NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0609n.06
No. 09-3316 FILED
Sep 14, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
GREGORY T. KELLY, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
WARREN C OUNTY BOARD OF ) SOUTHERN DISTRICT OF OHIO
COMMISSIONERS; THOMAS ARISS; )
RACHEL A. HUTZEL; FRANK YOUNG; )
and ERIK TONSTAD, )
)
Defendants-Appellees. )
Before: BATCHELDER, Chief Judge; MOORE and COOK, Circuit Judges.
COOK, Circuit Judge. Gregory Kelly sued the Warren County Board of Commissioners
(Board), Sheriff Thomas Ariss, and Prosecutor Rachel Hutzel for First Amendment retaliation after
the Board refused to hire him as a 911 dispatcher. The district court granted the defendants summary
judgment. Kelly now appeals, asserting that he provided sufficient evidence to permit a reasonable
jury to conclude that: (1) the Board’s refusal to hire him constituted First Amendment retaliation;
and (2) Ariss and Hutzel violated Kelly’s First Amendment rights by contacting South to express
concern over Kelly’s hire. Because Kelly failed to make a prima facie showing of First Amendment
retaliation against any of the defendants, we affirm.
No. 09-3316
Kelly v. Warren County Board of Commissioners
I.
Kelly worked as a 911 operator for Warren County for approximately four years during the
late 1980s. Department supervisor Frank Young recalled Kelly as an “outstanding communications
officer.” Kelly began his law enforcement career in 1989 and for eight years worked as a police
officer for Hamilton Township under the auspices of the Warren County Sheriff’s Department. As
Warren County Sheriff, defendant Ariss reviewed Kelly’s 1995 application to become a full-time
deputy and determined that Kelly’s background left him unsuited for the job.
Kelly’s propensity to clash with supervisors repeatedly jeopardized his employment status,
leading to numerous job changes over the years that followed. While working as a police officer,
he complained about dishonesty and cover-ups within the Hamilton Township Police
Department—including one episode in which a fellow officer put a gun to Kelly’s head—and filed
suit against Police Chief Eugene Duvelius and the Township in 1999. Kelly alleged that Duvelius
threatened to fire him in violation of the First Amendment for exposing the Department’s
shortcomings. The parties settled in early 2000. The Village of Lynchburg hired Kelly as a police
officer in 2001, but terminated him in early 2002 after he accused the police chief of destroying
evidence and assaulting a juvenile. Kelly’s next employer, CSX Railroad, terminated him after he
allegedly threatened a hearing officer.
Upon losing his job with CSX, Kelly contacted Young and asked if he might return to work
as a 911 dispatcher. He revealed the two misdemeanors in his record and warned that Sheriff Ariss
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might try to interfere with his hire because he campaigned for Ariss’s opponent in the recent election.
Young nonetheless recommended Kelly’s hire in early January 2005. The Board’s three
Commissioners, who together constitute the appointing authority for the County’s 911 dispatchers,
unanimously approved Young’s recommendation subject to a background check.
Within a few days, Commissioner Pat South received separate phone calls from Ariss and
Prosecutor Hutzel expressing concern about Kelly’s potential hire. Ariss told South that hiring Kelly
would “not be a very good idea.” The Sheriff remained concerned about Kelly’s trustworthiness and
recommended that the Commissioners perform a thorough background check. Hutzel relayed
limited information to South about Kelly’s prior run-ins with Duvelius—all of which South later
acknowledged she learned about from contemporaneous newspaper reports—and, like Ariss, advised
the Board to look into Kelly’s background. South reassured Ariss and Hutzel that the Board would
review the results of a background check, as Board procedures dictated.
The Commissioners met in executive session to review the background documents collected
by the County’s Human Resources Department, which exposed Kelly’s two misdemeanor
convictions: one arising from Kelly’s ongoing disputes with neighbors; the other from a physical
altercation between Kelly and an individual angry with Kelly’s then-girlfriend. In deposition, each
Commissioner revealed what prompted his or her decision to rescind the provisional employment
offer. Although she did not remember the specific charges, Commissioner South recalled reading
about Kelly fighting with someone, noted that the word “gun” appeared in the reports, and expressed
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concern over Kelly’s numerous conflicts with law enforcement. She also recollected learning that
Kelly intimidated his female co-workers. Commissioner Mike Kilburn, Kelly’s family friend who
supported him in employment endeavors in the past, cited Kelly’s past problems with law
enforcement and remembered a particular altercation with a Hamilton Township police officer
involving a gun. Kilburn recalled details of two incidents between Kelly and his neighbors resulting
in one of Kelly’s misdemeanor convictions for aggravated menacing and assault. Commissioner
David Young noted Kelly’s several incidents with police (also recalling a gun’s involvement) and
expressed concern over past conflicts with local police departments where Kelly worked, including
the Hamilton Township Police Department, though Young could not remember details. Young also
disclosed his discomfort with Kelly’s interactions with the Commissioner’s brother, Warren, who
Kelly called and asked to put in a “good word” for him. The Commissioners determined that Kelly’s
misdemeanor convictions and employment history made him ill-suited for the position, which, due
to the heavy reliance placed on dispatchers by law enforcement officers, required a high degree of
trust. This conclusion prompted them to rescind their employment offer by unanimous vote.
Kelly sued the Board, Ariss, and Hutzel under 42 U.S.C. § 1983, alleging that his previous
lawsuit against Police Commissioner Eugene Duvelius and support of Ariss’s political
opponent—both activities protected by the First Amendment—motivated the Board’s decision. The
Board responded that Kelly’s checkered background, not his protected speech, persuaded it of
Kelly’s unfitness to serve as a dispatcher. Following discovery, the district court granted summary
judgment to all defendants. Though the court found that Kelly’s actions constituted protected
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conduct, and that the Board perpetrated an adverse employment action when it refused to hire him,
it concluded that Kelly did not present sufficient evidence to support the contention that his protected
conduct motivated the Board’s decision. The court also granted Ariss and Hutzel summary
judgment, finding that qualified immunity protected them from suit in their individual capacities,
and that Kelly failed to provide sufficient evidence of retaliation to hold them liable in their official
capacities. Kelly timely appealed.
II.
We review the district court’s grant of summary judgment de novo, affirming if the evidence,
viewed in the light most favorable to Kelly, demonstrates that no genuine issue exists as to any
material fact and that the defendants are entitled to judgment as a matter of law. Village of Oakwood
v. State Bank & Trust Co., 539 F.3d 373, 377 (6th Cir. 2008).
A. First Amendment Retaliation Claim Against the Board1
To establish a prima facie case of First Amendment retaliation against the Board under §
1983, Kelly must establish that: (1) he engaged in protected conduct; (2) he suffered an adverse
action likely to chill a person of ordinary firmness from continuing to engage in the protected
1
Because Kelly’s claim against the Board fails on the merits, we proceed as if Kelly presented
sufficient evidence of a county policy or custom underlying the Board’s refusal to hire him to satisfy
the Monell policy or custom requirement. See Monell v. New York Dept. of Soc. Servs., 436 U.S.
658, 691 (1978).
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activity; and (3) his protected conduct was a substantial or motivating factor in the adverse action.
Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). When a potential public
employee seeks to demonstrate protected conduct in the First Amendment retaliation context, he
must show that the speech touched on a matter of public concern. Connick v. Myers, 461 U.S. 138,
145–49 (1983). If Kelly makes the prima facie showing, the burden shifts to the Board. Mt. Healthy
Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). The Board may defeat Kelly’s claim by
showing either that, under the balancing test established by Pickering v. Board of Education, 391
U.S. 563, 568 (1968), the Board’s legitimate interest in regulating employee speech to maintain an
efficient workplace outweighed Kelly’s First Amendment rights, Connick, 461 U.S. at 150, or that
under the mixed-motive analysis established by Mt. Healthy, 429 U.S. at 287, it would have
rescinded Kelly’s offer even absent his protected conduct, id.
Kelly’s failure to establish that his protected conduct motivated the Board’s decision to
rescind its offer dooms his retaliation claim. Mt. Healthy, 429 U.S. at 287. No direct evidence exists
that the Commissioners considered Kelly’s protected conduct when they decided to rescind their
employment offer. In an attempt to show causation, Kelly questions how the Board could have
placed so much weight on his misdemeanor convictions, which he calls “minor disputes arising from
personal issues,” both of which occurred more that five years prior to the Board’s hiring decision and
resulted from his negative relationship with the Warren County Prosecutor’s Office. He doubts that
his background could have caused the Board to rescind its offer when both Frank Young and
Commissioner Kilburn knew of his misdemeanor record, and allegedly deemed it “insignificant.”
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He avers that jurors could easily find that Ariss’s and Hutzel’s conversations with Commissioner
South negatively influenced the Board. But Kelly presented insufficient evidence to raise an
inference of causation and his mere speculation does not create a genuine issue of material fact to
overcome summary judgment. See Hartsel v. Keys, 87 F.3d 795, 801–02 (6th Cir.1996) (conclusory
statements, subjective beliefs, or intuition cannot defeat summary judgment).
Indeed, direct evidence reveals that neither of Kelly’s two protected activities—campaigning
for Ariss’s opponent and suing Duvelius—prompted the Board to rescind its offer. All of the
Commissioners consistently testified that Kelly’s run-ins with law enforcement and his history of
rocky employment relationships led them to question whether he could perform well as a 911
dispatcher. Only Commissioner Young’s acknowledgment that he considered Kelly’s negative
employment relationship with the Hamilton Township Police Department in evaluating Kelly’s
background arguably supports Kelly’s claim. Yet, two other Commissioners considered only
unquestionably proper information.2 And because only two Commissioners needed to vote to
2
The dissent concedes that no causal connection exists between Kelly’s protected activities
and South’s vote against his hire for the dispatch position. The dissent argues, however, that “the
vague statements of Commissioner[] Kilburn . . . leave open the possibility that [he] considered not
only that Kelly had a negative relationship with the Hamilton Township Police Department because
he had quit and had an altercation with an officer, but also that Kelly had previously sued the
Hamilton Township Chief of Police.” Dissent at 7. We respectfully disagree that Kilburn made
“vague statements” open to such varying interpretations. In discussing the reasons the
Commissioners declined to hire Kelly, Kilburn identified the incident he deemed problematic.
Kilburn Dep. at 24–25. Though he did not “really recall all the specifics,” he did recall that “there
could have been a gun involved.” Id. This statement refers to Kelly’s allegation that another police
officer put a gun to Kelly’s head. Notably, Kilburn never referred to the lawsuit against Duvelius.
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rescind their offer, Young’s admission alone (which itself remains vague enough to label it an
evaluation of his past employment, not his protected conduct) cannot render the Board’s decision
unconstitutional.
Kelly attempts to overcome the direct evidence against him with circumstantial evidence that,
he contends, permits an inference of unconstitutionality. Barrett v. Harrington, 130 F.3d 246, 263
(6th Cir.1997) (finding “inferences raised by the evidence . . . sufficient to create a question of fact
and avoid summary judgment” where the record statements “reveal the possibility that . . .
[defendant] did have a retaliatory motive”). He urges the court to reverse summary judgment by
inferring unconstitutional motives from the Board’s failure to (1) treat him like other potential hires
and (2) follow regular procedures.
First, Kelly points to Lori Jones’s re-hire following her discharge for violating an internal
policy—specifically, fraternizing with an inmate—as evidence of different treatment, implying an
unconstitutional motive. Though disparate treatment can give rise to an inference of unlawful
motives, Arnett v. Myers, 281 F.3d 552, 560–61 (6th Cir. 2002), Kelly’s attempted comparison
misses the mark. Jones violated policy, but did not give the Board cause to believe that she could
not be trusted while working with law enforcement in Warren County. Though the Board might
doubt her trustworthiness as a prison guard, her past indiscretion says nothing about her ability to
perform 911 dispatcher duties. By contrast, Kelly’s background check and employment history
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prompted the Board to believe that he could not establish the required trust with the law enforcement
personnel who would rely on him for their safety.
Second, Kelly contends that the Board strayed from its stated policies, holding him to a
higher standard. See Village of Arlington Hts. v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267
(1977). He highlights the fact that the job application form does not ask about misdemeanors and
that Frank Young’s recommendation usually suffices as a basis for the Board to hire an applicant,
but it did not for him. No one disputes that the Board’s policy dictated that it hire a candidate
provisionally, subject to a background check. The provisional-hire policy afforded the Board a
safety valve, allowing it to reject candidates whom, though recommended and conditionally hired
at the urging of a supervisor, the background check disqualified. Even if the Board confirmed all
previous individuals’ provisional employment offers after looking into their background, its failure
to do so here does not evidence a departure from normal procedure unless Kelly demonstrates that
background checks of other candidates revealed similarly disconcerting information, a showing he
fails to make.
Without direct or circumstantial evidence to create a genuine issue of material fact as to the
causation element, Kelly’s First Amendment retaliation claim against the Board fails.
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B. First Amendment Retaliation Claims Against Ariss and Hutzel3
Kelly similarly fails to make a prima facie showing of First Amendment retaliation in his suit
against Ariss and Hutzel, the individuals who cautioned South against hiring Kelly, because he does
not show “an adverse action by [Ariss and Hutzel] . . . that would deter a person of ordinary firmness
from continuing to engage” in the protected activity. See Fritz v. Charter Twp. of Comstock, 592
F.3d 718, 723 (6th Cir. 2010). The only adverse action Kelly complains of is the Board’s refusal to
hire him. Ariss and Hutzel counter that they cannot be liable for the Board’s decision because the
Board possessed final hiring authority. Although a recent Sixth Circuit case forecloses their
argument, the standard that case establishes proves fatal to Kelly’s claim nonetheless. See id. at
726–28.
In Fritz, this court decided a “close” case involving a public official who encouraged a
private employer to terminate someone because of her protected conduct. The court noted that a
public official need not have the direct authority to make employment decisions in order for his
actions to qualify as adverse. Id. at 726. It evaluated instead the official’s ability to exercise control
over the employer’s business, finding that the public official’s comments in Fritz qualified as “‘a
threat to take action tangibly affecting employment status.’” Id. at 728 (quoting Samad v. Jenkins,
3
Kelly sued Ariss and Hutzel in their official and individual capacities. Though the district
court resolved the individual- and official-capacity claims on different grounds, both claims require
Kelly to make the three-part prima facie showing to prevail. Because he fails to do so, we need not
differentiate between the two claims.
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845 F.2d 660, 663 (6th Cir. 1988)). The court decided that the public official’s “power to
substantially affect [the plaintiff’s] ability to do business in [the area] through [his] role in enacting
township ordinances and making zoning decisions” made the threat credible and would deter a
person of ordinary firmness from engaging in the protected conduct. Id. at 726. Unlike the
defendants in Fritz, Ariss and Hutzel lacked power to affect the Board’s decisions. Though Kelly
alleges that personal, social, or familial relationships gave Ariss’s and Hutzel’s recommendations
extra weight, he does not substantiate the claim in any cognizable way. Thus, even if Ariss and
Hutzel expressly encouraged South to vote against Kelly’s hire because of his protected conduct, and
the Board did just that, Kelly fails to present evidence that either individual held sufficient influence
over the Board to deter a person of ordinary firmness from exercising his free expression rights.
This influence analysis allows us to easily distinguish the two cases upon which Kelly relies
to demonstrate Ariss’s and Hutzel’s liability. In Worell v. Henry, 219 F.3d 1197 (10th Cir. 2000),
a police officer, without whom a drug task force could not operate, wielded his influence to
unconstitutionally prevent the hire of another officer. Id. at 1202. The court found the adverse
action element of the plaintiff’s prima facie case met because the influential officer “caused” the
supervisor to rescind his employment offer. Id. at 1213. Similarly, in Helvey v. City of Maplewood,
154 F.3d 841 (8th Cir. 1998), a city manager with control over liquor licenses told a bar owner to
fire an employee for testifying against the city’s police officers. Id. at 843. The court found that the
employee’s allegations that the city manager used his regulatory authority to coerce the employee’s
termination were sufficient to create a factual dispute and avoid summary judgment. Id. at 844.
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Unable to prove the second prima facie element, Kelly’s claims against Ariss and Hutzel fail.
III.
We affirm the district court’s grant of summary judgment to all defendants.
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KAREN NELSON MOORE, Circuit Judge, dissenting in part and concurring in the
judgment in part. I dissent from Part II.A of the majority opinion because I believe that the facts
viewed in the light most favorable to Kelly demonstrate that he has shown that a genuine issue of
material fact exists regarding whether the Commissioners improperly considered Kelly’s exercise
of his First Amendment rights.
I. FIRST AMENDMENT RETALIATION CLAIM
AGAINST THE BOARD
Because I think that Kelly has presented a genuine issue of material fact as to causation and
that the Board is not entitled to summary judgment, I dissent from Part II.A and would allow Kelly’s
municipal-liability claim to proceed against the Board.
I disagree with the majority opinion’s conclusion that Kelly cannot satisfy the third element
of his prima facie case because he has presented only “mere speculation.” Slip op. at 7. Kelly claims
that the statements Ariss and Hutzel made to Commissioner South were retaliatory interferences with
his employment process and constituted an adverse action because it “would be likely to chill a
person of ordinary firmness from engaging in protected activity.” Appellant Br. at 38. Although I
agree that Kelly has not shown that Ariss and Hutzel had sufficient influence to affect the hiring
process in their own right, I believe that Kelly has presented a genuine issue of material fact
regarding Hutzel’s influence—although the alleged statements to South did not persuade South, it
is unclear whether the other members of the Board relied solely on the information obtained through
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an independent background check conducted by the County’s Human Resources Department (“HR”).
As reflected in the resolution to hire Kelly provisionally, the Board had already decided to make
Kelly’s employment subject to a background check prior to the alleged interferences by Ariss and
Hutzel. If the Board merely followed through with this plan, then any statements made in the interim
before the background check was reviewed would not be motivating if the Board ultimately relied
on the background check without reference to the additional concerns that Ariss and Hutzel raised.
However, this remains a disputed question of material fact.
I believe that a more thorough review of the depositions in the record supports Kelly’s
contention of an inference of causation. South testified at her deposition that after the Board passed
the resolution to hire Kelly provisionally, she received phone calls from Ariss and Hutzel, and she
passed Ariss’s and Hutzel’s general concerns on to HR, telling Dan Arnold, the HR Director, that
“I had received phone calls over the weekend from both Mrs. Hutzel as well as Sheriff Ariss
encouraging us to make sure we looked thoroughly at the background check, and told him to make
sure that we did a thorough one and to bring the background check to our Board when he got it
done.” Dist. Ct. Doc. (“Doc.”) 23 (South Dep. at 15–16). The majority opinion neglects this
information and also the additional fact that South also stated that prior to the Board’s executive
session to discuss Kelly’s background check, she had
shared that information [her conversations with Ariss and Hutzel] with my colleagues
[Commissioners Kilburn and Young] right after . . . when I spoke with Mr. Arnold
to make sure that he did a thorough background check. I think I shared with my
colleagues at that time that I had received telephone calls from both the Prosecutor
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and the Sheriff, and that I had asked Dan Arnold to make sure he did a thorough
background check and bring it to us.
Id. at 37–38. According to South’s recollection, the Board received Kelly’s background check from
Arnold and discussed it in an executive session with the three Commissioners, Arnold, Bruce
McGary (legal counsel), Bob Price (County Administrator), and Frank Young (“F. Young”) present.
Id. at 21–22. There are no minutes for executive sessions. Id. at 51.
Commissioner Kilburn had only vague recollections of the discussions surrounding Kelly’s
application, but he remembered that parts of Kelly’s background check indicated that Kelly
previously had confrontations with law enforcement and had contacted Commissioner Young’s
brother to recommend him for the job, which caused some concern regarding Kelly’s fitness for the
position. Doc. 24 (Kilburn Dep. at 14–43). Kilburn stated that Ariss had not talked to him about
Kelly’s hiring potential, noting that Ariss “doesn’t have that much clout to [dictate hiring decisions]
for any County Department.” Id. at 44.
Commissioner Young had a better recollection of the reasons the Board chose not to hire
Kelly, stating that “[e]ssentially what came to light post-hiring were a couple factors that made me
change my mind,” including that “upon the background check we saw there had been several
incidents involving Mr. Kelly and the police[ and s]everal of those actually involved guns,” that
“there has been a conflict with a previous employer here in the County, Hamilton Township Police
Force,” and “thirdly, which was not as big a factor but a factor in the back of my mind, Mr. Kelly
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went and visited my brother, who he knew, and kind of put my brother on the spot, and said ‘Hey,
I have one commissioner’s vote and one against me and your brother will decide if I get a job or not.’
. . . I personally did not really like that.” Doc. 25 (D. Young Dep. at 11–12). Young reasserted that
“honestly, the main thing was seeing someone coming in to work with law enforcement that had
problems with an agency inside the County and the fact there had been run-ins with the police, and
a big thing was it involved guns in some way.” Id. at 12, 20. Young believed that Ariss had been
present in the executive session with the three Commissioners, McGary, and possibly Price, but he
could not remember if anyone else was present. Id. at 15–16, 22–23. Young had not discussed
Kelly’s potential employment outside of the executive session with anyone other than a quick phone
call with his brother when his brother conveyed Kelly’s request for a recommendation. Id. at 18, 20,
26, 30.
Ariss testified that he “did not really get involved other than I passed on to the commissioner
— I talked to Pat South and said, ‘I hear Kelly has an application in. Do a background, do a
background’” because Ariss “ha[d] no authority other than to say, ‘Do a background.’” Doc. 26
(Ariss Dep. at 45, 49). Ariss also talked to Hutzel because they had the same concerns about Kelly’s
background and because Ariss saw Hutzel as “my legal advisor within the County.” Id. at 47, 49–50.
Ariss did not recall talking to anyone else concerning Kelly. Id. at 51–52.
F. Young testified that his recollection of the meeting was that the Commissioners, McGary,
and Arnold discussed the results of Kelly’s background check and were concerned that Kelly would
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not be able to garner the level of trust and confidence required between law enforcement and
dispatchers for an effective working relationship. Doc. 28 (F. Young Dep. at 85–89). F. Young
testified that after the background check was done, Ariss had contacted him and expressed that he
would be concerned if Kelly was a dispatcher, and F. Young “listened to what the Sheriff had to say”
because he cared about what the Sheriff had to say “[o]n that particular issue.” Id. at 82–85, 90. But
F. Young was not sure whether Ariss or HR had first brought Kelly’s background check issues to
his attention. Id. at 106–07.
Kelly testified that his cousin Heath Kilburn had heard from Commissioner Kilburn, Heath’s
first cousin, that Ariss and Warren Young (Commissioner Young’s brother) “were making things
difficult on [Kelly].” Doc. 21 (Kelly Dep. I at 282–89, 478–79). Kelly’s understanding was that “it
was the sheriff, Tom Ariss, who I had campaigned against in support of my cousin, Heath Kilburn,
who had run for sheriff, had made reference to me committing some type of act with a firearm” and
that Warren Young previously had some conversation with Commissioner Young that influenced
Young to desire that Kelly not receive a position. Id. Kelly acknowledged that his employment was
contingent on a satisfactory drug test and background check, id. at 473–74, but he believed that his
background check had no impact on the employment decision, id. at 480–81. Kelly testified that
South explained to him that the reason he was not hired “was because of a misdemeanor.” Doc. 22
(Kelly Dep. II at 193, 196).
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In the employment-discrimination context, this court has recognized that “when a plaintiff
challenges his termination as motivated by a supervisor’s discriminatory animus, he must offer
evidence of a ‘causal nexus’ between the ultimate decisionmaker’s decision to terminate the plaintiff
and the supervisor’s discriminatory animus.” Madden v. Chattanooga City Wide Serv. Dep’t, 549
F.3d 666, 677 (6th Cir. 2008). The causal nexus is lacking if the ultimate decision “was based on
an independent investigation” and the plaintiff “presented no evidence that the supervisor’s
discriminatory animus had influenced the decision.” Id. at 678. The plaintiff must show that “[b]y
relying on this discriminatory information flow, the ultimate decisionmakers acted as the conduit of
the supervisor’s prejudice—his cat’s paw.” Id. (internal quotation marks and alterations omitted);
see Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990). In this context, the fact that an
independent investigation was conducted may not be sufficient to break the causal chain if the
evidence supports that the bias-tainted information played an influential role. See Madden, 549 F.3d
at 677–79; Noble v. Brinker Int’l, Inc., 391 F.3d 715, 723 (6th Cir. 2004) (noting further that the
plaintiff “presented no evidence that [the tainted person’s] alleged opinions or attitudes influenced
[the ultimate] decision to terminate the plaintiff or otherwise caused the plaintiff’s discharge”), cert.
denied, 546 U.S. 821 (2005). “[M]ere knowledge” of another’s ill-perceptions of a plaintiff, and the
plainitiff’s “mere speculation” that the ill-perceptions must have been transmitted to the
decisionmaker in a way that contaminated the decisionmaker, is insufficient for a causal nexus. Id.
at 723–24.
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I agree that Kelly has failed to satisfy his burden to survive summary judgment for his first
claim related to his campaign activities. No Commissioner cited Kelly’s campaign activities, or the
Sheriff’s potential dislike for Kelly, as a reason not to hire Kelly permanently. But the record clearly
supports that a genuine issue of material fact exists regarding Hutzel’s statements related to Kelly’s
suit against Chief Duvelius. The majority fails to acknowledge that both Commissioner Kilburn and
Commissioner Young indicated that they considered Kelly’s past turbulent employment relationship
with the Hamilton Township Police Department. Doc. 24 (Kilburn Dep. at 24–25); Doc. 25 (D.
Young Dep. at 11–12). Although South did not indicate that she considered Kelly’s prior
relationship with the Hamilton Township Police Department, South stated that anything Hutzel may
have told her about the incident with Chief Duvelius she had already known from reading newspaper
reports, Doc. 23 (South Dep. at 12-13), which negates any causal connection between Hutzel’s
statements and South’s decision. But because the background-check documents, other than the
criminal-history report, were not included in the record on appeal (and did not seem to be before the
district court), the vague statements of Commissioners Kilburn and Young leave open the possibility
that they considered not only that Kelly had a negative relationship with the Hamilton Township
Police Department because he had quit and had an altercation with an officer, but also that Kelly had
previously sued the Hamilton Township Chief of Police. Neither Kilburn nor Young stated how they
acquired their knowledge of Kelly’s relationship with the Hamilton Township Police Department,
and a reasonable jury could infer that they learned of the information from South who conveyed that
Hutzel had highlighted this relationship. Doc. 23 (South Dep. at 37-38).
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Therefore, I would conclude that the district court erred in concluding that Kelly has not
presented a genuine issue of material fact and cannot prove his prima facie case of retaliation. I
dissent from Part II.A and would reverse the district court’s summary-judgment order and remand
for further proceedings.
II. FIRST AMENDMENT RETALIATION CLAIMS
AGAINST ARISS AND HUTZEL
I concur in the majority’s judgment in Part II.B upholding summary judgment in favor of
Ariss and Hutzel based on Fritz v. Charter Township of Comstock, 592 F.3d 718, 725–28 (6th Cir.
2010). I write separately to note that favorable precedents would support Kelly’s claim at the
summary-judgment stage if he had provided more information related to Hutzel’s potential direct
influence on Commissioners Kilburn and Young. See Harris v. Bornhorst, 513 F.3d 503, 518–20
(6th Cir.) (reversing summary judgment and holding adverse-action causation element satisfied by
Marine Corps’s testimony that prosecutor’s statement deterred the Corps from proceeding with
plaintiff’s employment application), cert. denied, 128 S. Ct. 2938 (2008); see also Paige v. Coyner,
— F.3d —, 2010 WL 2976052, at *6–9 (6th Cir. 2010) (reversing grant of motion to dismiss and
holding that plaintiff’s private employer’s specific reference to government officer’s allegations
against plaintiff in the private employer’s decision to fire plaintiff satisfied adverse-action causation
element in plaintiff’s action against the port authority and board of commissioners).
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Gregory Kelly v. Warren County Board of Comm'rs
Court: Court of Appeals for the Sixth Circuit
Date filed: 2010-09-14
Citations: 396 F. App'x 246
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