Paul Lane v. City of Pickerington

588 F. App'x 456
CourtCourt of Appeals for the Sixth Circuit
DecidedNovember 14, 2014
Docket13-4073
StatusUnpublished
Cited by12 cases

This text of 588 F. App'x 456 (Paul Lane v. City of Pickerington) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Paul Lane v. City of Pickerington, 588 F. App'x 456 (6th Cir. 2014).

Opinions

HELENE N. WHITE, Circuit Judge.

Paul Lane appeals the district court’s grant of summary judgment to his former employer, the City of Pickerington, Ohio, and Individual Defendants Mitch O’Brien, Michael D. Taylor, and Linda Fersch, on his Fourteenth Amendment procedural due process claims brought under 42 U.S.C. § 1983 and his Ohio common-law defamation claim. Lane asserts he was denied due process of law when he was terminated without a constitutionally sufficient pre-termination hearing and denied a timely post-termination hearing, and asserts that Defendant Taylor published defamatory statements about him. We AFFIRM in part, REVERSE in part, and REMAND for further proceedings.

I.

The district court’s opinion includes the following relevant facts:

On August 30, 1999, Paul Lane began working for Pickerington as a construction inspection supervisor. In 2002, he was demoted to construction inspector. Beginning informally in November 2004 and officially in November 2005, Lane was an inspection administrator.
City manager Tim Hansley was Lane’s boss. Although Lane would call Hansley a friend, they did not see each other often outside the work environment. Hansley was fired October 20, 2009. Shortly before he was fired, Hansley met with Lane and four other employees and told them that the may- or, Mitch O’Brien, wanted him to fire them. Lane believes Hansley was fired because he refused to fire them. Defendant Linda Fersch, Pickerington’s personnel director, told the five not to worry, there were always rumors. Lane testified that Hansley was a good city manager and should not have been fired.
On October 22, 2009, police chief Michael Taylor’s first day as acting city manager, he told Eric Vannatta to search Lane’s computer. Taylor testified that he ordered Lane’s computer searched because “there was a rumor that certain city employees Lane, Steve Carr, and George Parsley were removing erasing public documents from their [459]*459computers.” He could not recall who he heard the rumor from. He testified, “The rumor was Tim Hansley was saying these people ... were removing public documents from their computers.”
Vannatta suffered a stroke in 2010 that has eliminated his memory of many events over the 25 years before the stroke. He has little recollection of the search. He does not remember what he was searching for or how he used Recu-va software during the search. He does recall burning a copy of pornographic images found on the computer to a CD. Almost all the images were from June 28 and 30, 2005, some four and one-half years before the search. Vannatta wrote a one-sentence October 23, 2009 memo to Taylor: “After using specialized software to retrieve images from Paul Lane’s computer, it was noted that pornographic images were present on the hard drive.”
Several weeks later, Vannatta used Recuva software to inspect George Parsley’s computer. Lane’s and Parsley’s computers were the only two computers Vannatta ever inspected during his career with Pickerington.
Taylor testified that Vannatta told him he found no evidence any public documents were being erased from the searched computers. But Vannatta said he found around 30 pornographic images and “he found numerous sites where sites where — numerous listings on the computer where Paul went to look at pornography.” Taylor further testified that Vannatta said there was a device on the computer that meant that what Lane was doing on the computer didn’t get stored on the hard drive.
City policy prohibits viewing pornography on city computers. The city’s internet guidelines prohibit using a computer to view pornographic, obscene, and sexually oriented images.
At approximately 8:20 a.m. on October 29, 2009, Taylor gave Lane a prediscipli-nary notice of an October 30 prediscipli-nary hearing. Lane was not told that he might be terminated or that he had the right to be represented by an attorney at the hearing.
Taylor held the predisciplinary hearing which began at 10:00 a.m. on October 30, 2009. Personnel director Fersch was present, but did not participate.1 Taylor asked Lane to explain the pornography found on his computer. Lane asked to see the images found on his computer, and Taylor refused to show them to him.2 Lane testified that he told Taylor that' he did not put pornography on the computer.3 He further told Taylor that “if there are any im[460]*460ages, the only way I am aware there could be any would be from checking my personal email. You open up something from a buddy and it’s an off color joke and a picture of boobs.... I’m not aware of ever opening up any emails on my work computer.”4 Although his computer was password protected for login, Lane testified that anyone could access his computer during the work day because he was often out of his office and his computer was on from 6:00-6:30 a.m. to 5:00-6:00 p.m.
During the hearing, Taylor told Lane he had the option of resigning or being fired. Lane testified that Taylor told him that he could, resign and receive a good recommendation. Lane asked to consider the offer over the weekend. On Monday, Lane told Taylor he would not resign. Taylor testified that he alone made the decision to fire Lane for looking at pornography on a work computer.
On October 30, 2009, probably after the predisciplinary hearing, Taylor asked then Sgt. Gene Delp.to witness Eric Vannatta examine Lane’s computer. Vannatta ran a program to search for deleted files and printed out a list of those files. Vannatta told Delp he was looking for pornography. Delp’s recollection was that Vannatta found some cookies from pornography sites and history of internet visits to those sites.However, he did not include those findings in his report to Taylor, and that type of finding should have been included in the report. Vannatta found U2 software on Lane’s computer, which could have been used to run a web browser and other software without using the computer’s hard drive. A Google Chrome browser was also installed on the computer. That browser would permit the user to browse the internet anonymously without creating any entries on the internet history file.
Delp reported to Taylor that Vannatta found pornographic images that appeared to come from pornographic web sites. Taylor told him to write a summary report. Delp wrote a report either that day or the next. That report reads, in relevant part:
Eric Vannatta provided computer tools which would recover deleted files, and showed me how he had used this software to recover appx. 30 files which indicated the computer had been used to access pornography over the internet. The files were still in the computer’s hard drive, and were again located by the software provided by Eric Vannatta among 42,000 images which had been deleted from the computer. The pornography files were located in the Internet Explorer 5 temporary files and dated in 2005. The location of the files is consistent with files stored during the use of Internet Explorer. This is contrary to the claim from Mr. Lane that the files were delivered to his computer in an email.

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588 F. App'x 456, Counsel Stack Legal Research, https://law.counselstack.com/opinion/paul-lane-v-city-of-pickerington-ca6-2014.