Greiner v. Charter County of Macomb, Michigan et al

Filing 138

ORDER Granting Defendant's 123 Motion for Summary Judgment on Plaintiff's First Amendment Retaliation Claim. 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 GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT ON PLAINTIFF’S FIRST
AMENDMENT RETALIATION CLAIM (ECF #123)
In this action, Plaintiff John Greiner brought several claims challenging the
termination of his employment by Defendant Charter County of Macomb (the
“County”). The Court previously granted summary judgment against Plaintiff on all
of his claims other than his First Amendment retaliation claim. (See ECF #117.)
For the reasons explained below, the Court now grants summary judgment against
Plaintiff on that remaining claim.
I
The Court set forth the facts of this case in great detail in its prior summary
judgment order. (See id.) The Court incorporates herein the factual recitation from

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the earlier order. The Court highlights below only those facts that are essential to
understand the Court’s ruling below.
Plaintiff worked for the Macomb County Road Commission (“MCRC”) from
2000 to 2012. (See Greiner Dep. at 37, 148, ECF #89-2 at Pg. ID 1010, 1037.)
During the course of his employment, he had numerous disciplinary issues and
instances of negligent operation of County equipment. As a result of his poor
performance, Plaintiff entered into a Last Chance Agreement (“LCA”) with the
County in 2009. (See LCA, ECF #90-7.) The LCA provided 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].” (Id.)
After Plaintiff entered into the LCA, he continued to have disciplinary issues,
and the County commenced three separate disciplinary proceedings against him.
The Court described these proceedings in its earlier order. (See Opinion and Order
at 10-14, ECF #117 at Pg. ID 4536-4540.) Each proceeding began with notice to
Plaintiff of his alleged misconduct, and each involved a Loudermill hearing to
inquire into the circumstances of the alleged misconduct. And each Loudermill
hearing concluded with a finding that Plaintiff had committed misconduct.
With each successive misconduct finding, the County imposed progressive
discipline. Following the first finding, the County suspended Plaintiff for three days.
(See 7/16/12 Suspension Letter, ECF #90-36.) Following the second finding, the
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County suspended Plaintiff for ten days. (See 8/17/12 Suspension Letter, ECF #8923.) Following the third finding, the County terminated Plaintiff’s employment. (See
Termination Letter, ECF #89-26.)
Under the Collective Bargaining Agreement between Plaintiff’s union and the
County, the union had the option to challenge the termination of Plaintiff’s
employment in arbitration proceedings. (See Collective Bargaining Agreement at
Article 9, ECF #90-2 at Pg. ID 1424-27.) The union declined to seek arbitration
because the union concluded that the County had reasonable grounds for firing
Plaintiff. (See 1/8/2013 Letter, ECF #90-45.)
Plaintiff now challenges his termination as a violation of his First Amendment
rights. He alleges that prior to his termination, he complained to the County that
several County workers were committing overtime fraud (i.e., collecting increased
overtime pay based upon the false assertion that they had worked more than the
allotted hours), and he insists that the County fired him because he complained about
that fraud.
II
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

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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
drawing of legitimate inferences from the facts are jury functions, not those of a
judge . . . .” Id. at 255.
III
A
The United States Court of Appeals for the Sixth Circuit has established the
following framework for evaluating First Amendment retaliation claims at the
summary judgment stage:
First Amendment retaliation claims are analyzed under a
burden-shifting framework. A plaintiff must first make a
prima facie case of retaliation, which comprises the
following elements: “(1) he engaged in constitutionally
protected speech or conduct; (2) an adverse action was
taken against him that would deter a person of ordinary
firmness from continuing to engage in that conduct; (3)
there is a causal connection between elements one and
two—that is, the adverse action was motivated at least in
part by his protected conduct.” Scarbrough v. Morgan
Cnty. Bd. of Educ., 470 F.3d 250, 255 (6th Cir.2006). If
the employee establishes a prima facie case, the burden
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then shifts to the employer to demonstrate “by a
preponderance of the evidence that the employment
decision would have been the same absent the protected
conduct.” Eckerman v. Tenn. Dep't of Safety, 636 F.3d
202, 208 (6th Cir.2010) (internal quotation marks
omitted). “Once this shift has occurred, summary
judgment is warranted if, in light of the evidence viewed
in the light most favorable to the plaintiff, no reasonable
juror could fail to return a verdict for the
defendant.” Id. Unlike in the McDonnell Douglas burdenshifting framework, the burden does not shift back to a
plaintiff to show pretext in First Amendment retaliation
claims.
Dye v. Office of the Racing Comm'n, 702 F.3d 286, 294–95 (6th Cir. 2012).
The County argues that it is entitled to summary judgment for two reasons.
First, the County contends that Plaintiff has failed to establish the causation element
of his prima facie case. Second, the County says that it has established that it would
have fired Plaintiff even absent his protected conduct and that no reasonable juror
could find to the contrary on this record. The Court agrees with both of those
contentions.
B
1
Plaintiff attempts to establish the causation element of his prima facie case by
presenting evidence concerning the “timing of events.”1 (See Pl.’s Resp. at 10, ECF

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Greiner also offers as evidence his “belie[f]” that he was fired in retaliation for
reporting the alleged overtime fraud. (Pl.’s Resp. at 7, ECF #133 at Pg. ID 9453.)
However, his belief does not suffice as evidence of retaliation.
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#133 at Pg. ID 9456, quoting Arnett v. Myer, 281 F.3d 552, 560-61 (6th Cir. 2002).)
More specifically, Plaintiff tries to show a temporal proximity between his
complaints of overtime fraud and his firing, and he argues that this proximity
demonstrates causation. (See id. at 6-10, Pg. ID 9452-9456.) Plaintiff’s temporal
proximity argument rests upon a letter that he faxed to County official Karen
Bathanti on November 5, 2012 – after the presentation of evidence at the third
Loudermill hearing but before the County announced its decision to fire Plaintiff. In
the letter, Plaintiff “insisted” that the third Loudermill hearing “needed to be
continued so that my witnesses Chris Knapp and Les Durr could testify on my
behalf.” (Id. at 7, Pg. ID. 9453.) Plaintiff suggests that this letter notified Bathanti
that he wanted to raise his allegations of overtime fraud during the continuation of
the third Loudermill hearing, and he notes that the County fired him two days after
he sent the letter. Plaintiff argues that this sequence of events shows that the County
fired him because of his efforts to expose overtime fraud. Plaintiff’s argument
suffers from fatal factual and legal flaws.
2
The essential factual premise underlying Plaintiff’s temporal proximity
argument – that his November 5, 2012 letter put Bathanti on notice that he sought to
raise overtime fraud issues at a continuation of the third Loudermill hearing – is
wrong. The letter says nothing about overtime fraud. Indeed, the letter does not
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even say that Plaintiff intended to show that anyone else committed any wrongdoing.
Instead, the letter said that Plaintiff wanted to present his “response” to the
“allegations” against him. (ECF #104-7 at Pg. ID 3788.)
And while the letter does reference Plaintiff’s desire to present testimony from
two witnesses, Plaintiff’s deposition testimony makes clear that he intended to offer
these witnesses to rebut allegations that he committed wrongdoing, not to support a
claim that others committed overtime fraud:
Q.
… You indicated that you had two witnesses
that you wanted to have testify at the [L]oudermill hearing,
Chris Knapp and Les Durr, do you recall that?
A.
testify.

Chris Knapp and Les Durr to be able to

Q.

These are the witnesses you wanted to call?

A.

Correct.

Q.

Who are they?

A.
Chris Knapp is an assistant foreman in
division 3 and Les Durr is, or was – I should probably say
that about Knapp, is or was, Les Durr was the stockroom
manager.
Q.

They work in the roads department?

A.

Yes.

Q.

What were they going to testify about?

A.
Chris Knapp would testify to the fact that I
did not ever refuse to lift the tri-rail on September 27th as
alleged, and Les Durr would have testified that I received
operable walkie-talkies from him and that I returned
operable walkie-talkies to him at the end of the day.
(Greiner Dep. at 325-26, ECF #134-2 at Pg. ID 9558; emphasis added.)
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Because Plaintiff’s letter did not raise the issue of overtime fraud, it does not
support Plaintiff’s temporal proximity theory of causation.
3
Even if Plaintiff’s letter had put the County on notice that he wished to make
overtime fraud allegations, Plaintiff’s temporal proximity theory of causation would
still fail as a matter of law. The sequence of events involving the letter does not raise
an inference of causation because (1) the Plaintiff had been the subject of progressive
disciplinary sanctions for a substantial period of time before he sent the letter and
(2) the County accused Plaintiff of the wrongdoing that led to his termination and
commenced the disciplinary proceedings based on that wrongdoing against Plaintiff
before he sent the letter.
Simply put, “[w]here timing is the only basis for a claim of retaliation, and
gradual adverse job actions began well before the plaintiff had ever engaged in any
protected activity, an inference of causation does not arise.” Slattery v. Swiss
Reinsurance America Corp., 248 F.3d 87, 95 (2nd Cir. 2001) (affirming summary
judgment on retaliation claim where employer had imposed “an extensive period of
progressive discipline” before employee engaged in protected conduct). Indeed,
numerous federal courts have held that temporal proximity, alone, does not establish
causation where the employer commenced substantial disciplinary proceedings
before the employee engaged in the protected conduct. See, e.g., Francis v. Booz,
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Allen & Hamilton, Inc., 452 F.3d 299, 309 (4th Cir. 2006) (holding that plaintiff
failed to show causation where the employer’s “actions that led to [the plaintiff’s]
probation and termination began before her protected activity . . . .” (emphasis in
original)); Carrington v. City of Des Moines, Iowa, 481 F.3d 1046, 1051 (8th Cir.
2007) (holding that plaintiff failed to show causation where he engaged in protected
activity “after” disciplinary investigation began); Ehrlick v. Kovack, 2017 WL
4071134 at *4 (6th Cir. 2017) (concluding that fact that employer disciplined
employee after employee engaged in protected conduct was “not evidence of
causation” because, among other things, employer “had drafted the pre-disciplinary
hearing letter prior to [plaintiff’s] speech”). As this settled authority makes clear,
Plaintiff cannot succeed on his temporal proximity theory of causation based upon
the November 5, 2012 letter to Bathanti because the County began progressive
disciplinary proceedings against him well before he sent the letter and because the
County likewise began the particular proceedings that led to his discharge before he
sent the letter.
4
Finally, even if Plaintiff had established the causation element of his prima
facie case, the County would still be entitled to summary judgment on his retaliation
claim. That is because the County presented substantial evidence that it would have
fired him even absent his complaints about overtime fraud and because, on this
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record, no reasonable juror could fail to return a verdict in favor of the County. Dye,
702 F.3d at 294-95.
As set forth in detail in the Court’s earlier summary judgment ruling, Plaintiff
had a lengthy record of poor performance and disciplinary problems, and the County
had a long history of imposing progressive discipline on Plaintiff. (See Opinion and
Order at 3-6, 9-14, ECF #117 at Pg. ID 4529-4532, 4535-40.) The discipline
included placing Plaintiff on the LCA, suspending Plaintiff for three days, and then
suspending Plaintiff for ten days. The County showed a consistent unwillingness to
tolerate Plaintiff’s poor performance and (through the LCA) had warned Plaintiff
that his job was in jeopardy long before Plaintiff complained about overtime fraud.
Under these circumstances, no reasonable juror could conclude that the County fired
Plaintiff because he raised concerns about the alleged fraud.
IV
For the reasons explained above, IT IS HEREBY ORDERED that the
County’s motion for summary judgment on Plaintiff’s First Amendment retaliation
claim (ECF #123) is GRANTED.
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: November 13, 2017
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I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on November 13, 2017, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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