                       NOT RECOMMENDED FOR PUBLICATION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
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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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No. 16-4691, Nailon v. Univ. of Cincinnati, et al.


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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No. 16-4691, Nailon v. Univ. of Cincinnati, et al.


                                    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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No. 16-4691, Nailon v. Univ. of Cincinnati, et al.


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



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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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No. 16-4691, Nailon v. Univ. of Cincinnati, et al.


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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