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Papin v. County of Bay

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

April 25, 2019

NEAL PAPIN, Plaintiff,
v.
COUNTY OF BAY, Defendant.

          ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION

          THOMAS L. LUDINGTON UNITED STATES 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.

         I.

         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”).[1] Id. at 112-113. Papin alleges that Kleinert brought “a bag of trash into the building and dump[ed] the contents out in a room next to the squad room.” ECF No. 1 at 4. Papin asked him what he was doing and Kleinert responded, “I gotta do a trash pull.” Id. at 111. Kleinert did not say whose trash he was searching, but Papin had previously observed other BAYANET officers searching trash at the Law Enforcement Center. Id. at 114, 118-119.

         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:

I told Bob…of how I saw some weird stuff go on too, with the city/county, or other incidents in the jail, and then I came across a story of how I saw deputy Art Klenhart bring a bag of trash into the building and dump it in the room next to the squad room on the county end. Bob joked and said oh that's just a trash pull. That happens a lot. Bob had asked why Art, and I told him that Art was working Baynet now and that he was undercover…Bob kind of looked at me with a confused look and asked me if I could remember the day or date and I couldn't. My reply back was why?
Bob mentioned to me that people had been going through his trash recently and he wondered if he was being targeted for something. I looked at him and he was serious. I thought the same thing since of where he use [sic] to work or maybe of the recent election outcome…He asked me if I wouldn't mind calling him the next time I saw this happen. I said sure no problem. I also told Bob of the conversation with Jeff Sargenson on the home that Miller had bought in Florida, and of how the sheriff was retiring. I told him the sheriff was still off work and that Mike Janaskee had retired. He told me of knowing of Mike Janaskee's retirement but didn't know of the home in Florida story. He was curious and bitter knowing that Miller only ran to make sure someone else would take over other than someone who won the job in an election. He noted to me that Troy wouldn't automatically takeover since that move had to be made by the Prosecutor, the County Clerk, and the Probate Judge. He said they would have to the final say of who was to be the next sheriff.
About a month passed.
It was 12:45 when I got a page to contact the squad room and I again walked to the room rather than call the number. I walked to the room and again I saw deputy Art Kelnhart [sic] going through another trash bag. He had dumped it on the floor just off the squad room like before and he asked me for another trash bag…I asked him what he was looking for and he said just evidence…
I wished him a good night and proceeded to put my stuff away since it was now 1 am. The voice rang in my head to call Bob since I had saw [sic] this happen again, so as I exited the building from work I called Bob on my cell phone. I apologized for the late call but Bob said it wasn't a problem, since he was up and awake watching a TV show. I told him that the trash thing had happened again and that it was in progress. Bob thanked me for the call and said he was heading out to check his trash can. He called me the next afternoon and said his trash was messed with again and that a bag was missing. He was angry and joked that he's putting some dog shit in his trash next week. He thanked me for the call and told me to not discuss this with anyone.

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.

Q: Why were you concerned about Mr. Lee asking Mr. Papin to notify him if another trash bag was pulled?
A: Because Mr. Lee thought he was the subject of the law enforcement investigation, and so, if Mr. Papin was disclosing things happening in an active investigation to the person he thought was the subject of the investigation I was concerned that could be criminal. If not criminal, I was concerned that he was actively trying to sabotage the County. And if he wasn't actively trying to sabotage the County, that he was unable to discern what was confidential and not.

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:

Those exact concerns, that it could be criminal. If not criminal, you know, is Mr. Papin able to discern what is confidential and what is not confidential. And the biggest concern is that he was then working at the Health Department, and so, if he was unable to determine what was confidential he would have access to protected health information in the Health Department, which is a 50, 000-dollar fine for each violation of HIPAA. So, were we going to be exposed to any potential liability there.

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 ...


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