MATTHEW F. LEITMAN, District Judge.
In this action brought under 42 U.S.C. § 1983, Plaintiffs Mary Janine Krycia ("Krycia") and Patricia Newell ("Newell") (collectively, "Plaintiffs") allege that their former employer, Defendant Township of Clinton (the "Township"), and the Township's former clerk, Defendant George Fitzgerald ("Fitzgerald") (collectively, "Defendants"), retaliated against them for exercising their First Amendment rights. Following the close of discovery, the Defendants each moved for summary judgment (the "Motions"). (See ECF ## 35, 37.) The Defendants argued that neither Krycia nor Newell had engaged in speech protected under the First Amendment and that neither Plaintiff faced an adverse action as a result of any protected speech. In a Report and Recommendation dated December 16, 2015 (the "R&R"), the assigned Magistrate Judge agreed with the Defendants and recommended that the Court grant summary judgment in favor of the Defendants. (See R&R, ECF #72 at 2, Pg. ID 1777.) Plaintiffs filed timely objections to the R&R (the "Objections") (ECF # 73), and Defendants responded to the objections (ECF ## 74, 75). For the reasons explained below, the Court
Plaintiffs have not objected to the factual recitation in the R&R. The Court finds the recitation to be accurate and adopts it. For ease of reference, the recitation provides as follows:
Plaintiff Mary Janine Krycia ("Krycia") was an Elections Clerk from 2000, until May 23, 2012, the date she last worked before taking a leave of absence for medical reasons. (Dkt. 35, 42.) Krycia's employment was ultimately terminated on April 9, 2013, by new Township Clerk Meltzer, after Krycia exhausted all leave time and refused to return to work. (Dkt. 35, 42.)
Newell asserts that she engaged in three discrete acts of protected speech: (1) objecting to Fitzgerald taking home the Township's electronic poll books in May 2010 (the "Poll Book Opposition"), (2) objecting to signing a letter of recommendation stating that Fitzgerald's wife was qualified for an elections coordinator position in Macomb Township (the "Recommendation Letter Opposition"), and (3) making statements to the Fraser-Clinton Township newspaper, the Chronicle, regarding Clinton Township's May 2011 schoolboard election (the "Press Statements"). (See Pls.' Response Br., ECF #42 at 21, Pg. ID 1438.)
Newell claims that Defendants retaliated against her for engaging in this protected speech. She alleges that she was subject to the following three adverse employment actions: (1) she "had an anxiety attack for which she went to the hospital after she objected to allowing Fitzgerald to take the poll books home," (2) she received a reprimand for making the Press Statements to the Chronicle, and (3) she received an "Employee Discipline Notice in retaliation for all three incidents of protected speech concerning public matters identified above." (Id. at 29, Pg. ID 1446.)
Krycia alleges that she engaged in protected conduct when she attempted to exercise her First Amendment right to refrain from speaking. She claims that she sought to refrain from speaking on two occasions — (1) when Fitzgerald directed her to sign a memorandum disavowing Newell's comments to the Chronicle and (2) when Fitzgerald directed her to sign a letter denying any knowledge of the information reported in an article about Fitzgerald that appeared in the Macomb Daily. Krycia acknowledges that she signed both of these documents, but she insists that she did so only because Fitzgerald bullied her into doing so.
Krycia alleges that as a result of Fitzgerald's conduct, she suffered stress, anxiety, panic attacks, and insomnia. Krycia also claims that she was reprimanded by a Deputy Clerk for the article that appeared in the Macomb Daily. Krycia alleges that her mental suffering and the write-up were adverse actions taken against her for engaging in the allegedly-protected conduct identified above.
The Magistrate Judge recommended that the Court grant summary judgment to the Defendants on Newell's retaliation claim on two grounds. First, the Magistrate Judge determined that Newell did not engage in any protected conduct. More specifically, the Magistrate Judge concluded that Newell's statements at issue — the Poll Book Opposition, the Recommendation Letter Opposition, and the Press Statements — were not protected under the First Amendment because Newell made the statements "pursuant to her official duties as Election Coordinator." (R&R, ECF #72 at 16-18, Pg. ID 1791-93.) Second, the Magistrate Judge determined that Newell was not subject to any adverse action because "she was not discharged, demoted or suspended and she did not lose responsibilities, pay, or benefits." (Id. at 21, Pg. ID 1796.)
The Magistrate Judge recommended that the Court grant Defendants summary judgment on Krycia's retaliation claim because she did not engage in protected conduct and was not subject to any adverse action. Specifically, the Magistrate Judge concluded that:
(Id. at 19, 23, Pg. ID 1794, 1798.)
Plaintiffs have made the following objections to the R&R:
This Court reviews de novo the portions of the R&R to which the parties have objected. See Fed. R. Civ. P. 72(b)(3).
A movant is entitled to summary judgment when it "shows that there is no genuine display as to any material fact . . . ." SEC v. Sierra Brokerage Servs., Inc., 712 F.3d 321, 326-27 (6th Cir. 2013) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)) (quotations omitted). When reviewing the record, "the court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor." Id. "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for [that party]." Anderson, 477 U.S. at 252. Summary judgment is not appropriate when "the evidence presents a sufficient disagreement to require submission to a jury." Id. at 251-52. Indeed, "[c]redibility determinations, the weighing of the evidence and the drafting of legitimate inferences from the facts are jury functions, not those of a judge . . . ." Id. at 255.
To prevail on a First Amendment retaliation claim, a public employee must establish three elements. First, the employee must show that he or she engaged in constitutionally protected speech or conduct. See Benison, 765 F.3d at 658 (quoting Dye v. Office of the Racing Comm'n, 702 F.3d 286, 294-95 (6th Cir. 2012)). A public employee's speech qualifies for First Amendment protection only if, among other things, the employee speaks "as a citizen" on "matters of public concern." Weisbarth v. Geauga Park Dist., 499 F.3d 538, 542-44 (6th Cir. 2007). More specifically, a public employee's speech or conduct must satisfy all of the following requirements in order to qualify for protection:
Evans-Marshall v. Bd of Educ. of Tipp Exempted Vill. Sch. Dist., 624 F.3d 332, 337-38 (6th Cir. 2010).
Second, the public employee must show that her employer took an adverse action against her "that would deter a person of ordinary firmness from continuing to engage in that lawful conduct." Benison, 765 F.3d at 658. This adverse action test "is `distinct' from the adverse-action standard used in traditional employment discrimination claims," and thus a federal court must "tailor [its] analysis under the adverse action prong to the circumstances of [the] specific retaliation claim." Id. at 659.
Third (and finally), a public employee must demonstrate a causal connection between the constitutionally protected speech or conduct and the employer's adverse action — "that is, the adverse action was motivated at least in part by [the] protected conduct." Id. To show causation, "the employee must point to "`specific, nonconclusory allegations' reasonably linking her speech to employer discipline." Bailey v. Floyd Cty. Bd. of Educ. By & Through Towler, 106 F.3d 135, 144-45 (6th Cir. 1997) (quoting Wright v. Illinois Dep't of Children & Family Servs., 40 F.3d 1492, 1500 (7th Cir.1994)). An employee may not establish causation by pointing to "the mere fact that an adverse employment action followed speech that the employer would have liked to prevent." Id.
As noted above, Newell's claim is based upon alleged retaliation for three statements: the Poll Book Opposition, the Recommendation Letter Opposition, and the Press Statements. The Magistrate Judge Correctly concluded that Newell's claims with respect to these statements fail as a matter of law. The Court therefore overrules Newell's objections to the R&R.
Newell's claim based on the Poll Book Opposition fails because Newell made the objection pursuant to her employment duties, not as a public citizen. Her own Complaint in this action makes that clear. Newell alleges:
(Compl., ECF #1 at Pg. ID 3; emphasis added.) Likewise, when Newell opposed the Defendants' Motions, she stressed that she was upholding her oath of office when she engaged in the Poll Book Opposition.
On this record, the Magistrate Judge correctly concluded that Newell raised the Poll Book Opposition pursuant to her official duties; that she was thus not speaking "as a citizen" when she engaged in the Poll Book Opposition; and that the Poll Book Opposition may not be the basis of a First Amendment retaliation claim. See Weisbarth, 499 F.3d at 546 (affirming dismissal of First Amendment retaliation claim where plaintiff spoke pursuant to job duties rather than "as a citizen.").
Newell's claim based upon the Press Statements fails because she did not intend to make the statements "as a citizen." Weisbarth, 499 F.3d at 542-44. Her own testimony confirms the point. Newell testified that she spoke to the reporter from the Chronicle because the Clerk and Deputy Clerk would not do so. (See Newell Dep., ECF #35-3 at 123-26, Pg. ID 271-72.) Newell explained that she believed an office "protocol" called for her to respond to press inquiries under these circumstances. Under that protocol (as understood by Newell), "if the Clerk or Deputy Clerk did not speak with the press, the Election Coordinator did." (Id. at 126, Pg. ID 272.) Thus, at the time Newell spoke to the Chronicle, she believed that she was executing the office "protocol" with respect to press inquiries. That is far different from intending to speak as a private citizen. Because Newell believed that she was executing her job responsibilities when she made the Press Statements, her speech cannot be regarded as the speech of a "citizen" that is subject to First Amendment protection.
Newell's claim based on the Press Statements fails for one additional reason: she cannot satisfy the Pickering balancing test. See Fitzpatrick v. City of Frankfort, 305 Fed. App'x 258, 263-64 (6th Cir. 2008) (affirming dismissal of First Amendment retaliation claim against public employer because employer's interest in prohibiting speech outweighed employee's interest in speaking). The Defendants' interest in preventing Newell from making those statements outweighed any personal interest she may have had in making them.
When conducting the Pickering balancing test, the Court considers whether "an employee's comments meaningfully interfere with the performance of her duties, undermine a legitimate goal or mission of the employer, create disharmony among co-workers, impair discipline by superiors, or destroy the relationship of loyalty and trust required of confidential employees." Williams v. Kentucky, 24 F.3d 1526, 1536 (6th Cir. 1994) (emphasis added). Here, the Clerk's Office had a legitimate goal of "speaking in a single, consistent voice." Rock v. Levinski, 791 F.3d 1215, 1222 (10th Cir. 2015) (recognizing that a public body has a valid interest in controlling the dissemination of its own message). To achieve that goal, Fitzgerald implemented a policy designating himself as the sole person in the office who was authorized to speak with the press. (Fitzgerald Dep., ECF #37-6 at 11-18, Pg. ID 669-72.)
On the other side of the ledger, Newell has implicitly acknowledged that she had no personal interest in making the Press Statements. In fact, she asked the reporter not to print her statements because she had not cleared her statements with Fitzgerald. (See Newell Dep., ECF #35-3 at 124, Pg. ID 271.) Under these circumstances, the Defendants' legitimate interest in prohibiting those statements (and taking action against Newell for making them) outweighs any First Amendment interest that Newell may have had in making the statements. Newell's First Amendment retaliation claim based on the Press Statements fails for this additional reason.
The Magistrate Judge concluded that the Recommendation Letter Opposition was "an articulation of Newell's disagreement with her boss' directive, and thus owe[s its] existence to her professional responsibilities." (R&R, ECF #72 at 16, Pg. ID 1791.) Based on his conclusion that the Recommendation Letter Opposition grew out of Newell's job duties, he concluded that it did not amount to protected speech. (Id.)
Newell argues in her Objections that the Magistrate Judge's conclusion cannot be reconciled with the Sixth Circuit's decision in Rodgers v. Banks, 344 F.3d 587 (6th Cir. 2003). In Rodgers, the Sixth Circuit reversed the dismissal of a First Amendment retaliation claim brought by a hospital's Director of Quality Management. The plaintiff claimed that she had been discharged for complaining to a superior that patient privacy was being sacrificed by a certain practice. The Sixth Circuit held that the plaintiff's complaint about the privacy issues did amount to protected speech because it addressed a matter of public concern. The Sixth Circuit specifically rejected the defendants' argument that the complaints were not protected speech because the plaintiff made them during the course of performing her duties. Newell says that Rodgers required the Magistrate Judge to "consider[] the point or focus of the speech in question and whether it related to any matter of political, social, or other concern to the community." (Objections, ECF #73 at 8, Pg. ID 1809.) Newell insists that the Recommendation Letter Opposition constitutes protected speech under Rodgers because it related to matters of public concern — namely, whether Fitzgerald's wife was qualified for an Elections Coordinator position in another municipality. (Id.)
Newell's reliance on Rodgers is misplaced. "Several recent Sixth Circuit cases" — including Weisbarth, supra, and Fox v. Traverse City Area Bd. of Public Schools, 605 F.3d 345 (6th Cir. 2010) — "suggest that the Rodgers rationale would not survive [the Supreme Court's more recent decision in] Garcetti." Hilden v. Hurley Med. Ctr., 831 F.Supp.2d 1024, 1038 (E.D. Mich. 2011), aff'd, 504 Fed. App'x 408 (6th Cir. 2012). More specifically, Rodgers' holding that the plaintiff's complaints were protected speech even though she lodged those complaints pursuant to her duties as Director of Quality Management is not consistent with Garcetti. Given the questionable vitality of Rodgers, it does not compel the conclusion that the Recommendation Letter Opposition was protected speech.
The Court agrees with the Magistrate Judge that Newell did not make the Recommendation Letter Opposition as a citizen and that the objection thus does not constitute protected speech. When Fitzgerald asked Newell to sign the recommendation letter, he was asking Newell to take action in her official capacity as Elections Coordinator — to affix her name to a letter on official office letterhead. (See Newell Dep., ECF #35-3 at 135, Pg. ID 274.) Newell did not believe that it was appropriate, in her capacity as Elections Coordinator, to provide an official reference for an unqualified candidate and she initially (and temporarily) objected to signing the letter (before later changing her mind). Newell's initial refusal to sign the letter was thus a professional disagreement with her superior about the proper performance and scope of her official duties as Elections Coordinator. Under these circumstances, Newell was speaking as a public employee, not as a private citizen, when she declined to sign the letter. Thus, Newell's claim based upon the Recommendation Letter Opposition cannot succeed.
The claim based upon the Recommendation Letter Opposition also fails because Newell has failed to satisfy the causation element of her prima facie case. She has not presented sufficient evidence that either of the Defendants took any adverse action against her because (for a short period of time) she refused to sign the letter. Newell identifies only one adverse action that occurred after the she raised her concerns about the letter: she received an Employee Discipline Notice on August 17, 2011 (the "EDN"). (See Objections, ECF #73 at 13-14, Pg. ID 1814-15.) But the only link between the Recommendation Letter Opposition and the EDN is temporal proximity. That is, Newell has shown only that the EDN was issued five weeks after she expressed her discomfort with signing the letter. Newell has not identified any evidence that either of the Defendants considered (or even mentioned) her initial refusal to sign the letter during the proceedings leading up to and/or in connection with the EDN. Under these circumstances, Newell's evidence of temporal proximity, standing alone, is insufficient to make out a prima facie case of causation. See Smith v. Campbell, 250 F.3d 1032, 1038 (6th Cir. 2001) (affirming summary judgment on First Amendment retaliation claim where plaintiff's sole evidence of causation was temporal proximity).
Moreover, Newell's theory that the Defendants issued the EDN in response to the Recommendation Letter Opposition is somewhat counterintuitive. Newell voiced her concerns about the letter only briefly, and then she gave Fitzgerald exactly what he was asking for: she signed the letter recommending his wife. On this record, it is too much of a stretch to conclude that after Fitzgerald got exactly what he was looking for (i.e., Newell's signature on the letter), Fitzgerald (or the Township) then retaliated against Newell because she briefly voiced an objection to signing the letter.
For all of these reasons, the Court concludes that the Magistrate Judge properly recommended that the Court enter summary judgment against Newell on her claim arising out of the Recommendation Letter Opposition. Newell's Objections to the R&R are therefore overruled.
The Magistrate Judge concluded that Krycia cannot prevail on her retaliation claim because (1) she did not engage in protected conduct and (2) she failed to show that the Defendants took any adverse action against her based upon her allegedly-protected conduct. As described above, Krycia has objected to both conclusions. The Court agrees with the Magistrate Judge that Krycia has failed to establish the causation element of her claim and that the Defendants are thus entitled to summary judgment. The Court does not reach the question the question of whether Krycia engaged in protected conduct.
In the context of a First Amendment retaliation claim, causation requires that "the defendant must have known about the protected activity in order for it to have motivated the adverse action." Thaddeus-X v. Blatter, 175 F.3d 378, 386-87 n.3 (6th Cir. 1999). When the Court held a hearing on her Objections, Krycia acknowledged that she had to satisfy this requirement. But Krycia has not presented any evidence that either of the Defendants knew about her allegedly-protected conduct. The protected conduct that Krycia identifies in this case is the right to refrain from speaking. (See Objections, ECF #73 at 9-10, Pg. ID 1810-11.) Krycia says that she attempted to exercise this right when Fitzgerald asked her to sign a memo dated May 13, 2011, and a letter that appeared in the Macomb Daily in November 2011. (Id. at 10-11, Pg. ID 1811-12.) She insists that Fitzgerald bullied her in to signing both documents despite her desire not to sign.
The problem for Krycia is that she never expressed to Fitzgerald or anyone else that she did not want to sign the documents. Instead, she kept that thought entirely to herself (and Krycia did not exercise the right to refuse from speaking by actually refusing to sign the documents). Thus, neither Fitzgerald nor any representative of the Township knew (or could have known) that Krycia had any intent to engage in the protected conduct of refraining from speaking. Without such knowledge, they could not have retaliated against her for attempting to exercise that right. Accordingly, because Krycia cannot satisfy the causation element of her prima facie case, the Court overrules her Objections and adopts the Magistrate Judge's recommendation that her claim should be dismissed for that reason.
For the reasons stated in this Opinion and Order,
