                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0258n.06
                             Filed: April 6, 2007

                                           No. 06-3774

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT


MADELYN A. CORBETT,                                      )
                                                         )       ON APPEAL FROM THE
       Plaintiff-Appellee,                               )       UNITED STATES DISTRICT
                                                         )       COURT FOR THE SOUTHERN
v.                                                       )       DISTRICT OF OHIO
                                                         )
JOHN W. GARLAND,                                         )                          OPINION
                                                         )
       Defendant-Appellant.                              )




BEFORE:        MARTIN, COLE, and GILMAN, Circuit Judges.

       R. GUY COLE, JR., Circuit Judge. Defendant-Appellant John W. Garland, President of

Central State University (“CSU”), brings this interlocutory appeal of the district court’s grant of

partial summary judgment in favor of Plaintiff-Appellee Madelyn A. Corbett, a former employee at

CSU. Corbett brought suit under 42 U.S.C. § 1983, alleging that Garland deprived her, without due

process, of her constitutionally protected property interest in her continued employment when he

terminated her employment at CSU. The district court granted Corbett’s motion for partial summary

judgment on the issue of liability and denied Garland’s motion for summary judgment on the basis

of qualified immunity. Garland appeals the denial of his qualified-immunity defense. To overcome

this defense, Corbett must show that (1) Garland violated her constitutional rights, and (2) those

rights were clearly established. We conclude that those rights were not clearly established, and
No. 06-3774
Corbett v. Garland

Garland is therefore entitled to qualified immunity. Accordingly, we REVERSE the district court’s

grant of summary judgment in favor of Corbett and REMAND with instructions to enter judgment

in favor of Garland.

                                       I. BACKGROUND

       Crucial to this appeal is whether Corbett was a “classified” or “unclassified” employee under

Ohio law when Garland terminated her employment; only if she were a classified employee would

she have had a protected property interest in her continued employment. We therefore first provide

some background regarding classified versus unclassified employees and then discuss the facts and

procedural history of this case.

A.     Classified Versus Unclassified Employees

       Ohio Revised Code (“ORC”) section 124.11 provides that Ohio’s civil service “shall be

divided into the unclassified service and the classified service.” ORC § 124.11 (2004). There are

critical differences between classified and unclassified civil servants. Christophel v. Kukulinsky, 61

F.3d 479, 482 (6th Cir. 1995).

       Classified employees are chosen from eligibility lists and are required to demonstrate their

fitness for employment through competitive examination or by providing evidence that they satisfy

specific requirements. Id. Classified civil servants have tenure during “good behavior and efficient

service,” can be discharged only for cause as set forth in ORC § 124.34, and have displacement

(“bumping”) rights if their jobs are abolished. Id. A classified civil servant has the right to appeal

a discharge to the State Personnel Board of Review within ten days after receipt of the notice of

discharge. Id. (citing ORC § 124.328). Ohio’s civil-service statute creates a property right in

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continued employment for classified civil servants; a classified civil servant cannot be deprived of

this right without due process. Id. (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-

39 (1985)).

       Unclassified civil servants, on the other hand, are not required to satisfy the merit and fitness

requirements applicable to the classified service. Id. Unclassified employees serve at the pleasure

of the employer and have no bumping rights if their jobs are abolished. Id. Concomitantly,

unclassified civil servants are not themselves subject to bumping or displacement when other

employees are laid off, and they generally are paid more than classified civil servants. Id.

Unclassified employees have no right to appeal their discharge to the State Personnel Board of

Review. Id. Employees designated as unclassified may appeal only if they also assert that their

designation as unclassified was improper. Id. Unlike classified employees, unclassified employees

have no property right to continued employment. Id. (citing Vodilla v. Clelland, 836 F.2d 231, 232

(6th Cir. 1987)).

       The Ohio civil-service statute divides the civil service into classified and unclassified

positions by explicitly naming the unclassified positions and providing that the classified service

shall comprise those civil-service positions “not specifically included in the unclassified service.”

ORC §§ 124.11(A), (B). With regard to public universities, the statute provides that the following

employees are unclassified: “All presidents, business managers, administrative officers,

superintendents, assistant superintendents, principals, deans, assistant deans, instructors, teachers,

and such employees as are engaged in educational or research duties connected with the

public . . . universities, as determined by the governing body of the public . . . universities.” ORC

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§ 124.11(A)(7)(a). Corbett’s last position with CSU, senior accounts-payable clerk, was not among

those listed as unclassified in the statute.

B.      Facts

        Corbett began working at CSU on May 19, 1975, as a part-time, permanent employee in the

mail room. In 1979, she became a switchboard operator at CSU, a position she held until 1986. In

1986, she moved to the accounting department as an accounts-payable clerk. When she was an

accounts-payable clerk, Corbett was unaware whether she was a classified or unclassified employee,

but she understood that a collective-bargaining agreement between CSU and the American

Federation of State, County, and Municipal Employees, Local 361, governed the terms and

conditions of her employment.

        In 1998, Corbett was promoted to accounts-payable supervisor. As a condition of her

promotion, Corbett signed an employment contract on April 15, 1998. She understood she was no

longer a member of a collective-bargaining unit and was no longer subject to the collective-

bargaining agreement. She was paid on a salary, instead of hourly, basis. The employment contract

gave CSU the right to terminate her without cause on thirty days’ written notice or immediately with

cause. The contract was effective April 1, 1998, through June 30, 1998. It is common practice at

CSU, however, for employees to continue serving under the same terms and conditions of a contract

that has technically expired. The employee generally does not sign a renewal contract, but the

original contract continues until further notice by mutual consent. The ending date on the contract

merely reflects the end of the fiscal year (June 30 at CSU) during which the parties entered the



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Corbett v. Garland

contract. Accordingly, although Corbett’s contract recited an expiration date of June 30, 1998, none

of the conditions of Corbett’s employment changed after that date, and she continued to perform the

same duties and receive the same pay and benefits.

       In late March or early April 2004, CSU’s personnel office informed Corbett that CSU was

demoting her to senior accounts-payable clerk and that she needed to sign a new employment

contract. CSU gave her a document entitled “Employee Action Form,” which modified her prior

contract, demoting her from account-clerk supervisor to senior accounts-payable clerk. Her new

duties were essentially the same as those she had performed as a bargaining-unit employee, before

her promotion to account-clerk supervisor. The new contract had a start date of March 19, 2004, and

an end date of June 30, 2004. Although she was being demoted, the agreement specifically provided

that her “salary will remain at current level.” CSU therefore continued to pay her on a salary basis,

unlike bargaining-unit employees, who were paid hourly. The hourly equivalent of Corbett’s salary

was $16.16 per hour, while the highest-paid bargaining-unit account clerk received $14.37 per hour.

Like other “contract employees,” she continued to be paid monthly, in contrast to the bargaining-unit

employees, who were paid bi-weekly. This new contract also provided, consistent with her prior

contract, that CSU could terminate the agreement on thirty days’ notice or at any time for cause.

Corbett consulted with her attorney before signing this agreement, and she understood all of its

terms. She signed the contract on April 27, 2004, but made the following note on the bottom of the

first page: “I do not agree on this move.”

       Corbett did not think she was a member of the bargaining unit following her demotion, nor



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did anyone tell her that her employment status had changed. She later stated, however, that she did

not know whether she was a member of the bargaining unit and that she did not consider herself a

“contract employee.” But she also admits that she completed numerous leave forms in this new

position on which she stated that she was a “contract employee” and not a bargaining-unit employee.

Consistent with CSU’s practice, Corbett continued to work after the June 30, 2004 expiration date

of the contract under the same terms as before.

       On September 17, 2004, CSU Human Resources Director Mickey Hudson provided Corbett

with written notice of her termination. The letter stated that she was to be discharged in thirty days,

on October 17, 2004. Corbett requested to speak to President Garland, but Hudson stated that the

President was not going to speak with her.           Corbett then signed the termination notice,

acknowledging that she received it, and wrote the following on the bottom of it: “I do not agree with

this action. Nobody has heard my side.”

       Corbett was not required to report to work as of September 17, 2004, but she continued to

receive employment benefits until October 17, 2004. At the time of Corbett’s termination, Susan

Ferguson was her direct supervisor. Ferguson reported to John Brothers, who in turn reported to a

CSU Vice President who reported to President Garland. Between the time Corbett received her

termination notice and its effective date, she made no effort to communicate with any of these

individuals. Corbett has since retired from state service, and she currently receives benefits from the

Public Employees Retirement System of Ohio.

C.     Procedural History

       On January 28, 2005, Corbett sued Garland in district court under § 1983, alleging that

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Garland violated the Fourteenth Amendment to the United States Constitution by depriving her,

without due process, of her constitutionally protected property interest in her continued employment.

Corbett sought a variety of remedies, including compensatory damages, punitive damages, pre- and

post-judgment interest, and reasonable attorneys’ fees and costs. Corbett v. Garland, No. C-3-05-

037, 2006 U.S. Dist. LEXIS 29395, at *2 (S.D. Ohio May 15, 2006). Corbett moved for summary

judgment on the issue of liability only. Id. at *11. Garland cross-moved for summary judgment,

arguing that (1) Corbett was not entitled to due process, and (2) even if she were entitled to due

process, Garland was entitled to qualified immunity. Id. The district court granted Corbett’s motion

for summary judgment and denied Garland’s motion, concluding that Garland improperly denied

Corbett due process and that Garland was not entitled to qualified immunity. Id. at *15-33. This

left only the issue of damages to be adjudicated. Id. at *33. Garland challenges the district court’s

ruling through this interlocutory appeal. We have jurisdiction under the collateral-order doctrine.

See Will v. Hallock, 546 U.S. 345, __, 126 S. Ct. 952, 958 (2006) (noting that orders rejecting

qualified immunity fall into the “small class” of collaterally appealable orders) (citing Mitchell v.

Forsyth, 472 U.S. 511, 530 (1985)).

                                          II. DISCUSSION

A.      Standard of Review

        This Court reviews de novo a district court’s grant of summary judgment. Miller v. Admin.

Office of the Courts, 448 F.3d 887, 893 (6th Cir. 2006). Summary judgment is appropriate “if the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party

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is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The moving party bears the

burden of proving that there are no genuine issues of material fact. Celotex Corp. v. Catrett, 477

U.S. 317, 322-23 (1986). Whether qualified immunity applies is a question of law that this Court

reviews de novo. Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir. 2006) (citing Sanderfer

v. Nichols, 62 F.3d 151, 153 (6th Cir. 1995)).

B.      Qualified Immunity

        Qualified immunity protects government officials performing discretionary functions unless

their conduct violates a clearly established statutory or constitutional right of which a reasonable

person in the official’s position would have known. Id. (citing Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982)). Once the official raises the qualified-immunity defense, the burden is on the plaintiff

to demonstrate that the official is not entitled to qualified immunity. Id. (citing Barrett v.

Steubenville City Schs., 388 F.3d 967, 970 (6th Cir. 2004)). To meet this burden, the plaintiff must

show that (1) the facts alleged, taken in the light most favorable to the plaintiff, establish that the

officer’s conduct violated a constitutional right, and (2) the right was clearly established. Id. (citing

Saucier v. Katz, 533 U.S. 194, 201 (2001)). The Supreme Court since Saucier has continued to use

this two-step approach to qualified immunity, but this Court sometimes employs a third step:

assessing whether the official’s conduct was “objectively unreasonable in light of the clearly

established constitutional rights.” Miller, 448 F.3d at 893 (quoting Champion v. Outlook Nashville,

Inc., 380 F.3d 893, 901 (6th Cir. 2004)).



        1.      Violation of a Constitutional Right

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       The first prong of the qualified-immunity analysis asks whether a constitutional violation

occurred. Silberstein, 440 F.3d at 311 (citing Saucier, 533 U.S. at 201). Corbett alleges that Garland

violated her Fourteenth Amendment right to due process. To determine whether this violation

occurred, we assess (a) whether Corbett had a property interest that entitled her to due-process

protection, and, if so, (b) what process was due. Id. (citing Logan v. Zimmerman Brush Co., 455

U.S. 422, 428 (1982)).

       Property interests do not derive from the Constitution; they are created and defined by

existing rules or understandings that stem from independent sources, such as state law. Id. (citing

Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972)). The Supreme Court has

recognized that when a state statute provides that “classified” civil-service employees may be

dismissed only for cause, the statute creates a property interest in that employment that the

Fourteenth Amendment protects. Id. (citing Loudermill, 470 U.S. at 541 (interpreting ORC §

124.11)). When, however, an employee is “unclassified” and can be discharged without cause, she

has no protected property interest. Christophel, 61 F.3d at 482.

       Although state law defines the existence of a property interest, the federal Constitution

defines the process that one must follow to deprive an individual of that property interest.

Silberstein, 440 F.3d at 315 (citing Loudermill, 470 U.S. at 541). For a public employee with a

property interest in continued employment, due process includes “a pretermination opportunity to

respond, coupled with post-termination administrative procedures.” Id. (quoting Loudermill, 470

U.S. at 547-48). The “root requirement” of the Due Process Clause requires that “an individual be

given the opportunity for a hearing before he or she is deprived of any significant property interest.”

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Id. (citing Loudermill, 470 U.S. at 542). “The Supreme Court and this Court have specified that the

pre-termination hearing’s essential ingredients are oral or written notice, an explanation of the

employer’s evidence, and an opportunity for an employee to present his side of the story.” Brickner

v. Voinovich, 977 F.2d 235, 237 (6th Cir. 1992).

        Corbett argues that her last position with CSU, senior accounts-payable clerk, was classified

because it is not listed among the unclassified positions in Ohio’s civil-service statute. Garland

essentially concedes that someone in her position generally would be classified: “It is uncontroverted

in this action that, based on her duties alone, Corbett fell within the classified civil service under

ORC § 124.11.” Garland contends, however, that Corbett’s at-will employment contract and receipt

of benefits under that contract negated what otherwise would have been her classified status.

        The district court concluded that Corbett was classified for three reasons: (i) the contract

expired before Garland terminated Corbett’s employment; (ii) the contract, even if in effect, did not

take away Corbett’s status as a classified employee under the statute; and (iii) Corbett’s receipt of

benefits under the contract’s terms does not estop her from asserting classified status.

        The district court’s first basis to conclude that Corbett is classified—that the contract was

no longer in effect when Garland terminated Corbett’s employment—is erroneous. “Where a

contract of employment for a definite time is made and the employee’s services are continued after

the expiration of the time, without objection, the inference is that the parties have assented to another

contract for a term of the same length with the same salary and conditions of service . . . .” Ojalvo

v. Bd. of Trustees, No. 88AP-773, 1989 Ohio App. LEXIS 3548, at *11 (Ohio Ct. App. Sept. 14,

1989) (quoting 1 Williston, Contracts, § 90 (rev. ed. 1936); citing Kelly v. Carthage Wheel Co., 57

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N.E. 984 (Ohio 1900)). The presumption that the employee’s service continues under the terms of

the expired contract is “rebuttable by proof that a new contract for the continued period has been

entered into, or by facts and circumstances showing that the parties did not intend to continue upon

the terms and conditions of the original contract.” Id. (citation omitted). Corbett’s contract had an

end date of June 30, 2004—the end of CSU’s fiscal year. Consistent with CSU’s practice, Corbett

continued to work after this expiration date under the same terms as before. The district court

concluded, however, that Corbett was not under the contract because Garland did not present

evidence that Corbett viewed the contract as continuing. Corbett, 2006 U.S. Dist. LEXIS 29395, at

*19. But CSU continued to provide Corbett the same salary and benefits after June 30, 2004. In

short, there is no evidence “that the parties did not intend to continue upon the terms and conditions

of the original contract.” Ojalvo, 1989 Ohio App. LEXIS 3548, at *11; see also Tucker v. Univ. of

Cincinnati, No. C-820562, 1983 Ohio App. LEXIS 11792, at *6 (Ohio Ct. App. June 29, 1983) (“We

. . . conclude that the expiration of the contract eighty-four days before appellant[’s] dismissal did

not effect a change in his unclassified status.”). Thus, the contract was in effect.

       Having established that the contract was in effect, we assume, without deciding, that Corbett

was nonetheless classified and entitled to assert that status. Further, we assume Garland violated her

due-process rights when terminating her employment. As discussed below, however, even under

these assumptions, Garland is entitled to qualified immunity.




       2.      Clearly Established Right

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        To overcome Garland’s assertion of qualified immunity, Corbett must show that “it would

have been clear to a reasonable person in [Garland’s] position that [his] conduct was unlawful.” See

Silberstein, 440 F.3d at 316 (citing Saucier, 533 U.S. at 201). When assessing whether Corbett’s

constitutional rights were “clearly established,” this Court must do so in light of the specific context

of the case, not as a broad general proposition. See id. (citing Saucier, 533 U.S. at 201). Here, there

is a strong argument that waiver or estoppel bars Corbett’s claim of classified status; it would not

be unreasonable for a person in Garland’s position to believe that was the case.

        A waiver is a voluntary relinquishment of a known right. Chubb v. Ohio Bureau of Workers’

Comp., 690 N.E.2d 1267, 1269 (Ohio 1998) (citations omitted). Although waiver is similar to

estoppel, estoppel is a separate and distinct doctrine. Id. at 1270. With estoppel, a party need not

intend to relinquish a right. Id. Equitable estoppel prevents relief when one party induces another

to believe certain facts exist and then the other party changes her position in reasonable reliance on

those facts to her detriment. Id. Thus, estoppel involves the conduct of both parties, whereas waiver

depends upon what only one intends to do. Id.

        In Chubb, the Ohio Supreme Court held that these defenses barred a state employee from

asserting classified status. Id. at 1270. The employee started as a classified employee and was

promoted to an unclassified position. Id. at 1267-68. Then, to resolve a disciplinary charge against

her, she entered a contract that changed her work assignment but explicitly provided that the position

would still “be in the unclassified service (as is her current position) . . . .” Id. at 1268.

Approximately one year later, the defendant employer terminated her without cause. Id. The

employee appealed this termination to the State Personnel Board of Review, which dismissed the

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appeal because she was not classified. Id. The employee appealed to a state trial court, arguing that

she was entitled to an opportunity to show that she was classified. Id. The trial court reversed and

remanded the case to the Board of Review with instructions to determine whether the employee’s

actual job duties rendered her classified or unclassified. Id. In doing so, the court rejected the

defendant’s argument that the employee should be estopped from claiming classified status because

she knew she was unclassified and had reaped the benefits of the unclassified position. Id. An

appellate court affirmed the trial court’s remand but reversed on the estoppel question, holding that

the defendant could raise estoppel as a defense. Id.

       The Ohio Supreme Court affirmed, holding that when a terminated public employee claims

classified status, “the state may assert defenses of waiver and estoppel if the employee has accepted

appointment to a position designated as unclassified and also has accepted the benefits of that

unclassified position.” Id. at 1269. The court explained that, “[i]f the employee knowingly and

voluntarily accepted appointment to an unclassified position and reaped other benefits such as higher

wages, the employee has voluntarily relinquished the statutory rights and protections of civil service

status.” Id. Further, “[n]othing in the statutory scheme of civil service precludes the use of the

defenses of waiver and estoppel in an appeal by a public employee.” Id. at 1270. The court also

clarified that if the employee has accepted appointment to a position designated as unclassified, the

state is entitled to assert waiver and estoppel defenses “regardless of whether the employee’s actual

job duties fall within the classified status.” Id. at 1269 (emphasis added).

       The district court rejected Garland’s argument that Chubb bars Corbett’s claim because

Garland had “not shown that CSU designated [Corbett’s final position of] senior accounts payable

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clerk as unclassified in accordance with Ohio law.” Corbett, 2006 U.S. Dist. LEXIS 29395, at *18-

19 (emphasis added). In this way, the district court apparently read Chubb to allow waiver and

estoppel defenses only when the employer makes the sort of designations specifically authorized by

statute, such as that described in Klaiman v. Ohio State University, No. 03AP-683, 2004 Ohio App.

LEXIS 971, *12 (Ohio Ct. App. Mar. 11, 2004), where the university employer properly contracted

to make an employee’s position unclassified via ORC § 124.11(A)(7)(a), which “vests a certain

amount of discretion in the [university employer] to designate certain employees . . . as unclassified

employees.” Id. at *8 (emphasis added).

       But in the waiver-and-estoppel context, whether an employer has “designated” a position as

unclassified must include situations in which the employer informs the employee that it views the

position as unclassified, even if the position is classified under the statute. If the position were

actually unclassified by statutory designation, there would be no need to raise waiver or estoppel:

the employee would undeniably be unclassified. See Chubb, 690 N.E.2d at 1270 (“If the employee’s

actual job duties fall within unclassified status, then there would be no need to argue waiver or

estoppel . . . .”); Cf. Wallis v. City of Gallipolis, No. 00-Ca-01, 2000 Ohio App. LEXIS 5738, at *6-7

(Ohio Ct. App. Dec. 4, 2000) (“In an appeal pursuant to [ORC §] 124.34 brought by a public

employee, the employer may assert the defenses of waiver and estoppel of classified status, even if

the employee’s duties fall within the classified status.” (emphasis added)). The question then, is

whether it was unreasonable for Garland to believe that Corbett was estopped from asserting

classified status. We conclude it was not.

       To be sure, viewing the facts in Corbett’s favor (as we must at this stage), there is evidence

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that Corbett did not relinquish classified rights. For example, the form for Corbett’s contract was

not explicitly limited to unclassified positions—it could be used for both classified and unclassified

employees. Additionally, CSU demoted Corbett to a position that it concedes would be classified,

were one to consider solely the duties of the position.

       On the other hand, there is substantial undisputed evidence to indicate that Corbett knew

CSU intended to continue—and she acceded to—unclassified status when she entered the contract

demoting her. Corbett concedes that her penultimate position as account-clerk supervisor, under an

at-will contract similar to that governing her last position, was unclassified even though it is not

listed in ORC § 124.11 among the unclassified positions. And she concedes that she reviewed the

terms of the latter contract with her attorney and fully understood them. Indeed, if she believed she

were a classified employee, she almost certainly would not have agreed to an at-will contract, which

would be entirely at odds with the procedural protections of classified service. Moreover, CSU

continued to pay her on a salary basis at a rate greater than any other hourly employee in a similar

position. In this way, it appears she knowingly and voluntarily accepted the benefits of this position

while relinquishing the rights inherent in the lower-paid, classified status.

       Under these undisputed facts, it would not be clear to a reasonable person in Garland’s

position that Corbett could overcome the defenses of waiver and estoppel. Silberstein, which

illustrates the qualified-immunity analysis in the context of a discharged, allegedly classified,

employee, supports this conclusion. There, we held that the state employer was not entitled to

qualified immunity. Silberstein, 440 F.3d at 316. The state defendants, like Garland, did not dispute

that a classified employee “had a clearly established right to a pre-termination hearing at the time

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of [the employee’s] termination; rather, they argue[d] that [the employee’s] status as a classified

employee [was] disputable such that a reasonable person would not know that he or she was violating

[the employee’s] rights.” Id. (emphasis added). We held, however, that because the applicable city

charter explicitly established that the employee was classified, “[n]o reasonable official reading the

plain language of the Charter would reach the conclusion that [the employee] was an unclassified

employee.” Id. Moreover, “numerous facts on the record,” including the employer’s own treatment

of the employee’s position, “demonstrate[d] that [her] position was generally understood to be

classified.” Id. at 317. We therefore rejected the defendant’s qualified-immunity defense.

        Corbett suggests that her classified status, like that of the employee in Silberstein, cannot

reasonably be disputed. Viewing the Ohio civil-service statute here as analogous to the city charter

in Silberstein, Corbett suggests that she is in the “exact situation” as there and that therefore she is

classified. But that position ignores Corbett’s at-will contract and her receipt of benefits under it.

There was no contract in Silberstein, let alone one that was, like Corbett’s, plainly incompatible with

classified status. As the discussion above regarding Chubb shows, although Corbett is classified

under the statute, Garland has a compelling waiver-and-estoppel argument based on Corbett’s

apparent acceptance of continuing unclassified status and the benefits that come with it. In contrast

to Silberstein, where many facts “demonstrate[d] that [the employee’s] position was generally

understood to be classified,” many of the facts here (for example, accepting a higher salary and

acceding to an at-will provision that governed a prior unclassified position) demonstrate that

Corbett’s position was “generally understood” (rightly or wrongly) to be unclassified. In light of

these facts, it would not be clear to Garland that by discharging Corbett he would be violating her

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due-process rights. Cf. Miller, 448 F.3d at 897 (holding that state officials were entitled to qualified

immunity where their statements indicated that discharged employee was tenured, but where their

policies and advisors indicated to the contrary).

       This Court has explained that as the qualified-immunity defense has evolved, it “provides

ample protection to all but the plainly incompetent or those who knowingly violate the law.” Id.

(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Garland’s conduct does not put him in these

categories. Thus, he is entitled to qualified immunity.

                                        III. CONCLUSION

       For the foregoing reasons, we REVERSE the district court’s order granting Corbett summary

judgment and REMAND with instructions to enter summary judgment in favor of Garland.




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