Dye v. Office of the Racing Comm'n

• Decision Date: 19 March 2013
• Docket Number: No. 11–1828.,11–1828.
• Citation: 702 F.3d 286
• Parties: Jeff DYE, Tammie Erskine, Patrick Hall, and Eric Perttunen, Plaintiffs–Appellants, v. OFFICE OF THE RACING COMMISSION; Christine White, individually and in her official capacity as Racing Commissioner; and Gary Post, individually and in his official capacity as Deputy Commissioner, Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

702 F.3d 286

Jeff DYE, Tammie Erskine, Patrick Hall, and Eric Perttunen, Plaintiffs–Appellants,

v.OFFICE OF THE RACING COMMISSION; Christine White, individually and in her official capacity as Racing Commissioner; and Gary Post, individually and in his official capacity as Deputy Commissioner, Defendants–Appellees.

No. 11–1828.

United States Court of Appeals,

Sixth Circuit.

Argued: Oct. 4, 2012.

Decided and Filed: Dec. 18, 2012.

Rehearing and Rehearing En Banc Denied March 19, 2013.

ARGUED:Lisa C. Ward, Okemos, Michigan, for Appellants. Jeanmarie Miller, Office of the Michigan Attorney General, Lansing, Michigan, for Appellees. ON BRIEF:Lisa C. Ward, Okemos, Michigan, for Appellants. Jeanmarie Miller, Margaret A. Nelson, Office of the Michigan Attorney General, Lansing, Michigan, for Appellees.

Before: MERRITT, MOORE, and McKEAGUE, Circuit Judges.

MOORE, J., delivered the opinion of the court, in which MERRITT, J., joined., and McKEAGUE, J., joined in part. McKEAGUE, J. (pp. 309–18), delivered a separate opinion concurring in part and dissenting in part.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Four racing stewards employed by the State of Michigan argue that their Democratic supervisors retaliated against them for voicing support for or being perceived as affiliated with the Republican candidate in the 2006 Michigan gubernatorial election. Although certain stewards openly endorsed this candidate in the workplace, others remained silent. Nonetheless, all allege that they were retaliated against on the basis of political speech and affiliation. These facts thus present us with an issue of first impression for our court: whether individuals claiming to have been retaliated against because of their political affiliation must show that they were actually affiliated with the political party or candidate at issue. We believe that they do not.

Plaintiffs–Appellants Jeff Dye, Tammie Erskine, Patrick Hall, and Eric Perttunen (collectively, “the stewards”) appeal the district court's grant of summary judgment in favor of Defendants–Appellees former Racing Commissioner Christine White and former Deputy Racing Commissioner Gary Post (collectively, “the defendants”). For the reasons stated below, we reverse the district court with respect to Dye's protected-speech and political-affiliation retaliation claims and part of the stewards' political-affiliation retaliation claims. We affirm the remainder of the district court's grant of summary judgment.

I. BACKGROUND

The Office of the Racing Commissioner (“ORC”) is a state government agency that regulates the Michigan horse-racing industry. The ORC hires racing stewards as independent contractors to perform regulatory, judging, and enforcement functions in conjunction with the three types of horse races that occur in Michigan: Harness, Thoroughbred, and Quarter Horse.

The plaintiffs in this case were appointed as racing stewards in the 1980s and 1990s. Patrick Hall was appointed on March 17, 1980, and currently works as a state steward for the Michigan Gaming Board. Jeff Dye was appointed on April 22, 1988, and was promoted to Administrative Liaison Steward in 1998. Dye was demoted to State Steward on December 31, 2006, and was terminated in June 2009. Eric Perttunen was appointed on March 22, 1994, and remains employed as a racing steward for the Michigan Gaming Board. Tammie Erskine was appointed on September 20, 1999, and was terminated on June 6, 2009.

The claims brought by the stewards require an understanding of the political context in Michigan and within the ORC during the 2005–2007 period. In 2005, when the alleged speech began, Democrat Jennifer Granholm was the Governor of Michigan. In January 2005, Granholm appointed White to serve as Racing Commissioner, and White was confirmed in October 2005 after a confirmation hearing before the state Senate. In the fall of 2006, Granholm was successful in her bid for reelection against Republican candidate Dick DeVos. White remained Racing Commissioner until July 2009.

Prior to being confirmed, White served as interim Racing Commissioner and was present in the agency on a daily basis leading up to the confirmation hearings. In July 2006, White hired Gary Post as a contract management consultant. When his assignment was complete in September 2006, White appointed him to the Deputy Racing Commissioner position, which he began on October 11, 2006.

After White's confirmation and Post's appointment, the defendants began making administrative changes to the stewards' job duties, timekeeping procedures, number of days worked, and travel reimbursements. In October or November of 2006, Post told Dye that White planned to eliminate the Administrative Liaison Steward position at the expiration of Dye's contract on December 31, 2006. Dye continued working as a racing steward until both he and Erskine were terminated in June 2009. The stewards argue that these actions were taken in retaliation for their being perceived as affiliated with the Republican Party and having engaged in protected speech during the 2006 gubernatorial election and confirmation process.

The plaintiffs filed a civil action in the U.S. District Court for the Eastern District of Michigan alleging a § 1983 First Amendment retaliation claim against the ORC; White, individually and in her official capacity as Racing Commissioner; and Post, individually and in his official capacity as Deputy Commissioner. The parties stipulated to dismiss with prejudice the claims against the ORC and White in her official capacity, and the district court granted in part and denied in part a dismissal motion with respect to the declaratory and injunctive relief claims against Post in his official capacity.

The remaining defendants brought a motion for summary judgment before the district court, arguing that the stewards could not provide evidence to sustain their burden. The district court granted the motion and entered judgment for the defendants. Additionally, in the order grantingsummary judgment, the district court dismissed all claims against Post in his official capacity as moot given that Post is no longer employed in any state capacity. Dye v. Office of Racing Comm'n, No. 09–13048, 2011 WL 2144485, at *1 (E.D.Mich. May 31, 2011).

II. PROTECTED FIRST AMENDMENT ACTIVITY

At issue in this appeal are claims of retaliation based on protected speech (“protected-speech retaliation”) and retaliation based on political affiliation (“political-affiliation retaliation”).¹ Protected-speech retaliation and political-affiliation retaliation are both governed by the First Amendment retaliation doctrine.²

A. Standard for First Amendment Retaliation Claims

We review de novo a district court's grant of summary judgment. Int'l Union v. Cummins, Inc., 434 F.3d 478, 483 (6th Cir.2006). We review the evidence and draw all inferences in the light most favorable to the stewards as the nonmoving parties. Id.

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 favorable to the plaintiff, no reasonable juror could fail to return a verdict for the defendant.” Id. Unlike in the McDonnell Douglas burden-shifting framework, the burden does not shift back to a plaintiff to show pretext in First Amendment retaliation claims.

B. Protected–Speech Retaliation Claim

The stewards appeal the district court's determination that Erskine, Hall, and Perttunen did not engage in protected speech. The district court concluded that Dye engaged in protected speech when he vocalized his support for gubernatorial candidate DeVos to Post and other employees in the office. Dye, 2011 WL 2144485, at *8. These discussions were accurately depicted as protected speech by the district court,³ and Dye's claim therefore prevails at this stage. We will now turn to the alleged protected speech of Erskine, Hall, and Perttunen.

In a protected-speech case, the court must first discern whether the speech is protected. In order to establish this element, the stewards must show that the speech touches on a matter of public concern. Scarbrough, 470 F.3d at 255. The Supreme Court has defined “public concern” as speech “relating to any matter of political, social, or other concern to the community.” Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983).

When speech does relate to a matter of public concern, the court must then apply the Pickering balancing test “to determine if the employee's free speech interests outweigh the efficiency interests of the government as an employer.” Scarbrough, 470 F.3d at 255 (internal quotation marks omitted) (relying on Pickering v. Bd. of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)). Considerations involved in this balancing test include “whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker's duties or...