Labor & Employment Law Daily Wrap Up, COVERAGE, LIABILITY—6th Cir.: Qualified immunity unavailable for city manager who terminated fire chief, foreclosed pretermination hearings, (Aug 14, 2026)

By Todd Harrison, J.D.

“If a public employee has for-cause removal protection, then he has a right to a pretermination hearing.”

Affirming a district court’s finding that the city manager for the City of Cincinnati was not entitled to qualified immunity for pre-deprivation violations of a former fire chief’s procedural due process rights, the Sixth Circuit determined that the plain text of the city charter clearly indicated the chief had a property interest in his continued employment, and his signing of a memorandum of understanding appearing to waive those rights merely operated as an acknowledgment of a six-month probationary period, a period that had long since passed at the time of his termination. The court also agreed with the district court that the city manager was not entitled to statutory immunity against the chief’s defamation claim. Dissenting in part, Judge Readler would have granted qualified immunity (Washington v. City of Cincinnati, No. 25-3692 (6th Cir. Aug. 13, 2026)).

The plaintiff in this case began working for the City of Cincinnati Fire Department in 1993. In May 2021, he was promoted to fire chief.

City charter. According to language contained in the city charter, after a fire chief has served in the position for six months, they may only be removed for cause. If removed for cause, “the fire chief may demand written charges and the right to be heard thereon before the city manager.”

MOU. Upon his promotion, the fire chief signed a memorandum of understanding (MOU), which stated that the position was an unclassified position, that those employed in unclassified positions serve at the pleasure of the appointing authority and can be dismissed without cause at any time, and are not afforded the civil service protections and/or hearings granted to classified employees. The MOU concludes with language stating, “In accepting unclassified appointments, employees forfeit the right to seek other employment via lateral transfers and the opportunity to take competitive, promotional exams.”

Termination. On March 24, 2023, the fire chief was informed that he was being terminated for, among other things, poor workplace culture under his leadership. That same day, the city manager notified local media of the decision and gave interview statements regarding the city’s decision. The fire chief subsequently requested a post-termination hearing before a neutral decisionmaker. The city offered a hearing with the city manager. No hearing ever took place.

At deposition, the city manager testified that she had consulted with HR and the city’s legal department prior to terminating the fire chief. At that time, she was told he was entitled to a hearing. When asked why she did not let him have a hearing prior to his termination, she stated, “[b]ecause that was my choice to not.”

Lawsuit. Following his termination, the fire chief sued the city and the city manager alleging procedural due process violations and defamation under Ohio state law. In this appeal, the city and the city manager challenged the district court’s holdings denying both qualified and statutory immunity to the city manager.

Probationary period. First, the court addressed the qualified immunity issue. Directing its attention to the city charter, the court noted that the appointment to the position of fire chief comes with a probationary period of six months, during which “[t]he fire chief may be removed at any time by the city manager.” However, “[a]fter the fire chief has served six months, he or she shall be subject to removal only for cause including incompetency, inefficiency, dishonesty, insubordination, unsatisfactory performance, any other failure of good behavior, any other acts of misfeasance, malfeasance, or nonfeasance in office, or conviction of any felony.”

In this instance, the meaning of these provisions was unmistakable, explained the court. Once a fire chief serves six months, he can be terminated only for cause, which means he has a right to a pretermination hearing under binding—and clearly established precedent—as set forth by Loudermill.

Having been appointed in May 2021, the fire chief’s probationary period concluded in November 2021, observed the court, at which point he would have attained for-cause status. Thus, the plain text of the charter clearly indicated that the fire chief had a property interest in his continued employment at the time he was terminated.

Status under the MOU. In response, the city manager contended that regardless of what the charter provides, it could not have been clear that the fire chief had for-cause protection after signing the MOU. She did concede, for purposes of this appeal, that the fire chief did not in fact intend to waive, or understand himself to be waiving, any procedural due process rights by executing the MOU. Based on this, the court noted that it could consider the MOU only in the limited capacity of what a reasonable official in the city manager’s position would have understood about the fire chief’s status based on the fact that he had signed the MOU.

Waiver? Clear and unmistakable language is required for a person to waive their procedural due process rights, explained the court, and generally requires that the language in question specifically identifies the rights to be waived. The Sixth Circuit has reiterated this principle several times. Accordingly, a reasonable person in the city manager’s position would have known that a contractual waiver of procedural due process rights must be clear and unmistakable.

Here, the court found the MOU fell short of this standard. It contained no references to the Fourteenth Amendment or the fire chief’s due process rights and made no mention of the charter or any rights the fire chief had under the charter. In fact, observed the court, the only reference to any “right” in the MOU pertained to opportunities wholly separate from procedural due process rights: “In accepting unclassified appointments, employees forfeit the right to seek other employment via lateral transfers and the opportunity to take competitive, promotional exams.”

Unclassified. Much was made by the city manager of the MOU’s language which provides that “[t]he position of Fire Chief is an unclassified position” and unclassified employees “serve at the pleasure of the appointing authority and can be dismissed from employment without cause at any time.” However, the court found it difficult to call this type of language a clear and unmistakable waiver.

The classification language contains no express indication that the fire chief was giving up anything, observed the court. It merely states that the position of fire chief is an unclassified position and proffers a brief explanation of what “unclassified” means.

On the other hand, continued the court, the MOU’s language is wholly consistent with the fire chief’s six-month probationary period, during which the charter provided that he was unclassified and could be removed at any time by the city manager.

“The MOU could have been simply an acknowledgment of this temporary status,” said the court, and a reasonable official in the city manager’s position certainly would have known about the probationary period as provided in the charter. Thus, it was not clear and unmistakable that the fire chief’s execution of the MOU was a waiver of due process rights he had not yet accrued.

Clearly established. Based on the above, the court determined that a reasonable official in the city manager’s position would have known that the fire chief accrued for-cause protection following the six-month probationary period and would not have presumed that the MOU operated as a waiver of the rights afforded by that status. Accordingly, the city manager’s failure to provide the fire chief with any pretermination process prior to his firing was a violation of clearly established law, explained the court.

In an effort to evade this conclusion, the city manager contended that the court’s reliance on cases like Loudermill cast the “clearly established” net too widely, noting that the Supreme Court has cautioned against defining clearly established law at a high level of generality. The court was unmoved, finding the operative inquiry was not whether a previous court faced perfectly analogous facts, but rather whether it would be clear to a reasonable officer that their conduct was unlawful in the given situation.

Under Loudermill, “If a public employee has for-cause removal protection, then he has a right to a pretermination hearing,” said the court. Accordingly, the district court did not err in denying the city manager qualified immunity for pre-deprivation violations of the fire chief’s due process rights.

Statutory immunity. As to the city manager’s assertion of statutory immunity against the fire chief’s defamation claim, she contended she was entitled to summary judgment for two reasons: (1) the district court erred in finding there was sufficient evidence of knowing falsity for a jury to infer malice or bad faith; and (2) the district court erred in considering evidence related to the city manager’s violation of the fire chief’s procedural due process rights as relevant to statutory immunity for the defamation claim.

With regard to the arguments surrounding falsity, the city manager focused especially on the fire chief’s purported lack of effort toward the completion of a climate assessment after receiving complaints from female firefighters about workplace culture. To the extent this argument required examination of the underlying merits of the defamation claim, the Sixth Circuit agreed with the district court’s determination that the fire chief presented sufficient evidence regarding his efforts to create a triable issue on whether the city manager’s statements were true. Thus, a reasonable jury could find the city manager had acted with malice or bad faith.

In the context of the procedural due process violation, the district court had held a reasonable jury could find that the city manager understood she was terminating the fire chief in violation of his constitutional rights and, in turn, could consider this as circumstantial evidence of malice or bad faith in her subsequent statements relevant to the defamation claim. The Sixth Circuit could discern no reason that a jury should not be able to consider evidence suggesting the city manager intentionally violated the fire chief’s constitutional rights as relevant to this inquiry. Accordingly, the district court’s denial of statutory immunity for the defamation claim was affirmed.

Partial dissent. Judge Readler dissented from the majority as to their denial of qualified immunity. Jude Readler noted that the fire chief signed a document indicating he was an unclassified employee, and which provided for no property right in his employment and allowed for his immediate termination.

In the end, continued Judge Readler, the majority opinion “turns the qualified immunity framework on its head.” Rather than awarding qualified immunity unless it was obvious the city manager violated the fire chief’s clearly established rights, the majority opinion would deny qualified immunity unless it was obvious that the city manager did not do so, concluded the judge.

The case is No. 25-3692.

Judge: Stranch, J.

Attorneys: Stephen E. Imm (Finney Law Firm) for Michael Washington. William Christopher Hicks, City of Cincinnati Law Department, for City of Cincinnati, OH and Sheryl Long.

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