Greiner v. Charter County of Macomb, Michigan et al

Filing 117

ORDER (1) Granting AFSCME's 90 Motion for Summary Judgment; (2) Denying Without Prejudice AFSCME's Request for Sanctions; (3) Granting in Part and Denying in Part Without Prejudice Macomb County's 89 Motion for Summary Judgment; and (4) Denying Plaintiff's 115 Motion for Reconsideration Regarding Audio Tapes. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOHN GREINER,
Plaintiff,

Case No. 14-cv-13979
Hon. Matthew F. Leitman

v.
CHARTER COUNTY OF
MACOMB, MICHIGAN, a/k/a
MACOMB COUNTY, et al.,
Defendants.
_________________________________/
ORDER (1) GRANTING AFSCME’S MOTION FOR SUMMARY
JUDGMENT (ECF #90); (2) DENYING WITHOUT PREJUDICE
AFSCME’S REQUEST FOR SANCTIONS; (3) GRANTING IN PART AND
DENYING IN PART WITHOUT PREJUDICE MACOMB COUNTY’S
MOTION FOR SUMMARY JUDGMENT (ECF #89);
AND (4) DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION
REGARDING AUDIO TAPES (ECF #115)
During Plaintiff John Greiner’s tenure as an employee of Defendant Charter
County of Macomb (the “County”), he had an unsatisfactory safety and behavior
record.

He caused and/or was involved in several vehicle accidents, was

insubordinate with his superiors, and had conflicts with co-workers. Greiner and the
County ultimately entered into a Last Chance Agreement that provided for
termination of his employment upon any additional act of negligence or
insubordination, and the County later fired him for additional misconduct. His union

1

had the right to seek arbitration based upon his termination, but it declined to do so
on the ground that his termination was justified.
Greiner then filed this action (and others, both civil and administrative)
challenging his termination. He retained three separate attorneys to represent him,
and all three were forced to withdraw as counsel due to breakdowns in the attorneyclient relationship – fissures that were caused by, among other things, Greiner’s
refusal to follow their advice and his repeated accusations that they were lying and
committing misconduct. Perhaps unsurprisingly, Greiner has been unable to find a
fourth lawyer to represent him, and he is now proceeding pro se.
The Defendants have moved for summary judgment, and Greiner has
responded. Greiner’s responses are deficient in many respects. They are difficult to
follow; they ignore several of the Defendants’ key arguments and rely upon
inadmissible evidence; and they fail to demonstrate that there is a material factual
dispute with respect to any of Greiner’s claims against Defendant Michigan Council
25 American Federation of State, County, and Municipal Employees, AFL-CIO
(“AFSCME” or the “Union”) and the vast majority of Greiner’s claims against the
County. Thus, for the reasons explained below, the Court GRANTS in full the
motion for summary judgment filed by the Union and GRANTS IN PART AND
DENIES IN PART WITHOUT PREJUDICE the County’s motion for summary

2

judgment.1

The Court also DENIES WITHOUT PREJUDICE the Union’s

request for sanctions and DENIES Greiner’s motion for reconsideration regarding
audio tapes (ECF #115).
I
A
On or around November 13, 2000, the County hired Greiner to work for the
Macomb County Road Commission (the “MCRC”). (See Greiner Dep. at 37, ECF
#89-2 at Pg. ID 1010.) The County fired Greiner on November 7, 2012. (See id. at
148, ECF #89-2 at Pg. ID 1037; see also Termination Letter, ECF #89-26.) While
employed by the County, Greiner was a member of the Union. (See Greiner Dep. at
58, ECF #89-2 at Pg. ID 1015.)
B
During Greiner’s tenure with the MCRC, he received a number of reprimands
and suspensions for his careless and unsafe operation of county vehicles. For
example, in January 2003, the MCRC revoked Greiner’s driving privileges after he
backed his truck into another truck. (See Greiner Dep. at 39-40, ECF #89-2 at Pg.
ID 1010.) In a written explanation of the revocation, MCRC’s personnel director
wrote that Greiner “does not work in a safe manner” and that Greiner’s co-workers

1

The Court has determined that it is appropriate to decide Defendants’ motions for
summary judgment without oral argument. See Fed. R. Civ. P. 78(b); E.D. Mich.
L.R. 7.1(f)(2).
3

“are reluctant to work with him because they fear for their safety.” (Revocation
Letter, ECF #89-5.) Greiner completed a defensive driving course in May 2005, and
the MCRC then agreed to reinstate his driving privileges “on an as needed basis.”
(Greiner Dep. at 44, ECF #89-2 at Pg. ID 1011.)
In October 2005, MCRC promoted Greiner to the position of highway
maintenance leader. (See id. at 45, ECF #89-2 at Pg. ID 1012.) Then, in May 2007,
the MCRC awarded Greiner the position of heavy truck driver. (See id. at 46-47,
ECF #89-2 at Pg. ID 1012.) In its memorandum formally offering Greiner that
position, the MCRC wrote that “due to [Greiner’s] past history, the road commission
reserves the right to review [his] performance at any time and take remedial action
deemed necessary.” (Id.)
In December 2007, the MCRC cited Greiner for causing significant damage
to a county truck by backing up onto an arrow-board. (See id. at 48, ECF #89-2 at
Pg. ID 1012.) Less than two weeks later, Greiner received a warning for driving
with the dump box of his vehicle too high and pulling down a cable wire. (See id. at
49, ECF #89-2 at Pg. ID 1013.) In April 2009, Greiner received another warning for
pulling into a service garage with his dump box in the upright position, striking an
aluminum siding overhang, and pulling a large piece off the building. (See id. at 4950, ECF #89-2 at Pg. ID 1013.)

4

The damage caused by Greiner’s carelessness behind the wheel reached its
peak on December 8, 2009. That day, Greiner drove a MCRC truck through a red
light and hit the driver’s side of a vehicle driven by Fred Vaden. (See Greiner Dep.
at 51, ECF #89-2 at Pg. ID 1013; Sheriff’s Report, ECF #90-4 at Pg. ID 1496-97.)
The accident caused “heavy damage” to Vaden’s vehicle. (Sheriff’s Report, ECF
#90-4 at Pg. ID 1496-97.) Vaden suffered a fractured left leg and “need[ed] to be
extracted from the vehicle.” (Id.)
Greiner received a ticket for “disobey[ing] a traffic control device.”
(Certification of Court Disposition, ECF #90-4.) Greiner was ultimately held
responsible for a reduced traffic infraction of “speeding 1-5” miles per hour over the
speed limit. (Id.) Vaden later sued the County and Greiner. (See Greiner Dep. at 53,
ECF #89-2 at Pg. ID 1014.) The County settled the suit by paying Vaden $380,000
in exchange for full release of Greiner and the County of any further liability. (See
id.)
C
Immediately following the December 8, 2009, accident, MCRC placed
Greiner on paid administrative leave while the County investigated his role in the
accident. (See id. at 54, ECF #89-2 at Pg. ID 1014.) Greiner returned from
administrative leave on February 3, 2010. (See id. at 57, ECF #89-2 at Pg. ID 1015.)
That day, Greiner and his union representative signed two memoranda of

5

understanding (the “First and Second MOUs”) and a Last Chance Agreement (the
“LCA”). (See id. at 57-58, ECF #89-2 at Pg. ID 1015.)
In the First MOU, Greiner agreed to serve “a 20 day unpaid disciplinary layoff” and then return to work as a highway maintenance person in MCRC’s Sign
Department. (First MOU, ECF #90-6.) Greiner also agreed that “for the balance of
his employment” he would “not . . . operate a[n] [MCRC] vehicle or equipment of
any type.” (Id.)
In the LCA, Greiner agreed that “[a]ny further acts of negligence,
insubordination, or unsafe activity on [his] part shall be cause for his immediate
discharge form [sic] employment with the [MCRC].” (LCA, ECF #90-7.)
In the Second MOU, Greiner agreed that he could only file a grievance
challenging the terms of the First MOU and LCA if he was “found not guilty of all
charges related to [the December 8, 2009,] vehicle accident.” (Second MOU, ECF
#90-5.)
In March 2010, Greiner completed his 20-day suspension and was assigned to
work as a highway maintenance person in MCRC’s Sign Department, as required by
the First MOU. (See Greiner Dep. at 78-80, ECF #89-2 at Pg. ID 1020; see also
Second Am. Compl. at ¶64, ECF #46 at Pg. ID 413.)

6

D
While Greiner worked as a highway maintenance person in the Sign
Department, he repeatedly informed the MCRC that he needed work restrictions
because of his health problems.
On March 23, 2010, Greiner presented his supervisor with a document from
his (Greiner’s) personal physician, Dr. Keith McKenzie, stating that Greiner was
unable to lift more than twenty pounds. (See id. at 80, ECF #89-2 at Pg. ID 1020.)
Because there was no light duty work (i.e. work that required lifting no more than
twenty pounds) available within the Sign Department, Greiner went home and did
not work. (See id. at 78-80, ECF #89-2 at Pg. ID 1020.) In lieu of working, Greiner
received workers’ compensation. (See id.)
Greiner presented the MCRC with additional notes from Dr. McKenzie that
put him off work from April 22, 2010 through June 3, 2010, due to his health
problems. (See McKenzie Notes, ECF ## 90-15, 90-16, 90-17.) In one of the notes,
Dr. McKenzie also specified that Greiner continued to need work restrictions,
including not lifting more than twenty pounds, no stooping, crawling, or climbing,
and no standing or walking for longer than four hours. (See McKenzie Note for May
21, 2010, ECF #90-17.)
On June 1, 2010, Greiner attended an independent medical examination with
Dr. Maynard Buszek.

Dr. Buszek cleared Greiner to return to work without

7

restrictions. (See First Buszek Report, ECF #90-18 at Pg. ID 1559-60.) But rather
than return to work, Greiner used personal sick and vacation time to delay his return.
(See Greiner Dep. at 81, ECF #89-2 at Pg. ID 1021.)
While on sick/vacation leave, Greiner secured another note from Dr.
McKenzie that stated that Greiner could not lift more than twenty pounds, stoop,
climb, crawl, or stand or walk for more than four hours. (See McKenzie Note for
June 21, 2010, ECF #90-19.) According to Greiner, these restrictions “remained in
effect throughout the remainder of [his] employment” with the MCRC. (See Greiner
Dep. at 81, ECF #89-2 at Pg. ID 1021; emphasis added.)
Greiner returned to the Sign Department on July 23, 2010. (See id.) In
November 2010, Greiner saw Dr. Buszek for a second independent medical
examination. (See Second Buszek Report, ECF #90-21.) Dr. Buszek concluded
again that Greiner could work without any limitations or restrictions. (See id. at Pg.
ID 1567.) But Greiner continued to submit notes from his personal physicians
stating that he could not lift more than twenty pounds, stoop, climb, crawl, or stand
or walk more than three or four hours. (See Greiner Dep. at 88, ECF #89-2 at Pg. ID
1022.)
E
As a highway maintenance person, Greiner’s job duties were to perform
manual labor, patch holes, flag traffic, sweep, dig, cut trees, install road signs and

8

guardrails, operate power tools, and perform related duties as assigned. (See Job
Description, ECF #89-17.) In addition, Greiner was expected to lift at least fifty
pounds. (See Job Expectations, ECF #89-18.)
Throughout Greiner’s two and one-half years as a highway maintenance
person in the Sign Department, the MCRC repeatedly reprimanded or disciplined
Greiner for refusing to do work that fell within his job duties and/or for completing
that work in an unsafe manner. Examples of the MCRC reprimanding Greiner for
insubordination or carelessness in completing his duties include:
 On April 28 and 29, 2011, Greiner received verbal and
written warnings for misusing sick time to avoid direct
orders to fill sand bags. (See Greiner Dep. at 113-14, ECF
#89-2 at Pg. ID 1029; see also Disciplinary Action Forms,
ECF ## 90-28, 90-29.)
 On May 5, 2011, Greiner received a one-day suspension
for failing to follow directions from his crew leader in
preparation for their daily sign route. (See Greiner Dep. at
114-15, ECF #89-2 at Pg. ID 1029; see also Disciplinary
Action Form, ECF #90-30.)
 On May 12, 2011, Greiner received another one-day
suspension for injuring himself while operating a
chainsaw with one hand and then failing to report the
injury to his supervisors. (See Greiner Dep. at 116-118,
ECF #89-2 at Pg. ID 1029-30; see also Disciplinary
Action Forms, ECF ## 90-31, 90-32.)
 On June 20, 2012, Greiner was suspended after he refused
his supervisor’s request to put a jug of water into a
dispenser. (See Greiner Dep. at 137, ECF #89-2 at Pg. ID
1035; Disciplinary Action Form, ECF #90-34.)

9

F
From July 2012 to October 2012, the County instituted three disciplinary
proceedings against Greiner in connection with his continued insubordination and
failure to perform his job duties. With each successive proceeding, the County
disciplined Greiner with increased severity, culminating with the termination of his
employment.
The County commenced the first disciplinary proceedings by sending Greiner
a letter dated July 2, 2012, in which it informed Greiner that:
[It] ha[d] conducted a review regarding allegations of [his]
failure to perform job duties and insubordination as
follows:
 On June 7, 2012, [he] refused to assist in loading
guard rail onto the trailer.
 On or about June 11, 2012, [he] refused to assist
in loading rail onto the trailer.
 On or about June 13, 2012, [he] failed to work in
a safe manner when [he] walked into traffic to
carry posts from the front of the truck to the bed
of the truck.
 On or about June 20, 2012, [he] refused to
replace the cooler water jug.
Based on the information gathered, the County [was]
considering disciplinary action up to and including
discharge.

10

(See 7/2/12 Letter, ECF #90-35.) The letter also notified Greiner that the County
had scheduled a Loudermill hearing (the “First Loudermill Hearing”) to “allow [him]
to respond” to the allegations, and that he was “entitled to bring a representative of
[his] choosing to this hearing.” (Id.)2
At the First Loudermill Hearing, Greiner described his physical restrictions
and responded to the allegations. (See Greiner Dep. at 138-139, ECF #89-2 at Pg. ID
1035.) A union representative also spoke on Greiner’s behalf. (See id. at 189-190,
ECF #89-2 at Pg. ID 1066.) After the First Loudermill Hearing, the County
concluded that Greiner had been “insubordinate and [had] failed to perform [his] job
duties.” (7/16/12 Suspension Letter, ECF #90-36.)

Rather than terminating

Greiner’s employment, however, the County suspended him for three days. (See id.)
On July 30, 2012, Greiner’s co-workers and supervisor reported that he had
been “deliberately inefficient and incompetent in his duties installing signs. He
would not lift a four foot stub and when he did he was exceptionally slow.” (Martin
Balinski Decl., ECF #89-19 at Pg. ID 1204; see also, Disciplinary Action Form, ECF
#90-37.) After conducting an investigation into the July 30, 2012, incident, the
County notified Greiner that it had scheduled another Loudermill Hearing (the

2

A “Loudermill hearing” is a hearing that a public employer must typically conduct
prior to terminating an employee who has a protected property interest in continued
employment. See Cleveland Bd. of Education v. Loudermill, 470 U.S. 523, 545-46
(1985). (See Section V, infra, for a discussion of the constitutional requirements of
a Loudermill hearing.)
11

“Second Loudermill Hearing”) to allow him to respond regarding his co-workers’
allegations. (See Greiner Dep. at 191, ECF #89-2 at Pg. ID 1066.) That notice
specified that the Second Loudermill Hearing concerned allegations that Greiner
“fail[ed] to place the post drive on the post, assemble signs, lift posts or stubs and
get in and out of the bucket in a competent manner.” (See id.)
Two union representatives spoke on Greiner’s behalf at the Second
Loudermill Hearing. (See id. at 195, ECF #89-2 at Pg. ID 1067.) In addition, Greiner
told the County at the hearing that his co-workers were lying about his misconduct
to retaliate against him for uncovering an overtime fraud scheme. (See id. at 142,
ECF #89-2 at Pg. ID 1036.) After the Second Loudermill Hearing, the County
suspended Greiner for ten days.
On September 26, 2012, Greiner’s co-workers reported to the MCRC that
Greiner has been insubordinate while flagging traffic that day. (See Balinski Decl.,
ECF #89-19 at Pg. ID 1204-05; see also September 26-27, 2012 Incident Fact
Sheets, ECF #90-40.) Specifically, they claimed that he had been unresponsive on
a two-way radio for up to five minutes, was argumentative with the project leader,
Martin Balinski, regarding where to stand, and had placed crew members in an
unsafe environment. (See id.) According to Greiner’s supervisor, the situation on
the road became so “chaotic” that the Sheriff’s Department had to intervene. (See
Sabaugh Dep., ECF #89-15 at Pg. ID 1165.) The next day, Balinski reported that

12

Greiner had refused a directive to help lift a guardrail onto a trailer. (See Balinski
Decl., ECF #89-19 at Pg. ID 1204-05.)
After Greiner’s co-workers reported the incidents on September 26 and 27,
the County placed Greiner on paid administrative leave. (See 9/28/12 Letter, ECF
#90-41.) In a letter dated October 11, 2012, the County notified Greiner that it had
conducted an investigation into his alleged insubordination on September 26 and 27,
2012, and that it was “considering disciplinary action up to and including discharge.”
(10/11/12 Letter, ECF #90-42.) The letter also notified Greiner that the County had
scheduled a Loudermill Hearing (the “Third Loudermill Hearing”) for October 19,
2012, to allow him to respond to the allegations. (See id.) The letter informed
Greiner that he was entitled to bring a representative of his choosing to this hearing.
(See id.)
Two days prior to the Third Loudermill Hearing, Greiner formally reported to
the County his belief that his co-workers were engaging in overtime fraud. (See
Greiner Dep. at 198, ECF #89-2 at Pg. ID 1068.) At the hearing, Greiner reiterated
that his supervisors and co-workers were fabricating reports of his misconduct in an
effort to cover up their overtime fraud. (See id. at 147-48, ECF #89-2 at Pg. ID 1037.)
In addition, Greiner presented evidence stating that it was proper for a traffic
regulator to stand on the shoulder of the road. (See id. at 197-98, ECF #89-2 at Pg.
ID 1068.) Union representative Paul Long also spoke on Greiner’s behalf at the

13

hearing. (See id. at 146-47, ECF #89-2 at Pg. ID 1037.) Long argued to the County
that Greiner had not refused orders and did as he was told. (Id.)
Following the Third Loudermill Hearing, the County terminated Greiner’s
employment. (See Termination Letter, ECF #89-26.) The decision was made by
Robert Hoepfner, the Director of the Macomb County Department of Roads, based
on the recommendation of Karen Bathanti, the Service Director for the Human
Resources and Labor Relationship Department. (See Hoepfner Dep., at 15, ECF #8927 at Pg. ID 1224; Bathanti Dep. Book II at 24, ECF #89-28 at Pg. ID 1319.)
Bathanti investigated the allegations of Greiner’s misconduct and ran the three
Loudermill hearings. (See Bathanti Dep. Book II at 24, ECF #89-28 at Pg. ID 1319.)
G
The Collective Bargaining Agreement (CBA) between the Union and the
County allowed the Union to commence arbitration proceedings challenging
Greiner’s termination (see CBA at Article 9, ECF #90-2 at Pg. ID 1424-27), but it
declined to do so. The Union communicated that decision to Greiner in a letter dated
January 8, 2013, which explained that:
The [Union found a] lack of evidence with which to refute
the Employer’s allegations and their application of
progressive discipline. This is especially true when the
“Last Chance Agreement” was signed on February 3,
2010.

14

(Id.) The letter also informed Greiner that he could ask the panel to reconsider its
decision by providing a written response and supporting evidence. (See id.) Greiner
submitted multiple rounds of responses and evidence, but the Union upheld its initial
decision not to arbitrate his grievance. (See 2/7/13 and 5/17/13 Letters, ECF ## 9046, 90-47.)
II
A
After Greiner was fired, he filed actions against the County and the Union in
a variety of fora. First, Greiner filed a lawsuit in Macomb County Circuit Court, in
which he alleged that the County terminated his employment in violation of the
Michigan Whistle Blower Protection Act, MCL § 15.362 et. seq. (See description of
state court case in Greiner Discovery Plan, ECF #30 at Pg. ID 126-27.) Greiner also
filed an action against the County and the Union in the Michigan Employment
Relations Commission (MERC). (Id. at 127.) In the MERC action, Greiner charged
that (1) the Union violated the Michigan Public Employment Relations Act (the
“PERA”) by breaching its duty of fair representation and acting in an arbitrary
manner; and (2) the County violated the PERA because it “lacked good cause for
terminating him.” (See MERC Decision, ECF #90-49 at Pg. ID 1640.) The MERC
ruled against Greiner on both charges. (See id. at Pg. ID 1637-43.)

15

Finally, on October 15, 2014, Greiner, acting through attorney Leland
Schmidt, filed this action against the County and the Union. (See ECF #1.) On
August 3, 2015, Schmidt filed a ten-count Second Amended Complaint on Greiner’s
behalf. (See ECF #46.) Greiner later voluntarily dismissed Counts IV and VI of the
Second Amended Complaint and voluntarily dismissed a portion of Count VII of the
Second Amended Complaint. (See ECF #50.)
The eight counts that remain in this action are as follows:
Count I: Violation of the Americans with Disabilities Act,
42 U.S.C. § 12101 et. seq. (the “ADA”);
Count II: Violation of the Michigan Persons with
Disabilities Civil Rights Act, MCL § 37.1101 et. seq. (the
“PWDCRA”);
Count III: Violation of the Age Discrimination in
Employment Act of 1967, 29 U.S.C. §621 et. seq. (the
“ADEA”);
Count V: Due Process Violation and First Amendment
Retaliation;
Count VII: Breach of Employment Contract;
Count VIII: Concert of Action;
Count IX: Civil Conspiracy; and
Count X: Intentional Infliction of Emotional Distress.
(See Sec. Am. Compl., ECF #46 at Pg. ID 460-83.)

16

B
Shortly after Greiner filed his Second Amended Complaint, he began having
serious disagreements with Schmidt about the handling of his case. On October 2,
2015, Schmidt moved to withdraw as counsel on the ground that there had been a
breakdown in his attorney-client relationship with Greiner. (See Schmidt Mot. to
Withdraw, ECF #57.) The Court held a hearing on Schmidt’s motion to withdraw
on November 4, 2015. During the hearing, Schmidt explained that his relationship
with Greiner broke down because, among other things, Greiner was using circular
reasoning in their discussions concerning the proper strategy to pursue. The Court
granted Schmidt’s motion to withdraw and provided Greiner with 45 days to find
new counsel. (See ECF #65.)
Greiner was unable to find an attorney within that time period. In a filing
dated March 14, 2016, Greiner informed the Court that he had been in touch with
multiple lawyers but none would take his case. (See id.) Greiner requested the Court
to appoint him counsel. (See ECF #74.) In support of that request, Greiner attached
portions of the undersigned’s Senate Judiciary Committee Questionnaire and
asserted a number of arguments that were difficult to comprehend. (See id.) The
Court declined to appoint him counsel.
Greiner independently continued to look for counsel, and on April 14, 2016,
Attorney Lance Mason agreed to take Greiner’s case. (See ECF #76.)

17

C
On January 31, 2017, both the County and the Union moved for summary
judgment. (See ECF ## 89, 90.)
Four days later, Mason filed an emergency motion to withdraw as Greiner’s
counsel. (See ECF #91.) In the motion, Mason informed the Court that “[t]here had
been a breakdown of the client-attorney relationship” and that it was “the desire of
[Mason] to terminate his professional relationship with [] Greiner.” (Id.) Greiner
opposed Mason’s motion to withdraw by filing a brief that contained a number of
arguments that were difficult to follow and a reference to the lyrics of the classic
song Hallelujah by Leonard Cohen. (See ECF #97.) The Court held a hearing on
Mason’s motion on March 1, 2017.
During the hearing, Greiner confirmed that Mason was the third attorney to
withdraw from representing him in his dispute with the County. Greiner explained
that in addition to Schmidt and Mason, attorney David Kotwicki had withdrawn
from representing him in the state court litigation against the County. Like Schmidt
and Mason, Kotwicki cited a breakdown in the attorney-client relationship that arose
because, in Kotwicki’s opinion, Greiner refused to follow his advice. Also during
the hearing, Greiner accused Mason of committing serious misconduct and revealed
that he (Greiner) had filed a grievance against Mason with the Michigan Attorney
Grievance Commission.

18

The Court granted Mason’s motion to withdraw. (See ECF #99.) The Court
also granted Greiner an extension to file responses to Defendants’ motions for
summary judgment. (See id.)
On April 14, 2017, Greiner filed pro se responses to Defendants’ motions for
summary judgment. (See ECF ## 103, 104.) The responses are often difficult to
follow (one contains a single paragraph that runs eight pages) and ignore many of
the Defendants’ arguments. The responses also rely extensively upon inadmissible
evidence, such as unverified transcripts of surreptitious recordings Greiner made of
his co-workers, supervisors, and management.3 (See, e.g., Private Transcript of
Audiotape Recording of Greiner’s Conversations with Co-workers, ECF #103-2.)
Defendants replied on May 4, 2017. (See ECF ## 107, 108.)
III
A movant is entitled to summary judgment when it “shows that there is no
genuine dispute as to any material fact . . . .” SEC v. Sierra Brokerage Servs., Inc.,
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

3

The Court denied Greiner’s motion to listen to the audio recordings and include
them as part of the depositions. (See ECF #117.) The Court granted Greiner’s
motion to file in the traditional manner a flash drive containing the recordings to
ensure that such recordings were part of the record in the event that Greiner later
sought review of the Court’s decisions in this case. (See id.)
19

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.
IV
In Counts I and II of the Second Amended Complaint, Greiner alleges that
Defendants violated the ADA and PWDCRA by discriminating against him on the
basis of his disability. (See Sec. Am. Compl. at ¶¶ 370-408, ECF #46 at Pg. ID 46067.)
In relevant part, the ADA provides:
No covered entity shall discriminate against a qualified
individual on the basis of disability in regard to job
application procedures, the hiring, advancement, or
discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of
employment.
42 U.S.C. §12112 (emphasis added). Similarly, under the PWDCRA, “an employer
shall not” “discharge or otherwise discriminate against an individual . . . because of

20

a disability or genetic information that is unrelated to the individual’s ability to
perform the duties of a particular job or position.” M.C.L. §37.1202.
Greiner contends that Defendants violated the ADA and PWDCRA in two
ways: (1) they failed to accommodate his alleged disability and (2) they terminated
his employment because of his disability. The Court will analyze each theory of
disability discrimination separately below.
A
1
To establish a prima facie case of failure to accommodate under the ADA or
PWDCRA, an employee must show:
(1) he is disabled within the meaning of the ADA [or
PWDCRA]; (2) he is otherwise qualified for his position,
… with or without accommodation; (3) the employer
knew or had reason to know of his disability; (4) the
employee requested an accommodation; and (5) the
employer failed to provide a reasonable accommodation
thereafter.
Green v. BakeMark USA, LLC, 683 Fed. App’x 486, 491 (6th Cir. 2017) (citations
omitted).4

4

“The PWDCRA ‘substantially mirrors the ADA, and resolution of a plaintiff’s
ADA claim will generally, but not always, resolve the plaintiff’s PWDCRA claim.’”
Donald v. Sybra, Inc., 667 F.3d 757, 764 (6th Cir. 2012) (quoting Cotter v. Ajilon
Servs., Inc.¸287 F.3d 593, 597 (6th Cir. 2002). Here, the parties do not distinguish
between Greiner’s ADA and PWDCRA claims in their briefs, and thus the Court
will analyze the claims under a single standard.
21

If an employee establishes a prima facie case of failure to accommodate, “the
burden shifts to the employer to demonstrate that any particular accommodation
would impose an undue hardship on the employer.” Id.
2
The County and Union are entitled to summary judgment on Greiner’s failure
to accommodate claims because Greiner has not shown that he was “otherwise
qualified” for his position as a highway maintenance person.
“[A]n individual is ‘otherwise qualified’ if he or she can perform the ‘essential
functions’ of the job with or without reasonable accommodation.” Keith v. County
of Oakland, 703 F.3d 917, 925 (6th Cir. 2013) (quoting 42 U.S.C. § 12111(8)). “A
job function is ‘essential’ if its removal would ‘fundamentally alter’ the position.”
Kiphart v. Saturn Corp., 251 F.3d 573, 584 (6th Cir. 2001) (citation omitted).
“Essential functions generally are those that the employer’s ‘judgment’ and ‘written
[job] description’ prior to litigation deem essential.” E.E.O.C. v. Ford Motor Co.,
782 F.3d 753, 761 (6th Cir. 2015) (en banc) (citing 42 U.S.C. §12111).
If an employee contends that he can complete the essential functions of a job
with “reasonable accommodation” from his employer, “the employee bears the
burden of proposing an accommodation” that is reasonable. Id. at 763.

“A

reasonable accommodation may include ‘job restructuring and part-time or modified
work schedules.’ But it does not include removing an ‘essential function’ from the

22

position, for that is per se unreasonable.” Id. (internal citations and quotation marks
omitted) (emphasis in original). In addition, an accommodation is unreasonable if
it will “force employers to . . . create new jobs, displace existing employees, or
violate other employees’ rights under the collective bargaining agreement.” Steward
v. Daimler Chrysler Corp., 533 F. Supp. 2d 717, 722 (E.D. Mich. 2008) (citing
Thompson v. DuPont deNemours & Co., 80 Fed. App’x 332, 336 (6th Cir. 2003).
Greiner has not shown that he can complete the essential functions of a
highway maintenance person without reasonable accommodation. The County has
presented ample evidence that the essential functions of a highway maintenance
person include lifting heavy objects, climbing, and standing for long periods of time.
Hoepfner, the director of the Roads Department with 42 years of experience, testified
that a highway maintenance person is required to “lift more than 20 pounds,”
complete “overhead lifting,” “climb,” “squat,” and “kneel.” (Hoepfner Dep. at 5,
165-66, ECF #89-27 at Pg. ID 1222, 1262.) In addition, Hoepfner could not identify
any jobs in the department that were “sedentary” or required standing less than three
hours a day. (Id.) Hoepfner’s testimony is corroborated by the published Job
Description and Expectations of a highway maintenance person. That document
states that a highway maintenance person duties include performing manual labor,
sweeping, digging, installing road signs and guard rails, and being able to “lift at
least 50 pounds.” (Job Description and Expectations, ECF ## 89-17, 89-18.) Greiner

23

does not dispute that standing for long periods of time, climbing, and lifting heavy
items were essential functions of his job as a highway maintenance person. (See
Greiner Dep. at 66-67, 68, 73, 79, ECF #89-2 at Pg. ID 1017, 1019, 1020). And
Greiner does not contend that he could have consistently completed these essential
functions without accommodation.5 (See Greiner’s Resp. Br., ECF ## 103, 104.)
Instead, Greiner contends that he could have performed the essential functions
of a highway maintenance person if the MCRC had provided “reasonable
accommodation[s].” (See Greiner Dep. at 161, ECF #89-2 at Pg. ID 1041.) But none
of Greiner’s proposed accommodations are “reasonable.” Greiner initially argues
that the MCRC should have accommodated him by guaranteeing that his co-workers
were always available to “help” whenever he needed to lift something heavier than
twenty pounds. (See id. at 162, ECF #89-2 at Pg. ID 1041.) However, “[c]ourts have
continuously found that employers are not required to assign existing employees or
hire new employees to perform certain functions or duties of a disabled employee’s
job which the employee cannot perform by virtue of his disability.” Bratten v. SSI

5

Greiner could not plausibly claim that he could perform the essential functions
without reasonable accommodations. Greiner’s own physician, Dr. McKenzie,
whose notes Greiner relies upon to show that he is “disabled,” found that Greiner
“could not lift more than 20 pounds, stoop, climb, crawl, or stand or walk more
than four hours.” (See McKenzie Notes, ECF # 90-15, 90-17, 90-19.)
24

Servs., Inc., 185 F.3d 625, 632 (6th Cir. 1999). 6 Thus, Greiner’s proposal that the
County make others available to perform (or assist with) his duties is not a
reasonable accommodation.
Next, Greiner asserts that the MCRC should have accommodated him by
assigning him to work on the sign truck every day. (See Greiner Dep. at 110, 164,
ECF #89-2 at Pg. ID 1028, 1041.) This proposed accommodation is unreasonable
for two reasons. First, Greiner has not shown that the sign truck assignment would
have been compatible with documented physical restrictions imposed by Greiner’s
own physician – i.e., (1) not lifting more than twenty pounds, (2) not climbing, and
(3) not standing more than four hours per day. (See McKenzie Notes, ECF # 90-15,
90-17, 90-19.) Indeed, at his deposition, Greiner admitted that the sign truck
assignment required both climbing and lifting more than twenty pounds. (See
Greiner Dep. at 79, ECF #89-2 at Pg. ID 1020.) And when pressed, Greiner could
not confirm that the sign truck assignment would have allowed him to avoid standing
for longer than four hours per day. (See Greiner Dep. at 109, ECF #89-2 at Pg. ID

6

Greiner says that for a period of time, his co-workers provided him with
“unofficial” accommodations, such as not making him lift guardrails or tri-rails
when he was on guardrail crew. (Greiner Dep. at 88-90, ECF #89-2 at Pg. ID 102223.) Greiner claims that the only reason his co-workers stopped helping him was to
retaliate against him for exposing an alleged overtime fraud scheme. (See id.)
However, Greiner cites no authority for the proposition that his co-workers’
temporary decision to voluntarily assist him obligated the County to provide him
such assistance going forward.
25

1028. 7) Thus, Greiner’s own testimony suggests that the sign truck assignment was
incompatible with his own claimed medical restrictions. Greiner has not cited any
authority that suggests that an employer must accommodate an employee by
assigning him to a role that is inconsistent with the employee’s own medical
restrictions.
Second, the sign truck assignment is not a reasonable accommodation because
it would have required the County to violate the rights of other employees. Greiner
admitted that in order to permanently assign him to the sign truck, the County would
have had to regularly assign “higher classified” employees to perform lowerclassified “laborer” tasks that normally would have been completed by Greiner (the
lowest classified employee in his department) had he not been limited to the sign
truck. (Greiner Dep. at 110, ECF #89-2 at Pg. ID 1029.) Greiner contends that the
CBA permitted the County to adopt such a policy. (See id.) Greiner’s reading of the
CBA is mistaken. Although the CBA permitted the County to assign an employee

7

Greiner worked an eight-hour day, and his physician-imposed restrictions
prohibited him from standing for more than four of those eight hours. Thus, as he
acknowledged during his deposition, he needed a position that allowed him to sit for
at least four hours per day. (See Greiner Dep. at 108, ECF #89-2 at Pg. ID 1027.)
When asked to identify a job in the Sign Department that would allow him to sit for
at least four hours per day, Greiner could not definitively identify any such position.
(See Greiner Dep. at 109, ECF #89-2 at Pg. ID 1028.) Instead all he could say was
that “[i]f there was [such a position], it would have been closest [sic] being a laborer
on the sign truck.” (Id.; emphasis added.) But Greiner admitted that he did not know
whether the sign truck assignment would allow him to sit for four hours “on a given
day.” (Id.)
26

to work below his normal classification if “properly-classified personnel are
unavailable,” (CBA at Article 10, ECF #90-2 at Pg. ID 1428), the CBA only
envisioned that such an assignment be “temporary.” (See id. at Article 31, ECF #902 at Pg. ID 1441). Thus, Greiner’s request to be permanently assigned to the sign
truck would have violated his higher-classified co-workers’ rights under the CBA
by forcing them to cover Greiner’s lower-classified work on a permanent basis. This
is not a reasonable accommodation. See Steward, 533 F. Supp. 2d at 722 (explaining
that an accommodation is unreasonable if it will “force employers to . . . violate other
employees’ rights under the collective bargaining agreement”).
Finally, Greiner contends that the MCRC could have accommodated his
disability by “lower[ing] the chain on the [] post puller” and by welding extra steps
on the side of their trucks.” (See id. at 162-63, ECF #89-2 at Pg. ID 1041.) Although
such an accommodation may have allowed Greiner to pull posts more easily and
enter trucks more comfortably, Greiner did not explain at his deposition or in his
briefs how such accommodations would have allowed him to complete the other
essential functions of a highway maintenance person, such as doing tasks that require
standing for longer than four hours or lifting objects other than posts. (See id.;
Greiner Resp. Br., ECF #103.) Therefore, Greiner has failed to show that these
accommodations would have rendered him qualified to perform his job. See Johnson
v. Cleveland City School Dist., 443 Fed. App’x 974, 983 (6th Cir. 2011) (“[T]he

27

disabled individual must prove that he or she would in fact be qualified for the job
if the employer were to adopt the proposed accommodation.”)
For the reasons above, Greiner has not established a genuine dispute of
material fact as to whether he was could perform the essential functions of his job as
a highway maintenance person with or without reasonable accommodations.
Therefore, he was not a “qualified individual” under the ADA or PWDCRA, and the
County and the Union are entitled to summary judgment on his failure to
accommodate claim under the ADA and PWDCRA.8
B
Next, Greiner asserts that the Union and the County violated the ADA and
PWDCRA by terminating him on the basis of his disability.
Because Greiner has not put forth direct evidence of being terminated on the
basis of his disability, his claims are governed by the McDonnell Douglas burdenshifting framework. See Ferrari v. Ford Motor Company, 826 F.3d 885, 891-97 (6th
Cir. 2016). Under that framework, Greiner bears the initial burden of establishing a
prima facie case of discrimination under the ADA or PWDCRA. To do so, Greiner

8

Greiner’s failure to accommodate claims against the Union fail for an additional
reason. Greiner has not presented any evidence that the Union itself failed to
accommodate his alleged disabilities. (See Sec. Am. Compl., ECF #46; Pl.’s Resp.
Br., ECF #104.) Likewise, Greiner has not cited any case law suggesting that an
employee may bring a failure to accommodate claim against his union based upon
his employer’s alleged failure to provide accommodations. (See id.)
28

must show that: (1) he is disabled; (2) he is otherwise qualified for the position, with
or without reasonable accommodation; (3) that he suffered an adverse employment
action; (4) the employer knew or had reason to know of his disability; and (5) the
position remained open while the employer sought other applicants or the disabled
individual was replaced. See id. If Greiner establishes a prima facie case, the burden
shifts to Defendants to offer a legitimate, non-discriminatory reason for terminating
Greiner. See id. at 892. If Defendants provide such an explanation, then the burden
shifts back to Greiner to show that Defendants’ proffered explanation is a pretext for
unlawful discrimination. See id.
Both the County and the Union are entitled to summary judgment on Greiner’s
discriminatory termination claims under the ADA and PWDCRA. Greiner cannot
establish his prima facie case for such claims because, for the reasons explained
above, he was not “otherwise qualified” for his position as a highway maintenance
worker. (See Section IV-A-2, supra.) Greiner’s prima facie case against the Union
fails for the additional reason that it did not terminate his employment nor did it
cause him to suffer any adverse employment action.9

9

To the extent that Greiner is accusing the Union of not adequately representing him
because of his disability, Greiner admitted at his deposition that he thought the Union
would have treated him “the same way” even if he was not disabled. (Greiner Dep.
at 244, ECF #90-55 at Pg. ID 1730.)
29

V
In Count III of the Second Amended Complaint, Greiner alleges that
Defendants violated the ADEA by terminating his employment on the basis of his
age. (See Sec. Am. Compl. at ¶¶ 409-424, ECF #46 at Pg. ID 467-70.) Under the
ADEA, it is unlawful for an employer “to discharge any individual or otherwise
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s age.” 29
U.S.C. § 623(a)(1). A plaintiff bringing a claim under the ADEA must “show that
‘age was the but-for cause of the employer’s adverse action.’” Blizzard v. Marion
Tech. Coll., 698 F.3d 275, 283 (6th Cir. 2012) (quoting Gross v. FBL Fin. Servs.,
557 U.S. 162, 177 (2009)).
Greiner fails to put forth direct evidence of age discrimination, and therefore,
the claim is governed by the McDonnell Douglas burden-shifting framework
described above. See id. To establish a prima facie case of age discrimination
Greiner must show that: “(1) he was at least at least 40 years old at the time of the
alleged discrimination; (2) he was subjected to an adverse employment action; (3)
he was otherwise qualified for the position; and (4) he was [either] replaced by a
younger worker” or treated less favorably than a similarly-situated non-protected
worker. Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, at 521-22. If Greiner
establishes his prima facie case, the burden shifts to Defendants to put forth evidence

30

of a legitimate, non-discriminatory reason for the adverse employment action. See
id. at 521. If Defendants can provide such a reason, the burden shifts back to Greiner
to show that the proffered reason is a pretext for unlawful discrimination. See id.
Greiner’s ADEA claim fails because he has not shown that he was otherwise
qualified for his position as a highway maintenance person. As discussed above
with respect to Greiner’s claims under the ADA and the PWDCRA, Greiner’s
functional limitations prevented him, with or without reasonable accommodations,
from being able to complete the lifting and standing tasks that are essential to his job
as a highway maintenance person. (See Section IV-A-2, supra.)
Even if Greiner was able to establish a prima facie case of age discrimination,
his claim would still fail. The County puts forth a legitimate, non-discriminatory
reason for terminating Greiner: his repeated insubordination and poor performance
as a highway maintenance person in the Sign Department. Greiner has not shown
that this reason was pretext for age-based discrimination.

The only possible

evidence of age-based animus that Greiner identifies are stray comments about his
age by Sabaugh, Pulizzi, and Balinski, none of whom were the decision-makers in
Greiner’s termination.10 At the pretext stage, “statements by non-decision makers .

Greiner testified that Sabaugh commented that because Greiner “was old,” he
(Sabaugh) was doing Greiner a favor by assigning him custodial duties. (Greiner
Dep. at 168, ECF #89-2 at Pg. ID 1042.) Greiner could not recall any other agerelated comments by Sabaugh. (See id.) In addition, Greiner testified that Pulizzi
called him an “old piece of shit” and that Balinski accused him of “trying to
10

31

. . cannot suffice to satisfy the plaintiff’s burden of demonstrating [age-based]
animus.” Rosenthal v. Faygo Beverages, Inc., --- Fed. App’x ----, 2017 WL
3014431, at *5 (6th Cir. July 17, 2017) (quoting Rowan v. Lockheed Martin Energy
Sys., Inc., 360 F.3d 544, 550 (6th Cir. 2004)). And there is no evidence that
Hoepfner and Bathanti, the two individuals who made the ultimate decision to fire
him, shared these views or made similar comments. Indeed, Greiner fails to point
the Court to any evidence that age was even considered by Hoepfner or Bathanti
when they made the decision to terminate him, let alone evidence that Greiner’s age
was the “but for” cause of his termination. Blizzard v. Marion Tech. Coll., 698 F.3d
at 283.
Greiner’s age discrimination claim against the Union also fails because the
Union did not terminate Greiner’s employment. Moreover, Greiner admitted that
the Union “didn’t target me because of my age.” (Greiner Dep. at 242, ECF #90-55
at Pg. ID 1729.) Greiner also confirmed that the Union would have likely treated
him exactly the same way even if he was 39 years old. (See id. at 243, ECF #90-55
at Pg. ID 1729.) He has no age discrimination claim against the Union.
Thus, for all the reasons above, the County and the Union are entitled to
summary judgment on Greiner’s ADEA claim.

piggyback [him]self on everyone else,” called him old, and said that he needed to
get an operation to repair his knees. (Id.at 169, ECF #89-2 at Pg. ID 1043.)
32

VI
In Count V of the Second Amended Complaint, Greiner alleges that
Defendants violated his constitutional right to due process by denying him full and
fair pre-termination and post-termination hearings. (See Sec. Am. Compl. at ¶¶ 43034, ECF #46 at Pg. ID 472-73.) Greiner seeks relief under 42 U.S.C. § 1983
(“Section 1983”). The Court finds that Greiner received all the pre- and posttermination due process required under the Constitution.
The “root requirement” of due process of law is “that an individual be given
an opportunity for a hearing before he is deprived of any significant property
interest.” Boddie v. Connecticut, 401 U.S. 371, 379 (1971) (emphasis in original).
“The pre-deprivation process need not always be elaborate, however; the amount of
process required depends, in part, on the importance of the interests at stake.” Leary
v. Daeschner, 228 F.3d 729, 742-43 (6th Cir. 2000). “Moreover, the sufficiency of
pre-deprivation procedures must be considered in conjunction with the options for
post-deprivation review; if elaborate procedures for post-deprivation review are in
place, less elaborate pre-deprivation process may be required.” Id.
In Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), the
Supreme Court explained how these principles apply to the termination of a public
employee who has a protected property interest in continued employment. The
Supreme Court held that before a public employer may fire such an employee, the

33

employer must provide notice and “some kind of hearing.” Id. at 542. The hearing
need not be “elaborate,” but it must provide the employee with “oral or written notice
of the charges against him, an explanation of the employer’s evidence, and an
opportunity to present his side of the story.” Id. at 545-46. In addition, at “the pretermination stage, the employee does not have a right to, and the Constitution does
not require, a neutral and impartial decision maker.” Farhat v. Jopke, 370 F.3d 580,
595-96 (6th Cir. 2004).
Greiner received sufficient pre-termination process. Before each of the three
Loudermill hearings, he received written notice of the charges against him, and he
had an opportunity to present his side of the story at each hearing. (See Greiner Dep.
at 138, 191, 194-97, ECF #89-2 at Pg. ID 1035, 1066-68.) At the Third Loudermill
hearing, Greiner even had an opportunity to present evidence to the County about
proper flagging practices. (See id. at 197-98, ECF #89-2 at Pg. ID 1068.) In addition,
union representatives spoke on behalf of Greiner at each hearing. (See id. at 146-47,
189-90, 195, ECF #89-2 at Pg. ID 1037, 1066-67.) And at the Third Loudermill
hearing, Greiner had the opportunity to attack (and did attack) the credibility of his
co-workers and supervisor (who accused him of the misconduct at issue) by claiming
that they were fabricating charges against him to cover up their overtime fraud. (See
id. at 147-148, ECF #89-2 at Pg. ID 1037.) The Court finds that the above-described

34

procedures were sufficient to satisfy the pre-termination due process requirements
described in Loudermill.
Moreover, Greiner’s specific complaints about his pre-termination procedures
lack merit. For instance, he complains that the decision maker at the Loudermill
hearings “was not impartial.” (Greiner Dep. at 188, ECF #89-2 at Pg. ID 1066.) But
the Constitution does not require that a pre-termination hearing have an impartial or
neutral decision maker. See Farhat, 370 F.3d at 595-96.
Greiner further complains that County was unwilling to (1) separate his
former co-workers into different rooms, (2) have the co-workers sign affidavits
regarding their interactions with Greiner, and (3) turn those affidavits over to him.
(See Pl.’s Resp. Br., ECF #103 at Pg. ID 2373.) But Greiner cites no authority that
suggests the County was required to take such measures. (See id.)
Greiner also complains that the County failed to disclose evidence to him prior
to the Loudermill hearings. (See id. at 191, ECF #89-2 at Pg. ID 1066). But he never
identifies any specific evidence used against him at the hearings that the County
failed to disclose, nor does he explain how any alleged non-disclosure unfairly
prejudiced him at the hearings. (See id.) Greiner had ample advance notice of the
charges against him, and he knew that the charges arose from complaints lodged by
his co-workers and supervisors and that they would be the key witnesses against

35

him. There was no unfair lack of disclosure here. Simply put, Greiner’s complaints
about the pre-termination procedures are unfounded.
Likewise, Greiner has failed to show any shortcoming in his post-termination
procedures. He argues that the post-termination process available to him could not
possibly have been sufficient because he never actually had a post-termination
hearing. But he ignores the post-termination procedures authorized under the CBA
between the Union and the County. The CBA permitted Greiner to file a grievance
challenging his termination and permitted the Union to pursue binding arbitration of
that grievance before a neutral decision maker. (See CBA at Article 9, ECF #90-2 at
Pg. ID 1424-27.) The Sixth Circuit has recognized that the availability of such
arbitration proceedings under a CBA may satisfy post-termination due process
requirements even where a union declines to proceed with the arbitration
proceedings. See Rhoads v. Bd. of Educ. Of Mad River Local Sch. Dist., 103 F. App’x
888, 897 (6th Cir. 2004) (explaining, in a case where a union declined to file an
arbitration claim allowed under the CBA, that “[t]he fact that the Union elected not
to pursue arbitration on [the member]’s behalf does not amount to a deprivation of
her right to due process by the [the state-actor defendant]”). Greiner has not
explained how the County deprived him of post-termination process when the
decision not to invoke such process was made by the Union.

36

Simply put, Greiner has failed to demonstrate inadequacy in the pre- or posttermination process that was available to him, and the Union and County are entitled
to summary judgment on Greiner’s constitutional due process claims.11
VII
In Count VII of the Second Amended Complaint, Greiner alleges breach of
contract claims against the Union and the County. (See Sec. Am. Compl. at ¶¶ 44045, ECF #46 at Pg. ID 475-77.) The claim against each Defendant fails for different
reasons.
The Union is entitled to summary judgment on this claim because Greiner has
not presented any evidence that the Union breached any specific provision of any
contract between itself and Greiner.
Greiner’s breach of contract claim against the County is pre-empted by
Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. That statute
pre-empts any state-law claim that is “inextricably intertwined with consideration of

11

Greiner’s due process claim against the Union fails for an additional reason. To
recover under Section 1983, a plaintiff must show that his constitutional rights were
violated by “a person acting under color of state law.” O’Brien v. City of Grand
Rapids, 23 F.3d 990, 995 (6th Cir. 1994). Greiner has not presented any evidence
that the Union acted under the color of state law. Thus, the Union is entitled to
summary judgment on Greiner’s due process claim on this additional ground. See
Moore v. Int’l Bhd. of Elec. Workers Local 8, 76 F. App’x 82, 83 (6th Cir. 2003)
(affirming district court’s dismissal of plaintiff’s Section 1983 claim against a union
because the union was not a state actor for purposes of Section 1983); see also
Messman v. Helmke, 133 F.3d 1042, 1044 (7th Cir. 1998) (“In general, a union is
not a state actor.”).
37

the terms of a [collective bargaining agreement],” Loyd v. Saint Joseph Mercy
Oakland, 766 F.3d 580, 592 (6th Cir. 2014), and, more specifically, bars individual
union members from bringing state-law breach of contract claims based upon an
employer’s alleged breach of a collective bargaining agreement. See Mattis v.
Massman, 355 F.3d 902, 905 (6th Cir. 2004). Greiner cannot avoid the pre-emptive
force of Section 301 by alleging that he entered into an individual employment
contract with the County. See Maushund v. Earl C. Smith Inc., 795 F.2d 589, 59091 (6th Cir. 1986) (explaining that “the collective bargaining process prohibits
[bargaining unit employees] from engaging in separate negotiations with the
company and precludes any actions to enforce such an agreement.”); Fox v. Parker
Hannifin Corp., 914 F.2d 795, 801 (6th Cir. 1990) (“[E]mployees covered by a CBA
cannot rely upon the existence of a separate, individual employment contract giving
rise to state law claims.”). Accordingly, the County is entitled to summary judgment
on Greiner’s breach of contract claim.12
VIII
In Counts VIII and IX of the Second Amended Complaint, Greiner alleges
that the Union and the County engaged in a “concerted action” and “civil
conspiracy” to “deprive [him] of his vested constitutional rights in his continued

12

Nothing in the Second Amended Complaint or in Greiner’s briefing suggests that
Greiner is bringing a hybrid Section 301 claim alleging both that the County
breached the CBA and that the Union breached its duty of fair representation.
38

employment and to bar him from exercising his opportunity to expose the wrongful
behavior by his fellow employees and union brothers at a Loudermill Hearing, post
Loudermill Hearing, and/or subsequent investigation.” (Sec. Am. Compl. at ¶¶ 44657, ECF #46 at Pg. ID 477-80.)
In Marks One Car Rental, Inc. v. Auto Club Grp. Ins. Co., 55 F. Supp. 3d 977,
988 (E.D. Mich. 2014), this Court described the elements of civil conspiracy and
concerted action claims as follows:
Under Michigan law, a civil conspiracy is defined as “a
combination of two or more persons, by some concerted
action, to accomplish a criminal or unlawful purpose, or to
accomplish a lawful purpose by criminal or unlawful
means. In addition, to establish a concert-of-action claim,
a plaintiff must prove that all defendants acted tortiously
pursuant to a common design that caused harm to the
plaintiff. For both civil conspiracy and concert of action,
the plaintiff must establish some underlying tortious
conduct.”
Id. (quoting Urbain v. Beirling, 301 Mich. App. 114, 131-32, 835 N.W.2d 455
(2013)).
Greiner has not presented sufficient evidence to create a material factual
dispute on his civil conspiracy and concreted action claims. Greiner speculates that
Bathanti and Long (his union representative) held a meeting in which they conspired
to terminate him, but Greiner admitted at his deposition that he did not actually know
what Bathanti and Long spoke about at their meeting. (See Greiner Dep. at 275-76,
ECF #90-55 at Pg. ID 1732-33.) Greiner also asserts, without supporting evidence,
39

that Bathanti and the Union entered into a “joint decision to keep [the overtime]
fraud from ever becoming exposed at the Loudermill hearings.” (See Greiner Dep.
at 206, ECF #89-2 at Pg. ID 1070.) But Greiner testified that union representatives
encouraged him to pursue his rights under the CBA, including his right to raise any
concerns he had about his co-workers’ alleged overtime fraud scheme. (See id. at
198, ECF #89-2 at Pg. ID 1068.) And Greiner did raise such concerns, both in a
formal complaint to the County and at the Third Loudermill Hearing. (See id. at 14748, 198, ECF #89-2 at Pg. ID 1037, 1068.)
Finally, in Greiner’s response to Defendants’ motions for summary judgment,
he seems to concede that he has no actual evidence of Defendants’ concerted action
or civil conspiracy and that, instead, he is simply assuming the existence of joint
action. He asks: “Realizing that the union did not support me, how could I consider
anything other than the fact that they were working together in a concert of action
and a civil conspiracy … [?]” (See Greiner’s Resp. Br., ECF #103 at Pg. ID
2371-72.)
In sum, Greiner has failed to present sufficient evidence that the Union and
the County colluded in an effort to terminate him or prevent him from exposing his
co-workers alleged overtime scheme. Given this lack of evidence, the Union and
the County are entitled to summary judgment on Greiner’s civil conspiracy and
concerted action claims.

40

IX
In Count X of the Second Amended Complaint, Greiner brings a claim of
intentional infliction of emotional distress (IIED) against each Defendant. (See Sec.
Am. Compl. at ¶¶ 458-63, ECF #46 at Pg. ID 481-82.)
To establish a claim of IIED, a plaintiff must show the following elements:
“(1) extreme and outrageous conduct; (2) intent or recklessness; (3) causation; (4)
severe emotional distress.” Donahoo v. Master Data Ctr., 282 F. Supp. 2d 540, 556
(E.D. Mich. 2003) (citing Roberts v. Auto-Owners Ins. Co., 384 N.W.2d 905, 908
(Mich. 1985)). “Liability for the intentional infliction of emotional distress has been
found only where the conduct complained of has been so outrageous in character,
and so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious and utterly intolerable in a civilized community.” Id. (quoting
Graham v. Ford, 237 Mich. App. 670, 604 N.W. 2d 713, 716 (1999)).
The only conduct that Greiner complains of in his IIED claim against the
County is his co-workers screaming obscenities and insults at him. (See Greiner Dep.
at 208-210, ECF #89-2 at Pg. ID 1071; Pl.’s Resp. Br., ECF #104 at Pg. ID 3186.)
The Court finds that the insults by Greiner’s co-workers, although mean, were “not
so outrageous in character or so extreme in degree . . . as to be utterly intolerable in
a civilized community.” See id. (“Liability does not extend to mere insults,

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indignities, threats, annoyances, petty oppressions, or other trivialities.”). Thus, the
County is entitled to summary judgment on Greiner’s IIED claim.
According to Greiner, the Union intentionally caused him emotional distress
because it declined to arbitrate all of his grievances and because Long allegedly lied
at a hearing before the MERC. (See Greiner Dep. at 344-46, ECF #90-55 at Pg. ID
1736.) In Greiner’s response to the Union’s motion for summary judgment, he does
not identify any other actions by the Union that caused him to suffer emotional
distress. (See Pl.’s Resp. Br., ECF #104.) The Court does not find that either the
Union’s refusal to arbitrate his grievances or Long’s allegedly false testimony is
conduct so outrageous or extreme as to find the Union liable for IIED. Greiner cites
no case law to the contrary. Accordingly, the Union is entitled to summary judgment
on Greiner’s IIED claim.
X
Finally, Greiner alleges in the Second Amended Complaint that Defendants
retaliated against him for exercising his rights under the First Amendment to the
United States Constitution. (See Sec. Am. Compl. at ¶¶ 435-36, ECF #46 at Pg. ID
473.) Specifically, Greiner alleges that:
Plaintiff’s reporting of overtime fraud within his
department constituted a protected activity, and his firing
almost immediately thereafter, constituted a violation of
[his] free speech under the First and Fourteenth
Amendments [to] the United States Constitution.

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(Id.at ¶435, ECF #46 at Pg. ID 473.) Greiner seeks relief under Section 1983. (See
id. at ¶436.)
The Union is entitled to summary judgment on Greiner’s First Amendment
retaliation claim because he has not shown that the Union was a state actor for
purposes of this claim under Section 1983. (See footnote 11, supra.)
However, the County is not entitled to summary judgment on Greiner’s First
Amendment retaliation claim because the County neglected to address that claim in
its motion for summary judgment and corresponding brief. (See County’s Mot., ECF
#89.)
Rather than moving directly to trial on Greiner’s First Amendment retaliation
claim against the County, however, the Court believes that the best course of action
is to (1) provide the County with opportunity to file a second motion for summary
judgment that addresses the First Amendment retaliation claim and (2) provide
Greiner with opportunity to respond to that motion. Accordingly, with respect to
Greiner’s First Amendment retaliation claim, the County’s motion for summary
judgment is denied without prejudice.
XI
At the end of the Union’s motion for summary judgment, it asks the Court to
sanction Greiner for pursuing frivolous claims in violation of Rule 11 of the Federal
Rules of Civil Procedure. (See ECF #90 at Pg. ID 1408-09.) This request is denied

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without prejudice because Rule 11 states that a “motion for sanctions must be made
separately from any other motion.” Fed. R. Civ. P. 11(c). If the Union would like to
pursue sanctions against Greiner, it must file a separate motion that complies in all
respects with the requirements of Rule 11.
XII
For the reasons above, it is hereby ordered that:


The Union’s motion for summary judgment (ECF #90) is
GRANTED.



The Union’s request for sanctions against Greiner is
DENIED WITHOUT PREJUDICE.



The County’s motion for summary judgment (ECF #89) is
DENIED WITHOUT PREJUDICE with respect to
Greiner’s First Amendment retaliation claim (as pleaded
in paragraphs 436-37 of the Second Amended Complaint).
With respect to Greiner’s remaining claims, the County’s
motion for summary judgment (ECF #89) is GRANTED.



If the County chooses to file a second motion for summary
judgment addressing Greiner’s First Amendment
retaliation claim, it shall fill that motion by no later than
October 10, 2017. Greiner shall file a response by no later
than October 31, 2017, and Defendants shall have until
November 8, 2017 to reply.

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

Greiner’s Motion for Reconsideration (ECF #115), in
which he asks the Court to reconsider its order regarding
his audio recordings, is DENIED because he has not
demonstrated a palpable defect by which the Court has
been misled nor shown that correcting such a defect (if it
exists) will result in a different disposition of the case. See
E.D. Mich. L.R. 7.1(h).

IT IS SO ORDERED.

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: September 11, 2017
I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on September 11, 2017, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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