Crystal Dixon v. University of Toledo , 702 F.3d 269 ( 2012 )


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    Pursuant to Sixth Circuit I.O.P. 32.1(b)
    File Name: 12a0408p.06
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    _________________
    X
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    CRYSTAL DIXON,
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    Plaintiff-Appellant,
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    No. 12-3218
    v.
    ,
    >
    -
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    UNIVERSITY OF TOLEDO,
    -
    Defendant,
    -
    -
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    LLOYD JACOBS, individually and in his
    -
    official capacity as President, University of
    -
    Toledo; WILLIAM LOGIE, individually and in
    -
    his official capacity as Vice President for
    Human Resources and Campus Safety,                -
    -
    N
    University of Toledo,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Northern District of Ohio at Toledo.
    No. 3:08-cv-2806—David A. Katz, District Judge.
    Argued: December 5, 2012
    Decided and Filed: December 17, 2012
    Before: MOORE, GILMAN, and KETHLEDGE, Circuit Judges.
    _________________
    COUNSEL
    ARGUED: Robert Joseph Muise, AMERICAN FREEDOM LAW CENTER, Ann
    Arbor, Michigan, for Appellant. Elizabeth M. Stanton, TAFT STETTINIIUS &
    HOLLISTER, LLP, Columbus, Ohio, for Appellees. ON BRIEF: Robert Joseph Muise,
    AMERICAN FREEDOM LAW CENTER, Ann Arbor, Michigan, Erin Elizabeth
    Mersino, THOMAS MORE LAW CENTER, Ann Arbor, Michigan, James R. Acho,
    CUMMINGS, McCLOREY, DAVIS & ACHO, Livonia, Michigan, Thomas A. Sobecki,
    Toledo, Ohio, for Appellant. Elizabeth M. Stanton, Sarah D. Morrison, Donald C. Brey,
    TAFT STETTINIIUS & HOLLISTER, LLP, Columbus, Ohio, for Appellees.
    1
    No. 12-3218        Dixon v. Univ. of Toledo et al.                              Page 2
    _________________
    OPINION
    _________________
    KAREN NELSON MOORE, Circuit Judge. In 2008, Plaintiff-Appellant Crystal
    Dixon, an African-American woman and then-interim Associate Vice President for
    Human Resources at the University of Toledo (the “University”), wrote an op-ed column
    in the Toledo Free Press rebuking comparisons drawn between the civil-rights and gay-
    rights movements. Shortly thereafter, Dixon was fired. Claiming violations of her First
    and Fourteenth Amendment rights, Dixon subsequently filed a § 1983 suit against the
    University and Defendants-Appellees University President Lloyd Jacobs and University
    Vice President for Human Resources and Campus Safety William Logie (collectively,
    “the defendants”). The district court granted summary judgment to the defendants on
    all claims, and Dixon appeals.
    The issues raised in this appeal turn primarily on the resolution of a narrow
    inquiry: whether the speech of a high-level Human Resources official who writes
    publicly against the very policies that her government employer charges her with
    creating, promoting, and enforcing is protected. We conclude that, given the nature of
    her position, Dixon did not engage in protected speech. We therefore AFFIRM the
    judgment of the district court.
    I. BACKGROUND
    Dixon began her career at the University in January 2002. R. 71-4 (Dixon Tr.
    at 37:8–38:10) (Page ID #1396). At this time, she was recruited by Logie to become the
    Administrative Director of Employee Relations at the Medical College of Ohio (the
    “College”). Id. On July 1, 2006, the College merged with the University, and Dixon
    was promoted to Associate Vice President for Human Resources for the Health Sciences
    Campus. Id. 65:2–9 (Page ID #1401). In July 2007, Dixon was promoted to interim
    Associate Vice President for Human Resources for both campuses, the position she held
    No. 12-3218        Dixon v. Univ. of Toledo et al.                                  Page 3
    until she was terminated on May 8, 2008. Id. 66:6–14; R. 60-13 (Termination Letter)
    (Page ID #521).
    On April 4, 2008, Michael Miller, Editor-in-Chief of the Toledo Free Press,
    wrote an editorial titled “Gay rights and wrongs.” R. 60-7 (Miller Editorial at 1) (Page
    ID #501). In this piece, Miller implicitly compared the civil-rights movement with the
    gay-rights movement: “As a middle-aged, overweight white guy with graying facial
    hair, I am America’s ruling demographic, so the gay rights struggle is something I
    experience secondhand, like my black friends’ struggles and my wheelchair-bound
    friend’s struggles.” Id. Miller then focused on a purported denial of healthcare benefits
    to same-sex couples at the University, explaining that “[w]hen [the College and the
    University] merged, [University] employees retained the domestic-partner benefits, but
    [College] employees were not offered them. So, people working for the same employer
    do not have access to the same benefits.” Id. at 2 (Page ID #502).
    On April 18, 2008, Dixon responded to Miller with her op-ed column “Gay rights
    and wrongs: another perspective.” R. 60-9 (Dixon Op-Ed at 1–2) (Page ID #507–08).
    Dixon addressed both points highlighted above, but did not identify her official position
    at the University. Id. Dixon first rejected the comparison made by Miller between the
    gay-rights and civil-rights movements:
    As a Black woman who happens to be an alumnus of the
    University of Toledo’s Graduate School, an employee and business
    owner, I take great umbrage at the notion that those choosing the
    homosexual lifestyle are “civil rights victims.” Here’s why. I cannot
    wake up tomorrow and not be a Black woman. I am genetically and
    biologically a Black woman and very pleased to be so as my Creator
    intended. Daily, thousands of homosexuals make a life decision to leave
    the gay lifestyle evidenced by the growing population of PFOX (Parents
    and Friends of Ex Gays) and Exodus International just to name a few. . . .
    Id. at 1 (Page ID #507). Additionally, Dixon addressed Miller’s discussion of the
    healthcare benefits system at the University:
    The reference to the alleged benefits disparity at the University
    of Toledo was rather misleading. When the University of Toledo and
    No. 12-3218        Dixon v. Univ. of Toledo et al.                                  Page 4
    former Medical University of Ohio merged, both entities had multiple
    contracts for different benefit plans at substantially different employee
    cost sharing levels. To suggest that homosexual employees on one
    campus are being denied benefits avoids the fact that ALL employees
    across the two campuses regardless of their sexual orientation, have
    different benefit plans. The university is working diligently to address
    this issue in a reasonable and cost-efficient manner, for all employees,
    not just one segment.
    Id.
    On April 21, 2008, as a result of her op-ed column, Dixon received a letter
    placing her on paid administrative leave. R. 60-12 (Administrative Leave Letter at 1–2)
    (Page ID #518–19). On May 4, 2008, Jacobs wrote a guest column in the Toledo Free
    Press responding to Dixon’s op-ed column. R. 60-11 (Jacobs Op-Ed) (Page ID #515).
    Jacobs stated that “[a]lthough I recognize it is common knowledge that Crystal Dixon
    is associate vice president for Human Resources at the University of Toledo, her
    comments do not accord with the values of the University of Toledo.” Id. Jacobs then
    explained the various programs instituted at the University aimed at expanding and
    supporting diversity on campus. Id.
    A hearing was held on May 5, 2008, at which Dixon read a prepared statement
    reiterating the beliefs stated in her op-ed column, expressing her view that she had been
    speaking as a private citizen, and accusing the University of treating her differently than
    other employees. R. 71-4 (Dixon Dep. 174:1–18) (Page ID #1416); R. 71-8, Ex. KK
    (Dixon Prepared Statement at 1–3) (Page ID #1530–32). Dixon also asserted that her
    personal views did not affect her performance as Associate Vice President of Human
    Resources:
    If the University is taking the Herculean leap to assume that my
    convictions affect my service to or decisions about those practicing
    homosexuality, please consider this: it is commonly believed/perceived
    that there are one, possibly two practicing homosexuals in the Human
    Resources Department. I hired both of them (one last year and one
    earlier this year)! I hired both of them with the perception that while
    they may be homosexual, more importantly they were competent,
    motivated and simply the best candidates for the jobs. One individual,
    No. 12-3218        Dixon v. Univ. of Toledo et al.                                     Page 5
    I actually hired this year after observing a questionable exchange
    between he and his male roommate in the parking lot one day. . . .
    R. 71-8, Ex. KK (Dixon Prepared Statement at 2) (Page ID #1531).
    On May 8, 2008, Dixon received a letter from Jacobs terminating her from the
    position of Associate Vice President for Human Resources for the following reasons:
    The public position you have taken in the Toledo Free Press is in direct
    contradiction to University policies and procedures as well as the Core
    Values of the Strategic Plan which is mission critical. Your position also
    calls into question your continued ability to lead a critical function within
    the Administration as personnel actions or decisions taken in your
    capacity as Associate Vice President for Human Resources could be
    challenged or placed at risk. The result is a loss of confidence in you as
    an administrator.
    R. 60-13 (Termination Letter) (Page ID #521).
    On December 1, 2008, Dixon filed suit in the U.S. District Court for the Northern
    District of Ohio against the University, Jacobs, and Logie. R. 1 (Compl.) (Page ID #1).
    The parties stipulated to dismiss Dixon’s Equal Pay Act claim, and thus the University,
    from this case on January 7, 2011. R. 55 (Order at 1) (Page ID #374). On April 29,
    2011, Dixon filed a motion for summary judgment, and the remaining defendants cross-
    moved for summary judgment in response. R. 60 (Pl.’s Mot. for Summ. J.) (Page ID
    #407); R. 71 (Defs.’ Mot. for Summ. J.) (Page ID #1321). The district court granted the
    defendants’ motion, and Dixon appealed. Dixon v. University of Toledo, 
    842 F. Supp. 2d 1044
     (N.D. Ohio 2012).
    II. STANDARD OF REVIEW
    We review de novo a district court’s grant of summary judgment. Int’l Union v.
    Cummins, Inc., 
    434 F.3d 478
    , 483 (6th Cir. 2006). We review the evidence and draw all
    inferences in the light most favorable to the nonmoving party. 
    Id.
     “[O]n cross-motions
    for summary judgment, the court must evaluate each party’s motion on its own merits,
    taking care in each instance to draw all reasonable inferences against the party whose
    motion is under consideration.” B.F. Goodrich Co. v. U.S. Filter Corp., 
    245 F.3d 587
    ,
    No. 12-3218        Dixon v. Univ. of Toledo et al.                                Page 6
    592 (6th Cir. 2001) (internal quotation marks omitted).         Summary judgment is
    appropriate if “the movant shows that 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).
    III. CONSTITUTIONAL CLAIMS
    Dixon appeals the district court order granting summary judgment to the
    defendants on her First Amendment retaliation claim and her equal-protection claim, as
    well as the district court’s determination that the defendants are entitled to qualified
    immunity. Dixon argues that the district court erred in its First Amendment retaliation
    analysis, contending that the defendants “violated [her] right to freedom of speech by
    terminating her employment because she authored an opinion piece in a local newspaper
    in which she expressed her personal opinion and viewpoint on the issue of
    homosexuality and civil rights from the perspective of a Christian, African-American
    woman.”       Appellant Br. at 15.     Dixon further asserts that the district court
    misapprehended the equal-protection standard, arguing that “when government officials
    engage in discriminatory treatment based on the exercise of the fundamental right to
    freedom of speech they violate not only the First Amendment, but they also violate the
    equal protection guarantee of the Fourteenth Amendment.” 
    Id.
     at 34–35.
    A. First Amendment Retaliation
    First Amendment retaliation claims are analyzed under a burden-shifting
    framework. A plaintiff must first make a prima facie case of retaliation, which
    comprises the following elements: “(1) he engaged in constitutionally protected speech
    or conduct; (2) an adverse action was taken against him that would deter a person of
    ordinary firmness from continuing to engage in that conduct; (3) there is a causal
    connection between elements one and two—that is, the adverse action was motivated at
    least in part by his protected conduct.” Scarbrough v. Morgan Cnty. Bd. of Educ.,
    
    470 F.3d 250
    , 255 (6th Cir. 2006). If the employee establishes a prima facie case, the
    burden then shifts to the employer to demonstrate “by a preponderance of the evidence
    that the employment decision would have been the same absent the protected conduct.”
    No. 12-3218            Dixon v. Univ. of Toledo et al.                                            Page 7
    Eckerman v. Tenn. Dep’t of Safety, 
    636 F.3d 202
    , 208 (6th Cir. 2010) (internal quotation
    marks omitted).
    Only the first element, whether the speech was protected, is at issue on appeal.1
    “[W]e have consistently described the question of whether, in a First Amendment
    retaliation action, a public employee’s speech is protected as one of law, not one of both
    fact and law.” Fox v. Traverse City Area Public Schs. Bd. of Educ., 
    605 F.3d 345
    , 350
    (6th Cir. 2010); see also Westmoreland v. Sutherland, 
    662 F.3d 714
    , 718 (6th Cir. 2011)
    (“There being no factual dispute regarding what was said, this court treats the question
    of whether a public employee’s speech is protected as a question of law.”).
    In order to establish that her speech was protected, Dixon must first show that
    the speech touched on a matter of public concern. Scarbrough, 
    470 F.3d at
    255 (citing
    Connick v. Myers, 
    461 U.S. 138
    , 142 (1983)). Dixon must then show that under the
    Pickering balancing test, her “free speech interests outweigh the efficiency interests of
    the government as employer.” 
    Id.
     (internal quotation marks omitted) (relying on
    Pickering v. Bd. of Educ., 
    391 U.S. 563
     (1968)). Finally, Dixon must demonstrate that
    the speech was not made pursuant to her official duties as Associate Vice President of
    Human Resources, a causation issue established in Garcetti v. Ceballos, 
    547 U.S. 410
    (2006). In sum, Dixon “must satisfy each of these requirements: the Connick ‘matter
    of public concern’ requirement, the Pickering ‘balancing’ requirement and the Garcetti
    ‘pursuant to’ requirement.” Evans-Marshall v. Bd. of Educ. of Tipp City Exempted Vill.
    Sch. Dist., 
    624 F.3d 332
    , 338 (6th Cir. 2010).
    Because the parties do not dispute that Dixon spoke on a matter of public
    concern, we turn to whether Dixon satisfies the Pickering requirement. The defendants
    argue that Dixon’s speech falls into the presumption set forth in Rose v. Stephens, 
    291 F.3d 917
     (6th Cir. 2002). If this presumption applies, then Dixon’s speech is not
    protected as a matter of law. Alternatively, the defendants argue that under the
    1
    Termination is an adverse employment action, and it is clear that Dixon was terminated because
    of her speech. See v. City of Elyria, 
    502 F.3d 484
    , 494 (6th Cir. 2007) (concluding that, when terminated,
    “See undeniably suffered an adverse action”).
    No. 12-3218        Dixon v. Univ. of Toledo et al.                                  Page 8
    traditional Pickering balancing test, the balance of interests weighs in favor of the
    defendants rather than Dixon. The district court addressed both issues, concluding that
    the presumption applied to Dixon and that “the balance of [Dixon’s] interest in making
    a comment of public concern is clearly outweighed by the University’s interest as her
    employer in carrying out its own objectives.” Dixon, 842 F. Supp. 2d at 1051, 1053.
    The Rose presumption dictates that “where a confidential or policymaking public
    employee is discharged on the basis of speech related to his political or policy views, the
    Pickering balance favors the government as a matter of law.” Rose, 
    291 F.3d at 921
    .
    Therefore, in order for the presumption to apply, Dixon must (1) hold a confidential or
    policymaking position, and (2) have spoken on a matter related to political or policy
    views. See Silberstein v. City of Dayton, 
    440 F.3d 306
    , 319 (6th Cir. 2006) (“Thus, if
    Silberstein occupied a policymaking position as Assistant Chief Examiner, and if her
    letter to the editor related to her policy views, then her free speech interests
    presumptively lose out to the city of Dayton’s interests in efficiently running its
    government.”). An application of this presumption “renders the fact-intensive inquiry
    normally required by Pickering unnecessary because under these circumstances it is
    appropriate to presume that the government’s interest in efficiency will predominate.”
    Rose, 
    291 F.3d at 923
    .
    Although there is no clear line drawn between policymaking and non-
    policymaking positions, we have previously outlined the following four categories of
    individuals to whom the Rose presumption will always apply:
    “Category One: positions specifically named in relevant federal, state,
    county, or municipal law to which discretionary authority with respect
    to the enforcement of that law or the carrying out of some other policy
    of political concern is granted;
    Category Two: positions to which a significant portion of the total
    discretionary authority available to category one position-holders has
    been delegated; or positions not named in law, possessing by virtue of
    the jurisdiction’s pattern or practice the same quantum or type of
    discretionary authority commonly held by category one positions in other
    jurisdictions;
    No. 12-3218        Dixon v. Univ. of Toledo et al.                                     Page 9
    Category Three: confidential advisors who spend a significant portion
    of their time on the job advising category one or category two position-
    holders on how to exercise their statutory or delegated policymaking
    authority or other confidential employees who control the lines of
    communications to category one positions, category two positions or
    confidential advisors; and
    Category Four: positions that are part of a group of positions filled by
    balancing out political party representation, or that are filled by balancing
    out selections made by different governmental agents or bodies.”
    Latham v. Office of Attorney Gen. of Ohio, 
    395 F.3d 261
    , 267 (6th Cir. 2005) (quoting
    McCloud v. Testa, 
    97 F.3d 1536
    , 1557–58 (6th Cir. 1996)). “In determining whether an
    employee falls into one of these categories, we must examine the inherent duties of the
    position, rather than the actual tasks undertaken by the employee.” 
    Id.
     “While the
    inherent duties of the position are not necessarily those that appear in the written job
    description and authorizing statute, such descriptions can be instructive.” 
    Id.
     (internal
    quotation marks omitted).
    The district court determined that as Associate Vice President for Human
    Resources, Dixon “was vested with a significant portion of the statutory authority
    available, placing her within category two.” Dixon, 842 F. Supp. 2d at 1051. The
    district court reasoned that her delegated appointing authority, including the authority
    to hire and fire, was significant and discretionary. Id. Dixon contends on appeal that the
    district court erred in reaching this conclusion because “[a]lthough [Dixon] had authority
    to make some hiring decisions . . . she had no discretion to make policy regarding hiring
    practices nor was she delegated any such authority, let alone a ‘significant portion’ of
    it. Moreover, she had no authority, delegated or otherwise, to make any other policy of
    political concern.” Appellant Br. at 26 (emphasis in original).
    In Resolution No. 07-10-10, effective October 1, 2007, the Board of Trustees of
    the University delegated appointing authority to the Associate Vice President for Human
    Resources. R. 71-3, Ex. D (Resolution at 1) (Page ID #1387). Further, the official job
    description for Associate Vice President for Human Resources, which Dixon verified as
    accurate in her deposition, listed the most important job duty as “Policy Development
    No. 12-3218        Dixon v. Univ. of Toledo et al.                                Page 10
    and Application.” R. 71-4 (Dixon Tr. at 50:12–51:10) (Page ID #1399); R. 71-8, Ex. C
    (Job Description at 1–2) (Page ID #1447–48). Specifically, this duty requires that the
    Associate Vice President “[p]rovide leadership in recommending, implementing and
    overseeing human resource policies and procedures that support the university’s strategic
    direction; reflect fair and equitable practices; and that are a model for innovative
    regulatory compliant and contemporary practice.” R. 71-8, Ex. C (Job Description at 2)
    (Page ID #1448). The job description further notes that the Associate Vice President
    directs employee relations and “represent[s] the University in relevant employee
    relations actions brought before the . . . Ohio Civil Rights Commission, Equal
    Employment Opportunity Commission, . . . and other federal and state regulatory
    agencies.” Id.
    Additionally, Dixon’s own testimony regarding her job responsibilities
    reflects significant discretionary authority. Dixon testified that she was responsible for
    answering grievances, issuing disciplinary and corrective action, serving on various task
    forces, supervising approximately forty employees, overseeing benefits administration,
    setting compensation, and making presentations at town-hall meetings. R. 71-4 (Dixon
    Tr. at 40:11–43:4, 44:19-46:21) (Page ID #1396–98).
    This evidence establishes that Dixon was delegated appointing authority and was
    responsible for recommending, implementing, and overseeing policy. See Hager v. Pike
    Cnty. Bd. of Educ., 
    286 F.3d 366
    , 376 (6th Cir. 2002) (“Moreover, in determining
    whether an employee occupies a policymaking position, consideration should be given
    to whether the employee formulates plans for the implementation of broad goals.”)
    (internal quotation marks and alterations omitted). The district court was thus correct
    in determining that these responsibilities constituted a policymaking position, i.e., that
    Dixon, as Associate Vice President for Human Resources, was a category-two
    policymaker.
    In addition to holding a policymaking position, Dixon must have spoken on a
    political or policy issue in order to be subject to the Rose presumption. In Rose, we
    reasoned that “[t]he additional restriction that this presumption applies only to cases
    No. 12-3218         Dixon v. Univ. of Toledo et al.                               Page 11
    where the employee speaks on political or policy issues ensures that the content of the
    employee’s speech directly implicates the loyalty requirements of the position and thus
    will adversely affect a central aspect of the working relationship in all cases.” 
    291 F.3d at 923
    . Dixon argues that her op-ed column expressed a matter of personal concern and
    “was not speech that relates to either [her] political affiliation or substantive policy.”
    Appellant Br. at 26–27 (internal quotation marks and emphasis omitted).
    Dixon’s argument, however, ignores critical policies developed in and promoted
    by the Human Resources Department at the University. Dixon’s public statement
    implying that LGBT individuals should not be compared with and afforded the same
    protections as African-Americans directly contradicts several such substantive policies
    instituted by the University. For example, the University’s Strategic Plan included
    pursuing a strategy that will “[r]ealize the strength and distinction to be derived from
    diversity in all its dimensions [and] recruit, retain, and celebrate a diverse university
    community.” R. 71-8, Ex. N (Strategic Plan at 11) (Page ID #1464). Additionally, the
    University enacted a Plan for Diversity that explicitly included sexual orientation. R.
    71-8, Ex. P (Plan for Diversity at 1) (Page ID #1471). The University also included
    sexual orientation and gender identity and expression in its Equal Opportunity Policy
    and in its anti-harassment policy. R. 71-8, Ex. S (Equal Opportunity Policy at 1) (Page
    ID #1494); R. 71-8, Ex. T (Sexual Harassment Policy at 1) (Page ID #1497). Finally,
    as explained by Jacobs in his op-ed column, the University enacted the Spectrum Safe
    Places Program, which encourages “faculty, staff and graduate assistants and resident
    advisers to open their space as a Safe Place for Lesbian, Gay, Bisexual, Transgender,
    Queer, and Questioning . . . individuals.” R. 60-11 (Jacobs Opinion at 1) (Page ID
    #515).
    Although Dixon correctly contends that she never explicitly stated that the
    University diversity policies should not extend to LGBT students and employees, by
    voicing her belief that members of the LGBT community do not possess an immutable
    characteristic in the way that she as an African-American woman does, the implication
    is clear: Dixon does not think LGBT students and employees of the University are
    No. 12-3218            Dixon v. Univ. of Toledo et al.                                             Page 12
    entitled to civil-rights protections, even though the University, in part through the
    Human Resources Department, expressly provides them. In writing her op-ed column,
    Dixon not only spoke on policy issues, but also spoke on policy issues related directly
    to her position at the University. See Rose, 294 F.3d at 925 (“All of these issues are
    clearly related to police department policies and the memorandum thus fits easily within
    the scope of the exception.”).
    In sum, the Rose presumption applies to Dixon because there is evidence
    establishing that she was a policymaker who engaged in speech on a policy issue related
    to her position. The government’s interests thus outweigh Dixon’s interests as a matter
    of law, and we affirm the district court’s grant of summary judgment to the defendants
    on this basis. Because the Rose presumption is dispositive, it is unnecessary for us to
    consider the district court’s Pickering and Garcetti analyses.
    B. Additional Challenges to the University’s Speech Policy
    Dixon also argues that the defendants “maintain unbridled discretion to punish
    University employees for expressing disfavored opinions in violation of the First
    Amendment.” Appellant Br. at 32. The district court construed this argument as two
    claims—vagueness and viewpoint discrimination. Dixon, 842 F. Supp. 2d at 1054. The
    district court addressed these claims together and concluded that Dixon “has not
    presented any law applying these principles to the employment, rather than sovereign,
    context” and that “the damage she did to her ability to perform her job and to the
    University provide ample justification for her termination.” Id. at 1054 & n.4.
    On appeal, Dixon’s argument presents the same flaws. To begin, as in the district
    court, she provides no meaningful case law in support of her vagueness challenge.2
    Moreover, Dixon does not provide any evidentiary support for her argument. Mere
    2
    The only Sixth Circuit case cited by Dixon, United Food & Commercial Workers Union, Local
    1099 v. Southwest Ohio Regional Transit Authority, 
    163 F.3d 341
     (6th Cir. 1998), addresses a due-process
    challenge to a state-agency restriction on controversial advertisements. 
    Id. at 359
    . Dixon also relies upon
    Child Evangelism Fellowship of South Carolina v. Anderson School District Five, 
    470 F.3d 1062
     (4th Cir.
    2006), a Fourth Circuit case that analyzes viewpoint discrimination as it applies to a school district’s fee-
    waiver system.
    No. 12-3218        Dixon v. Univ. of Toledo et al.                               Page 13
    claims that the University does not have “objective criteria for determining whether a
    particular opinion expressed by a University employee is sufficiently ‘offensive’ or
    ‘discriminatory’ to warrant its prohibition by terminating the speaker’s employment” are
    insufficient at the summary-judgment stage. Appellant Br. at 32. In fact, Dixon fails
    even to describe or reference the policy that she claims is vague and discriminatory. We
    therefore affirm the district court’s grant of summary judgment in favor of the
    defendants on these challenges to the University’s speech policy.
    C. Equal-Protection Claim
    Dixon also alleges an equal-protection claim against the defendants, arguing on
    appeal that the defendants “punished Plaintiff because she expressed a ‘less favored’
    viewpoint—one grounded in her strong Christian faith no less—in this very same forum
    in violation of the First Amendment (freedom of speech) and the Fourteenth Amendment
    (equal protection).” Appellant Br. at 34. The district court granted summary judgment
    to the defendants on this claim because Dixon “has not presented anyone who was
    ‘similarly-situated’ and engaged in similar conduct.” Dixon, 842 F. Supp. 2d at 1055.
    “The Equal Protection Clause prohibits a state from denying to any person within
    its jurisdiction the equal protection of the laws.” Scarbrough, 
    470 F.3d at 260
     (internal
    quotation marks omitted). “The threshold element of an equal protection claim is
    disparate treatment; once disparate treatment is shown, the equal protection analysis to
    be applied is determined by the classification used by government decision-makers.”
    
    Id.
     “Fundamentally, the Clause protects against invidious discrimination among
    similarly-situated individuals or implicating fundamental rights.” 
    Id.
     Although Dixon
    recites this standard in her argument, she has failed to produce sufficient evidence in
    support of her equal-protection claim. To begin, as discussed above, she has not shown
    that the defendants violated a fundamental right, as her speech was not protected.
    Moreover, Dixon has not shown that the individuals she argues were allowed to engage
    in public speech on the issue of LGBT rights and protections without penalty—Jacobs
    and Vice Provost Carol Bresnahan—are similarly situated.
    No. 12-3218         Dixon v. Univ. of Toledo et al.                                Page 14
    Dixon’s comparison with Jacobs is easily distinguishable. Jacobs, as President
    of the University, wrote an op-ed column detailing the University’s stance on diversity,
    specifically as it relates to sexual orientation. R. 60-11 (Jacobs Op-Ed) (Page ID #515).
    Jacobs was speaking in his official capacity as the President of the University in order
    to explain the University’s position on a policy matter. Dixon, on the other hand, wrote
    an op-ed column that was not commissioned by the University and that contradicted the
    very policies that she was charged with creating, promoting, and enforcing.
    The comparison with Bresnahan, although intuitively more germane, fails
    because it is unsupported by sufficient evidence in the record. The evidence proffered
    by Dixon establishes that in December 2007, Bresnahan and her partner “became the
    first same-sex couple to file under the city’s new domestic-partner registry.” R. 60-14
    (Bresnahan Article at 1) (Page ID #523). After she and her partner filed under the
    registry, Bresnahan was interviewed by the Toledo Blade and made the following
    statement regarding opposition of others to the registry: “It’s their religious beliefs, and
    bigotry in the name of religion is still bigotry.” 
    Id.
     at 1–2 (Page ID #523–24).
    Bresnahan was identified as Vice Provost of the University in the article, yet she was not
    terminated or disciplined as a result of this statement. Id. at 1 (Page ID #523); R. 60-5
    (Jacobs Tr. at 218:15–24) (Page ID #476).
    Importantly, however, the record is silent as to the responsibilities and authority
    of the vice-provost position at the University. “Inevitably, the degree to which others
    are viewed as similarly situated depends substantially on the facts and context of the
    case.” Loesel v. City of Frankenmuth, 
    692 F.3d 452
    , 463 (6th Cir. 2012) (internal
    quotation marks omitted). In this case, the critical inquiry centers on Dixon’s role at the
    University. Therefore, in order to determine whether Bresnahan and Dixon are similarly
    situated, we must at the very least have before us a description of the duties inherent in
    Bresnahan’s role at the University. Without such evidence, we cannot engage in an
    accurate comparison of the two individuals for the purposes of summary judgment in this
    case. Although Dixon has identified another administrator at the University who also
    spoke publicly on the issue of LGBT rights, Dixon has not shown that Bresnahan is
    No. 12-3218         Dixon v. Univ. of Toledo et al.                                Page 15
    similarly situated. We thus affirm the district court’s grant of summary judgment in
    favor of the defendants on the equal-protection claim.
    D. Qualified Immunity
    Finally, Dixon argues that the defendants are not entitled to qualified immunity.
    Appellant Br. at 35. However, given that Dixon has not shown a violation of her
    constitutional rights, we affirm the district court’s determination that “the Court need not
    consider whether such rights were ‘clearly established’ at the time of her termination.”
    Dixon, 842 F. Supp. 2d at 1055.
    IV. CONCLUSION
    For the stated reasons, we AFFIRM the decision of the district court granting
    summary judgment in favor of the defendants.
    

Document Info

Docket Number: 12-3218

Citation Numbers: 702 F.3d 269

Judges: Gilman, Kethledge, Moore

Filed Date: 12/17/2012

Precedential Status: Precedential

Modified Date: 8/5/2023

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