NOT RECOMMENDED FOR PUBLICATION File Name: 17a0622n.06
No. 16-4691
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
JEANETTA DENISE NAILON, ) FILED ) Nov 09, 2017 Plaintiff-Appellee, ) DEBORAH S. HUNT, Clerk ) v. ) ) UNIVERSITY OF CINCINNATI; SANTA J. ONO, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT Defendants, ) COURT FOR THE SOUTHERN ) DISTRICT OF OHIO and ) ) OPINION KEN WOLTERMAN; DEBRA JONES; KARLA ) GACASAN, ) ) Defendants-Appellants. )
BEFORE: MOORE, STRANCH, and DONALD, Circuit Judges
JANE B. STRANCH, Circuit Judge. Plaintiff Jeanetta Nailon worked as a collection
specialist in the Office of the Bursar at the University of Cincinnati from 2001 until 2013, when
she was terminated. The Bursar’s Office claimed that she was fired because of unauthorized
involvement with her son’s loan account. Nailon brought suit against the University and several
individuals working in the Bursar’s Office, alleging, among other claims, that the officials
retaliated against her because of complaints made by Nailon’s niece, Ashley Davis, concerning
racial discrimination by the Bursar’s Office. Three defendants—Ken Wolterman, Debra Jones, No. 16-4691, Nailon v. Univ. of Cincinnati, et al.
and Karla Gacasan—raised the defense of qualified immunity, which the district court denied.
For the following reasons, we AFFIRM the district court’s denial of qualified immunity.
I. BACKGROUND
Nailon was hired in 2000 to work in the University’s Office of the Bursar as a collection
specialist, also known as a Resolution Analyst. The Office of the Bursar is responsible for
collecting student fees and managing certain student loans. Nailon’s position entailed processing
and collecting on loans made to University of Cincinnati students, and she was assigned a batch
of accounts based on surnames within a particular alphabetical range. As a Resolution Analyst,
Nailon had discretion to grant late fee waivers or remove blocks to student registration. From
2005 to 2008, she was responsible for accounts belonging to students with last names starting
with the letters S through Z. During that time period, Frank Young, Nailon’s son, was a student
at the University and Nailon was assigned to Young’s account. As was within her discretion as a
Resolution Analyst, she made some changes to his account, including writing off several
outstanding fees that he owed to the University. Nailon states that she did not perform any
functions on her son’s account that were outside the office policies and practices in place at the
time of her work on the account, and that the Defendants admit that waivers applied to Young
were based on properly completed applications that demonstrated justification for the waivers.
In 2009, the Bursar’s Office employees switched alphabetical groups, and Nailon became
responsible for student accounts within a different letter range. The record provides no
indication that, at this time, others in the Office of the Bursar were aware of the inclusion of
Nailon’s son’s account in her letter range. Several other staff members in the Bursar’s Office,
however, worked on Young’s account after Nailon, including Karen Davis, another collection
specialist, and Debra Jones, Associate Bursar and Nailon’s supervisor. For example, Karen
Davis issued Young a loan forbearance in 2011 and she testified that at the time she granted the -2- No. 16-4691, Nailon v. Univ. of Cincinnati, et al.
forbearance, she would have seen the history of Young’s loan account activity, including the
Resolution Analyst who had worked on it previously.
While Nailon was employed by the Bursar’s office, her niece, Ashley Davis, also
attended the University of Cincinnati. Nailon states that she and her niece were quite close, and
Ashley lived with her for a time along with Davis’s daughter. Davis testified that she felt Nailon
took “the role of [her] Mom,” and that was how she identified her. The relationship between
Nailon and Davis was known by individuals working in the Bursar’s Office, as Davis
occasionally came by to visit her aunt at work. In February 2013, Davis applied for a short-term
loan, which the Bursar processed. At the time, Nailon’s alphabetical range of accounts covered
students with surnames starting with “D,” so she managed Davis’s loan application. Nailon
processed and approved Davis’s loan, despite her niece’s poor credit. Jones discovered this
approval and reprimanded Nailon. Nailon states that this was the first time she had been
informed that she was not allowed to work on a relative’s account. Subsequently, in May 2013,
the Bursar’s Office issued a written policy explicitly prohibiting Resolution Analysts from
working on accounts belonging to relatives.
Nailon’s niece’s account was then assigned to another collection specialist, Karen Davis.
Karen Davis worked out a payment plan with Ashley to repay her short-term loan. In August
2013, Jones personally contacted Ashley Davis about the outstanding loan, notifying her that she
would withdraw Davis from her classes if she did not pay her $4,000 balance in full before
September 4. Davis disputed the amount owed, and notified Jones of the payment plan she had
worked out with Karen Davis. Nonetheless, Jones withdrew Ashley Davis from her classes prior
to the September 4 deadline. In response, on September 3, Davis contacted several University
department heads to make a complaint about racial discrimination that she had encountered in
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her interactions with the Bursar’s Office. Davis’s email was shared with UC officials, including
Ken Wolterman, the Bursar, on the same day. Wolterman notified Jones about the email, and
later the same night, sent a reply to other UC officials stating that “there is much more to know
about this student.” According to Wolterman’s deposition testimony, he was referring to
Nailon’s work on Davis’s loan, and in fact he “felt . . . there was collusion” between Nailon and
her niece involved in the situation. Shortly after Davis made her complaint, Vice President of
Student Affairs Debra Merchant worked with Davis to develop a payment plan, and re-enrolled
Davis in her classes.
On September 10, 2013, Jones began investigating Nailon’s previous involvement with
her son’s loan account after it was brought to her attention by other collection specialists,
including Karen Davis. She looped in Wolterman and Karla Gacasan, a Senior Labor Relations
Specialist in the University’s human resources department. Wolterman testified that upon
hearing this information, his reaction was to fire Nailon, that he was “tired,” and that “enough
[wa]s enough.” Nailon was unaware of the investigation until she received a notice of
termination on September 30, 2013, stating that she had violated the University’s conduct policy.
The notice specifically listed several transactions Nailon had performed on her son’s account.
Nailon maintains that although the Office of the Bursar updated its employee manual in
2013 to prohibit employees from handling family members’ accounts, there was no official
policy that prevented Nailon from managing her son’s account at the time she was assigned to it.
Moreover, Nailon asserts that any of her activity on Young’s account would have been known to
individuals in the Bursar’s Office, including Jones, long before the September 2013
investigation. The Defendants counter that the 2013 change to the manual made explicit a long-
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standing departmental policy, and that the Bursar’s Office committed the policy to writing
specifically due to Nailon’s activity with her son’s account.
Following her termination, Nailon brought suit against Jones, Wolterman, and Gacasan,
as well as the University of Cincinnati and Santa J. Ono1, alleging that the defendants
(1) discriminated against her on the basis of race, in violation of Title VII; (2) retaliated against
her in violation of Title VII; (3) retaliated against her in violation of the First Amendment right
to free speech because of her niece’s complaints of racial discrimination; and (4) violated her due
process rights. In two separate orders, the district court dismissed all of Nailon’s claims except
her claim of violation of the First Amendment right to free speech, brought pursuant to 42 U.S.C.
§ 1983. Determining that there was a genuine issue of material fact as to whether Davis’s
complaints of racial discrimination motivated the Office of the Bursar’s decision to terminate
Nailon, the district court denied summary judgment on that claim. The court also denied
Wolterman, Jones, and Gacasan’s request to dismiss the case on the basis of qualified immunity.
It determined that the factual disputes identified in Nailon’s First Amendment retaliation claim
prevented applying qualified immunity at the summary judgment stage and that it should be clear
to a reasonable University official in the circumstances presented that retaliating against Nailon
on the basis of her niece’s free speech would be unlawful. The individual defendants
(hereinafter referred to as the Defendants) filed an interlocutory appeal on the question of
qualified immunity.
1 Ono filed a Motion to Dismiss Nailon’s claims against him for failure to state a claim under Rule 12(b)(6) and on the basis of Eleventh Amendment immunity. Nailon did not oppose the motion, and Ono was dismissed from the action.
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II. ANALYSIS
A. Jurisdiction & Standard of Review
A district court's denial of qualified immunity is appealable under § 1291 only “to the
extent that it turns on an issue of law.” Quigley v. Tuong Vinh Thai, 707 F.3d 675, 680 (6th Cir.
2013) (quoting Estate of Carter v. City of Detroit, 408 F.3d 305, 309 (6th Cir. 2005)). Thus, “a
district court’s determination that there exists a triable issue of fact cannot be appealed on an
interlocutory basis, even when the finding arises in the context of an assertion of qualified
immunity.” Gregory v. City of Louisville, 444 F.3d 725, 742–43 (6th Cir. 2006) (citing Johnson
v. Jones, 515 U.S. 304, 313 (1995)).
Nailon states that the Defendants exceed the boundaries of our jurisdiction by seeking
review of the district court’s determination that genuine factual disputes preclude summary
judgment on her First Amendment retaliation claim. Though the parties appear to disagree on
many key facts, we maintain jurisdiction over the Defendants’ appeal to the extent it raises pure
questions of law. Because we do not have jurisdiction over factual issues, “a defendant must
concede the most favorable view of the facts to the plaintiff for purposes of the appeal.”
Quigley, 707 F.3d at 681. Viewing the facts in the light most favorable to Nailon, we review de
novo the district court’s application of the doctrine of qualified immunity to her First
Amendment retaliation claim. See Brown v. Chapman, 814 F.3d 436, 444 (6th Cir. 2016) (citing
Quigley, 707 F.3d at 679).
B. Qualified Immunity
The doctrine of qualified immunity generally protects government officials performing
discretionary functions “from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional law of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Courts evaluating the application of
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qualified immunity examine two questions: (1) whether, viewing the facts in the light most
favorable to the plaintiff, a constitutional violation occurred; and (2) whether the plaintiff’s right
was clearly established at the time of the incident. Burgess v. Fischer, 735 F.3d 462, 472 (6th
Cir. 2013). We may examine these questions in either order, and the defendant is entitled to
qualified immunity if the plaintiff cannot establish both prongs of this inquiry. See Pearson v.
Callahan, 555 U.S. 223, 236 (2009).
1. Constitutional Violation
Nailon claims that Jones, Wolterman, and Gacasan violated her First Amendment rights
by terminating her in retaliation for Davis’s allegations of racial discrimination by the Bursar’s
office. To state a First Amendment retaliation claim, the plaintiff must show: (1) that the speech
was protected by the First Amendment; (2) she suffered an adverse employment action; and
(3) the adverse action was motivated at least in part in response to the exercise of her
constitutional rights. See Savage v. Gee, 665 F.3d 732, 738 (6th Cir. 2012) (quotation marks and
citation omitted). Because Nailon was terminated from her position at the university, the second
element of this test is not in dispute.
The district court found the first element satisfied because Davis engaged in
constitutionally protected speech by alleging that University officials were discriminating against
her based on race, and because a plaintiff may allege First Amendment retaliation after a relative
has engaged in protected speech even if the plaintiff herself has not done so. In their appellate
briefing, the Defendants seek to reframe Nailon’s claim as implicating the First Amendment
right to freedom of association. Not only is this the first time the Defendants have raised this
argument; it also misrepresents Nailon’s claims. Nailon does not claim that the Defendants
violated her right to free association or to familial association. The Complaint alleges that the
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Defendants terminated Nailon in retaliation for “her niece’s constitutionally protected speech or
conduct [that] violated [Nailon’s] right to free speech on matters of public concern.” As such,
we examine below Nailon’s claim using cases and precedent involving the First Amendment
right to free speech.
Defendants next argue that Nailon’s claim fails at the first step because the speech of a
government employee making a First Amendment retaliation claim must have been made “as a
citizen,” while addressing “a matter of public concern.” Connick v. Myers, 461 U.S. 138, 146–
47 (1983). But the Connick requirements apply to the speech of government employees and the
speech at issue was made by Ashley Davis, a private citizen, not Nailon herself. Private citizens,
such as Davis, “have a First Amendment right to criticize public officials and to be free from
retaliation for doing so.” See Holzemer v. City of Memphis, 621 F.3d 512, 520 (6th Cir. 2010)
(citing Zilich v. Longo, 34 F.3d 359, 365 (6th Cir. 1994)). The district court correctly recognized
that Davis’s speech need not touch upon a matter of public concern, because the public concern
test is explicitly limited to government employees and is “based solely on the need to balance the
free speech rights of government employees with the government’s needs as an employer.”
Jenkins v. Rock Hill Local Sch. Dist., 513 F.3d 580, 586 (6th Cir. 2008). Davis’s allegation of
racial discrimination by University officials in the Bursar’s Office was constitutionally protected
speech. Id. (“[T]he right to criticize public officials is clearly protected by the First
Amendment.”) (citation omitted).
The third element of a First Amendment retaliation case examines whether a plaintiff has
proven “a causal connection between the protected conduct and the adverse action.” Thaddeus-X
v. Blatter, 175 F.3d 378, 399 (6th Cir. 1999) (en banc). The district court determined that a
reasonable juror could conclude that Nailon was terminated in retaliation for Davis’s complaints
-8- No. 16-4691, Nailon v. Univ. of Cincinnati, et al.
based on the temporal proximity of her termination to Davis’s allegations, and Wolterman’s
deposition testimony that he believed there was “collusion” between Nailon and Davis.
We agree.
The Defendants first argue that the district court erred by “focus[ing] almost exclusively
on the temporal proximity” between Davis’s speech and Nailon’s termination. But close
temporal proximity between a protected activity and the adverse action may serve as evidence of
retaliation. See Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008). Moreover,
the temporal proximity between Davis’s speech and Nailon’s firing was not the only basis for the
court’s decision. It also concluded that a reasonable juror could have determined that Nailon was
terminated in retaliation for Davis’s free speech based on Wolterman’s comments that he
suspected “collusion” between Nailon and Davis. To the extent that the Defendants ask us to
reinterpret Wolterman’s statements, we are without jurisdiction to make such a fact-based
inquiry.
The Defendants also argue that University officials would have made the same decision
to terminate Nailon even if Davis had not complained of discrimination, and that Nailon cannot
establish a constitutional violation under the burden-shifting framework of a First Amendment
retaliation claim. We agree with the district court that Nailon has produced sufficient evidence
for a reasonable juror to conclude that University officials terminated her in retaliation for her
niece’s protected speech. Given the factual disputes as to Nailon’s actual actions on her son’s
account and the rules and policies in place at the Bursar’s Office during the relevant time period,
the Defendants “have not demonstrated that no reasonable juror could fail to find” that
University officials would have terminated Nailon absent Davis’s conduct. Wenk v. O’Reilly,
783 F.3d 585, 599 (6th Cir. 2015).
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On appeal, Defendants also argue that there is no evidence that Jones or Gacasan
participated in conduct violating Nailon’s rights because they were not involved in her
termination. But “an influential recommender can be liable under § 1983 without being the final
decision maker, if the recommendations are shown to be sufficiently influential.” See
Stinebaugh v. City of Wapakoneta, 630 F. App’x 522, 530 n.2 (quotation marks and citation
omitted). Defendants’ Reply concedes that Jones and Gacasan played a role in the investigation
that led to Nailon’s termination—Jones by “investigating Nailon’s misconduct and . . . bringing
it to Wolterman,” and Gacasan by “review[ing] the investigation and inform[ing] the Bursar’s
Office that Human Resources would support termination.” Viewing the disputed facts in the
light most favorable to Nailon, a reasonable jury could find that they “played an influential role”
in the termination and that their actions violated Nailon’s First Amendment rights. Stinebaugh,
630 F. App’x at 530 n.2.
Indeed, viewing all these facts in the light most favorable to Nailon, she has demonstrated
a causal connection between her termination and her niece’s protected speech and established a
First Amendment retaliation claim. She has thus satisfied the first prong of the qualified
immunity analysis by showing a constitutional violation.
2. Clearly Established Law
Under the second prong of the qualified immunity test, Nailon must show that her first
Amendment rights in this setting were clearly established at the time of her termination. A right
is clearly established when its contours are sufficiently clear that a reasonable official would
understand that his conduct violates that right. See Anderson v. Creighton, 438 U.S. 635, 640
(1987). To determine if a right is clearly established, we may look to “binding precedent from
the Supreme Court, the Sixth Circuit, the district court itself, or other circuits.” Wenk, 783 F.3d
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at 598 (quoting Gaspers v. Ohio Dep’t of Youth Servs., 648 F.3d 400, 477 (6th Cir. 2011). The
“dispositive question is whether the violative nature of particular conduct is clearly established,”
and is examined “in light of the specific context of the case, not as a broad general proposition.”
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015). The crucial question is whether public officials
are on notice that their conduct is unlawful. “Public officials could ‘still be on notice that their
conduct violates established law even in novel factual circumstances.’” Gaspers, 648 F.3d at
417 (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)).
The Defendants argue that there is no clearly established law putting a university official
on notice that terminating an individual in retaliation for speech made by her niece would be a
constitutional violation. In their principal brief, they allege it is “[n]ot clear at all that a claim of
retaliation for the speech of a family member fits under the First Amendment.” The district court
determined that such a right was clearly established based on cases within this circuit that
examined claims of First Amendment retaliation where the underlying speech was made by a
relative, rather than the plaintiff herself. See, e.g., Henley v. Tullahoma City Sch. Sys., 84 F.
App’x 534, 540–42 (6th Cir. 2003) (evaluating retaliation claim alleged by daughter based on
protected speech made by father); Ward v. Athens City Bd. of Educ., 187 F.3d 639 (6th Cir. Aug.
11, 1999) (unpublished table decision) (evaluating retaliation claims alleged by daughters based
on speech made by mother).
The Defendants revise this argument in their Reply. There they posit that even though
there is precedent establishing that a First Amendment retaliation claim may be based on speech
made by a relative, these cases involve a “closer” relationship between the speaker and the
plaintiff than aunt and niece. They cite Teare v. Independence Local School District Board of
Education, No. 1:10-cv-01711, 2011 WL 4633105, at *5 (N.D. Ohio Aug. 18, 2011), in which
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the district court determined that the plaintiff, a thirteen-year-old girl, had not shown a clearly
established right of familial association with her uncle. Again, Nailon does not assert a claim for
violation of her associational rights—she alleges that the Defendants retaliated against her based
on her niece’s speech. Accordingly, Teare does not control our analysis.
The Supreme Court has found that in the Title VII context, a third-party reprisal can form
the basis of a retaliation claim. See Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 174-75
(2011) (holding that “it is obvious that a reasonable worker might be dissuaded from engaging in
protected activity if she knew her fiancé would be fired); see also Benison v. Ross, 765 F.3d 649,
658-59 (6th Cir. 2014) (referencing Thompson in its evaluation of a First Amendment retaliation
case brought under § 1983). Moreover, the Court has explicitly “decline[d] to identify a fixed
class of relationships for which third-party reprisals are unlawful.” Thompson, 562 U.S. at 175.
It recognized that there may be “difficult line-drawing problems concerning the types of
relationships entitled to protection,” and that “the significance of any given act of retaliation will
often depend on the particular circumstances.” Id. at 174-75. Thompson confirms that Ward and
Henley illustrate some situations in which reprisal against a close relation would dissuade
protected conduct; they do not cabin or limit the types of familial relationships that support a
third-party retaliation claim.
An examination of the facts in this case confirms that Nailon and Davis’s relationship
may form the basis for Nailon’s retaliation claim. As in Ward and Henley, the close familial
relationship between Nailon and Davis was known to the Defendants. For a time, Davis lived
with Nailon and she visited Nailon at work in the Bursar’s Office. Davis testified that she
thought of Nailon as a mother, and identified her to others as such. The Defendants found the
relationship sufficiently close to serve as the basis for discipline against Nailon when Defendants
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discovered she had been working on Davis’s account and had approved Davis for a short-term
loan. Given these facts showing the close relationship between Nailon and Davis, as well as the
cases establishing that private citizens have a protected First Amendment right to criticize public
officials, see, e.g., Holzemer, 621 F.3d at 520; Jenkins, 513 F.3d at 586, it should have been clear
to a reasonable University official that retaliating against Nailon for Davis’s speech would be
unlawful. The Defendants are therefore not entitled to qualified immunity.
III. CONCLUSION
For the reasons explained above, we AFFIRM the district court’s denial of qualified
immunity to Wolterman, Jones, and Gacasan.
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