Holsapple v. Cunningham

• Court: U.S. Court of Appeals — Sixth Circuit
• Writing for the Court: JOHN K. BUSH, Circuit Judge.
• Decision Date: 02 June 2020
• Docket Number: No. 19-1455,19-1455
• Citation: Holsapple v. Cunningham, No. 19-1455 (6th Cir. Jun 02, 2020)
• Parties: JASON HOLSAPPLE, Plaintiff-Appellant, v. TROY CUNNINGHAM, Defendant-Appellee

JASON HOLSAPPLE, Plaintiff-Appellant, v. TROY CUNNINGHAM, Defendant-Appellee

No. 19-1455

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

June 2, 2020

NOT RECOMMENDED FOR PUBLICATION

File Name: 20a0316n.06

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

Before: SUTTON, BUSH, and READLER, Circuit Judges.

JOHN K. BUSH, Circuit Judge. This litigation originates from an ongoing conflict involving Jason Holsapple, Troy Cunningham, and the Bay County Sheriff's Office, based in Bay City, Michigan. Referencing this negative history, Holsapple alleges that Cunningham retaliated against him in 2017 by not selecting him for one of nine road patrol deputy positions open at the time. Holsapple challenges Cunningham's hiring decision, alleging political-affiliation discrimination and free-speech retaliation in violation of the First Amendment; retaliation in violation of Michigan's Persons With Disabilities Civil Rights Act ("PWDCRA"); and defamation of character, false-light invasion of privacy, and breach of contract in violation of Michigan common law.

For the reasons explained below, we conclude that there are no genuinely disputed issues of material fact and that Holsapple's claims fail as a matter of law. We therefore AFFIRM summary judgment for Cunningham.

I.

Between 2011 and 2012, Holsapple was employed as a Bay County sheriff's deputy. In March 2012, his employment was terminated. Holsapple then filed sued against various Bay County officials, including Cunningham (then a lieutenant in the Bay County Police Department), in state court. Holsapple also brought an action in federal court (not the current suit) against Cunningham, Miller (then the Bay County sheriff), and the municipality of Bay County. Holsapple alleged he was terminated in retaliation for supporting Miller's political opponent, Bobby Lee, in Bay County's 2012 sheriff election. Cunningham maintains that he was not involved in Miller's decision to terminate Holsapple.

In February 2014, the district court in the first federal litigation held that a question of fact existed regarding whether Miller knew before Holsapple's termination that he had backed Lee in the election.¹ Holsapple v Miller, No. 13-11039, 2014 WL 525391, at *6 (E.D. Mich. Feb. 10, 2014). The court found that the temporal proximity between Miller's learning of Holsapple's protected activity and his decision to terminate Holsapple was sufficiently close to allow Holsapple's prima facie case for First Amendment retaliation to survive summary judgment. Id. The court also concluded there was a question of fact as to whether Miller would have made the same decision to terminate Holsapple absent his expressed political support for Lee. Id. at *7. Thecourt determined that the defendants had not eliminated the factual dispute with their assertions that Holsapple was terminated "only after the Sheriff received numerous complaints from [Holsapple's] co-workers for reasons such as his negative attitude and disparaging and insubordinate remarks concerning the workplace, fellow deputies, command offices, and the Sheriff and Bay County citizens." Id.

Holsapple's state court suit and first federal action were resolved through a settlement in May 2014. Relevant to the present appeal are three settlement provisions:

• First, the agreement contained a mutual-release-of-claims provision. It released the parties of any actions "arising out of [Holsapple's] employment and separation therefrom with the [Bay County Police Department], including but not limited to, any claim which [Holsapple] has asserted, now asserts, or could have asserted . . . which HOLSAPPLE has had or may have against DEFENDANTS, arising out of any and all claims that were raised or could have been raised in the Litigation." (Order Granting Defendant's Motion for Summary Judgment, RE 24, Page ID # 1074).

• Second, the agreement limited Holsapple's ability to seek any employment with Bay County, "including but not limited to the Sheriff's office, at any time prior to December 21, 2016." (Id.)

• Third, the agreement contained a non-disparagement clause, stipulating that the parties and their representatives would avoid "defaming or disparaging, either orally or in writing, the reputations, characters, or businesses of any of the other parties to the Litigation."² (Id.)

In early 2016, Miller announced that he would not seek re-election for Bay County sheriff. Thereafter, Cunningham (then the undersheriff) ran against Holsapple for the sheriff vacancy. Cunningham won the election.

During Sheriff Cunningham's first year in office (2017), the Bay County Sheriff's Office sought applicants for employment as road patrol deputies. Holsapple claims that he applied forone of those positions on three different occasions; however, he was never hired. According to Cunningham, he did not consider Holsapple to be a viable candidate for any of the open positions for several reasons:

• Cunningham asserted that during Holsapple's employment as a Bay County sheriff's deputy between 2011 and 2012, he had "a horrid attitude at our place, very negative, negative towards the other employees." (Deposition of T. Cunningham, RE 1702, Page ID 408, 411). For example, according to Cunningham, Holsapple would greet his coworkers in the locker room by saying "welcome to hell." (Id.)

• Cunningham also claimed that Holsapple "had no respect or didn't care at all for any of the command structure down [at the department], myself included. I know he didn't like me and was apparently waiting to say, 'fuck you' to me for not giving him a rifle or something. He thought a lot of the deputies were lazy, didn't think command did a good job. . . ." (Id.)

• According to Cunningham, the decision to terminate Holsapple in 2012 was a result of his negative behavior and its adverse impact on the morale of the Bay County Sheriff's Office. (Deposition of T. Cunningham, RE 17-2, Page ID # 414). Of any factor considered, Holsapple's previous termination was the most significant, according to Cunningham: "I don't think [Holsapple] . . . is a good police officer and should be working as a police officer." (Id. at 416-418, 422-23). He also believed that Holsapple lacked the requisite character traits of an officer, stating, "I think [Holsapple's] got a bad attitude . . . didn't work well. I don't think he's always truthful." (Id.).

In the wake of Cunningham's decision not to hire him, Holsapple filed a complaint in a second federal case (the one on appeal before us) on April 23, 2018, and amended it on May 17, 2018. On December 21, 2018, Cunningham moved for summary judgment on all of Holsapple's claims. On February 15, 2018, Judge Ludington granted the motion, finding no violation of either federal or state law by Cunningham and thus no need to reach the questions of Cunningham's qualified immunity or Bay County's municipal liability. Holsapple then filed a motion for reconsideration, which the court denied on March 22, 2019. On April 22, 2019, Holsapple filed this timely appeal.

II.

"We review de novo a district court's decision to grant a motion for summary judgment." Pierson v. Quad/Graphics Printing Corp., 749 F.3d 530, 535 (6th Cir. 2014) (citing Geiger v. Tower Auto., 579 F.3d 614, 620 (6th Cir.2009)). Summary judgment obtains if the moving party can "show [] that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Id. (citing Fed. R. Civil P. 56(a)) (alteration in original). In our review of the facts, all reasonable inferences must be drawn in the light most favorable to the non-moving party. Id. (citing Matsushita Elec. Indus. Co. v. Zenith Corp., 475 U.S. 574, 587 (1986). However, "if the non-moving party is unable to present sufficient evidence to permit a reasonable jury to find in her or his favor, the court should grant summary judgment in favor of the movant." Id. at 536 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

A. First Amendment Claims

Holsapple argues that Cunningham failed to hire him as a road patrol deputy in 2017 in retaliation for his exercising his First Amendment rights of political association (count I) and free speech (count II). Holsapple identifies the following conduct as constitutionally protected speech and activities:

• his support for Bobby Lee, Miller's opponent in the 2012 election;

• his candidacy against Cunningham for the vacant sheriff position in the 2016 election; and,

• his 2012 state court lawsuit, in which he alleged, among other things, that Cunningham had defamed him.³

To prevail on a civil rights claim pursuant to 42 U.S.C. § 1983, Holsapple must demonstrate (1) "a person acting under color of state law"; (2) "deprived [him] of a right secured by the Constitution or laws of the United States." Smoak v. Hall, 460 F.3d 768, 777 (6th Cir. 2006); see Waters v. City of Morristown, 242 F.3d 353, 358-59 (6th Cir. 2001). As acting sheriff of Bay County, Cunningham concedes the first element of this claim. However, he disputes Holsapple's contention that he violated the First Amendment by not hiring Holsapple as a road patrol deputy.

In evaluating Holsapple's free-speech retaliation claim, we address three questions. First, "[w]as the individual involved in 'constitutionally protected' activity—here activity protected by the free speech clause of the First Amendment?" Evans-Marshall v. Bd. of Educ. of Tipp City Exempted Vill. Sch. Dist., 624 F.3d 332, 337 (6th Cir. 2010) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). Second, "[w]ould the employer's conduct discourage individuals of 'ordinary firmness' from continuing to do what they were doing?" Id. (citing Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir.1998)); see Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982). And third, "[w]as the employee's exercise of constitutionally protected rights 'a motivating factor' behind the employer's conduct?" Id...