NOT RECOMMENDED FOR PUBLICATION File Name: 17a0622n.06 No. 16-4691

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT JEANETTA DENISE NAILON, Plaintiff-Appellee,

v. UNIVERSITY OF CINCINNATI; SANTA J. ONO, Defendants, and KEN WOLTERMAN; DEBRA JONES; KARLA GACASAN, Defendants-Appellants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
OPINION

BEFORE: MOORE, STRANCH, a nd DONALD, Circuit Judges JANE B. STRANCH, Circuit Judge. Plaintiff Jeanetta Nailon worked as a collection specialist in the Office of the Bu rsar at the University of Ci ncinnati from 2001 until 2013, when she was terminated. The Bursar’s Office claime d that she was fired because of unauthorized involvement with her son’s loan account. Nailo n brought suit against the University and several individuals working in the Burs ar’s Office, alleging, among othe r 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.

-2- and Karla Gacasan—raised the defense of qualified immunity, which the district court denied. For the following reasons, we AFFIRM the dist rict 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 Reso lution Analyst. The Office of the Bursar is responsible for collecting student fees and managing certain stud ent loans. Nailon’s position entailed processing and collecting on loans made to University of Ci ncinnati 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 be longing 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 th at were outside the office policie s and practices in place at the time of her work on the account, and that the De fendants admit that waivers applied to Young were based on properly completed applications that demonstrated justification for the waivers. In 2009, the Bursar’s Office em ployees switched alphabetic al groups, and Nailon became responsible for student accounts within a diffe rent letter range. The record provides no indication that, at this time, othe rs in the Office of the Bursar were aware of the inclusion of Nailon’s son’s account in her lett er range. Several other staff me mbers 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 sh e testified that at th e time she granted theNo. 16-4691, Nailon v. Univ. of Cincinnati, et al.

-3- forbearance, she would have seen the histor y 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 Cinci nnati. Nailon states that she and her niece were quite close, and Ashley lived with her for a time along with Davis’ s daughter. Davis testif ied that she felt Nailon took “the role of [her] Mom,” a nd that was how she identified her. The relationship between Nailon and Davis was known by individuals wo rking 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 ra nge of accounts covered students with surnames starting with “D,” so she managed Davis’s loan application. Nailon processed and approved Davis’s lo an, despite her niece’s poor cr edit. 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 anothe r collection speciali st, Karen Davis. Karen Davis worked out a payment plan with Ashl ey 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 sh e did not pay her $4,000 balance in full before September 4. Davis disputed th e amount owed, and notified Jones of the payment plan she had worked out with Karen Davis. Nonetheless, Jones withdrew Ashl ey 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 raci al discrimination that she had encountered inNo. 16-4691, Nailon v. Univ. of Cincinnati, et al.

-4- her interactions with the Bursar’s Office. Davi s’s email was shared with UC officials, including Ken Wolterman, the Bursar, on the same day. Wo lterman notified Jones about the email, and later the same night, sent a reply to other UC offi cials 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 “f elt . . . there was collu sion” 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 investiga ting 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 Se nior 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 i nvestigation until she received a notice of termination on September 30, 2013, stating that she ha d violated the Universi ty’s conduct policy. The notice specifically listed se veral transactions Nailon had pe rformed 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 activ ity on Young’s account would have been known to individuals in the Bursar’s Office, incl uding Jones, long before the September 2013 investigation. The Defendants c ounter that the 2013 change to the manual made explicit a long-No. 16-4691, Nailon v. Univ. of Cincinnati, et al.

-5- standing departmental policy, and that the Burs ar’s Office committed the policy to writing specifically due to Nailon’s act ivity 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. Ono 1 , 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 agai nst her in violation of the First Amendment right to free speech because of her niec e’s complaints of racial discrimi nation; and (4) violated her due process rights. In two separate orders, the district court dismi ssed all of Nailon’s claims except her claim of violation of the First Amendment ri ght to free speech, brought pursuant to 42 U.S.C. § 1983. Determining that there was a genuine issu e of material fact as to whether Davis’s complaints of racial discrimination motivated th e Office of the Bursar’s decision to terminate Nailon, the district court denied summary judgment on that clai m. The court also denied Wolterman, Jones, and Gacasan’s request to dism iss the case on the basis of qualified immunity. It determined that the factual disputes identif ied in Nailon’s First Am endment retaliation claim prevented applying qualified immunity at the su mmary 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) fi led 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.No. 16-4691, Nailon v. Univ. of Cincinnati, et al.

-6- II. ANALYSIS A. Jurisdiction & Standard of Review A district court's denial of qualified imm unity 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 th ere 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 th e boundaries of our jurisdiction by seeking review of the district court’s determination th at genuine factual dis putes 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 th e 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 qualifie d immunity generally protects government officials performing discretionary functions “from liabi lity 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 ofNo. 16-4691, Nailon v. Univ. of Cincinnati, et al.

-7- qualified immunity examine two questions: (1) wh ether, viewing the facts in the light most favorable to the plaintiff, a constitutional viola tion occurred; and (2) whet her 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 e ither 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 Ga casan violated her First Amendment rights by terminating her in retaliation fo r Davis’s allegations of racial discrimination by the Bursar’s office. To state a First Amendment retaliation cl aim, the plaintiff must show: (1) that the speech was protected by the First Amendment; (2) she suffered an adverse em ployment 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 th e 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 al lege First Amendment retaliation after a relative has engaged in protected speech even if the plain tiff herself has not done s o. 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 associ ation or to familial a ssociation. The Compla int alleges that theNo. 16-4691, Nailon v. Univ. of Cincinnati, et al.

-8- Defendants terminated Nailon in retaliation for “h er 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 th at Nailon’s claim fails at the fi rst step because the speech of a government employee making a First Amendment reta liation 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 privat e 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 a nd 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 offici als 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 pr otected 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 th at Nailon was terminated in retaliation for Davis’s complaintsNo. 16-4691, Nailon v. Univ. of Cincinnati, et al.

-9- 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 pr otected 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 a nd Nailon’s firing was not the only basis for the court’s decision. It also concluded that a reason able 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 statemen ts, we are without jurisdiction to make such a fact-based inquiry. The Defendants also argue that University o fficials would have made the same decision to terminate Nailon even if Davis had not compla ined 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 Bu rsar’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 termin ated Nailon absent Davis’s conduct. Wenk v. O’Reilly , 783 F.3d 585, 599 (6th Cir. 2015).No. 16-4691, Nailon v. Univ. of Cincinnati, et al.

-10- On appeal, Defendants also argue that there is no evidence that Jones or Gacasan participated in conduct violating Nailon’s ri ghts because they were not involved in her termination. But “an influent ial recommender can be liable u nder § 1983 without being the final decision maker, if the recomm endations 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 “inv estigating 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 termin ation.” Viewing the disputed facts in the light most favorable to Nailon, a reasonable jury c ould 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 mo st favorable to Nailon, she has demonstrated a causal connection between her termination and he r niece’s protected spee ch 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 esta blished at the time of her termination. A right is clearly established when its contours are suffi ciently 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 esta blished, we may look to “binding precedent from the Supreme Court, the Sixth Circuit, the di strict court itself, or other circuits.” Wenk , 783 F.3dNo. 16-4691, Nailon v. Univ. of Cincinnati, et al.

-11- at 598 (quoting Gaspers v. Ohio Dep’t of Youth Servs. , 648 F.3d 400, 477 (6th Cir. 2011). The “dispositive question is whethe r 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 i ndividual in retaliation for speech made by her niece would be a constitutional violation. In their principal brief, they allege it is “[n]ot clea r at all that a claim of retaliation for the speech of a fami ly member fits under the First Am endment.” The district court determined that such a right was clearly established based on cases within this circuit that examined claims of First Am endment 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) (e valuating 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 argum ent in their Reply. There they posit that even though there is precedent establishing that a First Am endment retaliation claim may be based on speech made by a relative, these cases involve a “clo ser” 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 whichNo. 16-4691, Nailon v. Univ. of Cincinnati, et al.

-12- the district court determined that the plaintiff, a thirteen-year-old girl , had not shown a clearly established right of familial association with he r uncle. Again, Nailon does not assert a claim for violation of her associational ri ghts—she alleges that the Defendant s 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 reasona ble worker might be diss uaded 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 ha s explicitly “decline[d] to identify a fixed class of relationships for which th ird-party reprisals are unlawful.” Thompson , 562 U.S. at 175. It recognized that there may be “difficult line-drawing problems c oncerning the types of relationships entitled to protec tion,” and that “the significance of any given act of retaliation will often depend on the partic ular circumstances.” Id. at 174-75. Thompson confirms that Ward and Henley illustrate some situations in which repr isal 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 Da vis 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, an d identified her to others as such. The Defendants found the relationship sufficiently close to serve as the basis for discipline against Nailon when DefendantsNo. 16-4691, Nailon v. Univ. of Cincinnati, et al.

-13- discovered she had been working on Davis’s acc ount and had approved Davis for a short-term loan. Given these facts showing the close relati onship between Nailon and Davis, as well as the cases establishing that private citizens have a pr otected 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 retali ating 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.