Kuhn v. Washtenaw Cnty.

• Decision Date: 11 March 2013
• Docket Number: No. 12–1609.,12–1609.
• Citation: 709 F.3d 612
• Parties: Eric KUHN, Plaintiff–Appellant, v. WASHTENAW COUNTY and James Anuszkiewicz, Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

709 F.3d 612

Eric KUHN, Plaintiff–Appellant,

v.WASHTENAW COUNTY and James Anuszkiewicz, Defendants–Appellees.

No. 12–1609.

United States Court of Appeals, Sixth Circuit.

Argued: Jan. 23, 2013.

Decided and Filed: March 11, 2013.

ARGUED:John H. DeYampert, Jr., DeYampert Law Company PLLC, Westland, Michigan, for Appellant. Keith E. Eastland, Miller Johnson, Grand Rapids, Michigan, for Appellees. ON BRIEF:John H. DeYampert, Jr., DeYampert Law Company PLLC, Westland, Michigan, for Appellant. Keith E. Eastland, Thomas R. Wurst, Miller Johnson, Grand Rapids, Michigan, for Appellees.

Before: CLAY, GILMAN, and McKEAGUE, Circuit Judges.

OPINION

RONALD LEE GILMAN, Circuit Judge.

In October 2008, Deputy Eric Kuhn of the Washtenaw County Sheriff's Office stopped Marianne Joseph for a traffic violation. Joseph falsely reported that Kuhn had raped her in connection with the stop. An internal investigation that was opened to look into the rape allegation was not closed until January 2009. Several months after the investigation was closed, Kuhn requested medical leave based on stress. Kuhn eventually took approximately seven months of paid and unpaid leave that did not end until he was terminated in January 2010. He subsequently filed suit for wrongful termination against both his employer, Washtenaw County, and his superior, Lt. James Anuszkiewicz.

Against the County only, Kuhn asserted claims for termination without due process of law, violation of Michigan's Whistleblowers' Protection Act, Mich. Comp. Laws § 15.361 et seq., and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Kuhn asserted a claim against Lt. Anuszkiewicz only for tortious interference with a business expectancy. Against both the County and Lt. Anuszkiewicz, Kuhn asserted claims for racial discrimination in violation of 42 U.S.C. § 1981, for racial discrimination and harassment in violation of Title VII, and for racial discrimination and harassment in violation of Michigan's Elliott–Larsen Civil Rights Act, Mich. Comp. Laws § 37.2101 et seq.

The district court granted summary judgment in favor of both defendants on all claims, and Kuhn appeals. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

Kuhn stopped Joseph at approximately 3:00 a.m. on October 20, 2008 for erratic driving. Joseph attempted to flee, but backup officers apprehended her and placed Joseph in the back of Kuhn's squad car. While en route to the Washtenaw County Jail, Joseph threatened to report that Kuhn had raped her, saying that she would be believed because Joseph is white and Kuhn is black.

Joseph indeed reported to several officers at the Jail, including Sgt. Marlene Radzik, that Kuhn had raped her. Pursuant to Washtenaw County Sheriff's Office procedure, this type of complaint required an internal investigation:

The Washtenaw County Sheriff's Office will accept and investigate all complaints about the conduct of its employees from any citizen or agency employee. Following a thorough and impartial examination of the available factual information, it will be determined if improper employee conduct did in fact occur....

....

... Any allegation of improper or inappropriate conduct by an employee ..., regardless of its apparent validity, is a complaint or inquiry and will be recorded on the appropriate form(s)....

Sgt. Radzik contemporaneously concluded that the rape allegation was false, and she reported her conclusion to Lt. Anuszkiewicz. Lt. Anuszkiewicz initially directed Sgt. Radzik to contact the Michigan State Police, but because these events were transpiring in the middle of the night, Radzik could not reach any person at the local State Police post and decided against calling a random state trooper on the road. Later, Lt. Anuszkiewicz determined that there was no need to contact the State Police and instead directed Sgt. Radzik to take action against Joseph for filing a false police report. He also instructed Radzik to initiate a citizen's complaint against Kuhn as required by the Sheriff's Office Policy and Procedure.

A few days later, an internal complaint number was issued. Joseph in the meantime went to a local hospital reporting that she had been raped, and a rape kit was completed. Lt. Anuszkiewicz directed Judi Swidan, the Sheriff's Office property officer, to send the rape kit to the Michigan State Police crime lab for the criminal investigation of Joseph, but he contends that he did not instruct Swidan on how to fill out the associated paperwork. Kuhn, on the other hand, alleges that Lt. Anuszkiewicz instructed Swidan to list Kuhn as the suspected perpetrator of the alleged rape.

The results of the rape kit showed no seminal fluid. Lt. Anuszkiewicz then directed Sgt. Radzik to add the results of the rape kit to the internal investigation and to request that the state prosecutor charge Joseph with filing a false police report.

In December 2008, Kuhn informed Lt. Anuszkiewicz and Commander of Police Services Marilyn Hall–Beard that he was concerned about the rape allegation. Commander Hall–Beard mistakenly assured Kuhn that he was not under any internal investigation, but she later discovered that a citizen's complaint against Kuhn had in fact been initiated. She emailed Lt. Anuszkiewicz to ask why a citizen's complaint had been opened, and Lt. Anuszkiewicz explained that he had done so based on his understanding of departmental policy. Commander Hall–Beard replied that she did not believe that the policy required opening a citizen's complaint under the circumstances, but she acknowledged that Lt. Anuszkiewicz had done what he thought was proper. She also directed Lt. Anuszkiewicz and Sgt. Radzik to stop the investigation. They did not, however, immediately do so.

Dieter Heren assumed the position of Commander of Police Services on January 1, 2009, replacing Commander Hall–Beard. He promptly directed Lt. Anuszkiewicz and Sgt. Radzik to complete and close the internal investigation without further delay, which Sgt. Radzik did later in January. Due to an oversight, Commander Heren did not inform Kuhn that the internal investigation was closed until March 2009.

Later that March, Kuhn filed a complaint against Lt. Anuszkiewicz, alleging that the lieutenant had engaged in unprofessional behavior with respect to the internal investigation. The investigation of Kuhn's complaint was not completed until November 2009. In relevant part, the investigation determined that (1) although Lt. Anuszkiewicz had the proper authority to involve the State Police in the investigation against Kuhn, he did nothing wrong in ultimately deciding not to contact that organization; (2) Lt. Anuszkiewicz did not violate any departmental policy in failing to notify either Commander Hall–Beard or the police union of the citizen's complaint and internal investigation; and (3) Lt. Anuszkiewicz did not act with malice even if he did direct that Kuhn be listed as a suspect on the paperwork for the rape kit. But the investigation concluded that Lt. Anuszkiewicz had acted improperly in disobeying Commander HallBeard's directive to promptly close the internal investigation.

Kuhn began treatment in February 2009 for the stress that he was experiencing as a result of the investigation. In May 2009, two months after he was informed that the investigation against him had been closed, he requested leave under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., which he took until his FMLA leave expired in late August 2009. Kuhn then requested discretionary leave, which was granted on an unpaid basis until the investigation of his complaint against Lt. Anuszkiewicz was completed in November 2009.

In July 2009, Kuhn sent an email to his union president that expressed frustration with the lack of information from the Sheriff's Office about his complaint against Lt. Anuszkiewicz. He also stated that he was “aware of several incidents involving other deputies who were ignored, mistreated, unfairly targeted and denied advancement because they spoke up about misconduct.” But Kuhn did not refer to any specific incident.

In August 2009, Kuhn sent substantially the same email to County Administrator Bob Guenzel and copied several other individuals, including Sheriff Jerry Clayton, Undersheriff Mark Ptaszek, Commander Heren, Kuhn's union representative, and the union president. In this email, Kuhn requested a meeting with Guenzel to discuss his pending complaint against Lt. Anuszkiewicz. Guenzel forwarded this email to the County's Risk Manager, Judy Kramer, and to the Director of Labor Relations, Diane Heidt. Kramer then arranged a meeting between herself, Heidt, Kuhn, and Undersheriff Ptaszek in September 2009. During this meeting, which was secretly recorded by Kuhn and later transcribed, Undersheriff Ptaszek explained that the Sheriff's Office wanted Kuhn to return to work. Heidt added that a medical release was required before Kuhn could resume his duties. Kuhn was also informed that they took his allegations of deputy mistreatment seriously and wanted to investigate Kuhn's claims, but Kuhn refused to give specific information about the allegations.

At Kuhn's request, Kramer sent Kuhn an email in October 2009 regarding his rights under Michigan's Whistleblowers' Protection Act and a copy of the Act. She also requested that Kuhn meet with her again to continue their discussion about deputy mistreatment. Kuhn replied: “I will follow up with you when I receive a disposition for my complaint against Lt. Anuszkiewicz.”

In November 2009, Undersheriff Ptaszek emailed Kuhn to inform him that the investigation of Lt. Anuszkiewicz was complete and to arrange for Kuhn's return to work. Kuhn responded with a doctor's note stating that he could not return to work until January 3, 2010. Undersheriff Ptaszek then extended Kuhn's discretionary leave to that date, but he cautioned that “doing so is extraordinary. I...