Ronald Barber v. Louisville and Jefferson County Metropolitan Sewer District

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0601n.06
Filed: October 6, 2008
Nos. 07-5236, 07-5288, 07-5411
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
RONALD BARBER,
Plaintiff-Appellee/
Cross-Appellant,
v.
LOUISVILLE AND JEFFERSON COUNTY
METROPOLITAN SEWER DISTRICT,
Defendant-Appellant/
Cross-Appellee.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF KENTUCKY
O P I N I O N
BEFORE: GUY, BATCHELDER, and McKEAGUE, Circuit Judges
McKEAGUE, Circuit Judge. Ronald Barber (“Barber”) and the Louisville and
Jefferson County Metropolitan Sewer District (“MSD”) both appeal summary judgment orders
entered by the district court during the course of the trial on Barber’s First Amendment and state
whistleblower claims. For the reasons stated below, we affirm the district court’s orders.
I.
Barber was employed by Rangaswamy & Associates. Through Rangaswamy, Barber was
contracted out to MSD as a construction inspector. MSD supervised Barber and provided all
direction on his projects. Barber inspected MSD construction projects, and his duties included
notifying MSD of nonconformance in those projects.

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Nos. 07-5236, 07-5288, 07-5411
Barber, et al. v. Louisville Jefferson
Cunningham also sued MSD for violations of the First Amendment and the Kentucky1
Whistleblower Act. Because Cunningham’s claim is not part of this appeal, the facts involving her
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One of his duties was monitoring “fill dirt” removal. Fill dirt is dirt removed during
construction that must be transported elsewhere. Anyone seeking to obtain fill dirt must get a permit
to receive the fill dirt. The permit system helped avoid flooding and other forms of damage.
While inspecting an MSD project in 2003 and 2004, Barber allegedly received separate
requests for fill dirt from Larry Mattingly, a legislative aide to Louisville Metro Council Member
Robert Henderson, and from William Gray, an MSD board member. Mattingly allegedly requested
fill dirt and ignored Barber’s request for a permit. According to Barber, Mattingly had fill dirt
transported to properties owned by Mattingly and other properties owned by Henderson, all without
a permit. Gray also allegedly sought fill dirt without a permit.
Barber noted these transgressions on his daily logs and he reported them to his supervisors.
He also contacted the MSD Permit Department, where an employee “advised Barber not to lose his
job over the permit.”
At the same time, Sara Lynn Cunningham (“Cunningham”), an MSD employee, conducted
an environmental audit on several projects on which Barber worked. Cunningham found fill dirt
problems on Mattingly’s property. Cunningham then spoke with Barber and learned of the other
alleged fill dirt violations involving Mattingly, Gray, and Henderson. Cunningham informed her
supervisor of her concerns and was told the alleged violations were not an issue.
In May 2004, Cunningham sent a letter to the Commonwealth Attorney General, informing
him of the alleged improprieties. That letter contained many of the allegations provided by Barber.1

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Barber, et al. v. Louisville Jefferson
claim are condensed or omitted unless they bear directly on Barber’s appeal.
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Before sending the letter, Cunningham called Barber and went over the report with him to verify its
accuracy.
Around the same time, MSD prepared for staff reductions. The supervisors involved in the
reduction deliberations knew that Barber had reported misconduct by Mattingly, Henderson, and
Gray. Barber was ultimately suggested for termination, along with his two supervisors. On
December 8, 2004, Barber was fired. Cunningham’s supervisor suggested Cunningham for
termination as part of the same reduction. Cunningham was terminated on December 7, 2004.
Barber, Cunningham, and Barber’s supervisors brought suit in state court in March 2005. As
part of this suit, Barber alleged he had been terminated for having “furnished Cunningham with
information that she reported to MSD officials, the Attorney General, the Jefferson County Attorney,
the Jefferson County Commonwealth’s Attorney and the Metro Government Ethics Commission.”
(Complaint ¶ 9, 12.) Barber and the other plaintiffs brought two causes of action: one under the
Kentucky Whistleblower Act (“KWA”), KRS § 61.102, and the other under § 1983 for First
Amendment retaliation. (Complaint ¶¶ 16-19.) MSD removed the action to federal court in the
Western District of Kentucky. The plaintiffs other than Barber and Cunningham voluntarily
dismissed their suits with prejudice.
MSD sought summary judgment against Barber and Cunningham. MSD argued that Garcetti
v. Ceballos, 547 U.S. 410 (2006), foreclosed Barber’s claims. In concluding its argument regarding
Ceballos, MSD stated that “his Complaint against MSD for retaliation for his ‘association with one

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Nos. 07-5236, 07-5288, 07-5411
Barber, et al. v. Louisville Jefferson
MSD also argued that the KWA claim could not succeed as a matter of law because Barber2
was not an employee of MSD and that Barber’s reports did not involve “illegal activities,
misappropriation, fraud, or matters of public concern” and so both the KWA claim and the First
Amendment claim should fail. The district court ruled against MSD on both of these arguments, and
neither ruling is challenged on appeal.
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another for the purpose of exposing public officials’ wrongdoing,’ (Complaint ¶18), cannot be
sustained.” Paragraph eighteen of Barber’s Complaint articulated the plaintiffs’ First Amendment
cause of action.2
The district court granted summary judgment to MSD on Barber’s First Amendment claim,
but denied summary judgment on the KWA claim. The district court held that Barber’s statements
were “pursuant to his official duties” and therefore “not protected speech under the First
Amendment.” No. 3:05-cv-142-R, 2006 WL 3772209, at * 5 (W.D. Ky. Dec. 20, 2006). On the
KWA claim, the district court held:
Plaintiff’s claim under KWA does not require that the statements made by Barber
qualify as protected speech, and the Defendant has not presented any evidence that
speech by a whistleblower fall under First Amendment protection. As such, the
holding in Ceballos does not preclude Barber’s KWA claim from going forward at
this time.
Id.
Barber sought to revisit that judgment through a motion to alter or amend the judgment. The
district court denied Barber’s motion. The KWA claim went to trial, and, on January 24, 2007, a
jury found MSD violated the KWA by terminating Barber. The jury awarded Barber $35,000 in
damages. Barber then sought attorney fees from MSD, and the district court granted his request.

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Nos. 07-5236, 07-5288, 07-5411
Barber, et al. v. Louisville Jefferson
Though the Sixth Circuit does provide an exception for reviewing the denial of a motion for3
summary judgment when it involves a pure question of law, we interpret that exception narrowly.
The exception is interpreted narrowly because, as one treatise notes, the exception can undo the
carefully calibrated structure of the rules of civil and appellate procedure:
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MSD filed a notice of appeal on February 21, 2007. Barber filed a cross-appeal on March
7, 2007.
II.
MSD appeals the denial of summary judgment on Barber’s KWA claim after a jury found
that MSD violated the KWA by terminating Barber. “[W]here summary judgment is denied and the
movant subsequently loses after a full trial on the merits, the denial of summary judgment may not
be appealed.” Jarrett v. Epperly, 896 F.2d 1013, 1016 (6th Cir. 1990). Jarrett adopted the following
rationale for the rule: “‘[W]e believe it would be even more unjust to deprive a party of a jury verdict
after the evidence was fully presented, on the basis of an appellate court’s review of whether the
pleadings and affidavits at the time of the summary judgment motion demonstrated the need for a
trial.’” Id. at 1016 n.1 (quoting Locricchio v. Legal Servs. Corp., 833 F.2d 1352 (9th Cir.1987)).
There is an exception to this rule. Review of the denial is appropriate where the denial
involved only a pure question of law. “[W]here the denial of summary judgment was based on a
question of law rather than the presence of material disputed facts, the interests underlying the rule
are not implicated.” U.S. ex rel. A+ Homecare, Inc. v. Medshares Mgmt. Group, Inc., 400 F.3d 428,
441 (6th Cir. 2005); see also Paschal v. Flagstar Bank, 295 F.3d 565, 572 (6th Cir. 2002). When
the denial is based on a pure question of law, it may be appealed even in the absence of a post-
judgment motion. Medshares, 400 F.3d at 441.3

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[A]fter trial, a judgment as a matter of law may be rendered only on a directed verdict
motion or by motion at the end of trial. Absent the appropriate motions, judgment
as a matter of law may not be granted. Review of a pretrial summary judgment
motion would circumvent that rule; review of a denial of a directed verdict or
judgment as a matter of law motion obviates the need for review of a denial of a pre-
trial summary judgment.
19 MOORE’S FEDERAL PRACTICE § 205.08[2] (3d ed. 2007).
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MSD argues that the district court erred on a pure question of law in denying their motion
for summary judgment on the KWA claim. The district court denied summary judgment on the
KWA claim, holding that “the Plaintiff’s claim under KWA does not require that the statements
made by Barber qualify as protected speech.” 2006 WL 3772209, at *5. MSD seeks to incorporate
an official duties exception that courts have read into the federal whistleblower statute, see Willis
v. Dep’t. of Agric., 141 F.3d 1139, 1144 (Fed. Cir. 1998), into the KWA. While this is a question
of statutory interpretation, the argument is contingent on a disputed factual premise. MSD’s
argument not only requires that the KWA include an official duties exception, it requires that
Barber’s statements to Cunningham fall within the scope of that imported official duties exception.
The Federal Circuit has articulated the limitations of the official duties exception to
whistleblower law: it does not apply when “an employee with such assigned investigatory
responsibilities reports the wrongdoing outside of normal channels” or when “the employee is
obligated to report the wrongdoing, but such a report is not part of the employee’s normal duties.”
Huffman v. Office of Pers. Mgmt., 263 F.3d 1341, 1352-54 (Fed. Cir. 2007).
Though the district court found that, as a matter of law, “Barber made his comments to
Cunningham pursuant to his duties as a MSD employee,” (Op. and Order re Mot. to Alter or Amend

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J. at 3), it did not reach the question critical to the official duties exception. The district court did
not find that working on the AG report with Cunningham was within Barber’s normal duties or that
it was a normal channel for reporting wrongdoing. Indeed, the district court found that
Cunningham’s report to the Attorney General was outside her official duties. No. 3:05-cv-142-R,
2006 WL 3772206, at *4 (W.D. Ky. Dec. 20, 2006). It thus did not find that Barber’s participation
in the AG report was part of Barber’s official duties in the manner necessary for resolution of MSD’s
argument as a pure question of law.
Because there is an open factual question which is inextricably tied to the KWA claim, the
Medshares exception does not apply. Instead, Jarrett controls. The district court’s denial of MSD’s
motion for summary judgment may not be appealed.
III.
The district court found Barber was entitled to attorneys’ fees under K.R.S. § 61.990(4).
MSD does not contest either the amount of the fees or the award after verdict. Because the district
court’s order stands, the award of attorneys’ fees also stands.
IV.
In his cross-appeal, Barber argues that the district court improperly granted summary
judgment to MSD on his First Amendment claim. Barber now claims he can bring a derivative First
Amendment retaliation claim because Barber’s injury flows directly from the violation of
Cunningham’s First Amendment rights.

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Nos. 07-5236, 07-5288, 07-5411
Barber, et al. v. Louisville Jefferson
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Barber did not adequately notify the district court or MSD of this derivative First Amendment
claim. “[V]ague references to an issue fail to clearly present it to the district court so as to preserve
the issue for appeal.” Thurman v. Yellow Freight Sys. Inc., 97 F.3d 833, 835 (6th Cir. 1997).
The Complaint provides scant notice of the derivative claim. The Complaint focuses on
Cunningham’s Attorney General report. (See Complaint ¶¶ 8-9.) It also states that the relevant acts
were “Cunningham’s disclosure, and Barber[’s] . . . acts in support, aid and substantiation of
Cunningham’s disclosures.” (Complaint ¶ 12.) Under “Causes of Action,” however, the Complaint
states that MSD had deprived “the plaintiffs of rights secured by the First Amendment.” (Complaint
¶ 29.) This suggests that the plaintiffs all had suffered a First Amendment injury.
Barber’s response to MSD’s motion for summary judgment did not explicitly raise the
derivative First Amendment claim, but neither did it foreclose the derivative claim. The response
focused entirely on the First Amendment protection for Cunningham’s report to the Attorney
General. (J.A. at 122-125.) Focusing on Cunningham’s report is consistent with the derivative
theory now raised on appeal.
Barber’s motion to alter or amend the judgment clarifies the contours of his First Amendment
claim. Filed a month after the summary judgment order, the motion clearly argues a direct First
Amendment theory. The motion states:
Barber’s First Amendment claim hinges on his speech to Cunningham . . . . And that
speech is fundamentally different from Barber’s daily log report – something that the
Court’s opinion fails to note. There is nothing in the record to suggest – much less
prove for summary judgment purposes – that Barber’s job duties included reporting
non-environmental wrongdoing to Cunningham.
For this reason, Ceballos does not foreclose Barber’s First Amendment claim.

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(Mot. to Alter or Amend J. at 2.)
This argument proceeds under Ceballos: the First Amendment directly protected Barber’s
speech outside the scope of his employment. The district court responded in kind, denying the
motion on the basis of Ceballos: “Barber made his comments to Cunningham pursuant to his duties
as a MSD employee . . . Accordingly, the Court did not err in determining that Ceballos precluded
Barber’s First Amendment claim.” (Op. and Order re Mot. to Alter or Amend at 3-4.) Barber’s
counsel also essentially conceded during oral argument before this court that the theory of his First
Amendment claim before the district court was direct rather than derivative.
Since Barber did not raise the issue of his derivative claim below, the issue is waived unless
we decide to use our discretion to hear the claim:
In general, this court will not review issues raised for the first time on appeal. Our
function is to review the case presented to the district court, rather than a better case
fashioned after a district court’s unfavorable order. This court will consider an issue
not raised below only when the proper resolution is beyond doubt or a plain
miscarriage of justice might otherwise result.
DaimlerChrysler Corp. Healthcare Benefits Plan v. Durden, 448 F.3d 918, 922 (6th Cir. 2006).
“Two main policies justify this general rule. First, the rule eases appellate review ‘by having
the district court first consider the issue.’ Second, the rule ensures fairness to litigants by preventing
surprise issues from appearing on appeal.” Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 552 (6th
Cir. 2008) (citations omitted).
Addressing the derivative claim for the first time on appeal would be inappropriate under our
waiver jurisprudence. Though the validity of a derivative First Amendment claim is a pure question
of law, the existence of such a claim is not “clear and beyond doubt.” See Friendly Farms v.

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Reliance Ins. Co., 79 F.3d 541, 545 (6th Cir. 1996). Scattered courts have recognized this type of
claim; others have not. See Horstkoetter v. Dept. of Pub. Safety, 159 F.3d 1265, 1279 (10th Cir.
1998); Biggs v. Best, 189 F.3d 989, 998-99 (9th Cir. 1999); but see Shondel v. McDermott, 775
F.2d 859, 864 (7th Cir. 1985). Further, no binding authority opinion from the Supreme Court,
Congress, or this circuit has been issued since the district court reached its decision. Cf. Mayhew
v. Allsup, 166 F.3d 821, 823-24 (6th Cir. 1999); United States v. Chesney, 86 F.3d 564, 568 (6th Cir.
1996). This appeal is not the first time Barber could have raised this issue. Nor would reaching the
issue aid the progress of litigation; instead, success on the appeal would revoke the finality of the
decision below.
As Barber waived the derivative claim by failing to address it below and no factor counsels
in favor of reaching the issue for the first time on appeal, we will not upset the district court’s
summary judgment order regarding Barber’s First Amendment claim.
V.
Based on the reasons articulated above, neither MSD’s appeal nor Barber’s cross-appeal is
properly before this court. Accordingly, we AFFIRM the judgment of the district court.

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