Tyrone Booth v. Flint Police Officers Ass'n

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0227n.06

Case No. 21-2960

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
TYRONE BOOTH; NICOLE REID; ) Jun 07, 2022
CANDACE BURTON; CHAD BALDWIN; ) DEBORAH S. HUNT, Clerk
)
NELSON HADLEY; SCOTT WATSON,
)
Plaintiffs - Appellants, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
v. ) THE EASTERN DISTRICT OF
) MICHIGAN
FLINT POLICE OFFICERS ASSOCIATION; )
KEVIN SMITH; CITY OF FLINT, )
MICHIGAN; MAKINI JACKSON; POLICE ) OPINION
OFFICERS LABOR COUNCIL; TERENCE )
GREEN, )
Defendants - Appellees. )

Before: GIBBONS, McKEAGUE, and THAPAR, Circuit Judges.

JULIA SMITH GIBBONS, Circuit Judge. Pursuant to its collective bargaining agreement

(“CBA”) with the Flint Police Officers Association (“FPOA”), the city of Flint, Michigan, (“the

city”) requires police officers to take a competitive examination to be promoted to sergeant.

Tyrone Booth, Nicole Reid, Candace Burton, Chad Baldwin, Nelson Hadley, and Scott Watson

(collectively, “plaintiffs”) were promoted from provisional sergeant to permanent sergeant by

then-Chief of Police Timothy Johnson without taking an examination. The Police Officers Labor

Council (“POLC”), the labor union representing the Flint Police Sergeants Association (“FPSA”),

filed a grievance requesting that plaintiffs’ promotions be rescinded. A subsequent Memorandum

of Understanding (“MOU”) between the city and the FPOA demoted plaintiffs to provisional

sergeant but provided for plaintiffs to be promoted to permanent sergeant if they received a passing
No. 21-2960, Booth, et al. v. Flint Police Officers Ass’n, et al.

score on the next written examination. Plaintiffs did not take the next written examination and

were demoted to police officers.

Plaintiffs sued, alleging (1) a 18 U.S.C. § 1983 due process violation against the city and

its former Director of Human Resources and Labor Relations, Makini Jackson; (2) a tortious

interference with contractual rights claim against the FPOA and its president, Kevin Smith

(collectively, “the FPOA defendants”); (3) a breach of contract claim against the city; (4) a breach

of the duty of fair representation claim against the POLC; and (5) a violation of their First

Amendment rights under § 1983 against the city and its Chief of Police, Terence Green. The

district court dismissed plaintiffs’ tortious interference claim for failure to state a claim and granted

summary judgment to defendants on the remaining claims. The district court also denied plaintiffs’

pending motion to compel discovery as moot. We affirm.

I

Plaintiffs all held the position of provisional sergeant prior to August 15, 2019. The city’s

personnel rules permit the appointment of an employee to a provisional position when a vacancy

arises that “cannot be filled as provided under these rules due to absence of an appropriate eligible

list.” DE 57-2, City Personnel Rules, Page ID 889. The provisional appointment “shall, insofaras

practicable, be limited to a maximum of ninety (90) days.” Id. When the appointment terminates,

“the employee shall be entitled to return to his prior employment status.” Id. Despite that policy,

plaintiffs served as provisional sergeants longer than ninety days.1

1
Each plaintiff served as a provisional sergeant for longer than one year.
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No. 21-2960, Booth, et al. v. Flint Police Officers Ass’n, et al.

Promotions to permanent sergeant were governed by the city’s CBA with the FPOA.

Article 35 of the CBA stated:

2. The City shall have the right to select among the top three (3) rank eligibles or
from among all eligibles falling within three percentage (3%) points of the highest
score certified, whichever produces the greatest of eligibles, plus all ties with the
lowest score certified.

3. Additionally, the officer must have either a minimum of three (3) years of
seniority and fifteen (15) college credit hours, or a minimum of five (5) years of
seniority.

DE 57-3, FPOA CBA, Page ID 892. Once promoted, the city’s CBA with the POLC provided that

permanent sergeants could be disciplined, suspended, or discharged only “for cause.” DE 20-11,

POLC CBA, Page ID 250. The FPOA required negotiations between the city and the FPOA if the

city wished to “establish a new or different testing procedure or eligibility requirements for

promotion to Sergeant.” DE 57-3, FPOA CBA, Page ID 892. If the city and the FPOA engaged

in negotiations and were unable to agree, the CBA deemed “the matter shall be subject to the

grievance procedure.” Id. The CBA expired on June 30, 2019. The city and the FPOA agreed to

hold promotions in abeyance while they negotiated a successor CBA.

Although plaintiffs had not taken the written examination and were not on an eligibility

list, the FPOA filed a grievance on plaintiffs’ behalf requesting their promotions be made

permanent in August 2019.2 Mistakenly believing the city’s personnel rules required permanent

promotions after a provisional appointee served longer than ninety days, then-Chief of Police

Johnson concurred with the grievance and directed plaintiffs’ promotions be made permanent on

August 15, 2019. In September 2019, Jackson signed plaintiffs’ personnel requisition forms

indicating that plaintiffs’ promotions from provisional to permanent sergeant were effective and

2
Although Officer Burton was promoted to permanent sergeant with the other plaintiffs without
taking an examination or being on an eligibility list, she was not named in the FPOA grievance.
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No. 21-2960, Booth, et al. v. Flint Police Officers Ass’n, et al.

that they belonged to the sergeants’ union.3 The city then began deducting dues for the POLC, the

labor union representing the FPSA, from plaintiffs’ paychecks.

On October 15, 2019, the POLC filed a grievance on behalf of the FPSA opposing

plaintiffs’ promotions to permanent sergeant. The grievance claimed the promotions were “based

on favoritism and not standardized testing” and noted that, historically, “standardized testing has

been part of the promotional process.” DE 20-12, POLC First Grievance, Page ID 307. Since

plaintiffs’ “appointments did not result from a current eligibility list as all current members of

FPSA have in the past,” the POLC requested the city “[r]escind and demote the six recently

appointed members to the FPSA who did not test accordingly and who were not on a current

established eligibility list.” Id.

On October 29, 2019, the city and the FPOA made an MOU to settle the POLC’s grievance.

The city agreed to return plaintiffs to provisional sergeants and stated their status would “remain

unchanged pending the completion of a promotional examination for the permanent placement of

FPOA members into the position of Police Sergeant.” DE 57-11, MOU, Page ID 940. Plaintiffs

were not given notice or a hearing prior to their demotions. The city stopped deducting POLC

dues from plaintiffs’ paychecks by the end of October.

In December 2019, the POLC filed a second grievance on behalf of plaintiffs requesting

they be returned to permanent sergeants. At step four of the process, the grievance was referred

to human resources for mediation and arbitration. The Grievance Review Committee reviewed

both of POLC’s grievances and found it “clear that an arbitrator would find that no contract

violations occurred.” DE 35-5, POLC Resp. to Grievances, Page ID 581. Regarding the first

grievance, the committee found “the best possible outcome has already occurred by those demoted

3
Officer Watson’s personnel requisition form is not included in the district court record.
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No. 21-2960, Booth, et al. v. Flint Police Officers Ass’n, et al.

receiving preferential treatment in the subsequent promotional process.” Id. The committee

declined to advance the second grievance to arbitration. Plaintiffs appealed and asked the POLC

to reconsider. The POLC denied plaintiffs’ appeal because the grievance was untimely and lacked

sufficient merit to warrant arbitration.

Pursuant to the MOU, a promotional examination was to be held on or before October 31,

2020. Any plaintiff who received a passing score would be promoted to permanent sergeant,

thereby allowing plaintiffs to bypass the requirement that their score be in the top three percent.

After plaintiffs declined to sit for the written exam, they were demoted to police officers on

December 27, 2020.

Plaintiffs sued, alleging (1) the city and Jackson violated their due process rights by

demoting them to provisional sergeants without notice; (2) the FPOA defendants tortiously

interfered with their contractual rights under the CBA between the city and the POLC; (3) the city

breached its CBA with the POLC; and (4) the POLC breached its duty of fair representation by

filing the grievance requesting plaintiffs’ demotions and by not advancing plaintiffs’ grievance to

arbitration. The district court granted the FPOA defendants’ motion to dismiss plaintiffs’ tortious

interference claim. After plaintiffs were demoted to police officers, they filed an amended

complaint alleging the city and Green violated their First Amendment rights by demoting them

after they filed this lawsuit. The district court granted summary judgment to defendants on

plaintiffs’ remaining claims and denied plaintiffs’ pending motion to compel discovery as moot.

Plaintiffs appeal the district court’s dismissal of their tortious interference claim, grant of summary

judgment to defendants on their other claims, and denial of their motion to compel discovery.

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No. 21-2960, Booth, et al. v. Flint Police Officers Ass’n, et al.

II

Plaintiffs request that this court reverse the district court’s dismissal of their five claims

and their motion to compel discovery. Plaintiffs first assert they sufficiently stated a claim for

relief for tortious interference such that the district court erred in granting the FPOA defendants’

motion to dismiss. They next argue the district court’s grant of summary judgment on their

remaining claims “relies on the factually flawed premise that Plaintiffs’ promotion to the position

of permanent sergeant was improper.” CA6 R. 27, Appellant Br., at 21. Finally, plaintiffs assert

the documents sought in their motion to compel were relevant to their claims because they

corroborated plaintiffs’ assertion that they were properly promoted to permanent sergeant.

Because the district court properly dismissed plaintiffs’ claims and denied their motion to compel,

we affirm in full.

1

The district court dismissed Count II of plaintiffs’ complaint for failure to state a claim that

the FPOA defendants tortiously interfered with plaintiffs’ contractual rights with the POLC and

the city. We review de novo a district court’s grant of a motion to dismiss for failure to state a

claim. Rudd v. City of Norton Shores, 977 F.3d 503, 511 (6th Cir. 2020). To survive a motion to

dismiss, a complaint must contain “a short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Plaintiffs must allege “enough factual

content” for the court to “reasonably infer that the defendant is liable.” Doe v. Baum, 903 F.3d

575, 580 (6th Cir. 2018). “Legal conclusions, formulaic recitations of the claim’s elements, and

naked assertions of liability are all insufficient.” Id. at 580–81 (quoting Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (cleaned up)). We accept plaintiffs’ factual allegations as true and draw all

reasonable inferences in plaintiffs’ favor. Id. at 581.

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No. 21-2960, Booth, et al. v. Flint Police Officers Ass’n, et al.

The parties agree that plaintiffs’ tortious interference claim is governed by Michigan law.

To establish tortious interference with contractual relations, plaintiffs must establish “(1) the

existence of a contract, (2) a breach of the contract, and (3) an unjustified instigation of the breach

by the defendant.” Health Call of Detroit v. Atrium Home & Health Servs., Inc., 706 N.W.2d 843,

848–49 (Mich. Ct. App. 2005). The third element was the basis of the district court’s decision to

dismiss the claim and is the only element disputed by the parties. To establish the third element,

plaintiffs “must allege the intentional doing of a per se wrongful act or the doing of a lawful

act with malice and unjustified in law for the purpose of invading the contractual rights or business

relationship of another.” Knight Enters. v. RPF Oil Co., 829 N.W.2d 345, 348 (Mich. Ct. App.

2013) (quoting Derderian v. Genesys Health Care Sys., 689 N.W.2d 145, 157–58 (Mich. Ct. App.

2004)). “A wrongful act per se is an act that is inherently wrongful or an act that can never be

justified under any circumstances.” Id. (quoting Prysak v. R.L. Polk Co., 483 N.W.2d 629, 635

(Mich. Ct. App. 1992)). If the defendant does not intend to “instigate or induce the breach, . . .

‘his conduct does not subject him to liability under this rule even if it has the unintended effect of

deterring the third person from dealing with the other.’” Id. at 348–49 (quoting Woody v. Tamer,

405 N.W.2d 213, 218 (Mich. Ct. App. 1987)).

Plaintiffs argue the district court erred in dismissing their claim because Michigan courts

typically treat the third element as a jury question. Michigan courts previously “endorsed a per se

rule that conduct motivated by ‘legitimate personal and business reasons’ was shielded from

liability for tortious interference.” Roche Diagnostics Corp. v. Shaya, 427 F. Supp. 3d 905, 926

(E.D. Mich. 2019) (quoting Christner v. Anderson, Nietzke & Co. P.C., 401 N.W.2d 641, 650

(Mich. Ct. App. 1986)). That per se rule was disavowed and replaced with a balancing test in

which courts consider the defendant’s motive along with “(1) the nature of the defendant’s

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No. 21-2960, Booth, et al. v. Flint Police Officers Ass’n, et al.

conduct, (2) the nature of the plaintiff’s contractual interest, (3) the social utility of the plaintiff’s

and the defendant’s respective interests, and (4) the proximity of the defendant’s conduct to the

interference.” Tata Consultancy Servs. v. Sys. Int’l, Inc., 31 F.3d 416, 427 (6th Cir. 1994) (quoting

Jim-Bob, Inc. v. Mehling, 443 N.W.2d 451, 463 (Mich. Ct. App. 1989)). After weighing these

factors, if “there is enough doubt about the propriety of [the defendant’s] conduct,” the court

should leave the question of what constitutes justification to the jury. Id. at 429.

Plaintiffs allege they sufficiently “pled allegations demonstrating [the FPOA] Defendants

were not justified, even if Defendants claim the MOU shows they were motivated by legitimate

business purposes because they were correcting a supposed mistake.” CA6 R. 27, Appellant Br.,

at 24. Plaintiffs point to the following factual allegations in their complaint:

29. Within days of the above grievance being filed by FPSA, on or about
October 17, 2019, there was a lawsuit filed against Flint by employees of Flint,
which included police officers, alleging reverse race discrimination, suggesting
promotions to Sergeant were based on race.

...

33. In order to gain political favor with FPSA, and in an attempt to try to
appease members of FPOA, including the officers and those involved in the lawsuit
against Flint, Mayor Weaver directed her staff and/or attorneys, including
Defendant Jackson, to reverse the decision of the then-Chief of Police to promote
Plaintiffs to the positions of permanent Sergeant.

DE 1, Compl., Page ID 8–9.4 Plaintiffs also point to paragraph 54, which states: “By its conduct,

[the FPOA] Defendants intentionally and improperly interfered with the contractual rights

Plaintiffs had under their CBA with POLC and Flint.” Id. at 12.

4
In the referenced lawsuit, seventeen city employees (none of whom are plaintiffs here) sued the
city, Johnson, and Jackson alleging race discrimination, retaliation, and constructive discharge in
the Michigan Circuit Court for Genesee County.
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No. 21-2960, Booth, et al. v. Flint Police Officers Ass’n, et al.

As the district court found, “[p]laintiffs have not alleged any wrongful conduct by FPOA

or Smith that would support the third element of their tortious interference claim.” Booth v. Flint

Police Officers Ass’n, 2020 WL 5235228, at *2 (E.D. Mich. Sept. 2, 2020). Plaintiffs do not allege

any facts related to wrongful per se acts or malicious conduct on the part of the FPOA defendants

showing the FPOA defendants intended to “instigate or induce” a breach. Knight Enters.,

829 N.W.2d at 348. As plaintiffs do not allege wrongful conduct by the FPOA defendants, there

are no favorable inferences to be drawn in plaintiffs’ favor to support their claim. And their

allegation that the FPOA defendants “intentionally and improperly interfered with the contractual

rights Plaintiffs had under their CBA with POLC and Flint” is a legal conclusion that is insufficient

to meet their burden to defeat a motion to dismiss. See Doe, 903 F.3d at 580–81. We affirm the

district court’s dismissal of plaintiffs’ tortious interference claim against the FPOA defendants.

2

The district court granted summary judgment to the city and Jackson on plaintiffs’ due

process claim, to the city on plaintiffs’ breach of contract claim, and to the POLC on plaintiffs’

duty of fair representation claim. The court held each of these claims failed because plaintiffs

were improperly promoted to the position of permanent sergeant. We review de novo a district

court’s grant of summary judgment. Fisher v. Nissan N. Am., Inc., 951 F.3d 409, 416 (6th Cir.

2020). We “view[] all the evidence in the light most favorable to the nonmoving party and draw[]

‘all justifiable inferences’ in his favor.” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986)). The movants are entitled to summary judgment if they show “there is no genuine

dispute as to any material fact” such that they are “entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a).

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No. 21-2960, Booth, et al. v. Flint Police Officers Ass’n, et al.

A

Plaintiffs alleged in Count I that they held a property interest in the position of permanent

sergeant and their demotions without notice or a hearing violated their right to due process under

the Fourteenth Amendment. Plaintiffs requested monetary and injunctive relief under 18 U.S.C.

§ 1983. The district court granted summary judgment to the city and Jackson, finding plaintiffs

did not have a property interest in the position because they were improperly promoted.

To have a property interest in the position of permanent sergeant under the Fourteenth

Amendment, plaintiffs must “have a legitimate claim of entitlement to it,” which is “more than a

unilateral expectation.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972). Property

interests “are not created by the Constitution.” Id. at 577. “The hallmark of property . . . is an

individual entitlement grounded in state law, which cannot be removed except ‘for cause.’” Logan

v. Zimmerman Brush Co., 455 U.S. 422, 430 (1982) (quoting Memphis Light, Gas & Water Div.

v. Craft, 436 U.S. 1, 11–12 (1978)). Thus, plaintiffs held a property interest in the position of

permanent sergeant only if Michigan state or local law provides “rules or mutually explicit

understandings that support [their] claim of entitlement to the [position].” Perry v. Sindermann,

408 U.S. 593, 601 (1972). If plaintiffs had a property interest in the position of permanent sergeant,

due process requires a hearing. Roth, 408 U.S. at 577; see also Goldberg v. Kelly, 397 U.S. 254,

264 (1970).

If plaintiffs were properly promoted to permanent sergeant, they would have a property

interest in the position because the city’s CBA with the POLC provides that sergeants may be

disciplined, suspended, or discharged only “for cause.” DE 20-11, POLC CBA, Page ID 250; see

Logan, 455 U.S. at 430 (citation omitted). Promotions to permanent sergeant were governed by

Article 35 of the city’s CBA with the FPOA. With respect to the written examination, it states:

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No. 21-2960, Booth, et al. v. Flint Police Officers Ass’n, et al.

“The City shall have the right to select among the top three (3) rank eligibles or from among all

eligibles falling within three percentage (3%) points of the highest score certified, whichever

produces the greatest of eligibles, plus all ties with the lowest score certified.” DE 57-3, FPOA

CBA, Page ID 892.5 Under the CBA, alterations from this policy required negotiations between

the city and the FPOA. In the event the parties could not agree, the CBA provided a grievance

procedure. While the CBA expired on June 30, 2019, the provision covering promotions

survived the expiration date because it was a “mandatory subject of bargaining” under Michigan

labor law governing public employment. Local 1467, Int’l Ass’n of Firefighters, AFL-CIO v. City

of Portage, 352 N.W.2d 284, 287 (Mich. Ct. App. 1984); Detroit Police Officers Ass’n v. City of

Detroit, Police Dep’t, 233 N.W.2d 49, 53 (Mich. Ct. App. 1975) (holding “the standards and

criteria for promotion are ‘terms and conditions of employment’ . . . and a mandatory subject

of collective bargaining”). “Neither party may take unilateral action on a ‘mandatory subject’ of

bargaining absent an impasse in negotiations.” Local 1467, 352 N.W.2d at 287. If “[a]n employer

tak[es] unilateral action on a ‘mandatory subject’ of bargaining prior to impasse in negotiations,”

it “has committed an unfair labor practice.” Id. at 287–88 (citing M.C.L. § 423.210(1)(e); M.S.A.

§ 17.455(10)(1)(e)).

At the time of plaintiffs’ designation as permanent sergeant, the city and the FPOA “had

agreed to hold in abeyance” appointments to permanent sergeant “until the completion of the

5
The city provided evidence that it historically did not deviate from this policy. Former Deputy
Chief of Police Devon Bernritter testified that, since he joined the police department in 1995, the
promotions at issue were the only occasion where “promotions were made outside of the
competitive process.” DE 59-3, Bernritter Dep., Page ID 1064, 1077. Douglas Santiago, who
joined the department in 2005 and previously served as president of the FPSA, testified that
promotions “always” occurred via “a competitive exam which included a written test and an
eligibility list.” DE 59-6, Santiago Dep., Page ID 1138–39, 1155. Johnson, however, testified that
a promotion to permanent sergeant outside the competitive exam process occurred in 1983 or 1985.
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No. 21-2960, Booth, et al. v. Flint Police Officers Ass’n, et al.

negotiations between the parties regarding Provisional Appointments.” DE 57-11, MOU, Page ID

940.6 Even though plaintiffs had not taken the competitive examination and were not on an

eligibility list as required by the CBA, Johnson signed the FPOA grievance requesting plaintiffs’

promotions. Johnson granted the promotions because the city was “in need of sergeants” and he

felt plaintiffs “definitely deserved” the promotions. DE 59-7, Johnson Dep., Page ID 1162, 1165.

Johnson also mistakenly believed the city’s policies required promotion to a permanent position

after an employee held a provisional position for more than ninety days.7 After Johnson promoted

plaintiffs, the POLC filed a grievance on behalf of the FPSA requesting the promotions be

rescinded because the promotions did not follow the competitive examination process. The city

and the FPOA, authorized by the CBA to alter the promotions process, subsequently made an

MOU that returned plaintiffs to provisional sergeants. According to the MOU, plaintiffs would

become permanent sergeants if they obtained a passing score on the written examination, thereby

allowing them to bypass the CBA requirement that their scores be in the top three percent. Since

plaintiffs did not sit for the next written examination, they were returned to their police officer

positions consistent with city policy for provisional appointments.8

Johnson’s decision to promote plaintiffs was a unilateral act in violation of both the CBA

and the agreement between the city and the FPOA to hold appointments to permanent positions in

6
The parties began negotiating a successor CBA in June 2019 and continued through October
2019.
7
The city’s personnel rules state that an employee should be returned to “his prior employment
status” upon termination of a provisional appointment, which should “be limited to a maximum of
ninety (90) days” if practicable. DE 57-2, City Personnel Rules, Page ID 889.
8
The city’s personnel rules provide that “[a] provisional appointment may be continued in
employment only until examinations can be held, an eligible list established, certifications made,
and arrangements completed with” the permanent appointee. DE 57-2, City Personnel Rules, Page
ID 889. The rules further state: “Upon termination of a provisional appointment, the employee
shall be entitled to return to his prior employment status.” Id.
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No. 21-2960, Booth, et al. v. Flint Police Officers Ass’n, et al.

abeyance pending ongoing CBA negotiations—an unfair labor practice under Michigan law. See

Local 1467, 352 N.W.2d at 287–88. Johnson lacked authority to promote plaintiffs outside of the

competitive examination procedure, as any alteration to the promotion procedure required

negotiations between the city and the FPOA. Plaintiffs argue the completed human resources

forms and their payment of dues to POLC establish a genuine issue of material fact as to whether

they were promoted, but these facts do not cure the legal defect in their promotions. Plaintiffs also

argue that once they were promoted, they obtained a property interest in the permanent sergeant

position via the POLC CBA, which provides that permanent sergeants can be demoted only for

cause. However, since plaintiffs’ promotions did not conform with the applicable procedure, they

did not become bona fide members of the FPSA and were not protected by the POLC CBA’s for-

cause provision.

Plaintiffs do not have “an individual entitlement grounded in state law.” Logan, 455 U.S.

at 430. They were not entitled to be promoted to permanent sergeants or to remain permanent

sergeants without due process. As the district court noted, plaintiffs “cite no case authority . . . for

the proposition that one has a property interest in retaining a position that was obtained through

mistake or in violation of required procedures.” Booth v. Flint Police Officers Ass’n, 2021 WL

3847689, at *6 (E.D. Mich. Aug. 27, 2021). Because plaintiffs were improperly promoted to

permanent sergeant, we find they did not have a property interest in the position and their

demotions without notice or a hearing therefore did not violate the Due Process Clause of the

Fourteenth Amendment.

B

Plaintiffs alleged in Count III that the city breached its contract with the POLC by demoting

them to provisional sergeants without cause. The district court dismissed plaintiffs’ breach of

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contract claim against the city, finding plaintiffs “never became bona fide members” of the FPSA

and were therefore “not protected by that union’s CBA.” Booth, 2021 WL 3847689, at *2.

Plaintiffs argue this finding was in error because genuine issues of material fact exist as to whether

they were bona fide members of the FPSA. The CBA between the city and the POLC protected

members of the Flint Police Department “possessing the rank of Sergeant.” DE 20-11, POLC

CBA, Page ID 249. As addressed above, plaintiffs’ promotion to permanent sergeant was

improper because it was without legal authority. Furthermore, even if plaintiffs were members of

the FPSA, the improper nature of their promotion would constitute good cause for revocation. We

find plaintiffs were not protected by the “for cause” provision of the city’s CBA with the POLC

and affirm the district court’s dismissal of their breach of contract claim.

C

In Count IV, plaintiffs alleged the POLC violated its duty of fair representation by filing a

grievance opposing their promotion to permanent sergeant and by failing to advance their

grievance to arbitration following their demotion. The district court granted summary judgment

to the POLC, finding the POLC did not owe plaintiffs a duty because they never became bona fide

members of the FPSA, the sergeants’ organization that POLC represents. We agree with the

district court that plaintiffs’ promotions were legally ineffective. Since they did not become bona

fide members of the FPSA, the POLC did not owe plaintiffs a duty of fair representation.9 Even

if the POLC owed plaintiffs a duty of fair representation, the POLC did not breach that duty by

opposing plaintiffs’ promotion to permanent sergeant or by declining to advance plaintiffs’

9
As noted by the district court, “[i]f POLC dues were deducted from plaintiffs’ paychecks for the
short period of time during which plaintiffs were deemed to be permanent sergeants
(approximately from the end of September to the end of October 2019), they may have a claim for
the return of that money.” Booth, 2021 WL 3847689, at *7.
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No. 21-2960, Booth, et al. v. Flint Police Officers Ass’n, et al.

grievance through arbitration in a nonarbitrary manner. See Goolsby v. City of Detroit, 358

N.W.2d 856, 863 (Mich. 1984) (stating that when a union’s “duty of concern for the good of the

total membership . . . conflicts with the needs or desires of an individual member, the discretion

of the union to choose the former is paramount”) (citation omitted); see also id. at 862 (“Though

. . . a union may not arbitrarily ignore a meritorious grievance or process it in perfunctory fashion,”

an individual employees does not have “an absolute right to have his grievance taken to

arbitration . . . .”) (citation omitted). We affirm the district court’s grant of summary judgment to

the POLC on Count IV.

3

In Count V, plaintiffs alleged the city demoted them from provisional sergeants to police

officers in retaliation of the exercise of their First Amendment rights to file this lawsuit. They

claimed monetary and injunctive relief under 42 U.S.C. § 1983. The district court granted

summary judgment to the city and Green, finding the timing and circumstances of plaintiffs’

demotions did not support the conclusion that the filing of this lawsuit caused the city to demote

plaintiffs. Plaintiffs argue summary judgment was inappropriate because defendants’ motivation

is at issue. We review de novo a district court’s grant of summary judgment, viewing all facts and

drawing all justifiable inferences in favor of the nonmoving party. Fisher, 951 F.3d at 416.

The First Amendment protects the right to “petition the Government for a redress of

grievances.” U.S. Const. amend. I. To establish a claim of retaliation under the First Amendment,

plaintiffs must show: (1) they were “engaged in a constitutionally protected activity;”

(2) defendants took an adverse action against them; and (3) “the adverse action was motivated at

least in part as a response to the exercise of the plaintiff[s’] constitutional rights.” Bloch v. Ribar,

156 F.3d 673, 678 (6th Cir. 1998). The third element was the basis of the district court’s holding

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No. 21-2960, Booth, et al. v. Flint Police Officers Ass’n, et al.

and is the only element disputed by the parties. To establish the causal connection required by the

third element, defendants’ retaliatory motive “must be a ‘but-for’ cause, meaning that the adverse

action against [plaintiffs] would not have been taken absent the retaliatory motive.” Nieves v.

Bartlett, 139 S. Ct. 1715, 1722 (2019) (citation omitted). Even if plaintiffs’ “protected conduct

played a part, substantial or otherwise,” in the decision to demote, plaintiffs are not entitled to a

remedy “if the same decision would have been reached” absent their protected conduct. Id.

(quoting Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285 (1977)).

Nearly five months before plaintiffs filed this lawsuit on March 18, 2020, the city and the

FPOA made the MOU that demoted plaintiffs to provisional sergeants. The MOU provided that

the city would hold a promotional examination on or before October 31, 2020 and that plaintiffs

would be promoted to permanent sergeant if they obtained a passing score. Plaintiffs elected not

to take the October 2020 sergeants’ examination. The city promoted several individuals to

permanent sergeant from the eligibility list after the competitive examination. Plaintiffs were

demoted to police officers on December 27, 2020.

The city points to the MOU as the actual cause of plaintiffs’ demotions. Then-Chief Green

testified that he decided to demote plaintiffs “based on the MOU that existed.” DE 59-2, Green

Dep., Page ID 1053. The district court also referred to the city personnel rules governing

provisional appointments, which provide:

A provisional appointment may be continued in employment only until
examinations can be held, an eligible list established, certifications made, and
arrangements completed with the person whose name is certified to begin work, at
which time the provisional appointee shall be terminated. . . . Upon termination of
a provisional appointment, the employee shall be entitled to return to his prior
employment status.

DE 57-2, City Personnel Rules, Page ID 889.

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No. 21-2960, Booth, et al. v. Flint Police Officers Ass’n, et al.

Plaintiffs cannot establish that the filing of this lawsuit was the but-for cause of their

demotions to police officer. The MOU provided a noncompetitive avenue for their promotion to

permanent sergeant but they did not take the requisite examination. Once permanent sergeants

were selected from the eligibility list following the October competitive examination, the city

personnel rules dictated plaintiffs’ demotion back to their “prior employment status,” i.e., their

nonprovisional employment status. Before plaintiffs became provisional sergeants, they were

police officers. Since plaintiffs’ demotions to police officer complied with the terms of the MOU

and the city’s personnel rules, we affirm the district court’s dismissal of their First Amendment

retaliation claim.

4

In granting summary judgment to defendants, the district court denied plaintiffs’ pending

motion to compel discovery as moot. Plaintiffs moved to compel the production of an email

correspondence involving Jackson dated September 30, 2019. Plaintiffs claimed the email was

shown to Jackson during her deposition that was “directly related to the Plaintiffs’ claims,” “was

damaging to Defendant City of Flint,” and was inconsistent with Jackson’s deposition testimony.

DE 60, Mot. to Compel, Page ID 1185. On appeal, plaintiffs argue they “would likely have had

additional evidence to support their claims” had their motion been granted. CA6 R. 27, Appellant

Br., at 39. The city defendants argue the requested discovery is irrelevant to the dispositive issues

in plaintiffs’ claims against the city and Jackson.

We review the denial of a motion to compel discovery for abuse of discretion. Louzon

v. Ford Motor Co., 718 F.3d 556, 560 (6th Cir. 2013). “An abuse of discretion occurs if the district

court relies on clearly erroneous findings of fact, applies the wrong legal standard, [or] misapplies

the correct legal standard when reaching a conclusion . . . .” Id. (citation omitted). We must have

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No. 21-2960, Booth, et al. v. Flint Police Officers Ass’n, et al.

“a definite and firm conviction” that the district court “committed a clear error of judgment” to

reverse its decision. Pittman v. Experian Info. Sols., Inc., 901 F.3d 619, 642 (6th Cir. 2018)

(citation omitted).

Plaintiffs argue the emails were relevant to their “promotion to permanent sergeant, which

the documents suggest was consistent with the CBA,” and their demotion to provisional sergeant

in October 2019.10 CA6 R. 39, Reply Br., at 5. The issue of whether plaintiffs had a property

interest in the position of permanent sergeant is a question of law. The district court evaluated

multiple pieces of evidence to decide that question—namely the CBA and MOU between the city

and the FPOA. Jackson, the city’s Director of Human Resources and Labor Relations from

January 2018 to November 2019, signed the MOU that demoted plaintiffs to provisional sergeants

on behalf of the city. Jackson could not, however, deprive plaintiffs of a property interest where

none existed by law. Further, Jackson was not employed by the city in October 2020 when the

promotional examination was held or in December 2020 when plaintiffs were demoted to police

officers. There is no “definite and firm conviction” that the district court “committed a clear error

of judgment.” Pittman, 901 F.3d at 642 (citation omitted). And we recognize that “the scope of

discovery is within the sound discretion of the trial court.” Lavado v. Keohane, 992 F.2d 601, 604

(6th Cir. 1993) (citation omitted). We therefore affirm the district court’s denial of plaintiffs’

motion to compel discovery as moot.

10
Plaintiffs’ reply brief states plaintiffs were demoted in October 2018, but plaintiffs’ demotion to
provisional sergeant occurred in October 2019.
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No. 21-2960, Booth, et al. v. Flint Police Officers Ass’n, et al.

III

We affirm the district court’s dismissal of plaintiffs’ tortious interference claim, grant of

summary judgment to defendants on plaintiffs’ remaining claims, and denial of plaintiffs’ motion

to compel as moot.

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