Jeff Dye v. Office of the Racing Comm'n

286 by а final version for execution. As The terms offered WADL were

them into Agreement attached to Asher’s De- reminder, due to within payment is CMI email, suggest cember and do not I days of execution. will follow 7 business agreement contingent on WADL’s its address, up with method and etc. Thank Agreement own execution. The contained you.” Although the December and signed all the essential terms and was may indeed be evidence of an offer emails immediately by CMI and Remark. This nothing can rest on acceptance, this acceptance was communicated to WADL no informa- provides because the record January attempt- on well before WADL accept- regarding tion terms offered Agreement ed to withdraw from the on nothing ed. The emails tell us about the January 17. I therefore concur. settlement, proposed except apparent- ly contemplated it pay WADL would Thus,

some I undisclosed sum CMI. agree

cannot on this record that a breach

of contract action can be maintained based first exchange this of emails. again On December Stein emailed DYE, Erskine, Jeff Tammie Patrick Asher asking: expect “When can we Hall, Perttunen, and Eric copy agreement of the for our execution? Plaintiffs-Appellants, resolved, get fully payment, Let’s before holiday.” the Christmas On De- cember Asher sent email to Stein OFFICE OF THE RACING COMMIS stating: “Attached is a Final Version of SION; White, individually Christine Agreement. the CMI v. WADL Settlement capacity and in Racing her official as your Please have clients execute the Commissioner; Gary Post, indi Agreement and return originals two to me vidually capacity and in his official for execution Agree- WADL. Once the Deputy Commissioner, Defendants- executed, fully ment has been we will re- Appellees. original turn one of the fully executed No. 11-1828.

Agreements arrange payment copy settlement.” Attached to the Appeals, United States Court of December email that pаrt of the Sixth Circuit. copy only record is a of the version of the Argued: Oct. 2012. Agreement in the record. copy This Decided Agreement and Filed: Dec. 2012. signed by has been CMI and Remark and dated December 22. Obvi-

ously, although partially executed

Agreement copy is attached to the of Ash-

er’s December 22 email found the rec-

ord, it was not an attachment to that email

when Agreement sent. The that was actu-

ally attached would have been blank. We fairly assume, however,

can copy that a

that Agreement was executed later that day by

same CMI and Remark. MERRITT, MOORE, and

Before: McKEAGUE, Judges. Circuit J., MOORE, opinion delivered the court, MERRITT, J., joined., and in which McKEAGUE, J., joined part. 309-18), McKEAGUE, delivered a (pp. J. opinion concurring part and separate dissenting part.

OPINION MOORE, Circuit KAREN NELSON Judge. racing employed by the

Four argue Michigan State of that their Demo- supervisors against cratic retaliated them voicing support being perceived for or the Republican as affiliated with candidate Michigan gubernatorial the 2006 elec- Although openly tion. certain stewards workplace, endorsed this candidate Nonetheless, others remained silent. all they allege against were retaliated political speech the basis of and affiliation. present with an These facts thus us issue impression for our court: whether first claiming individuals to have been retaliat- against ed because of their affilia- actually tion must show political party with the affiliated candi- date at issue. We believe that do not. Plaintiffs-Appellants Dye, Jeff Tammie Erskine, Hall, Patrick and Eric Perttunen stewards”) (collectively, appeal “the the grant summary judg- district court’s Defendants-Appellees ment in favor of for- Racing mer Commissioner Christine White Ward, Okemos, former Deputy Racing ARGUED: Lisa C. and Commissioner defendants”). Michigan, (collectively, Appellants. Gary for Jeanmarie Mil- Post “the ler, below, Michigan Attorney of the For Office Gen- the reasons stated we reverse eral, Lansing, Michigan, Appellees. respect Dye’s for the district court with Ward, Okemos, protected-speech political-affiliation ON BRIEF: Lisa C. and Michigan, part for Mil- retaliation claims and of the Appellants. Jeanmarie stewards’ ler, Nelson, Margaret political-affiliation A. retaliation Office claims. We General, Michigan Attorney Lansing, affirm the remainder of the district court’s Michigan, grant summary judgment. Appellees. management

I. BACKGROUND contract consultant. When assignment his was in complete September Racing The Office of the Commissioner 2006, appointed White him to the Deputy (“ORC”) agency is a government state Racing position, Commissioner which he regulates Michigan horse-racing indus- 11, began on October 2006. The as try. racing ORC hires stewards perform regu- contractors to independent After White’s confirmation and Post’s latory, judging, and enforcement functions appointment, began making defendants conjunction types three changes administrative stewards’ races in Michigan: horse that occur Har- duties, job timekeeping procedures, num- ness, Quarter Thoroughbred, and Horse. worked, days ber of and travel reimburse- plaintiffs case appoint- were 2006, ments. In October or November of racing ed as and stewards 1980s Dye Post told that White to elimi- planned Patrick appointed 1990s. Hall was on nate the Liaison Administrative Steward 17, 1980, currently March as a and works position the expiration Dye’s contract Michigan Gaming state steward for the 31, Dye on December 2006. continued 22, Dye appointed Board. Jeff on April was working racing as steward until both he 1988, and Administrative promoted was and Erskine were terminated in June Liaison Steward in 1998. was demot- 2009. The stewards argue these ac- 31, 2006, State ed to Steward on December tions taken in retaliation for their was and terminated June 2009. Eric being perceived as affiliated with the Re- appointed Perttunen was on March publican Party and having engaged in pro- employed and racing remains as a during gubernatori- tected speech Michigan steward Gaming Board. process. al election confirmation appointed Tammie Sep- Erskine was filed a civil action in the 20, 1999, tember was terminated on U.S. District Court for the Eastern Dis- June 2009. § Michigan trict of alleging 1983 First brought by The claims re- against Amendment retaliation claim quire understanding of the political White, ORC; and in her individually offi- in Michigan context and within the ORC Commissioner; cial as capacity Racing during period. In 2005-2007 Post, individually official capaci- and in his alleged began, when the Democrat ty Deputy parties Commissioner. The Jennifer Granholm Governor stipulated prejudice to dismiss with Michigan. January Granholm against claims and White in her ORC appointed White to as Racing serve Com- capacity, official district and the court missioner, and White confirmed granted part part in and in a denied dis- hearing October 2005 after a confirmation missal to the respect motion with declara- the In before state Senate. the fall of tory injunctive claims against and relief 2006, Granholm in bid was successful her Post in official capacity. his against Republican for reelection candi- Dick date DeVos. remained Rac- White remaining brought The defendants a ing July until Commissioner 2009. summary motion before judgment the court, confirmed, the arguing district that being Prior to White served provide interim could not evidence sustain their Racing Commissioner and was in present granted on a burden. The district court agency daily basis leading up hearings. motion entered for the judgment the confirmation de- 2006, July Gary Additionally, grant- hired as a in the order White Post fendants.

294 nonmoving as the to the stewards court able judgment, district summary ing Id. parties. in his Post against all claims dismissed that Post given as moot capacity official retaliation First Amendment capacity. in state employed longer no a burden-shift analyzed are under claims Comm’n, No. 09- Racing Dye v. of Office must first A plaintiff framework. ing (E.D.Mich. 2144485, *1 13048, 2011 WL retaliation, of facie case prima make a 2011). May following elements: comprises which

“(1) constitutionally protect engaged he FIRST II. PROTECTED (2) conduct; ac an adverse speech ed AMENDMENT him that would against taken tion was

ACTIVITY ordinary firmness from of person a deter (3) conduct; that continuing engage of appeal are claims in this At issue between ele is a causal connection there speech protected on based retaliation is, the adverse and two—that ments one retaliation”) and retali (“protected-speech part by his least was motivated at action (“politi affiliation political ation based v. Mor Scarbrough conduct.” protected retaliation”).1 Protected- cal-affiliation Educ., 470 F.3d Cnty. Bd. gan of political-affiliation retaliation and speech Cir.2006). (6th employee If estab the First governed by both retaliation are case, the burden then prima a facie lishes doctrine.2 retaliation Amendment “by employer to demonstrate shifts that the evidence preponderance a Re- for First Amendment A. Standard been the have employment decision would taliation Claims conduct.” Eck absent same Safety, 636 F.3d Dep’t v. Tenn. court’s novo a district erman review de We (6th Cir.2010) (internal quotation summary judgment. Int'l Union grant of omitted). (6th has oc this shift Cummins, Inc., “Once marks curred, Cir.2006). summary is warranted judgment the evidence and review We if, viewed light of the evidence favor- light in the most all inferences draw retaliation claim. from a First Amendment political-patronage also cite 1. The stewards doctrine, Although political-patronage we in their brief. dismissal cases Under ambiguity asserting as to the party raises some nature ”ask[] first whether must claim, suggests are as- pro record wrongfully terminated has he was claim serting political-affiliation retaliation jury find duced sufficient evidence political-patronage dismissal rather than politi discharged because of his he was complaint alleges operative The claim. City Lane v. beliefs or affiliations.” cal limiting terminat- actions in "Defendants’ LaFollette, Tenn., 490 F.3d Cir. ing of their because Plaintiffs’ met, "then the bur If this burden is political constitutionally protected speech and employer to demonstrate that shifts to the den abridged rights to freedom their association party’s job was one for which the terminated political in violation association appropriate re affiliation was and Fourteenth Amendments of the First quirement.” Id. (Second R. 14 Am. U.S. Constitution.” ¶ 61) #76). (Page com- ID Compl. at clearly Supreme Court established 2. has alleges for plaint specifically also retaliation protections extend to First Amendment differ- "In retaliation their views: for by the hired state. independent contractors ¶40 (Page at ID ing political views.Id. Northlake, Serv., City v. Truck Inc. O’Hare #73). 2353, 714-15, 712, S.Ct. 116 135 U.S. 518 Further, legal political- a the framework (1996). 874 L.Ed.2d entirely distinct patronage claim is dismissal

295 plaintiff, omitted) light (relying most favorable to the no marks on Pickering v. Educ., juror reasonable ‍‌‌​​​​‌‌​​​‌‌‌​‌​‌‌‌​​​‌​‌‌‌‌‌‌​​‌‌‌​‌​‌​‌​‌​​​​‍could fail return a ver- Bd. to 391 U.S. 88 S.Ct. (1968)). dict for the Unlike in the defendant.” Id. 20 L.Ed.2d 811 Considerations Douglas burden-shifting McDonnell balancing involved in this test include framework, shift the burden does not back impairs discipline “whether the statement to a to plaintiff pretext show First by superiors harmony among or co-work- Amendment retaliation ers, claims. has a impact detrimental close working relationships personal for which Protected-Speech B. Retaliation Claim loyalty necessary, and confidence are or impedes performance speaker’s the The the appeal stewards district duties or regular opera- interferes the Erskine, Hall, court’s determination tion of enterprise.” the Rankin did not engage Perttunen McPherson, 378, 388, U.S. 107 483 S.Ct. speech. district Thе court concluded that (1987). 97 315 L.Ed.2d engaged protected speech when he support vocalized gubernatorial his candidate DeVos to Post and other em 1. Erskine

ployees the office. Dye, WL argue stewards that Erskine 2144485, at *8. These discussions were ac engaged in protected speech she when de curately depicted protected speech by as testify clined to at White’s confirmation court,3 the Dye’s district claim there hearing fired, of being spoke for fear prevails fore stage. this We will now White, critiqued state senators about alleged turn to protected speech the performance White’s as Racing Commis Erskine, Hall, and Perttunen. Appellants sioner her coworkers. Br. at case, In protected-speech a deposition 37. Erskine testified in her court must first discern whether that she had discussions with the offices of speech protected. order to establish two state senators. The first discussion element, this the stewards must show that occurred when Senator con State Gotchka speech on a public touches matter of complaint tacted Erskine to a discuss his Scarbrough, concern. 255. had regarding discrepan office received Supreme “public Court has defined cy times between the clocked two dif any concern” as speech “relating matter ferent race dockers at a horse race. Even social, of political, or other concern testimony in reading deposition when her community.” Connick v. Myers, U.S. stewards, light most favorable to the 138, 146, S.Ct. 75 L.Ed.2d 708 alleged be noth appears discussion (1983). ing fielding complaint more than Erskine speech public regarding When does relate to a mat from official the ORC’s concern, public clocking ter of It policy simply the court must then horse races. apply Pickering balancing test “tо de makes no sense to construe this interaction if employee’s protected speech termine free in as related to con White’s outweigh hearing terests or efficiency gubernatorial interests of firmation election, government which employer.” only Scarb two bases on (internal rough, quotation at 255 seek F.3d relief. 36, 43, disputes ing pro- Appellees

3. Neither Br. at side this conclusion facts. 51. controverting underly- vides evidence categorize phone to attempts office sub Erskine Gotchka’s State Senator latter, but the facts do not like call as the Erskine if she would asked sequently a reaching such conclusion. support at her confirma testify against White to hearing. testified that she tion Erskine also testified that after Erskine speak at White’s confirmation to declined day-to-day “on a basis working with White trying to hearing “[White] because working relationship,” stopped in a she consistently who was involved find out began discussing supporting White and had made hearing her confirmation complaints employees, her other her with people that worked other statements Id. at 57:1-58:5 family, peers. her (Erskine atTr. 72:11- R. 50-1 office.” 864). comments, ID # how (Page These 871). 14) ID continued (Page # Erskine ever, of personal reflect matters concern. being “I chose not to the fear Scheid, 977 F.2d See Thomson to; asked and had we fired. We were (6th Cir.1992) (“Not all matters 1020-21 was, testified, probably she statement government within a office are of discussed have been confirmed.” Id. wouldn’t concern, public and thus internal office (Page allega ID # an 73:10-12 Such necessarily give communication does not tion, protect fit though, does not into the claim.”). Although to a rise constitutional any If ed-speech retaliation doctrine. public official, a complaints White is describing preemptive is thing, Erskine in the are by mentioned Erskine record rather than part behavior on the of White personal from those of a nature come by retaliatory actions. This is confirmed working daily with on a rather White basis denials, repeated or Erskine’s statements on political, policy, than those that touch or remember, gave that she that she cannot affecting public. social See matters any information to the state senator’s of Farhat v. Jopke, during any of these concerning fice White Cir.2004) (“[V]iewed in the context of the conversations. record, complete pri- we believe that the focus,

Additionally, mary pur- the confirma or communicative point, after tion, pose Appellant’s Erskine contacted Senator letters was his own State personal gather Birkholz’s office to more informa beef with the union and the deteriorating an concerning tion on accusation made Erskine’s school district his situation, job had and his collu- spoken friend White references to improperly or prior corruption passing state senators her confirmation sion references hearing. Specifically, inquired message that were con- Erskine incidental proscribed not any policy veyed. to whether such be Thus his letters were matters (internal concern.”) quotation public havior. Erskine testified that she did not omitted). sup tell Birkholz whether she marks and footnotes Erskine Senator ported personal White. As with the discussion re that “it would be a na- testified dockers, ture; garding professionally, support the race this interaction but we had “Well, be, her;” support example with a state senator’s office cannot it would you a to work phone liking claim retaliation. A conversa someone but have with them, know; you’re you professional tion in a so aide state senator’s office question you you’re supposed do what do and which sole asked duties;” your policy vastly a existed different and she discussed with her whether filing peers complaint, from either written or “I didn’t—I couldn’t believe oral, concerning anybody could believe she was con- oppo with state senator else (Erskine 59:1-25) public confirmation. R. Tr. sition to official’s firmed.” 50-1

297 potential ID # mentioned to interfere (Page Erskine also with ORC’s policies critical of certain efficacy efficiency.” that she was 2011 Dye, WL enacted, she offer 2144485, but could not White that speech *8. law is clear many oc- specific examples: “There were disruptive to the operation effective of a do would some- [Post White] casions agency government outweighs its First like, was, me, thing, and it call would protections. Amendment Waters v. myme I them. I opinion. ask would tell Churchill, 511 U.S. 114 S.Ct. critical was taking place.” was of what Id. (1994) 1878, 128 L.Ed.2d 686 (plurality sum, at 60:5-12. Erskine although (“As opinion) law, matter this potential people her spoke many disap- about disruptiveness enough was to outweigh both proval personally pro- White whatever First Amendment value the fessionally, court correct in district was speech had.”); might have Farhat v. Jop- concluding testimony that none of sup- this ke, (6th Cir.2004) (“Ap- in ports finding engaged Erskine ‘speech’ disruptive was pellants highly protected speech. point it interfered with the effec- operation tive school district’s custo- Hall 2. staff.”). speech plainly dial Hall’s was dis- argue The stewards that Hall ruptive agency’s operation effective engaged protected speech he when as campaigning of its horse races. Hall was support his serted DeVos licensees gubernatorial for a candidate on-site dur- working. Appellants at races that he was ing regulated by work hours individuals at 39. excerpts Br. The stewards cite Therefore, agency. the district court testimony support deposition White’s correct in determining that this was argument. this Id. White testified at her protected speech. not she deposition that had received com about from that the plaints Hall licensees 3. Perttunen regulates and that ORC she discussed at a complaints meeting these with the provide any The stewards do not explained stewards. White that the com engaged pro evidence that Perttunen plaints detailed an instance in which “Hall speech. only provid tected evidence campaigning had been on—while he was specific deposition ed to Perttunen is testi duty regulat with licensees that [sic] we mony in he may “[t]here which states that (White 83:17-25) R. ed.” 49-3 Tr. at amongst have been discussions 578).4 (Page ID # only may about who be a better candidate industry for our to survive.” R. 47-6 Although speech Hall’s on a touched (Perttunen 54:2-4) 368) (Page Tr. at ID # public matter of concern—the gubernatori- added). (emphasis This evidence does not protected speech al election—it not part reflect that Perttunen ever took Pickering test. balancing under As observed, district court Hall’s these discussions that these discussions regulated by “involved his even occurred. The district court was urging licensees determining the ORC to vote for DeVos and thus had therefore correct that Pert Additionally, analyzed deposition 4. the district inents and do cite testimo court brief, deposition Hall ny any argument regarding statements made his in their expressed opposition he White’s con- these is abandoned. Thaddeus-X statements Dye, firmation to the other stewards. Blatter, F.3d 403 n. Cir. *10. WL As stewards do not 1999) (en banc). any arguments concerning these state- make test, plaintiff a applied under each evidence that he because provide not

tunen did adversely must that he affected show protected speech. in engaged in First engaging result of in sum, court did nоt err district activity. issue was the Amendment This for the defen- summary judgment granting by only the district court in one reached political-speech retaliation on dants opinion. of its portion Erskine, Hall, or and Perttunen claims engaged protect- in concluding that standard, either the district court Under speech. ed summarily The court determined erred. that the extent Plaintiffs’ associa- “[t]o Retaliation Political-Affiliation C. polit- their claim arises from tion/affiliation Claim concerning gubernato- ical the 2006 speech that the district The stewards contend election, rial those claims are addressed summary judg- in granting court erred above.” Id. The court then concluded that on the basis that ment for defendants show that White because cannot had that of the stewards established none or knew about affiliation with Post their they Republican were affiliated with Party, Republican political-affilia- their Party gubernatorial or candidate DeVos. tion claim Id. When uti- retaliation fails. Br. Specifically, at 25. Appellants however, lized the two standards properly, improperly court argue district produce can distinct conclusions. For ex- protected-speech retaliation applied ample, improper while an individual’s cam- political-af- evaluating when standard may paigning during work hours not be allegations. filiation retaliation Id. 30. protected speech, certainly it could alert rejoin that The defendants political heard the of his those who provide sup- sufficient evidence to did affiliation, thereby fulfilling part of the port protected-speech politi- a claim Therefore, political-affiliation standard. and that the cal-affiliation retaliation dis- assuming court district erred engaged analysis. in the correct trict court same reviewing the evidence determine Br. аt Appellees 37. engaged if pro- the stewards in a different activity necessarily would result in tected 1. Retaliation Political-Affiliation the same conclusion. Claim Standard Moreover, the district court erred in its political- The district framed the court analysis politi- perceived of the stewards’ allegations arising affiliation as those un- by allegations cal-affiliation con- retaliation claim; however, der a retaliation it then affiliation required. actual is cluding that principles political- stated the basic At Id. at *12 n. 8. issue is whether an taking patronage dismissal standard —that claiming to have been individual retaliated po- actions adverse based against because of affiliation her litical affiliation is unconstitutional under actually must that she show affiliated the First Amendment unless there exists particular political group with the or candi- governmental doing vital interest so. Here, greater date. as will be shown at *12. it Dye, 2011 WL When below, put detail stewards have forth to its analysis, turned district court demonstrating evidence that White and retaliation appeared apply the standard assumption Post under the operated it had in the protected-speech outlined affiliated of its Id. at *13. It thus each of the stewards was portion order. is Party. Republican which court and the unclear standard district DeVos over, rejected ac- yet expressly have not addressed whether Gann con- We two required tual affiliation for First cerns raised the defendant: “that it was political-affiliation retaliation Amendment impossible apolitical for Ms. Gann’s status Circuit ad- squarely claims. First or motivating to constitute substantial Ciampa, dressed this issue Welch v. in discharge factor his decision to be- her (1st Cir.2008), a F.3d 927 case in which an political cause Ms. Gann never made her alleged the at- employee that defеndants non-affiliation him” af- known to and that him tributed to an affiliation and retaliated fording relief this case would “sanc- against him aas result. Id. at 938-39. patronage by any pub- tion[ ] future claims The court discussed the evidence forth put employee political lic who keeps her beliefs by employee follows: “But the as neither but suffers an em- private from adverse a campaigning competing party active for ployment decision.” The Tenth Id. Circuit opposition po- nor vocal defendant’s arguments by reiterating discredited these required. litical In persuasion are this principle that plain- well-established “a case, Welch adduced evidence that officers tiff must establish a causal link between not support who did the recall election beliefs, plaintiffs political lack perceived were it.” opposing Id. 939. thereof, and the defendant’s adverse em7 The First Circuit then concluded that ployment respect decision with to actually Welch affiliated him- “[w]hether The plaintiff.” explained Id. court further self with the camp dispos- anti-recall is not “[tjhere are, course, many ways pro-recall itive since the camp attributed a link a beyond requiring establish such to him that affiliation.” Id. The court plaintiff to tell her that she boss does explained although further sup- active political to his subscribe beliefs.” Id. a port political help an group would burden, employee evidentiary meet his Circuit, however, reject- The Third has showing required such a is not in order to a perceived-support theory, ed stating guarantee protections. First Amendment “Plaintiffs First Amendment retaliation Id. cases can sustain their burden of proof only constitutionally if their conduct was recognized Circuit has also Tenth protected.” Twp. Ambrose v. Robin- political- inquiry the critical certain Cir.2002). son, Pa., (3d 488, F.3d 495 303 affiliation retaliation cases is the motiva- upon following court relied state- employer, stating “only tion of the that the ment in Waters: have never held “[w]e relevant consideration is the impetus that it is a violation of the Constitution for the elected decision official’s i.e., government employer to an discharge a plaintiff, vis-a-vis whether employee substantively prefers elected official to hire those who based incorrect Ambrose, him information.” 303 F.3d at 495 support or affiliate with and terminate Cline, Waters, (quoting do v. 511 114 those who not.” Gann 519 U.S. S.Ct. 1878).5 Cir.2008). F.3d 1094 More- Collins, (5th Cir.1998) princi-

5. Several circuits stated similar v. 132 F.3d 1053 have Circuit, (“[R]etaliation ples propounded by perception, the Third based on this those yet respect protected speech. expression by only with the absence of actual Jones Cnty. College, subject protection, Wasson v. Sonoma Junior that is to First Amendment (9th Cir.2000) ("Accordingly, F.3d does not constitute a viola- constitutional tion.”); Melby, be there can no First Amendment claim when Barkoo (7th Cir.1990) ("To alleges falsely making employee is accused the extent Barkoo else.”); against employers that her her be- statements uttered someone Jones retaliated political-affiliation retaliation principle in Wa- under An application context, doctrine. how- First Amendment ters ever, read in con- disingenuous. When is Analysis 2. text, that this sentence relates is clear it In that the fact, arguing stewards only due-process violations. because of their adversely affected directly references sentence subsequent Republican Party, affiliation with the public employees: afforded process due heavily focus on the culture' a inter- employee property has “Where an pic workplace. paint The stewards have only protection we job, est her by politicаl divided agency ture of state right her gives found the Constitution White, affiliation, Democrat, a which Waters, U.S. procedure.” to 511 adequate poorly retaliates and otherwise treats Moreover, we have at 114 S.Ct. 1878. or then- support those who do not her principle one previously recognized this Br. 40- Appellants Granholm. Governor Waters, a process: concerning “[i]n due support argument, 47. In of this the stew the Supreme the Court held plurality of applicable to all present ards evidence to the applied Connick test should be what concerning specific and evidence said, thought government reasonably stewards. not be to i.e. should held government by a evidentiary standards used same strongest support of evidence jury making decision whether or when its against po- retaliation all stewards on the employee to on not terminate an based litical-affiliation basis is stewards’ de- 4, 2007, thought unprotected speech.” what to be meeting January is of a on scription Univ., White, Post, Dye, F.3d by Dambrot v. Cent. Mich. 55 that was attended (6th Cir.1995). Hall, Perttunen, Erskine, 1189 n. 9 Given and Pete Waters, O’Hare, meaning along our another plain with steward.6 The stewards prior interpretation holding, argue sup- its we find that White “accused them of Michigan Dick in the unpersua- porting conclusion DeVos Third Circuit’s trying [and of] Gubernatorial election.... sive. hearing by try- to her confirmation derail stated, adopt ing Republi- For reasons we convince to vote others reasoning First and Tenth Cir can candidate Dick DeVos.”7 Id. at 16. cuits hold that retaliation based on stated: knew we voted for Erskine “She perceived political affiliation is actionable because she said we voted for De- DeVos engaged they thought argument 6. cause she was in First that the stewards' claim fails protected speech on an issue of present Amendment because a fifth at this steward concern, public reject we this notion that meeting unavailing. is The evidence shows allegation brings require- her claim within the a political that White and attributed affil- Post 1983.”). perceived § politi- Because ments stewards, including to each five iation of the only is the be- cal-affiliation retaliation issue case, we do not the four involved in this now, question fore we do not reach the us inquire why a need to as to O’Hare is not plaintiff allege protected- a can a whether party to this action. Welch, claim. See F.3d retaliation (finding political-affil- at actionable 938-39 part argument illogi- 7. The second of this political retaliation claim where affilia- iation hearing preceded cal. The confirmation yet plaintiff, tion was attributed to the on the gubernatorial by year. one This hear- election plaintiff concluding same that the did facts ing could have been derailed convinc- right not show “an actionable violation of his ing agency DeVos. members vote for speech”).

to free and, bring turn rid —to taliation claim.” get Dye, Vos WL in, get of her because at 11. republican Although rid *13 n. certain affidavits are (Erskine R. 50-1 regard,9 description [sic].” she’s democrat insufficient this this 110:16-19) # (Page Tr. at ID Ers- every is not true of affidavit presented. Brown, kine continued that Post “made the state- example, regulation For Brian that, ment because we our senators wrote agent at the ORC from 1998 to 2009 states against and our her confirmation governor ORC, “[d]uring my time with I hearing, that until we conformed to her Gary witnessed Christine Post White ways, get nothing weren’t ‍‌‌​​​​‌‌​​​‌‌‌​‌​‌‌‌​​​‌​‌‌‌‌‌‌​​‌‌‌​‌​‌​‌​‌​​​​‍going we work environment favor- create a based on at 111:7-12. Hall reiterated [sic].” Id. political patronage,” itism based description meeting: of the “In with similar ideals “[e]mployees commissioner, in- meeting [Post] with hours, pro- would receive more access tо losing dicated our one reasons motions, treatment,” and overall favorable days supported banked is because De- we meetings Gary “[d]uring and that (Hall 62:7-9) (Page Vos.” R. 47-7 Tr. Post, animosity he would make clear his #416). similarly ID Perttunen testified group.” the Plaintiff R. 49-8 toward meeting Sports “[i]n Creek ¶¶ (Brown 1-5) 635-36). (Page Aff. at ID # January, by it was told us to Christine meetings, during Brown also states that “ Gary Post, supporting White and due to us say Post that ‘he did not trust the would ” DeVos, they taking away Mr. would be our and “make clear his ani- stewards’ would time, and until to banked we conformed mosity group.” toward the Plaintiff Id. her ways, getting we would not be it back.” ¶¶ 636). Jewell, (Page ID # 5-6 Richard (Perttunen 57:17-21) (Page R. 47-6 Tr. at ORC, investigative an supervisor at the 371).8 ID # employees sup- declared that did not “[i]f issue, port and on [White Post]

Additionally, provide the stewards affi- subject employees would be harassed and employees davits of other de- ORC to a work environment” and that hostile political of tailing agency culture “[approximately year one into [White’s] and treatment non-Democrats. White’s of that appointment, stated to me [Post] summarily court ev- district dismissed get need to on the same ‘those stewards ery produced by affidavit stewards in referring her’ to He footnote, page as [White]. single stating “[a]ffidavits that only meant same philosophically state Defendant created a hostile White (Jewell politically.” R. 49-9 Aff. page, to but yet work environment fail set out facts ¶¶ 1-4) 638-39). (Page ID # affi- was These showing hostility that because deposition political nothing do davits corroborate the testimo- speech association ny to re- advance Plaintiffs’ First Amendment of the stewards. alleged support

8. in the 2006 for and The stewards also reference an with Post fall of meeting Ap- occurred in 2006. allegations that October in the Second Amended pellants Appellants argue atBr. 14. that all req- Complaint. provide Neithеr of these present four stewards were when Post made evidentiary alleged meet- uisite for this basis go way that was the statements Granholm to ing. and also when Post accused Hall and Erskine attempting by to removed have White con- example, 9. Martin Vandevelde describes For vincing Id. individuals to vote DeVos. non-speech alleged apolitical ac- related argument Although repeatedly in this is made against R. him White and Post. tions taken brief, provide their no evidence (Vandevelde Affidavit) (Page ID # 640- 49-10 meeting having occurred. stew- 642). Dye’s testimony in point deposition ards which he describes the conversations he had Cline, omitted); Gann that White is also evidence There Cir.2008) (“There course, are, affiliation with DeVos perceived Post Party specific beyond to cer- a link Republican many ways to establish such begin, Dye’s conversa- tain To that stewards. tell her plaintiff to boss requiring con- and other coworkers tions with Post political his be- not subscribe to she does gubernatorial election would cerning the liefs.”). Dye affiliation. political make known his that Additionally, although in the fall of deposition at his that testified cer- engaged protected, in was not it Hall election, gubernatorial prior and Post to Hall’s tainly alerted White go lunch he would “have occasion Moreover, affiliation. White office and it was dis- downstairs campaigning to the atten- brought Hall’s say by Mr. Post would racing, cussed that example stewards as an tion of other are much better off with say or did we January speech in the inappropriate with Granholm than we would be DeVos.” deposition testi- meeting. Erskine’s 41:1-10) 36:4-9, (Page (Dye R. Tr. at 47-5 poli- mony reflects that she did not discuss 319-20). “[m]y Dye ID # continued work, yet she tics testifies she republican, statements would be DeVos had grouped expressed those who person and I state is business think the anybody for DeVos: “I did nоt tell support it. person'into needs a business So we vote, nor that.... knew we pursue She had to discuss that issue.” Id. occasion voted voted DeVos because she said we (Page ID # ex- 36:10-13 also (Erskine R. Tr. at for DeVos.” 50-1 plained that as of conversations in the part 109:19-110:19) 889-90). (Page ID # office, he would tell others DeVos background.

better because of his business ample There is to the support evidence 321). # (Page Id. 42:6-22. ID Erskine’s contention that Post and stewards’ White testimony Dye’s deposition corroborates political attributed a affiliation to the stew- in speak support assertion Post would ards, especially stage. prima the facie of around office: “[Post] Granholm assump- employer upon An that acts such talked about Jennifer Granholm was regarding the affiliation of her em- tions way go if the horsemen felt [sic] not ployees escape liability should because in to get help could slot machines them faulty. happened to assumptions her be racing, pick up purse pools.” better (Erskine 108:6-9) R. (Page 50-1 Tr. ID III. EMPLOYMENT ADVERSE # ACTIONS appears district court have de- allege The stewards that numerous ad- nied Dye’s Dye claim because never affir- against were taken them be- verse actions matively stated that he was a of member they engaged protected speech in cause Republican Party. Dye, 2011 WL with the and assumed be affiliated rigid interpreta- at *13. This is a actions, Party. Republican such Certain evidence; tion of the these discus- from terminations, and as demotions relate sions, easily Post could have inferred an are al- specific stewards. The remainder Republican Party affiliation with the and against every as actions taken stew- leged support Murphy See v. DeVos. Cock- categorized The district court ard. rell, (6th Cir.2007) 452 following actions manner: (“[S]upport political for a falls candidate (1) of the Fall 2006 eliminate scope right within of decision to association.”) (internal position quotation marks of Administrative Liaison (2) Dye’s Steward; A. assigned decrease Demotion (and Plaintiffs; days pay) work thus Dye’s demotion from Administra (3) adoption timekeeping stricter tive Liaison Steward to state con steward (a) procedures, including the scheduling stituted an adverse employment action. days and authorization full versus half (“[T]he Eckerman, 636 See F.3d at 208 (b) days, prac- and elimination found, agree, district court and we that the “banking pay tice period time” in a sergeant demotion from lieutenant to alone performed; outside the work period (4) sufficient expense the elimination of constitutes adverse action to sat travel re- imbursements connection with the isfy this element of retaliation Harness bi-annual claim.”). Stewards’ certifica- not dispute The defendants do tion conference November 2006 and this characterization and instead focus 2008; (5) and the elimination of two arguments their on the causal-connection Harness Stewards—Plaintiffs Appellees element. Br. at 51. Erskine —in June 2009.

Dye, at *13. WL As we Dye’s B. and Erskine’s Terminations below, fully discuss more the district court implicitly explicitly many concluded that It is elemental termi of these actions adverse em- constituted nations are adverse actions. actions, ployment and the defendants do City Elyria, See F.3d challenge these determinations their (6th Cir.2007) (concluding that when termi instances, brief. In such we not con- will nated, undeniably “See suffered an ad of categorizing sider the merits these al- verse action that would chill the free leged actions as adverse will instead rights ordinary person”). continue on to evaluate whether the dis- parties not dispute do this character trict court correct in its causal-connec- Appellees ization. Br. at 54-55. tion analysis. claim, In a First Amendment retaliation Days Pay C. Decrease in Work we alleged must consider whether ad- employment verse action chill “would days A in decrease work of person ordinary silence a firmness from pay employment is an adverse action. future First Amendment activities.” Ctr. Serv., Inc., Clay v. United Parcel 501 F.3d Reform, City Inc. v. Bio-Ethical for of (6th 695, Cir.2007) (“We 710-11 n. fail to 6 (6th 807, Springboro, 477 F.3d 822 Cir. a pay anything understand how loss of 2007) (internal omitted). quotation marks action, employment other than an adverse “The term ‘adverse action’ has traditional- regardless form in depri which the ly actions discharge, referred to such as occurred.”); City vation see also Miller v. demotions, [h]ire, refusal to nonrenewal of (6th Canton, 411, 419 Fed.Appx. 319 of contracts, promote.” and failure Cir.2009) (“Although he was later made City Handy-Clay Memphis, v. 695 F.3d of 2005, in jury whole December a reasonable (6th Cir.2012) (internal 531, quotation 545 sixty pay could find that loss of (alteration omitted) original). marks in days hardship a would constitute However, recognize we also that “we are average officer and would chill the exercise required our under analysis tailor[ ] rights.”). parties First The of Amendment prong adverse action the circumstances not adverse dispute do this is an specific of this retaliation claim.” Mezibov Cir.2005). Allen, (6th action, employment v. 721 and the district court just that—vacation—(cid:127) days for Br. at vacation Appellees issue. reach this did not to save vacation permitted than rather 51-53. pay.” it for Id. exchange later time and Half-Day Employment in a material D. did not result Because “[t]his demotion, termination, benefits, loss of court con the district Although job responsibili- transfer, or alteration meas timekeeping cluded that stricter had failed ties,” that the we held to ex authorization advance requiring ures use of banked freezing to show track day at the race half a scheduled tend action. an adverse time was action, an adverse day was not to a full Id. *20, the stew Dye, 2011 WL of this issue review

ards have waived a standard that we use distinct Given or at oral it in their brief raising claims, Adair Amendment retaliation First Blatter, 175 Thaddeus-X argument. in a limited manner. only us can instruct Cir.1999) (en n. 18 F.3d claim, Amendment retaliation In a First banc). alleged action ask whether the we must ordinary person chill or silence would System E. Banked-Time ev- provided The stewards have firmness. program was January White discon that the banked-time idence On Although system. stewards. key of the banked-time benefit to these tinued the use changed enabled an em Post the structure system The banked-time White not in- receipt payment way in a that would compensation to reserve ployee losses, days monetary full any potential of ten any time excess flict worked under fourteen-day employee typically required be period. in a would FLSA, pay period certainly imposed fill in a where he it different then could days full with these financial on the stewards. type less than ten burden worked “[f|or Post, income, especially explained by steady lack of a days. banked As racing worked if a Harness combined with the decrease example, Steward when period, per- or silence a days pay days, certainly two week could chill [a] Moreover, on their as is days payment ordinary son of firmness. would submit ” below, Part timesheet, day fully in the ‘bank.’ see put explained one more infra ¶ 13) (Post E, ID (Page Aff. at in the record R. 47-4 IV. there is evidence in order Essentially, by choosing program bank # White discontinued time, electing to receive therefore find employee the stewards. We to silence respect for time worked a more court erred with compensation that the district the throughout system. manner evenly distributed to the banked-time akin of compensation tо the structure year, F.Travel-Expense Reimbursements employee.

a salaried court did not discuss concept of district have addressed the We the the decision to discontinue retaliation whether time in the context of banked reimbursing of the stewards practice Fair Labor Act. under the Standards they attended bian expenses travel when Cnty. Wayne, 452 F.3d Adair v. Charter of constituted (6th Cir.2006). Adair, conferences In the nual certification Dye, 2011 employment action. of banked an adverse alleged that a freeze on the use Instead, 2144485, the district at *23. employment WL time constituted adverse not freeze, that the stewards did court concluded at 490. Under the action. Id. the a causal connection between to utilize establish simply required “Plaintiffs activity his travel-expense elimination of reimburse- demotion satisfies the activity. protected the Id. ments and causal-connection element of his First However, aspect we decline to reach either Dye’s Amendment pro- retaliation claim. analysis, of the district court’s as the stew- tected activity conversations with —the ards have waived review of both issues gubernatorial Post the regarding election or at raising not either their brief oral affiliation perceived political and the stem- Thaddeus-X, argument.10 F.3d at 403 ming from those conversations —both oc- n. 18. 2006, curred in fall of prior election. Post averred that he informed IY. CAUSAL CONNECTION Dye of his at some point demotion between argue The stewards 2006, 11, October the date on which Post concluding district court erred none Commissioner, appointed Deputy of the employment adverse actions were 2006, Dye’s November the date on which protected effectuated because of the activi Lansing in the administrative duties office ty. “In order to establish a causal connec meeting, ceased. In this Post informed protected tion between conduct and Dye that effect his demotion would take action, produce the adverse must plaintiff expiration his contract of on December enough retaliatory evidence of a motive 31, 2006, his in the Lansing and that duties juror that a reasonable could con such office would on cease November 2006. employment clude that the [adverse action] guber- testified that he discussed would not have occurred but his en natorial in the fall election Post gagement activity.” in protected Ecker 7, 2006, prior November date Dep’t Safety, man v. Tern. earliest, then, very At the election. (6th Cir.2010). 202, 209 link “A causal can these discussions occurred on date in some through shown direct be or circumstantial evidence, including September showing temporal prox finishing when Post was imity engaging protected between activ his management duties as contract ity suffering employment an adverse Although consultant. we do have a may action that create an inference of specific date for either the discus- Moreover, causation.” have Id. we deter meeting regarding sions demo- mined that incidents misconduct that do tion, the notice of demotion must have employ not rise to the level of an adverse months, sooner, within two if not occurred “may ment at trial action be relevant activity. pattern job show mistreatment Co., Zeidler Die Mickey v. Tool & plaintiff’s protected based on activities.” (6th Cir.2008), F.3d 516 we clarified that Id. at 208-09. can, in temporal proximity alone certain Dye’s A. Demotion circumstances, suffice to a causal show connection in a retaliation case: “Where argue The stewards tem very poral proximity Dye’s protected between an adverse action occurs facts, trip 10. In their statement of in November wеre told that following describe the November expenses events: "On 15, 2006, their would not be reimbursed.” through par- 12 November Plaintiffs (internal Appellants Br. 15-16 citations ticipated continuing in a biannual education However, omitted). do not even stewards stewards, Louisville, conference for located in argument legal reference these facts in their Kentucky. previous trips, allOn conference detailing or in the section of their brief Plaintiffs were travel ex- reimbursed for their genuine material fact. issues of penses. When Plaintiffs returned from this 306 temporal proximity of a sufficient employer learns a months is in after an

close time connection). temporal proximity to show causal activity, protected such enough significant the events is between Dye’s B. and Erskine’s Terminations a causal connection constitute of evidence satisfying prima a facie purposes for the argue that the The stewards also Id. 525. We also case of retaliation.” that the concluding court erred in district tempo- recognized using the limitations to failed to show a causal connection proximity some ral alone—that “where protected activity and the between employer time between when the elapses Dye’s As terminations. June 2009 activity the sub- protected learns of a and demotion, rely wholly on the stewards action, the sequent employment adverse a con temporal proximity to show causal temporal employee couple proximity must protected activity nection. The at issue retaliatory evidence of conduct with other began guberna in to the 2006 lead-up causality.” Id. establish ended, viewing when torial election light facts in the most favorable Gonzales, in explained As we Dixon v. stewards, in the winter of 2007. Both (6th 324, Cir.2007), re- 334 481 F.3d 2009, and Erskine fired June v. Ener- cently reiterated in Duke Gambill yеars protected than two after more (6th gy Corp., Fed.Appx. 456 589 Cir. conduct. 2012), typically “this Court has found the lapse years A of more than two only causal connection element satisfied activity ad between the and the employment adverse action oc- where the is insuffi simply verse action months, less, curred a matter of within cient to a connection show causal based A protected activity.” lapse two theory. solely temporal-proximity a here, months, as is case sufficient to Dixon, (“[T]he Supreme F.3d 481 at 334 connection, a show causal and the district that a con finding Court held causal See, in holding e.g., court erred otherwise. where, not among nection was warranted Co., Seeger v. Cincinnati Bell 681 Tel. (6th years elapsed other almost be Cir.2012) (“We things, two agree F.3d 283 employee’s participation pro tween the court that with the district the nearness activity employ tected and the adverse Seeger’s time return FMLA between from decision.”) (citing Cnty. ment Clark Sch. leave and his weeks af- termination —three Breeden, 268, 273-74, v. Dist. 532 U.S. his ter reinstatement and less than two (2001)). 121 S.Ct. L.Ed.2d months he after first notified CBT of his Because the stewards do not proffer medical leave—suffices in circum- these evidence, additional we conclude that the proof stances to meet the low threshold of stewards fail to show a causal connection necessary prima facie case of establish as to the terminations. retaliatory discharge.”); Bryson Regis v. (6th Cir.2007)

Corp., 498 F.3d Days Pay C. Decrease Work (explaining that months three is sufficient temporal granted “a The district the de proximity show because court establishing prima portion burden in fendants’ motion on this (1) facie case is intended be an onerous stewards’ claims on two bases: (internal one”) quotation marks and altera- stewards’ failure to show causal сonnec omitted); (2) convincing prof tions Singfield Akron Metro. tion and evidence Auth., Housing fered of a support defendants Cir.2004) that a (concluding lapse legitimate of three reason to take action. On (Erskine however, 111:1-3) 890) argue only the stewards Tr. at appeal, (Page ID # concluding the in that district court erred (stating these present individuals were a rea- legitimate defendants had meeting). days pay. decrease the work son and Moreover, temporal there is a connec- argu- Br. at 43-46. Appellants Such an nearly tion identical to that involved ties our It ment hands. is a basic tenet Dye’s demotion. and White Post an- retaliation claims that the burden shifts change nounced the in the banked-time employer only after the employee has system at the January meeting, a facie prima established case. Counter- just gubernatorial months two after the reasons, ing proffered defendants’ as is Therefore, election. we conclude that the brief, done the stewards’ does not estab- have prima stewards a established facie prima a lish facie case. Under this frame- case for the loss of sys- the banked-time work, accuracy we cannot consider the of tem. district court’s determination that the legitimate defendants established reasons V. PROFFERED DEFENDANTS’

to take these actions unless NON-DISCRIMINATORY the stewards have first met their burden REASONS showing a causal connection. Because the stewards have not even referenced Once stewards a have established brief, in their prima facie case let alone a case, prima facie shifts burden to the specific theory upon they which rely, we defendants, by who prepon- must show por- must affirm the district court on this derance employ- evidence that “the tion of its order. ment decision would been the have same protected absent the сonduct.” Eckerman System D. Banked-Time Dep’t Safety, Tenn. presented The stewards evidence (6th Cir.2010) (internal quotation marks that White prac and Post eliminated the omitted). The stewards were successful in of banking days tice because of the stew establishing prima facie case on two ad- perceived ards’ affiliation with the Republi Dye’s verse employment actions: demotion Party. can Perttunen testified that “[i]n on the of his political speech basis meeting January, Sports Creek political affiliation and the stewards’ loss of it told to us Christine White system banked-time on the basis of Gary Post, us supporting due to Mr. De- political affiliation. Vos, they taking away would be our time, banked and until we conformed Evidentiary Objection A. ways, getting her we would not be it back.” (Perttunen rely upon 57:17-21) defendants Post’s R. 47-6 Tr. at (Page affidavit, deposition testimony, White’s #ID Hall also testified that “[i]n deposition testimony Post’s demonstrate Commissioner, meeting with indi he would have decision to made cated one of the our losing reasons activity. absent demote days banked is because we De- supported (Hall 62:7-9) object use of R. Post’s (Page Vos.” 47-7 Tr. at #416). Further, a violation post-deposition ID Hall affidavit as recalled due-process their Fourteenth each the four this case was Amendment meeting, right, arguing at that that Post introduced state present well as another steward, Post, directly and White. Id. at ments in this affidavit that were 63:24- 416-17); (Page ID # responsive questions 63:3 see also R. 50-1 that he had al- Many of the at an administrative testimo- tasks deposition in his ready answered level, writing, scheduling policy Br. The stew- such as at 31-33. ny. Appellants portions object only budget development, require to the excel- specifically ards concerning the reasons affidavit writing proficiency Post’s lent skills and of terminations. Dye’s example. Erskine’s for spreadsheets, behind electrоnic the have held that stewards Because we ¶ (Post 8) 297-98). # (Page ID R. 47-4 Aff. connection established a causal have not Dye did not have the Post also avers that actions, we adverse for these computer writing or skills for necessary the district court’s not need review do convincing statement position, the less manner. Inso- of the affidavit this use on there also evidence the given that is to make a attempt the far as stewards indicating Dye had been that the record affidavit, objection entire blanket years eight for Administrative Steward objection Merely is insufficient. their point also point. Id The defendants out that an affidavit was made pointing in which Dye’s deposition testimony, he not render the deposition after the does reason provided that Post the for states Rather, affidavit the improper. entire as “[b]udgetary his demotion concerns.” affidavit di- must show that the 29:12-17) (Dye (Page ID R. 47-5 Tr. testimony rectly deposition contradicts the # for that the affidavit was effectuated creating issue of fact. a sham purpose Although provide evi- defendants L.L.C., Aerel, Airfoils, S.R.L. v. PCC support proffered of their reason dence Cir.2006). They 908-09 F.3d demotion, Dye’s evidence is none- for this ‍‌‌​​​​‌‌​​​‌‌‌​‌​‌‌‌​​​‌​‌‌‌‌‌‌​​‌‌‌​‌​‌​‌​‌​​​​‍not shown either. have that no theless insufficient to show reason- juror could fail to return a verdict for able Dye’s Demotion B. Dye. temporal proximity The demo- argue they The defendants as well speech, tion and the budgetary “for reasons and demoted testimony political at- concerning reassigned being functions were certain leading up mosphere agency support Appellees Br. at 9. [Post].” election, genuine create a is- gubernatorial argument, the cite White’s this defendants material to the reason sue of fact as be- testimony, in which she states deposition Moreover, in Dye’s hind demotion. “based on the fact the deсision made context, First Amendment defendant’s “[a] do felt that he could those [Post] taking against motivation for action (White 47-2 Tr. at responsibilities.” R. usually a matter best suited for plaintiff 87:12-15) #282). ID (Page defen F.3d jury.” Paige Coyner, rely on dants also the statement Post’s (6th Cir.2010). court The district thus in which he avers as follows: affidavit granting erred in the defendants’ motion determined, Racing Commissioner summary Dye’s judgment retalia- type agreed and I that the amount and claim. tion required longer justify work could no position full time of Administrative System Banked-Time C. in the Lansing Steward office. There argue they The defendants simply enough justify work system eliminated banked-time be Addi- position. the continued cost of the ap cause “were concerned about tionally, budget required an ex- concerns accountability, and being propriateness, how lack of amination of staff were uti- process.” management oversight and the of that staff. lized best use mary Erskine’s, Br. support judgment Hall’s, at 18. of this Appellees and present argument, the defendants Post’s claims, protected speech Perttunen’s and affidavit, in explains which he that he and as to the bulk plaintiffs’ political-affilia- appro- “were concerned about the White majority tion claims. But the also con- priateness, accountability and lack of man- cludes that an perceived individual’s affili- agement oversight process of this and af- political ation with a can party form the discussing ter it with Commission’s of a basis First Amendment retaliation Director, Human Resources the decision claim, case, and that in all plain- four made to practice.” was discontinue this R. questions have tiffs established of fact as ¶ (Post 13) (Page 47-4 Aff. at ID # to whether them perceived affiliation with upon The defendants also rely White’s de- Republican Party motivated defen- position testimony, she denies which away dants’ decision to their take banked- making any statement that she eliminated days. majority further concludes system the banked-time because of the questions that there are material of fact political stewards’ affiliation. respect Dye’s with to plaintiff First concluded, The district court that based protected speech Amendment claim. Be- evidence, juror on this no reasonable could cause the majority’s conclusion that an Dye, find the stewards. 2011 WL perceived political individual’s affiliation disagree. at *23. We The totali- protec- should receive First Amendment ty the evidence shows there is a supported by political tion is not affiliation credibility determination be made law, Dye’s protected case and because the factfinder as to whether White stated claim speech hangs entirely very on a thin she eliminating the banked-time thread, temporal I respectfully dissent. system on the politi- basis stewards’ deposition affiliation. cal White’s testimo- ny, coupled explanation with broad Post’s I. affidavit, require

in his does not reason- juror able to find for the defendants. We A plaintiff-employee seeking to establish genuine therefore conclude that a issue of prima facie case of retaliation under the fact material exists as to banked-time point First Amendment must evidence system. 1) sufficient to three establish elements: plaintiff in a engaged constitutionally VI. CONCLUSION 2) activity; adverse action above, For the reasons stated we re- against plaintiff taken caused Dye’s protected- verse district court on injury him or her to suffer an that would political-affiliation and retaliation ordinary a person deter firmness from claims, and on political-af- each steward’s conduct; continuing engage in the and filiation retaliation claim based on the loss 3) the adverse action was motivated at system. of the banked-time affirm We in part by plaintiffs protected least Hall, Erskine, court on and district Perttu- activity. applies in This standard both protected-speech nen’s retaliation claims protected speech retaliation claims and in on each remaining of the stewards’ political affiliation retaliation claims not political-affiliation claims. retaliation brought patronage under political dis McKEAGUE, Judge, concurring Circuit doctrine. v. Tenn. Dep’t missal Eckerman dissenting part part. Cir.2010) Safety, (finding protected for purposes conduct agree majority with I the dis- court appropriately granted plaintiff trict sum- affiliation claim where Burns, 427 356- U.S. (citing Elrod candidates Republican supported

publicly (1976)). L.Ed.2d 547 stickers, 96 S.Ct. attendance bumper signs, donations). monetary rallies and here, plaintiffs these standards Applying likely satisfy the first Hall can establishing succeeds plaintiff If the in that each prima facie test elements, prong of the then the defendant these three from which engaged conduct the of them have made that he would must show affili- they conclude defendants could pro- of the in the absence same decision Party (Dye by Republican Summary ated with at 208. conduct. Id. tected about his if, directly to defendants speaking “in of the light is warranted judgment Republican for the candidate affinity fail juror could ... no reasonable evidence Republican for the by campaigning Hall for the defendant.” Id. a verdict to return racetrack). burden, at the This conclu- candidate meets his or her If the defendant they engaged on the fact that sion is based inquiry, of the that is the end by conduct constitutionally protected does not then shift back burden particular politi- their speaking out about pretext. Helwig Pen- plaintiff prove to (6th leanings. Cir. cal Fed.Appx. nington, 30 2002). contrast, plaintiff neithеr Erskine By engaged such con- nor Pertunnen recognized that under the Su-

haveWe fact, that cases, they expressly denied duct. political patronage Court’s preme that they majority Yet the concludes association is well did.1 right political “[t]he that Ers- alleged perception within the core of defendants’ falling established as Pertunnen were affiliated with by the First Amend- kine and protected activities satisfy Party enough is to County, Republican v. Loudon ment.” See Sowards Cir.2000) (conclud- establishing plaintiffs’ burden protected activity. Because protected political engaged affiliation ing there was spoken directly not Supreme re- Court has activity supporting a First Amendment issue, law is on and because the case plaintiff support- claim where taliation office). respect to whether such a ambiguous with campaign husband’s ing her cognizable, expand we should not recognized “[sjupport claim is have also We scope protections of First Amendment scope candidate falls within the political yet unrecognized context. Id. to this as right political association.” you Q: tell Commissioner White Did ever 1. Pertunnen testified: you supported Jenni- Dick DeVos and not you Q: support Did Dick DeVos? fer Granholm? A: No. you campaign Q: just Did make a contribution A: No. She assumed that. DeVos? Dick you Q: do know she assumed that? How meeting Because of what she said in a we A: A: No. had. you bumper Q: have a sticker for Dick Did understand, though, you Q: at no time So I your car? DeVos you your political who ever told her views or A: No. gubernatorial supported office? 373). (Pertunnen Page Dep., ID # A: No. Similarly Erskine testified: Gary thing respect Q: And the same you you Q: did Did ever tell Mr. Post Post? you support Granholm but that Jennifer A: Correct. supported Dick DeVos? (Erskine Dep., Page ID # A: No. Supreme Court’s approved affiliation cant partiсular be for a position, cases, by relied on this Court in First the Governor’s Office has looked at wheth- Amendment retaliation cases like Ecker- er the applicant voted in Republican pri- Sowers, man and are silent on whether in past maries years, election whether the affiliation, more, perceived political without applicant provided has financial or other activity. First Amendment support Republican Party and its As described plurality, Elrod candidates, whether applicant has unacceptable these sought behavior cases promised join and work for the Republi- rectify was the restraint patronage future, can Party and whether the practices place on freedoms of belief and applicant has support Republi- association. 427 atU.S. 96 S.Ct. 2673. Party can officials at state or local lev- Accordingly, all of the cases involved some els.”).2 type of requirement coercive employ- that Two circuit courts have relied on these ees affiliate with a particular political party patronage cases as a concluding basis for in order to an avoid adverse employment that government employers cannot take Elrod, 355, action. See 427 U.S. at 96 adverse actions against politi- (“In S.Ct. 2673 order to maintain then- cally employees unaffiliated solely because

jobs, respondents were required pledge employees politically were unaffiliated political allegiance their to the Democratic perceived or being unaffiliated with the Party, work for the election of other candi- party power. in See v. Ciampa, Welch 542 dates of the Democratic Party, contribute (1st Cir.2008); Cline, F.3d 927 Gann v. 519 portion wages of their Party, to the or 1090, Cir.2008). F.3d 1094 The ma- obtain the sponsorship of a member of the jority hеre relies on Welch and Gann to party, usually price at the of one of the argue that in this case defendants’ mere alternatives.”); first three Branti v. Fink- perception of plaintiffs Erskine and Per- el, 507, 509, 445 U.S. 100 S.Ct. 63 tunnen as Republican is enough satisfy (1980) (“With L.Ed.2d 574 possible one the protected activity prong prima exception, the nine who [individuals] were facie test. appointed to be or retained were all Demo- crats and were all by contrast, selected Democratic By Twp. Ambrose v. Rob- legislators inson, Pa., (3d or Democratic town Cir.2002), chairmen 303 F.3d on a basis that had been determined clearly rejected the Third Circuit it what the Democratic caucus. The District “perceived termed a support” theory. In case, Court found that Finkel and Tabakman plaintiffs officials discussed the had been solely selected for termination alleged actions in stealing files to support because Republicans colleague and thus who had filed a against lawsuit did not have the necessary Democratic employer. plaintiff part alleged The sponsors[.]”); Republican Rutan v. Party that adverse action was taken against him Illinois, 62, 66, 497 U.S. 110 S.Ct. employer because the sup- believed he was (1990) (“In 111 L.Ed.2d 52 reviewing an porting colleague though even agency’s request a particular appli- plaintiff did no such thing and even denied patronage 2. The recognize cases also wielding power that the its to interfere with its em- associate, protects employees First Amendment ployees' who freedom to believe and elect any party. associate.”). not to affiliate with See Ru- to not believe and not None of tan, ("The 497 U.S. at 110 S.Ct. 2729 First in this case have claimed defen- prevents government, Amendment except interfering right dants were with their not to circumstances, compelling in the most from affiliate. substantively charge employee based rejected “per- this court

that he did. Ambrose, 303 incorrect information.” theory arguing “[pjlaintiffs support” ceived Waters, 511 U.S. at (quoting F.3d at cases can retaliation Amendment in First 679, 114 S.Ct. if their proof only their burden sustain constitutionally protected, was conduct Circuit, majority the Third Like therefore, actually there and, only Waters, if albeit to reach relies on here also Boles, 121 (citing Fogarty v. Id. conduct.” majority as- conclusion. opposite Cir.1997) (3d add- (emphasis F.3d that whether that Waters establishes serts ed)). (the or conduct protected speech there was protected applied test that is Connick conclusion, the court its justifying cases) on what the depend should several primarily on relied was said reasonably thought government See, e.g., Fogarty, speech cases. what, actually anything, if than rather mistaken (holding principal’s at 890 proposition Extending said. protect engaged teacher had belief context, majority affiliation conduct, engaged had not when teacher ed consider what defendants claims we should all, support could not conduct reasonably plain- believed to be true about claim); Was- retaliation First Amendment Republican Par- tiffs’ affiliation with the Coll., 203 Cnty. v. Junior son Sonoma if does not include ty the evidence Cir.2000) (9th (“[Tjhere —even can 663 F.3d of such establishing the existence conduct cause of action no First Amendment be majority’s reading But the an affiliation. speech by plain- no where there was that deci- comport does not with of Waters must demonstrate plaintiff tiff.” “[A] rationale, underlying nor does the sion’s constitutionally pro- in engaged she has why protected speech a majority explain a First to establish expression tected (Waters) govern the outcome case should claim.”); v. retaliation Jones Amendment in this аffiliation case. Collins, 1048, 1050-51 Cir. Waters, 1998) (no by a nurse was fired her conduct where school protected employer based on what the government leaked infor- principal alleged to have to some other result, employer thought she said a and was transferred as mation regulatory violations and nurses about really leaked the information but never hospi- in the poor quality nursing care so); Melby, doing Barkoo v. and denied thorough a (7th Cir.1990) employer tal. The conducted (concluding 901 F.2d 613 alleged speech investigation into where there was no conduct discharged The concluded it was true. employer claimed her retaliated plaintiff policy speaking hospital nurse admitted against her based on the mistaken belief matters, making some of the but denied information to plaintiff providing to her. After her statements attributed inadvertent press employer’s about her grievances, she filed a termination and eavesdropping). claiming § action her termination vio- 1983 that a The Ambrose court also noted rights. lated her First Amendment Supreme from the protected speech case explained: Supreme plurality The Court Churchill, Court, 511 U.S. Waters government L.Ed.2d 686 review [Constitutional 114 S.Ct. (1994), employment decisions must rest on dif- its conclusion because supported speech than review of principles have nev- ferent that case the Court stated: “We imposed by government it of the restraints er held that is violation Consti- sovereign. The restrictions discussed employer to dis- as government tution for just are above allowed not because the The deliberate effect of give Waters is to speech government’s interferes with the government more deference to employers’ Rather, operation ... the extra power employment contrast, decisions. In stark government has in this area majority’s application comes of Waters in this from the government’s nature of the case makes it govern- more difficult for the employer. mission as ment to make decisions—in- cluding rudimentary changes employ- * * * * * ment practices offering such as comp time. key The analysis to First Amendment Yet, majority proposes extending here government employment decisions, then, just way. Waters majority The is this: government’s The interest claims that what reasonably defendants achieving goals effectively its as and effi- believed plaintiffs’ about affiliation ciently possible is elevated from a the Republican Party if untrue— relatively subordinate interest when it —even protected activity satisfies the element. acts as sovereign significant to a one majority On this basis the concludes that when it employer. govern- acts as engaged here in protected con- ment cannot restrict duct and that defendants’ decision to take public just large the name of effi- away system the banked time was motivat- ciency. government But where the by ed that perceived conduct.3 employing very someone for the purpose effectively achieving goals, its such majority’s reading of Waters is may restrictions appropriate. well be troubling First, two reasons. allow- ing perceived Waters, affiliation claim such as 674-75, U.S. S.Ct. 1878. forward, one here to go the Court is essen- Accordingly, the plurality concluded that tially providing more First Amendment requirement a only that the employee’s protection government employees spe-— actual speech can be in considered an em- cifically, the extending Court is First ployment rigid decision was too a test to protection government Amendment em- satisfy government’s interest in effi- ployees who have not even in engaged employment cient decisionmaking. Id. at sрeech. actual conduct or That result Thus, 114 S.Ct. 1878. government seems to totally be inconsistent with the employers should given leeway be some in plurality’s justification Waters main deciding weigh how to differing versions of we giving govern- should be deference to conversation, credit, a who to and how employer’s efficiency ment concerns in em- personal knowledge play should a role in ployment making. decision decision, the ultimate if even the risk in procedures Second, these employer was that majority explain does not may erroneously Waters, punish protected speech. why case, protected speech a 676,114 Id. at S.Ct. 1878. apply equal should with political force to a stated, majority 3. The dressing argument, relies on Dambrot v. Cent. this Court Univ., “[wjhat Mich. 55 F.3d do, 1189 n. 9 the First Amendment does not 1995) authority Cir. as the for this Court’s however, require government is as em- case, interpretation of Waters. But in that ployer university accept or the educator as conclusion, majority’s contrast motivating play- this view a valid as means of comported Court's decision with the Waters’ Dambrot, Thus, ers.” 55 F.3d at 1190. giving rationale of deference to majority's interpre- reliance on Dambrot anas There, decisionmaking. a basketball coach applied tation of Waters to be to the facts here players. used N-word with his He misplaced. claimed it awas motivational tool. In ad- protected employee engaged my In as this one. case such affiliation permitting activity. By this is not a view, though First Amendment even per- case, any on claim, decision patronage majority extends type this of certainly affiliation should issue ceived a context protections to First Amendment governing principles account the take into majority’s The recognized. previously political patronage Court’s Supreme in the contrary to the Su- conclusion also seems Branti, Elrod, and Rutan cases, dismissal addressing ‍‌‌​​​​‌‌​​​‌‌‌​‌​‌‌‌​​​‌​‌‌‌‌‌‌​​‌‌‌​‌​‌​‌​‌​​​​‍rationale for preme Court’s (rather speech cases such protected than involving govern- Amendment claims First Waters). directly cases deal Those controlling law Absent employers. ment protection First .Amendment issue, plain- this I cannot conclude affiliation, are thus a right to political have satisfied tiffs Erskine and Pertunnen such into how the Court views window showing they engaged their- burden polit- used the previously have claims. We activity. First Amendment our deci- to inform patronage ical cases engaged pro- plaintiffs sions on whether view, Moreover, it unneces- my activity for of a purposes affiliation tected be- sary for us to even decide this issue Sowards, claim. See retaliation satisfy the none of the can cause Eckerman, 432; In 636 F.3d at 208. prima a facie retali- additional elements of cases, the Court was not patronage claim. ation category concerned about whether rather it was protected, but II. ... on freedoms troubled “the restraint issue that and association”-—-an of belief Dye’s Speech A. Protected Claim facts in this closely much more hews 96 S.Ct. 2673. case. U.S. tempo- majority concludes that the cases, affirmative all those there were Dye’s speech ral proximity between employee’s ability placed restraints on the satisfies the causal-connec- his demotion unaffiliated, remain such as to affiliate or First Amendment tion element of his portion wages given to be requiring conclu- majority grounds Claim. political party requiring particular Dye’s speech that flimsy sion on evidence party from a member. sponsorship actually occurred within and his demotion contrast, Here, did not defendants of each other. two months Erskine and Pertunnen rеquire plaintiffs between Octo- It is true that sometime party for a or seek a pledge support defen- ber 2006 and November know, party sponsor. Nor did defendants Dye position informed that his dant Post con- based on Erskine’s and Pertunnen’s this, the ma- duct, being eliminated. From affiliated with the was that were fact, Party. jority Dye’s political speech In Erskine and that Republican concludes engaging any conduct very Pertunnen denied earliest happened with Post “[a]t that would have shown their affiliation September ... date in 2006.” on some party.4 with the acknowledges that there majority The also record, argues in the but specific is no date sum, has not Supreme Court Dye told about his demo- that because spoken precise on the issue here —whether 8, 2006, notice tion November before of an em- employer’s perception mere months, if two “must have occurred within ployee’s affiliation is sufficient to establish supra, 4. See note 1. sooner, protected activity.”5 tics and when Dye posi- Post informed his being eliminated, tion was and that in any majority a Title The relies on VII deci- likely event it is gap time is sion from this Circuit that concluded the outside limits of what this Court has deter- prima causation element of a facie case mined is acceptable, Dye should have been temporal

was met based on proximity required bring some other evidence of lapsed. alone where three months had See retaliatory conduct in order to establish Singfield Ante (citing v. Akron Metro. position elimination of his was based Auth., Housing 389 F.3d protected on his speech. Dye But neither Cir.2004)). But this conclusion conflicts nor the majority point any other evi- awith more recent decision of this Court. dence, specifically as it pertains to the City Memphis, See Arendale v. 519 F.3d elimination of Dye’s position. case, In this (2008) (affirming summary judg- temporal proximity alone is not sufficient ment for defendant and rejecting plaintiffs to establish causation. This con- argument retaliatory occurring events clusion is even more clear when consider- two months after an charge EEOC of dis- ing proffered defendants’ reasons for elim- crimination were alone sufficient to estab- inating Dye’s position. connection). temporal lish causal majority discusses that Even defendants’ assuming gap here was within Dye’s eliminated months, position two to majority budgetary three also reasons and that temporal Dye’s concedes that certain of proximity alone functions being reassigned Yet, has its were limitations and that to Post. “where some majority ultimately time elapses between when the determines that defen- employer learns of a dants’ evidence is not sufficient activity and the sub- to conclude sequent action, juror that no reasonable adverse could fail to re- turn a verdict employee couple temporal must for defendants. But proximity majority’s with retaliatory other evidence of discussion of the evidence in conduct incomplete. this case is causality.” to establish Ante (citing See Co., Mickey v. Zeidler Tool & Die opinion neglects to mention that (6th Cir.2008)); also, Arendale, see 519 Dye early July knew as June or of 2006 (“Plaintiff F.3d at 606 claims the fact job responsibilities being his di- retaliatory just events occurred minished. This was several months before two months after the charge EEOC engaged he protected activity. Dye’s enough by discrimination is sup- itself to (and responsibilities reduced the eventual port the causal connection element. This position) completely elimination of his is simply a misstatement of the law. Ab- consistent defendants’ claims that retaliation, sent other evidence of Plain- budgetary required concerns examination fail”). tiffs rеtaliation claim must of how staff being used and that Given that the evidence is unclear as to there was not enough justify work to (Post. precisely Dye when poli- position.6 and Post talked continued cost of the Aff. card, argument, gas 5. At oral phone, the state conceded the a a state-issued and that the election, happened prior discussion but paid expenses overnight stays state his for and precisely could not state when it occurred. 23:20; (Arg. Dye Dep., Page meals. Audio at #316). ID majority Dye’s 6. The also fails to wrestle with testimony posi- own on what the costs of his were, including discrepancies regarding tion car, Dye’s salary, Dye the fact had a state #297-98). ¶ court concluded elimination This in turn is The district ID Page system not an of the time was banked precipitous decline consistent plain- action because adverse time during this dates and revenues race paid for each tiffs would still continue be (Post Aff., Page ID Exhibit period, majority day. work The comes to 307), budget cuts culminating drastic # opposite conclusion. ¶ (Post Aff. 14- 2009. 302). ID # Page Wayne, 452 Cnty. In Adair v. Charter (6th Cir.2006), this Court ad- F.3d 482 elimi- Dye’s position fact that argument that a freeze on the dressed budget sup- issues is also nated because of time was an adverse em- use of banked job Dye’s to add ported by Post’s decision purposes of a retalia- ployment action own, that defen- to his responsibilities tion claim under the Fair Labor Standards fill hire someone new to dants did not Act. We held that the freeze banked (Dye Liaison role. Dye’s Administrative it time was not an adverse action because Page ID # Dep., “did not result in a material loss of bene- fits, termination, demotion, transfer, or al- majority’s con- This evidence belies job responsibilities.” teration of Id. at Dye here clusion that established causation Rather, merely required 490. defendants an and at- simply by asserting imprecise days to use vacation for vacation political between his tenuated connection pay rather than save it for at a later date. position. and the elimination of his Id. Instead, Dye’s contrasted with feeble when majority here asserts that Adair is nexus, compels this evidence causal only of limited instructional value because juror could conclusion that no reasonable applied of the “distinct standard” to First fail to return verdict defendants. Amendment retaliation claims where the question alleged is whether action Dye B. and Hall’s Affiliation Claims person ordinary “deter a would firmness above, my For the reasons discussed exercising right from stake.” Thad- Blatter, view, only Dye may Plaintiffs and Hall be deus-X v. 175 F.3d 378 Cir. (en 1999) banc). standard, Applying this satisfy protected activity ele- able majority that here concludes political ment of their affiliation claim on key time program banked “was benefit may enough that their conduct be basis stewards,” “[although to these White Dye to establish that defendants believed changed and Post the structure of the political and Hall were affiliated with a way in a in- compensation would not Sowards, party.7 See 203 F.3d at 432 losses, monetary flict it potential cer- political (“Support of candidate falls tainly imposed type a different of financial scope right within the burden on the stewards. The lack of a association.”). said, Dye That and Hall income, steady especially when combined would also still have to establish that elimi- racing days, with the decrease in could system nation of the banked time certainly person chill or silence a of ordi- action and that took adverse defendants nary firmness.” in part action least because of Republican affiliation and Hall’s with the This conclusion is not warranted how party. system actually the banked time worked. shows, satisfy sequent analysis their would 7. Even if Erskine and Pertunnen could claims protected activity requirement, as the sub- fail on the other elements.

317 system Cir.2001); allowed the Harness Stewards 343 n. see Hamilton, essentially days they Cnty. “bank” worked also Smith v. 34 Fed. (6th Cir.2002) regular days any day Appx. over the ten (concluding Thus, period. days if a steward opportunity compensatory worked loss of for time weeks, in two put steward could one was not adverse action under VII). time, day in Essentially, the “bank” use a later for Title as contract em- fill in example days ployees, only for missed in a later thing plaintiffs here lost pay period if he or she took time off. willingness was the state’s to hold onto When defendants pay they eliminated banked their extra when wanted take a program, they time plaintiffs day still allowed off or when there was no work. Now to use until it they responsible accumulated time ran would be for that. This out, plaintiffs paid hardly would still be for seems to the type be of loss that any days over regular person worked their ten would deter a ordinary firmness days, they but simply longer could no bank from affiliating political party. days those for later use. The fact that Moreover, assuming even the loss of plaintiffs get paid any days still for worked action, banked time was an adverse days against over ten majority’s cuts and Hall would still have to show the conclusion that elimination of the banked system was eliminated because of their system time steady resulted a “lack of a political affiliation and that defendants’ income,” which “when combined with the eliminating system stated reasons for days, decrease in racing certainly could do not support the conclusion that no rea- chill or a person ordinary silence firm- juror sonable could fail to return a verdict ness.” for defendants. eliminated, system Even after the Dye and Hall’s best evidence of causa- plaintiffs permitted were still to use time tion are alleged defendants’ statements they had banked until it ran out. Addi- they eliminating banked time tionally, plaintiffs could still work addition- plaintiffs’ support because of for the Re- days al regular get over the ten paid publican previous guber- candidate it. only for real difference is that though natorial election. Even these plaintiffs personally responsible would be go element, statements causation saving money day for from that extra when alongside considered evidence that having of work instead of the state hold just defendants did not eliminate the words, onto it for them. In other rather system they banked time but having than plaintiffs’ the state “bank” also eliminated it for other two Harness funds, rainy day plaintiffs themselves Stewards who were not a part of this required would be to deposit money lawsuit, the causal connection is not so savings into a account put it into an Additionally, clear. defendant White de- envelope and use it when needed it. nied ever making statement that she complaints Plaintiffs’ regarding system elimina- eliminated the banked time be- system tion of the banked-time amount to of plaintiffs’ political cause affiliations. nothing purely more than personal though summary judgment reasons Even at the preferring stage former state of affairs we light view evidence affairs, over the current state of which nonmoving party, this most favorable to the has very Court stated the Title VII context this other at the least evidence cre- does not constitute an plaintiffs’ adverse action. See ates some doubt about claim that Corrections, Michigan Dept, Strouss v. defendants eliminated the banked time that rea- clear no discretionary, it seems Republican of plaintiffs’ system because to return a verdict juror fail could sonable affiliations. respect with whether defendants questiona- more This conclusion even politically motivated. decision was their reasons for eliminat- defendants’ when ble system are consid- time ing the banked that she consulted III. testified White

ered. Agriculture’s Hu- of Department with the reasons, disagree I foregoing For the [White] “soon after Director Resource man these majority’s conclusions on with that days,” and of the banked learned affirm dis- therefore and would issues banking informed that her Director grant defendants’ trict court’s decision Agency. liability for the system was motion. summary judgment because that told White Director not entitled and employees were contract leave, they should annual leave or

to sick days to use banked getting be

not this advice when White relied

purpose. and practice, end be- decided to

she Director, with the had consulted she

cause decision to be consider her did not

she discretionary. FREUDEMAN, individually Dennis J. testimony corroborates

Defendant Post’s De- for the estate of and as executor testified that he He Freudeman, assertions. Dorothy White’s Plain- ceased V. lack concerned about the and White tiff-Appellee, accountability with the and oversight of that after consult- “banking” process, and CANTON; OF Emeritus Agriculture’s Hu- LANDING Department

ing Emeritus Corporation, dba Assisted Director, the decision was Resource man Living, Living, dba Emeritus Senior it it because was not to eliminate made Defendants-Appellants, any policy or Civil governed by written rules, it used other was not Service Inc.; Wegman Wegman Companies, stewards, there was racing no types of (Canton) VI, Family LLC oversight process. management Defendants. January 2007 allege that at the Plaintiffs time meeting, said banked White 12-3130. No. plaintiffs’ per- being eliminated because Appeals, United States Court alleged when that affiliation. But ceived Circuit. Sixth next to evidence up is stacked statement for all system was eliminated Dec. 2012. Argued: plaintiffs, just Harness stewards Filed: Dec. Decided 2012. did not make those White testified she January meeting, statements concerned about the and Post were

White thus consulted oversight

lack who told Department Director of ‍‌‌​​​​‌‌​​​‌‌‌​‌​‌‌‌​​​‌​‌‌‌‌‌‌​​‌‌‌​‌​‌​‌​‌​​​​‍the cease, and that practice should

them her decision to be did not

White consider

Case Details

Case Name: Jeff Dye v. Office of the Racing Comm'n

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Dec 18, 2012

Citation: 702 F.3d 286

Docket Number: 11-1828

Court Abbreviation: 6th Cir.