Eric Kuhn v. Washtenaw County , 709 F.3d 612 ( 2013 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0062p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
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ERIC KUHN,
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Plaintiff-Appellant,
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No. 12-1609
v.
,
>
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WASHTENAW COUNTY and JAMES
Defendants-Appellees. N-
ANUSZKIEWICZ,
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:10-cv-11191—Denise Page Hood, District Judge.
Argued: January 23, 2013
Decided and Filed: March 11, 2013
Before: CLAY, GILMAN, and McKEAGUE, Circuit Judges.
_________________
COUNSEL
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.
_________________
OPINION
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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
1
No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 2
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
No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 3
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 Swiden 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
No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 4
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 Hall-
Beard’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
No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 5
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
No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 6
January 3, 2010. Undersheriff Ptaszek then extended Kuhn’s discretionary leave to that
date, but he cautioned that “doing so is extraordinary. I do not envision extending it any
further.” He reiterated that the Sheriff’s Office wanted to investigate Kuhn’s allegations
of deputy mistreatment and wanted Kuhn to return to work.
Kuhn nevertheless requested another extension of his discretionary leave on
December 11, 2009. On December 30, 2009, Undersheriff Ptaszek emailed Kuhn to
advise him that, due to “economic and operational conditions” faced by the County and
the Sheriff’s Office, the Sheriff’s Office could “no longer continue a discretionary
unpaid leave of absence.” Ptaszek cited a “void in public service” caused by Kuhn’s
absence and the fact that “as a result of contract revisions with Ypsilanti Township, the
Sheriff’s Office must eliminate seven (7) deputy positions.” For these reasons, Ptaszek
stated that the Sheriff’s Office was “unable to grant the further discretionary unpaid
leave of absence” that Kuhn had requested. The message concluded by informing Kuhn
that his “employment with the Washtenaw County Sheriff’s Office will terminate
effective Monday January 4th, 2010.”
Kuhn forwarded this message to his union representative, who “strongly
encourage[d]” that “if . . . at all possible . . . [Kuhn] return to work on January 3rd,
2010.” Kuhn did not do so. Instead, his attorney sent a letter to the Sheriff’s Office on
January 4, 2010, stating that “Kuhn will not be reporting to duty.”
II. ANALYSIS
A. Standard of review
We review de novo a district court’s grant of summary judgment. Huckaby v.
Priest, 636 F.3d 211, 216 (6th Cir. 2011). Summary judgment is proper where “there
is no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). In considering a motion for summary judgment,
the district court must construe the evidence and draw all reasonable inferences in favor
of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986). The central issue is “whether the evidence presents a sufficient
No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 7
disagreement to require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52
(1986).
B. Kuhn was afforded all the process that he was due
Kuhn alleges a procedural due process claim under the Due Process Clause of the
U.S. Constitution and 42 U.S.C. § 1983. He argues that the County unlawfully denied
him a hearing before terminating his employment as a deputy. The County, in response,
contends that the availability of post-deprivation remedies allows the pretermination
process to be less formal and that Kuhn was given all the pretermination process that he
was due.
To prevail on this claim, Kuhn must first establish that he had a protectable
property interest in his position as a law enforcement officer. See Miller v. Admin.
Office of the Courts, 448 F.3d 887, 895 (6th Cir. 2006) (noting that the first step in
analyzing a procedural due process claim “is to determine whether [a plaintiff] had an
interest that was protected by the Due Process Clause”). There is no dispute that Kuhn
had a protectable property interest in his job.
The second step of the analysis is to determine whether Kuhn was “afforded the
procedures to which government employees with a property interest in their jobs are
ordinarily entitled.” See id. (internal quotation marks omitted). The Supreme Court has
explained that the deprivation of a property interest must be preceded by notice and an
opportunity to be heard. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542
(1985). Sufficient pretermination process “need only include oral or written notice of
the charges, an explanation of the employer’s evidence, and an opportunity for the
employee to tell his side of the story.” Gilbert v. Homar, 520 U.S. 924, 929 (1997).
Such a procedure serves as an “initial check against mistaken decisions.” Loudermill,
470 U.S. at 545.
No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 8
1. Kuhn had sufficient notice of his impending termination
Kuhn first argues that he did not have notice of his termination. He contends that
the December 30, 2009 email terminated his employment immediately rather than
notified him of his impending termination. But the district court found that the
December 30th email did not immediately terminate Kuhn’s employment; instead, the
email stated that the termination was effective January 4, 2010. Kuhn v. Washtenaw
Cnty., No 10-11191, 2012 WL 1229890, at *5 (E.D. Mich. Apr. 12, 2012).
We find no error in that determination. Undersheriff Ptaszek’s email explained
that Kuhn had requested and been granted two periods of discretionary leave, extending
through January 3, 2010. The email further noted that Kuhn had requested a third period
of discretionary leave, which he had previously been informed was not likely to be
granted. Finally, the email stated that the County was declining to grant further
discretionary leave and, therefore, that Kuhn’s employment would terminate effective
January 4, 2010. Rather than immediately terminating Kuhn’s employment, this email
simply informed him that his employment would terminate at the end of his previously
approved discretionary leave. Kuhn appeared to be aware that he could have chosen to
return to work, as evidenced by his union representative’s email advising him to return
to work if possible by January 3 and by his attorney’s letter informing the Sheriff’s
Office that Kuhn would not be reporting for duty on January 4.
The termination notice set forth in the December 2009 email should therefore
have been no surprise to Kuhn. And this court has previously held that a plaintiff is
deemed to have received sufficient notice when he has “at least the sense of the charges
against him.” Guarino v. Brookfield Twp. Trs., 980 F.2d 399, 409 (6th Cir. 1992).
Together, the November and December emails gave Kuhn adequate notice that his
employment would be terminated on January 4, 2010 if he did not return to work prior
to that date.
Kuhn further argues that the reasons for his termination as cited in the December
30, 2009 email were pretextual. He bases this contention on Undersheriff Ptaszek’s
deposition testimony that the reference to the Ypsilanti Township deputy positions in the
No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 9
email “is just a general explanation of the condition of the organization at the time. The
Ypsilanti Township deputies per se didn’t have anything to do with [Kuhn’s
termination].” Kuhn construes this testimony as establishing that the elimination of the
deputy positions could not be the reason that he was terminated because no other
deputies were fired.
This argument is unavailing. Kuhn’s employment was not terminated as a result
of contract negotiations with Ypsilanti Township, nor does the email imply that this was
the case. Indeed, as Ptaszek explicitly stated elsewhere in his deposition, Kuhn was not
fired because of “a shortage of funds or budget cuts within the Sheriff’s Office as a result
of the elimination of the Ypsilanti Township deputy positions.” Rather, Ptaszek testified
that Kuhn’s discharge was necessary because he had “used up all his vacation time,
comp time and sick time. He used up his entire FMLA leave. . . . [He] had extended all
his benefits, plus he had been given additional time by the Sheriff’s Office and wasn’t
able to return to work, so I had to terminate him.” Ptaszek further testified that “[a]t
some point, you reach a point where the organization can no longer not have a person
coming to work.” He elaborated that the “economic and operational conditions”
language in the December 30th email referred to the fact that “[e]very time an employee
doesn’t come into work, somebody does that job for them. So there is a cost in either
redistribution of manpower [or] overtime.”
In short, Kuhn’s absence was causing problems for the Sheriff’s Office’s payroll
and human resources. The email accurately reflects these reasons for termination: the
Sheriff’s Office could no longer allow Kuhn’s “discretionary unpaid leave of absence”
because his absence was creating a “void in public service” that required either overtime
pay for or reassignment of deputies to cover Kuhn’s shifts.
In any event, if Kuhn wished to argue that the reasons cited in the December 30,
2009 email were pretextual, the opportunity to do so was at a post-termination
proceeding. See Duchesne v. Williams, 849 F.2d 1004, 1008 (6th Cir. 1988) (“The full,
post-termination, adversary, trial-type hearing will serve to ferret out bias, pretext,
deception and corruption in discharging the employee. The adversary processes
No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 10
employed in an adjudicatory, post-termination hearing controlled by an impartial judge
lend themselves to proving wrongful conduct by the employer.”). We conclude that the
pretermination notice of Kuhn’s discharge was constitutionally adequate.
2. The County’s explanation for the discharge
Kuhn further argues that he was not given a sufficient explanation for why he
was terminated. His argument rests on the contention that the reasons given for his
termination were pretextual. But as discussed above in Part II.B.1., there is no evidence
that Kuhn was discharged for any reason other than the fact that he had exhausted his
leave, that his absence was causing a staffing shortage at the Sheriff’s Office, that the
County elected not to continue his discretionary leave, and that he did not return to work.
“[P]olice departments, as a matter of public policy, need to ensure that officers show up
for work or are accounted for so an adequate force is available to maintain public
safety.” Hudson v. City of Chicago, 374 F.3d 554, 562 (7th Cir. 2004). The email from
Undersheriff Ptaszek adequately explained these reasons.
3. Kuhn had several days in which to respond
Kuhn makes a passing reference to the fact that he received the notice of his
termination “over the Christmas-New Years’ holiday season.” But he offers no evidence
or argument as to why he was unable to respond over the holidays, nor has he presented
any evidence or argument that he attempted to respond before the January 4th deadline
but was unable to do so.
Between December 30th, 2009 and January 4th, 2010, Kuhn could easily have
contacted the Sheriff’s Office and explained why he sought further administrative leave
or thought that the impending termination was erroneous. “The employee, being
confronted with the charges against him or her and being offered the chance to give a
version of the incident, is responsible for the choice to not offer any competing
evidence.” Buckner v. City of Highland Park, 901 F.2d 491, 495 (6th Cir. 1990). That
Kuhn in fact consulted with both his union representative and his attorney prior to
No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 11
January 4th bolsters the conclusion that he could have timely responded to Undersheriff
Ptaszek’s pretermination notice if he had wanted to.
4. Additional pretermination arguments
Kuhn raises two additional arguments with respect to the pretermination process.
First, in his reply brief only, he argues that the December 30th email violated Article
18.1 of the Collective Bargaining Agreement (CBA) under which he was covered.
Article 18.1 provides as follows:
Prior to any discipline or discharge of a bargaining unit member the
employee will be provided a written notice of charges which shall
contain the specific sections of rules and regulations and/or appropriate
law or ordinance which the member is alleged to have violated. The
notice of charges will be served on the employee at least ten (10)
business days prior to any disciplinary action being taken.
The entirety of his argument consists of the conclusory statement that the December 30th
email “violated the spirit” of the CBA.
This court does not usually consider issues raised for the first time on appeal in
a reply brief, whether or not they were previously raised in the district court. Osborne
v. Hartford Life & Accident Ins. Co., 465 F.3d 296, 301 (6th Cir. 2006). But even if we
assume arguendo that the issue is not waived, the section of the CBA that Kuhn cites has
no apparent application to instances of exhausted leave. Instead, Article 21.1 of the
CBA appears to be the relevant section, providing that “[a]ny employee desiring a leave
of absence from his employment shall secure written permission from the Sheriff or
Undersheriff. The maximum leave of absence shall be for thirty (30) days and may be
extended for like periods. Permission for extension must be secured from the Sheriff or
Undersheriff.” (Emphasis added.)
Article 21.1 indicates that administrative leave is discretionary and that
extensions may be denied, which is what happened in this case. In contrast, Article 18.1
deals with discipline or discharge stemming from a violation of departmental rules or
applicable laws. Given that the CBA argument is purely a breach-of-contract claim,
No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 12
Kuhn has not shown that the provision he cites actually applies to him. Kuhn’s counsel,
moreover, informed us at oral argument that Kuhn was not bringing any claims based
on the CBA.
Second, Kuhn argues that his “administrative leave was based upon the stress of
investigation,” which he contends raises a genuine dispute of material fact as to whether
he received sufficient process. This argument is misplaced. The procedural-due-process
inquiry asks whether Kuhn had constitutionally adequate notice of his termination and
an opportunity to respond. The reason for Kuhn’s leave and ultimate termination is not
a consideration relevant to this issue.
5. Post-termination process was available to Kuhn
“Where there is a system of post-termination procedures available to the
employee . . . coupled with a pretermination ‘right of reply’ hearing,” the due process
inquiry is satisfied. Farhat v. Jopke, 370 F.3d 580, 596 (6th Cir. 2004). This court has
held that “it is the opportunity for a post-deprivation hearing before a neutral
decisionmaker that is required for due process.” Id. (emphasis in original).
The district court concluded that Kuhn had the opportunity for post-deprivation
process because his union could have pursued arbitration, or he could have pursued his
own grievance without intervention from the union. Kuhn does not challenge this ruling
on appeal except for the conclusory statement that “the lower court’s treatment of post-
termination procedure does not address the core issue of pre-termination due process.”
Because the opportunity for a post-deprivation hearing like the one available here
“allows for an even less formal pre-termination hearing,” Guarino v. Brookfield Twp.
Trs., 980 F.2d 399, 409 (6th Cir. 1992), we find no fault with the district court’s
conclusion that the availability of post-termination procedures permitted the informal
pretermination process that Kuhn received.
No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 13
C. Kuhn cannot establish a prima facie case of race discrimination because an
internal investigation is not an adverse employment action
1. Burden-shifting standard
All of Kuhn’s discrimination claims are subject to the same burden-shifting
standard. See Amini v. Oberlin Coll., 440 F.3d 350, 358 (6th Cir. 2006) (discussing the
burden-shifting framework for Section 1981 claims); Kitchen v. Chippewa Valley Schs.,
825 F.2d 1004, 1011-12 (6th Cir. 1987) (discussing the same burden-shifting framework
for Title VII and Michigan civil-rights claims). Neither party disputes the applicability
of this standard. See Kuhn v. Washtenaw Cnty., No. 10-11191, 2012 WL 1229890, at
*6 n.3 (E.D. Mich. Apr. 12, 2012).
In order to prevail on the basis of race discrimination, Kuhn was required to
produce either direct or circumstantial evidence of disparate treatment. See DiCarlo v.
Potter, 358 F.3d 408, 414 (6th Cir. 2004). Direct evidence is proof that, if believed,
compels “the conclusion that unlawful discrimination was at least a motivating factor in
the employer’s actions.” Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp.,
176 F.3d 921, 926 (6th Cir. 1999). Kuhn offered no direct evidence of disparate
treatment.
In the absence of direct evidence of discrimination, this court analyzes disparate-
treatment claims under the burden-shifting analysis set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). A plaintiff claiming race-based discrimination
supported only by circumstantial evidence must demonstrate that he (1) is a member of
a protected class, (2) was qualified for the job at issue, (3) was subjected to an adverse
employment action, and (4) was treated differently than a similarly situated nonprotected
person. See id. at 802.
Once a plaintiff establishes a prima facie case, “the burden of production of
evidence shifts to the employer to articulate some legitimate, nondiscriminatory reason
for its actions.” Hunter v. Sec’y of U.S. Army, 565 F.3d 986, 996 (6th Cir. 2009)
(internal quotation marks omitted). The burden then shifts back to the plaintiff to
No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 14
demonstrate “that the proffered reason was not the true reason for the employment
decision,” id. (internal quotation marks omitted), but was instead a pretext designed to
mask unlawful discrimination, White v. Baxter Healthcare Corp., 533 F.3d 381, 391-92
(6th Cir. 2008).
2. Kuhn’s race-based termination claims are waived
In his opening brief, Kuhn focuses solely on the internal investigation as
constituting an adverse employment action. The County in its responsive brief countered
Kuhn’s arguments, and then went further to address the race-based termination argument
that Kuhn could have made. Kuhn contends in his reply brief that he argued in the
district court that his termination was based on race.
This court has consistently held that arguments not raised in a party’s opening
brief, as well as arguments adverted to in only a perfunctory manner, are waived.
Caudill v. Hollan, 431 F.3d 900, 915 n.13 (6th Cir. 2005) (citing recent decisions that
stand for these two related propositions). In Kuhn’s opening brief, his sole contention
regarding his termination is that he “lost pay and his job on account of the investigation.”
The remaining pages of his brief devoted to his race-discrimination claims address only
the internal investigation. We therefore decline to address any discrimination claims
with respect to Kuhn’s termination. See Dillery v. City of Sandusky, 398 F.3d 562, 569
(6th Cir. 2005) (declaring an argument waived where the plaintiff had “wholly fail[ed]
to address th[e] issue in her appellate brief”). By failing to raise any specific challenges
to the district court’s decision regarding his termination, Kuhn has waived those
challenges. See id.
3. Failure to establish a prima facie case of race discrimination
Kuhn’s primary argument is that the internal investigation into the rape allegation
constituted an adverse employment action. The district court, however, held that “[t]he
act of investigating possible employee misconduct is not an adverse [employment]
action.” Kuhn, 2012 WL 1229890, at *7. “An adverse employment action in the context
of a Title VII discrimination claim is a materially adverse change in the terms or
No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 15
conditions of employment because of the employer’s actions.” Michael v. Caterpillar
Fin. Servs. Corp., 496 F.3d 584, 593 (6th Cir. 2007) (internal quotation marks omitted).
Materially adverse changes in the terms and conditions of employment include “a
termination of employment, a demotion evidenced by a decrease in wage or salary, a less
distinguished title, a material loss of benefits, significantly diminished material
responsibilities, or other indices that might be unique to a particular situation.” Id. at
594 (internal quotation marks omitted).
Kuhn responds by citing Peltier v. United States, 388 F.3d 984 (6th Cir. 2004),
for the proposition that an internal investigation may be an adverse employment action
if it is done in “bad faith.” Peltier was an employee of the U.S. Department of Justice’s
Bureau of Alcohol, Tobacco and Firearms. She was the focus of an internal
investigation when the agency believed that she had “tipped off” a suspect that the
suspect’s residence would be searched. Peltier was placed on paid administrative leave
pending the outcome of the investigation. The agency ultimately determined that Peltier
was innocent of wrongdoing, closed the investigation, reinstated Peltier, and instructed
her to return to work. But Peltier, due to stress and depression allegedly suffered as a
result of the investigation, refused to return to work. The agency subsequently
terminated her employment.
Reasoning that Peltier was placed on paid administrative leave, was exonerated,
and was allowed to return to work, the district court concluded that Peltier did not suffer
an adverse employment action. Id. at 988. This court agreed, citing its previous holding
that “a suspension with pay and full benefits pending a timely investigation into
suspected wrongdoing is not an adverse employment action.” Id. (citing cases)
(emphasis in original). A subsequent unpublished decision of this court reiterated this
principle in a slightly different manner, stating that “neither an internal investigation into
suspected wrongdoing by an employee nor that employee’s placement on paid
administrative leave pending the outcome of such an investigation constitutes an adverse
employment action.” Dendinger v. Ohio, 207 F. App’x 521, 527 (6th Cir. 2006)
(holding that an employer’s internal investigation of an employee and its failure to notify
No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 16
the employee of the investigation until after it had been completed did not constitute an
adverse employment action).
Kuhn argues that Peltier stands for the proposition that an internal investigation
is not an adverse employment action only if there is (1) suspension or paid leave with
benefits, (2) a timely investigation, and (3) a good-faith basis for suspecting employee
wrongdoing. But nothing in Peltier requires that a plaintiff be placed on leave pending
the outcome of an investigation before we may conclude that the investigation was not
an adverse employment action. We therefore decline to adopt Kuhn’s argument on that
point.
In the present case, Kuhn was never placed on leave, so he challenges only the
investigation itself. But he has not shown that the investigation, during the time it was
open, changed the form or conditions of his employment, let alone effected any change
in a “materially adverse” way. He suffered no disciplinary action, demotion, or change
in job responsibilities during the course of the investigation.
In addition, Kuhn does not cite, and we cannot locate, any cases that impose a
good-faith requirement on the employer regarding internal investigations. Such an
inquiry into the employer’s subjective motive would be contrary to the objective analysis
of whether an employment action is adverse. In any event, there is no evidence of bad
faith in the present case because, under department policy,“[a]ny allegation of improper
or inappropriate conduct by an employee . . . , regardless of its apparent validity, is a
complaint or inquiry.” (Emphasis added.) We thus find no error in the district court’s
conclusion that Kuhn failed to make out a prima facie case of race discrimination.
D. Kuhn’s EEOC charge does not allege a hostile-work-environment claim
The Equal Employment Opportunity Commission (EEOC) charge reads as
follows:
On May 30, 2008, I went on a medical leave. My medical leave
was necessitated by discrimination occurring on the job. I filed a charge
of discrimination against a Lieutenant in March 2009, and in October
2009, went to the County Administrator with my complaint. On January
No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 17
4, 2010 I was discharged. The reason given was economic conditions.
They stated several Deputies were cut. I am aware of at least two (2)
white Deputies who were off work for longer periods of time than me,
who were not fired.
I believe I have been discriminated against by being discharged,
based on my race, black, my disability, and in retaliation for complaining
of discrimination, in violation of Title VII of the Civil Rights Act of
1964, as amended, and the Americans with Disabilities Act of 1990, as
amended.
Kuhn failed to check the box for “continuing action” and, in response to the prompt
“Date(s) discrimination took place,” Kuhn listed only January 4, 2010—the date of his
termination. The district court held that Kuhn’s EEOC charge failed to put the EEOC
on notice of a hostile-work-environment claim because he alleged only distinct instances
of discrimination. Kuhn, 2012 WL 1229890, at *8.
On appeal, Kuhn argues that his hostile-work-environment claim was properly
exhausted at the administrative level because it could reasonably be expected to grow
out of the EEOC charge. The County responds by pointing out that this argument was
never presented to the district court and is therefore waived. In addition, the County
argues that Kuhn never presented any specific incidents of racially motivated
harassment.
Title VII protection extends to a plaintiff who shows that his or her workplace
“is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently
severe or pervasive as to alter the conditions of the victim’s employment and create an
abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)
(citation and internal quotation marks omitted). “As a general rule,” however, “a Title
VII plaintiff cannot bring claims in a lawsuit that were not included in his EEOC
charge.” Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 361 (6th Cir. 2010).
Furthermore, inclusion in an EEOC charge of discrete acts of discrimination to support
a claim of disparate treatment cannot, standing alone, support “a subsequent, uncharged
claim of hostile work environment unless the allegations in the complaint can be
No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 18
reasonably inferred from the facts alleged in the claim.” Id. at 362 (internal quotation
marks omitted).
Kuhn’s complaint alleges that he was subjected to a hostile work environment
based on (1) being assigned from 2005 to 2006 to Salem Township; (2) “experiencing”
in 2006 the fact that African-American deputies, but not white deputies, were assigned
to a locale where an African-American “suspect” had died; and (3) being subjected to
an internal investigation by Lt. Anuszkiewicz. These allegations exceed the scope of the
EEOC charge, which cites only discrete acts of alleged discrimination that occurred after
Kuhn had taken medical leave.
And even if the allegations in the complaint could be reasonably inferred from
the allegations in the charge, they fail to state a prima facie case for a hostile-work-
environment claim. To establish such a prima facie case, Kuhn must show that (1) he
was a member of a protected class; (2) he was subject to unwelcomed harassment;
(3) the harassment was race-based; (4) the harassment unreasonably interfered with his
work performance by creating an environment that was intimidating, hostile, or
offensive; and (5) the County was liable for the harassing conduct. See Clay v. United
Parcel Serv., Inc., 501 F.3d 695, 706 (6th Cir. 2007). The investigation in the present
case was a one-time occurrence required by department policy. This is a far cry from
the “severe or pervasive” standard articulated in Harris, 510 U.S. at 21. “A recurring
point in the Supreme Court’s opinions is that . . . isolated incidents (unless extremely
serious) will not amount to discriminatory changes in the terms and conditions of
employment and that conduct must be extreme to amount to a change in the terms and
conditions of employment.” Hafford v. Seidner, 183 F.3d 506, 512-13 (6th Cir. 1999)
(internal quotation marks omitted). We therefore find no error in the district court’s
dismissal of Kuhn’s hostile-work-environment claim.
E. Kuhn failed to establish a causal connection for purposes of his retaliation
claim between his engaging in protected activity and being terminated
Kuhn next asserts claims under both Title VII and Michigan’s Elliott-Larsen
Civil Rights Act (ELCRA) for retaliation. The analysis is the same under either act.
No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 19
Wasek v. Arrow Energy Servs., Inc., 682 F.3d 463, 472 (6th Cir. 2012) (“[T]he ELCRA
analysis [for retaliation claims] is identical to the Title VII analysis.”). In order to
establish a prima facie case of retaliation, Kuhn was required to show that (1) he
engaged in protected activity, (2) the County knew that Kuhn had exercised his civil
rights, (3) the County took an adverse employment action against Kuhn, and (4) there
was a causal connection between Kuhn’s protected activity and the adverse employment
action. See Morris v. Oldham Cnty. Fiscal Court, 201 F.3d 784, 792 (6th Cir. 2000).
The district court assumed for purposes of analysis that Kuhn’s August 2009
letter to County Administrator Guenzel and his September 2009 meeting with various
County employees constituted protected activity. Kuhn, 2012 WL 1229890, at *9. Even
with this assumption, however, the court held that Kuhn had not offered any evidence
tending to show a causal connection between the protected activity and his termination.
Id.On appeal, Kuhn argues that “the timing and pretext surrounding [his]
termination provide a genuine fact dispute on the issue of causation.” He further
contends that there is a causal relationship because the “County administrators’ failed
efforts” to speak with Kuhn about his allegations of deputy mistreatment could be
viewed “as part and parcel of Kuhn’s subsequent termination.” The County correctly
points out, however, that Kuhn failed to support these contentions with any evidence.
As did the district court, we will assume for purposes of analysis that Kuhn
engaged in protected activity. If his August 2009 letter and the September 2009 meeting
were protected activities, then the County indisputably knew about them. Equally
irrefutable is the fact that the termination of his employment was an adverse employment
action. But Kuhn has provided no evidence to establish any link between the protected
activity and his termination several months later. The relatively short amount of time
elapsed does not, by itself, imply causation. See Tuttle v. Metro. Gov’t of Nashville,
474 F.3d 307, 321 (6th Cir. 2007) (“The law is clear that temporal proximity, standing
alone, is insufficient to establish a causal connection for a retaliation claim.”).
No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 20
Moreover, the events that transpired in this case do not support an inference of
retaliation based on temporal proximity. This court has previously held that “an
intervening legitimate reason” to take an adverse employment action “dispels an
inference of retaliation based on temporal proximity.” Wasek, 682 F.3d at 472 (holding
that an oil rig worker who had complained about sexual harassment to his superiors, but
who subsequently left his worksite without authorization, had engaged in an intervening
event that gave his employer a legitimate reason to discipline him). Here, Kuhn’s
extended discretionary leave and his failure to return to work caused a shortage of
available deputies in the Sheriff’s Office and constituted an intervening reason for the
County to terminate his employment. Furthermore, Kuhn failed to provide any evidence
aside from temporal proximity that links his protected activity to his termination. We
therefore find no error in the district court’s dismissal of Kuhn’s retaliation claim.
F. Kuhn cannot establish a claim under Michigan’s Whistleblowers’ Protection
Act
Section 2 of Michigan’s Whistleblowers’ Protection Act (WPA) provides as
follows:
An employer shall not discharge, threaten, or otherwise discriminate
against an employee regarding the employee’s compensation, terms,
conditions, location, or privileges of employment because the employee,
or a person acting on behalf of the employee, reports or is about to report,
verbally or in writing, a violation or a suspected violation of a law or
regulation or rule promulgated pursuant to law of this state, a political
subdivision of this state, or the United States to a public body, unless the
employee knows that the report is false, or because an employee is
requested by a public body to participate in an investigation, hearing, or
inquiry held by that public body, or a court action.
Mich. Comp. Laws § 15.362. A “public body” includes “[a]ny . . . body which is created
by state or local authority or which is primarily funded by or through state or local
authority, or any member or employee of that body.” Id. § 15.361(d)(iv).
To establish a prima facie case under the WPA, Kuhn was required to show that
(1) he engaged in protected activity as defined by the WPA, (2) he was discharged, and
No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 21
(3) a causal connection existed between the protected activity and the discharge.
See Shallal v. Catholic Soc. Servs. of Wayne Cnty., 566 N.W.2d 571, 574 (Mich. 1997).
The WPA contemplates three types of protected activity: “(1) reporting to a public body
a violation of a law, regulation, or rule; (2) being about to report such a violation to a
public body; or (3) being asked by a public body to participate in an investigation.”
Chandler v. Dowell Schlumberger Inc., 572 N.W.2d 210, 212 (Mich. 1998). Kuhn also
had to show that the County received “objective notice of [his] report or a threat to
report.” Roberson v. Occupational Health Ctrs. of Am., Inc., 559 N.W.2d 86, 88 (Mich
Ct. App. 1996) (internal quotation marks omitted).
If Kuhn had been deemed successful in establishing a prima facie case, the
burden would have shifted to the County to “establish a legitimate business reason” for
terminating him. See Shaw v. City of Ecorse, 770 N.W.2d 31, 37 (Mich. Ct. App. 2009).
The burden would then have shifted back to Kuhn to establish that the County’s
“proffered reasons were a mere pretext” designed to mask the true basis for his
termination. See id.Kuhn advances essentially the same argument with respect to his WPA claim as
he did for his Title VII retaliation claim. The district court found that there was a
genuine dispute of material fact as to whether Kuhn had engaged in protected activity
when he sent an email to the County Administrator citing nonspecific incidents of deputy
mistreatment. Kuhn v. Washtenaw Cnty., No 10-11191, 2012 WL 1229890, at *10 (E.D.
Mich. Apr. 12, 2012). It also found that Kuhn had stated that he would “follow up” on
these allegations after the investigation against him was resolved (although Kuhn’s
actual email indicates that he planned to “follow up” after the investigation against Lt.
Anuszkiewicz was resolved). Id.The district court further found that “there was some indication that [the County
was] worried that Kuhn would sue” over these concerns, leading the court to conclude
that there was a genuine dispute as to whether Kuhn was about to report a suspected
violation and whether this activity was the reason for his termination. Id. Ultimately,
however, the court concluded that, because Kuhn’s work restrictions were never lifted,
No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 22
“Kuhn was not qualified to work at the time he was discharged” and was thus “unable
to establish a prima facie case.” Id. at *11. It therefore dismissed Kuhn’s WPA claim.
As an initial matter, whether a plaintiff is qualified to work is not part of his
prima facie case under the WPA. The question of Kuhn’s ability to return to work would
be more appropriately considered as a legitimate business reason for terminating him.
But Kuhn was unable to establish a prima facie case in any event. As with his
retaliation claims, temporal proximity alone “does not demonstrate a causal connection
between the protected activity and any adverse employment action.” West v. Gen.
Motors Corp., 665 N.W.2d 468, 472-73 (Mich. 2003). Michigan courts have found,
however, that temporal proximity, coupled with some other indication of termination on
the basis of a protected activity, can satisfy the causation element. See, e.g., Henry v.
City of Detroit, 594 N.W.2d 107, 112-13 (Mich. Ct. App. 1999) (holding that an
employee who presented evidence of temporal proximity between a protected activity
and an adverse employment action, coupled with evidence of his supervisor’s
displeasure with the protected activity, satisfied the causation element of a prima facie
case under the WPA).
The fact that Kuhn was terminated in January 2010 after stating in August and
September 2009 that he was aware of instances of deputy mistreatment is evidence only
of a temporal proximity between these events. To establish a prima facie case under the
WPA, Kuhn was required to offer additional evidence from which a jury could infer that
his intent to report the alleged mistreatment influenced the County’s decision to
terminate him.
He failed to offer such evidence. In fact, the evidence shows that the County was
actively encouraging him to detail his allegations. The County administrators reached
out to Kuhn and asked for his information so that they could investigate. Undersheriff
Ptaszek, in granting Kuhn an extension of leave in November 2009, also requested
“whatever information” Kuhn had. Kuhn was ultimately terminated because he had
exhausted his permitted administrative leave and failed to return to work. “The fact that
No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 23
a plaintiff engages in a ‘protected activity’ under the Whistleblowers’ Protection Act
does not immunize him from an otherwise legitimate, or unrelated, adverse job action.”
West, 665 N.W.2d at 473. We therefore find no error in the district court’s dismissal of
Kuhn’s WPA claim.
G. Kuhn cannot establish that Lt. Anuszkiewicz tortiously interfered with a
business expectancy
Finally, Kuhn argues that the district court erred in dismissing his tortious-
interference claim against Lt. Anuszkiewicz. To make out a prima facie case of tortious
interference with a business expectancy under Michigan law, a plaintiff is required to
show “the existence of a valid business relationship or expectancy, knowledge of the
relationship or expectancy on the part of the defendant, an intentional interference by the
defendant inducing or causing a breach or termination of the relationship or expectancy,
and resultant damage to the plaintiff.” Mino v. Clio Sch. Dist., 661 N.W.2d 586, 597
(Mich. Ct. App. 2003) (internal quotation marks omitted). A plaintiff must also
“establish that the defendant was a ‘third party’ to the contract or business relationship.”
Reed v. Mich. Metro Girl Scout Council, 506 N.W.2d 231, 233 (Mich. Ct. App. 1993).
The district court concluded that Lt. Anuszkiewicz was not a third party to Kuhn’s
employment relationship with the County because the lieutenant was acting for the
benefit of the Sheriff’s Office. Kuhn, 2012 WL 1229890, at *11.
On appeal, Kuhn argues that reasonable minds could conclude that Lt.
Anuszkiewicz was effectively a “third party” because he was motivated by a “personal
vendetta” when he opened the internal investigation into the rape claim. He contends that
the Sheriff’s Office had previously investigated an assault involving Lt. Anuszkiewicz’s
brother, who was also employed by the Sheriff’s Office, and that Commander Hall-
Beard had given nothing more than a verbal warning to the brother. But Kuhn fails to
explain why a departmental investigation involving Lt. Anuszkiewicz’s brother would
cause Lt. Anuszkiewicz to have a vendetta against Kuhn.
Moreover, well-established Michigan law holds that “corporate agents are not
liable for tortious interference with the corporation’s contracts unless they acted solely
No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 24
for their own benefit with no benefit to the corporation.” Reed, 506 N.W.2d at 233.
Kuhn does not dispute that the internal investigation was required by department policy.
Nor did he present any evidence showing that Lt. Anuszkiewicz acted solely for the
latter’s own benefit. We thus find no error in the district court’s conclusion that Lt.
Anuszkiewicz was acting pursuant to his duties as required by the Washtenaw County
Sheriff’s Office when he opened the internal investigation into Joseph’s rape claim.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district
court.