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Greiner v. Charter County of Macomb

United States District Court, E.D. Michigan, Southern Division

September 11, 2017

JOHN GREINER, Plaintiff,
v.
CHARTER COUNTY OF MACOMB, MICHIGAN, a/k/a MACOMB COUNTY,, Defendants.

          ORDER (1) GRANTING AFSCME'S MOTION FOR SUMMARY JUDGMENT (ECF #90); (2) DENYING WITHOUT PREJUDICE AFSCME'S REQUEST FOR SANCTIONS; (3) GRANTING IN PART AND DENYING IN PART WITHOUT PREJUDICE MACOMB COUNTY'S MOTION FOR SUMMARY JUDGMENT (ECF #89); AND (4) DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION REGARDING AUDIO TAPES (ECF #115)

          MATTHEW F. LEITMAN, UNITED STATES DISTRICT JUDGE.

         During Plaintiff John Greiner's tenure as an employee of Defendant Charter County of Macomb (the “County”), he had an unsatisfactory safety and behavior record. He caused and/or was involved in several vehicle accidents, was insubordinate with his superiors, and had conflicts with co-workers. Greiner and the County ultimately entered into a Last Chance Agreement that provided for termination of his employment upon any additional act of negligence or insubordination, and the County later fired him for additional misconduct. His union had the right to seek arbitration based upon his termination, but it declined to do so on the ground that his termination was justified.

         Greiner then filed this action (and others, both civil and administrative) challenging his termination. He retained three separate attorneys to represent him, and all three were forced to withdraw as counsel due to breakdowns in the attorney-client relationship - fissures that were caused by, among other things, Greiner's refusal to follow their advice and his repeated accusations that they were lying and committing misconduct. Perhaps unsurprisingly, Greiner has been unable to find a fourth lawyer to represent him, and he is now proceeding pro se.

         The Defendants have moved for summary judgment, and Greiner has responded. Greiner's responses are deficient in many respects. They are difficult to follow; they ignore several of the Defendants' key arguments and rely upon inadmissible evidence; and they fail to demonstrate that there is a material factual dispute with respect to any of Greiner's claims against Defendant Michigan Council 25 American Federation of State, County, and Municipal Employees, AFL-CIO (“AFSCME” or the “Union”) and the vast majority of Greiner's claims against the County. Thus, for the reasons explained below, the Court GRANTS in full the motion for summary judgment filed by the Union and GRANTS IN PART AND DENIES IN PART WITHOUT PREJUDICE the County's motion for summary judgment.[1] The Court also DENIES WITHOUT PREJUDICE the Union's request for sanctions and DENIES Greiner's motion for reconsideration regarding audio tapes (ECF #115).

         I

         A

         On or around November 13, 2000, the County hired Greiner to work for the Macomb County Road Commission (the “MCRC”). (See Greiner Dep. at 37, ECF #89-2 at Pg. ID 1010.) The County fired Greiner on November 7, 2012. (See Id. at 148, ECF #89-2 at Pg. ID 1037; see also Termination Letter, ECF #89-26.) While employed by the County, Greiner was a member of the Union. (See Greiner Dep. at 58, ECF #89-2 at Pg. ID 1015.)

         B

         During Greiner's tenure with the MCRC, he received a number of reprimands and suspensions for his careless and unsafe operation of county vehicles. For example, in January 2003, the MCRC revoked Greiner's driving privileges after he backed his truck into another truck. (See Greiner Dep. at 39-40, ECF #89-2 at Pg. ID 1010.) In a written explanation of the revocation, MCRC's personnel director wrote that Greiner “does not work in a safe manner” and that Greiner's co-workers “are reluctant to work with him because they fear for their safety.” (Revocation Letter, ECF #89-5.) Greiner completed a defensive driving course in May 2005, and the MCRC then agreed to reinstate his driving privileges “on an as needed basis.” (Greiner Dep. at 44, ECF #89-2 at Pg. ID 1011.)

         In October 2005, MCRC promoted Greiner to the position of highway maintenance leader. (See Id. at 45, ECF #89-2 at Pg. ID 1012.) Then, in May 2007, the MCRC awarded Greiner the position of heavy truck driver. (See Id. at 46-47, ECF #89-2 at Pg. ID 1012.) In its memorandum formally offering Greiner that position, the MCRC wrote that “due to [Greiner's] past history, the road commission reserves the right to review [his] performance at any time and take remedial action deemed necessary.” (Id.)

         In December 2007, the MCRC cited Greiner for causing significant damage to a county truck by backing up onto an arrow-board. (See Id. at 48, ECF #89-2 at Pg. ID 1012.) Less than two weeks later, Greiner received a warning for driving with the dump box of his vehicle too high and pulling down a cable wire. (See Id. at 49, ECF #89-2 at Pg. ID 1013.) In April 2009, Greiner received another warning for pulling into a service garage with his dump box in the upright position, striking an aluminum siding overhang, and pulling a large piece off the building. (See Id. at 49-50, ECF #89-2 at Pg. ID 1013.)

         The damage caused by Greiner's carelessness behind the wheel reached its peak on December 8, 2009. That day, Greiner drove a MCRC truck through a red light and hit the driver's side of a vehicle driven by Fred Vaden. (See Greiner Dep. at 51, ECF #89-2 at Pg. ID 1013; Sheriff's Report, ECF #90-4 at Pg. ID 1496-97.) The accident caused “heavy damage” to Vaden's vehicle. (Sheriff's Report, ECF #90-4 at Pg. ID 1496-97.) Vaden suffered a fractured left leg and “need[ed] to be extracted from the vehicle.” (Id.)

         Greiner received a ticket for “disobey[ing] a traffic control device.” (Certification of Court Disposition, ECF #90-4.) Greiner was ultimately held responsible for a reduced traffic infraction of “speeding 1-5” miles per hour over the speed limit. (Id.) Vaden later sued the County and Greiner. (See Greiner Dep. at 53, ECF #89-2 at Pg. ID 1014.) The County settled the suit by paying Vaden $380, 000 in exchange for full release of Greiner and the County of any further liability. (See id.)

         C

         Immediately following the December 8, 2009, accident, MCRC placed Greiner on paid administrative leave while the County investigated his role in the accident. (See Id. at 54, ECF #89-2 at Pg. ID 1014.) Greiner returned from administrative leave on February 3, 2010. (See Id. at 57, ECF #89-2 at Pg. ID 1015.) That day, Greiner and his union representative signed two memoranda of understanding (the “First and Second MOUs”) and a Last Chance Agreement (the “LCA”). (See Id. at 57-58, ECF #89-2 at Pg. ID 1015.)

         In the First MOU, Greiner agreed to serve “a 20 day unpaid disciplinary layoff” and then return to work as a highway maintenance person in MCRC's Sign Department. (First MOU, ECF #90-6.) Greiner also agreed that “for the balance of his employment” he would “not . . . operate a[n] [MCRC] vehicle or equipment of any type.” (Id.)

         In the LCA, Greiner agreed that “[a]ny further acts of negligence, insubordination, or unsafe activity on [his] part shall be cause for his immediate discharge form [sic] employment with the [MCRC].” (LCA, ECF #90-7.)

         In the Second MOU, Greiner agreed that he could only file a grievance challenging the terms of the First MOU and LCA if he was “found not guilty of all charges related to [the December 8, 2009, ] vehicle accident.” (Second MOU, ECF #90-5.)

         In March 2010, Greiner completed his 20-day suspension and was assigned to work as a highway maintenance person in MCRC's Sign Department, as required by the First MOU. (See Greiner Dep. at 78-80, ECF #89-2 at Pg. ID 1020; see also Second Am. Compl. at ¶64, ECF #46 at Pg. ID 413.)

         D

         While Greiner worked as a highway maintenance person in the Sign Department, he repeatedly informed the MCRC that he needed work restrictions because of his health problems.

         On March 23, 2010, Greiner presented his supervisor with a document from his (Greiner's) personal physician, Dr. Keith McKenzie, stating that Greiner was unable to lift more than twenty pounds. (See Id. at 80, ECF #89-2 at Pg. ID 1020.) Because there was no light duty work (i.e. work that required lifting no more than twenty pounds) available within the Sign Department, Greiner went home and did not work. (See Id. at 78-80, ECF #89-2 at Pg. ID 1020.) In lieu of working, Greiner received workers' compensation. (See id.)

         Greiner presented the MCRC with additional notes from Dr. McKenzie that put him off work from April 22, 2010 through June 3, 2010, due to his health problems. (See McKenzie Notes, ECF ## 90-15, 90-16, 90-17.) In one of the notes, Dr. McKenzie also specified that Greiner continued to need work restrictions, including not lifting more than twenty pounds, no stooping, crawling, or climbing, and no standing or walking for longer than four hours. (See McKenzie Note for May 21, 2010, ECF #90-17.)

         On June 1, 2010, Greiner attended an independent medical examination with Dr. Maynard Buszek. Dr. Buszek cleared Greiner to return to work without restrictions. (See First Buszek Report, ECF #90-18 at Pg. ID 1559-60.) But rather than return to work, Greiner used personal sick and vacation time to delay his return. (See Greiner Dep. at 81, ECF #89-2 at Pg. ID 1021.)

         While on sick/vacation leave, Greiner secured another note from Dr. McKenzie that stated that Greiner could not lift more than twenty pounds, stoop, climb, crawl, or stand or walk for more than four hours. (See McKenzie Note for June 21, 2010, ECF #90-19.) According to Greiner, these restrictions “remained in effect throughout the remainder of [his] employment” with the MCRC. (See Greiner Dep. at 81, ECF #89-2 at Pg. ID 1021; emphasis added.)

         Greiner returned to the Sign Department on July 23, 2010. (See id.) In November 2010, Greiner saw Dr. Buszek for a second independent medical examination. (See Second Buszek Report, ECF #90-21.) Dr. Buszek concluded again that Greiner could work without any limitations or restrictions. (See Id. at Pg. ID 1567.) But Greiner continued to submit notes from his personal physicians stating that he could not lift more than twenty pounds, stoop, climb, crawl, or stand or walk more than three or four hours. (See Greiner Dep. at 88, ECF #89-2 at Pg. ID 1022.)

         E

         As a highway maintenance person, Greiner's job duties were to perform manual labor, patch holes, flag traffic, sweep, dig, cut trees, install road signs and guardrails, operate power tools, and perform related duties as assigned. (See Job Description, ECF #89-17.) In addition, Greiner was expected to lift at least fifty pounds. (See Job Expectations, ECF #89-18.)

         Throughout Greiner's two and one-half years as a highway maintenance person in the Sign Department, the MCRC repeatedly reprimanded or disciplined Greiner for refusing to do work that fell within his job duties and/or for completing that work in an unsafe manner. Examples of the MCRC reprimanding Greiner for insubordination or carelessness in completing his duties include:

. On April 28 and 29, 2011, Greiner received verbal and written warnings for misusing sick time to avoid direct orders to fill sand bags. (See Greiner Dep. at 113-14, ECF #89-2 at Pg. ID 1029; see also Disciplinary Action Forms, ECF ## 90-28, 90-29.)
. On May 5, 2011, Greiner received a one-day suspension for failing to follow directions from his crew leader in preparation for their daily sign route. (See Greiner Dep. at 114-15, ECF #89-2 at Pg. ID 1029; see also Disciplinary Action Form, ECF #90-30.)
. On May 12, 2011, Greiner received another one-day suspension for injuring himself while operating a chainsaw with one hand and then failing to report the injury to his supervisors. (See Greiner Dep. at 116-118, ECF #89-2 at Pg. ID 1029-30; see also Disciplinary Action Forms, ECF ## 90-31, 90-32.)
. On June 20, 2012, Greiner was suspended after he refused his supervisor's request to put a jug of water into a dispenser. (See Greiner Dep. at 137, ECF #89-2 at Pg. ID 1035; Disciplinary Action Form, ECF #90-34.)

         F

         From July 2012 to October 2012, the County instituted three disciplinary proceedings against Greiner in connection with his continued insubordination and failure to perform his job duties. With each successive proceeding, the County disciplined Greiner with increased severity, culminating with the termination of his employment.

         The County commenced the first disciplinary proceedings by sending Greiner a letter dated July 2, 2012, in which it informed Greiner that:

         [It] ha[d] conducted a review regarding allegations of [his] failure to perform job duties and insubordination as follows:

. On June 7, 2012, [he] refused to assist in loading guard rail onto the trailer.
. On or about June 11, 2012, [he] refused to assist in loading rail onto the trailer.
. On or about June 13, 2012, [he] failed to work in a safe manner when [he] walked into traffic to carry posts from the front of the truck to the bed of the truck.
. On or about June 20, 2012, [he] refused to replace the cooler water jug.
Based on the information gathered, the County [was] considering disciplinary action up to and including discharge.

(See 7/2/12 Letter, ECF #90-35.) The letter also notified Greiner that the County had scheduled a Loudermill hearing (the “First Loudermill Hearing”) to “allow [him] to respond” to the allegations, and that he was “entitled to bring a representative of [his] choosing to this hearing.” (Id.)[2]

         At the First Loudermill Hearing, Greiner described his physical restrictions and responded to the allegations. (See Greiner Dep. at 138-139, ECF #89-2 at Pg. ID 1035.) A union representative also spoke on Greiner's behalf. (See id. at 189-190, ECF #89-2 at Pg. ID 1066.) After the First Loudermill Hearing, the County concluded that Greiner had been “insubordinate and [had] failed to perform [his] job duties.” (7/16/12 Suspension Letter, ECF #90-36.) Rather than terminating Greiner's employment, however, the County suspended him for three days. (See id.)

         On July 30, 2012, Greiner's co-workers and supervisor reported that he had been “deliberately inefficient and incompetent in his duties installing signs. He would not lift a four foot stub and when he did he was exceptionally slow.” (Martin Balinski Decl., ECF #89-19 at Pg. ID 1204; see also, Disciplinary Action Form, ECF #90-37.) After conducting an investigation into the July 30, 2012, incident, the County notified Greiner that it had scheduled another Loudermill Hearing (the “Second Loudermill Hearing”) to allow him to respond regarding his co-workers' allegations. (See Greiner Dep. at 191, ECF #89-2 at Pg. ID 1066.) That notice specified that the Second Loudermill Hearing concerned allegations that Greiner “fail[ed] to place the post drive on the post, assemble signs, lift posts or stubs and get in and out of the bucket in a competent manner.” (See id.)

         Two union representatives spoke on Greiner's behalf at the Second Loudermill Hearing. (See Id. at 195, ECF #89-2 at Pg. ID 1067.) In addition, Greiner told the County at the hearing that his co-workers were lying about his misconduct to retaliate against him for uncovering an overtime fraud scheme. (See Id. at 142, ECF #89-2 at Pg. ID 1036.) After the Second Loudermill Hearing, the County suspended Greiner for ten days.

         On September 26, 2012, Greiner's co-workers reported to the MCRC that Greiner has been insubordinate while flagging traffic that day. (See Balinski Decl., ECF #89-19 at Pg. ID 1204-05; see also September 26-27, 2012 Incident Fact Sheets, ECF #90-40.) Specifically, they claimed that he had been unresponsive on a two-way radio for up to five minutes, was argumentative with the project leader, Martin Balinski, regarding where to stand, and had placed crew members in an unsafe environment. (See id.) According to Greiner's supervisor, the situation on the road became so “chaotic” that the Sheriff's Department had to intervene. (See Sabaugh Dep., ECF #89-15 at Pg. ID 1165.) The next day, Balinski reported that Greiner had refused a directive to help lift a guardrail onto a trailer. (See Balinski Decl., ECF #89-19 at Pg. ID 1204-05.)

         After Greiner's co-workers reported the incidents on September 26 and 27, the County placed Greiner on paid administrative leave. (See 9/28/12 Letter, ECF #90-41.) In a letter dated October 11, 2012, the County notified Greiner that it had conducted an investigation into his alleged insubordination on September 26 and 27, 2012, and that it was “considering disciplinary action up to and including discharge.” (10/11/12 Letter, ECF #90-42.) The letter also notified Greiner that the County had scheduled a Loudermill Hearing (the “Third Loudermill Hearing”) for October 19, 2012, to allow him to respond to the allegations. (See id.) The letter informed Greiner that he was entitled to bring a representative of his choosing to this hearing. (See id.)

         Two days prior to the Third Loudermill Hearing, Greiner formally reported to the County his belief that his co-workers were engaging in overtime fraud. (See Greiner Dep. at 198, ECF #89-2 at Pg. ID 1068.) At the hearing, Greiner reiterated that his supervisors and co-workers were fabricating reports of his misconduct in an effort to cover up their overtime fraud. (See Id. at 147-48, ECF #89-2 at Pg. ID 1037.) In addition, Greiner presented evidence stating that it was proper for a traffic regulator to stand on the shoulder of the road. (See Id. at 197-98, ECF #89-2 at Pg. ID 1068.) Union representative Paul Long also spoke on Greiner's behalf at the hearing. (See Id. at 146-47, ECF #89-2 at Pg. ID 1037.) Long argued to the County that Greiner had not refused orders and did as he was told. (Id.)

         Following the Third Loudermill Hearing, the County terminated Greiner's employment. (See Termination Letter, ECF #89-26.) The decision was made by Robert Hoepfner, the Director of the Macomb County Department of Roads, based on the recommendation of Karen Bathanti, the Service Director for the Human Resources and Labor Relationship Department. (See Hoepfner Dep., at 15, ECF #89-27 at Pg. ID 1224; Bathanti Dep. Book II at 24, ECF #89-28 at Pg. ID 1319.) Bathanti investigated the ...


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