Holsapple v. Bay, County of et al

Filing 96

ORDER denying 91 Motion for Reconsideration re 79 Opinion & Order. Signed by District Judge Thomas L. Ludington. (SGam)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
JASON HOLSAPPLE,
Plaintiff,

Case No. 13-11039
Honorable Thomas L. Ludington

v.
JOHN MILLER,
Defendant.
/
ORDER DENYING DEFENDANT’S MOTION FOR RECONSIDERATION
Jason Holsapple alleges that Bay County Sheriff John Miller terminated his employment
because he supported another candidate—Robert Lee—for Sheriff in Bay County’s 2012
election. Sheriff Miller filed a motion for summary judgment, but the Court denied it because
genuine issues of material fact exist that must, by law, be decided by a jury. See Feb. 10, 2014
Op. & Order 9–16, ECF No. 79. On February 24, 2014, Sheriff Miller filed a motion for
reconsideration of that Opinion and Order.

Based on what follows, the motion for

reconsideration will be denied.
I
A motion for reconsideration will be granted if the moving party shows: “(1) a ‘palpable
defect,’ (2) the defect misled the court and the parties, and (3) that correcting the defect will
result in a different disposition of the case.” Michigan Dept. of Treasury v. Michalec, 181 F.
Supp. 2d 731, 733–34 (E.D. Mich. 2002) (quoting E.D. Mich. LR 7.1(g)(3)). A “palpable
defect” is “obvious, clear, unmistakable, manifest, or plain.” Michalec, 181 F. Supp. 2d at 734
(citing Marketing Displays, Inc. v. Traffix Devices, Inc., 971 F. Supp. 262, 278 (E.D. Mich.
1997)). “Motions for rehearing or reconsideration which merely present the same issues ruled

upon by the Court, either expressly or by reasonable implication, shall not be granted.”
Michalec, 181 F. Supp. 2d at 734 (brackets omitted) (quoting E.D. Mich. LR 7.1(h)(3)).
II
Sheriff Miller argues that the Court erred in two ways when it denied his motion for
summary judgment: “the specific instances the Court refers to do not constitute unlawful adverse
employment action,” Def.’s Mot. 1, ECF No. 91, and “[i]t is uncontradicted that the reason for
[Holsapple’s] discharge was based on all the complaints . . . which included insubordinate
behavior, negative attitude and derogatory comments made about command staff,” id. at 21. As
discussed below, both arguments are without merit.
A
Before reaching his two claims of error, Sheriff Miller first explains that “[t]emporal
proximity alone will not support an inference of retaliatory discrimination where there is no other
compelling evidence.” Id. at 12 (citation omitted). Sheriff Miller suggests that even if he
discovered Holsapple’s support for challenger Lee one day before he terminated Holsapple’s
employment, that evidence would be insufficient to carry Holsapple’s prima facie burden of
causation. Of course, Sheriff Miller acknowledges that the Court is to consider the “totality of
the circumstances” in determining causation.

Id. (citation omitted).

And here, there was

evidence (in addition to temporal proximity) indicating that Sheriff Miller’s decision to terminate
Holsapple’s employment could have been influenced by Holsapple’s political affiliation. Indeed,
many Bay County Sheriff’s Office employees established this was a realistic concern. See Feb.
10, 2014 Op. & Order 2–4 (collecting evidence). For example, Sergeant John Babiarz testified
that individuals that did not support Sheriff Miller faced discriminatory treatment. Babiarz Dep.
7, attached as Pl.’s Resp. Mot. Summ. J. Ex. 4, ECF No. 54. Together with temporal proximity,
this evidence sufficiently demonstrates causation to withstand summary judgment review.
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Sheriff Miller then drops into a discussion of pretext without addressing the portion of the
Court’s Opinion and Order concluding that such analysis is inapposite in First Amendment
retaliation cases. See Feb. 10, 2014 Op. & Order 10 (quoting Dye v. Office of the Racing
Comm’n, 702 F.3d 286, 295 (6th Cir. 2012) (holding that unlike under the McDonnell Douglas
burden-shifting framework, the burden “does not shift back to a plaintiff to show pretext in First
Amendment retaliation claims.”)). Thus, Sheriff Miller’s discussion of pretext is off the mark,
and his claim that “Holsapple has not shown pretext which he was required to do at the summary
judgment stage” is without merit. See Def.’s Mot. 24.
B
Sheriff Miller proceeds to his first argument for reconsideration, alleging that Holsapple
did not suffer any adverse employment actions. He argues that denial of Holsapple’s requests for
secondary employment, use of a rifle, to stay on third shift, and the use of the term “Bangor
Bitch” are all isolated incidents and not necessarily adverse. Of course, the adverse employment
action that supported Holsapple’s First Amendment claim was his termination of employment,
see Feb. 10, 2014 Op. & Order 10, so why Sheriff Miller raises these points is unclear.
Next, concerning Sheriff Miller’s decision to terminate Holsapple’s employment, Sheriff
Miller argues that “the Court’s conclusion that [he] knew Holsapple supported Lee because
[Holsapple] said he would tell Cunningham to ‘fuck off’ if Lee were Sheriff and that this is
evidence of pretext is a huge leap for the Court to make.” Def.’s Mot. 20. Again, any assertion
of pretext is irrelevant here; the Court did not conclude that this was evidence of pretext.
Moreover, this evidence—viewed in the light most favorable to Holsapple—is highlighted solely
because it could support a jury finding that Sheriff Miller knew of Holsapple’s affiliation with
Robert Lee before Holsapple’s employment was terminated. And termination is obviously an

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adverse employment action. See Kuhn v. Washtenaw Cnty., 709 F.3d 612, 628 (6th Cir. 2013)
(“Equally irrefutable is the fact that the termination of his employment was an adverse
employment action.”). Because there is a genuine issue of material fact regarding whether
Sheriff Miller knew that Holsapple supported Robert Lee before deciding to terminate his
employment, summary judgment is not warranted.
C
Finally, Sheriff Miller argues that “[i]t is uncontradicted that the reason for [Holsapple’s]
discharge was based on all the complaints by Deputy Prezzato and other deputies which included
insubordinate behavior, negative attitude and derogatory comments made about command staff.”
Def.’s Mot. 21. But as the Court tried to make clear in the February 10, 2014 Opinion and
Order, if Holsapple carried his prima facie burden, summary judgment is warranted only if, “in
light of the evidence viewed in the light most favorable to the plaintiff, no reasonable juror could
fail to return a verdict for the defendant.” Feb. 10, 2014 Op. & Order 10 (quoting Dye, 702 F.3d
at 294–95).
The Court sought to address the evidence supporting Holsapple’s claim that he was
terminated not because of his inappropriate conduct as a Sheriff’s Deputy but because of his
political support for Robert Lee.

See Feb. 10, 2014 Op. & Order 12–16.

In fact, many

employees testified that Holsapple was a model Sheriff’s Deputy. Thus, the Sheriff’s assertion
that Holsapple’s employment was terminated because of inappropriate behavior is not
“uncontradicted,” the evidence does not preclude a verdict on his behalf, and summary judgment
is not warranted. Moreover, Sheriff Miller offers nothing new on the point, but simply attempts
to reassert the arguments the Court previously addressed. See E.D. Mich. LR 7.1(h)(3). His
motion for reconsideration will not be granted.

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III
Accordingly, it is ORDERED that Sheriff Miller’s motion for reconsideration, ECF No.
91, is DENIED.
Dated: February 27, 2014

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing
order was served upon each attorney or party of record
herein by electronic means or first class U.S. mail on
February 27, 2014.
s/Tracy A. Jacobs
TRACY A. JACOBS

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