Denhof v. City of Grand Rapids

ALICE M. BATCHELDER.

I respectfully dissent from the majority’s conclusion that the district court erred in granting the judgment as a matter of law. Based on the entire record, part of which the majority relates in great detail, I. would find — as the district court found— that the plaintiffs failed to prove causation or pretext.

Because the Grand Rapids Police Department was a defendant in the state court gender discrimination and sexual harassment action- brought by certain Grand Rapids police officers, Police Chief Dolan was present for the hearing in that court on the plaintiffs’ motion for a preliminary injunction, and he personally observed Ms. Denhofs testimony in that case. As a result of what he heard and saw, as well as the trial court judge’s conclusions that Ms. Denhofs claims were simply not true, Chief Dolan was concerned that Ms. Denhof might not be fit for duty. He met with his command staff immediately after the court denied the injunction on December 3, 2001, and asked them to put together the documents and statements from officers on the force detailing Ms. Denhof s behavior during recent months. The record shows that Chief Dolan’s staff responded on December 5, 2001, and December 7, 2001. On December 13, Chief Dolan sent a letter to Dr. Peterson, detailing his concerns and forwarding the documentation .of Ms. Den-hofs recent behavior.

Dr. Peterson’s response included some very specific and worrisome concerns. Specifically, Dr. Peterson said:

*550Based on my reading of the incident on the firing range, it appears that she is extremely hostile, and may no longer be capable of following a simple command. I know Officer Whalen [the firing range instructor] to be a reasonable, calm and gentle person, totally committed to following policies and procedures.... His report on her behavior is not only credible, but alarming. Also alarming are the comments she has made in court while under oath. These are claims that will have to be evaluated by the judicial system. Apart from that, whether she can work in an environment where she believes her accusations are true is another serious issue, and should be evaluated clinically.... It appears to me that the question of her fitness for duty has been raised not only with her court testimony, but by her behavior on the range, and therefore that question needs to be addressed. I have no doubt that there are adequate reasons to refer her for a fitness-for-duty evaluation.

The referenced “incident on the firing range” had occurred only a few months earlier, on October 5, 2001, and had involved a series of overtly hostile and insubordinate responses by Ms. Denhof to the commands of the firing range instructor.

Chief Dolan’s letter to Dr. Peterson about Ms. LeClear, which was prompted principally by the report of Dr. Probes, included Ms. LeClear’s own responses on a questionnaire that is part of Dr. Probes’s report: “Someone is spying on me. Someone is persecuting me. Someone or a group is plotting to harm me. Someone has placed hidden microphones or cameras to spy on me. (This is true!) My telephone is taped or bugged. (Don’t know.)”

Dolan sent to Dr. Peterson not only the information from the plaintiffs’ files that caused him to seek expert advice on whether the plaintiffs should be evaluated as to their fitness for duty, but the favorable information from their files as well. The City eventually had both plaintiffs examined by another psychologist, Dr. Anthony Stone, who concluded that both of them were unfit for duty. Under these circumstances, I find that the plaintiffs failed to prove causation or pretext.

I do not find the relatively brief span of time between the plaintiffs’ testimony at the injunction hearing and Chief Dolan’s suspension of them to be sufficient to establish a causal connection between the two events. Similarly, I do not find Chief Dolan’s failure to suspend the plaintiffs sooner to demonstrate insincerity of his professed belief that the plaintiffs were not fit for duty. In my view, these two conclusions are wholly inconsistent. Although this circuit has held that temporal proximity may be evidence of a causal connection between an employee’s protected conduct and the employer’s allegedly retaliatory action, we have never held that temporal proximity alone is sufficient to prove causation. See, e.g., Nguyen v. Cleveland, 229 F.3d 559, 566 (6th Cir.2000) (“[T]emporal proximity alone will not support an inference of retaliatory discrimination when there is no other compelling evidence.”); Hatchett v. Health Care & Ret. Corp. of Am., 186 Fed.Appx. 543, 551 (6th Cir.2006) (“a plaintiff must provide some evidence beyond temporal proximity to demonstrate a retaliatory causal connection”). In DiCarlo v. Potter, 358 F.3d 408, 422 (6th Cir.2004), we held that temporal proximity may “constitute indirect evidence of causal connection so as to create an inference of retaliatory motive” for purposes of establishing a prima facie case, but we did not hold, and have never held — as the majority opinion does here — that temporal proximity is “sufficient to establish a causal connection.” In the present case, the only *551evidence of causation or pretext is temporal proximity, and that is insufficient.

Based on my reading of the record in this case, I would affirm district court’s order granting the defendants’ Rule 50(b) motion for the reasons given by the district court in that order.