David Haddad v. Randall Gregg , 910 F.3d 237 ( 2018 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 18a0259p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DAVID HADDAD, ┐
Plaintiff-Appellant, │
│
> No. 18-1660
v. │
│
│
RANDALL GREGG; JEAN BOVEN; MICHIGAN │
DEPARTMENT OF INSURANCE AND FINANCIAL │
SERVICES, │
Defendants-Appellees. │
┘
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
16-cv-01190—Janet T. Neff, District Judge.
Decided and Filed: December 3, 2018
Before: SILER, ROGERS, and COOK, Circuit Judges.
_________________
COUNSEL
ON BRIEF: DJ Pascoe, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing,
Michigan, for Appellees. David Haddad, Lansing, Michigan, pro se.
_________________
OPINION
_________________
PER CURIAM. David Haddad sued under 42 U.S.C. § 1983 alleging he was terminated
by his employer, the Michigan Department of Insurance and Financial Services (“MDIFS”), for
exercising his First Amendment rights. The district court granted summary judgment in favor of
Defendants, and Haddad appeals, proceeding pro se. The district court’s opinion thoroughly and
correctly addresses the issues raised by Haddad on appeal. We uphold the district court’s
No. 18-1660 Haddad v. Gregg, et al. Page 2
judgment for the reasons given by the district court. The opinion and order of the district court is
attached as an appendix to this opinion. We also briefly address an argument Haddad raises for
the first time on appeal.
In dismissing Haddad’s First Amendment retaliation claim, the district court concluded
that Haddad was not acting as a private citizen, and thus was not entitled to First Amendment
protection. See Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). Haddad argues for the first time
on appeal that he was acting as a “virtual private citizen” because his duties as an examiner for
MDIFS required him to speak in the public interest and work to end the inclusion of intra-family
exclusion clauses (“IFEs”) in insurance policies. By making this argument, however, Haddad
acknowledges that he was acting pursuant to his official duties when he sought to end the use of
IFEs through his examinations, the very activity that he claims was the basis for his termination.
He further acknowledges that he reached out to attorneys at the Sinas Dramis law firm in order
“to learn about no-fault claims and lawsuits, so as to better serve the public,” which would relate
to ongoing or upcoming examinations. “[W]hen public employees make statements pursuant to
their official duties, the employees are not speaking as citizens for First Amendment purposes,
and the Constitution does not insulate their communications from employer discipline.” Id. The
district court concluded that Haddad was not acting as a private citizen because his desire to
thwart the inclusion of IFEs in insurance policies was part of his job as an examiner and he had
used his communications with the Sinas Dramis law firm to further an official investigation.
Haddad reinforces this conclusion on appeal by acknowledging that his purpose for reaching out
and communicating with the Sinas Dramis law firm regarding IFEs was to further his official
work to end what he believed to be an unfair insurer practice. Accordingly, his conduct was part
of the performance of his job, and the district court did not err by concluding that Haddad was
not speaking as a private citizen. See Mayhew v. Town of Smyrna, Tenn., 856 F.3d 456, 464-65
(6th Cir. 2017); Weisbarth v. Geauga Park Dist., 499 F.3d 538, 543-46 (6th Cir. 2007).
Accordingly, we AFFIRM the district court’s judgment.
No. 18-1660 Appendix to Haddad v. Gregg, et al. Page 3
_________________
APPENDIX
_________________
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAVID HADDAD,
Plaintiff, Case No. 1:16-cv-1190
v. HON. JANET T. NEFF
RANDALL GREGG, et al.,
Defendants.
__________________________________/
OPINION AND ORDER
Plaintiff filed this action alleging civil rights claims under 42 U.S.C. § 1983 against his
former employer Defendant Michigan Department of Insurance and Financial Services (DIFS) and
two individual Defendants: Randall Gregg, DIFS Director of the Office of Legal Counsel; and
Jean Boven, DIFS Director of Insurance Licensing and Market Conduct Director.
Defendants filed a Motion for Summary Judgment Pursuant to FED. R. CIV. P. 56 (ECF No.
38); Plaintiff filed a Response (ECF No. 42); and Defendants filed a Reply (ECF No. 41). Having
fully considered the parties’ briefs and accompanying exhibits, the Court concludes that oral
No. 18-1660 Appendix to Haddad v. Gregg, et al. Page 4
argument is unnecessary to resolve the Motion. See W.D. Mich. LCivR 7.2(d). The Court grants
Defendants’ motion.
I. FACTS1
Plaintiff took a position as an Examiner for the former Office of Financial Insurance
Regulation, now DIFS, in May 2011. During the course of his employment, Plaintiff’s central
function was to perform Market Conduct Exams (MCEs) to look at the practices and procedures
of a company to see whether it is engaging in potentially unfair business practices in dealing with
insurance consumers. During the course of an MCE, information submitted is confidential. Once
the report is approved by the Market Conduct Director, the report is made available to the public
on DIFS’ website. An Examiner is free to publicly discuss the information in the report, including
the identity of the insurer that was examined, once it is made public.
During the course of his MCE of Progressive Marathon Insurance Company’s no-fault
benefit payments during 2013, Plaintiff encountered the company’s exclusion, referred to as the
“intra-family exclusion” (IFE), that placed a substantial cap on the benefits a victim receives if a
family member is driving, significantly lowering payment for pain and suffering benefits.
Believing the IFE to be deceptive, and questioning whether it was legal, Plaintiff undertook efforts
to educate himself about the IFE, first within DIFS, and then through outside sources, eventually
conferring with attorneys Steve and George Sinas at the Sinas Dramis law firm, who represent
1 The parties failed to file a Joint Statement of Material Facts, as ordered by the Court (ECF No.
30 at PageID.193). The background facts are taken primarily from Plaintiff’s Response brief (ECF
No. 42 at PageID.421-433) for purposes of this motion, recognizing that the summary judgment
standard requires that the facts and all inferences therefrom be viewed in a light most favorable to
the non-moving party, i.e., Plaintiff. Defendants do not contest any statements of fact in Plaintiff’s
Response (see Reply, ECF No. 41). Record citations to exhibits are omitted since the Court is
unable to identify exhibits from the parties’ references, particularly where they cannot be
deciphered because the exhibits were copied four to a page (see, e.g., ECF Nos. 40-8, 40-12).
No. 18-1660 Appendix to Haddad v. Gregg, et al. Page 5
plaintiffs against insurance companies. Plaintiff attended several of the firm’s People’s Law
School presentations and met with Steve Sinas at a local sports bar to discuss no-fault law.
Plaintiff’s investigation of the IFE included internal emails with coworkers, and email
correspondence and discussions with attorney Steve Sinas concerning the exclusion and MCEs
conducted by DIFS.
Ultimately, after Defendant Boven became aware that Plaintiff was questioning the legality
of the IFE, she and Defendant Gregg began a 3-4 week investigation of Plaintiff’s activities. Boven
and Gregg interviewed Plaintiff on June 25, 2015. Before questioning him, Gregg and Boven asked
Plaintiff to sign a “Garrity form.” The “Garrity form” advised Plaintiff of his Garrity rights, and
in particular stated that “[a]ny statements made by you during these interviews, or the fruits
thereof, cannot be used against you in any subsequent criminal proceeding.”
On July 9, 2015, DIFS, on Defendant Gregg’s recommendation, issued its Notice of
Charges and Disciplinary Action to Plaintiff, terminating his employment. DIFS claimed that
Plaintiff was terminated for violation of DIFS policy T-5, “Information Privacy and Security
Handling,” DIFS Policy G-3, “Confidentiality and Oath of Office,” DTMB Policy 13.40.00,
“Information Technology Information Security,” and Civil Service Rules 2-8, 2-8.1 and 2-8.2,
“Ethical Standards of Conduct.”
Plaintiff thereafter filed this action based on his alleged wrongful termination. Plaintiff’s
Complaint alleges two counts under § 1983: Count I, Violation of the Fifth Amendment,
Compelled Self Incrimination; and Count II, First Amendment Retaliation.
No. 18-1660 Appendix to Haddad v. Gregg, et al. Page 6
II. LEGAL STANDARDS
Defendants move for summary judgment under Rule 56. Summary judgment is proper “if
the movant shows that 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). The court must consider the evidence and
all reasonable inferences in favor of the nonmoving party. Burgess v. Fischer, 735 F.3d 462, 471
(6th Cir. 2013); U.S. S.E.C. v. Sierra Brokerage Servs., Inc., 712 F.3d 321, 327 (6th Cir. 2013).
The moving party has the initial burden of showing the absence of a genuine issue of material fact.
Jakubowski v. Christ Hosp., Inc., 627 F.3d 195, 200 (6th Cir. 2010). The burden then “shifts to the
nonmoving party, who must present some ‘specific facts showing that there is a genuine issue for
trial.’” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “There is no
genuine issue for trial where the record ‘taken as a whole could not lead a rational trier of fact to
find for the non-moving party.’” Burgess, 735 F.3d at 471 (quoting Matsushita Elec. Indus., Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). “The ultimate inquiry is ‘whether the evidence
presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law.’” Sierra Brokerage Servs., 712 F.3d at 327 (quoting
Anderson, 477 U.S. at 251-52).
III. ANALYSIS
“To establish a claim under 42 U.S.C. § 1983, ‘a plaintiff must set forth facts that, when
construed favorably, establish (1) the deprivation of a right secured by the Constitution or laws of
the United States (2) caused by a person acting under the color of state law.’” Scott v. Kent Cty.,
679 F. App’x 435, 438 (6th Cir. 2017) (quoting Burley v. Gagacki, 729 F.3d 610, 619 (6th Cir.
2013)). Plaintiff asserts constitutional claims based on First Amendment retaliation and based on
No. 18-1660 Appendix to Haddad v. Gregg, et al. Page 7
a Garrity violation under the Fifth Amendment. The Court’s analysis addresses the law and
arguments as presented by the parties.
A. Official Capacity Claims
Defendants argue as an initial matter that Plaintiff’s claims against Defendant DIFS and
Defendants Gregg and Boven in their official capacities fail as a matter of law because they are
not “persons” for purposes of § 1983. Plaintiff fails to address this argument.
It is well-settled that “neither a State nor its officials acting in their official capacities are
“persons” under § 1983.” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989).
Defendant DFIS and Defendants Gregg and Boven, in their official capacities, are entitled to
summary judgment.
B. First Amendment Claim
To establish a prima facie case of First Amendment retaliation under 42 U.S.C. §1983, a
plaintiff must demonstrate that: “(1) he was engaged in a constitutionally protected activity; (2) he
was subjected to adverse action or deprived of some benefit; and (3) the protected speech was a
‘substantial’ or ‘motivating factor’ in the adverse action.” Farhat v. Jopke, 370 F.3d 580, 588 (6th
Cir. 2004) (citing Leary v. Daeschner, 349 F.3d 888, 897 (6th Cir. 2003) (citations omitted)).
Defendants argue that Plaintiff cannot establish: (1) that he was engaged in a
constitutionally protected activity, since he was not speaking as a private citizen; or (2) that his
speech was a substantial or motivating factor in his termination (ECF No. 39 at PageID.215).
Therefore, Plaintiff cannot establish that he was terminated for exercising his First Amendment
rights.
No. 18-1660 Appendix to Haddad v. Gregg, et al. Page 8
1. Constitutionally Protected Activity
“‘[T]he First Amendment protects a public employee’s right, in certain circumstances, to
speak as a citizen addressing matters of public concern.’” Mayhew v. Town of Smyrna, Tenn.,
856 F.3d 456, 462 (6th Cir. 2017) (quoting Garcetti v. Ceballos, 547 U.S. 410, 417 (2006)
(emphasis in Mayhew)). While it has been “long ‘settled that a state cannot condition public
employment on a basis that infringes the employee’s constitutionally protected interest in freedom
of expression,’” Connick v. Myers, 461 U.S. 138, 142 (1983), such protections must be construed
in balance with the efficient functioning of government services. Mayhew, 856 F.3d at 461-62.
Thus, an individual’s First Amendment rights as a public employee are narrower than those of the
citizenry at large. Id. (citing, e.g., Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)). These
considerations dictate the legal hurdles for First Amendment claims advanced by public
employees.
To show he was engaged in constitutionally protected activity, a public employee alleging
First Amendment retaliation must satisfy three requirements:
First, the employee must speak on “matters of public concern.” Evans-
Marshall v. Bd. of Educ., 624 F.3d 332, 337 (6th Cir. 2010) (citing Connick,
461 U.S. at 143 []). Second, the employee must speak as a private citizen and not
as an employee pursuant to his official duties. Id. at 338 (citing Garcetti, 547 U.S.
at 421 []). Third, the employee must show that his speech interest outweighs “the
interest of the State, as an employer, in promoting the efficiency of the public
services it performs through its employees.” Id. (quoting Pickering, 391 U.S. at 568[]).
Mayhew, 856 F.3d at 462. The question whether a public employee’s speech is protected is a
question of law for the court to decide. Id. at 462-464.
No. 18-1660 Appendix to Haddad v. Gregg, et al. Page 9
Plaintiff’s Complaint asserts the following protected activity:
a. In the past, advocating within DIFS that it should express opposition to
insurer policies and practices that were deceptive and unlawful,
b. Contacting Executive Liaison Basso and attempting to influence him to, as
a matter of DIFS policy, oppose the lawfulness of the Intra Family no-fault
Bodily Injury exclusion,
c. Writing his coworkers at DIFS and calling upon them to “muster their
collective will” to oppose the IFE as unlawful and deceptive, []
d. Setting out to examine other insurers known to use the IFE and calling upon
them to conspicuously disclose the exception [so] that they did so, and
e. Sharing his opinion with Attorney Sinas that he believed the IFE was
unlawful and deceptive, and his belief that DIFS should “muster its
collective will” to oppose it.
(ECF No. 1 at PageID.26-27).
Plaintiff further asserts that he exercised his First Amendment right of freedom of
association by:
a. Attending the People’s Law School to learn about Michigan no-fault law
related to the Progressive Insurance MCE,
b. Discussing Michigan law, the no-fault act, and the IFE with Attorneys Steve
and George Sinas,
c. Receiving and reading materials from Attorney Steve Sinas pertaining to
how insurance companies have “snuck into their policies” to wrongfully
deny and limit benefits by including an IFE,
d. Revealing the results of the Progressive MCE that had been made public
and commenting on the results,
e. Expressing his opinion that the IFE was deceptive and unlawful to Steve
and George Sinas,
f. Expressing his opinion that DIFS should “muster its collective will” to
oppose the IFE to Steve Sinas.
(Id. at PageID.28-29).
Having considered the parties’ arguments and the authority presented, the Court concludes
that Plaintiff’s First Amendment claim falls short under the framework set forth in Mayhew.
No. 18-1660 Appendix to Haddad v. Gregg, et al. Page 10
“‘While public employees may not be required to sacrifice their First Amendment free speech
rights in order to obtain or continue their employment, a state is afforded greater leeway to control
speech that threatens to undermine the state’s ability to perform its legitimate functions.’” Farhat,
370 F.3d at 588 (quoting Rodgers v. Banks, 344 F.3d 587, 596 (6th Cir. 2003) (internal citations
omitted)). The circumstances presented in this case, although somewhat unique, persuade the
Court that Plaintiff’s speech and other activities underlying his termination were properly subject
to control by Defendants as an employer, rather than within the ambit of conduct protected by the
First Amendment. Even if Plaintiff’s speech or conduct, or portions thereof, were subject to the
protections of the First Amendment, Plaintiff has failed to show that such conduct was a
“substantial” or “motivating factor” in the adverse actions taken against him.
a. Private Citizen Speaking on a Public Concern
“In order for a government employee’s speech to warrant First Amendment protection, the
Supreme Court’s Connick and Pickering decisions have long imposed the threshold requirements
that the employee (1) must have spoken ‘as a citizen,’ and (2) must have ‘address[ed] matters of
public concern.’” Weisbarth v. Geauga Park Dist., 499 F.3d 538, 542 (6th Cir. 2007). “The
Supreme Court clarified the first of these requirements in Garcetti, [547 U.S. at 421], by holding
that ‘when public employees make statements pursuant to their official duties, the employees are
not speaking as citizens for First Amendment purposes.’” Weisbarth, 499 F.3d at 542 (emphasis
in Weisbarth).
In Garcetti, the respondent Ceballos was employed as a deputy district attorney for the Los
Angeles County District Attorney’s office. 547 U.S. at 413. Ceballos was contacted by a defense
attorney on a pending criminal case, who told Ceballos there were inaccuracies in an affidavit used
to obtain a critical search warrant. Id. Ceballos conducted an investigation, visiting the location
No. 18-1660 Appendix to Haddad v. Gregg, et al. Page 11
described and speaking with the warrant affiant. Id. at 414. Based on his investigation, Ceballos
believed the search warrant contained serious misrepresentations, and he conveyed his findings to
his supervisors, following up with a disposition memorandum that recommended dismissal of the
case. Id. at 414, 420; see also Boulton v. Swanson, 795 F.3d 526, 532 (6th Cir. 2015). A joint
meeting was scheduled to discuss the affidavit with the sheriff’s department, in which one
lieutenant sharply criticized Ceballos for his handling of the case. Garcetti, 547 U.S. at 414.
Cebellos’ supervisor decided to proceed with the prosecution, and Ceballos was called by the
defense to testify at a hearing in the trial court. Id. at 414-15. The trial court rejected the challenge
to the warrant. Id. at 415.
Ceballos claimed that in the aftermath of these events, he was subjected to a series of
retaliatory employment actions, including reassignment from his calendar deputy position to a trial
deputy position, transfer to another courthouse, and denial of a promotion. Id. “Ceballos initiated
an employment grievance, but the grievance was denied based on a finding that he had not suffered
any retaliation.” Id. Unsatisfied, Ceballos sued in federal court alleging a First Amendment
retaliation claim. Id.The Garcetti Court rejected Ceballos’ First Amendment claim, holding that “when public
employees make statements pursuant to their official duties, the employees are not speaking as
citizens for First Amendment purposes, and the Constitution does not insulate their
communications from employer discipline.” Garcetti, 547 U.S. at 421. The Court found that the
fact that Ceballos expressed his views inside his office, rather than publicly, or that the memo
concerned the subject matter of Ceballos’ employment was not dispositive. Id. at 421-22. The
controlling factor was that Ceballos’ expressions were made pursuant to his official duties as a
calendar deputy. Id. at 421. The Court contrasted the expressions made by the speaker in Pickering,
No. 18-1660 Appendix to Haddad v. Gregg, et al. Page 12
a teacher whose letter to the newspaper had no official significance and bore similarities to letters
submitted by numerous citizens every day. Id. at 422. However, the Court noted that because it
was undisputed that Ceballos wrote the memo pursuant to his employment duties, the Court had
no occasion for articulating a comprehensive framework for defining the scope of an employee’s
duties in cases where there is room for serious debate. Id. at 424.
Defendants argue that based on Garcetti and the relevant case law, Plaintiff cannot show
he was speaking as a private citizen. His speech to, and association with, individuals outside of
DIFS dealt specifically with how DIFS would regulate insurance companies doing business in
Michigan (ECF No. 39 at PageID.218). These issues are squarely within the official job functions
assigned to Plaintiff (id.). Thus, Plaintiff cannot sustain his First Amendment retaliation claim
even if he was speaking on a matter of public concern (id. at PageID.218-219).
“Determining whether an employee speaks as a private citizen or as a public employee can
be challenging.” Mayhew, 856 F.3d at 464 (citing Boulton, 795 F.3d 533). “‘The critical question
under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s
duties, not whether it merely concerns those duties.’” Id. at 463 (quoting Lane v. Franks, U.S.
____ 134 S. Ct. 2369, 2379 (2014) (emphasis omitted)). Although the Supreme Court has not
identified any detailed analysis to decide this question, “the ‘proper inquiry is a practical one.’”
Mayhew, 856 F.3d at 464 (quoting Garcetti, 547 U.S. at 424). Further, the public employee
exception to First Amendment protection “‘must be read narrowly as speech that an employee
made in furtherance of the ordinary responsibilities of his employment.’” Mayhew, 856 F.3d at
464 (quoting Boulton, 795 F.3d at 534). The Sixth Circuit has utilized several non-exhaustive
factors to assess an employee’s statement, including the speech’s impetus; its setting; its audience;
No. 18-1660 Appendix to Haddad v. Gregg, et al. Page 13
and its general subject matter—“who, where, what, when, why, and how” considerations. Mayhew,
856 F.3d at 464 (citing Handy-Clay v. City of Memphis, 695 F.3d 531, 540 (6th Cir. 2012)).
This case presents a particularly fine line in deciding whether Plaintiff’s speech and
conduct emanated from his ordinary responsibilities. While the parties each attempt to align this
case with decisions in other cases, the Court finds none of the parties’ cited cases directly on point.
Defendants rely on Omokehinde v. Detroit Board of Education, 563 F. Supp. 2d 717(E.D. Mich. 2008), as “highly instructive” (ECF No. 39 at PageID.216). The plaintiff was a former
school district employee who helped monitor the school district’s expenditure and disbursement
of certain federal funds. Omokehinde, 563 F. Supp. 2d at 720. After informing her supervisor that
she believed the school district was using federal funds for improper purposes, and receiving no
response, the plaintiff expressed her concerns in an anonymous letter to a reporter for the Detroit
Free Press, which published an exposé on misconduct in the school district. Id. at 721. The plaintiff
was discharged a short time later and brought suit claiming she was discharged for speaking out
as a private citizen. The court disagreed, holding that the plaintiff’s anonymous letter to the paper
was not protected speech:
Plaintiff’s complaints to her supervisor about questionable Title I
expenditures flowed directly from her duties and responsibilities as an employee of
the Defendant School District. When her protests through the chain of command
proved unavailing, she repeated precisely the same complaints to an outside
audience. This Court fails to see how the broader dissemination of precisely the
same speech alters the fundamental nature of the underlying communication, such
that what was once a part of the employee’s official duties becomes the speech of
a private citizen.
Id. at 728.
Defendants similarly cite Meggison v. Charlevoix County, No. 1:07-CV-577, 2009 WL
5411896 at *5, *8 (Dec. 23, 2008) (unpublished), in which the court determined that the statements
No. 18-1660 Appendix to Haddad v. Gregg, et al. Page 14
of a jail administrator addressing jail air quality concerns did not qualify as private citizen speech
under Garcetti. Like the plaintiff in Omokehinde, the plaintiff took internal complaints to a public
audience, speaking at a county board of commissioners meeting and meeting with a reporter. Id.
at *3. The court observed that the entire subject matter of the plaintiff’s speech owed its existence
to her professional responsibilities and role as Jail Administrator. Id. at *5-6. The plaintiff’s
decision to disseminate her employment grievances to a wider audience did not cloak those
grievances with First Amendment protection. Id. at *8. The court noted that the plaintiff was not
“an average citizen who happens to be a public employee.” Id. Instead, her extensive knowledge
of the air quality issue about which she spoke was a direct result of her job. Id.Defendants argue that Omokehinde and Meggison are consistent with Sixth Circuit case
law. For example, in Weisbarth, the Sixth Circuit held that statements made by a park ranger to a
consultant hired by her employer were not protected by the First Amendment. 499 F.3d 538. The
plaintiff in Housey v. Macomb County, 534 F. App’x 316, 322 (6th Cir. 2013), made a similar
argument—that he was speaking as a private citizen when he reported the misconduct of a probate
judge “over whom he had no authority vis-à-vis his job duties” to the State Court Administrative
Office and the Judicial Tenure Commission, because his “purely administrative” job duties did not
include such reporting. The Court rejected the plaintiff’s argument, holding that his reports arose
from his duty to oversee the efficient administration of the Macomb County Probate Court as the
Court Register, and were not the type of activity engaged in by private citizens. Id. at 323. His
reports and communications owed their existence to his responsibilities as a probate court register.
Id. That is, the plaintiff’s speech “had a measure of ‘official significance’” because of his duty to
ensure the court was functioning properly. Id. (quoting Garcetti, 547 U.S. at 422).
No. 18-1660 Appendix to Haddad v. Gregg, et al. Page 15
Defendants argue that, as was true in Meggison, Plaintiff was not “an average citizen who
happens to be a public employee” (ECF No. 39 at PageID.218). In other words, he was not the
typical private citizen speaking to individuals about the regulation of the insurance industry. To
the contrary, he had extensive knowledge of the issues on which he spoke—knowledge based on
his employment and unique knowledge gleaned from his position as a DIFS Examiner. Thus,
Plaintiff’s speech was not private citizen speech and is not entitled to constitutional protection.
Plaintiff cites cases to the contrary. See, e.g., Rankin v. McPherson, 483 U.S. 378 (1987).
In Rankin, a clerical employee in a county constable’s office was fired after making a statement to
another employee, apparently her boyfriend, which expressed an opinion about policies of the
President’s administration (see ECF No. 42 at PageID.434). The Rankin Court held that such a
political statement addressed a matter of public concern and was subject to First Amendment
protection. Rankin, 483 U.S. at 387-88. It also applied the Pickering balancing test and held that
the State’s interest in maintaining a peaceful and cohesive workplace did not outweigh the
employee’s right to express political opinions while at work. Plaintiff asserts that, similarly, the
right to free association applies to State employees while at work, Monks v. Marlinga, 923 F.2d
423, 425 (6th Cir. 1991). See Rankin, 483 U.S. at 389-92. Plaintiff argues that he had a right to
express opinions at work and to associate with persons and organizations outside of DIFS, and
these rights survive Defendants’ challenge under the Pickering balancing test (ECF No. 42 at
PageID.435).
Plaintiff further argues that Garcetti does not mandate a different result simply because
Plaintiff’s activities were taken in the course and scope of his employment with DIFS (id.). The
Garcetti Court noted that the fact that the plaintiff expressed his views inside his office rather than
publicly was not dispositive. See Garcetti, 547 U.S. at 420. Moreover, the Garcetti Court cited
No. 18-1660 Appendix to Haddad v. Gregg, et al. Page 16
Rankin with approval; thus, the holding in Garcetti cedes to Rankin’s protection of a public
employee’s right to express political opinion while at work (ECF No. 42 at PageID.435).
Finally, Plaintiff notes that although Defendants attempt to align this case with those in
which the speech or association was viewed as a “continuation” of work duties, Defendant Boven’s
comment that Plaintiff was “going to take an issue beyond what he’s authorized to do” casts doubt
on the theory that Plaintiff’s activities were entirely within the scope of his State employment
(ECF No. 42 at PageID.435). Plaintiff asserts that his speech at issue all “centered around” his
expression of his opinion that the IFE was “unlawful” and “deceptive” (id. at PageID.435-436).
And Boven’s stated concerns “boil down to animus toward[] him for expressing opinions with
which she, and the powers-that-be at DIFS, did not agree” (id. at PageID.436).
The parties each advance arguments grounded in proper First Amendment analysis.
However, having considered the underpinnings of the Supreme Court’s First Amendment analysis
and more recent binding Sixth Circuit precedent, the Court is persuaded that Plaintiff’s conduct
falls outside the realm of recognized “private citizen” speech and activity ordinarily afforded First
Amendment protection.
First, as Defendants point out, Rankin, on which Plaintiff largely relies, can be
distinguished. There, the expression involved a data-entry employee in a county constable’s office,
who was fired for remarking in a private conversation with a co-worker, after hearing of an attempt
on the President’s life, “if they go for him again, I hope they get him.” Rankin, 483 U.S. at 381.
The statement was made in the context of discussing the policies of the President’s administration,
with her boyfriend/coworker, and right after a news bulletin of an attempt on the President’s life,
“a matter of heightened public attention.” Id. at 381, 386. The Court thus found the statement
plainly dealt with a public concern. Id. at 386.
No. 18-1660 Appendix to Haddad v. Gregg, et al. Page 17
Rankin did not expressly address the “private citizen” aspect of protected First Amendment
speech and does not further Plaintiff’s case. Here, Plaintiff was addressing the very regulatory
issues he was tasked with dealing with daily in his employment as an Examiner for DIFS. Plaintiff
acknowledges that his “central function” at DIFS was to perform Market Conduct Exams to look
at the practices and procedures of an insurance company to see whether it is engaging in potentially
unfair business practices in dealing with consumers (ECF No. 42 at PageID.421). In the course of
that job task in the Progressive MCE, Plaintiff discovered the IFE and “took umbrage” to the
exclusion “[b]ecause I would not want to see any poor parent get denied BI benefits to their child
because they think they might – she might have driven into a tree on purpose. I would not want to
see that happen to anybody” (ECF No. 42 at PageID.422-423, citing Ex. 13, Haddad Dep. at
127:17-21).
Plaintiff then began his extensive investigation, which ultimately resulted in his
termination. Plaintiff states that he first followed protocol, asking the Office of General Counsel
and several other DIFS staffers to provide him with a no-fault expert. When he was told that no
no-fault experts were available, he pursued his investigation outside DIFS channels, eventually
consulting with the Sinas Dramis law firm and attending their “People’s Law School” (ECF No.
42 at PageID.423). He discussed the IFE with attorney Steve Sinas, who expressed his opinion that
IFEs were “really unfair” (id. at PageID.424).
Viewed from a practical standpoint, the Court concludes that Plaintiff’s activities were in
furtherance of the ordinary responsibilities of his employment. Here, Plaintiff used his
investigation, and presumed validation that IFEs were deceptive and contrary to Michigan law, to
press this point in the examination process of Progressive, which willingly agreed to make more
No. 18-1660 Appendix to Haddad v. Gregg, et al. Page 18
prominent disclosures of the provision, and its potential ill effects, to its insureds. Thus, Plaintiff’s
conduct was directly in the course of the performance of his job, and not as a private citizen.
The Court’s conclusion does not ignore that Plaintiff’s mission may have been motivated
by his perceived public interest purpose. But however laudable, Plaintiff’s quest to have the IFE
prohibited as deceptive and unfair to insurance consumers was taken in his role as a Market
Conduct Examiner, subject to the controls of DIFS as his employer. See Mayhew, 856 F.3d at 465
(noting, but rejecting, the plaintiff’s argument that his complaints about a superior’s questionable
conduct with respect to the city’s wastewater treatment “were borne of out of his civic and ‘moral
responsibility,’ not his job functions”). As the Court initially explained in Garcetti: “‘Restricting
speech that owes its existence to a public employee’s professional responsibilities does not infringe
any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise
of employer control over what the employer itself has commissioned or created.’” Boulton,
795 F.3d at 532-33 (quoting Garcetti, 547 U.S. at 421-22).
In this Court’s view, Plaintiff’s speech and activity in mustering the collective will of his
coworkers and DIFS to prohibit the IFE falls outside protected First Amendment activity, given
Plaintiff’s job responsibilities and the nature of DIFS’ role as a public agency. But even if portions
or aspects of Plaintiff’s conduct were so considered, the Court concludes that Plaintiff’s First
Amendment claim otherwise fails.
b. Pickering Balancing Test
Even if Plaintiff’s speech and activities, or portions thereof, fall under the rubric of a private
citizen addressing matters of public concern, the Pickering balancing test applies to defeat his
claim of wrongful termination. See McMurphy v. City of Flushing, 802 F.2d 191, 197 (6th Cir.
1986) (Connick reaffirmed that if any part of the speech of an employee that contributes to the
No. 18-1660 Appendix to Haddad v. Gregg, et al. Page 19
discharge relates to matters of public concern, the trial court must conduct a Pickering balancing
of interests). The Court must “balance the justifications for a speech restriction against the
employee’s free speech interest.” Boulton, 795 F.3d at 531 (citing Garcetti, 547 U.S. at 418).
Defendants argue, persuasively, that Plaintiff’s conduct was sufficiently disruptive to the
statutory mission of DIFS to warrant termination under the test set forth in Pickering, 391 U.S. at
568. Defendants contend that Plaintiff’s speech was disruptive because, as the Michigan courts
have already held,2 it disclosed information that Michigan law deems confidential and jeopardized
the mission of DIFS, as well as DIFS’ working relationship with similar regulatory bodies in other
states and countries (ECF No. 39 at PageID.219). Plaintiff has not shown otherwise. Accordingly,
the Court concludes that the balancing test weighs in Defendants’ favor, and Plaintiff’s claim
likewise fails for this reason.
2. Substantial or Motivating Factor
Finally, and alternatively, even if Plaintiff established the first element of his First
Amendment retaliation claim by showing he engaged in protected activity, his claims fail under
the third prong of a prima facie case. Plaintiff has failed to show that any protected speech and
activity was a “substantial” or “motivating factor” in Defendants’ adverse action against Plaintiff.
“‘If the employee establishes a prima facie [First Amendment Retaliation] 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. Once this shift has occurred,
summary judgment is warranted if, in light of the evidence viewed in the light most favorable to
2 Defendants argue that these factual issues were conclusively determined in the state
administrative proceedings and the state circuit court, and therefore collateral estoppel bars
Plaintiff from relitigating them. This legal conclusion is unnecessary to the Court’s analysis, and
the Court declines to so rule.
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the plaintiff, no reasonable juror could fail to return a verdict for the defendant.’” Boulton, 795 F.3d
at 531 (quoting Benison v. Ross, 765 F.3d 649, 658 (6th Cir. 2014) (citing Thaddeus-X v. Blatter,
175 F.3d 378, 394 (6th Cir. 1999) (en banc)).
“To establish that the at-issue constitutionally protected speech motivated the adverse
action, a plaintiff must ‘point to specific, nonconclusory allegations reasonably linking her speech
to the employer discipline.’” Clemens v. Mount Clemens Cmty. Sch. Dist., No. 16-11444, 2018
WL 1570281, at *8 (E.D. Mich. Mar. 30, 2018) (quoting Vereecke v. Huron Valley Sch. Dist.,
609 F.3d 392, 400 (6th Cir. 2010) (internal citation omitted)).
Plaintiff has failed to make this showing. There is ample evidence in the record showing
that Defendants’ actions were taken because of concerns about and breaches of Plaintiff’s
confidentiality obligations and violations of DIFS policy. In short, DIFS claimed that Plaintiff
violated DIFS Policy T-5, the IT Policy, and CSC Rule 2-8, based on the investigatory interview
with Plaintiff and a review of nine emails. Policy T-05, Information Privacy and Security –
Handling, classifies DIFS information as public, sensitive, or restricted; all information is per se
classified as sensitive (intended for internal use) unless otherwise categorized by DIFS’ directors.
Policy T-5 lists prohibited conduct when DIFS information is involved, and it incorporates DTMB
Policy 1340.00, Information Technology Information Security Policy (the IT policy), which
applies to all state employees (ECF No. 40-1 at PageID.226-227, 234).
Policy G-3, Confidentiality and Oath of Office, prohibits DIFS employees from disclosing
facts or information obtained during their employment with DIFS to non-DIFS personnel or
entities unless specifically required by law or authorized by the director. The policy places the
No. 18-1660 Appendix to Haddad v. Gregg, et al. Page 21
responsibility on the employee to obtain guidance from a supervisor when disclosing facts,
information, or records pertaining to DIFS-related business.3
Plaintiff’s state grievance and appeal decisions set forth the facts, the policies, and
extensive reasoning in reaching the determination that DIFS had just cause to discipline Plaintiff
(ECF Nos. 40-1, 40-2). The Appeal Board ultimately concluded that the record showed Plaintiff
violated Policy G-3 by not obtaining guidance from Defendants Boven or Gregg before disclosing
Department-related business, and Policies T-5 and G-3 by prematurely releasing the name of an
insurer subject to an MCE and by discussing with attorney Sinas issues in a pending MCE:
There does not appear to be any question that Haddad’s March 30, 2015
email to Sinas provided information that was not publicly available until April 2,
2015, when the MCE report was published. That email also arguably allowed Sinas
to know the identity of insurers the Department was next going to examine. The
record also shows that Haddad did not contact Boven or Gregg before
communicating with Sinas or Brake [who was not a Department employee].
Haddad admitted speaking with Sinas in May 2014 about issues he found
in a pending MCE. Though Sinas testified that it was only general information
about IMEs, Supreme Court opinions, and a certain type of lawsuit, the record
shows that Haddad used confidential communications to prepare those questions,
and that the issues he spoke about were all directly related to the pending MCE.
(ECF No. 40-2 at PageID.247). The Board agreed that those actions violated the Department’s
confidentiality policies (id.).
3 CSC Rule 2-8 imposes a duty on classified employees to maintain a high degree of loyalty and
ethical standards. The main premise of the Rule is that classified employees may not release
confidential information for financial gain or value. However, DIFS did not specify the provisions
of this Rule allegedly violated, and the grievance hearing officer found no evidence that Plaintiff
violated, for example, Rule 2-8.2 concerning financial gain and supplemental employment (ECF
No. 40-1 at PageID.234, 236).
No. 18-1660 Appendix to Haddad v. Gregg, et al. Page 22
Even without giving conclusive effect to the state administrative findings, the record fully
supports this result. Plaintiff has failed to present evidence to warrant a contrary conclusion.
Defendants are entitled to summary judgment of Plaintiff’s First Amendment Retaliation claim.
C. Fifth Amendment Claim
Plaintiff alleges Defendants violated his Fifth Amendment rights by procuring his signature
on a Garrity form, which stated that the results of the compelled interview by Defendants Boven
and Gregg would not be used for criminal prosecution, but later submitting the statements Plaintiff
made to the Michigan Attorney General and requesting criminal charges be instituted.
Defendants acknowledge that Garrity precludes the use of public employees’ compelled
incriminating statements in a later prosecution for the conduct under investigation. See Garrity v.
New Jersey, 385 U.S. 493, 500 (1967). Defendants argue, however, that it is only once compelled
incriminating statements are used in a criminal proceeding that an accused has suffered the
requisite constitutional injury for purposes of a § 1983 action. See McKinley v. City of Mansfield,
404 F.3d 418, 430 (6th Cir. 2005); see also Lingler v. Fechko, 312 F.3d 237, 238-40 (6th Cir.
2002) (finding no Fifth Amendment violation sufficient to sustain a § 1983 action where police
officer-employees who had made incriminating statements in compulsory interviews with
superiors were never prosecuted). Defendants contend that Plaintiff cannot maintain a claim based
on Garrity because it is undisputed that none of Plaintiff’s statements have ever been used against
him in any criminal proceeding.
“‘[M]ere coercion does not violate the ... Self-Incrimination Clause absent use of the
compelled statements in a criminal case.’” McKinley, 404 F.3d at 430 (quoting Chavez v. Martinez,
538 U.S. 760, 769 (2003) (plurality opinion) (footnote omitted)). “It is only once compelled
incriminating statements are used in a criminal proceeding, as a plurality of six justices held in
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Chavez v. Martinez, that an accused has suffered the requisite constitutional injury for purposes of
a § 1983 action.” Id. (citing Chavez, 538 U.S. at 769, 772-73 (footnote omitted)).
Plaintiff responds that while McKinley “implied, in dicta,” a requirement that statements
later actually be used in a criminal prosecution, subsequent decisions of the Sixth Circuit have
relaxed this requirement (ECF No. 42 at PageID.438). Plaintiff notes that McKinley was based on
Chavez, and the Sixth Circuit read Chavez as requiring a criminal prosecution before a Fifth
Amendment claim would lie for a Garrity violation (id.). Plaintiff contends that the Sixth Circuit
revisited its read of Chavez in Moody v. Michigan Gaming Control Board, 790 F.3d 669, 674-77
(6th Cir. 2015), and “[a]fter reading the Chavez decision more closely, the Moody Court concluded
that ‘[b]ecause the [Chavez] Court’s judgment depended on Justice Souter’s fact-specific view of
the law, Justice Thomas’s broader suggestion—that mere compulsion of testimony, without more,
does not violate constitutional rights against self-incrimination—does not bind us in different
situations’” (ECF No. 42 at PageID.438, quoting Moody, supra (emphasis added)).
The Court is unpersuaded by Plaintiff’s argument. The Moody Court distinguished Chavez
from the circumstances in Moody, and noted that “‘Chavez only applies where a party actually
makes self-incriminating statements ….’” Moody, 790 F.3d at 675 (citation omitted). In Moody,
the plaintiffs asserted their rights clearly, “[b]ut, for four years, the state declined to offer immunity
or to allow plaintiffs to make a living at the racetrack.” Moody, 790 F.3d at 676.
Here, the Garrity form precluded the use of Plaintiff’s statements in a criminal proceeding.
Plaintiff’s statements have not been used in a criminal proceeding against him. The Court finds no
Fifth Amendment violation.
The analysis in Moody does not provide a basis for Plaintiff’s claim based on a Garrity
violation. The Moody Court distinguished the earlier cases:
No. 18-1660 Appendix to Haddad v. Gregg, et al. Page 24
Like Chavez, McKinley does not apply here. As Justice Thomas
acknowledged in Chavez, “governments may penalize public employees and
government contractors ... to induce them to respond to inquiries [only] so long as
the answers elicited ... are immunized from use in any criminal case against the
speaker.” Chavez, 538 U.S. at 768, 123 S. Ct. 1994 (plurality op.) (emphasis
added).
790 F.3d at 676; see also Arsan v. Keller, No. 3:17-cv-121, 2018 WL 635894, at *4 (S.D. Ohio
Jan. 31, 2018) (again recognizing that under McKinley, it is only once compelled incriminating
statements are used in a criminal proceeding that an accused has suffered the requisite
constitutional injury for purposes of a § 1983 action).
While the Chavez decision may leave room for a challenge to the use of coerced statements
in a grand jury proceeding, the thrust of the opinion rests on the view that the Fifth Amendment is
a trial protection. McKinley, 404 F.3d at 430 n.11 (citing Chavez, 538 U.S. at 766-68). Plaintiff
has failed to show that a Garrity violation is sustainable on the facts presented, under the authority
cited. Defendants are entitled to summary judgment of Plaintiff’s Fifth Amendment claim.
D. Qualified Immunity
Defendants argue that Gregg and Boven are entitled to qualified immunity on claims for
money damages against them in their individual capacities. The doctrine of qualified immunity
affords protection against individual liability for civil damages when officials have not violated a
“clearly established statutory or constitutional right of which a reasonable person would have
known.” Mitchell v. Forsyth, 472 U.S. 511, 524 (1985); Purisch v. Tenn. Tech. Univ., 76 F.3d
1414, 1423 (6th Cir. 1996) (citation omitted); see also Causey v. City of Bay City, 442 F.3d 524,
528 (6th Cir. 2006).
To determine whether an officer is entitled to qualified immunity, the court employs a two-
step analysis: “‘(1) whether, considering the allegations in a light most favorable to the party
No. 18-1660 Appendix to Haddad v. Gregg, et al. Page 25
injured, a constitutional right has been violated, and (2) whether that right was clearly
established.’” Causey, 442 F.3d at 528 (citation and footnote omitted). These steps can be
undertaken in either order. Pearson v. Callahan, 555 U.S. 223, 236 (2009). Having determined
above that Defendants did not violate Plaintiff’s constitutional rights, Defendants Boven and
Gregg are entitled to summary judgment on their defense of qualified immunity.4
IV. CONCLUSION
For the reasons above, Defendants’ motion for summary judgment is properly granted. A
Judgment will be entered consistent with this Opinion and Order.
Accordingly:
IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment (ECF No.
38) is GRANTED.
Dated: May 16, 2018 /s/ Janet T. Neff
________________________________
JANET T. NEFF
United States District Judge
4 Because the claims against the individual Defendants fail, the claims against DIFS would fail as
a matter of law. See, e.g., Phifer v. City of Grand Rapids, 657 F. Supp. 2d 867, 876 (W.D. Mich.
2009) (quoting Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 900 (6th Cir. 2004)
(“‘A municipality … cannot be liable under § 1983 absent an underlying constitutional violation
by its officers.’”)).