2:09-cv-11829 | E.D. Mich. | Feb 12, 2010
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RUTH MOSHOLDER,
Plaintiffs,
v. Case No. 09-CV-11829-DT
PATRICIA BARNHARDT, et al.,
Defendant.
/
OPINION AND ORDER DENYING DEFENDANTS’ “MOTION TO DISMISS AND/OR
FOR SUMMARY JUDGMENT”
Pending before the court is a “Motion to Dismiss and/or [for] Summary
Judgment,” filed by Defendants Patricia Barnhardt and Dewayne Burton on December
9, 2009.1 Plaintiff Ruth Mosholder filed a response to the motion, and the court
1
Neither party adhered adequately to this court’s motion practice guidelines, as
set forth in the court’s June 18, 2009 “Scheduling Order,” and submitted briefs in
formats which are contrary to the preferred format in this district and by this judge. The
parties simply ignored this court’s instructions with respect to Rule 56 motions. Neither
party provided numbered, corresponding statements of purportedly uncontroverted
facts. Defendant’s first stated fact is “Plaintiff works a [sic] Corrections Officer E-9 in the
Thumb Correctional Facility (TCF). (Exhibit A, Plaintiff's Deposition, p 20 ln 5-19).”
Plaintiff’s first stated fact is “Plaintiff was hired by the MDOC in February 1995 and was
initially posted at the Western Wayne Correctional Facility. See Exhibit 1, pg. 10.” The
result of the parties’ failure to coordinate is a jumble of alleged facts coming from two
directions many of which are either uncontested or irrelevant to the decision.
Plaintiff’s brief contains margins much smaller than the size mandated by Local
Rule 5.1, making the brief more difficult to read. Defendants, for their part, followed
what appears to be an Attorney General’s office trend, citing every authority in a
footnote. This practice is distracting to a reader and unacceptable to this judge. The
Attorney General is notified that future filings in this judge’s cases that confine case and
statutory citations to footnotes will be stricken subject to refiling. Assistant Attorneys
General Grill and Cabadas are directed to notify their supervisor(s) in writing of this
point of procedure. The court, on the other hand, commends both the Attorney General
and Plaintiffs for clarity in docketing of supporting exhibits (e.g., “ Exhibit A - Deposition
of Ruth Mosholder 10 pages; Exhibit B - Deposition of Laquita Featherstone 6 pages,”
concludes a hearing is unnecessary. See E.D. Mich. LR 7.1(e)(2). For the reasons
stated below, the court will deny the motion.
I. INTRODUCTION
On or about April 20, 2009, Plaintiff initiated this action in Genesee County
Circuit Court. Plaintiff asserted one count against Defendant Barnhardt under 42 U.S.C.
§ 1983, and one count against Defendant Burton under 42 U.S.C. § 1983. Both counts
allege that Defendants retaliated against her for exercising her free speech rights under
the First Amendment of the Constitution. Defendants timely removed the action to this
court on May 12, 2009, and the case proceeded through discovery. Defendants now
assert that Plaintiff’s case cannot survive summary judgment because as a matter of
law she cannot establish either (1) an adverse action or (2) a causal connection
between the adverse action and the alleged protected activity. Because the court finds
that a reasonable jury could find that Plaintiff can establish her prima facie case, the
court will deny Defendants’ motion.
II. BACKGROUND
Plaintiff began working for the Michigan Department of Corrections (“MDOC”) in
February 1995. (Pl.’s Dep. at 10, Pl.’s Ex. 1.) After working at several other facilities,
Plaintiff was transferred to the Thumb Correctional Facility (“TCF”) in Lapeer, Michigan
in February of 2001. (Id. at 20.) Plaintiff’s position at TCF was a Corrections Officer E-
9. (Id.) She worked mostly outside in the yard, but also in the housing unit. She
worked different positions, including the front desk and the visiting room, wherever she
etc.), a format that is also called for in CM/ECF guidelines, but too seldom followed.
2
was needed. (Id.) The shift command at TCF has the right to assign correction officers
on various details, as needed. (Id. at 27.) Plaintiff worked the afternoon shift at TCF,
which is 2:00 p.m. to 10:00 p.m. (Id. at 20-21.)
Plaintiff became a school officer at TCF in September 2001. (Id. at 25.) The
school officer is a bid position. (Id.) Interested employees submit their names for
consideration, and the three employees with the highest seniority are considered for the
position. (Id. at 26.) Plaintiff had the third highest seniority, but after the interviews she
was selected for the position. (Id.) As a bid assignment, the school officer’s
assignments do not change daily; the school officer is guaranteed the same assignment
every day. (Id. at 27) Additionally, the school officer has a set schedule, with weekends
and holidays off. (Id.) Indeed, the school officer position is the only second shift
position at TCF with regular weekends and holidays off. (Id. at 153-54.) The school
officer’s interaction with the inmates is limited. According to Plaintiff, corrections officers
at TCF generally supervise 800 to 1200 prisoners, but the school officer is charged with
forty to eighty prisoners at any given time. (Id. at 27) Plaintiff also testified that the
school officer position is less hazardous and less dangerous than being a corrections
officer in the general population. (Id. at 154.) Aside from these differences, though, the
school officer is nonetheless still a corrections officer, with the same rank and grade.
(Id. at 28.)
Plaintiff worked as the school officer until she was transferred to a regular TCF
corrections officer position in February 2009. The events leading up to the transfer form
the basis of Plaintiff’s retaliation lawsuit.
3
In the summer of 2008, Defendant Burton developed the idea of having a rap
competition at TCF. (Pl.’s Ex. 3, Burton Dep. at 10-11.) The competition occurred on
October 3, 2008, as part of a program with Kettering University. (Id. at 20-21.) The
winner of the contest would have his presentation aired on Kettering’s radio station. (Id.
at 17.) According to Burton, the participants submitted their lyrics before the
competition and they were reviewed and censored. (Id. at 26.) While the participants
performed their songs, Defendant Burton read their submissions to make sure they
were following the approved lyrics. (Id.) One participant used profanity, and his song
was immediately ended. (Id. at 27.) Burton did not see any use of gang signs. (Id. at
31.)
Plaintiff testified that she did not observe the entire rap competition, but went
down to watch it three or four times, each time spending about five minutes. (Pl.’s Mot.
Br. at Ex. 1, Pl.’s Dep. at 70.) Plaintiff testified that she saw inmates flashing gang signs
and singing lyrics about groups (313 and Joy Road), which are not officially recognized
as gangs, but to “those of us that work in prison” the groups are “like street gangs.”
(Id. at 71.) She also saw inmates who were in violation of the dress code, with their
pants pulled down, their shirts hanging out, and wearing hats. (Id. at 74.) Plaintiff
testified that she and other officers believed it to be a potentially volatile situation. (Id. at
88-90.)
Following the competition, Plaintiff did not report any violations to her superiors
because she had reported violations in the past which she claims were covered up.
(Id. at 77.) Instead, she wrote letters on October 10, 2008, to various state legislators,
including, at least, Michigan Senators Jim Barcia and John Gleason and Michigan
4
House of Representatives Terry Brown, Lee Gonzales, and John Stahl. (Id. at 79.) She
believes that Senator Barcia forwarded her letter to Senator Judson Gilbert, II. (Id.)
Plaintiff has submitted two of these letters, which appear to be identical, to the court.
(Pl.’s Ex. 18.) In the letters, Plaintiff expresses her view that the rap competition was,
essentially, ill-advised. She describes the policy violations she observed, as well as
described the general atmosphere as “a very volatile situation that was on the edge of
exploding.” (Id.)
On October 21, 2008, the legislative assistant to Representative Gonzales
emailed Bryan Crenshaw, the legislative liaison for the Michigan Department of
Corrections, about Plaintiff’s letter to Representative Gonzales. (Pl.’s Ex. 19.)
Crenshaw immediately emailed Defendant Barnhardt, stating: “Can anyone shed some
light on this[?] I received a copy of the same letter in the mail yesterday from a
legislative office, so it appears the staff person has contacted multiple legislators.” (Pl.’s
Ex. 20.) Defendant Barnhardt responded that she would put together a written
response after talking to Defendant Burton. (Id.)
Defendant Burton testified that Defendant Barnhardt gave him a copy of the letter
and asked him to put a report together on the rap competition and the actual events that
took place. (Pl.’s Ex. 3, Burton Dep. at 24.) Defendant Barnhardt testified that when
she spoke with Defendant Burton about Plaintiff’s letter, he seemed “absolutely”
concerned. (Pl.’s Ex. 4, Barnhardt Dep. at 71.) On October 22, 2008, Defendant
Burton sent a memorandum to Defendant Barnhardt outlining his view of the October 3,
2008 rap competition, and his disagreement with the issues raised in Plaintiff’s letter.
(Pl.’s Ex. 23.
5
On October 24, 2008, Defendant Barnhardt provided a written response to
Representative Gonzales’s office regarding Plaintiff’s letter. (Pl.’s Ex. 24.) The written
response is in the form of a letter to Plaintiff, although Defendant Barnhardt testified she
did not send it to Plaintiff and that this is just the standard way of drafting such
responses. (Pl.’s Ex. 4, Barnhardt Dep. at 66.)
In the few weeks after the rap competition, Defendant Burton was promoted to
the Acting Deputy Warden position at TCF. (Defs.’ Ex. D, Burton Dep. at 59.) After he
was promoted, he spoke with the principal at TCF, Laquita Featherstone, and other
program staff about Plaintiff. (Id. at 59.) Burton stated that various staff members had
concerns about Plaintiff’s rigidity, but that he did not investigate any of the complaints
because it was not based on recent information. (Id. at 56.) Featherstone told Burton
that she had reorganized the school schedule at one point, to minimize Plaintiff’s
contacts with youthful offenders. (Id. at 57.) Burton did not memorialize any of these
conversations in writing. (Id. at 60.) Burton testified that through these conversations,
he decided that Plaintiff was not a good fit for the school building. (Id. at 57.)
On February 10, 2009, Burton issued a memorandum to Plaintiff reassigning her
from her bid position as a school officer to a general corrections officer at TCF. (Defs.’
Ex. L.) Defendant Barnhardt testified that the move was not punitive, and that Plaintiff
was not disciplined in any way. (Barnhardt Dep. at 113-114, Defs.’ Ex. J.) Plaintiff
receives the same pay, maintains the same rank, and works on the same shift. (Id. at
113.) However, her job assignments now rotate. (Id.) And, as set forth above, she no
longer has a set schedule, with weekends and holidays off. (Pl.’s Dep. at 10, Pl.’s Ex.
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153.) Plaintiff also testified that her previous position as a school officer was less
dangerous, because it has less contact with the prison population. (Id. at 153-54.)
Defendants rely primarily on two incidents in explaining why Plaintiff was a bad fit
for the school officer position. In January 2009, Plaintiff had a confrontation with
Featherstone. Plaintiff was standing in a teacher’s classroom when she observed a
prisoner had some paperwork with some gang-related drawings on it. (Defs.’ Ex. A,
Pl.’s Dep. at 45.) The prisoner was angry and pushed, or slammed, his chair against a
table. (Id.) The incident happened in front of both Plaintiff and the teacher, and Plaintiff
told the teacher that Plaintiff would write a misconduct ticket for destruction or misuse of
state property over $10. (Id. at 45-46.) Later, Principal Featherstone approached
Plaintiff and told her it was not Plaintiff’s job to write the ticket, but the teacher’s job to
write the ticket. (Id. at 45.) Plaintiff told Featherstone that if Plaintiff’s supervisor told
her not to write the ticket, then she would not write the ticket. (Id. at 46.) Featherstone
asked who Plaintiff’s supervisor was, but she apparently never followed up with
Plaintiff’s supervisor about the matter. (Id. at 46.)
On January 27, 2009, a Warden’s Forum was held, at which elected
representatives from the prison population can present concerns about the facility.
(Defs.’ Ex. J, Barnhardt Dep. at 68.). One or more prisoners complained about Plaintiff.
(Defs.’ Ex. K.) Specifically, a complaint was raised that Plaintiff kicked a group of
prisoners out of the music room. (Barnhardt Dep. at 96-97.) Barnhardt testified that
kicking prisoners out of the music room creates “unhappy prisoners, and that creates
potential safety and security issues.” (Defs.’ Ex. J, Barnhardt Dep. at 96.) After the
Warden’s Forum, Defendant Barnhardt called Defendant Burton to discuss the music
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room incident. (Id. at 98-99.) Lieutenant Robert Harvey investigated the inmate’s
grievance, and determined that “the officer was correct in the manner in which it was
handled.” (Pl.’s Ex. 30.)
Defendant Burton made the decision to reassign Plaintiff, and Defendant
Barnhardt supported the decision. (Defs.’ Ex. J, Barnhardt Dep. at 112.) Defendant
Barnhardt denies that the decision to reassign Plaintiff was retaliatory for her October
2008 letters. (Id. at 79.) She stated that while she was “upset that that information [in
the letters] was viewed that way,” but that she was not upset or angry with Plaintiff. (Id.)
Neither she nor TCF were negatively affected by the letters. (Id. at 79-80.)
Defendant Burton testified that, prior to the rap competition, he never had any
problems with Plaintiff. (Pl.’s Mot. Br. at Ex. 3, Burton Dep. at 23.) Plaintiff testified that
prior to her October 10, 2008 letters, Defendant Barnhardt was friendly with Plaintiff, but
that after the letters, her relationship toward Plaintiff changed. (Pl.’s Dep. at 151-52.)
In Defendant Burton’s career with the department of corrections, he has only
been involved with removing someone from a bid position twice. (Defs.’ Mot. Br. at Ex.
D, Burton Dep. at 14-15.) Aside from removing Plaintiff, he also removed “Officer
Walker” from the information desk. (Id.) As with Plaintiff, he removed Walker because
he did not believe she was a “good fit.”
III. STANDARD2
2
Defendants entitle their motion as one to both dismiss and for summary
judgment. Because the motion was filed after the close of discovery and relies on
matters outside the pleadings, the court will treat the motion as one under Federal Rule
of Civil Procedure 56.
8
Under Federal Rule of Civil Procedure 56, summary judgment is proper when
there is no genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56©. “In deciding a motion for summary
judgment, the court must view the evidence in the light most favorable to the non-
moving party, drawing all reasonable inferences in that party’s favor.” Sagan v. United
States, 342 F.3d 493" date_filed="2003-08-25" court="6th Cir." case_name="Sagan v. United States">342 F.3d 493, 497 (6th Cir. 2003). “Where the moving party has carried its
burden of showing that the pleadings, depositions, answers to interrogatories,
admissions and affidavits in the record, construed favorably to the non-moving party, do
not raise a genuine issue of material fact for trial, entry of summary judgment is
appropriate.” Gutierrez v. Lynch, 826 F.2d 1534" date_filed="1987-08-25" court="6th Cir." case_name="Anthony Gutierrez v. John Lynch">826 F.2d 1534, 1536 (6th Cir. 1987) (citing Celotex
Corp. v. Catrett, 477 U.S. 317" date_filed="1986-06-25" court="SCOTUS" case_name="Celotex Corp. v. Catrett, Administratrix of the Estate of Catrett">477 U.S. 317 (1986)).
The court does not weigh the evidence to determine the truth of the matter, but
rather, to determine if the evidence produced creates a genuine issue for trial. Sagan,
342 F.3d 493" date_filed="2003-08-25" court="6th Cir." case_name="Sagan v. United States">342 F.3d at 497 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242" date_filed="1986-06-25" court="SCOTUS" case_name="Anderson v. Liberty Lobby, Inc.">477 U.S. 242, 249 (1986)).
The moving party discharges its burden by “‘showing’ –that is, pointing out to the district
court– that there is an absence of evidence to support the nonmoving party’s case.”
Horton v. Potter, 369 F.3d 906" date_filed="2004-04-13" court="6th Cir." case_name="John L. Horton v. John E. Potter, Postmaster General">369 F.3d 906, 909 (2004) (citing Celotex, 477 U.S. at 325). The
burden then shifts to the nonmoving party, who “must do more than simply show that
there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574" date_filed="1986-03-26" court="SCOTUS" case_name="Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation">475 U.S. 574, 586 (1986). The non-moving party must put forth
enough evidence to show that there exists “a genuine issue for trial.” Horton, 369 F.3d
at 909 (citing Matsushita, 475 U.S. 574" date_filed="1986-03-26" court="SCOTUS" case_name="Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation">475 U.S. at 587 (1986). Summary judgment is not
9
appropriate when “the evidence presents a sufficient disagreement to require
submission to a jury.” Anderson, 477 U.S. 242" date_filed="1986-06-25" court="SCOTUS" case_name="Anderson v. Liberty Lobby, Inc.">477 U.S. at 251-52 (1986).
IV. DISCUSSION
In order for Plaintiff to establish a claim of First Amendment retaliation, she must
show that: (1) she engaged in constitutionally protected speech or conduct; (2) an
adverse action was taken against her that would deter a person of ordinary firmness
from continuing to engage in that conduct; and (3) there is a causal connection between
elements one and two–that is, the adverse action was motivated at least in part by her
protected conduct. Scarbrough v. Morgan County Bd. of Educ., 470 F.3d 250" date_filed="2006-11-22" court="6th Cir." case_name="Scarbrough v. Morgan County Board of Education">470 F.3d 250, 255 (6th
Cir. 2006) (citing Thaddeus-X v. Blatter, 175 F.3d 378" date_filed="1999-03-08" court="6th Cir." case_name="Thaddeus-X and Earnest Bell, Jr. v. Blatter">175 F.3d 378, 394 (6th Cir. 1999) (en banc)).
Whether a plaintiff engaged in protected speech is a question of law for the court.
Nair v. Oakland County Cmty. Mental Health Auth., 443 F.3d 469" date_filed="2006-04-04" court="6th Cir." case_name="D. Sreedharan Nair v. Oakland County Community Mental Health Authority and William J. Allen">443 F.3d 469, 478 (6th Cir. 2006)
(citing Brandenburg v. Hous. Auth. of Irvine, 253 F.3d 891" date_filed="2001-06-06" court="6th Cir." case_name="Christine Brandenburg v. Housing Authority of Irvine Perry Meade">253 F.3d 891, 897 (6th Cir. 2001)). For
purposes of their summary judgment motion, Defendants accept that Plaintiff’s letter, or
letters, regarding the rap competition constitutes constitutionally protected speech, and
focus instead on the remaining two elements of Plaintiff’s prima facie case.
A. Whether Plaintiff Suffered an Adverse Action
Defendants first argue that Plaintiff’s reassignment from the school officer bid
position cannot, as a matter of law, constitute an adverse action “that would deter a
person of ordinary firmness from continuing to engage in that conduct.” Scarbrough,
470 F.3d 250" date_filed="2006-11-22" court="6th Cir." case_name="Scarbrough v. Morgan County Board of Education">470 F.3d at 255. Defendants point out that “it is not necessarily true that every
action–no matter how small–is constitutionally cognizable.” (Defs.’ Br. at 13.) It is true,
for example, that “[p]risoners may be required to tolerate more than public employees,
10
who may be required to tolerate more than average citizens, before an action taken
against them is considered adverse.” Thaddeus-X, 175 F.3d 378" date_filed="1999-03-08" court="6th Cir." case_name="Thaddeus-X and Earnest Bell, Jr. v. Blatter">175 F.3d at 398. However, the
Sixth Circuit has stated that
We emphasize that while certain threats or deprivations are so de minimis
that they do not rise to the level of being constitutional violations, this
threshold is intended to weed out only inconsequential actions, and is not
a means whereby solely egregious retaliatory acts are allowed to proceed
past summary judgment. Retaliation against a prisoner [or, in this case, a
public employee,] is actionable if it is capable of deterring a person of
ordinary firmness from exercising his or her right to access the courts.
Id.
Defendants assert that Plaintiff’s alleged adverse action is too trivial to survive
summary judgment. It is undisputed that Plaintiff’s reassignment did not result in a loss
of pay, a change of shift time, or a drop in rank. Plaintiff was not disciplined as a result
of her letters. Rather, the main differences in her job after her reassignment is that she
works with a larger number of prisoners and does not have holidays and weekends off
as a matter of course. Defendants argue that these differences cannot as a matter of
law constitute an adverse action sufficient to “deter a person of ordinary firmness from
continuing to engage in that conduct.” Scarbrough, 470 F.3d 250" date_filed="2006-11-22" court="6th Cir." case_name="Scarbrough v. Morgan County Board of Education">470 F.3d at 255.
Sixth Circuit case law does not support Defendants’ position. Where the record
demonstrates that “being transferred . . . causes Plaintiffs to suffer harm to their
reputations . . . and can negatively impact their daily experiences including their
commute, coworker friendships, and community relationships,” Leary v. Daeschner, 349
F.3d 888, 901 (6th Cir. 2003), the Sixth Circuit has held that “involuntary transfer from
one job to another is action that ‘would likely chill a person of ordinary firmness from
continuing to engage in that constitutionally protected activity.’” Id. (quoting Bloch v.
11
Ribar, 156 F.3d 673" date_filed="1998-09-21" court="6th Cir." case_name="Cynthia Bloch and Thomas Bloch v. Sheriff L. John Ribar">156 F.3d 673, 679 (6th Cir. 1998) (impairment of reputation, humiliation, mental
suffering subject to compensatory damages)). The Sixth Circuit has held that even
when the employee suffers no loss in pay or rank, such a transfer can qualify as an
adverse action for purposes of retaliation claims. Id.; see also Boger v. Wayne County,
950 F.2d 316" date_filed="1991-12-02" court="6th Cir." case_name="Diane Boger v. Wayne County Vernice Davis-Anthony">950 F.2d 316, 321 (6th Cir. 1991) (where “extreme embarrassment, humiliation,
extreme mental anguish, and loss of professional esteem” was alleged, “Plaintiff need
not have suffered loss of salary, promotional opportunities, seniority or other monetary
deprivations to have a cognizable interest protected by the First Amendment or the
equal protection clause.”).
As Plaintiff points out, in the Title VII context, the Sixth Circuit has recognized
that a transfer which resulted in no change of pay but was “more arduous and ‘dirtier’”
was an adverse employment action. White v. Burlington N. & Santa Fe Ry. Co., 364
F.3d 789, 803 (6th Cir. 2004). In another Title VII case, the Sixth Circuit found at least a
genuine issue of fact with respect to whether a nurse’s lateral transfer could constitute
an adverse action where the nurse’s transfer was to another facility where she may
have been put into contact with prisoners who had issued threats against her. Strouss
v. Michigan Dept. of Corr., 250 F.3d 336" date_filed="2001-05-04" court="6th Cir." case_name="Susan Strouss v. Michigan Department of Corrections, a State Agency and Body Politic Marie Fletcher Gerald Devoss, in Their Individual Capacities">250 F.3d 336, 343 (6th Cir. 2001).
The court is not persuaded that as a matter of law Plaintiff’s involuntary transfer
out of the bid position of school officer cannot constitute an adverse action. A
reasonable jury could find that the Plaintiff’s involuntary transfer which resulted in, for
example, a loss of guaranteed holidays and weekends off, a change in job
responsibilities, and a move to a more dangerous position, constitutes an adverse
action sufficient to “deter a person of ordinary firmness from continuing to engage in that
12
conduct.” Scarbrough, 470 F.3d 250" date_filed="2006-11-22" court="6th Cir." case_name="Scarbrough v. Morgan County Board of Education">470 F.3d at 255. Plaintiff has therefore identified sufficient facts
to create a triable issue on the second prong of her first amendment retaliation claim.
B. Whether There is a Causal Connection Between the
Protected Speech and the Adverse Action
Defendants next argue that Plaintiff cannot establish a causal connection
between her letters and her reassignment in order to meet the third prong of her
retaliation claim. A causal connection exists between the adverse action and the
protected speech if the speech was “a substantial or motivating factor” in the adverse
action. Hughes v. Region VII Area Agency on Aging, 542 F.3d 169" date_filed="2008-09-08" court="6th Cir." case_name="Hughes v. Region VII Area Agency on Aging">542 F.3d 169, 180 (6th Cir. 2008)
(quoting Rodgers v. Banks, 344 F.3d 587" date_filed="2003-11-05" court="6th Cir." case_name="Carolyn T. Rodgers v. Elizabeth Banks">344 F.3d 587, 596 (6th Cir. 2003)). “Put differently, a
plaintiff satisfies the motivation element by showing that the adverse action ‘was
motivated at least in part’ by the protected speech.” Miller v. City of Canton, 319 F.
App’x 411, 419 (6th Cir. 2009) (quoting Scarbrough, 470 F.3d 250" date_filed="2006-11-22" court="6th Cir." case_name="Scarbrough v. Morgan County Board of Education">470 F.3d at 255). The third part of
Plaintiff’s First Amendment retaliation claim therefore looks to Defendants’ motivation in
transferring her. Hoover v. Radabaugh, 307 F.3d 460" date_filed="2002-10-03" court="6th Cir." case_name="Dale D. Hoover v. Patricia Radabaugh">307 F.3d 460, 467 (6th Cir. 2002). That is, “the
employee must ‘point to specific, nonconclusory allegations reasonably linking her
speech to employer discipline.’” Rodgers, 344 F.3d 587" date_filed="2003-11-05" court="6th Cir." case_name="Carolyn T. Rodgers v. Elizabeth Banks">344 F.3d at 602 (quoting Farmer v. Cleveland
Pub. Power, 295 F.3d 593" date_filed="2002-06-28" court="6th Cir." case_name="Chanita Farmer v. Cleveland Public Power and City of Cleveland">295 F.3d 593, 602 (6th Cir. 2002)). “An act taken in retaliation for the
exercise of a constitutionally protected right is actionable even if the action would have
been proper if taken for a different reason.” Hoover, 307 F.3d 460" date_filed="2002-10-03" court="6th Cir." case_name="Dale D. Hoover v. Patricia Radabaugh">307 F.3d at 467 (citing Bloch v.
Ribar, 156 F.3d 673" date_filed="1998-09-21" court="6th Cir." case_name="Cynthia Bloch and Thomas Bloch v. Sheriff L. John Ribar">156 F.3d 673, 681-82 (6th Cir. 1998).
In arguing causation, Plaintiff relies primarily on the temporal proximity between
her protected activity, writing the letters regarding the rap competition, and her transfer.
13
Plaintiff’s letters were dated October 10, 2008, and she was transferred on February 10,
2009. Defendants argue that the four months between Plaintiff’s letters and her
transfer makes the temporal proximity insufficient as a matter of law to create an issue
of fact on causation.
In Cooper v. City of North Olmsted, 795 F.2d 1265" date_filed="1986-07-16" court="6th Cir." case_name="Lywanna COOPER, Plaintiff-Appellee, v. CITY OF NORTH OLMSTED, Et Al., Defendants-Appellants">795 F.2d 1265 (6th Cir. 1986), the Sixth
Circuit found that the “mere fact that [the plaintiff] was discharged four months after
filing a discrimination claim is insufficient to support an interference of retaliation” in the
Title VII context. Id. at 1272. Temporal proximity, insufficient when found standing
alone at a remove of some four months, is nonetheless relevant to the causal
connection inquiry. Nguyen v. City of Cleveland, 229 F.3d 559" date_filed="2000-10-11" court="6th Cir." case_name="Pram Nguyen v. City of Cleveland">229 F.3d 559, 563 (6th Cir. 2000)
(“Although no one factor is dispositive in establishing a causal connection, evidence that
. . . the adverse action was taken shortly after the plaintiff’s exercise of protected rights
is relevant to causation.”) (citing Moon v. Transport Drivers, Inc., 836 F.2d 226" date_filed="1987-11-03" court="6th Cir." case_name="Darel E. Moon v. Transport Drivers, Inc. And U.S. Department of Labor">836 F.2d 226, 230 (6th
Cir.1987)). In Nguyen, the Sixth Circuit observed:
The specific issue of temporal proximity was addressed in Harrison v.
Metropolitan Government of Nashville, 80 F.3d 1107" date_filed="1996-04-08" court="6th Cir." case_name="Robert Dale Harrison v. Metropolitan Government of Nashville">80 F.3d 1107 (6th Cir.1996).
There, we held that even though one year and three months had elapsed
between the filing of the EEOC charge and the plaintiff’s termination, that
time lapse, when considered in conjunction with the evidence that three
other employees who testified on the plaintiff’s behalf feared retaliation
and the supervisor had made repeated comments that he would not
hesitate to run employees out of his department, was sufficient to
establish a prima facie case of retaliation. See id. at 1119 (“This evidence,
taken together with the timetable of Mr. Harrison’s EEOC charge and
termination, convinces us that the plaintiff established a prima facie case
of retaliation.”) (emphasis added); see also Moore v. KUKA Welding Sys.,
171 F.3d 1073" date_filed="1999-03-26" court="6th Cir." case_name="79 Fair Empl.Prac.Cas. (Bna) 795 v. Kuka Welding Systems & Robot Corporation">171 F.3d 1073, 1080 (6th Cir. 1999) (holding that the close proximity in
time between the adverse action and the protected activity coupled with
the evidence of frequent discipline for trivial matters and unwarranted
criticism of the plaintiff’s work, when viewed as a whole, supported the
jury’s finding of retaliation).
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In both Harrison and Moore, we found a causal connection when the
temporal proximity was considered along with other evidence of retaliatory
conduct.
Nguyen, 229 F.3d 559" date_filed="2000-10-11" court="6th Cir." case_name="Pram Nguyen v. City of Cleveland">229 F.3d at 566. Nguyen is often cited for the proposition that temporal
proximity alone is insufficient to establish a causal link, but Nguyen does not support so
strict a holding. In Nguyen, the court noted that there had been two previous Sixth
Circuit decisions, Cooper and an unpublished decision,3 in which the Sixth Circuit had
held that temporal proximity was not enough to establish causation. However, the
Nguyen court also left open the possibility that temporal proximity could, in some
circumstances, establish causation under the appropriate factual scenario:
In Parnell, after stating explicitly that temporal proximity in the absence of
other evidence of causation is not sufficient to raise an inference of a
causal link, we noted that not only had Parnell not presented any such
evidence, she had been transferred as part of a reduction-in-force, and the
time lag to which she pointed was seven months, which “does not
necessarily support an inference of a causal link; previous cases that have
permitted a prima facie case to be made based on the proximity of time
have all been short periods of time, usually less than six months.” Parnell,
1997 WL 271751 at *3. And in Cooper, which we specifically cited in
Parnell, we noted explicitly that the plaintiff had been discharged after
leaving her bus unattended, “with children milling around it,” and after
numerous disciplinary infractions. Cooper, 795 F.2d 1265" date_filed="1986-07-16" court="6th Cir." case_name="Lywanna COOPER, Plaintiff-Appellee, v. CITY OF NORTH OLMSTED, Et Al., Defendants-Appellants">795 F.2d at 1267. In each of
those cases, as in Nguyen’s case, the fact of temporal proximity alone was
not particularly compelling, because the plaintiff’s retaliation case was
otherwise weak, and there was substantial evidence supporting the
defendant’s version of the events. More importantly, however, while there
may be circumstances where evidence of temporal proximity alone would
be sufficient to support that inference, we do not hesitate to say that they
have not been presented in this case.
Nguyen, 229 F.3d 559" date_filed="2000-10-11" court="6th Cir." case_name="Pram Nguyen v. City of Cleveland">229 F.3d at 566-567 (emphasis added).
3
Parnell v. West, No. 95-2131, 1997 WL 271751, *2 (6th Cir. May 21, 1997).
15
Following Nguyen, some Sixth Circuit panels have stated that the causal link
cannot be based on temporal proximity alone. Timm v. Wright State University, 375
F.3d 418, 423 (6th Cir. 2004) (“Eight months is a long period of time for an employer to
wait to retaliate against an employee with a termination notice, and the evidence [the
plaintiff] presented does not change our perspective in this case.”); see also Holley v.
Giles County, Tenn., 165 F. App’x 447" date_filed="2006-02-01" court="6th Cir." case_name="Holley v. Giles Cnty TN">165 F. App’x 447, 452 (6th Cir. 2006) (“Hayward’s resignation
occurred eleven months after the personal injury suits were filed. Such a long time lag
between the speech and the adverse employment action is a strong indication that the
action was not retaliatory.”). And, conversely, other panels have found a causal link
based solely on temporal proximity. Asmo v. Keane, Inc., 471 F.3d 588" date_filed="2006-12-18" court="6th Cir." case_name="Susan P. Asmo v. Keane, Inc.">471 F.3d 588, 593 (6th Cir.
2006) (finding that termination within two months of learning of plaintiff’s pregnancy
sufficient evidence to satisfy causal nexus for retaliation); Singfield v. Akron Metro.
Hous. Auth., 389 F.3d 555" date_filed="2004-11-10" court="6th Cir." case_name="William Singfield v. Akron Metropolitan Housing Authority">389 F.3d 555, 563 (6th Cir. 2004) (finding that the temporal proximity of
“just over three months” between the protected activity and the adverse action occurring
in late January “significant enough to constitute sufficient evidence of a causal
connection for the purpose of satisfying [the plaintiff’s] burden of demonstrating a prima
facie case.”).
The court is persuaded that, despite language to the contrary, case law in this
circuit allows the causal connection to be found by temporal proximity alone in certain,
narrow circumstances. “We have recognized, however, that in some cases temporal
proximity may be sufficient to establish causation.” Hamilton v. Gen. Elec. Co., 556
F.3d 428, 435 (6th Cir. 2009) (citing Mickey v. Zeidler Tool & Die Co., 516 F.3d 516" date_filed="2008-01-31" court="6th Cir." case_name="Mickey v. Zeidler Tool and Die Co.">516 F.3d 516,
16
523-26 (6th Cir. 2008)). As the court held in DiCarlo v. Potter, 358 F.3d 408" date_filed="2004-02-20" court="6th Cir." case_name="Henry Dicarlo v. John E. Potter, Postmaster General">358 F.3d 408, 421 (6th
Cir. 2004):
In fact, this Circuit has embraced the premise that in certain distinct cases
where the temporal proximity between the protected activity and the
adverse employment action is acutely near in time, that close proximity is
deemed indirect evidence such as to permit an inference of retaliation to
arise. See, e.g., Brown v. ASD Computing Ctr., 519 F. Supp. 1096" date_filed="1981-07-15" court="S.D. Ohio" case_name="Brown v. ASD Computing Center">519 F. Supp. 1096, 1116
(S.D. Ohio 1981) (“where there is no direct proof of a retaliatory motive,
retaliation may be imputed if the timing of the retaliatory act is such as to
allow an inference of retaliation to arise”), aff’d sub nom. Brown v. Mark,
709 F.2d 1499" date_filed="1983-04-12" court="6th Cir." case_name="Bezenah v. Secretary of Health, Educ. And Welfare">709 F.2d 1499 (6th Cir. 1983); see also Nguyen, 229 F.3d 559" date_filed="2000-10-11" court="6th Cir." case_name="Pram Nguyen v. City of Cleveland">229 F.3d at 567 (noting
that there are instances in which “evidence of temporal proximity alone
would be sufficient to support” an inference of a causal link); Parnell v.
West, No. 95-2131, 1997 WL 271751, at *3 (6th Cir. May 21, 1997) (noting
that although “[a] time lag of seven months does not necessarily support
an inference of a causal link[,] previous cases that have permitted a prima
facie case to be made based on the proximity of time have all been short
periods of time, usually less than six months”).
DiCarlo, 358 F.3d 408" date_filed="2004-02-20" court="6th Cir." case_name="Henry Dicarlo v. John E. Potter, Postmaster General">358 F.3d at 421 (finding causal link met where 21 days separating protected
activity from adverse action). As with so many inquiries, the question of whether
temporal proximity is enough to establish causation is a case-specific, highly-factual
determination. Sixth Circuit case law suggests that temporal proximity may be enough
to establish causation if the events are particularly close in time.
Nonetheless, the court recognizes that there appear to be two lines of cases in
the circuit, one suggesting temporal proximity alone can never establish causation, and
one line suggesting it can. For example, in Asmo, the court specifically stated that
“[t]emporal proximity can establish a causal connection between the protected activity
and the unlawful employment action in the retaliation context,” Asmo, 471 F.3d 588" date_filed="2006-12-18" court="6th Cir." case_name="Susan P. Asmo v. Keane, Inc.">471 F.3d at 593,
while in Jones v. City of Allen Park, 167 F. App’x 398" date_filed="2006-01-03" court="6th Cir." case_name="Jones v. City of Allen Park">167 F. App’x 398, 408 (6th Cir. 2006), the court held
that “[t]he mere proximity in time of the allegedly retaliatory act to the plaintiff’s exercise
17
of his constitutional right is not enough to establish causation.” As another district court
in Circuit has aptly stated “[t]here appears to be some confusion in the case law on this
issue.” Eppes v. Enter. Rent-A-Car Co. of Tenn., No. 3:05-CV-458, 2007 WL 1170741,
*7 (E.D. Tenn. April 18, 2007).
One recent Sixth Circuit decision has attempted to explain the confusion:
Although recent case law presents as settled the proposition that temporal
proximity alone may not establish a causal connection, see, e.g., Tuttle,
474 F.3d at 321 (“The law is clear that temporal proximity, standing alone,
is insufficient to establish a causal connection for a retaliation claim.”), this
issue deserves greater attention. The Court in Tuttle cited Nguyen to
support its assertion that temporal proximity alone is not enough to
establish causation, id., but Nguyen made no such holding. See also
Dixon v. Gonzales, 481 F.3d 324" date_filed="2007-03-14" court="6th Cir." case_name="James Dixon, Jr. v. Alberto Gonzales, United States Attorney General and Robert S. Mueller, Iii, Fbi Director">481 F.3d 324, 333-34 (6th Cir. 2007) (citing Nguyen
for the same holding); Randolph v. Ohio Dept. of Youth Serv., 453 F.3d
724, 737 (6th Cir. 2006) (same); Little v. BP Exploration & Oil Co., 265
F.3d 357, 364 (6th Cir. 2001) (same).
Nguyen noted that “while there may be circumstances where evidence of
temporal proximity alone would be sufficient to support [the] inference [of
retaliatory discrimination], we do not hesitate to say that they have not
been presented in this case.” 229 F.3d 559" date_filed="2000-10-11" court="6th Cir." case_name="Pram Nguyen v. City of Cleveland">229 F.3d at 567 (emphasis added). Although
Nguyen did however note that other earlier cases could be read as having
“rejected the proposition that temporal proximity is enough,” id. at 566
(citing Cooper v. City of N. Olmsted, 795 F.2d 1265" date_filed="1986-07-16" court="6th Cir." case_name="Lywanna COOPER, Plaintiff-Appellee, v. CITY OF NORTH OLMSTED, Et Al., Defendants-Appellants">795 F.2d 1265, 1272 (6th Cir. 1986)),
Nguyen reads these cases expansively, and none squarely stands for the
proposition that temporal proximity alone may never show a causal
connection. In Cooper, for example, this court simply stated that “[t]he
mere fact that Cooper was discharged four months after filing a
discrimination claim is insufficient to support an interference [sic] of
retaliation.” 795 F.2d 1265" date_filed="1986-07-16" court="6th Cir." case_name="Lywanna COOPER, Plaintiff-Appellee, v. CITY OF NORTH OLMSTED, Et Al., Defendants-Appellants">795 F.2d at 1272. That language does not preclude plaintiffs
from ever using a temporal proximity closer than four months to establish
an inference of retaliation.
After Nguyen, other cases confronting this issue have often included
statements similar to Nguyen’s suggestion that in some circumstances
“temporal proximity alone would be sufficient.” 229 F.3d 559" date_filed="2000-10-11" court="6th Cir." case_name="Pram Nguyen v. City of Cleveland">229 F.3d at 567. For
instance, in DiCarlo v. Potter, 358 F.3d 408" date_filed="2004-02-20" court="6th Cir." case_name="Henry Dicarlo v. John E. Potter, Postmaster General">358 F.3d 408, 421 (6th Cir. 2004), this Court
stated that “this Circuit has embraced the premise that in certain distinct
cases where the temporal proximity between the protected activity and the
adverse employment action is acutely near in time, that close proximity is
18
deemed indirect evidence such as to permit an inference of retaliation to
arise.” See also Asmo v. Keane, Inc., 471 F.3d 588" date_filed="2006-12-18" court="6th Cir." case_name="Susan P. Asmo v. Keane, Inc.">471 F.3d 588, 593 (6th Cir. 2006)
(“Temporal proximity can establish a causal connection between the
protected activity and the unlawful employment action in the retaliation
context.”); McNett v. Hardin Cmty. Fed. Credit Union, 118 Fed. Appx. 960,
965 (6th Cir. 2004) (finding causation when “only 13 days” separated
protected activity from adverse action, reasoning that an “employer’s
knowledge of the protected activity coupled with an adverse action
occurring close in time can create an inference of causation where the
particular circumstances strengthen the inference of causation”); Shefferly
v. Health Alliance Plan of Michigan, 94 Fed. Appx. 275, 285 (6th Cir.
2004) (stating that “the passage of less than three weeks between [the
employer’s] receipt of the charges and the adverse actions gives rise to an
inference of discrimination” and “[t]herefore, in this case, [the plaintiff] has
established a prima facie case of retaliation”); Mallory v. Noble Corr. Inst.,
45 Fed. Appx. 463, 472-73 (6th Cir. 2002) ( “[T]he fact that retaliation
occurs ‘very close’ in time after a person engages in conduct protected by
Title VII may suffice to satisfy the causal connection requirement.”) (citing
Clark County Sch. Dist. v. Breeden, 532 U.S. 268" date_filed="2001-04-23" court="SCOTUS" case_name="Clark County School District v. Breeden">532 U.S. 268, 121 S.Ct. 1508, 149
L.Ed.2d 509 (2001)). Furthermore, one could read the Supreme Court as
having accepted that temporal proximity may be sufficient in a narrow set
of cases. See Clark County, 532 U.S. 268" date_filed="2001-04-23" court="SCOTUS" case_name="Clark County School District v. Breeden">532 U.S. at 273, 121 S.Ct. 1508 (referencing
“cases that accept mere temporal proximity. . . as sufficient evidence of
causality to establish a prima facie case” and noting that those cases
“uniformly hold that the temporal proximity must be ‘very close’ “) (citations
omitted).
Mickey, 516 F.3d 516" date_filed="2008-01-31" court="6th Cir." case_name="Mickey v. Zeidler Tool and Die Co.">516 F.3d at 523-525. In Mickey, the panel acknowledged the two seemingly
divergent lines of cases, but explained that they were “fully reconcilable”:
Where an adverse employment action occurs very close in time after an
employer learns of a protected activity, such temporal proximity between
the events is significant enough to constitute evidence of a causal
connection for the purposes of satisfying a prima facie case of retaliation.
But where some time elapses between when the employer learns of a
protected activity and the subsequent adverse employment action, the
employee must couple temporal proximity with other evidence of
retaliatory conduct to establish causality. See Little, 265 F.3d at 365
(“[T]emporal proximity, when considered with the other evidence of
retaliatory conduct, is sufficient to create a genuine issue of material fact
as to” a causal connection.).
Id. at 525.
19
The closer in time the adverse action occurs to the protected activity, the more
reasonable is the argument that a jury could find, first, that temporal proximity has been
proven to exist under the circumstances, and, second, that the proven proximity is “very
close” so as to permit it, standing alone, to establish the necessary causal connection.
Here, Plaintiff sent her letters on October 10, 2008, and she was transferred on
February 10, 2009. Although at first glance this time-frame seems identical to the four
month lapse rejected in Cooper, 795 F.2d 1265" date_filed="1986-07-16" court="6th Cir." case_name="Lywanna COOPER, Plaintiff-Appellee, v. CITY OF NORTH OLMSTED, Et Al., Defendants-Appellants">795 F.2d at 1265, the facts of the case suggest a
shorter effective time lapse than four months. Defendants were first made aware of
Plaintiff’s letters on October 21, 2008, and thus the time-frame between Defendants’
knowledge of the protected activity and the adverse action is three and a half months, a
time-frame which is similar to that which was accepted by the Sixth Circuit as sufficiently
significant to prove a causal connection in Singfield, 389 F.3d 555" date_filed="2004-11-10" court="6th Cir." case_name="William Singfield v. Akron Metropolitan Housing Authority">389 F.3d at 563. In any event, if
anything can be learned from the jurisprudence in this area, it is that there is no bright-
line rule with respect to whether temporal proximity can be used to establish causation.
In this case, the court finds that Plaintiff has just barely proffered sufficient
evidence to allow the jury to make this determination. While the time lapse in this case
is longer than that found significant in Asmo or DiCarlo, it was relatively short given the
context –i.e., the particular facts of this case. The court bases this determination on the
nature of the protected activity and Defendants’ delayed notice, the few days it took
Defendants to respond to Representative Gonzales’s inquiry about the letter,4 and the
fact that the Christmas holiday season as well as a significant change in management
4
Defendant Barnhardt provided a written response to Representative Gonzales’s
office regarding Plaintiff’s letter on October 24, 2008. (Pl.’s Ex. 24.)
20
occurred during this time period, almost certainly inducing some delay in personnel
decisions. Because of these factors, the court concludes that the relatively short lapse
of time between Plaintiff’s protected activity and her subsequent reassignment is
enough, on its own, for a reasonable jury to find proximity and from it to infer causation.
Furthermore, while the court holds that the temporal proximity between Plaintiff’s
letters and her reassignment could be proven and alone satisfy the causal connection
prong, there is additional, circumstantial, evidence from which a reasonable jury could
infer causation. Specifically, the Sixth Circuit has held that, even where temporal
proximity itself is not enough to establish causation, close temporal proximity coupled
with heightened scrutiny can establish causation. See Upshaw v. Ford Motor Co., 576
F.3d 576, 588-589 (6th Cir. 2009) (finding causal connection with temporal proximity of
19 months combined with heightened scrutiny). The Upshaw court stated:
We have held that the combination of close temporal proximity between
an employer’s heightened scrutiny and that plaintiff’s filing of an EEOC
charge is sufficient “to establish the causal nexus needed to establish a
prima facie case” of retaliation. Hamilton v. Gen. Elec., 556 F.3d 428" date_filed="2009-02-12" court="6th Cir." case_name="Hamilton v. General Electric Co.">556 F.3d 428, 436
(6th Cir. 2009) (holding that summary judgment for defendant was
inappropriate where plaintiff was subjected to heightened scrutiny a few
months after he filed an age-discrimination claim with the EEOC). Here,
Upshaw has proffered evidence that Ford subjected her to heightened
scrutiny soon after she filed her 2003 EEOC charge. It is undisputed that
Hughes-Sharp and Brooks began developing a timeline of Upshaw’s
employment in fall 2003, and that they requested that other Ford
employees submit information about Upshaw’s complaints to Human
Resources. Ford’s heightened scrutiny is evidenced by a December 6,
2004 email from Ford employee Mark Striker to Hughes-Sharp, stating: “I
would like to talk to you about this. I would assume that this is the type of
documentation that you are interested in with regards to Upshaw. It
seems to me that everyone has problems dealing with Upshaw.
Something needs to be done with her, or we will have good people
leaving, and we will still be dealing with her.” (JA 773). An earlier email
from Ronald Campbell, another employee, to Hughes-Sharp relaying the
details of a dispute between Upshaw and another salaried employee,
21
stated, “I do know that [Human Resources] is doing some investigations,
but I am concerned with the number of different people in the organization
that currently have or have had issues with Carolyn. Maybe she needs to
be reassigned in the interim?” (JA 167.) Given the close temporal
proximity between Upshaw’s August 2003 EEOC charge and Ford’s
request for information from other employees documenting Upshaw’s
complaint activity, and Brooks’s request for discipline, a reasonable juror
could find that Upshaw has established a prima facie case of retaliation.
Upshaw v. Ford Motor Co., 576 F.3d at 588-89 (6th Cir. 2009). As in Upshaw, there is
evidence in this case that, after he was promoted, Burton sought out Plaintiff’s co-
workers to talk about her performance. Although it is not clear whether Principal
Featherstone first approached him or he first approached her, after talking to
Featherstone Burton “went and [] talked to some of the other program staff” in order to
“get a feel for what was going on.” (Defs.’ Ex. D, Burton Dep. at 58.) He testified that
after he was promoted and had contact with Featherstone about Plaintiff, he “would
have had a concern, because at that time [he] was in charge of programs.” (Id. at 59.)
This was, however, in October of 2008, just a few weeks after the rap competition and
even closer to the time he found out about Plaintiff’s letters. A reasonable jury could
find that the heightened scrutiny of Plaintiff’s job performance was caused at least in
part by her letters. Particularly because Burton also testified that prior to the rap
competition, he never had any problems with Plaintiff. (Pl.’s Mot. Br. at Ex. 3, Burton
Dep. at 23.)
The court finds the facts in this case to be similar to the facts in Hamilton v. Gen.
Elec. Co., 556 F.3d 428" date_filed="2009-02-12" court="6th Cir." case_name="Hamilton v. General Electric Co.">556 F.3d 428, (6th Cir. 2009). In Hamilton, the court explained:
In Mickey, we held that “[w]here an adverse employment action occurs
very close in time after an employer learns of a protected activity, such
temporal proximity between the events is significant enough to constitute
evidence of a causal connection for the purposes of satisfying a prima
22
facie case of retaliation.” Id. at 525. Hamilton’s case, however, does not
rest on temporal proximity alone. Instead, Hamilton alleges that his bosses
heightened their scrutiny of him after he filed his EEOC complaint. See
Jones v. Potter, 488 F.3d 397" date_filed="2007-06-20" court="6th Cir." case_name="Eric Jones v. John E. Potter, Postmaster General">488 F.3d 397, 408 (6th Cir. 2007) (noting that an
employer cannot conceal an unlawful discharge by closely observing an
employee and waiting for an ostensibly legal basis for discharge to
emerge). On a motion for summary judgment, we view the facts in the
light most favorable to Hamilton, and he has testified in his deposition that
GE increased its scrutiny of him after he filed his EEOC complaint. The
combination of this increased scrutiny with the temporal proximity of his
termination occurring less than three months after his EEOC filing is
sufficient to establish the causal nexus needed to establish a prima facie
case.
Hamilton, 556 F.3d 428" date_filed="2009-02-12" court="6th Cir." case_name="Hamilton v. General Electric Co.">556 F.3d at 435-436. Here, as in Hamilton, a reasonable jury could find
causation based on the relatively short proximity between the letters and Plaintiff’s
reassignment, combined with Burton’s testimony that he questioned her staff members
regarding her performance.
The court also finds that a reasonable jury may also consider relevant the fact
that Defendants Burton and Barnhardt were the two individuals responsible for
responding to Representative Gonzales’s letter and were, additionally, the two
individuals responsible for making the decision to transfer Plaintiff. Further, there is
some evidence that Defendant Barnhardt’s relationship with Plaintiff changed after she
wrote the letters (Pl.’s Dep. at 151-52), and Barnhardt testified that while she was she
was not upset or angry with Plaintiff, she was “upset that that information [in the letters]
was viewed that way,” (Defs.’ Ex. J, Barnhardt Dep. at 79).
Although this case presents a close question, the causation element of Plaintiff’s
First Amendment retaliation claim looks to Defendants’ motivation in transferring her.
Hoover v. Radabaugh, 307 F.3d 460" date_filed="2002-10-03" court="6th Cir." case_name="Dale D. Hoover v. Patricia Radabaugh">307 F.3d 460, 467 (6th Cir. 2002). “When the defendants’ intent
is at issue, ‘summary judgment is particularly inappropriate.’” Id. (quoting Marohnic v.
23
Walker, 800 F.2d 613" date_filed="1986-09-10" court="6th Cir." case_name="William Marohnic v. Richard Walker and the Barren River Regional Mental Health-Mental Retardation Board, Incorporated">800 F.2d 613, 617 (6th Cir. 1986)). Viewing the facts in a light most favorable
to Plaintiff, the court finds that Plaintiff has identified sufficient facts to prove a prima
facie case of retaliation and Defendants are not entitled to summary judgment.
C. Whether Plaintiff Would Have Been Transferred in the Absence of the Letters
Defendants next argue that they are entitled to summary judgment because,
even if Plaintiff can meet her prima facie case, Defendants have conclusively shown
that they would have made the decision to reassign her even if she had not written the
letters.
Once Plaintiff meets her burden of establishing a prima facie case of retaliation,
the burden shifts to the employer who “may ‘show[ ] by a preponderance of the
evidence that it would have reached the same decision . . . even in the absence of the
protected conduct.’” Rodgers v. Banks, 344 F.3d 587" date_filed="2003-11-05" court="6th Cir." case_name="Carolyn T. Rodgers v. Elizabeth Banks">344 F.3d 587, 602 (6th Cir. 2003) (quoting Mt.
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274" date_filed="1977-01-11" court="SCOTUS" case_name="Mt. Healthy City School District Board of Education v. Doyle">429 U.S. 274, 287 (1977)). This latter
burden, however, “‘involves a determination of fact’ and ordinarily is ‘reserved for a jury
or the court in its fact-finding role.’” Id. (quoting Perry v. McGinnis, 209 F.3d 597" date_filed="2000-04-13" court="6th Cir." case_name="Everett Perry v. Kenneth McGinnis">209 F.3d 597, 604
n.4 (6th Cir. 2000)). Defendants argue they can meet this burden as a matter of law,
asserting that they would have reassigned Plaintiff based on “complaints from staff and
prisoners about the unnecessarily harsh manner in which she performed her duties as
school officer.” (Defs.’ Br. at 16.) Defendants point to the conversations Burton had
with staff members, the January incident in the music room, and Featherstone’s
January incident with Plaintiff regarding whether Plaintiff or a teacher should write up a
ticket.
24
The court finds that these proffered reasons do not entitle Defendants to
summary judgment. While the jury may ultimately be persuaded that Defendants would
have decided to transfer Plaintiff in the absence of the letter, Plaintiff has also identified
sufficient evidence on which a reasonable jury could conclude that they would not have
transferred Plaintiff were it not for the letters.
First, a reasonable jury could find that Burton would not have inquired of staff
members about Plaintiff were it not for the letters. Or, a reasonable jury could conclude
that, even if he would have inquired absent the letters, he would not have decided to
transfer her based on these few informal conversations he had about Plaintiff with staff
members, which were not memorialized in writing, (Defs.’ Ex. D, Burton Dep. at 60), and
were focused on complaints that were not investigated because they were not based on
recent events, (id. at 56). Moreover, a reasonable jury could find that the January
incidents were trivial,5 particularly in light of Plaintiff’s long history with TCF as a school
officer.
Indeed, Plaintiff has attached to her response brief, seven evaluations from TCF,
one for each full calendar year she worked as the school officer. (See Pl.’s Exs. 4-11.)
The evaluations were issued each December and span the years from 2002 (Ex. 4) to
2008 (Ex. 11). All of her evaluations rate her at “ME” (Meets Expectations) or “HP”
(High Performing). In the eight evaluations submitted to the court, there are no marks
below “ME”, nor are there any identified areas of improvement. Instead, all of the
5
With respect to the music room incident, the incident was investigated by
Lieutenant Robert Harvey, who determined that “the officer was correct in the manner in
which it was handled.” (Pl.’s Ex. 30.)
25
evaluations include positive, or even enthusiastic indications of her job performance.
Her 2002 Evaluation, for example, states “Keep up the good work! I also appreciate
your professionalism when assigned to the front desk. Thanks for the good job!” (Pl.’s
Ex. 5.) Under “Team Work,” her 2003 evaluation gives her an “HP” rating and states,
“She easily works with all the staff that are assigned to that building. This writer
believes she strives to be a member of the school building team. This writer believes
she has earned the trust of the other employees she works with on a daily basis.” (Pl.’s
Ex. 6.) Her 2004 evaluation states, under “Integrity/Honesty,” “Officer Mosholder
demonstrates excellent work ethics, she also has a high level of integrity and ethical
behavior and serves as a model for others.” (Pl.’s Ex. 7.) In 2005, under
“Communication,” her evaluation states that she “has the ability to clearly give and
receive information from individuals around her.” (Pl.’s Ex. 8.) In 2006, she received an
“HP” in “Integrity/Honesty,” where her evaluator observed that she “displays a high level
of integrity and ethical conduct. She is a positive role model for this department and
facility. She consistently demonstrates excellent work ethics. She is highly respected
by her co-workers.” (Pl.’s Ex. 9.) Similarly, her 2007 evaluation noted, under
“Contributing to Team Success,” that Plaintiff was a “valued” staff member who “draws
from her many years of experience and accumulated knowledge to provide guidance for
newer staff members. She is Vice President of the TCF Employee Club. She works
very well with coworkers and takes on added responsibility without being asked. She is
well respected by coworkers.” (Pl.’s Ex. 10.)
Her 2008 evaluation was signed on December 22, 2008, by Defendant
Barnhardt, who appears to have written “Good Job” next to her signature. (Pl.’s Ex. 11.)
26
Plaintiff received a “HP” for “Contributing to Team Success,” where her evaluator wrote
that Plaintiff “works well with other staff and supervisors. Ruth understands the
importance of working together as a strong team to be successful.” (Id.) Similarly,
under “Adaptability,” her evaluator noted, among other things, that Plaintiff “readily
adapts to working with prisoners, programs staff and the public on her different
assignments.” (Id.) Under “Safety Awareness,” her evaluator commented that Plaintiff
is “aware of the conditions in her area and the areas around her that affect the safety of
herself and others.” (Id.) The evaluation continues, stating that Plaintiff “will attempt to
correct issues as they come along so as to prevent them from becoming a safety issue
however if the issue is larger than her scope of authority Ruth will bring the issue to her
supervisors awareness.”
In light of these evaluations, which consistently rate Plaintiff at or above
expectation, and which specifically identify safety and teamwork as areas in which she
is effective, a reasonable jury could conclude that Defendants’ identified bases for
reassigning Plaintiff would not have been sufficient, in the absence of her protected
activity, to uproot Plaintiff from her bid position and transfer her to an unwanted position.
The court thus finds that a jury question exists on whether Defendants would have
made the decision to transfer her in the absence of her letters. Defendants’ motion for
summary judgment will be denied.
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V. CONCLUSION
IT IS ORDERED that Defendants’ “Motion to Dismiss and/or [for] Summary
Judgment” [Dkt. # 11] is DENIED.
S/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: February 12, 2010
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, February 12, 2010, by electronic and/or ordinary mail.
S/Lisa Wagner
Case Manager and Deputy Clerk
(313) 234-5522
S:\Cleland\JUDGE'S DESK\C3 ORDERS\09-11829.MOSHOLDER.Dismiss.SJ.FirstAmendmentRetaliation.chd.2.wpd
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