conclusion with a list of “issues” in Dade’s “conduct
relate[d] to his employment at the Sheriff’s Office.” She noted: Whitehall’s complaint, filed
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before the August 9 altercation, alleging that Dade “drinks and drives” and that he had beaten her
and pulled her out of a vehicle; Dade’s admission that, during the August 9 altercation, he had
pulled Whitehall “out of her vehicle by her feet and bit[] her stomach”; Rasey’s own conclusion
that Dade “presumably drank alcohol and drove on August 9”;2 and Dade’s previous conviction
for being under the influence while in “physical control” of a vehicle, see Ohio Rev. Code
§ 4511.194. She also noted that Whitehall was a felon and that Dade “did not have an
‘unavoidable’ interaction with her” on August 9 but had met with her “for purely personal
reasons.”
Dade latches onto this final rationale for his termination, asserting that “the real reason [he]
was removed was for associating with Ms. Whitehall.” The defendants dispute that, saying that
Dade’s conduct, not his association with Whitehall, caused the termination. We need not untangle
the causation question here. Even if a reasonable jury could conclude that Dade was terminated
for associating with Whitehall, a known felon, that alone would not violate the Constitution. Dade
makes no argument that the Constitution prevents police departments from preventing their
officers from fraternizing with criminals generally. Instead, Dade argues that his termination
violated the Constitution because it was “substantially motivated by the exercise of [Dade’s] . . .
intimate association” rights, that is, his right to co-parent. Sowards, 203 F.3d at 431. No
reasonable jury could find that this was so. Rasey’s reasoning, read in the light most favorable to
2 Rasey concluded that Dade “presumably” had been drinking and driving on August 9 and offered that as a reason supporting Dade’s termination. Dade resists Rasey’s conclusion, noting conflicting testimony on this point. Whitehall’s statements noted that Dade “was already drinking on a bottle of Pinot Grigio wine” when he arrived at her home in his car, but Dade’s statement said nothing about drinking wine before he arrived and refers to the half bottle of wine Dade had with him only to note that he had told Whitehall “she could have it all.” Although we must consider the facts in the light most favorable Dade—in this case, that he did not drink and drive that night— that consideration does not alter the undisputed rationale Rasey provided for her recommendation. -8- No. 19-3621, Dade v. Baldwin
Dade, forecloses such a conclusion; she concluded that Dade violated the Wrong‑Elements Rule
by associating with Whitehall not as a co‑parent but as a participant in an altercation. Indeed, she
implicitly acknowledged that the rule would provide Dade leeway to associate with Whitehall to
co-parent—i.e., “when unavoidable because of other personal relationships”—when she
concluded that “[a]lthough she is his son’s mother” Dade had associated with Whitehall on August
9 for “purely personal reasons.”
Dade objects to that interpretation of the August 9 encounter. In his deposition testimony,
Dade stated that Whitehall had asked him to come over to talk about their son, whom Dade was
scheduled to pick up later that day. He explained that he tries to keep Whitehall happy because
“[w]hen she’s not happy, she can be very chaotic in [his] life.” So, although he acknowledged that
when arranging to meet with Whitehall they “had discussed oral sex,” he argues that his reasons
for going to see her were parenting-related, rather than “personal” because he “felt [he] needed to
go over there in order for things to go smoothly so [he] could get [his] child,” as scheduled.
Accordingly, Dade contends, his association with Whitehall on August 9 was “for the express
purpose of parenting.”
No reasonable jury could agree. Even accepting Dade’s account that he went to
Whitehall’s home as part of his efforts to be an effective parent, he has not established a genuine
issue of fact about whether his termination was “substantially motivated” by those efforts. Indeed,
Dade’s deposition testimony obfuscates rather than clarifies our inquiry. We are concerned only
with Rasey’s and Scott’s “subjective motivation” for terminating Dade. Thaddeus–X, 175 F.3d at
399. Rasey did not consider Dade’s deposition testimony when she recommended his termination;
that testimony had not yet been given. She had only the internal affairs’ report, Dade’s and
Whitehall’s police statements, and Dade’s separate account that he offered to the sheriff’s office.
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In none of those documents did Dade, Whitehall, or anyone else, indicate that Dade had gone to
Whitehall’s home for a parenting reason; in fact, each of them, including both of Dade’s accounts,
leads with a non-parenting reason for the meet-up—the opportunity for casual sex. There is simply
nothing in the record to indicate that Rasey or Scott had any reason to think that Dade was
associating with Whitehall on August 9 in an attempt to co‑parent, or that co-parenting
“substantially motivated” Dade’s termination. In fact, in her deposition testimony, Rasey stated
that, when she made her recommendation, she had no reason to believe that Dade’s failure to
respond to Whitehall’s invitation that night “might affect his seeking custody and/or parental
rights.” Further, Rasey’s memo points to Dade’s conduct on August 9, not as the sole basis for
Dade’s termination, but as confirmation of an extant pattern of Dade’s “plac[ing] himself in
compromising situations where his conduct is unbecoming.” Rasey’s recommendation and Scott’s
decision “center[ed] on” what Dade had done rather than with whom he had done it. See Hartwell,
755 F. App’x at 480 (concluding that “a reasonable jury could not find that [the plaintiff’s] intimate
associations were a substantial or motivating factor of her termination” because the complaints
against her “center[ed] on [the plaintiff’s] behavior rather than her intimate associations”).
Thus, even if we were to assume that the Constitution protects an intimate association right
to co‑parent, Dade could not prevail. On this record, no reasonable jury could conclude that the
cause of Dade’s termination was the exercise of any constitutionally protected right. Thaddeus–
X, 175 F.3d at 399.
Vagueness Challenge. Dade also argues that the Wrong‑Elements Rule is
unconstitutionally vague. [Appellant Br. at 43–45.] We note that the Wrong-Elements Rule is not
a criminal statute; it is an employment regulation. And the Supreme Court has made clear that
there is substantially more room for imprecision in regulations bearing only civil, or employment,
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consequences, than would be tolerated in a criminal code. See Arnett v. Kennedy, 416 U.S. 134,
159–60 (1974); Vill. of Hoffman Estates v. The Flipside, 455 US 489, 498–99 (1982) (“The Court
has also expressed greater tolerance of enactments with civil rather than criminal penalties because
the consequences of imprecision are qualitatively less severe.”); see also Johnson v Morales, 946
F.3d 911, 2020 WL 104599, at *12 (6th Cir. 2020) (“[T]he Supreme Court has made clear that the
void for vagueness doctrine is applied less strictly to economic regulations.”); cf. Fowler v. Bd. of
Educ. of Lincoln Cty. 819 F.2d 657, 666 (6th Cir. 1987). Thus, employment standards “are not
void for vagueness as long as ordinary persons using ordinary common sense would be notified
that certain conduct will put them at risk of discharge.” San Filippo v. Bongiovanni, 961 F.2d
1125, 1136 (3d Cir. 1992) (citing Arnett, 416 U.S. at 159).
Dade contends that the Wrong‑Elements Rule fails that standard because its exception,
permitting association with felons “when unavoidable because of other personal relationships,” is
“wholly without bounds as to any standard as to what constitutes ‘unavoidable’ or what constitutes
a ‘personal relationship.’” We disagree. The Supreme Court has noted, in the employment
context, that “[t]here are limitations in the English language with respect to being both specific
and manageably brief.” Arnett, 416 U.S. at 159 (quotation omitted). Accordingly, even the “most
conscientious of codes that define prohibited conduct of employees include ‘catchall’ clauses
prohibiting employee ‘misconduct,’ ‘immorality,’ or ‘conduct unbecoming.’” Id. at 161 (quotation
omitted). Thus, in Arnett, the Court upheld an employment standard permitting dismissal for “such
cause as will promote the efficiency of the service.” Id. at 159. And in Fowler, this court upheld
an employment regulation prohibiting “conduct unbecoming a teacher” against a vagueness
challenge. 819 F.2d at 665–66 (collecting cases); see also Johnson, 2020 WL 104599, at *12
(upholding city ordinance permitting suspension of business licenses when “in the interest of the
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public health, morals, safety or welfare”). The Wrong‑Elements Rule is considerably more
definite than these.
Moreover, to succeed on this claim, Dade “must demonstrate that the law is impermissibly
vague in all of its applications.” Vill. of Hoffman Estates, 455 U.S. at 497. Accordingly, “[o]ne
to whose conduct a statute clearly applies may not successfully challenge it for vagueness.” Id. at
495 n.7 (quoting Parker v. Levy, 417 U.S. 733, 756 (1974)). Even granting Dade’s premise that
he associated with Whitehall because of “other personal relationships”—namely his “co-
parenting” relationship with Whitehall—he cannot show that his August 9 meeting with Whitehall
was “unavoidable.” “Unavoidable” means “[n]ot avoidable; that cannot be avoided or escaped;
inevitable.” Oxford English Dictionary (2d ed. 1989). Here Dade’s own account of the events of
August 9 is that he met Whitehall for the purpose of supplying her with alcohol, and having casual
sex, which in turn kept Whitehall “happy” and facilitated Dade’s access to his son. But the record
does not reveal that meeting with Whitehall that night was inescapable or inevitable. Id. Dade
had been specifically advised that other alternatives were available to him—law enforcement could
facilitate custody exchanges. Furthermore, Dade himself testified that “on a few occasions” he
had been able simply to arrange the custody transfers over the phone, but he made no such attempt
on August 9. Because Dade’s conduct was not unavoidable, the Wrongful‑Elements Rule clearly
applied here. He therefore cannot not show that the rule is “impermissibly vague in all of his
applications,” see Vill. of Hoffman Estates, 455 U.S. at 497, and his vagueness challenge fails.
***
For these reasons, we AFFIRM the district court’s grant of summary judgment.
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