The Sixth Circuit Court of Appeals has upheld trial court rulings that Cincinnati City Manager Sheryl Long is not immune from liability for wrongfully terminating former Cincinnati Fire Chief Michael Washington. The court concluded that Long was not entitled to qualified immunity on Chief Washington’s pretermination due process claim or statutory immunity on his defamation claim.

Chief Washington joined the Cincinnati Fire Department in 1993 and was promoted to Fire Chief in May 2021. The Cincinnati City Charter designated the Fire Chief as an unclassified employee but provided that, after serving six months, the Fire Chief could be removed only for cause. The charter also allowed a Fire Chief removed for cause to demand written charges and a hearing before the City Manager.

When Chief Washington accepted the position, he signed a memorandum stating that unclassified employees served at the pleasure of the appointing authority and could be dismissed without cause at any time. The memorandum did not refer to the city charter, the Fourteenth Amendment, or the waiver of constitutional due process rights.

On March 24, 2023, Long summoned Chief Washington to City Hall and terminated him effective immediately. Two human resources representatives attended the meeting. Chief Washington was given a termination letter identifying five reasons for his removal: workplace culture concerns, his absence from a high-rise fire, his handling of personnel matters involving a lieutenant charged with assault, management of a new training facility, and ineffective communication with Long and others.

Chief Washington was not given notice of the charges or an opportunity to respond before he was terminated.

Long later sent the mayor and city council a memorandum stating that Chief Washington had been terminated for cause. She also provided the termination letter to local news organizations and made statements consistent with the reasons listed in the letter and memorandum.

Chief Washington sued the city and Long, alleging violations of his federal and state due process rights and defamation. The district court ruled that the city and Long violated his pretermination due process rights. It also concluded that Long was not entitled to qualified immunity on that claim and that factual disputes prevented the court from granting her statutory immunity on the defamation claim.

The Sixth Circuit affirmed.

Writing for the majority, Circuit Judge Jane Stranch concluded that Chief Washington acquired a constitutionally protected property interest in his continued employment after completing six months as Fire Chief. The court explained:

• The meaning of these provisions is unmistakable: once a Fire Chief serves six months, he can be terminated only for cause, which means he has a right to a pre-termination hearing under binding—and clearly established—precedent.

For a public employee with for-cause employment protection, the required pretermination process ordinarily includes notice of the charges, an explanation of the employer’s evidence, and an opportunity for the employee to tell his side of the story.

The city argued that the memorandum Chief Washington signed allowed him to be dismissed without cause and made it unclear whether he retained the protections contained in the charter. The court rejected that argument. It concluded that the memorandum did not contain the “clear and unmistakable” language required to waive constitutional due process rights. The memorandum could also be read as describing Chief Washington’s status during his initial six-month probationary period.

The court also relied on Long’s deposition testimony. Long testified that the city’s legal department told her Chief Washington would need a hearing. When asked why she did not give him a hearing before terminating him, Long responded: “Because that was my choice to not.”

The majority concluded:

• Long’s failure to provide Washington with any pre-termination process before firing him on March 24, 2023, was a violation of clearly established law.

Circuit Judge Chad Readler dissented from that portion of the ruling. He agreed that Chief Washington’s termination violated due process for purposes of the appeal but concluded that Long should receive qualified immunity. In his view, the conflict between the city charter and the memorandum made Chief Washington’s right to a pretermination hearing insufficiently clear to hold Long personally liable.

The court was unanimous in allowing the defamation claim against Long to proceed without statutory immunity.

That claim focuses in part on Long’s statement that Chief Washington had been directed to conduct a workplace climate assessment but that the assessment “has never moved forward.” Chief Washington produced evidence of his efforts to advance the assessment. The court concluded that the evidence created a factual dispute over whether Long’s statements were true and whether she acted with malice or bad faith.

Under Ohio law, public officials generally have immunity for acts performed as part of a governmental function. That immunity does not apply when an official acts with a malicious purpose, in bad faith, or in a wanton or reckless manner.

The Sixth Circuit held that a jury could consider evidence that Long knew or should have known about Chief Washington’s work on the climate assessment. It could also consider evidence that she had been advised Chief Washington was entitled to a hearing, that his termination letter quoted the charter’s for-cause provision, and that her memorandum stated he had been terminated for cause.

The court affirmed the denial of qualified immunity on Chief Washington’s pretermination due process claim and the denial of statutory immunity on his defamation claim. Here is a copy of the decision.