Hieber v. Oakland County et al
Filing
78
OPINION AND ORDER Granting 63 Defendants' Motion for Summary Judgment. Signed by District Judge F. Kay Behm. (KMac)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAVID HIEBER,
Case No. 22-11417
Plaintiff,
F. Kay Behm
United States District Judge
v.
OAKLAND COUNTY, et al.,
Defendants.
___________________________ /
OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT (ECF No. 63)
I.
PROCEDURAL HISTORY
Plaintiff, David Hieber, filed this lawsuit against his former employer,
Oakland County, and Kyle Jen, the Director of Management and Budget for
Oakland County. Hieber asserts claims of age discrimination under 42 U.S.C.
§ 1983 and the Elliott-Larsen Civil Rights Act (ELCRA), a violation of his due
process rights, a First Amendment retaliation claim, and a defamation claim. (ECF
No. 4). Defendants filed a motion for summary judgment, which is fully briefed.
(ECF Nos. 63, 64, 72, 73). The court held a hearing on the motion on March 20,
2024.
For the reasons set forth below, Defendants’ motion for summary
judgment is GRANTED.
1
II.
FACTUAL BACKGROUND
Oakland County (the “County”) is currently led by Oakland County
Executive David Coulter, who has been in this role since August 2019. Executive
Coulter assumed the position after the former County Executive L. Brooks
Patterson passed away. Following Coulter’s appointment, several Patterson
administration employees stayed on with the Coulter administration during the
transition and beyond. (PB at 8:22-12:18, LVP at 6:17-7:5, 9:5-10:3, 35:3-12; RW
at 4:2-3, 5:19-23, 8:25-9:6; JF at 7:3-4).1 On December 30, 2020, Defendant Kyle
Jen was appointed as the County’s Director of Management and Budget, and as
such Jen is responsible for overseeing the County’s Equalization Department (the
“Department”). (KJ at 6:16-7:18).
Hieber was hired by the County in 1994. (DH at 52:8-11). He was
considered a merit system employee, meaning he was not appointed by any
particular administration. (PB at 97:14-98:20). As such, Hieber was subject to the
County’s Merit Rules and Non-Discrimination policy. (Ex. 13). The Merit Rules
allowed Defendants to terminate Hieber only for “just cause” as defined by Merit
1
Deposition transcripts are cited to by the deponents’ initials, rather than number:
Plaintiff (“DH”), Kyle Jen (“KJ”), Phil Bertolini (“PB”), Laurie Van Pelt (“LVP”), Julie Fisher (“JF”),
Rosie Wood (“RW”), Hilarie Chambers (“HC”), April Lynch (“AL”), Dave Woodward (“DW”);
Jennifer Hain (“JH”), Michael McCabe (“MM”), and Ashley Young (“AY”).
2
Rule 8.3 and afforded him the procedures under Merit Rule 10, titled “Personnel
Appeal Board.” Id. Hieber held the Equalization Officer position for 19 years until
his termination in November 2021. (DH at 70:10-16).
On September 1, 2020, Hieber led a Zoom meeting with Department chiefs
and supervisors, including Bryan Paris (Hieber’s subordinate). (DH 131:5-133:1;
ECF No. 63-15). During the meeting, Hieber received a text from his daughter,
who told him that her high school math teacher asked students in the class about
their preferred pronouns. (DH at 120:6-23). According to Paris, unprompted and
with “disdain,” Hieber said to the meeting participants that the question was
unnecessary and acknowledged that his comment “didn’t serve a business
purpose.” (Id.; ECF No. 63-15; ECF No. 63-16 at 1). Paris, who identifies as openly
gay, was upset by Hieber’s dismissive attitude. (ECF No. 63-16 at 1-2, 6; ECF No.
63-17 at 8-10). Paris filed a complaint about Hieber’s comment (as well as other
concerns about bullying and biases), calling it “part of a broader pattern of
behaviors that have made it clear to (him) that Mr. Hieber discriminates...” (ECF
No. 63-15; ECF No. 63-16). Paris also stated that Hieber “engaged in
discriminatory behavior which I believe was meant to harass and intimidate me as
a member of the LGBT community,” and that his “bullying is a long-standing
problem that has endured because he was protected by members of the former
3
administration….” (ECF No. 63-15). Paris stated that “we are within days of an
election in which the administration could change and once again the county
could be under leadership of individuals that do not believe that a diverse and
inclusive environment, which is free from harassment and bullying.” Id.
The County opened an investigation into this complaint, during which nine
employees (including Hieber) were interviewed. (DH at 135:6-19; ECF Nos. 64-1,
64-2). During these interviews, Defendants say multiple other employees voiced
that there was a culture of intimidation in the equalization department. (ECF Nos.
63-17, 64-1). Hieber disputes this characterization, arguing that the only time
“intimidation” is stated in the investigative report is on page six, notes from
Jocelyn Isenberg’s interview, which reads, “Isenberg stated she doesn’t fear
retaliation or intimidation,” and page seven, notes from Tiffany Jacob’s interview,
that states, “There are no feelings of fear or intimidation, and overall the morale
is good Jacob thinks that this complaint may have something to do with Paris, as
he is the only one she recalls being upset over the past few months.” Id.
However, Isenberg also said that she would not want to be on Hieber’s “bad side”
because he gives the “cold shoulder,” does not like conflict, and would rather talk
about people behind their backs. (ECF No. 64-1, PageID.1112). Further,
employee Amanda Mitchell revealed in her 12/22/20 interview that she did not
4
personally feel intimidated, but others felt intimidated and there were fears of
possible retaliation. (ECF No. 63-17, PageID.1093-94). In her 11/20/20 interview,
Tracy Jones indicated that staff were encouraged to “obstruct and intimidate”
and it had been this way her entire career as a supervisor under Hieber. (ECF No.
64-1, PageID.1108).
As a result of the investigation, no evidence of discrimination was found
and the description of the Equalization Department as corrosive and fear-based
was not substantiated. (ECF No. 64-1, PageID.1114). Coaching for Hieber and
other chiefs was recommended. (ECF Nos. 64-1, 64-3). It was also recommended
that a “cultural assessment” of the entire department take place. (ECF No. 64-3,
PageID.1132). Hieber subsequently participated in coaching sessions related to
his management style and (in his words) “the pronoun deal.” (ECF No. 64-4, DH at
148:11-149:14). Hieber himself testified that he made minimal changes in
management style after these sessions. (DH at 146:16-148:7, 150:3-22; see also
450:23-452:10).
In November 2020, the County was in the process of implementing a
Separation and Retirement Incentive (the “Incentive”) to address the County’s
fiscal needs. (ECF No. 64-5). All County employees, regardless of tenure, were
eligible to participate in the entirely voluntary Incentive. (Id.; AL 18:20-18:23;
5
20:19-21:2, 24:17-25:5). The Incentive was managed by Deputy County Executive
and Human Resource Manager, April Lynch. (AL at 14:24-15:7, 15:24-16:1, 18:623, 19:9-12). The County had implemented similar incentive programs in the
past. (LVP at 87-88). Hieber points out that Lynch was known for calling older
workers “grandmas,” “old timers” and “deadwood.” (ECF No. 72-8). The
Incentive was approved on December 7, 2020. (ECF No. 64-5). Lynch indicated
that the purpose behind the initiative to encourage retirement was that it would
“enable us to prepare a workforce for the future; one that is competitive, nimble,
and reflective of the diversity of our county.” Id. Hieber did not opt in to the
Incentive, nor was he told he had to do so. (DH at 542:8-17; KJ at 14:14-22).
Sometime in August or September 2021, a long-time subordinate of Hieber,
Robert Doyle, raised his concerns about the work environment fostered by
Heiber. (JF 22:11-22:19, 24:4-24:11).2 Hieber admits that he had no reason to
believe that Doyle discriminated against him. (DH at 173:23-174:18, 180:6-23).
Around this time, the County circulated an anonymous voluntary survey about
diversity, equity, and inclusion in the County. (DH at 162:17-25, 542:17-543:15).
On October 18, 2021, Paris filed a grievance with the newly formed union about
2
Hieber maintains that Doyle did not complain until October 21, 2021 when he sent the
email to Wood. However, Fisher testified that Doyle complained to her about a month or two
before Hieber was placed on administrative leave, which was on October 21, 2021. (ECF No.
63-6, p. 24; ECF No. 64-16)).
6
Hieber, reporting that Hieber was heard by multiple employees “openly bashing”
the survey and saying he would lie about the survey. Paris also complained that
Plaintiff’s “continued behavior…creates a hostile work environment...” (ECF No.
64-6).
The next day, the County opened an investigation into this grievance. (Id.;
KJ at 18:25-19:13, 76:22-77:4). Paris’s report that Hieber was discouraging people
to take the survey and that he would not be honest about his answers to the
survey was substantiated by other employees who were interviewed during the
investigation. (ECF Nos. 64-7, 64-8, 64-9). Additional interview comments about
Hieber included:
a. Plaintiff was reported to have once said, “I don’t want
some flamer working in there” when the clerical
department was considering hiring a male employee for
its otherwise all female department. (ECF No. 64-10, at
6-7; ECF No. 64-15).
b. Plaintiff said about Paris, “That motherfucker, I have a
livelihood and he could have made me lose my
livelihood and he didn’t know who he was messing
with…he screwed up.” (ECF No. 64-8, at 5; ECF No. 6415; RW at 18:2-19:23).
c. An employee told investigators about the time when
an employee committed suicide. That employee had
been dating another County employee. When that
County employee began dating someone new, Plaintiff
said, “What’s the over under or what are the odds on
7
him blowing his head off?” (ECF No. 64-10, at 8-10; ECF
No. 64-15).
D. Plaintiff told an employee something like “somebody
should just kill them all” referencing Black Lives Matter
protestors. (ECF No. 64-11 at 17-18; ECF No. 64-15). He
also said, “We’ve got to be really careful with this one”
while rubbing his arm when talking about taking
potential disciplinary action against a Black employee.
(ECF No. 64-11 at 18-19; ECF No. 64-15). He also
expressed concerns about hiring a single mother
because he didn’t think she could be dependable. (ECF
No. 64-11 at 20; ECF No. 64-15).
e. Plaintiff had difficulty appreciating the importance of
mental health issues, diversity issues, and COVID
precautions. (See ECF Nos. 64-7, 64-9, 64-12, 64-13).
f. Plaintiff was referred to as “a psychopath” and “very
manipulative.” (ECF No. 64-9 at 4; ECF No. 64-10 at 11;
see also ECF Nos. 64-11, 64-13). Plaintiff was described
as “very charming and charismatic” but also “maniacal”
and that “everything he does he has an alternate move
(sic).” (ECF No. 64-8 at 5-6; ECF No. 64-9 at 5). One
employee felt “abused” and like Plaintiff was “always
playing mental games…always trying to pit…people
against each other.” (ECF No. 64-9 at 10; see also ECF
Nos. 64-7, 64-10, 64-11).
g. Someone said that Plaintiff yelled “many times” and
didn’t talk to her “for years,” and it is “absolutely” better
to be on his good side. (ECF No. 64-14 at 11-12).
h. With Plaintiff, “there could not be more of a toxic,
hostile work environment, retaliation, intimidation,” and
he was “retaliating against employees. Targeting
employees.” (ECF No. 64-8 at 2). He created a “toxic”
work environment using “a lot of intimidation tactics.”
8
(ECF No. 64-12 at 3; see ECF Nos. 64-10, 64-11, 64-12,
64-13, 64-15).
Interviewees also expressed fear for their safety, including fears of workplace
violence by Plaintiff. (ECF No. 64-8 at 29-30; ECF No. 64-12). One employee told
the investigators that he drove his wife’s car to the interview because “it wouldn’t
surprise me if he would have been sitting in the parking lot wondering who came
in. That’s how it is.” (ECF No. 64-10 at 14).3 Defendants suggest that employee
fears were not unwarranted, because Hieber had previously followed a female
employee from work because he suspected she was having an affair. Hieber
testified that he did not know where she was going but followed her because he
“just had suspicion that something just didn’t seem right,” and he “didn’t know
(he) was doing it until (he) did it.” (DH at 101:22-105:12, 111:1-114:17; LVP at
60:17:24).
At the conclusion of the investigation into the October 2021 complaint by
Paris, Labor Relations personnel drafted a summary of their findings, and a
meeting was held to determine next steps. (RW at 18:12-21:20, 23:21-24:2, 42:13, 43:2-22; 44:10-16). Given concerns raised during the investigation, Labor
3
Hieber suggests that it is not clear from Glenn’s interview that he is referring to Hieber
here. However, the entire purpose of the interview was to discuss Hieber, as made clear at the
outset of the interview. (ECF No. 64-10, pp. 2-3).
9
Relations decided to place Hieber on administrative leave pending the
investigation’s conclusion and remove him from County premises. (KJ at 22:1223:18, 27:16-28:10; AL 50:12-14, 51:20-52:2; JF at 52:10-14, 72:17-73:24; MM at
12:2-19, 22:17-23:19; RW at 47:22-48:16, 50:17-19, 52:25-53:13; 54:12-55:18).
The County placed Hieber on administrative leave on October 21, 2021. (ECF No.
64-16; DH at 168:13-19). Fisher informed Hieber of this in-person and provided
him with written notice. The written notice informing Hieber that he was placed
on administrative leave also informed him that he was not to engage in certain
conduct designed to ensure employee safety and to prevent Plaintiff from
intimidating potential witnesses in the investigation, given early reports received
during the investigation. (KJ at 36:1-37:8). More specifically, the notice directed
Hieber to not have any contact with any subordinate employee, not conduct any
County business, not come onsite to any county property, and return his ID
badge, county cell phone, keys and any other County issued property. (ECF No.
64-16). Two plainclothes officers wearing polo shirts and lanyards appeared with
Fisher given the safety concerns voiced by employees who worked with Hieber.
(DH at 168:20-169:10, 208:1-213:21, 214:12-217:2, 480:4-13; JF at 52:10-14,
72:17-73:24; RW at 47:22-48:16, 50:17-19, 52:25-53:13; 54:12-55:18).
10
On October 22, 2021, following conversations with Labor Relations and
others in County Executive leadership, Jen sent an email to employees in the
Equalization Department to ensure the smooth continuation of operations and
promote employee safety. (ECF No. 64-17; KJ at 41:6-42:20, 45:24-53:13; JF
39:15-40:10). In the email, Jen informed Equalization Department employees
that the County had placed Hieber on administrative leave. (ECF No. 64-17). Jen
also reminded employees of the protections provided by the Whistleblower
Protection Act and reiterated that it was his “goal to ensure that employees work
in a safe environment free of intimidation, coercion, harassment, retaliation or
discrimination.” Id. To this end, Jen also provided safety instructions on where to
park and how to enter and exit the building. Employees were also informed to
call 911 if they perceived immediate danger. Id.
On November 12, 2021, Hieber and his counsel met with the County’s
corporate counsel. (ECF No. 64-18; DH at 232:22-242:11). The parties discussed
that Hieber did not have the right to union representation, and Hieber was asked
about concerns reported during the investigation. (ECF No. 64-18; DH at 232:22242:11, 246:20-248:19). Based on the investigation’s findings, Jen determined it
would be appropriate to proceed with terminating Hieber’s employment. (KJ at
30:17-31:10). Jen formally decided this after the Executive Leadership Team was
11
briefed on the investigation and reached a consensus that termination was
appropriate. Id.; HC at 5:21-6:1. A Notice of Intent to Dismiss was sent to
Hieber’s attorney on November 22, 2021. (DH at 122:17-21, 270:1-17, 272:5-18;
ECF No. 64-13). The Notice set forth the reasons for Hieber’s termination, which
included comments and behavior by Hieber that were uncovered during the
investigation, and an explanation of the Merit System Rules he violated. Enclosed
with the Notice were also the guidelines for Pre-Termination Hearings. Id.
According to the County, Hieber’s termination followed two steps: a pretermination Loudermill hearing followed by an evidentiary-style Personnel Appeal
Board (“PAB”) hearing. (ECF Nos. 64-15, 64-19). Hieber maintains that
Defendants did not comply with these procedures. The Loudermill hearing was
held on November 23, 2021, during which Hieber was informed again of the
reasons for his termination, and he acknowledged that he had been provided with
the County’s bases for his termination. (ECF No. 64-20 at 4:6-5:15). During the
hearing, Hieber and his attorney were also provided with the opportunity to make
a statement and ask questions. Id. at 5:16-23, 6:1-8. Hieber was also told that
“this is not the time (Plaintiff) would plead his case, that would be done afterward
through the Personnel Appeal Board process.” (ECF No. 72-20; see also ECF No.
64-20, p. 6). They were then informed that Hieber would have the opportunity to
12
further challenge the action taken through a PAB hearing. Id. Following the
Loudermill hearing, the Labor Relations Hearing Officer issued a Decision to
dismiss Hieber from employment consistent with the Merit System Rules,
effective November 23, 2021. (ECF No. 64-21). The Decision of Dismissal
included instructions on Hieber’s ability to appeal his termination. Id.; DH at
280:1-283:4. On November 24, 2021, Hieber received a letter informing him of
his termination. (ECF No. 64-22).
On November 24, 2021, Jen sent an email to Equalization Department
employees informing them of Hieber’s termination and giving safety instructions.
(ECF No. 64-23). Like the October email, this email was to ensure the “physical
and psychological safety” of employees. (KJ at 61:11-67:23; JF at 20:17-21:13; AL
34:20-35:13).
Following the Loudermill hearing, Hieber appealed the decision to
terminate his employment to the County’s PAB, which he was permitted to do
under County policy. (ECF No. 64-24). During the PAB process, Hieber was
afforded a hearing, during which he would have the opportunity to present
evidence, including live witness testimony, to refute the bases for his termination.
(ECF No. 64-19; DW 15:13-16:2). PAB hearings are held before a panel of three
individuals, one of whom is elected by County employees. (DH at 359:6-22).
13
Hieber’s PAB panel consisted of Commissioner David Woodward, Barry Lepler,
and Gloria Harsten Spann. (ECF No. 64-25). Lepler and Harsten Spann are not
County employees. (DW at 21:1-22:4). Defendant’s Deputy County Executive,
Hilarie Chambers, made it known to Lynch and to Coulter that she was “besties”
with Bary Lepler. (ECF No. 72-24; ECF No. 72-25, at 5).
Ahead of the PAB hearing, Hieber contacted 10 potential witnesses,
including current employees of the County, and he obtained at least four witness
statements. (DH at 337:15-339:5, 339:11-340:19; JH 9:18-10:22; PB at 80:10-22,
ECF Nos. 64-26, 64-27). Hieber says he had a right to subpoena and call witnesses
by affidavit under the Merit rules but was not allowed to do so at the hearing.
(ECF No. 72-2). The Merit rules say nothing about the submission of affidavits in
lieu of testimony.4 Moreover, the Procedural Guidelines For Conducting
Personnel Appeal Board Hearings specifically provides that "[a]ffidavits of
unavailable witnesses, which address non-substantive issues, may be admitted by
the Chair." (ECF 64-19, PageID.1397). Unless Hieber sought to submit affidavits
from witnesses who were both unavailable and were providing testimony on nonsubstantive issues, this provision does not apply either.
4
Hieber highlights a provision regarding the submission of affidavits in support of a
motion for disqualification of a board member, but that does not apply here. (ECF No. 72-2,
PageID.2349).
14
Hieber sent seven emails to Defendants’ counsel asking for witness
cooperation for Hieber’s PAB hearing. (ECF No. 72-27). The County’s corporation
counsel also reassured Hieber’s counsel that he would “make all efforts possible”
to ensure witness cooperation for Heiber. (ECF No. 64-28). This promise was
reiterated at Hieber’s PAB hearing. (10:12-11:1, 14:11-21, 16:6-14; DW at 39:1940:1, 40:23-41:16). Hieber’s PAB hearing was originally scheduled for December
20, 2021, but the County agreed to move the PAB hearing to allow him to prepare
with his new counsel. (DH at 357:5-14, 373:16-23). At Hieber’s counsel’s request,
the County also agreed to hold the PAB hearing over Zoom. (DH 364:10-20,
551:17-554:11). During the first day of the PAB hearing, the County explained its
lack of subpoena power with respect to witnesses. Consistent with the PAB
hearing rules, the PAB panel members also requested that all testimony come
from witnesses, rather than through affidavits. (ECF No. 64-25 at 14:14-16:14;
DW at 36:1-37:15). While the PAB hearing rules indicated that the Board may
subpoena witnesses and documents as necessary, the panel chair made clear that
the panel did not have subpoena power under the law. (ECF No. 72-2,
PageID.2395, § 11.5.4; ECF No. 72-23, PageID.2742-43).
Both sides made opening statements, and the County put on Brian Paris as
a witness, who Hieber’s counsel cross-examined. (ECF No. 64-25 at 19-27, 29-44,
15
44-57). However, the PAB hearing was not completed in one day due to time
constraints, and due to limitations from both sides, the parties were unable to
reschedule the second day of the PAB hearing until a later date. (Id. at 66:3-21).
Hieber decided to not complete the PAB hearing, calling it a “waste of time.” (DH
at 383:9-384:2, 550:14-19). The PAB process concluded given his withdrawal.
III.
ANALYSIS
A.
Standard of Review
When a party files a motion for summary judgment, it must be granted “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). “A party
asserting that a fact cannot be or is genuinely disputed must support the
assertion by: (A) citing to particular parts of materials in the record . . .; or (B)
showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact.” Fed. R. Civ. P. 56(c)(1). The standard for determining whether
summary judgment is appropriate is “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.” State Farm Fire & Cas. Co. v.
McGowan, 421 F.3d 433, 436 (6th Cir. 2005) (quoting Anderson v. Liberty Lobby,
16
Inc., 477 U.S. 242, 251–52 (1986)). Furthermore, the evidence and all reasonable
inferences must be construed in the light most favorable to the non-moving
party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).
Where the movant establishes the lack of a genuine issue of material fact,
the burden of demonstrating the existence of such an issue then shifts to the nonmoving party to come forward with “specific facts showing that there is a genuine
issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). That is, the
party opposing a motion for summary judgment must make an affirmative
showing with proper evidence and to do so must “designate specific facts in
affidavits, depositions, or other factual material showing ‘evidence on which the
jury could reasonably find for the plaintiff.’” Brown v. Scott, 329 F. Supp. 2d 905,
910 (6th Cir. 2004). In order to fulfill this burden, the non-moving party only
needs to demonstrate the minimal standard that a jury could ostensibly find in his
favor. Anderson, 477 U.S. at 248; McLean v. 988011 Ontario, Ltd., 224 F.3d 797,
800 (6th Cir. 2000). However, mere allegations or denials in the non-movant’s
pleadings will not satisfy this burden, nor will a mere scintilla of evidence
supporting the non-moving party. Anderson, 477 U.S. at 248, 251.
17
The court’s role is limited to determining whether there is a genuine dispute
about a material fact, that is, if the evidence in the case “is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
Such a determination requires that the court “view the evidence presented
through the prism of the substantive evidentiary burden” applicable to the
case. Id. at 254. Thus, if the plaintiff must ultimately prove its case at trial by a
preponderance of the evidence, on a motion for summary judgment the court
must determine whether a jury could reasonably find that the plaintiff’s factual
contentions are true by a preponderance of the evidence. See id. at 252–
53. Finally, if the nonmoving party fails to make a sufficient showing on an
essential element of its case for which it carries the burden of proof, the movant
is entitled to summary judgment. Celotex, 477 U.S. at 323. The court must
construe Rule 56 with due regard not only for the rights of those “asserting claims
and defenses that are adequately based in fact to have those claims and defenses
tried to a jury,” but also for the rights of those “opposing such claims and
defenses to demonstrate in the manner provided by the Rule, prior to trial, that
the claims and defenses have no factual basis.” Id. at 327.
18
B.
Age Discrimination Claims
1.
Section 1983
Defendants argue that Hieber’s age discrimination claim under § 1983 is
preempted by the Age Discrimination in Employment Act (ADEA). The parties
acknowledge that the Sixth Circuit has not yet addressed whether the ADEA
preempts age discrimination claims brought under § 1983. However, another
District Judge in this district has addressed the issue, as well as other Circuit
Courts of Appeal, which evidences a circuit split. Fink v. Genesee, Cnty. of, 2023
WL 3571915, at *10 (E.D. Mich. May 19, 2023), reconsideration denied, No. 2210107, 2023 WL 4408438 (E.D. Mich. July 7, 2023) (“In sum, the First, Third,
Fourth, Fifth, Tenth, and D.C. Circuits have held the ADEA preempts all § 1983 age
discrimination cases, regardless of whether they stem from a violation of the
ADEA itself or the Equal Protection Clause. The Seventh Circuit is the only circuit
to have held the ADEA does not preempt § 1983 claims for age discrimination in
violation of the Equal Protection Clause.”) (citation omitted). Notably, the court
applies the same standards to a § 1983 discrimination claim as it would to a
discrimination claim brought under ELCRA. Thompson v. City of Lansing, 410 F.
App’x 922, 934 (6th Cir. 2011) (“(D)iscrimination brought under § 1981 and § 1983
are analyzed under the same standards as Title VII and ELCRA discrimination
19
claims”); see also Gutzwiller v. Fenik, 860 F.2d 1317, 1325 (6th Cir. 1988) (“the
showing a plaintiff must make to recover on a disparate treatment claim under
Title VII mirrors that which must be made to recover on an equal protection claim
under section 1983”). Below, the court has determined that Hieber’s age
discrimination claim under ELCRA fails as a matter of law because he cannot
establish a prima facie case. Thus, the court need not resolve the issue of
whether an age discrimination under § 1983 is preempted by the ADEA because,
even if it were not preempted, any such § 1983 claim would rise or fall with the
ELCRA claim because the applicable standard is the same. Thus, because Hieber’s
age discrimination claim under the ELCRA fails, any age discrimination claim he
has under § 1983 must also fail. Accordingly, to the extent Hieber can bring an
age discrimination claim under § 1983, it must fail for the same reasons outlined
below.
2.
ELCRA
Hieber alleges that he was discriminated against and discharged based on
his age in violation the ELCRA. The Sixth Circuit reviews claims of discrimination
brought under the ELCRA under the same standards as claims brought under Title
VII. Ladenberger v. Plymouth-Canton Cmty. Sch., 2018 WL 3914709, at *5 (E.D.
Mich. Aug. 16, 2018) (citing Idemudia v. J.P. Morgan Chase, 434 F. App’x 495, 499
20
(6th Cir. 2011)). A plaintiff may rely on direct evidence of discrimination, which is
“evidence which, if believed, requires the conclusion that unlawful discrimination
was at least a motivating factor in the employer’s actions.” Jacklyn v. Schering–
Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999). Absent
direct evidence of discrimination, a plaintiff may rely on circumstantial evidence
to establish a case of gender discrimination under the familiar burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hieber
does not rely on a direct evidence theory and thus, the analysis here proceeds
under the McDonnell Douglas framework. To establish a prima facie case for Title
VII gender discrimination under that framework, Hieber must show that: (1) he
belongs to a protected class, (2) he suffered an adverse employment action,
(3) he was qualified for the position, and (4) that the job was given to a person
outside the protected class or that he was treated differently than a similarly
situated, non-protected employee. Abdulnour v. Campbell Soup Supply Co., 502
F.3d 496, 501-02 (6th Cir. 2007); Lyons v. Metropolitan Gov’t of Nashville &
Davidson Cnty., 416 F. App’x 483 (6th Cir. 2011). If a plaintiff establishes a prima
facie case, the defendant can rebut it by articulating a legitimate nondiscriminatory reason for its action. Id. Thereafter, a plaintiff has the burden of
showing, by a preponderance of the evidence, that the legitimate asserted reason
21
was not the actual reason for the defendant’s actions, but in fact was pretext for
gender discrimination. Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009).
A plaintiff may establish that the defendant’s proffered reason is mere pretext by
establishing that it: (1) has no basis in fact; (2) did not actually motivate plaintiff’s
termination; or (3) was insufficient to warrant plaintiff’s termination. Abdulnour,
502 F.3d at 502 (citing Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078,
1084 (6th Cir. 1994)).
Defendants challenge Hieber’s discrimination claim based on circumstantial
evidence under the McDonnell Douglas burden-shifting paradigm. Defendants
challenge two elements of the prima facie case – that Hieber was subject to an
adverse employment action and that he was treated less favorably than a
similarly situated employee. Under applicable law, to establish that he was
treated differently than similarly situated employees, Hieber must show that he
and his proposed comparators were similar in all relevant respects. Ercegovich v.
Goodyear Tire & Rubber Co., 154 F.3d 344, 353 (6th Cir. 1998). In every case, the
court must make an “independent determination” of what factors are relevant,
and that determination depends on whether certain factors “are meaningful to
the particular claim of discrimination presented.” Rembert v. Swagelok Co., 2023
WL 3094546, at *7 (6th Cir. Apr. 26, 2023) (quoting Bobo v. United Parcel Serv.,
22
Inc., 665 F.3d 741, 751 (6th Cir. 2012), abrogated on other grounds by Univ. of
Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013)); see also Wright v. Murray
Guard, Inc., 455 F.3d 702, 710 (6th Cir. 2006) (explaining the necessity of
independently determining factors relevant to this inquiry). Ordinarily, “to be
deemed ‘similarly-situated,’ the individuals with whom the plaintiff seeks to
compare his/her treatment must have dealt with the same supervisor, have been
subject to the same standards and have engaged in the same conduct without
such differentiating or mitigating circumstances that would distinguish their
conduct or the employer’s treatment of them for it.” Jordan v. Mathews Nissan,
Inc., 539 F. Supp. 3d 848, 873 (M.D. Tenn. 2021) (quoting Mitchell v. Toledo Hosp.,
964 F.2d 577, 583 (6th Cir. 1992)). For Hieber to meet his burden, he must do
more than make “generalized and vague allegations” that another employee was
treated better than him. Stewart v. Esper, 815 F. App’x 8, 17 (6th Cir. 2020)
(quoting Frazier v. USF Holland, Inc., 250 F. App’x 142, 147 (6th Cir. 2007)).
Hieber offers Paris as a comparator and argues that he was treated
differently than Paris for similar conduct:
Ms. Young made a complaint about M(r). Paris making a
blatantly discriminatory comment towards Ms. Young’s
sexual orientation. In violation of the NonDiscrimination Policy, Defendant did not initiate an
investigation, interview employees from the
Equalization Division, or gather statements and records
23
as part of a fact-finding process. Defendant did not
evaluate whether Mr. Paris’ discriminatory comment
created a hostile work environment. Most importantly,
Defendant did not discipline or terminate Mr. Paris’
employment for violating Defendant’s NonDiscrimination Policy.
(ECF No. 72, PageID.2327). Hieber argues that Paris is a proper comparator
because Defendants purportedly terminated Hieber for violating the NonDiscrimination Policy and this policy applies to all employees, regardless of
whether the employee is a member of management or a union. (ECF No. 63-14,
PageID.1059). Further, Hieber points out that Paris is also a managerial employee
that supervises other employees and was likewise alleged to have made a
discriminatory comment that would violate the Non-Discrimination Policy.
According to Hieber, because Paris, who is substantially younger than him,5
engaged in similar behavior and was treated more preferentially, there is a
genuine issue of material fact on this element.
5
At the hearing, the court inquired whether there was evidence of Paris’s age in the
record. Counsel could not point to any such evidence. Hieber has since filed a mo on for the
court to take judicial no ce of Paris’s age, which is 44 years old. (ECF No. 76). This would place
Paris in the category of “substan ally younger” than Hieber, who is 53 years old. See Grosjean
v. First Energy Corp., 349 F.3d 332, 340 (6th Cir. 2003) (An age difference of six years is not
significant, but an age difference of eight years is significant.). However, as discussed below,
Paris is not a proper comparator, regardless of his age.
24
Defendants maintain that Paris is not proper comparator for several
reasons. First, Hieber and Paris did not share a supervisor. Hieber was the head
of the Equalization Department, and Paris was a supervisor—multiple “ranks”
below Hieber and in Hieber’s chain of command. (DH 193:21-24; AY 10:20-11:22).
Defendants also argue that Hieber was alleged to have created a hostile work
environment based on several offensive comments, while Paris made a single
comment to Young, who was outside Paris’s chain of command. Defendants also
point out that Young’s complaint was noted in Paris’s personnel file, much like the
outcome of Paris’s first complaint, which did not result in disciplinary action
against Hieber. (RW at 12:18-13:21).
In the court’s view, the complaint made by Young about Paris and the 2020
complaint made by Paris about Hieber are so vastly different in scope and kind
that it is not proper to compare Defendants’ treatment of those complaints. As
Defendants point out, the complaint about Paris was a single offensive remark
made on one occasion and was not alleged to be part of a broader problem. In
contrast, Paris’s complaint about Hieber involved not just the allegedly
discriminatory remarks made during the September 1, 2020 Zoom meeting, but
was alleged to part of a “broader pattern of behaviors” that Paris believed
evidenced Hieber’s discriminatory intent based on age, sex, race, and gender.
25
(ECF No. 63-15). Paris identified several circumstances in which he believed he
was targeted by Hieber and two of Hieber’s chiefs. Id. Paris described Hieber’s
bullying as a “long-standing problem.” Id. How Defendants address a single
offensive remark on one occasion is not comparable to the complaint lodged by
Paris, which detailed an alleged pattern of long-term abusive behaviors by Hieber
and his team. Accordingly, the court concludes that Hieber has not shown that
Paris “engaged in the same conduct without such differentiating or mitigating
circumstances that would distinguish their conduct or the employer’s treatment
of them for it.” Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992).
Accordingly, Hieber’s age discrimination claim must fail because he cannot show
he was treated differently than a similarly situated person outside his protected
class and has failed to establish a prima facie case.6
C.
Political Retaliation Claim
Hieber’s First Amendment retaliation claim is based on his affiliation with
the Patterson administration. (ECF No. 4, PageID.91-92, ¶¶ 139-140; DH at
202:16-23 (acknowledged by Plaintiff’s counsel)). Claims of retaliation based on
political affiliation are evaluated under the same framework as claims based on
6
Based on this conclusion, the court need not address Defendants’ remaining
arguments in favor of summary judgment.
26
protected speech. See Kubala v. Smith, 984 F.3d 1132, 1139 (6th Cir. 2021); Papin
v. Cnty. of Bay, 2018 WL 6505363, at *6 (E.D. Mich. Dec. 11, 2018). The plaintiff
must show that: 1) he engaged in constitutionally protected conduct; 2) an
adverse action was taken against him that would deter a person of ordinary
firmness from continuing to engage in that conduct; and 3) a causal connection
showing that the adverse action was motivated at least in part by his protected
conduct. Kubala, 984 at 1139 (quoting Dye v. Off. of the Racing Comm’n, 702 F.3d
286, 294 (6th Cir. 2012). In the political discharge context, protected activity
includes adopting certain political beliefs, supporting a particular political
candidate, or affiliating with a political party or group. Garvey v. Montgomery,
128 F. App’x 453, 458 (6th Cir. 2005) (citing Lucas v. Monroe County, 203 F.3d 964,
975 (6th Cir. 2000) (“The First Amendment prohibits government officials from
making employment decisions, such as hiring or firing, based on the employee’s
political beliefs, affiliation, or support.”). If the plaintiff meets this burden, the
burden then shifts to Defendants “to prove by a preponderance of the evidence
that the employment decision would have been the same absent the protected
conduct.” Eckerman v. Tenn. Dept. of Safety, 636 F.3d 202, 208 (6th Cir. 2010)
(citing Sowards v. Loudon Cnty, 203 F.3d 426, 431 (6th Cir. 2000)).
27
Defendants argue that Hieber’s claim fails for several reasons. First, they
argue that Hieber identifies no protected conduct, such as where he “took sides”
between Patterson and Coulter, voiced a lack of support for Coulter, or told Jen or
Coulter about his political affiliation, or supported a candidate adverse to Coulter.
Defendants also argue that there is no evidence that Defendants were aware of
Hieber’s political preferences. In response, Hieber says there is circumstantial
evidence that he was perceived to belong to a faction loyal to Patterson. He
points to evidence of the buyout incentive with the stated purposes of developing
a new, nimble workforce. According to Hieber, taking into account Lynch’s
comments, a jury could reasonably infer that Defendants were acting on a desire
to rid itself of older, long-term employees that were politically loyal or affiliated
with the Patterson administration. Hieber argues that this perception is further
supported by Paris’s October 7, 2020 complaint, (which Defendants acted on),
referencing the proximity to an election and the fact that “once again” the county
could be under leadership that did not support diversity or an inclusive
environment, suggesting that the Patterson regime and those associated with
it did not.
The court agrees with Defendants that there is insufficient evidence of
protected conduct. There is no dispute that Defendants were aware that Hieber
28
was employed in his position during the prior administration. However,
Defendants’ awareness that Hieber was a non-politically appointed employee
during the Patterson administration is not sufficient to constitute protected
conduct in the absence of some other activity, statement of support, action or
speech by Hieber indicating his loyalty or support for the prior administration or
the Republican party, or evidence that Defendants so perceived Hieber in that
vein. That is, this is only evidence that Hieber was employed during the last
administration, not that he was (or was perceived to be) loyal to the prior
administration or the Republican Party. It is true that perceived affiliation, as
opposed to actual affiliation is sufficient, see Dye v. Off. of the Racing Comm’n,
702 F.3d 286, 299 (6th Cir. 2012), but there still must be evidence of that
perception. Hieber has not pointed to any evidence in the record showing that
Defendants knew or believed him to be loyal to Patterson or affiliated with the
Republican Party. In contrast, in Dye, affidavits detailed how the Racing
Commissioner (a Democratic appointee) accused certain stewards of supporting
the Republican candidate for governor and threatened to take away certain
benefits. Id. at 300. Other evidence set forth in affidavits detailed that
Democratically affiliated employees were treated more favorably than those who
were or were perceived to be affiliated with the Republican Party. Id. at 301; see
29
also id. at 302 (There was ample evidence to support the stewards’ contention
that Defendants attributed a political affiliation to the stewards.). Hieber offers
no such similar evidence7 and accordingly, the claimed protected conduct does
not rise above mere speculation. See Kelly v. Warren County Bd. of Comm’rs, 396
F. App’x 246, 250 (6th Cir. 2010) (“mere speculation does not create a genuine
issue of material fact to overcome summary judgment”).
D.
Due Process
Due process requires a pretermination hearing, the formality of which
depends upon the importance of the interest and the nature of the subsequent
proceedings. Farhat v. Jopke, 370 F.3d 580, 595 (6th Cir. 2004) (citing Duchesne v.
Williams, 849 F.2d 1004, 1006–07 (6th Cir. 1988)). For public employees who can
only be fired for cause, the Supreme Court has held, specifically, that a
pretermination proceeding is required. Id. (discussing Cleveland Board of
Education v. Loudermill, 470 U.S. 532, (1985)). In Loudermill, the Supreme Court
held that a full evidentiary hearing is not required prior to termination. Rather,
7
During the hearing Hieber’s counsel pointed to Hieber’s testimony that he was a
member of Patterson’s “Oakland County Executive Club,” which was some type of political
fundraising club. (ECF No. 63-2, pp. 490-91). However, Hieber did not testify that any of the
decision makers involved in his termination were aware of his involvement in that club and
counsel pointed to no evidence to support the notion that any decision makers had actual
knowledge of his political affiliation or evidence to support any purported perception.
30
the pretermination hearing is to provide an initial check against mistaken
conclusions, “essentially, a determination of whether there are reasonable
grounds to believe that the charges against the employee are true and support
the proposed action.” Id. (quoting Loudermill, 470 U.S. at 545–46). The essential
elements required for due process are notice and an opportunity to respond,
either in writing or in person. Id. (citing Loudermill, 470 U.S. at 546).
More specifically, before the termination of a public employee who has a
property interest in his employment, the due process clause requires that the
employee be given “oral or written notice of the charges against him or her, an
explanation of the employer’s evidence, and an opportunity to present his or her
side of the story to the employer.” Id. (quoting Buckner v. City of Highland Park,
901 F.2d 491, 494 (6th Cir. 1990)). “To require more than this prior to
termination would intrude to an unwarranted extent on the government's
interest in quickly removing an unsatisfactory employee.” Loudermill, 470 U.S. at
546. The Sixth Circuit also held that at the pretermination stage, the employee
does not have a right to, and the Constitution does not require, a neutral and
impartial decisionmaker. Farhat, 370 F.3d at 595. The “right of reply” before the
official responsible for the discharge is sufficient. Id. (citing Duchesne, 849 F.2d at
1006). Instead a neutral decisionmaker is needed to adjudicate the evidence at
31
the post-deprivation stage. Id. at 595-96. “Where there is a system of posttermination procedures available to the employee that includes a neutral
decisionmaker and/or arbitration, coupled with a pretermination ‘right of reply’
hearing, then the employee has received all the process due under the
Constitution.” Id. at 596 (citing Duchesne, 849 F.2d at 1006; Buckner, 901 F.2d at
494; Loudermill, 470 U.S. at 545).
Further, the law is well-established that it is the opportunity for a postdeprivation hearing before a neutral decisionmaker that is required for due
process. Id. at 596. So long as the procedural requirements are reasonable and
give the employee notice and an opportunity to participate meaningfully, they are
constitutionally adequate. Id. Indeed, the “availability of recourse to a
constitutionally sufficient administrative procedure satisfies due process
requirements if the complainant merely declines or fails to take advantage of the
administrative procedure.” Id. (quoting Dusanek v. Hannon, 677 F.2d 538, 542–43
(7th Cir. 1982) (citations omitted)). Accordingly, “where the employee refuses to
participate or chooses not to participate in the post-termination proceedings,
then the employee has waived his procedural due process claim.” Id. (citing
Krentz v. Robertson Fire Prot. Dist., 228 F.3d 897, 904 (8th Cir.2000) (citations
omitted)).
32
Hieber argues that Defendants failed to provide him the constitutionally
minimum pre-deprivation due process. More specifically, Hieber argues that
Defendants were obligated to provide him with not only notice of the charges
against him and the evidence they had against him, but also provide him with an
opportunity to respond. According to Hieber, Defendants thwarted that
opportunity by instructing Hieber through his attorney that the pre-deprivation
hearing would not be a place to present his response. On November 22, 2021,
Woods wrote that “this is not the time that Mr. Hieber would plead his case, that
would be done afterward through the Personnel Appeal Board process.” (ECF No.
72-18). Thus, Hieber maintains that Defendants failed to provide him an
opportunity to respond by indicating the pre-deprivation hearing was not the
time or place to do so; instead, Defendants used it only to provide Hieber notice,
which is insufficient to meet the bare minimum due process requirements set
forth in Loudermill.
As explained in Farhat, the due process clause requires that the employee
be given “oral or written notice of the charges against him or her, an explanation
of the employer’s evidence, and an opportunity to present his or her side of the
story to the employer.” 370 F.3d at 595. An evidentiary hearing at this stage is
not required. Id. After he was placed on administrative leave, Hieber and his
33
counsel met with the County’s corporate counsel on November 12, 2021
regarding the reasons he was placed on leave. (ECF No. 64-18). At this meeting,
with his attorney present, Hieber was given an extensive opportunity to present
his side of the story and respond to the allegations. (ECF No. 64-18).
While this meeting was not the official Loudermill hearing, that does not
mean that it did not satisfy Loudermill’s mandate. Buckner v. City of Highland
Park, 901 F.2d 491 (6th Cir. 1990) is instructive in this regard. Buckner was a
police officer employed by the City of Highland Park. Id. at 492. He visited a
complaining witness at her home with a witness complaint form and proceeded
to interrogate her about her sexual activities and assaulted her. Another officer
called and heard the witness demanding that Buckner leaver her apartment. The
other officer reported the incident. Id. Buckner was informed of the complaint
and fled to the hospital saying he needed treatment for alcohol abuse after being
informed that the police chief wanted to speak with him. Id. An officer and a
union representative went to the hospital to interview Buckner, who refused to
comment on the allegations. Buckner was then suspended with pay, pending
further investigation. Id. The police chief asked the union’s chief steward to
advise Buckner of the charges against him and obtain his account of the incident.
The police chief advised the steward that he intended to discipline Buckner. The
34
chief steward visited Buckner in the hospital, but he again refused to make any
statement. Id. Eight days later, the police chief made a preliminary
determination and recommended to the mayor that Buckner be discharged,
which the mayor approved. Id. at 493. Buckner filed a grievance regarding his
suspension and termination, claiming that he was denied procedural due process.
Id. Buckner then filed suit claiming that his discharge violated his due process
rights because a hearing was not held before his termination. Id. The district
court found that Buckner was not provided pretermination due process in
accordance with Loudermill. Id. During the pendency of the district court action,
Buckner’s grievance was submitted to arbitration. The arbitrator found that the
due process standards of Loudermill were satisfied. Id.
The Sixth Circuit also found that Loudermill’s requirements were satisfied.
Id. at 495. More specifically, the court found that the visits to Buckner in the
hospital where he was confronted with the charges against him by the union
representative and an officer, along with later visit by the steward satisfied the
first two Loudermill requirements. Id. While these meetings lacked the
formalities of the City’s usual pretermination proceedings,8 the officer who
8
“The usual pre-termination process for discharging Highland Park police officers
involved a meeting between Chief Ford, the officer against whom discipline was considered,
and a union representative, at which the formal charges were discussed and Chief Ford heard
the officer’s views.” Id. at 495.
35
represented the police chief served in virtually the same capacity as the chief
would have in the standard pretermination proceedings. Id. “The fact that the
union representatives and Lt. Holloway may have acted pursuant to the
provisions of the collective bargaining agreement or pursuant to a criminal
investigation does not in any way taint the oral and written notice Buckner
received, nor does it affect the fact that the charges were explained to him.” Id.
Moreover, Buckner was offered the opportunity to present his side of the story at
both meetings, satisfying the third element of Loudermill. Id.
Again, as described above, Hieber was given the opportunity to present his
side of the story – which is all Loudermill requires – at the November meeting
with counsel. Additionally, Heiber was afforded a second opportunity to tell his
side of the story at the formal Loudermill hearing. The Loudermill hearing was
held on November 23, 2021, during which Hieber was informed again of the
reasons for his termination, and he acknowledged that he had been provided with
the County’s bases for his termination. (ECF No. 64-20 at 4:6-5:15). Hieber and
his attorney were also provided with the opportunity to make a statement and
ask questions. Id. at 5:16-23, 6:1-8. Hieber was also told that “this is not the time
(Plaintiff) would plead his case, that would be done afterward through the
Personnel Appeal Board process.” (ECF No. 72-20; see also ECF No. 64-20, p. 6).
36
They were then informed that Hieber would have the opportunity to further
challenge the action taken through a PAB hearing. Id. Despite this directive,
Hieber was permitted to present a statement, respond to the allegations, and ask
questions, which is all that is required by Loudermill. To the extent he complains
that he was not permitted to present witness testimony, or proceed with an
evidentiary hearing, that is not required under Loudermill. Accordingly, the court
concludes that Loudermill was satisfied via both the pre-hearing meeting with
counsel and the official Loudermill hearing.
Most notably, Hieber decided to not complete the PAB hearing, calling it a
“waste of time.” (DH at 383:9-384:2, 550:14-19). “The law is well-established
that it is the opportunity for a post-deprivation hearing before a neutral
decisionmaker that is required for due process. As long as the procedural
requirements are reasonable and give the employee notice and an opportunity to
participate meaningfully, they are constitutionally adequate.” Humphrey v. Scott
Cnty. Fiscal Ct., 211 F. App’x 390, 392 (6th Cir. 2006) (quoting Farhat v. Jopke, 370
F.3d 580, 596 (6th Cir. 2004) (citation omitted)). If the government provides this
opportunity, and “the employee refuses to participate or chooses not to
participate in the post-termination proceedings, then the employee has waived
his procedural due process claim.” Id. (citation omitted). Hieber’s failure to take
37
advantage of the post-deprivation hearing process dooms his due process claim.
See id. (The plaintiff waived his procedural due process claim by failing to pursue
the administrative remedies provided by state law).
Hieber attempts to avoid this result by asserting that the post-deprivation
hearing was rendered a “sham” based on several purported due process
violations. A “sham” proceeding is one in which the outcome of the hearing is
predetermined and thus does not afford due process. Ross v. City of Memphis,
394 F. Supp. 2d 1024, 1038–39 (W.D. Tenn. 2005) (citing Wagner v. City of
Memphis, 971 F. Supp. 308, 318–19 (W.D. Tenn. 1997)). Sham proceedings
“eviscerate the protection afforded to municipal employees under the Due
Process Clause of the Fourteenth Amendment.” Wagner, 971 F. Supp. at 319.
Hieber makes several arguments in support of his claim that the PAB hearing was
a sham.
First, Hieber says that the decision maker was not neutral because the
Deputy County Executive was friends with one member of the PAB and thus,
could not be impartial. However, Hieber has not developed any record to support
any conflict of interest that might exist based on an alleged friendship between
one PAB member and the Deputy County Executive. Hieber did not depose Lepler
or Chambers and cites no authority suggesting that the email itself declaring
38
Lepler as Chambers’ “bestie” is sufficient to support a conflict of interest. Thus,
there was no due process violation on this basis.
Second, Hieber contends that Chairman Woodward had a conflict of
interest because he sat on the PAB and the County’s Finance Committee and
Claims Committee, which rejected the settlement with Hieber. It is difficult to
imagine how Woodward could have had a conflict of interest in January 2022,
when the PAB hearing took place, based on the failure to approve a settlement,
the negotiations for which did not even begin until several months later, in the
Spring of 2022. (ECF No. 29, PageID.321, Plaintiff’s Motion to Enforce Settlement)
(“That in the spring of 2022, Defendants began settlement negotiations with
Plaintiff.”). Thus, this purported conflict of interest could not have violated
Hieber’s right to due process.
Third, Hieber claims the PAB did not allow Hieber to call witnesses or issue
subpoenas, and Jen’s emails made employees scared to cooperate with Hieber.
According to the PAB hearing transcript, Woodward made clear that all witnesses
who submitted affidavits would be permitted to testify at a later date. (ECF No.
64-25, PageID.1437). Additionally, Defendants’ counsel indicated that he would
contact all witnesses that Hieber sought to have testify and inform them that the
County was not prohibiting them from testifying and had no intention of having a
39
chilling effect on their attendance at the future hearing. Id. at PageID.1441. Prior
to the hearing, the County’s corporation counsel also reassured Hieber’s counsel
that he would “make all efforts possible” to ensure witness cooperation for
Hieber. (ECF No. 64-28). Again, the PAB members indicated, however, that the
PAB had no subpoena powers. (ECF No. 64-25, PageID.1442). Given that it was
anticipated that a future hearing would take place where Hieber’s witnesses
would be able to testify, and the County’s counsel made repeated assurances
regarding witness cooperation, the PAB did not refuse to allow him to call
witnesses and thus, did not deny due process in this regard.
Fourth, Hieber says the PAB refused to accept his affidavits. The Procedural
Guidelines For Conducting Personnel Appeal Board Hearings specifically provides
that “[a]ffidavits of unavailable witnesses, which address non-substantive issues,
may be admitted by the Chair.” (ECF No. 64-19, PageID.1397). Thus, under the
PAB Guidelines, affidavits on the substantive issues were not permitted.
Moreover, Hieber does not address the fundamental unfairness of allowing one
side to proceed via affidavit without the opportunity for cross-examination. The
refusal to allow affidavits, particularly where such witnesses were allowed to
testify, did not violate Hieber’s due process rights.
40
Fifth, Hieber says that Defendants failed to cooperate with his requests for
documents. At the PAB hearing, Hieber’s counsel alleged that they never got any
of the documents they requested. (ECF No. 64-25, PageID.1439). Hieber’s
counsel was not able to identify during the hearing on this motion any particular
documents that he requested but did not receive. It is clear from the PAB hearing
transcript that each side provided exhibits in advance to the panel, although the
precise documents are not specifically identified. (ECF No. 72-23). In the absence
of Hieber’s more precise identification of documents he did not receive before
the PAB hearing, the court finds no due process violation. Based on the
foregoing, Hieber’s claim that the purported violations rendered the PAB hearing
a “sham” is unavailing and his due process claim must fail.
E.
Qualified Immunity
Qualified immunity protects governmental officials from suit as long “as
their conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982). The ultimate question is “whether a reasonable [official] could
have believed [the challenged action] to be lawful, in light of clearly established
law and the information [he] possessed.” Anderson v. Creighton, 483 U.S. 635,
641 (1987). A qualified immunity analysis requires a two-pronged inquiry. The
41
first prong addresses whether the facts, “when taken in the light most favorable
to the party asserting the injury, show the [defendant’s] conduct violated a
constitutional right.” Mullins v. Cyranek, 805 F.3d 760, 765 (6th Cir. 2015). The
second prong asks whether the right was “clearly established such ‘that a
reasonable official would understand that what he is doing violates that right.’”
Id. (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)).
As set forth above in detail, the court finds Hieber’s constitutional claims to
be without merit. Accordingly, Hieber cannot satisfy the first prong of the test,
and Jen is entitled to qualified immunity.
F.
Defamation
Hieber’s defamation claim is premised on Jen’s October 22 and November
24, 2021 emails. Defendants argue that Hieber cannot point to any language in
either email which was false or defamatory, instead calling the emails part of a
“witch hunt.” (DH at 434:16-436:20). In the first email, Jen informed the entire
Equalization staff that Hieber was on leave and that “all employees have been
advised to work from home today and Monday.” (ECF No. 72-17). Hieber argues
that the email suggested to employees that he was so dangerous that the County
had to modify its security measures for parking, entering, and exiting the building,
to protect employees from Plaintiff. The second email advised that (1) Hieber was
42
asked to refrain from any type of contact with employees to report the nature of
contact to the HR/Labor Relations, (2) if Hieber appears on site to call 9-1-1, (3) if
Hieber appear at an employee’s house to call 9-1-1, and (4) that new security
measures were in place regarding how employees are to enter the building. (ECF
No. 72-22). Hieber contends that Jen’s email implied that Hieber was a danger,
and that as such precautionary measures were being instituted.
Defamation (based on implication or otherwise) requires: 1) a false and
defamatory statement concerning the plaintiff, 2) an unprivileged communication
to a third party, 3) fault amounting to at least negligence on the part of the
publisher, and 4) either actionability of the statement irrespective of special harm
… or the existence of special harm caused by publication. Kevorkian v. American
Med Ass’n, 237 Mich. App. 1, 8; (1999); see also Vollmar v. Laura, 2006 WL
1008995, *4 (Mich. App. Apr. 18, 2006) (statements by board member that
someone did something illegal and unethical while implicating plaintiff were
insufficient to sustain defamation claim). Expressions of opinion are protected
from defamation actions. Hodgins v. Times Herald Co., 169 Mich. App. 245, 253–
54 (1988) (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974)). However,
there is no constitutional protection given to false statements of fact, so false
statements of fact are not protected from libel suits. Id. (citing Gertz, 418 U.S. at
43
340). Direct accusations or inferences of criminal conduct or wrongdoing are not
protected as opinion. Id. (citing Church of Scientology of California v. Flynn, 744
F.2d 694, 698 (9th Cir. 1984); Cianci v. New Times Publishing Co., 639 F.2d 54, 65
(2d Cir. 1980)). However, exaggerated language used to express opinion, such as
“blackmailer,” “traitor,” or “crook,” does not become actionable merely because
it could be taken out of context as accusing someone of a crime. Id. (citing
Greenbelt Cooperative Publishing Ass’n v. Bresler, 398 U.S. 6, 14 (1970)).
In Hodgins, the court examined whether the defendant’s statements
constituted an unprotected accusation of criminal conduct or use of more generic
language that does not constitute accusing someone of a crime. The letter at
issue in Hodgins implied that plaintiffs sold animals to be used to train dogs for
dog fights, stating: (1) “Dog Pound animals are sold not only to hospitals (which
are not necessarily humane) but to anyone with Mr. Hodgins’ asking price.”; and
(2) “Some of the more frail dogs and some of the kittens and cats end up as
‘training animals' to be killed by dogs being trained for the many dog fights staged
weekly in the state.” Id. at 249-50. The court concluded that the letter at issue in
Hodgins accused implied that the plaintiff sold dogs to people who use them for
dog fights, a crime under Michigan law and federal law. Id. at 254. The court held
that the “language accuses or strongly implies that plaintiffs are involved in illegal
44
or wrongful conduct involving dog fighting and moves across the line dividing
strongly worded opinion from accusation of crime” and thus, the “statements are
not protected by the First Amendment from libel suits.” Id.
Nothing in Jen’s emails accused Hieber of having committed a crime or is
otherwise false. Hamilton v. Jeannot, 2015 WL 5167914, at *9 (Mich. Ct. App.
Sept. 3, 2015) (“[A] defamatory statement must be provable as false to be
actionable.”) (citation omitted). Instead, the emails were limited to notifying
County personnel of the actions they should take if Hieber appeared on County
property or at their home, since he was barred from County property and from
contacting employees. At worst, the emails suggest Jen’s opinion about Hieber’s
possible future conduct, not a false statement about his actual conduct.
Lakeshore Cmty. Hosp., Inc. v. Perry, 212 Mich. App. 396 (1995) (expressions of
opinion are not actionable in defamation); Cenveo Corp. v. CelumSolutions
Software GMBH & Co. KG, 504 F. Supp. 2d 574 (D. Minn. 2007) (“the statement ...
is a statement about future events and therefore does not imply the existence of
a fact”). Such statements about future conduct are not actionable. For example,
in Hamilton v. Jeannot, the court noted that an opinion that the plaintiff was
unemployable in the future in Benzie County was a subjective opinion that could
not be verified. Id. at *9. However, when accompanied by the statement that the
45
plaintiff was unemployable because he “burned too many bridges,” it was implied
that the plaintiff engaged in inappropriate conduct that would justify members of
the community refusing to do business with him, given that the phrase “burned
too many bridges” means the person abused their relationships with others so as
to justify severing the relationships. Id. Here, any implication of future wrongful
conduct by Hieber that could be made from Jen’s emails is not accompanied by
any opinion of past wrongful conduct. See e.g., WCP/Fern Exposition Servs., LLC v.
Hall, 2011 WL 1157699, at *13 (W.D. Ky. Mar. 28, 2011) (Statement “qualifies as
privileged opinion because it was simply a prediction about a possible future
event; it thus could not be grounded in any fact, much less a defamatory one, and
is protected as pure opinion.”). Accordingly, the emails are not defamatory.
Hieber’s claim for defamation must, therefore, fail.
Additionally, Jen’s emails are protected by qualified privilege.9 Qualified
privilege is an immunity to defamation that exists between people who have an
interest in the subject matter of the communication. Smith v. Fergan, 181 Mich.
9
Hieber argues that Defendants failed to sufficiently raise qualified privilege as a
defense in this matter. In Affirmative Defense No. 18, Defendants stated any and all
statements made were absolutely privilege or protected by qualified privilege. (ECF No. 9,
PageID.129). Hieber argues that Defendants did not note what privilege they were raising as a
defense. It seems obvious in a case where a defamation claim is asserted, that a defense of
qualified privilege applies to the defamation claim. Accordingly, the court finds that
Defendants sufficiently raised this affirmative defense.
46
App. 594, 597 (1989). The elements of qualified privilege are: 1) good faith; 2) an
interest to be upheld; 3) a statement limited in scope to this purpose; 4) a proper
occasion; and 5) publication in a proper manner and to proper parties only.” Id.
An employer has the “qualified privilege to defame an employee by publishing
statements to other employees whose duties interest them in the same subject
matter.” Id.
Defendants argue that Hieber offers no facts suggesting that Jen sent the
emails in bad faith. Defendants argue that Jen had a clear interest in promoting
the safety of County employees and simply conveyed safety protocols to
employees of the Equalization department only. See e.g., Greggs v. Andrews
Univ., 2003 WL 1689619, at *6 (Mich. Ct. App. Mar. 27, 2003) (statements made
by residence hall advisor to students that another student was “immoral” and
“had been involved in a rape” not actionable as defamatory because qualified
privilege applied to communication between those with a “shared interest” in
safety). In response, Hieber again argues that the statements imply that he would
engage in criminal behavior, such as trespassing on County property and possibly
physically threatening employees at their worksite or at home. Thus, he contends
that a reasonable juror could conclude that Defendant Jen intentionally made the
false implications for an ulterior purpose, such as harming Hieber or scaring
47
employees away from assisting him in any appeal of his termination. For the
same reasons set forth above, the court rejects Hieber’s claims that the
statements in the emails were false or that they suggest that Hieber has or would
necessarily engage in criminal behavior. Hieber has not pointed to any evidence
that would contradict Defendants’ evidence that the emails were sent in good
faith and otherwise satisfy the test for qualified privilege.
IV.
CONCLUSION
For the reasons set forth above, Defendants’ motion for summary
judgment is GRANTED.
SO ORDERED.
Date: March 27, 2024
s/F. Kay Behm
F. Kay Behm
United States District Judge
48
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?