                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 11a0338n.06

                                             No. 09-4223                                       FILED
                                                                                          May 20, 2011
                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                              LEONARD GREEN, Clerk


KEITH L. SIGLER; SUSAN SIGLER,                              )
                                                            )
        Plaintiffs-Appellees,                               )        ON APPEAL FROM THE
                                                            )        UNITED STATES DISTRICT
                v.                                          )        COURT FOR THE SOUTHERN
                                                            )        DISTRICT OF OHIO
CITY OF ENGLEWOOD, et al.                                   )
                                                            )
        Defendants,                                         )
                                                            )
and                                                         )
                                                            )
ERIC A. SMITH; MARK BROWNFIELD,                             )
                                                            )
        Defendants-Appellants.                              )
                                                            )


BEFORE: BATCHELDER, Chief Judge, and KEITH, ROGERS, Circuit Judges.

        ROGERS, Circuit Judge. Plaintiff Keith Sigler was terminated by the City of Englewood

from his job as a police officer after his wife distributed a handbill that contained comments highly

critical of the city’s police department. Sigler brought suit against two superior officers and the city,

claiming among other things that his termination violated his constitutional right of marital

association. The defendants now appeal an interlocutory order of the district court denying qualified

immunity. Under the facts assumed by the district court, however, plaintiff’s claim is consistent with

the clearly established law of this circuit. And because the order appealed from did not dispose of

the entire litigation, we generally lack jurisdiction to review the factual assumptions made by the
No. 09-4223

district court. There is therefore no basis for us to reverse the district court’s denial of qualified

immunity at the stage of the litigation, except with respect to one defendant who did not take any

direct part in Sigler’s termination.

        Sigler, a former police officer with the Englewood police department, was terminated on

March 21, 2006. Just before Sigler’s termination, on February 7, 2006, Sigler’s wife Susan wrote

a letter captioned “Citizens’ Awareness for Public Servants (CAPS),” which criticized the

Englewood police department on a variety of matters. Mrs. Sigler circulated this letter to

approximately thirty individuals in or around Englewood.

        Sigler said he did not know that his wife planned on mailing the CAPS letter and even denied

reading the letter until his wife had already left their house to mail it. Sigler denied playing any part

in drafting the letter. He reluctantly agreed that the letter could create doubt in a reader’s mind about

the propriety of Englewood’s activities. Although Sigler talked to his wife about the CAPS letter

after she returned from mailing it, he did not report his knowledge of the letter to the police

department. Sigler explained that he felt he had no obligation to do so.

        The police department soon became aware of the CAPS letter. Sgt. David Pelkey conducted

an internal investigation concerning it. On February 14, 2006, Pelkey questioned Sigler about his

involvement in the writing or distribution of the letter. Pelkey says Sigler explicitly denied having

previously seen the letter, while Sigler claims he only asked Pelkey for a copy of it. On March 15,

2006, Sigler admitted that he had seen the CAPS letter shortly after his wife wrote and mailed it.

        On March 21, 2006, Pelkey recommended to defendant Eric Smith, Englewood’s city

manager, that Sigler be terminated. Smith accepted Pelkey’s recommendation and terminated Sigler.


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While Smith says defendant Mark Brownfield, Englewood’s police chief, “did not participate in the

termination process,” Sigler claims Brownfield initiated the internal investigation and that Smith

consulted with Brownfield on the termination. Smith claims Sigler was terminated for the reasons

stated in the record of disciplinary action. The listed termination reasons relevant to this appeal

include: (1) Sigler “falsely denied having seen the [CAPS letter]”; (2) Sigler “had knowledge of who

was responsible for developing and mailing the [CAPS letter]; and (3) Sigler “did not feel a duty to

report that the correspondence containing inflammatory information regarding [his] employer was

going to be mailed and circulated and, thereby, [Sigler] was a participant.” Smith claimed Sigler’s

conduct violated Englewood police orders and rules that, among other things, prohibit “[d]eliberately

withholding information, or providing untruthful information, related to work from supervisors or

others requiring the information,” namely, Police Department General Order 1.1.2 and Englewood

Rules of Merit Employment Article 4-23, Standards I, IV, and VII.

        Sigler filed suit below, alleging that he was terminated as unconstitutional retaliation for his

wife’s writing and circulating the CAPS letter, and not for violations of the cited regulations. The

district court interpreted Sigler’s complaint to allege that his termination was retaliation on the basis

of his marriage, violating his freedom of intimate or marital association. The individual defendants

moved for summary judgment on qualified immunity grounds, arguing (1) they did not terminate

Sigler in retaliation for his marriage and thus did not violate his right of marital association, and (2)

even if they did violate Sigler’s constitutional rights, the specific right alleged was not clearly

established law.




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       The district court denied the motion. The court determined that Sigler’s case was not

distinguishable from Adkins v. Board of Education, 982 F.2d 952 (6th Cir. 1993), and Sowards v.

Loudon County, 203 F.3d 426 (6th Cir. 2000), cases in which this court upheld marital-association

retaliation claims. The district court held that Sigler had presented sufficient evidence to create a

genuine issue of material fact as to whether he established a prima facie case of First Amendment

retaliation. The district court also concluded that Sigler’s right of marital association was clearly

established law. Accordingly, defendants were not entitled to qualified immunity. The defendants

now appeal the denial of summary judgment.

       If Sigler was fired because he was married to Susan, rather than because of his own actions,

then the clearly established law of this circuit permits recovery under 42 U.S.C. § 1983, and qualified

immunity is not warranted. Qualified immunity is not warranted if Sigler’s constitutional rights were

violated, and his rights were so clearly established that a reasonable person would have known of

them. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). This court has squarely held—in the

Adkins and Sowards cases, supra—that the constitutional right of marital association recognized in

Roberts v. United States Jaycees, 468 U.S. 609 (1984), provides a basis for recovery in the particular

context of termination of government employment in retaliation for one’s intimate or marital

association.

       Adkins and Sowards directly support Sigler’s claim. In Adkins, the plaintiff claimed that the

superintendent of a county school system punished her for her association with her husband by

refusing to rehire her, violating her First Amendment rights of privacy and association. Adkins, 982

F.2d at 953. The plaintiff’s husband was her school’s principal and had angered the defendant


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superintendent by refusing to give negative evaluations to several teachers the defendant wanted to

fire. Id. Allegedly in retaliation for this, the defendant refused to rehire the plaintiff, supposedly

telling her, “I can’t get rid of Diral [her husband], and you’re the next best thing.” Id. at 954. The

superintendent and the other defendants argued that they did not interfere with the plaintiff’s

marriage simply by refusing to rehire her, as they did not require her to obtain a divorce or otherwise

intrude into her marital relationship. Id. at 955. The district court directed a verdict for the

superintendent on qualified immunity grounds. Id. at 954.

        This court held that the plaintiff had made a prima facie case for her retaliation claim, and

reversed. Id. at 956. We stated that “[t]he evidence was clearly sufficient to support a jury

determination that [the superintendent] refused to recommend the plaintiff for continued employment

because of her marriage to Diral Adkins.” Id. at 955. We explained that the defendant could not

retaliate against the plaintiff simply because she was married to an individual with whom the

defendant was unhappy. We dismissed the defendants’ argument that they had not “interfered” with

the plaintiff’s marriage by explaining that “it is not necessary that the governmental act require the

abandonment or dissolution of a marriage relationship as the price for retaining public employment.

The right of association is violated if the action constitutes an ‘undue intrusion’ by the state into the

marriage relationship.” Id. at 956. We remanded so the defendants could offer proof that the

plaintiff’s marriage was not a “substantial” or “motivating factor” in their decision to not rehire her

and that they would not have rehired the plaintiff “even in the absence of the protected conduct.”

Id. at 957 (citing Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).




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        Similarly, in Sowards, the plaintiff alleged she was terminated from her position as jailer in

retaliation for her right of marital association with her husband, an unsuccessful opponent of the

defendant sheriff in a recent primary election. Sowards, 203 F.3d at 429-30. The plaintiff claimed

that after her husband announced his candidacy for the defendant’s office, her supervisors ostracized

her, she was disciplined more harshly than co-workers, and she was ultimately terminated for making

a single mistake—missing an outstanding warrant. Id. at 430. The district court dismissed the claim,

reasoning that no rational juror could find that the plaintiff’s termination was substantially motivated

by her exercise of her rights of political or marital association. Id. at 431.

        Reversing, we held that the plaintiff had “establish[ed] that she was engaged in the protected

conduct of intimate association under the First Amendment” because she “claim[ed] that [the

defendant] dismissed her because of her protected relationship with her husband, which could

constitute an undue interference in that relationship under Adkins.” Id. at 433. We concluded that

the plaintiff’s dismissal qualified as “adverse action,” that she had presented sufficient evidence of

“causation” between the protected activity and the dismissal, and that the law was clearly established

such that the defendants could not claim qualified immunity. Id. at 433-40.

        Adkins and Sowards control Sigler’s case. As in those cases, Sigler alleged he was actually

or effectively terminated because of his spouse’s activities, activities that had apparently offended

the defendants. In Adkins and Sowards, we treated such claims as based on retaliation due to the

plaintiffs’ marital associations, and held the allegations sufficient to state a First Amendment

retaliation claim. In Sowards, we squarely held that the right to be free from adverse actions of this




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type on such a basis was clearly established. Such a conclusion is compelled here, assuming that

Sigler was fired based on his employer’s displeasure with Sigler’s wife.

       The defendants argue that Adkins and Sowards are distinguishable because they contain

stronger evidence that the terminations were motivated by the marital associations than in Sigler’s

case, and because Sigler admitted that he did not inform the defendants of his wife’s letter—the

supposed non-retaliatory reason for his termination. These arguments are not persuasive. The

relative strength of the motivation evidence and Sigler’s admission go only toward whether Sigler’s

being married to his wife caused his termination, and whether the defendants would have terminated

Sigler even absent any “constitutionally protected activity.” These are essentially factual arguments

going to the state of the factual record, as explained below. If assumed in favor of the plaintiff, as

the district court apparently did, then there is no error of law warranting reversal of the denial of

qualified immunity.

       Defendants cite Harris v. Butler County, 344 F. App’x 195 (6th Cir. Aug. 27, 2009), for the

proposition that Sigler cannot establish any “constitutionally protected activity” because he can prove

no “undue intrusion” into his marital association. As an unpublished opinion, however, Harris can

cast no doubt on the legal holdings of our clear published opinions in Adkins and Sowards.

       Defendants argue that Sigler’s termination was not an “adverse action” required for an

Adkins/Sowards claim because the termination was “not meant to deter a person of ordinary firmness

from continuing to engage in” constitutionally protected activity, and that Smith instead merely

relied on the city’s code of ethics and rules of merit employment in terminating Sigler. This

misstates the “adverse action” standard. Sowards posited the standard objectively, as whether “an


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adverse action was taken against the plaintiff that would deter a person of ordinary firmness from

continuing to engage in that [constitutionally protected] conduct,” not subjectively, as whether the

“adverse action” “was meant to deter” such a person. See Sowards, 203 F.3d at 431 (emphasis

added).

          Defendants finally argue that Sigler’s alleged constitutional right should be construed more

narrowly in determining whether it is “clearly established law.” Defendants characterize the right

as “whether a reasonable officer or official, standing in place of City Manager Smith or Chief

Brownfield, would conclude that his actions violated Keith Sigler’s First Amendment intimate

association rights when Keith Sigler was terminated for violating the [City’s] lawful rules and

regulations.” Phrasing it this way turns the qualified-immunity analysis upside down. When

deciding whether a constitutional right is “clearly established law,” one assumes that the right the

plaintiff invokes was actually violated. Qualified immunity then excuses that violation if the right

was not “clearly established law” such that the defendant should have known of it. The right Sigler

invokes is the right not to be terminated in retaliation for his marital association. Assuming that

Sigler was so retaliated against, defendants are only entitled to qualified immunity if it was not

clearly established that such retaliation is unconstitutional. Defendants’ characterization assumes

away any retaliatory motive, which is Sigler’s whole complaint, and instead assumes as true their

purported motive for Sigler’s termination. The court does not decide qualified immunity in so

backwards a way.

          Defendants also make the essentially factual arguments that (1) the evidence was not

sufficient for a jury to find “causation” between Sigler’s termination and his “constitutionally


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No. 09-4223
protected activity,” i.e., that the defendants terminated him in retaliation for his marital association;

and (2) the defendants would have terminated Sigler even absent any “constitutionally protected

activity.” (The individual defendants would receive qualified immunity if they could prove by a

preponderance of the evidence that they would have committed the “adverse action” even absent

Sigler’s “constitutionally protected activity.” See Mt. Healthy, 429 U.S. at 287.)

        However, if the district court found sufficient evidence in the record to deny summary

judgment on these factual issues, we lack jurisdiction to review such factual determinations. On an

appeal from the denial of a qualified-immunity summary-judgment motion, Johnson v. Jones, 515

U.S. 304 (1995), precludes the court from reviewing such sufficiency-of-the-record factual issues.

Johnson recognized that interlocutory appeals could be used to review the “purely legal question”

of whether the given set of facts assumed by the district court violated “clearly established” law, id.

at 319, but not the district court’s determination that there was a “genuine issue of material fact,” id.

at 313. Instead, we must assume the validity of the district court’s factual conclusions. See Farm

Labor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 537 (6th Cir. 2002). If it is not

clear whether the district court was making a factual, as opposed to a legal, determination, then the

Supreme Court instructs that we are to do our best to figure out what facts the lower court likely

assumed when making its legal determination. Johnson, 515 U.S. at 319.

        Here, the district court determined that a jury could find “causation” between Smith’s

termination of Sigler and Sigler’s right of marital association. The court held that there is a genuine

issue of material fact whether Sigler lied about his knowledge of the CAPS letter. The court

concluded that “there is a question of fact as to whether this alleged wrongdoing motivated the City’s


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decision to terminate him, in whole or in part, vis-a-vis his failure to report the letter and/or Susan’s

authorship of the letter . . . .” The district court also implicitly held that the defendants might not be

able to prove that they would have terminated Sigler even if he had not been married to Susan. The

court dismissed the defendants’ only evidence on this point—Smith’s declaration that he would still

have terminated Sigler—by stating that “[t]his, of course, is mere supposition.” While abbreviated,

both determinations indicate that the district court concluded that there was enough in the record to

get to the jury on the questions of whether the marriage caused the termination and whether Sigler

would not have been terminated if, other things being the same, he had not been married to Susan.

For purposes of this interlocutory appeal, we must make the same assumptions. The alternative

would be to read into the district court’s holding a legal determination that Smith could be liable

regardless of the extent to which Sigler’s being married caused the termination. It is hard to read the

court’s analysis that way. We therefore lack jurisdiction to consider Smith’s arguments to the extent

that they challenge the factual assumptions of the district court regarding causation.

        With respect to Brownfield, however, there is no basis in the district court’s opinion to

support an assumption that Brownfield committed an “adverse action” against Sigler. “Each

defendant’s liability must be assessed individually based on his own actions.” Binay v. Bettendorf,

601 F.3d 640, 650 (6th Cir. 2010). The legal conclusion is therefore required that Brownfield did

not violate Sigler’s constitutional rights and that he is entitled to qualified immunity.

        While Sigler alleges that Brownfield also was “involved” in the termination decision, he

presented no evidence to support his assertion. Sigler alleged that Brownfield initiated the internal

investigation that led to the termination and consulted with Smith on the decision. The transcript


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No. 09-4223
evidence Sigler cites to prove this shows only that: (1) Brownfield met with Pelkey and two or three

other police department employees to discuss the CAPS letter; (2) those individuals, together,

decided to initiate an internal investigation, in which Brownfield would not be involved; and (3)

Smith told Brownfield of the investigation’s results and that he (Smith) agreed with the dismissal

recommendation. Brownfield’s participation in the decision to initiate the internal investigation,

without more, does not support Sigler’s allegations that Brownfield was “involved” in the

termination decision such that he too committed an “adverse action.” It is not disputed that Smith

formally removed Brownfield from the report and decision-making process regarding Sigler due to

potential conflicts of interest. At most, Sigler’s evidence reflects inconsequential, de minimis acts

that, as a matter of law, are simply not cognizable as “adverse action.” See Bell v. Johnson, 308 F.3d

594, 603 (6th Cir. 2002). Sigler’s claim against Brownfield must fail unless Brownfield committed

an “adverse action” against Sigler, and there is no basis to conclude that the district court assumed

sufficient facts in the record to make such a conclusion. It was accordingly legal error to deny

Brownfield qualified immunity.

       As to the appeal by the City of Englewood, we have jurisdiction only if it is proper to

exercise pendent appellate jurisdiction. “Pendent appellate jurisdiction refers to the exercise of

jurisdiction over issues that ordinarily may not be reviewed on interlocutory appeal, but, may be

reviewed on interlocutory appeal if those issues are inextricably intertwined with matters over which

the appellate court properly and independently has jurisdiction.” Davenport v. Causey, 521 F.3d

544, 554 (6th Cir. 2008) (internal quotation marks omitted). In light of our ruling with regard to

Smith’s appeal, we decline to exercise such pendent appellate jurisdiction in this case. See, e.g.,


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No. 09-4223
Floyd v. City of Detroit, 518 F.3d 398, 411 (6th Cir. 2008) (declining to exercise pendent appellate

jurisdiction over question of city-defendant’s liability in 42 U.S.C. § 1983 action where individual

officer-defendants held not entitled to qualified immunity); Lane v. City of LaFollette, Tenn., 490

F.3d 410, 423-24 (6th Cir. 2007) (same). We of course take no position on any issues that relate

solely to the city’s possible liability.

        The judgment of the district court denying the motion for summary judgment is affirmed with

respect to defendant Smith. The judgment denying the motion for summary judgment is reversed

with respect to Brownfield. The appeal of the City of Englewood is dismissed for lack of appellate

jurisdiction.




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