Jeff Dye v. Office of the Racing Comm'n

702 F.3d 286, 34 I.E.R. Cas. (BNA) 1230, 2012 U.S. App. LEXIS 25742, 96 Empl. Prac. Dec. (CCH) 44,707, 2012 WL 6582389
CourtCourt of Appeals for the Sixth Circuit
DecidedDecember 18, 2012
Docket11-1828
StatusPublished
Cited by162 cases

This text of 702 F.3d 286 (Jeff Dye v. Office of the Racing Comm'n) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jeff Dye v. Office of the Racing Comm'n, 702 F.3d 286, 34 I.E.R. Cas. (BNA) 1230, 2012 U.S. App. LEXIS 25742, 96 Empl. Prac. Dec. (CCH) 44,707, 2012 WL 6582389 (6th Cir. 2012).

Opinions

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.

[293]*293I. 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 grant[294]*294ing summary 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 [295]*295light most favorable to the plaintiff, no reasonable juror could fail to return a verdict for the defendant.” Id.

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702 F.3d 286, 34 I.E.R. Cas. (BNA) 1230, 2012 U.S. App. LEXIS 25742, 96 Empl. Prac. Dec. (CCH) 44,707, 2012 WL 6582389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jeff-dye-v-office-of-the-racing-commn-ca6-2012.