Krycia et al v. Clinton, Township of, et al

Filing 77

OPINION AND ORDER (1) Overruling Plaintiffs' 73 Objections to 72 Report and Recommendation, (2) Adopting in Part 72 Report and Recommendation, and (3) Granting Defendants' 35 and 37 Motions for Summary Judgment. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARY JANINE KRYCIA et al.,
Plaintiffs,

Case No. 13-cv-13659
Hon. Matthew F. Leitman

v.
TOWNSHIP OF CLINTON et al.,
Defendants.
_________________________________/
OPINION AND ORDER (1) OVERRULING PLAINTIFFS’
OBJECTIONS TO REPORT AND RECOMMENDATION (ECF #73); (2)
ADOPTING IN PART REPORT AND RECOMMENDATION (ECF #72),
AND (3) GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY
JUDGMENT (ECF ## 35, 37)
In this action brought under 42 U.S.C. § 1983, Plaintiffs Mary Janine Krycia
(“Krycia”) and Patricia Newell (“Newell”) (collectively, “Plaintiffs”) allege that
their former employer, Defendant Township of Clinton (the “Township”), and the
Township’s

former

clerk,

Defendant

George

Fitzgerald

(“Fitzgerald”)

(collectively, “Defendants”), retaliated against them for exercising their First
Amendment rights. Following the close of discovery, the Defendants each moved
for summary judgment (the “Motions”). (See ECF ## 35, 37.) The Defendants
argued that neither Krycia nor Newell had engaged in speech protected under the
First Amendment and that neither Plaintiff faced an adverse action as a result of
any protected speech. In a Report and Recommendation dated December 16, 2015
1 

(the “R&R”), the assigned Magistrate Judge agreed with the Defendants and
recommended that the Court grant summary judgment in favor of the Defendants.
(See R&R, ECF #72 at 2, Pg. ID 1777.) Plaintiffs filed timely objections to the
R&R (the “Objections”) (ECF # 73), and Defendants responded to the objections
(ECF ## 74, 75). For the reasons explained below, the Court OVERRULES the
Objections, ADOPTS IN PART the R&R, and GRANTS the Motions.
FACTUAL BACKGROUND
Plaintiffs have not objected to the factual recitation in the R&R. The Court
finds the recitation to be accurate and adopts it.

For ease of reference, the

recitation provides as follows:
Defendant George Fitzgerald (“Fitzgerald”) served as the elected
Clinton Township Clerk from 2008 until November, 2012, when
he was defeated by the current Township Clerk Kimberly
Meltzer. (Dkt. 35, Pg. ID 177).
A.

Plaintiff Newell

Plaintiff Patricia Newell (“Newell”) was Elections Coordinator
for the Clerk’s office, an appointed position to which Fitzgerald
reappointed her in 2008, until she took early retirement, effective
July 31, 2012. (Dkt. 35, 42). On the eve of a school board
election in May [2010], a dispute arose between Newell and
Fitzgerald regarding five laptop computers, which served as poll
books for Clinton Township (the “Township”). (Dkt. 42, 35-3).
Fitzgerald wanted to take these computers home with him, but
Newell believed doing so to be unethical and in violation of state
election law. (Id.) Fitzgerald took the computers home, but was
unable to access them because he did not have the encryption
password. (Id.) According to Newell, she did not have access to
the passwords, but Fitzgerald blamed her for not providing him
2 

with them and threatened her job if the “election did not go
right.” (Id.) That day, Newell suffered an anxiety attack for
which she was ultimately hospitalized. (Id.)
On May 11, 2011, an article appeared in the Fraser-Clinton
Township Chronicle entitled “SLOW DAY REPORTED AT
CLINTON TOWNSHIP POLLS.” (Dkt. 35-12, 42). Newell
made three statements that were quoted in the article: “Last
night, we were able to update our data with our electronic
poll books, and when we looked at the numbers, it was
frightening,” “I’ve been here 20 years, and this was low,” and
“Lately, that’s the way it’s been going.” (Id., emphasis
supplied). According to Newell, the reporter repeatedly called to
talk to Fitzgerald or Deputy Clerk Irvine, but they would not
speak with her. (Dkt. 35-3, Pg. ID 271-73). Newell was given the
call and she asked the reporter not to quote her because it was
just her opinion. (Id.) When the reporter asked Newell for a quote
that she could print, Newell gave her the election results. (Id.)
Newell was not told by Fitzgerald or Irvine to refrain from
speaking to the press. (Id.) Plaintiff made the quotes attributed to
her by the Chronicle and also said that the majority of the voters
made their decision by absentee ballots; that of the four thousand
nine hundred thirty five ballots cast, only nine hundred and fortyeight of them were cast in person. (Id.) Newell’s remarks were
made on the day after the election. (Id.)
The next day after the article appeared in the Chronicle,
Fitzgerald called Newell into his office, asked her why she was
talking to the media and told her: “that’s my job and
everything is supposed to go through my office.” (Dkt. 42,
emphasis supplied). Newell was not aware of any claimed policy
of the Clerk’s office that communications with the media
regarding election matters came from him and not his employees.
(Dkt. 35-3, Pg. ID 271-73). According to Newell, she received a
written reprimand for talking to the newspaper reporter. (Id.)
Newell wrote a letter to Fitzgerald indicating that she wouldn’t
speak to anyone from the media that states in part as follows:

3 

I Patricia Jo Newell truly apologize for the article
written by Heidi Roman of the Fraser-Clinton
Chronicle, I thought the call was being transferred
to you, as Clerk of the Township, never did I think
my opinion or text would be considered an
interview. This will NEVER happen again, as I have
great respect for this Township, Clerk and the
democratic process . . . . Mr. Fitzgerald I am a team
player, and take great pride in my job, work ethics
and integrity. Again this will NEVER happen
again.”
(Dkt. 46; emphasis supplied).
On July 7, 2011, Fitzgerald asked Newell to sign a letter of
recommendation for his wife Julie. (Dkt. 1) Fitzgerald told
Newell that his wife, Julie, was in the office because there was an
Elections Coordinator position opening up in Macomb Township.
(Dkt. 42, 35-3). Plaintiff initially wrote a letter of
recommendation for Julie, stating that she would be a good
candidate for the position. (Dkt. 35-3. Pg. ID 274-75). However,
Fitzgerald then asked her to sign a different letter, on Deputy
Clerk Irvine’s letterhead, stating that Julie was highly qualified to
be an Elections Coordinator. (Id.) Newell was concerned about
signing this letter because she did not know if Julie was qualified
for the position and because the letter’s suggestion that the
position could be learned in one week was not true. (Id.) Newell
told Fitzgerald several times that she did not want to sign the
letter. (Id.) Fitzgerald told Newell that if she didn’t sign the letter
she would be out on Romeo Plank Road. (Id.) Fitzgerald also told
Newell if you want your job sign the letter. (Id.) Newell
ultimately did sign the letter, but testified that she later informed
the Macomb Township Elections Supervisor that she had been
coerced into signing the letter of recommendation. (Dkt. 35-3,
Pg. ID 276).
In August 2011, Newell was issued a written reprimand for
making inappropriate comments to other township employees,
including negative comments about Fitzgerald and Irvine. (Dkt.
51). The reprimand indicates it relates to incidents which
4 

occurred on July 26, 2011, and directs Newell to report to the
Employee Assistance Program as discipline for her conduct. (Id.)
It notes Newell’s stated concern that the investigation resulting in
the reprimand was an effort to get rid of and discredit her, but
also states that the reprimand does not alter her employment
status with the Township. (Id.)
On November 23 and 28, 2011, articles appeared in the Macomb
Daily that portrayed Fitzgerald in a negative light by labeling him
a bully and stating that he carried a gun to work. (Dkt. 52, Pg. ID
1515-16). Fitzgerald blamed Newell for the Macomb Daily
article about bullying. (Dkt. 37-2, Pg. ID 509). Fitzgerald wanted
Newell to go to the Macomb Daily to say that she had nothing to
do with the article. (Id.). Fitzgerald had Deputy Clerk Irvine write
a letter that his employees were to sign to send over to the
Macomb Daily. (Dkt. 44, Pg. ID 1479). Fitzgerald presented
Newell with a letter that he prepared to submit to the Macomb
Daily regarding the articles. (Dkt. 37-2, Pg. ID 513). Newell had
to sign a letter stating that she had no knowledge of the articles in
the paper, that she had never filed complaints with the HR
department and that she did not disclose any information
regarding the Clerk or his office. (Dkt. 53). Newell also
confirmed in this letter that she had nothing to do with the
articles in the Macomb Daily. (Id.) Newell, and the other Clerk’s
office employees, signed the letter at the direction of Fitzgerald.
(Dkt. 44, Pg. ID 1479). According to Newell, she was written up
by Deputy Clerk Irvine for the article that appeared in the
Macomb Daily. (Dkt. 37-2, Pg. ID 509).
In May 2012, Fitzgerald’s secretary filed a complaint of
harassment against Fitzgerald, which was publicized in a number
of local newspaper articles. (Dkt. 55). Newell went to the
Township HR department to report that she was concerned about
her safety because Fitzgerald carried a gun. (Dkt. 42, 35-3).
Newell, Krycia, and the other Clerk’s office employees were
concerned about coming to work because they felt Fitzgerald was
going to be very upset after he received his assistant’s complaint .
(Id.) Deputy Clerk Irvine had a meeting on May 23, 2012 during
which she told the Clerk’s employees that two people had to be
in the office at all times and no one could walk out of the
5 

building alone or go to lunch. (Dkt. 42, 35-4.) Someone at that
meeting said she wouldn’t be surprised if George would show up
with a gun because he had been so unpredictable that day. (Id.)
As a result, none of Fitzgerald’s employees reported to work on
the Friday after the article in the newspaper appeared. (Dkt. 42,
35-2). A sheriff’s deputy was assigned to the Clerk’s office for
one day. (Dkt. 42, 44). According to Newell, because of the
hostile work environment and the stress that it caused her, she
retired from the Township, effective July 31, 2012. (Dkt. 35-19.)
B.

Plaintiff Krycia

Plaintiff Mary Janine Krycia (“Krycia”) was an Elections Clerk
from 2000, until May 23, 2012, the date she last worked before
taking a leave of absence for medical reasons. (Dkt. 35, 42.)
Krycia’s employment was ultimately terminated on April 9,
2013, by new Township Clerk Meltzer, after Krycia exhausted all
leave time and refused to return to work. (Dkt. 35, 42.)
On May 12, 2011, Fitzgerald also yelled at Krycia about the May
11, 2011 article in the Chronicle. (Dkt. 37-3, Pg. ID 619.)
Fitzgerald told Krycia that Newell was quoted in the paper but, in
fact, Krycia didn’t know what the quotes were at the time. (Id.)
Fitzgerald asked Krycia if she knew about the article and told her
that she should have because she’s friends with Newell. (Dkt.
37-3, Pg. ID 620.) Fitzgerald was very threatening to Krycia and
threw the newspaper at her. (Dkt. 37-3, Pg. ID 619-20.)
Fitzgerald asked Krycia to sign a letter dated May 13, 2011
indicating that she had no knowledge of the newspaper article
regarding the May 3, 2011 school election, that she understood
that all media calls are to be answered by Fitzgerald as the Clerk
of the Township and that she would forward any such calls to
him immediately. (Dkt. 47, Pg. ID 1500.) Krycia’s letter also
states that she likes working for the Election Department in
Clinton Township as part of Fitzgerald’s staff, that she is a team
player and that she will continue to be a dedicated and
conscientious employee of the township. (Id.)
Fitzgerald presented Krycia with the same letter to the Macomb
Daily he prepared for Newell’s signature. Krycia also signed the
6 

letter stating that she had no knowledge of the articles in the
paper, that she had not ever filed complaints with the HR
department and that she did not disclose any information
regarding the Clerk or his office. (Dkt. 53, Pg. ID 1518.)
According to Newell, Krycia was also written up by Deputy
Clerk Irvine for the article that appeared in the Macomb Daily.
(Dkt. 37-2, Pg. ID 509.) Krycia left the Clerk’s office on May
23, 2012 for medical reasons, never returned to work and was
dismissed by Fitzgerald’s successor after a hearing and
subsequent determination that she had abandoned her position.
(Dkt. 35-5, 35-9, 35-11.)
PLAINTIFFS’ RETALIATION CLAIMS
A.

Newell

Newell asserts that she engaged in three discrete acts of protected speech:
(1) objecting to Fitzgerald taking home the Township’s electronic poll books in
May 2010 (the “Poll Book Opposition”), (2) objecting to signing a letter of
recommendation stating that Fitzgerald’s wife was qualified for an elections
coordinator position in Macomb Township (the “Recommendation Letter
Opposition”), and (3) making statements to the Fraser-Clinton Township
newspaper, the Chronicle, regarding Clinton Township’s May 2011 schoolboard
election (the “Press Statements”). (See Pls.’ Response Br., ECF #42 at 21, Pg. ID
1438.)
Newell claims that Defendants retaliated against her for engaging in this
protected speech. She alleges that she was subject to the following three adverse
employment actions: (1) she “had an anxiety attack for which she went to the
7 

hospital after she objected to allowing Fitzgerald to take the poll books home,” (2)
she received a reprimand for making the Press Statements to the Chronicle, and
(3) she received an “Employee Discipline Notice in retaliation for all three
incidents of protected speech concerning public matters identified above.” (Id. at
29, Pg. ID 1446.)
B.

Krycia

Krycia alleges that she engaged in protected conduct when she attempted to
exercise her First Amendment right to refrain from speaking. She claims that she
sought to refrain from speaking on two occasions – (1) when Fitzgerald directed
her to sign a memorandum disavowing Newell’s comments to the Chronicle and
(2) when Fitzgerald directed her to sign a letter denying any knowledge of the
information reported in an article about Fitzgerald that appeared in the Macomb
Daily. Krycia acknowledges that she signed both of these documents, but she
insists that she did so only because Fitzgerald bullied her into doing so.
Krycia alleges that as a result of Fitzgerald’s conduct, she suffered stress,
anxiety, panic attacks, and insomnia. Krycia also claims that she was reprimanded
by a Deputy Clerk for the article that appeared in the Macomb Daily. Krycia
alleges that her mental suffering and the write-up were adverse actions taken
against her for engaging in the allegedly-protected conduct identified above.

8 

THE R&R
A.

Newell’s Claim

The Magistrate Judge recommended that the Court grant summary judgment
to the Defendants on Newell’s retaliation claim on two grounds.

First, the

Magistrate Judge determined that Newell did not engage in any protected conduct.
More specifically, the Magistrate Judge concluded that Newell’s statements at
issue – the Poll Book Opposition, the Recommendation Letter Opposition, and the
Press Statements – were not protected under the First Amendment because Newell
made the statements “pursuant to her official duties as Election Coordinator.”
(R&R, ECF #72 at 16-18, Pg. ID 1791-93.)

Second, the Magistrate Judge

determined that Newell was not subject to any adverse action because “she was not
discharged, demoted or suspended and she did not lose responsibilities, pay, or
benefits.” (Id. at 21, Pg. ID 1796.)
B.

Krycia’s Claim

The Magistrate Judge recommended that the Court grant Defendants
summary judgment on Krycia’s retaliation claim because she did not engage in
protected conduct and was not subject to any adverse action. Specifically, the
Magistrate Judge concluded that:
Although Krycia is correct that the First Amendment
protects the ability to refrain from speech, Langford v.
Lane, 921 F.2d 677 (6th Cir. 1991), Krycia did not
refrain from speech; she acquiesced in her supervisor’s
9 

direct orders to prepare and/or sign both the memo
disavowing involvement in Newell’s comments to the
Chronicle, and the letter denying any knowledge of the
information relayed in the Macomb Daily articles.
***
Similarly, Krycia has not presented evidence of any
adverse action by her employer. Krycia was never
disciplined, suspended or demoted and her duties, pay,
and benefits were never reduced.
(Id. at 19, 23, Pg. ID 1794, 1798.)
PLAINTIFFS’ OBJECTIONS
Plaintiffs have made the following objections to the R&R:
1. Newell objects that the Magistrate Judge “disregarded the applicable
legal standard for determining whether [her] statements were protected
under the First Amendment because she made them as a ‘citizen’ about
matters of public concern that she became aware of while employed as
Defendant Township’s Elections Coordinator.” (Objections, ECF #73 at
3, Pg. ID 1804.) Newell insists that the Magistrate Judge should have
determined that her three statements were protected because her “speech
on [the] issues [addressed in the statements] was not ordinarily within her
job duties.” (Id. at 7, Pg. ID 7.)
2. Krycia objects that the Magistrate Judge “disregarded the applicable legal
standard used to determine whether Krycia’s First Amendment right to
refrain from signing letters regarding lack of knowledge of Newell’s
10 

comments to the Chronicle and the accounts of Fitzgerald’s bullying that
was the subject of Macomb Daily articles was protected speech she made
as a ‘citizen’ concerning matters of public concern.” (Id. at 9, Pg. ID
1810.) Krycia argues that the Magistrate Judge “failed to consider that
Fitzgerald’s threats and bullying overrode Krycia’s attempts to exercise
her First Amendment right to refrain from ‘acquiescing’ to his direct
orders to sign these letters.” (Id. at 9-10, Pg. ID 1810-11.)
3. Both Plaintiffs object that the Magistrate Judge “disregarded the correct
legal standard used to determine whether Plaintiffs suffered adverse
employment actions as a result of their protected speech.” (Id. at 12, Pg.
ID 1813.) Plaintiffs contend that the Magistrate Judge failed to view the
adverse action evidence in the light most favorable to them and “failed to
analyze whether a reasonable individual would have been dissuaded from
engaging in protected activity . . . as required under Benison v. Ross, 765
F.3d 649 ([6th Cir.] 2014).” (Id. at 13, Pg. ID 1814.)
GOVERNING LEGAL STANDARD
This Court reviews de novo the portions of the R&R to which the parties
have objected. See Fed. R. Civ. P. 72(b)(3).
A movant is entitled to summary judgment when it “shows that there is no
genuine display as to any material fact . . . .” SEC v. Sierra Brokerage Servs., Inc.,
11 

712 F.3d 321, 326-27 (6th Cir. 2013) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251-52 (1986)) (quotations omitted). When reviewing the record, “the
court must view the evidence in the light most favorable to the non-moving party
and draw all reasonable inferences in its favor.” Id. “The mere existence of a
scintilla of evidence in support of the [non-moving party’s] position will be
insufficient; there must be evidence on which the jury could reasonably find for
[that party].” Anderson, 477 U.S. at 252. Summary judgment is not appropriate
when “the evidence presents a sufficient disagreement to require submission to a
jury.” Id. at 251-52. Indeed, “[c]redibility determinations, the weighing of the
evidence and the drafting of legitimate inferences from the facts are jury functions,
not those of a judge . . . .” Id. at 255.
FIRST AMENDMENT FRAMEWORK
To prevail on a First Amendment retaliation claim, a public employee must
establish three elements. First, the employee must show that he or she engaged in
constitutionally protected speech or conduct.

See Benison, 765 F.3d at 658

(quoting Dye v. Office of the Racing Comm’n, 702 F.3d 286, 294-95 (6th Cir.
2012)). A public employee’s speech qualifies for First Amendment protection
only if, among other things, the employee speaks “as a citizen” on “matters of
public concern.” Weisbarth v. Geauga Park Dist., 499 F.3d 538, 542-44 (6th Cir.

12 

2007). More specifically, a public employee’s speech or conduct must satisfy all
of the following requirements in order to qualify for protection:
[1] The “matters of public concern” requirement. The
First Amendment protects the speech of employees only
when it involves “matters of public concern.” Connick v.
Myers, 461 U.S. 138, 143 (1983). In Connick . . . the
Court explained that not all employee speech is
protected, only speech that “fairly [may be] considered as
relating to” issues “of political, social, or other concern to
the community.” Id. at 146. . . . When, by contrast, an
employee's speech does not relate to a matter of public
concern, public officials enjoy “wide latitude” in
responding to it without “intrusive oversight by the
judiciary in the name of the First Amendment.” Id.
[2] The “balancing” requirement. If the employee
establishes that her speech touches “matters of public
concern,” a balancing test determines whether the
employee or the employer wins. See Pickering [v. Board
of Education], 391 U.S. [563,] 568 [(1968)]. . . . In
resolving the claim, the Court “balance[d] . . . the
interests of the teacher, as a citizen, in commenting on
matters of public concern” against “the interest of the
State, as an employer, in promoting the efficiency of the
public services it performs through its employees.” [Id.]
*****
[3] The “pursuant to” requirement. In the last case in
the trilogy, a prosecutor reviewed a private complaint
that a police officer's affidavit used to obtain a search
warrant contained several misrepresentations. Garcetti [v.
Ceballos ], 547 U.S. [410,] 413–14 [(2006)]. . . . In
rejecting [the public employee's] free-speech claim, the
Court did not deny that the prosecutor's speech related to
a matter of “public concern” under Connick, and it did
not
take
on
the
lower
court's
reasoning
that Pickering balancing favored the employee. It instead
concluded that the First Amendment did not apply. “The
controlling factor,” the Court reasoned, “is that his
13 

expressions were made pursuant to his duties as a
calendar deputy,” making the relevant speaker the
government entity, not the individual. Id. at 421 . . . .
“We hold that when public employees make statements
pursuant to their official duties, the employees are not
speaking as citizens for First Amendment purposes, and
the Constitution does not insulate their communications
from employer discipline.” Id.
*****
A First Amendment claimant must satisfy each of these
requirements: the Connick “matter of public concern”
requirement, the Pickering “balancing” requirement and
the Garcetti “pursuant to” requirement.
Evans–Marshall v. Bd of Educ. of Tipp Exempted Vill. Sch. Dist., 624 F.3d 332,
337-38 (6th Cir. 2010).
Second, the public employee must show that her employer took an adverse
action against her “that would deter a person of ordinary firmness from continuing
to engage in that lawful conduct.” Benison, 765 F.3d at 658. This adverse action
test “is ‘distinct’ from the adverse-action standard used in traditional employment
discrimination claims,” and thus a federal court must “tailor [its] analysis under the
adverse action prong to the circumstances of [the] specific retaliation claim.” Id. at
659.
Third (and finally), a public employee must demonstrate a causal connection
between the constitutionally protected speech or conduct and the employer’s
adverse action – “that is, the adverse action was motivated at least in part by [the]
protected conduct.”

Id.

To show causation, “the employee must point to
14 

“‘specific, nonconclusory allegations’ reasonably linking her speech to employer
discipline.” Bailey v. Floyd Cty. Bd. of Educ. By & Through Towler, 106 F.3d 135,
144-45 (6th Cir. 1997) (quoting Wright v. Illinois Dep't of Children & Family
Servs., 40 F.3d 1492, 1500 (7th Cir.1994)). An employee may not establish
causation by pointing to “the mere fact that an adverse employment action
followed speech that the employer would have liked to prevent.” Id.
ANALYSIS
A.

The Magistrate Judge Correctly Concluded That the Defendants Were
Entitled to Summary Judgment on Newell’s Retaliation Claim
As noted above, Newell’s claim is based upon alleged retaliation for three

statements: the Poll Book Opposition, the Recommendation Letter Opposition, and
the Press Statements. The Magistrate Judge Correctly concluded that Newell’s
claims with respect to these statements fail as a matter of law. The Court therefore
overrules Newell’s objections to the R&R.
1.

The Poll Book Opposition

Newell’s claim based on the Poll Book Opposition fails because Newell
made the objection pursuant to her employment duties, not as a public citizen. Her
own Complaint in this action makes that clear. Newell alleges:
13.

As an Elections Coordinator, Newell was generally
responsible for coordinating and directing the
personnel of the Township’s Elections Division to
carry out the statutory voter registration and
election responsibilities of the Township Clerk, as
15 

well as ensuring that all election activities were
handled in accordance with established
procedures, rules, regulations, and laws.
17.

*****
Newell advised Fitzgerald that it was against State
law to take the laptops home and that they must be
locked in a vault to avoid tampering prior to
pickup for the election.

(Compl., ECF #1 at Pg. ID 3; emphasis added.) Likewise, when Newell
opposed the Defendants’ Motions, she stressed that she was upholding her oath of
office when she engaged in the Poll Book Opposition.1 Simply put, Newell’s job
required her to enforce and apply state elections law, and that is precisely what she
did when she raised the Poll Book Opposition. Notably, Newell has not cited any
evidence that the Poll Book Opposition fell outside of her normal duties as
Elections Coordinator.
On this record, the Magistrate Judge correctly concluded that Newell raised
the Poll Book Opposition pursuant to her official duties; that she was thus not

1

In her opposition to the Motions, Newell highlighted her own deposition
testimony that she was carrying out her oath of office when she made the
objection: “Newell explained that this information [in the poll books] is private
information and that election employees take an oath before each election not to
give this information to anyone.” (Pls.’ Response Br., ECF #42 at 6, Pg. ID 1423;
see also Newell Dep., ECF #35-3 at 93, Pg. ID 264 (acknowledging that she made
the objection pursuant to her oath).) Newell said that her oath required her to resist
Fitzgerald’s effort to remove the poll books from the Clerks’ Office because
removing them would risk exposing the private information in the books to
Fitzgerald’s wife, who was not a Clerk’s Office employee. (See Pls.’ Response
Br., ECF #42 at 7, Pg. ID 1424.) 
16 

speaking “as a citizen” when she engaged in the Poll Book Opposition; and that the
Poll Book Opposition may not be the basis of a First Amendment retaliation claim.
See Weisbarth, 499 F.3d at 546 (affirming dismissal of First Amendment
retaliation claim where plaintiff spoke pursuant to job duties rather than “as a
citizen.”).
2.

The Press Statements

Newell’s claim based upon the Press Statements fails because she did not
intend to make the statements “as a citizen.” Weisbarth, 499 F.3d at 542-44. Her
own testimony confirms the point. Newell testified that she spoke to the reporter
from the Chronicle because the Clerk and Deputy Clerk would not do so. (See
Newell Dep., ECF #35-3 at 123-26, Pg. ID 271-72.) Newell explained that she
believed an office “protocol” called for her to respond to press inquiries under
these circumstances. Under that protocol (as understood by Newell), “if the Clerk
or Deputy Clerk did not speak with the press, the Election Coordinator did.” (Id. at
126, Pg. ID 272.) Thus, at the time Newell spoke to the Chronicle, she believed
that she was executing the office “protocol” with respect to press inquiries. That is
far different from intending to speak as a private citizen. Because Newell believed
that she was executing her job responsibilities when she made the Press

17 

Statements, her speech cannot be regarded as the speech of a “citizen” that is
subject to First Amendment protection.2
Newell’s claim based on the Press Statements fails for one additional reason:
she cannot satisfy the Pickering balancing test.

See Fitzpatrick v. City of

Frankfort, 305 Fed. App’x 258, 263-64 (6th Cir. 2008) (affirming dismissal of
First Amendment retaliation claim against public employer because employer’s
interest in prohibiting speech outweighed employee’s interest in speaking). The
Defendants’ interest in preventing Newell from making those statements
outweighed any personal interest she may have had in making them.
When conducting the Pickering balancing test, the Court considers whether
“an employee’s comments meaningfully interfere with the performance of her
duties, undermine a legitimate goal or mission of the employer, create disharmony
among co-workers, impair discipline by superiors, or destroy the relationship of
loyalty and trust required of confidential employees.” Williams v. Kentucky, 24

2

The Defendants insist that the “protocol” had been replaced with a policy
prohibiting employees like Newell from answering press inquiries and that the new
policy had been communicated to all employees. (See Fitzgerald Dep., ECF #37-6
at 17-18, Pg. ID 671.) Newell says that that prohibition had not been
communicated to her by the time she spoke with the Chronicle and that she
believed that the prior “protocol” (described above) was in place. (See Newell
Dep., ECF #35-3 at 122-23, Pg. ID 271.) But the dispute over whether the new
policy had been communicated to Newell (or whether it was even in place) does
not preclude summary judgment in favor of Defendants. The key fact with respect
to summary judgment is that Newell believed she was executing the “protocol”
when she spoke to the Chronicle. That belief is inconsistent with any claim that
Newell intended to speak as a private citizen.
18 

F.3d 1526, 1536 (6th Cir. 1994) (emphasis added). Here, the Clerk’s Office had a
legitimate goal of “speaking in a single, consistent voice.” Rock v. Levinski, 791
F.3d 1215, 1222 (10th Cir. 2015) (recognizing that a public body has a valid
interest in controlling the dissemination of its own message). To achieve that goal,
Fitzgerald implemented a policy designating himself as the sole person in the
office who was authorized to speak with the press. (Fitzgerald Dep., ECF #37-6 at
11-18, Pg. ID 669-72.)3 Fitzgerald explained that as the person at the top of the
“chain of command,” he was in the position to give the “best answer” on behalf of
the Clerk’s Office, and by having public communications go exclusively through
him, he could assure that information was not prematurely revealed to the press
and public. (Id. at 11-15, Pg. ID 669-70.) Newell agreed that the Clerk’s Office
had a legitimate interest in communicating its message to the public through a
single voice. (Newell Dep., ECF #35-3 at 127, Pg. ID 272.) The Press Statements
by Newell – made in response to a media inquiry to the Clerk’s Office during
normal business hours seeking a comment from the Office – undermined the
Defendants’ legitimate interest in ensuring that the official message of the Clerk’s

3

As noted above, in footnote two, Newell says that she was not aware of this new
policy and that she believed that the office was operating under the prior
“protocol” – the one that authorized her to speak to the press in the absence of her
superiors. But Newell’s claimed lack of knowledge does not in any way
undermine the Clerk’s Office’s legitimate interest in having Fitzgerald serve as its
sole spokesperson.
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Office was disseminated through a single source.4 (Fitzgerald Dep., ECF #37-6 at
11-18, Pg. ID 669-72.)
On the other side of the ledger, Newell has implicitly acknowledged that she
had no personal interest in making the Press Statements. In fact, she asked the
reporter not to print her statements because she had not cleared her statements with
Fitzgerald. (See Newell Dep., ECF #35-3 at 124, Pg. ID 271.) Under these
circumstances, the Defendants’ legitimate interest in prohibiting those statements
(and taking action against Newell for making them) outweighs any First
Amendment interest that Newell may have had in making the statements. Newell’s
First Amendment retaliation claim based on the Press Statements fails for this
additional reason.
3.

The Recommendation Letter Opposition

The Magistrate Judge concluded that the Recommendation Letter
Opposition was “an articulation of Newell’s disagreement with her boss’ directive,

4

At the hearing before the Court, Plaintiffs’ counsel highlighted that Fitzgerald did
not take issue with the content of Newell’s statements to the press. (See Fitzgerald
Dep., ECF #37-6 at 13, 17 Pg. ID 670, 671.) Counsel argued that because
Fitzgerald did not identify an objection to the content of the statements, Defendants
should not be heard to argue that the statements materially interfered with the
operations or mission of the Clerk’s Office. The Court disagrees. The relevant
interest of the Clerk’s Office is having a single speaker deliver its message, and a
statement by an unauthorized speaker undermines that legitimate interest even if
the content express by the unauthorized speaker happens to be consistent with what
the authorized speaker would have said.
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and thus owe[s its] existence to her professional responsibilities.” (R&R, ECF #72
at 16, Pg. ID 1791.) Based on his conclusion that the Recommendation Letter
Opposition grew out of Newell’s job duties, he concluded that it did not amount to
protected speech. (Id.)
Newell argues in her Objections that the Magistrate Judge’s conclusion
cannot be reconciled with the Sixth Circuit’s decision in Rodgers v. Banks, 344
F.3d 587 (6th Cir. 2003). In Rodgers, the Sixth Circuit reversed the dismissal of a
First Amendment retaliation claim brought by a hospital’s Director of Quality
Management. The plaintiff claimed that she had been discharged for complaining
to a superior that patient privacy was being sacrificed by a certain practice. The
Sixth Circuit held that the plaintiff’s complaint about the privacy issues did amount
to protected speech because it addressed a matter of public concern. The Sixth
Circuit specifically rejected the defendants’ argument that the complaints were not
protected speech because the plaintiff made them during the course of performing
her duties. Newell says that Rodgers required the Magistrate Judge to “consider[]
the point or focus of the speech in question and whether it related to any matter of
political, social, or other concern to the community.” (Objections, ECF #73 at 8,
Pg. ID 1809.)

Newell insists that the Recommendation Letter Opposition

constitutes protected speech under Rodgers because it related to matters of public

21 

concern – namely, whether Fitzgerald’s wife was qualified for an Elections
Coordinator position in another municipality. (Id.)
Newell’s reliance on Rodgers is misplaced. “Several recent Sixth Circuit
cases” – including Weisbarth, supra, and Fox v. Traverse City Area Bd. of Public
Schools, 605 F.3d 345 (6th Cir. 2010) – “suggest that the Rodgers rationale would
not survive [the Supreme Court’s more recent decision in] Garcetti.” Hilden v.
Hurley Med. Ctr., 831 F. Supp. 2d 1024, 1038 (E.D. Mich. 2011), aff'd, 504 Fed.
App'x 408 (6th Cir. 2012). More specifically, Rodgers’ holding that the plaintiff’s
complaints were protected speech even though she lodged those complaints
pursuant to her duties as Director of Quality Management is not consistent with
Garcetti.

Given the questionable vitality of Rodgers, it does not compel the

conclusion that the Recommendation Letter Opposition was protected speech.
The Court agrees with the Magistrate Judge that Newell did not make the
Recommendation Letter Opposition as a citizen and that the objection thus does
not constitute protected speech.

When Fitzgerald asked Newell to sign the

recommendation letter, he was asking Newell to take action in her official capacity
as Elections Coordinator – to affix her name to a letter on official office letterhead.
(See Newell Dep., ECF #35-3 at 135, Pg. ID 274.) Newell did not believe that it
was appropriate, in her capacity as Elections Coordinator, to provide an official
reference for an unqualified candidate and she initially (and temporarily) objected
22 

to signing the letter (before later changing her mind). Newell’s initial refusal to
sign the letter was thus a professional disagreement with her superior about the
proper performance and scope of her official duties as Elections Coordinator.
Under these circumstances, Newell was speaking as a public employee, not as a
private citizen, when she declined to sign the letter. Thus, Newell’s claim based
upon the Recommendation Letter Opposition cannot succeed.
The claim based upon the Recommendation Letter Opposition also fails
because Newell has failed to satisfy the causation element of her prima facie case.
She has not presented sufficient evidence that either of the Defendants took any
adverse action against her because (for a short period of time) she refused to sign
the letter. Newell identifies only one adverse action that occurred after the she
raised her concerns about the letter: she received an Employee Discipline Notice
on August 17, 2011 (the “EDN”). (See Objections, ECF #73 at 13-14, Pg. ID
1814-15.) But the only link between the Recommendation Letter Opposition and
the EDN is temporal proximity. That is, Newell has shown only that the EDN was
issued five weeks after she expressed her discomfort with signing the letter.
Newell has not identified any evidence that either of the Defendants considered (or
even mentioned) her initial refusal to sign the letter during the proceedings leading
up to and/or in connection with the EDN. Under these circumstances, Newell’s
evidence of temporal proximity, standing alone, is insufficient to make out a prima
23 

facie case of causation. See Smith v. Campbell, 250 F.3d 1032, 1038 (6th Cir.
2001) (affirming summary judgment on First Amendment retaliation claim where
plaintiff’s sole evidence of causation was temporal proximity).
Moreover, Newell’s theory that the Defendants issued the EDN in response
to the Recommendation Letter Opposition is somewhat counterintuitive. Newell
voiced her concerns about the letter only briefly, and then she gave Fitzgerald
exactly what he was asking for: she signed the letter recommending his wife. On
this record, it is too much of a stretch to conclude that after Fitzgerald got exactly
what he was looking for (i.e., Newell’s signature on the letter), Fitzgerald (or the
Township) then retaliated against Newell because she briefly voiced an objection
to signing the letter.
For all of these reasons, the Court concludes that the Magistrate Judge
properly recommended that the Court enter summary judgment against Newell on
her claim arising out of the Recommendation Letter Opposition.

Newell’s

Objections to the R&R are therefore overruled.
B.

The Magistrate Judge Correctly Concluded That the Defendants Are
Entitled to Summary Judgment on Krycia’s Retaliation Claim
The Magistrate Judge concluded that Krycia cannot prevail on her retaliation

claim because (1) she did not engage in protected conduct and (2) she failed to
show that the Defendants took any adverse action against her based upon her
allegedly-protected conduct. As described above, Krycia has objected to both
24 

conclusions. The Court agrees with the Magistrate Judge that Krycia has failed to
establish the causation element of her claim and that the Defendants are thus
entitled to summary judgment. The Court does not reach the question the question
of whether Krycia engaged in protected conduct.
In the context of a First Amendment retaliation claim, causation requires that
“the defendant must have known about the protected activity in order for it to have
motivated the adverse action.” Thaddeus-X v. Blatter, 175 F.3d 378, 386-87 n.3
(6th Cir. 1999).

When the Court held a hearing on her Objections, Krycia

acknowledged that she had to satisfy this requirement.

But Krycia has not

presented any evidence that either of the Defendants knew about her allegedlyprotected conduct. The protected conduct that Krycia identifies in this case is the
right to refrain from speaking. (See Objections, ECF #73 at 9-10, Pg. ID 1810-11.)
Krycia says that she attempted to exercise this right when Fitzgerald asked her to
sign a memo dated May 13, 2011, and a letter that appeared in the Macomb Daily
in November 2011. (Id. at 10-11, Pg. ID 1811-12.) She insists that Fitzgerald
bullied her in to signing both documents despite her desire not to sign.
The problem for Krycia is that she never expressed to Fitzgerald or anyone
else that she did not want to sign the documents. Instead, she kept that thought
entirely to herself (and Krycia did not exercise the right to refuse from speaking by
actually refusing to sign the documents). Thus, neither Fitzgerald nor any
25 

representative of the Township knew (or could have known) that Krycia had any
intent to engage in the protected conduct of refraining from speaking. Without
such knowledge, they could not have retaliated against her for attempting to
exercise that right.

Accordingly, because Krycia cannot satisfy the causation

element of her prima facie case, the Court overrules her Objections and adopts the
Magistrate Judge’s recommendation that her claim should be dismissed for that
reason.
CONCLUSION
For the reasons stated in this Opinion and Order, IT IS HEREBY
ORDERED that the Court:
 OVERRULES Plaintiffs’ Objections (ECF #73);
 ADOPTS those portions of the R&R cited with approval above (ECF #72);
 GRANTS Defendants’ Motions for Summary Judgment (ECF ## 35, 37).
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: February 26, 2016

26 

I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on February 26, 2016, by electronic means and/or
ordinary mail.

s/Holly A. Monda
Case Manager
[phone]

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