Davis v. Robert et al

Filing 72

OPINION & ORDER Granting Defendant Suzanne T. Hall's Motion for Summary Judgment (Dkt. 60 ). Signed by District Judge Mark A. Goldsmith. (Sandusky, K)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ROBERT TREVOR-BLAIR
DAVIS, SR.,
Plaintiff,

Case No. 15-cv-12076
HON. MARK A. GOLDSMITH

vs.
CARLA A. ROBERT, et al.,
Defendants.
_______________________________/

OPINION & ORDER
GRANTING DEFENDANT SUZANNE T. HALL’S MOTION FOR SUMMARY
JUDGMENT (Dkt. 60)
Plaintiff Robert Trevor-Blair Davis, Sr., brought this lawsuit under 42 U.S.C. § 1983
against two municipal officials alleging various violations of his constitutional rights. On June 29,
2016, the Court held that Davis’s allegations concerning Defendant Suzanne T. Hall’s statements,
although “short on specific[s],” were sufficient to constitute a plausible adverse action for a First
Amendment retaliation claim. Davis v. Robert, 192 F. Supp. 3d 847, 858 (E.D. Mich. 2016). Since
that time, the record has been supplemented by the depositions of the parties and various union
officials.
This matter is now before the Court on Hall’s motion for summary judgment (Dkt. 60).
Pursuant to the Court’s September 21, 2016 stipulated scheduling order (Dkt. 59), the motion is
limited to one issue — whether there is sufficient evidence that Hall made statements constituting
an adverse action sufficient to give rise to a First Amendment retaliation claim (Dkt. 61). This
issue has now been fully briefed, and a hearing was held on April 6, 2017. Because the only
admissible statement attributable to Hall is insufficient to constitute an adverse action, the Court
grants the motion.
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I. BACKGROUND
The genesis of the dispute between Davis and Hall is adequately set forth in the Court’s
decision denying Hall’s motion to dismiss. The Court now supplements that recitation with
relevant facts from the depositions that were subsequently taken.
Davis began his career with Michigan’s American Federation of State, County, and
Municipal Employees (“AFSCME”) Council 25 around 2003. Davis Tr., Ex. 1 to Def. Mot., at 8
(Dkt. 60-2). While Davis began his employment as a union organizer, he was eventually assigned
as a staff representative to the Wayne County Airport Authority (“WCAA”) Local 953 (“Local
953”) in 2012. Id. at 13-14. In his role as a staff representative, Davis would handle grievances
submitted by union members, attend union meetings, and advise members on any other workrelated issues. Id. at 14. Davis was also responsible for serving as the chief negotiator for Local
953 as it tried to reach a new collective bargaining agreement with the WCAA. Id. at 11.
In addition to Davis, members of the union negotiating team included Bradley Manley,
then-president of Local 953, and Nyota Ellis, a Local 953 committee member. Ellis Tr., Ex. 4 to
Def. Mot., at 5 (Dkt. 60-5). During the course of negotiations with the WCAA, Manley became
increasingly dissatisfied with Davis’s participation. Manley Tr., Ex. 5 to Def. Mot., at 6 (Dkt. 606). Manley testified that Davis would often fail to show up to negotiations, and when he was in
attendance, he was often on the phone or working on personal matters unrelated to the negotiation.
Id. at 12. Ellis also testified to Davis’s failure to meaningfully contribute to the negotiations. Ellis
Tr. at 6.
Frustrated at the progress of negotiations, Manley approached Hall, the chairwoman of the
WCAA’s board of directors, just prior to a board meeting. Manley Tr. at 6. Manley requested the
support of the WCAA board in order to put pressure on the CEO of the WCAA, Tom Naughton,

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to get a deal done. Id. at 9. Hall informed Manley that, as a board member, she would not interfere
in negotiations, and that the matter should be resolved with Naughton. Hall Tr., Ex. 3 to Def. Mot.,
at 13 (Dkt. 60-4). According to Manley, Hall added that Davis was not “doing anything good for
getting the contract over,” which Manley understood to mean that Davis was “not doing [Local
953 any] favors.” Manley Tr. at 11. While Hall remembers speaking with Manley regarding the
negotiations, she denies saying anything about Davis. Hall Tr. at 14.
Sometime later, Manley emailed a letter to Al Garrett, the president of AFSCME Council
25, which stated:
It comes with great sadness and regret to inform you that we are
hereby terminating Mr. Davis as our Staff Representative for the
following reasons.
1. Failure to show up on time or at all for
[negotiations].
2. Failure to Prep or strategize with the [negotiating
team].
3. Failure to follow through with requested
information.
4. Lack of interest.
Mr. Davis is a great activist but his lack of interest within our fight
as a Local, makes this partnership unbearable.
7/9/2013 Letter, Ex. 7 to Def. Mot. (Dkt. 60-8). Manley noted in his testimony that he did not
include Hall’s comment regarding Davis in the email. Manley Tr. at 7-8.
After receiving the email, Garrett convened a meeting with Manley and Davis. Id. at 7. At
the meeting, Manley reiterated his problems with Davis, and he also told Garrett of Hall’s comment
that Davis was not “doing anything good for getting the contract over.” Id. at 11. Garrett
responded by telling Manley that, as president of Local 953, Manley did not have the authority to
fire Davis as staff representative. Id. at 12. However, Garrett warned Davis that he would be fired
if he continued to work on personal matters on union time or impeded the union’s ability to get a
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contract. Id. at 13; Davis Tr. at 34. According to Davis, Garrett also stated that Davis’s supervisor
would be accompanying Davis to all future negotiations. Davis Tr. at 34. This instruction
notwithstanding, Manley testified that he finished the negotiations without Davis, and that he was
able to get a deal done by working with Naughton. Manley Tr. at 12-13, 16. Manley testified that
Davis’s only further involvement was signing the collective bargaining agreement once the terms
had been agreed to. Id. at 13.
Davis continued working as staff representative for Local 953 after the agreement was
signed, but was eventually terminated from the union altogether in September 2014 after he
pleaded guilty to federal charges relating to false tax filings and his conduct while serving on the
Highland Park Board of Education. Davis Tr. at 22-23.
II. STANDARD OF REVIEW
A court must grant “summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). “In making this determination, the court must view the evidence in the light most
favorable to the non-moving party and draw all reasonable inferences in its favor.” U.S. S.E.C. v.
Sierra Brokerage Servs., Inc., 712 F.3d 321, 327 (6th Cir. 2013). The court must determine
“whether the evidence presents a sufficient disagreement to require submission to a jury or whether
it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251-252 (1986). “[W]hen a properly supported motion for summary judgment is
made, the adverse party ‘must set forth specific facts showing that there is a genuine issue for
trial.’” Id. at 250 (quoting Fed. R. Civ. P. 56(e)). Furthermore, plaintiff “cannot rely on conjecture
or conclusory accusations.” Arendale v. City of Memphis, 519 F.3d 587, 605 (6th Cir. 2008).
III. ANALYSIS

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“A § 1983 claim must present two elements: (1) that there was the deprivation of a right
secured by the Constitution and (2) that the deprivation was caused by a person acting under color
of state law.” Wittstock v. Mark A. Van Sile, Inc., 330 F.3d 899, 902 (6th Cir. 2003). Regarding
the first element, “[i]t is well established that government actions, which standing alone do not
violate the Constitution, may nonetheless be constitutional torts if motivated in substantial part by
a desire to punish an individual for exercise of a constitutional right.” Thaddeus-X v. Blatter, 175
F.3d 378, 386 (6th Cir. 1999). In order to establish a First Amendment retaliation claim, the
plaintiff must show “(1) the plaintiff engaged in protected conduct; (2) an adverse action was taken
against the plaintiff that would deter a person of ordinary firmness from continuing to engage in
that conduct; and (3) there is a causal connection between elements one and two — that is, the
adverse action was motivated at least in part by the plaintiff’s protected conduct.” Id. at 394.
The only issue presently before the Court is whether there is genuine dispute of material
fact that Hall undertook an adverse action against Davis “that would deter a person or ordinary
firmness from continuing to engage” in protected conduct. Id. In his second amended complaint,
Davis alleges that Hall “approached some members” of Local 953 and requested that they speak
with Garrett about removing Davis as the local’s staff representative. Second Am. Compl. ¶ 108
(Dkt. 48). When asked during his deposition how he had heard that Hall wanted him removed as
staff representative, Davis repeated his assertion that he heard from “some of the union members.”
Davis Tr. at 27.
As noted above, “when a properly supported motion for summary judgment is made, the
adverse party ‘must set forth specific facts showing that there is a genuine issue for trial.’”
Anderson, 477 U.S. at 251-252 (quoting Fed. R. Civ. P. 56(e)). The adverse party is also prohibited
from relying on “conjecture or conclusory allegations.” Arendale, 519 F.3d at 605. Davis’s

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testimony that “some of the union members” told him of Hall’s statement that agreement on a
contract would not be reached unless Davis was removed as staff representative can hardly be
considered a specific fact sufficient to defeat a properly supported motion for summary judgment.
Further, Davis’s testimony constitutes hearsay. “Under Fed. R. Civ. P. 56(e), evidence
submitted in opposition to a motion for summary judgment must be admissible. Hearsay evidence
. . . must be disregarded.” U.S. Structures, Inc. v. J.P. Structures, Inc., 130 F.3d 1185, 1189 (6th
Cir. 1997). The Sixth Circuit addressed a similar set of facts in Guindon v. Township. of Dundee,
Michigan, 488 F. App’x 27 (6th Cir. 2012). In that case, the plaintiff brought a First Amendment
retaliation claim alleging that the defendant directed third parties not to employ or do business
with the plaintiff. Id. at 31. In response to the defendant’s motion for summary judgment, the
plaintiff submitted the declaration of a nonparty, David Hoffman. Id. at 38. In his declaration,
Hoffman stated that he was told by an unidentified employee of the defendant that the plaintiff
was not hired for certain jobs because of threats made by the defendant. Id. The court held that
“[b]ecause offered to prove the truth of the matter asserted, Hoffman’s declaration is inadmissible
hearsay under Fed. R. Evid. 801 and 802. Plaintiffs have not met their burden under Fed. R. Civ.
P. 56.” Id.
Similarly, Davis’s testimony is hearsay because he seeks to introduce out of court
statements allegedly made by union members for the truth of the matter asserted in the statements,
i.e., that Hall had stated that a deal would not be reached unless Davis was removed as staff
representative. As a result, Davis’s testimony that “some of the union members” told him of Hall’s
statements is insufficient to establish a genuine dispute of material fact.

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Davis also testified that Manley once told him that Hall made a comment about having
Davis removed from his job as staff representative. Davis Tr. at 46. This is also inadmissible
hearsay, because it seeks to introduce Manley’s out of court statement for its truth.
Manley did testify about a conversation he had with Hall concerning Davis, but there was
nothing actionable related in that conversation. Manley testified that he approached Hall before a
board meeting and requested that she speak with Naughton about getting a deal done with Local
953. Manley Tr. at 9. After informing Manley that she would not interfere in the negotiations,
she commented that Davis was not “doing anything good for getting the contract over.” Id. at 11.
Manley testified that he did not include this comment in his email to Garrett, and that Garrett only
called the meeting because of the email. Id. at 7-8. Once in the meeting, Manley mentioned Hall’s
comment regarding Davis as “another coal to the fire per se, something else to throw on.” Id. at
8.
It cannot be said that Hall’s statement — that Davis was not “doing anything good for
getting the contract over,” id. at 11 — “would deter a person of ordinary firmness from continuing
to engage” in protected First Amendment conduct. Thaddeus-X, 175 F.3d at 386. As the chief
negotiator for Local 953, and a self-described public activist, Davis, or anyone else in his shoes,
would not be deterred from engaging in protected conduct as the result of such a minor, vague and
non-specific criticism. See id. at 394 (requiring courts to tailor the adverse action prong to the
circumstances of the specific retaliation claim, and holding that prisoners and public employees
are required to tolerate more than the average citizen); see also Mezibov v. Allen, 411 F.3d 712,
722 (6th Cir. 2005) (comments by prosecutor that defense attorney was a bad lawyer,
inexperienced, and put his interests before his client’s did not rise to the level of an adverse action).

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Hall’s statement makes no reference to Davis’s protected conduct, i.e., his lawsuit against
Hall or his statements to the media, nor does it include any kind of threat or intimation that a
contract would not get finalized if Davis stayed on as staff representative. Hall also provided
unrebutted testimony that she informed Manley she would not interfere in negotiations and Manley
should speak directly with Naughton. Hall Tr. at 13. Unlike in Fritz v. Charter Township of
Comstock, 592 F.3d 718, 725 (6th Cir. 2010), which this Court discussed in its decision denying
Hall’s motion to dismiss, Hall’s statement to Manley did not express her “dislike and opposition”
to Davis’s protected speech, nor, more importantly, did the statement reference any effect the
protected conduct was having on the negotiations.

At most, it was criticism of Davis’s

effectiveness, which was made to a third party — not a threat to take significant action against
Davis.
Other cases finding instances of First Amendment retaliation illustrate how constitutionally
insignificant Hall’s actions were in comparison. See McBride v. Vill. of Michiana, 100 F.3d 457,
459 (6th Cir. 1996) (government officials were denied qualified immunity after they contacted the
employer of plaintiff, a local newspaper, in an attempt to get her removed from the political beat
for coverage they did not approve of), abrogated on other grounds by Thaddeus-X, 175 F.3d at
394; Strader v. Ky. Dep’t of Fish & Wildlife Res., No. CIV.A. 3:09-62-DCR, 2011 WL 181300,
at *8 (E.D. Ky. Jan. 19, 2011) (governmental department committed an adverse action when it
started a competing radio show in order to divert listeners from the plaintiff after he was critical
of the department). Hall’s relatively innocuous remark that Davis was not assisting the union does
not come close to the actions taken in these other cases.
Finally, Garrett’s testimony did not provide any evidence of an adverse action by Hall.
When questioned regarding the meeting he held with Davis and Manley, Garrett testified that he

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had no specific recollection of the meeting, much less the reason he called it. Garrett Dep., Ex. 1
to Pl. Supp. Br., at 14-17 (Dkt. 70-1). Regarding Hall, Garrett testified that she never told him
directly that there would not be a contract if Davis remained a member of the union bargaining
team, noting that their discussions were primarily limited to substantive contractual issues. Id. at
19-20, 23.
When asked if it was ever indirectly expressed to him that a contract would not be reached
with Davis on the bargaining team, Garrett responded that “I had a meeting with [Hall] in my
office that kind of gave me the sense of it.” Id. at 23-24. However, Garrett does not elaborate on
this and, when asked if he felt that Davis’s lawsuit affected his discussions with Hall, testified, “I
can’t say that I [sic] did.” Id. at 25. Garrett’s vague statement that he felt there was an implication
from Hall that a contract would not be reached if Davis was on the bargaining team does not create
a genuine dispute of material fact regarding whether Davis suffered an adverse action. See
Anderson, 477 U.S. at 250 (“when a properly supported motion for summary judgment is made,
the adverse party ‘must set forth specific facts showing that there is a genuine issue for trial’”)
(quoting Fed. R. Civ. P. 56(e)). An individual’s subjective feelings regarding the circumstances
surrounding an alleged adverse action do not control. See Bell v. Johnson, 308 F.3d 594, 606 (6th
Cir. 2002) (“the adverseness inquiry is an objective one . . . the relevant question is whether the
defendants’ actions are capable of deterring a person of ordinary firmness” (emphasis in original);
Santiago v. Blair, 707 F.3d 984, 992 (8th Cir. 2013) (“The ‘ordinary-firmness’ test is an objective
one, not subjective.”). Here, there are no concrete, objective facts communicating a threat relative
to Davis. At most, Garrett had a subjective “sense” that the contract might be held if Davis stayed
on the negotiating team, which “sense” is not constitutionally sufficient to survive summary
judgment.

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Because there is no admissible evidence that Hall committed an adverse action, Davis’s
First Amendment retaliation claim fails.
III. CONCLUSION
For the above reasons, the Court grants Hall’s motion for summary judgment (Dkt. 60).
SO ORDERED.

Dated: August 14, 2017
Detroit, Michigan

s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and any
unrepresented parties via the Court's ECF System to their respective email or First Class U.S. mail
addresses disclosed on the Notice of Electronic Filing on August 14, 2017.
s/Karri Sandusky
Case Manager

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