Unclassified Title, For-Cause Protection: Clear Charter Rights Trigger Pretermination Due Process Absent a “Clear and Unmistakable” Waiver

1. Introduction

This appeal arises from the termination of Michael Washington, a veteran Cincinnati Fire Department employee promoted to Fire Chief in May 2021. In March 2023, City Manager Sheryl Long terminated Washington effective immediately, providing no pretermination hearing. Long simultaneously publicized detailed “for cause” reasons for the termination through a letter, a memorandum to city leadership, and communications with local media.

Washington sued the City of Cincinnati and Long under federal and state procedural due process theories and asserted an Ohio defamation claim. The district court denied Long qualified immunity as to the pre-deprivation due process claim and denied her Ohio statutory immunity as to defamation. Long and the City filed an interlocutory appeal.

The central legal issues were:

• Property interest / due process: Whether the Cincinnati City Charter’s “removal only for cause after six months” language created a protected property interest requiring pretermination process, notwithstanding Washington’s signed “Understanding of Unclassified Appointment” memorandum (the “MOU”).
• Qualified immunity: Whether the above was “clearly established” such that a reasonable city manager would know that firing Washington without pretermination process was unconstitutional.
• Ohio statutory immunity for defamation: Whether a jury could find Long acted with “malicious purpose, in bad faith, or in a wanton or reckless manner” under Ohio Rev. Code Ann. § 2744.03(A)(6)(b), defeating immunity.
• Interlocutory jurisdiction: Whether the Sixth Circuit could review the immunity denials at this stage under the collateral order doctrine.

2. Summary of the Opinion

The Sixth Circuit affirmed the district court.

• Qualified immunity denied (pretermination due process): The Charter’s plain text gave Washington for-cause protection after six months and therefore a property interest under Cleveland Bd. of Educ. v. Loudermill. The MOU did not constitute (and could not reasonably be treated as) a “clear and unmistakable” waiver of constitutional due process rights under Morrison v. Warren and Endres v. Northeast Ohio Medical University. Long’s termination without any pretermination process violated clearly established law.
• Statutory immunity denied (defamation): Viewing the record in Washington’s favor, a reasonable jury could find Long’s statements were false and that she acted with malice or bad faith. The court also held the jury may consider evidence that Long knowingly and intentionally violated Washington’s due process rights as circumstantial evidence of malice/bad faith under § 2744.03(A)(6)(b).
• Jurisdiction: The court exercised interlocutory jurisdiction over both immunity denials within the limits imposed by Mitchell v. Forsyth and Johnson v. Jones, aided by appellants’ concession (for appeal purposes) that they were not contesting factual disputes about waiver.

3. Analysis

3.1. Precedents Cited

A. Interlocutory review and the “legal vs. factual” boundary

• Mitchell v. Forsyth (472 U.S. 511): Established that denials of qualified immunity can be immediately appealable to the extent they present issues of law (immunity from suit, not merely liability).
• Johnson v. Jones (515 U.S. 304): Limited interlocutory review—appellate courts generally cannot revisit whether the record presents a genuine factual dispute; review is confined to “neat abstract issues of law.”
• Estate of Lewis v. City of Columbus (158 F.4th 814), Gillman v. City of Troy (126 F.4th 1152), Heeter v. Bowers (99 F.4th 900), Gillispie v. Miami Township (18 F.4th 909), Ouza v. City of Dearborn Heights (969 F.3d 265), and Barry v. O’Grady (895 F.3d 440): These Sixth Circuit cases operationalize Mitchell/Johnson, stressing that interlocutory review is available only for legal questions and that appellate courts accept the district court’s fact inferences and the plaintiff’s record-supported version where required.

How they shaped this decision: The panel carefully framed the qualified-immunity question as legal: assuming no actual waiver (given appellants’ concession), would a reasonable official understand the Charter created for-cause protection and thus required a pretermination hearing? This framing kept the appeal within Mitchell and outside Johnson’s prohibition on fact reweighing.

B. Property interests and procedural due process in public employment

• Bd. of Regents of State Colls. v. Roth (408 U.S. 564): Foundational principle that due process applies when a person is deprived of a protected property or liberty interest; property interests are defined by state law sources.
• Paul v. Davis (424 U.S. 693): Reinforced that the existence of property interests is a question of state law.
• Cleveland Bd. of Educ. v. Loudermill (470 U.S. 532): The anchor precedent: public employees who can be removed only “for cause” have a property interest requiring “some form of pretermination hearing.”
• Mathews v. Eldridge (424 U.S. 319): Established the balancing framework for what process is due, while preserving the centrality of an opportunity to be heard before deprivation in many contexts.
• Armstrong v. Manzo (380 U.S. 545), Mullane v. Cent. Hanover Bank & Tr. Co. (339 U.S. 306), Boddie v. Connecticut (401 U.S. 371): Due process basics—notice and opportunity to be heard at a meaningful time and manner; Loudermill’s “root requirement” quotation is traced to these principles.
• Gilbert v. Homar (520 U.S. 924) and Hieber v. Oakland County (136 F.4th 308): Articulate the minimum pretermination elements (notice of charges, explanation of evidence, and a chance to respond).
• Singfield v. Akron Metro. Hous. Auth. (389 F.3d 555), Jefferson v. Jefferson Cnty. Pub. Sch. Sys. (360 F.3d 583), Rodgers v. 36th Dist. Ct. (529 F. App’x 642): Sixth Circuit authority reiterating that “for cause” protection creates a property interest protected by due process.

How they shaped this decision: The majority treated the Cincinnati Charter’s “removal only for cause after six months” as legally equivalent to the for-cause protections at issue in Loudermill. Once that property interest is recognized, the absence of any pretermination hearing (indeed, any pretermination opportunity to respond) becomes a straightforward constitutional violation under long-settled law.

C. Charter interpretation and the significance of unambiguous text

• Silberstein v. City of Dayton (440 F.3d 306): Held it is clearly established under Ohio law that municipal charter provisions are construed by their plain meaning; unambiguous language is applied faithfully.
• State ex rel. Misnor v. Eschen (656 N.E.2d 940) and Roxane Labs., Inc. v. Tracy (661 N.E.2d 1011): Ohio cases (cited via Silberstein) supporting plain-meaning interpretation principles.

How they shaped this decision: This line of authority allowed the panel to bypass the suggestion that the Charter needed prior Ohio case law on identical wording. Under Silberstein, the Charter’s plain text (“subject to removal only for cause” after six months) is itself enough to make the legal consequence clear.

D. Waiver of constitutional procedural rights: “clear and unmistakable”

• Morrison v. Warren (375 F.3d 468): Held that “clear and unmistakable language” is required to waive procedural due process rights; even an express waiver of internal disciplinary hearings did not clearly waive Fourteenth Amendment rights.
• Endres v. Northeast Ohio Medical University (938 F.3d 281): Reaffirmed that contracts can waive constitutional rights only with “clear and unmistakable language.”
• Wright v. Universal Mar. Serv. Corp. (525 U.S. 70): The Supreme Court authority underpinning the “clear and unmistakable” waiver standard as applied by the Sixth Circuit in this context.
• Sandler v. All Acquisition Corp., Inc. (954 F.2d 382): Noted waiver often presents a mixed question of law and fact, relevant to limiting interlocutory review.

How they shaped this decision: The panel’s key move was to treat the MOU as insufficient—both as an actual waiver (conceded away for interlocutory purposes) and as something a reasonable official could rely on to believe a waiver occurred. Because the MOU did not reference the Charter, the Fourteenth Amendment, or due process rights—and because it was consistent with the Charter’s initial probationary at-will period—the majority held it could not reasonably be seen as a “clear and unmistakable” waiver.

E. “Unclassified” status and property interests under Ohio law

• Christophel v. Kukulinsky (61 F.3d 479): Noted the general proposition that classified employees typically have property interests while unclassified employees typically do not under Ohio law.
• Haven v. Lodi (200 N.E.3d 395), Velazquez v. Village of Bratenahl (2003 WL 549967), Lowe v. Village of McArthur (2007 WL 654225): Ohio and federal district decisions reflecting that the decisive feature is for-cause protection, even if an employee is “unclassified.”

How they shaped this decision: These authorities supported the majority’s view that labels do not trump substantive removal protections: if a public official can only remove an employee “for cause,” a property interest exists. The Charter’s “unclassified” reference was treated as describing the probationary interval (or, at minimum, not negating the explicit for-cause limitation that follows).

F. Qualified immunity: general standards and “clearly established” law

• Harlow v. Fitzgerald (457 U.S. 800): Qualified immunity protects all but the plainly incompetent or those who knowingly violate the law; emphasizes the objective nature of the inquiry.
• Mullenix v. Luna (577 U.S. 7): Warned against defining clearly established law at a high level of generality; the majority distinguished the Fourth Amendment context where that admonition is “especially important.”
• Cahoo v. SAS Analytics Inc. (912 F.3d 887) and Baynes v. Cleland (799 F.3d 600): Sixth Circuit statements that officials can be on notice even in novel factual situations if unlawfulness would be clear.
• Finley v. Huss (102 F.4th 789), Puskas v. Delaware County (56 F.4th 1088), Graham v. Connor (490 U.S. 386): Cited to contrast procedural due process (deliberative decisions) with Fourth Amendment split-second judgments.
• Zorn v. Linton (146 S. Ct. 926): Recent articulation of the clearly established standard: whether every reasonable official would understand the conduct violates the right.

How they shaped this decision: The majority treated the due process rule as comparatively “rule-like” (for-cause protection → property interest → pretermination hearing required) and emphasized Long’s time to deliberate and consultation with counsel. It concluded the Charter’s plain text plus the stringent waiver doctrine made the violation clear to “every reasonable official” under Zorn.

G. Ohio statutory immunity and defamation: interlocutory review and intent

• Chesher v. Neyer (477 F.3d 784): Held Ohio’s political subdivision immunity framework provides immunity from suit, supporting collateral-order jurisdiction.
• Frenchko v. Monroe (160 F.4th 784), Range v. Douglas (763 F.3d 573), Moldowan v. City of Warren (578 F.3d 351): Sixth Circuit guardrails on interlocutory review of state immunity denials; need for “complete immunity from suit” and limited review where factual disputes remain.
• DiLuzio v. Village of Yorkville (796 F.3d 604) and Post v. City of Monroe Falls (861 F. App’x 69): Recognize that whether an employee acted with malice/bad faith is typically for the jury; interlocutory review may assess whether the record (viewed favorably to plaintiff) permits a jury finding.

How they shaped this decision: The panel affirmed denial of immunity because (i) the record supported a jury dispute over falsity and overstatement, and (ii) circumstantial evidence—particularly evidence suggesting a knowing due process violation—could support malice or bad faith under Ohio Rev. Code Ann. § 2744.03(A)(6)(b).

3.2. Legal Reasoning

A. The Charter created a property interest after six months

The majority treated the Charter’s language as “unmistakable”: after six months, the fire chief “shall be subject to removal only for cause.” Under Loudermill, for-cause protection is the paradigmatic source of a public employment property interest. Because Washington served far beyond six months, the Charter’s text put him in for-cause status at the time of termination.

B. Pretermination hearing was required, and none was provided

With a protected property interest established, the due process baseline follows: before termination, the employee must receive notice, explanation of evidence, and an opportunity to respond (Hieber v. Oakland County; Gilbert v. Homar). The undisputed facts showed Washington was summoned to City Hall and fired effective immediately—no prior notice, no opportunity to be heard. That is the classic Loudermill violation.

C. The MOU did not make the law unclear because waiver must be “clear and unmistakable”

A central feature of the holding is not merely that Washington had Charter rights, but that a reasonable city manager could not treat the MOU as stripping them away absent “clear and unmistakable language” (Morrison v. Warren; Endres v. Northeast Ohio Medical University). The MOU did not reference the Charter, the Fourteenth Amendment, or due process rights. And its “unclassified/at pleasure” language could reasonably be read as describing the Charter’s probationary period rather than a permanent removal regime. Thus, the MOU did not supply a reasonable basis to believe Washington lacked due process protections.

D. “Unclassified” labeling did not negate explicit for-cause protection

The court rejected the idea that the “unclassified” label necessarily means “at-will forever.” Even under Ohio practice, the operative question is for-cause protection, not the label itself. The court cited authorities such as Haven v. Lodi to show that unclassified positions can still carry property interests if termination is constrained to “just or reasonable cause.”

E. Clearly established law and the majority’s treatment of specificity

Responding to the defendants’ effort to demand a prior case interpreting the same Charter section, the majority invoked plain-meaning charter interpretation under Silberstein v. City of Dayton and rejected overly granular framing. It also distinguished Fourth Amendment qualified-immunity “granularity” concerns (Mullenix v. Luna) by emphasizing that this case involved a deliberative employment decision governed by rule-like due process requirements, not a split-second force decision.

The majority further underscored record evidence that Long consulted legal counsel and was told Washington “would need a hearing,” but nonetheless fired him immediately “because that was my choice to not.” While qualified immunity is objective, these facts reinforced the court’s view that the legal requirement to “hesitate” (Harlow v. Fitzgerald) was operative here.

F. Ohio statutory immunity: due process evidence as circumstantial proof of malice/bad faith

Ohio Rev. Code Ann. § 2744.03(A)(6)(b) removes immunity where an official acts with “malicious purpose, in bad faith, or in a wanton or reckless manner.” The court held that the record permitted a jury to find knowing falsity or purposeful avoidance of the truth (particularly regarding statements about a climate assessment), akin to the “overstated actions” reasoning in Post v. City of Monroe Falls.

Importantly, the panel held that evidence suggesting Long knowingly violated due process could be considered by the jury as circumstantial evidence of malice or bad faith when she publicized the reasons for termination. On this record—Charter excerpt embedded in the termination letter, the “for cause” framing, and deposition testimony about being advised a hearing was needed—a jury could infer intentional disregard for rights and, correspondingly, bad faith in the defamatory publications.

3.3. Impact

A. Public employment governance: Charter text matters, and waiver must be explicit

For Sixth Circuit jurisdictions, the decision strengthens two practical propositions:

• Plain-text for-cause protections in local charters will be treated as conferring a property interest absent unusual, clearly effective displacement.
• Employers cannot rely on generic “unclassified/at pleasure” acknowledgments to erase constitutional process unless the waiver is “clear and unmistakable” under Morrison v. Warren and Endres v. Northeast Ohio Medical University.

This will likely push municipalities to (i) align appointment documents with charter text, and (ii) provide at least minimal pretermination process whenever the governing law plausibly confers for-cause status.

B. Qualified immunity in procedural due process cases

The opinion signals a willingness to treat some due process rules as sufficiently rule-like that officials cannot demand factually identical precedents to defeat qualified immunity—especially where the governing state-law source is unambiguous and the waiver doctrine is strict. While the dissent disputes this framing, litigants will likely cite this case to argue that “clearly established” can be satisfied by the combination of (1) unambiguous for-cause text and (2) the entrenched Loudermill pretermination hearing requirement.

C. Ohio statutory immunity in defamation: broader evidentiary palette for “malice/bad faith”

The decision also has consequence for Ohio tort practice in federal court: plaintiffs may argue that an official’s knowing constitutional violation in the underlying event (here, termination) is relevant circumstantial evidence of “malicious purpose” or “bad faith” when evaluating immunity under § 2744.03(A)(6)(b) for related publications.

D. The dissent’s counterpoint and future litigation pressure points

Judge Readler’s partial dissent frames the case as one of documentary conflict (Charter vs. MOU) and argues that the absence of a sufficiently particularized precedent means qualified immunity should apply. He also challenges the majority’s discussion of specificity outside the Fourth Amendment context and reads the MOU as a strong at-will commitment that could reasonably be viewed as a waiver or displacement of Charter protections.

That split highlights likely future battlegrounds:

• How “particularized” precedent must be for due process qualified immunity when state-law sources conflict.
• Whether and when an “unclassified/at pleasure” agreement can reasonably be treated as altering charter-based tenure protections.

4. Complex Concepts Simplified

4.1. “Property interest” in a job

A public employee has a constitutional “property interest” in continued employment when state or local law limits the employer’s ability to fire the employee—most commonly by requiring “cause” to terminate. It is not about owning the job; it is about having legally enforceable job security.

4.2. Pretermination hearing (the Loudermill baseline)

A pretermination hearing does not have to be a full trial. But it generally requires three things: (1) notice of the charges, (2) an explanation of the evidence, and (3) a chance to respond before the firing takes effect.

4.3. Qualified immunity

Qualified immunity shields officials from being sued for damages unless the law was so clearly established that every reasonable official would know the conduct was unconstitutional. The doctrine is intended to protect reasonable mistakes about uncertain law, not deliberate disregard of settled requirements.

4.4. Waiver of constitutional rights: “clear and unmistakable”

Courts are reluctant to treat people as having given up constitutional protections unless the waiver is explicit and unambiguous. Under the cases cited here, language that merely describes an employment status (“unclassified”) is not necessarily an unmistakable waiver of a constitutional right to process—especially if the language can be read consistently with a probationary at-will period already present in the governing law.

4.5. Ohio statutory immunity for employees of political subdivisions

Ohio generally immunizes local officials from tort suits for acts connected to governmental functions. But the immunity falls away if the official acted with malicious purpose, bad faith, or in a wanton or reckless manner. Whether that mental state existed is commonly for a jury to decide when the record supports competing inferences.

5. Conclusion

The Sixth Circuit’s decision reinforces a clear operational rule for public employment in charter-governed systems: when a municipal charter unambiguously provides “for cause” removal protection after a probationary period, the employee has a protected property interest and is entitled to a pretermination opportunity to respond under Cleveland Bd. of Educ. v. Loudermill. Attempts to negate that entitlement through appointment paperwork will be ineffective—at least for qualified-immunity purposes—unless the purported waiver uses “clear and unmistakable language” as required by Morrison v. Warren and Endres v. Northeast Ohio Medical University.

On the tort side, the court’s treatment of Ohio Rev. Code Ann. § 2744.03(A)(6)(b) underscores that immunity often turns on intent, and that juries may consider evidence of knowing constitutional violations as circumstantial proof of malice or bad faith in related defamation claims.