THOMAS L. LUDINGTON, District Judge.
On December 12, 2017, Plaintiff Neal Papin filed a complaint against Defendant County of Bay ("County"). ECF No. 1. Plaintiff claims that Defendant retaliated against him for exercising his free speech rights, discriminated against him due to his political affiliation, and violated the Michigan Whistleblowers' Protection Act. Id. On September 7, 2018, Defendant filed a motion for summary judgment. ECF No. 9. The motion was granted on December 11, 2018. ECF No. 13. Plaintiff subsequently filed a motion for reconsideration. ECF No. 15. For the following reasons, the motion will be denied.
Papin's claim arises from the 2012 and 2016 Bay County Sheriff elections and the candidate Robert Lee. In 2012, Lee retired from the Bay County Sheriff's Department after a 25-year career. ECF No. 1 at 2; Lee v. Miller, 4:15-cv-14255, ECF No. 47 at 11. That same year, he ran against John Miller for County sheriff and lost. ECF No. 1 at 2-3. In 2016, Lee again ran for sheriff and Papin served as his campaign manager. ECF No. 9-5 at 209. However, Lee lost the election to Troy Cunningham. ECF No. 1 at 7.
In 1996, Papin had started working for the County full-time as a cleaning custodian at the Law Enforcement Center. ECF No. 9-5 at 57-58. In August 2013 while cleaning, Papin saw Art Kleinert, a Bay County Sheriff's Department deputy assigned to the Bay Area Narcotics Enforcement Team ("BAYANET").
Papin later related this experience to Lee and Lee responded that he had been missing trash. Id. at 113. Lee thought that Kleinert may have been searching his trash and asked Papin to inform him if Papin saw it happen again. Id. at 113-114. About a month later, Papin saw Kleinert searching through trash again. Id. at 119. He called Lee and again informed him of what he had seen. Id.
In July 2017, Lee was pursuing a lawsuit against the County Sheriff and others for conspiring against him during the 2016 sheriff election. Id. at 177; ECF No. 9-7 at 5. At the request of Lee's attorney, Papin gave Lee a statement describing what he had seen Kleinert doing. It stated in relevant part:
ECF No. 9-6 (bold language present in original). Lee sent Papin's statement to his attorney who included it in some manner in Lee's lawsuit against the County Sheriff. ECF No. 9-5 at 173.
On Friday, September 8, 2017, Shawna Walraven and Amber Davis-Johnson in the County's corporate counsel office saw Papin's statement on the website Public Access to Court Electronic Records ("PACER"). ECF No. 9-7 at 5. Upon seeing the statement, Walraven was concerned because the statement indicated that Papin had disclosed sensitive information about a potential criminal investigation to Lee, the possible target of the investigation. In Walraven's deposition, she spoke on this point.
ECF No. 9-7 at 7-8. She went on to state, "My concern was not really about the content of that investigation. It was more if Mr. Papin and Mr. Lee thought that it was during an active investigation it was their belief that concerned me more than the actual investigation." Id. at 11.
After reviewing the statement, Walraven and Davis-Johnson discussed the affidavit with Cristen Gignac, the County director of recreation and facilities. Id. at 7; ECF No. 9-4 at 6. Walraven recalls discussing the following with Gignac:
ECF No. 9-7 at 9. Gignac had similar concerns "about [Papin's] ability to decide what information was confidential and what wasn't, and I wanted to give us time to figure that out." ECF No. 9-4 at 24.
On Monday, September 11, 2017, Cristen Gignac requested to meet with Papin. ECF 9-5 at 177-178. Thirty minutes before the meeting, Papin met with his union representative, Lisa Neil, who accompanied him to the meeting. Id. at 179. At the meeting, Gignac asked Papin if he had provided a signed statement for Lee's lawsuit. Id. at 180. He confirmed that he had. Id. Gignac explained that based on the letter's contents, Papin had violated various County rules. Id. She immediately placed him on paid administrative leave until September 18, 2017 and explained that the County would inform him of their findings no later than September 15, 2017. Id. She told him that while on administrative leave, he was prohibited from entering County property and then she asked for his keys and work badge. Id. She stressed that the paid administrative leave was not a disciplinary action. ECF No. 9-4 at 17.
Papin received a letter dated that same day informing him that the County was placing him on paid administrative leave until Monday, September 18, 2017. It stated in relevant part:
ECF No. 9-3.
The possibility of facing disciplinary action made Papin anxious. Id. at 189. He spoke with his union president, Wanda Behmlander, the president of the United Steel Workers Local. ECF No. 9-10 at 8. He was insistent on trying to determine whether he should resign. Id. at 24. Behmlander told Papin that they needed to meet with the County before making a decision about what he should do. ECF No. 9-10 at 8. She did not know which County rules Papin had violated and thus could not form an opinion about what type of discipline Papin would potentially receive. ECF No. 9-10 at 19. In his complaint, Papin alleges that Behmlander told him "that his job was at risk, it appeared Defendant was going to terminate his employment, and suggested Plaintiff resign in lieu of termination." ECF No. 1. At 9-10. During her deposition, Behmlander testified that this allegation by Papin was "absolutely false" and that she had never communicated that to Papin. ECF No. 9-10 at 21-22.
Papin believed that he would receive news of the investigation prior to September 15, 2017, even though the initial letter placing Papin on administrative leave informed him that he would receive the results "no later than Friday, September 15, 2017." ECF No. 9-3; ECF No. 9-5 at 194. On September 14, 2017, Papin did not receive a letter in the mail from the County informing him of its findings. That same day, he contacted Gignac and Tiffany Jerry, the County's Personnel Director, and asked to meet with them. ECF No. 9-5 at 195. During the meeting, Jerry explained that the findings from their investigation were not yet final. Id. Gignac and Jerry stressed that Papin did not have to resign. ECF No. 9-8 at 20. The County had not yet made a determination from their investigation. Id. Regardless, Papin said that he wanted to be done with it all and resigned from his job. Id.; ECF No. 9-5 at 197. His letter of resignation read:
ECF No. 9-2.
Plaintiff has filed a motion for the Court to reconsider its order granting Defendant's motion for summary judgment and dismissing Plaintiff's claim. Pursuant to Eastern District of Michigan Local Rule 7.1(h), a party can file a motion for reconsideration of a previous order, but must do so within fourteen days of the order's entry. A motion for reconsideration will be granted if the moving party shows: "(1) a palpable defect, (2) the defect misled the court and the parties, and (3) that correcting the defect will result in a different disposition of the case." Michigan Dept. of Treasury v. Michalec, 181 F.Supp.2d 731, 733-34 (E.D. Mich. 2002) (quoting E.D. Mich. LR 7.1(g)(3)). A "palpable defect" is "obvious, clear, unmistakable, manifest, or plain." Id. at 734 (citing Marketing Displays, Inc. v. Traffix Devices, Inc., 971 F.Supp.2d 262, 278 (E.D. Mich. 1997)). "[T]he Court will not grant motions for rehearing or reconsideration that merely present the same issues ruled upon by the Court, either expressly or by reasonable implication." E.D. Mich. L.R. 7.1(h)(3). See also Bowens v. Terris, No. 2:15-CV-10203, 2015 WL 3441531, at *1 (E.D. Mich. May 28, 2015).
Plaintiff claims that the Court committed five palpable defects in its order granting Defendant's motion for summary judgment.
ECF No. 15 at 1-2. Each of Plaintiff's arguments will be addressed in turn.
When analyzing Plaintiff's claim within the framework of the Pickering test, the Court held as follows:
ECF No. 13 at 10. Plaintiff claims that the Court fashioned this argument on Defendant's behalf. He contends that Defendants did not argue that the County had a prospective interest in preventing the dissemination of health information, but instead that Defendants alleged (but failed to prove) that Plaintiff's actions created dissension within the Sheriff's office. See ECF No. 15 at 5-6.
In its response, Defendant identifies at least five instances within its motion and briefings where it argued that it had an interest in preventing the dissemination of health information. They are as follows:
ECF No. 18 at 9-10 (emphasis omitted). Defendant also notes that it had attached Walraven's deposition as an exhibit to its motion and highlighted certain passages. Id. at 11. Defendant's multiple arguments on this issue and the highlighted deposition transcripts provided by Defendant more than rebut Plaintiff's contention that Defendants did not advance the argument.
Plaintiff next argues that the Court ignored his claim of an adverse employment action by merging two of his arguments into one. In Plaintiff's response, he stated "Plaintiff claims two (2) adverse actions: (1) the September 11, 2017 placement on administrative leave and threat of further adverse action; and (2) the September 14, 2017 constructive discharge." ECF No. 11 at 17-18. Plaintiff argues that the Court merged the two arguments when the Court held that "Papin claims that the County placing him on paid administrative leave was an adverse employment action that amounted to a constructive discharge." ECF No. 13 at 10-11.
However, the Court did consider the facts of Plaintiff's "placement on administrative leave and threat of further adverse action." Id. at 12. It cited to the letter in which the County informed Papin that his conduct "may indicate a violation of several work rules" and that he was being placed on leave "[d]ue to the severity of potential violation." ECF No. 13 at 5. The Court also acknowledged that Papin was anxious due to the "possibility of facing disciplinary action" and quoted his deposition in which he expressed this anxiety. Id. The Court included all of these facts in the opinion because the Court considered them when it concluded that Papin's placement on paid administrative leave did not amount to an adverse employment action.
Furthermore, if the Court had articulated a separate analysis as Plaintiff suggests it should have done, the result would have been the same. Plaintiff contends that Defendant's actions present "a factual question whether a reasonable person would feel compelled to resign." ECF No. 15 at 14. He claims that "Plaintiff knew of the potential `severe outcome' and reminded Plaintiff of the `severity of the potential violations.'" Plaintiff uses the term "severe outcome" twice as if to assert that Defendant had explicitly told Plaintiff that his actions would result in a severe outcome. However, the term "severe outcome" appeared in an internal email, not in any of the communications between the County and Papin. Plaintiff himself explained this in his response brief to Defendant's motion for summary judgment. ECF No. 11 at 6 ("In a September 10, 2017 email, Ms. Jerry emphasizes that she wanted a letter to Plaintiff to indicate there could be a `severe outcome.' (Ex. 7)."). However, the letter from the County to Plaintiff does not contain threatening language. It focuses on the fact that the County needed time to investigate Plaintiff's potential work violation.
ECF No. 9-3 (emphasis added). The letter uses the term "severity," but it is not in relation to the outcome of the investigation. Instead, it is in relation to the severity of the alleged violations the County was going to investigate.
Defendant placing Papin on paid administrative leave in order to investigate credible information that Papin potentially lacked the competence or trustworthiness to refrain from disclosing sensitive County information (such as health information) does not constitute an adverse employment action.
Plaintiff next argues that the Court committed palpable error in concluding that Plaintiff's claim lacked a causal connection.
However, Plaintiff does not provide the entire context for the Court's finding. Where Plaintiff inserted ellipses, the Court had explained the situation. The order provides
ECF No. 13 at 11-12 (emphasis added). As explained in the Court's order, the County placed Papin on leave in response to his conduct as expressed in the affidavit, not in response to the content of his statement in Lee's lawsuit. Plaintiff's mischaracterization of the Court's order is not evidence of palpable error.
Next, Plaintiff contends that the Court erred in adjudicating his challenged state law claims on the merits, but rather should have declined to exercise supplemental jurisdiction over those claims and dismissed them without prejudice so that they could be brought in state court. Supplemental jurisdiction "is a doctrine of discretion, not of plaintiff's right" whose justification "lies in considerations of judicial economy, convenience and fairness to litigants." See United Mine Workers of Am. v. Gibbs, 383 U.S. 715 (1966).
Plaintiff underscores precedent which provides that "[A] federal court that has dismissed a plaintiff's federal-law claims should not ordinarily reach the plaintiff's state-law claims." Moon v. Harrison Piping Supply, 465 F.3d 719 (6th Cir. 2006)." Moreover, Plaintiff contends that "In fact, this Honorable Court has frequently noted that dismissal without prejudice of state law claims is the `clear rule of this circuit.' See Washington v. Starke, 855 F.2d 346, 351 (6th Cir. 1998); Perry v. Se. Boll Weevil Eradication Found., 154 F. App'x 467, 478 (6th Cir. 2005)." Plaintiff further argues as follows:
Thus, Plaintiff suggests that a court's discretionary decision to exercise supplemental jurisdiction could in some circumstances be considered a palpable error justifying relief on a motion for reconsideration. Plaintiff goes on to suggest that, even if the decision itself was not a palpable error or an abuse of discretion, a court's failure to analyze the above factors and explain its reasons for exercising supplemental jurisdiction is a palpable error. Even if either of these propositions is correct, Plaintiff overlooks a key point. That is, Plaintiff provides no authority for his unstated assumption that the Court must raise this issue sua sponte. In his response to Defendant's motion for summary judgment, Plaintiff did not ask (in the alternative, or otherwise), for the Court to decline to exercise supplemental jurisdiction over his state law claims in the event that his federal claims were resolved against him. Nor did Plaintiff provide any analysis as to how the above-quoted discretionary factors would apply in this case. Issues raised for the first time in a motion for reconsideration are waived. See Martin v. A.O. Smith Corp., 931 F.Supp. 543, 550 (W.D. Mich. 1996).
Plaintiff contends that the Court erred when it dismissed his claim under the Michigan Whistleblowers' Protection Act. The Court determined that "Papin cannot establish all the prima facie elements because as explained above, the County did not discharge Papin or discriminate against him." ECF No. 13. Plaintiff argues that the Court erred because it "ignored Plaintiff's claim that Defendant took adverse employment action by threatening his employment." ECF No. 15 at 21. However, as explained above, the Court did consider whether Defendant placing Papin on paid administrative leave and its interactions with Plaintiff constituted an adverse action. The Court concluded that it did not and accordingly, dismissed the claim.
Plaintiff has not established that the Court made an error that was "obvious, clear, unmistakable, manifest, or plain" and one whose remedy would change the outcome of the case. Michigan Dept. of Treasury v. Michalec, 181 F.Supp.2d 731, 733-34 (E.D. Mich. 2002) (quoting E.D. Mich. LR 7.1(g)(3)).
Accordingly, it is hereby
