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Greiner v. Charter County of Macomb

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

November 13, 2017

JOHN GREINER, Plaintiff,



         In this action, Plaintiff John Greiner brought several claims challenging the termination of his employment by Defendant Charter County of Macomb (the “County”). The Court previously granted summary judgment against Plaintiff on all of his claims other than his First Amendment retaliation claim. (See ECF #117.) For the reasons explained below, the Court now grants summary judgment against Plaintiff on that remaining claim.


         The Court set forth the facts of this case in great detail in its prior summary judgment order. (See id.) The Court incorporates herein the factual recitation from the earlier order. The Court highlights below only those facts that are essential to understand the Court's ruling below.

         Plaintiff worked for the Macomb County Road Commission (“MCRC”) from 2000 to 2012. (See Greiner Dep. at 37, 148, ECF #89-2 at Pg. ID 1010, 1037.) During the course of his employment, he had numerous disciplinary issues and instances of negligent operation of County equipment. As a result of his poor performance, Plaintiff entered into a Last Chance Agreement (“LCA”) with the County in 2009. (See LCA, ECF #90-7.) The LCA provided 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].” (Id.)

         After Plaintiff entered into the LCA, he continued to have disciplinary issues, and the County commenced three separate disciplinary proceedings against him. The Court described these proceedings in its earlier order. (See Opinion and Order at 10-14, ECF #117 at Pg. ID 4536-4540.) Each proceeding began with notice to Plaintiff of his alleged misconduct, and each involved a Loudermill hearing to inquire into the circumstances of the alleged misconduct. And each Loudermill hearing concluded with a finding that Plaintiff had committed misconduct.

         With each successive misconduct finding, the County imposed progressive discipline. Following the first finding, the County suspended Plaintiff for three days. (See 7/16/12 Suspension Letter, ECF #90-36.) Following the second finding, the County suspended Plaintiff for ten days. (See 8/17/12 Suspension Letter, ECF #89-23.) Following the third finding, the County terminated Plaintiff's employment. (See Termination Letter, ECF #89-26.)

         Under the Collective Bargaining Agreement between Plaintiff's union and the County, the union had the option to challenge the termination of Plaintiff's employment in arbitration proceedings. (See Collective Bargaining Agreement at Article 9, ECF #90-2 at Pg. ID 1424-27.) The union declined to seek arbitration because the union concluded that the County had reasonable grounds for firing Plaintiff. (See 1/8/2013 Letter, ECF #90-45.)

         Plaintiff now challenges his termination as a violation of his First Amendment rights. He alleges that prior to his termination, he complained to the County that several County workers were committing overtime fraud (i.e., collecting increased overtime pay based upon the false assertion that they had worked more than the allotted hours), and he insists that the County fired him because he complained about that fraud.


         A movant is entitled to summary judgment when it “shows that there is no genuine dispute 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 drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . .” Id. at 255.

         III A

         The United States Court of Appeals for the Sixth Circuit has established the following framework for evaluating First Amendment retaliation claims at the summary judgment stage:

First Amendment retaliation claims are analyzed under a burden-shifting framework. A plaintiff must first make a prima facie case of retaliation, which comprises the following elements: “(1) he engaged in constitutionally protected speech or conduct; (2) an adverse action was taken against him that would deter a person of ordinary firmness from continuing to engage in that conduct; (3) there is a causal connection between elements one and two-that is, the adverse action was motivated at least in part by his protected conduct.” Scarbrough v. Morgan Cnty. Bd. of Educ.,470 F.3d 250, 255 (6th Cir.2006). If the employee establishes a prima facie case, the burden then shifts to the employer to demonstrate “by a preponderance of the evidence that the employment decision would have been the same absent the protected conduct.” Eckerman v. Tenn. Dep't of Safety,636 F.3d 202, 208 (6th Cir.2010) (internal quotation marks omitted). “Once this shift has occurred, summary judgment is warranted if, in light of the evidence viewed in the light most ...

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