Jones

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

SCOTT E. JONES,

Plaintiff, Case No. 24-cv-11965

Honorable Nancy G. Edmunds

v.

ST. CLAIR COUNTY, et al

Defendants.

________________________________/

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [32]

This matter is before the Court on Defendants’ motion for summary judgment.

(ECF No. 32.) Plaintiff responded (ECF No. 36) and Defendants replied (ECF No. 38).

Pursuant to E.D. Mich. L.R. 7.1(f)(2), the Court dispenses with oral argument because it

would not significantly aid the decision process.

Plaintiff is a former lieutenant in the St. Clair County Sheriff’s Office. He complained

to the County’s human resources department (“HR”) about perceived favoritism or

nepotism in the handling of the Sheriff’s brother’s drunk-driving arrest. Less than a week

after the HR complaint, the Sheriff ordered an investigation into a potential “leaker” who

provided details about the drunk-driving arrest to someone outside the department. After

the Sheriff’s subordinates received information implicating Plaintiff in the leaks, Plaintiff

voluntarily retired in lieu of facing discipline or further investigation.

Plaintiff now brings claims under 42 U.S.C. § 1983 for First Amendment retaliation

and procedural due process violations. Plaintiff’s First Amendment retaliation claim is

based on three actions taken by Defendants: (1) an alleged “sham” investigation meant

to falsely identify Plaintiff as the leaker, (2) a purported constructive discharge that

occurred when Plaintiff resigned, and (3) damage to Plaintiff’s good name and reputation

from investigatory findings made in a report by one of the Sheriff’s subordinates. Plaintiff

also claims that the constructive discharge and the investigatory findings violated his due

process rights.

The constructive discharge theory fails because Plaintiff’s resignation was

voluntary. Plaintiff’s claims arising out of the investigatory findings fail because the

findings were never shared with anyone and thus could not have harmed Plaintiff’s

reputation. But the First Amendment retaliation theory arising out of the alleged “sham”

investigation survives because there is a question of fact as to whether the investigation

was motivated, at least in part, by a desire to punish Plaintiff for his complaint to HR.

Thus, the Court GRANTS summary judgment as to Plaintiff’s due process claim,

GRANTS summary judgment on the First Amendment claim to the extent that it relies on

the purported constructive discharge or investigatory findings that were not made public,

and otherwise DENIES summary judgment as to Plaintiff’s First Amendment claim. The

Court also DENIES qualified immunity as to Plaintiff’s surviving constitutional claim

because Plaintiff’s right to report perceived misconduct outside his chain of command

without fear of retaliation was clearly established, DENIES summary judgment on

Defendants’ defense of accord and satisfaction because the evidence does not clearly

show that Plaintiff knowingly relinquished his right to bring this lawsuit in connection with

his voluntary retirement agreement, and DENIES summary judgment as to Monell liability

because the Sheriff had final authority to establish municipal policy for disciplinary actions

within his own department.

I. Background

Defendant Mat King (“Sheriff King” or the “Sheriff”) is the Sheriff of St. Clair County,

Michigan, a position that he has held since 2021. (ECF No. 32-2, PageID.412.) The

County Sheriff’s office consists of 250 employees, including 87 sworn officers. (Id. at

PageID.423.) At the time that Plaintiff worked in the Sheriff’s office, the office’s supervisory

personnel included the Sheriff, Undersheriff Jim Spadafore, Captain Matt Pohl, and six

lieutenants. (Id. at PageID.413; ECF No. 36-2, PageID.1273.)

Plaintiff Scott Jones is a former lieutenant in the Sherriff’s office. He began working

for the County as a full-time sheriff’s deputy beginning in 1997. (ECF No. 36-2,

PageID.1268.) Sherriff King promoted Plaintiff to the rank of lieutenant effective February

5, 2021. (Id.) In this role, Plaintiff was responsible for overseeing a platoon of 12 officers.

(Id. at PageID.1273-74.) His job description included various managerial tasks, such as

“provid[ing] counseling and guidance to subordinates,” “[patrolling] the County to assist

deputies and insure [sic] their compliance with assigned duties,” and “[i]nspect[ing] the

work of command staff and other subordinates.” (ECF No. 36-23, PageID.2655.) Per his

testimony, Plaintiff’s job duties also included carrying out the missions, directives, and

policies of the Sheriff; speaking on behalf of the Sheriff at township board meetings; and

occasionally appearing at ceremonial events, such as parades and 4H fairs. (ECF No.

36-2, PageID.1274-75.) Plaintiff’s work was performed “under the direction of the Sheriff

with direct supervision by [the] Captain and [the] Undersheriff.” (ECF No. 36-23,

PageID.2655.)

In the early morning of November 6, 2022, Sheriff King’s brother, Deputy Marcus

King, was pulled over by an officer of the Port Huron Police Department. (ECF No. 36-5,

PageID.1654.) Plaintiff and two of his subordinate deputies arrived at the scene. (Id.) A

breath test conducted at the scene showed a blood alcohol content (“BAC”) of 0.183. (Id.

at PageID.1655.) Deputy King was arrested for driving while intoxicated on a public

roadway. (Id. at PageID.1656.) Plaintiff directed one of the deputies to transport Deputy

King to the Lapeer County Jail—rather than the jail in St. Clair County, where Deputy King

was arrested—because, in Plaintiff’s telling, he wanted to avoid a conflict of interest posed

by detaining the Sheriff’s brother in St. Clair County. (ECF No. 36-2, PageID.1438-39.)

Plaintiff also wanted to avoid embarrassing Deputy King in front of the deputy’s friends

and coworkers who worked in the jail. (Id. at PageID.1439.)

Sheriff King learned about his brother’s arrest from Deputy Damon Duva, the

president of the deputies’ union, at about 3:00 a.m. (ECF No. 36-6, PageID.1791-92; ECF

No. 36-7, PageID.2021.) Sheriff King was upset with Plaintiff’s handling of the arrest

because, in his view, his brother was treated differently than other deputies would have

been in similar circumstances. (ECF No. 36-6, PageID.1682, 1795.)1 Upon learning that

Plaintiff had sent his brother to the Lapeer County Jail, Sheriff King called Plaintiff and

asked why he had not been notified of the arrest; Plaintiff responded that he felt the Sheriff

1 An individual who is arrested for drunk driving in St. Clair County is ordinarily held in jail

until their BAC has lowered to .03. (ECF No. 36-3, PageID.1565-66.) Defendants claim

that an exception exists for law-enforcement officials, who are placed in a separate area

under the supervision of a deputy until they sober up. (ECF No. 32, PageID.356-57; ECF

No. 36-14, PageID.2350.) The apparent rationale of this practice is that it would be unsafe

to comingle law-enforcement personnel with the general population of jail inmates. (ECF

No. 32-8, PageID.844.) Plaintiff claims to have been unaware of this practice at the time

of Deputy King's arrest and disputes that this was ever an official written "policy" of the

Sheriff's office. (ECF No. 32-3, PageID.670-71.)

had a “conflict of interest.” (ECF No. 36-2, PageID.1330.) The Sheriff told Plaintiff to

“unfuck this” and ordered Plaintiff to notify the Lapeer County Sheriff’s office that Deputy

Duva was going to pick up the Sheriff’s brother from custody. (ECF No. 36-6,

PageID.1794.) Deputy Duva retrieved Deputy King and brought him back to the St. Clair

County detective bureau, where they arrived at about 4 a.m., and where Deputy King

remained until 9 a.m., until he was released. (ECF No. 36-7, PageID.2045-47, 2050.)

On November 8, 2022, and the days afterward, a Facebook user named Kevin

Lindke made several posts providing details about the arrest. (See ECF No. 32-10.) The

posts were generally critical in tone toward Sheriff King and claimed to receive the

information from an anonymous source with knowledge of the arrest. (See id.) The posts

contained screenshots of messages between Lindke and his anonymous source, who the

parties now agree was former St. Clair County Sheriff’s Deputy Joshua Goodrich. (ECF

No. 32, PageID.360; ECF No. 36, PageID.1154.) The parties dispute where Goodrich got

the information that he passed on to Lindke, but Goodrich himself submitted a sworn

declaration stating that he received the information from Deputy Chad Cronkright. (ECF

No. 36-18.)

On November 10, 2022, Plaintiff requested a meeting with the County’s HR

department. (ECF No. 36-2, PageID.1372.) Plaintiff met with HR director Diane Barbour

on November 14, 2022, and expressed his concerns that Sheriff King had improperly

used his authority to obtain special treatment for his brother, Deputy King, following the

drunk-driving arrest. (Id. at PageID.1372-78.) According to contemporaneous notes taken

by Barbour, Plaintiff also stated during this meeting that Deputy King was “still drunk when

released.” (ECF No. 36-12, PageID.2165.) Plaintiff later testified that he went to HR

because it was not “inside the blue wall" of the Sheriff’s department, where he perceived

that his concerns would be "buried and controlled and the narrative can be handled."

(ECF No. 36-2, PageID.1378.) Barbour told Plaintiff she would "make a few phone calls."

(Id. at PageID.1376.) Barbour called Plaintiff a few days later and advised him that HR

lacked authority to review Sheriff King’s actions. (Id. at PageID.1378.)

On November 14, after Plaintiff's meeting with HR, Captain Pohl reached out to

Plaintiff requesting a meeting to discuss the "traffic stop." (ECF No. 36-2, PageID.1381;

ECF No. 32-13, PageID.1100.) Plaintiff agreed to meet with Captain Pohl and

Undersheriff Spadafore in Barbour’s office in the HR department with Barbour present.

(ECF No. 36-2, PageID.1384.) At the meeting on November 17, Plaintiff stated that he

had made a formal complaint against Sheriff King for the handling of Deputy King's arrest.

(Id. at 1391.)2 Captain Pohl then expressed concerns that Plaintiff had required two of his

subordinate deputies to arrest their coworker, rather than conducting the arrest himself.

(Id. at PageID.1385, 1392.) Captain Pohl’s notes indicate that Plaintiff was questioned

about the social media postings regarding Deputy King, but Plaintiff does not recall this

issue being discussed. (Id. at PageID.1392-94; ECF No. 32-13, PageID.1101.)

On November 23, Sheriff King instructed Captain Pohl to investigate violations of

the Sheriff’s standard of conduct or loyalty policies in connection with the drunk-driving

arrest and the social media leaks. (ECF No. 32-13, PageID.1101; ECF No. 36-14,

PageID.2336-37.) According to a report prepared by Captain Pohl, he suspected that the

information in the social media leaks came from a source within the department because

2 The parties dispute whether Sheriff King or any of his subordinates were aware of

Plaintiff’s complaint to HR before the meeting.

they contained certain details known only to law-enforcement personnel, including (1)

Deputy King's BAC at the time of the arrest; (2) that Sheriff King ordered his brother’s

release from the Lapeer County jail; (3) that Deputy King was scheduled to work with a

new trainee in the morning after the arrest; (4) that Sheriff King's fiancée had a

bachelorette party on the night of the arrest; and (5) that Deputy King worked overtime

on the Monday after the arrest. (ECF No. 32-13, PageID.1099.) Captain Pohl sent emails

to six employees, including Plaintiff, requesting an interview to discuss the social media

leaks. (ECF No. 32-14.)

On November 30, after interviewing seven other individuals, Captain Pohl

interviewed Plaintiff. (ECF No. 32-13, PageID.1104-05.) Steven Sellers, a representative

of Plaintiff’s union, was present for the interview. (ECF No. 36-2, PageID.1396-97.)

Captain Pohl asked if Plaintiff had told anyone outside the department about the arrest,

and Plaintiff stated that he had only told his parents. (Id. at PageID.1409.) When asked if

he knew who might be responsible for the leak, Plaintiff identified Deputy Chad

Cronkright. (Id. at PageID.1234.) Captain Pohl’s last question was whether Plaintiff ever

spoke to Goodrich about the arrest, and Plaintiff said that he did not. (Id. at PageID.1410.)

Captain Pohl then interviewed Deputy Cronkright, who claimed that Plaintiff was

the leaker. (ECF No. 36-14, PageID.2379.) The next day, in a written statement, Deputy

Cronkright acknowledged that he informed Goodrich about the arrest after learning about

it from Deputy King, but he denied being the leaker. (ECF No. 32-16, PageID.1125.)

According to the statement, Goodrich told Deputy Cronkright that Goodrich “got his

information from [Plaintiff] as he is friends with [Plaintiff] and he does talk to him.” (Id.)

Deputy Cronkright also provided text messages between him and Goodrich, one of which

indicated that Goodrich was “on the [phone emoji] with [Plaintiff]” on November 9, 2022,

when the social media leaks were ongoing. (ECF No. 32-17, PageID.1127.) The

statement and text messages suggested that Plaintiff had not given a complete answer

when he denied speaking to Goodrich about the arrest during his November 30 interview.

(See ECF No. 36-2, PageID.1410.)

On the morning of December 9, 2022, Sheriff King, Undersheriff Spadafore,

Captain Pohl, and several others met with Deputy Cronkright for an “intervention meeting”

to discuss Deputy Cronkright’s statement and various recent disciplinary issues involving

Deputy Cronkright. (ECF No. 36-17.) It was during this meeting that Deputy Cronkright

produced copies of the text messages indicating that Plaintiff was speaking with Goodrich

on November 9. (Id. at PageID.2543-44.) The meeting concluded with Sheriff King

expressing a desire for Deputy Cronkright to “get on the right track.” (Id. at PageID.2547.)

Deputy Cronkright was not disciplined for speaking with Goodrich about the arrest. (Id.)

After the meeting, Captain Pohl called Sellers and told Sellers that he had

additional information establishing that Plaintiff was the leaker. (ECF No. 36-14,

PageID.2433; ECF No. 36-19, PageID.2571-72.) Captain Pohl and Sellers began

discussing the idea of Plaintiff retiring. (ECF No. 36-19, PageID.2572-73.) Captain Pohl

and Sellers negotiated a proposal whereby Plaintiff would go on paid administrative leave

until a date in late January 2023, when he would formally retire. (Id. at PageID.2575-78.)

Sellers testified that Plaintiff was permitted to choose the date of retirement. (Id. at

PageID.2578.)

Sellers told Captain Pohl that Sellers would discuss the retirement proposal with

Plaintiff over the weekend and provide a response by Monday, December 12. (ECF No.

36-14, PageID.2436.) Sellers’ understanding of the proposal was that if Plaintiff took the

offer, the investigation would end; if he did not, the investigation would continue. (Id. at

PageID.2435.) In Plaintiff’s recollection, Sellers told him that he had “until Monday

[December 12] at 9 a.m. to [either] retire or face discipline.” (ECF No. 36-2, PageID.1416.)

Sellers was “evasive” about whether the potential discipline would include termination,

according to Plaintiff. (Id. at PageID.1418-19.) Sellers recalls providing a slightly more

nuanced explanation of the potential disciplinary consequences; he recalls telling Plaintiff

that Plaintiff would be reinterviewed and that there would be disciplinary consequences if

the Sheriff concluded that Plaintiff was the leaker. (ECF No. 36-19, PageID.2578-79.)

Plaintiff and Sellers agree that they also discussed the possibility of contesting a

disciplinary decision through a grievance and arbitration process. (Id.; ECF No. 36-2,

PageID.1419.) After speaking with Sellers for a few minutes, Plaintiff decided to accept

the proposal. (Id. at PageID.1419.)

On December 14, 2022, Plaintiff and Sellers met with the Sheriff, Captain Pohl,

and Undersheriff Spadafore. (Id. at PageID.1422.) Plaintiff handed over a resignation

letter, which he had prepared over the weekend. (Id. at PageID.1423.) Plaintiff, the Sheriff,

and two witnesses signed a one-page agreement confirming the terms of Plaintiff’s

retirement. (See ECF No. 36-24.) The full text of the agreement is reproduced below:

Internal #: 22-11

December 14, 2022

St. Clair County Sheriff Mat King has agreed to place Lt. Scott Jones on

administrative leave with pay from December 14th[,] 2022 through January

21st[,] 2023 from employment with the St. Clair County Sheriff's Office.

Lt. Scott Jones will receive his payouts and holiday pay (if applicable) as

defined in the current COAM labor argument [sic] upon

retirement/resignation on January 21st[,] 2023. He will not be eligible for call

in overtime during this period

This document is mutually agreed upon by Sheriff Mat King and Scott Jones

[Signatures]

(Id.)

At some point after Plaintiff executed the retirement agreement, Captain Pohl

completed a report containing “findings” that Plaintiff had violated the Sheriff’s

“Truthfulness Policy,” “Loyalty Policy,” and “Standard of Conduct Policy.” (ECF No. 36-14,

PageID.2233-34.) The report was prepared on Captain Pohl’s computer and placed in an

“internal folder” with other documents relevant to the investigation. (Id. at 2234-35.) There

is no suggestion in any party’s brief that these findings were shared with any person

outside of the department before discovery occurred in this case.

On January 30, 2023, after Plaintiff retired, Sheriff King executed a Michigan

Commission on Law Enforcement Standards (“MCOLES”) affidavit stating that Plaintiff

“[r]etired while under investigation.” (ECF No. 36-22.)3 This was contrary to Sellers’

understanding that the department was “going to treat [Plaintiff’s] MCOLES as a straight

retirement.” (ECF No. 36-19, PageID.2620.) According to Sellers, the MCOLES report is

shared with other departments, and officers may face difficulties in obtaining employment

in a law-enforcement agency if an MCOLES report indicates that they retired under

investigation. (Id. at PageID.2617-18.)

3 Defendants represent that Sheriff King was required to prepare and submit this

document to MCOLES pursuant to Mich. Comp. Laws § 28.561 et seq. and Mich. Admin.

Code R. 28.14509. (ECF No. 38, PageID.2699.)

Plaintiff filed this lawsuit in July 2024. Plaintiff alleges that Defendants violated his

First and Fourteenth Amendment rights by, inter alia, constructively discharging him and

retaliating against him for his exercise of protected speech. Following discovery,

Defendants moved for summary judgment. (ECF No. 32.) Plaintiff responded (ECF No.

36), and Defendants replied (ECF No. 38).

II. Summary Judgment Standard

Summary judgment under Federal Rule of Civil Procedure 56(a) is proper when

“there is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” When reviewing the record, “the court must view the evidence in the

light most favorable to the non-moving party and draw all reasonable inferences in its

favor.” United States S.E.C. v. Sierra Brokerage Servs., Inc., 712 F.3d 321, 327 (6th Cir.

2013) (quoting Tysinger v. Police Dep’t of Zanesville, 463 F.3d 569, 572 (6th Cir. 2006)).

“‘[S]ubstantive law will identify which facts are material,’ and ‘summary judgment will not

lie if the dispute about a material fact is genuine, that is, if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.’” Id. (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The moving party bears the initial burden

“of establishing the ‘absence of evidence to support the nonmoving party’s case.’”

Spurlock v. Whitley, 79 F. App’x 837, 839 (6th Cir. 2003) (quoting Celotex Corp. v. Catrett,

477 U.S. 317, 325 (1986)). “Once the moving party has met its burden, the nonmoving

party ‘must present affirmative evidence on critical issues sufficient to allow a jury to return

a verdict in its favor.’” Id. (quoting Guarino v. Brookfield Twp. Trs., 980 F.2d 399, 403 (6th

Cir. 1992)).

III. Analysis

A. Constructive Discharge

Plaintiff’s First and Fourteenth Amendment claims are both based, at least in part,

on allegations that Plaintiff was constructively discharged. (See ECF No. 17, PageID.196,

199.) The first basis on which Defendants move for summary judgment is that “Plaintiff

cannot prove that he was constructively discharged” because he cannot overcome the

presumption that his resignation was voluntary. (ECF No. 32, PageID.353, 371.) In

response, Plaintiff contends that Defendants created an intolerable working environment

by subjecting him to a “sham” investigation, thus forcing him to retire. (ECF No. 36,

PageID.1169.)

“A constructive discharge occurs when the employer, rather than acting directly,

deliberately makes an employee's working conditions so intolerable that the employee is

forced into an involuntary resignation.” Laster v. City of Kalamazoo, 746 F.3d 714, 727

(6th Cir. 2014) (quoting Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir. 1987)).

“In general,” however, “employee resignations are presumed to be voluntary.” Rhoads v.

Bd. of Educ., 103 F. App’x 888, 895 (6th Cir. 2004). An employee may rebut this

presumption and prove constructive discharge by showing that “an objectively reasonable

person would, under the totality of the circumstances, feel compelled to resign if he were

in the employee's position.” Id. (citation omitted). “Relevant to this inquiry are ‘(1) whether

the employee was given an alternative to resignation, (2) whether the employee

understood the nature of the choice [he] was given, (3) whether the employee was given

a reasonable time in which to choose, and (4) whether the employee could select the

effective date of resignation.’” Id. (quoting Lenz v. Dewey, 64 F.3d 547, 552 (10th Cir.

1995)). “The mere fact that an employee is forced to choose between resignation and

termination does not alone establish that a subsequent choice to resign is involuntary,

provided that the employer had good cause to believe there were grounds for

termination.” Id.

The Sixth Circuit’s analysis in Rhoads offers a useful illustration of these standards.

There, the plaintiff voluntarily resigned from her position as a school bus driver after failing

a random drug test. Id. at 889. The school district “presented [the plaintiff] with a choice

between termination—which was required under the district’s policy because she had

tested positive for marijuana—and resignation.” Id. at 895. The plaintiff was given

approximately seven hours to make this decision, and she “clearly understood” the

“ramifications” of her decision to retire. Id. “[S]he was not pressured to make her decision

immediately or otherwise coerced into making an uninformed judgment.” Id. Thus, “[i]n

light of the presumption that resignations are voluntary,” the Sixth Circuit found that “a

jury could not conclude on the basis of the evidence presented that a reasonable person

would, if in Rhoads's position, feel compelled to resign.” Id.

Here, likewise, the evidence in the record fails to overcome the presumption of

voluntary resignation. Application of the four factors in Rhoads demonstrates that

Plaintiff’s retirement was voluntary. First, Plaintiff had an alternative to resigning, as he

could have chosen to remain employed by the County and contested the investigation.

The fact that he feared or expected disciplinary consequences if he remained employed

does not establish that he was constructively discharged. See Rhoads, 103 F. App’x at

895 (“The mere fact that an employee is forced to choose between resignation and

termination does not alone establish that a subsequent choice to resign is

involuntary….”). Second, Plaintiff understood that he had a choice between facing

discipline (or, at minimum, continued investigation) or retiring voluntarily, and the terms of

his retirement were set forth in a document signed by Plaintiff, the Sheriff, and two

witnesses. (See ECF No. 36-24.)4 Third, Plaintiff was given at least three days to choose

between retirement and continued employment (ECF No. 36-14, PageID.2436), which is

longer than the approximately seven hours that the Sixth Circuit deemed reasonable in

Rhoads. And fourth, Plaintiff was allowed to choose the effective date of his resignation.

(ECF No. 36-19, PageID.2578.) Thus, just like in Rhoads, a reasonable jury could not find

that Plaintiff’s resignation was effectively involuntary.

As both parties acknowledge, however, there is an exception to the presumption

of voluntary resignation where the employer threatens disciplinary action without good

cause to believe that grounds for discipline exist. Hargray v. City of Hallandale, 57 F.3d

1560, 1568 (11th Cir. 1995); Rhoads, 103 F. App’x at 895. Defendants argue that they

had good cause to believe that Plaintiff was the leaker, and therefore subject to discipline

or continued investigation, because (1) Plaintiff had access to all of the leaked

information, (2) Deputy Cronkright had implicated Plaintiff in the leaks, and (3) Plaintiff

was dishonest in his interview with Pohl when he denied speaking with Goodrich. (ECF

No. 32, PageID.373.) Plaintiff responds that good cause did not exist because Plaintiff

4 While, as discussed above, Plaintiff’s and Sellers’ recollections differ slightly as to what

the alternative to resignation would be—another interview followed by potential discipline

(in Sellers’ telling) or discipline (in Plaintiff’s telling)—the slight disagreement is not

significant enough for the Court to conclude that Plaintiff did not understand the

ramifications of his decision such that his decision to retire was involuntary. The nature of

the putative discipline was not yet known (although Plaintiff suspected it would be

termination) and both Sellers and Plaintiff recall discussing review of any disciplinary

action by an arbitrator. Thus, Plaintiff was aware that he faced, at minimum, a possibility

of discipline that he would have the opportunity to contest.

was only one of several people with access to all of the leaked information and Deputy

Cronkright “had clear motivation to try to clear his name.” (ECF No. 36, PageID.1170.)

The parties do not provide a definition of “good cause” in this context. But in

Hargray, a case cited by both parties for the “good cause” standard, the Eleventh Circuit

found that good cause existed when there was “no evidence to suggest” that the plaintiff’s

former employer “knew or believed the charges of [misconduct] could not be

substantiated.” 57 F.3d at 1569. Here, likewise, there is no evidence that Sheriff King or

his subordinates knew or believed that grounds for further investigation or discipline did

not exist. Indeed, they had grounds to believe, at minimum, that Plaintiff had been

dishonest when he denied speaking to Goodrich (see ECF No. 36-2, PageID.1410) after

Deputy Cronkright submitted a statement stating that Plaintiff had spoken to Goodrich

and implicated Plaintiff in the leaks (ECF No. 32-16, PageID.1125). While, for reasons

discussed below, there is circumstantial evidence that the investigation may have been

at least partially motivated by a desire to punish Plaintiff for his complaint to HR, there

was also a sufficient basis for Sheriff King and his subordinates to believe that discipline

or further investigation was warranted at the time that Plaintiff chose to retire. Accordingly,

the no-good-cause exception does not apply in this case.

For the foregoing reasons, a reasonable jury could not conclude that Plaintiff’s

resignation was involuntary. See Rhodes, 103 F. App’x at 895. Summary judgment is

therefore GRANTED as to Plaintiff’s First and Fourteenth Amendment claims to the extent

that they are based on Plaintiff’s alleged constructive discharge.

B. First Amendment Retaliation

Defendants next move for summary judgment on the basis that Plaintiff cannot

prevail on his First Amendment retaliation claim. (ECF No. 32, PageID.374.) “First

Amendment retaliation claims are analyzed under a burden-shifting framework.” Dye v.

Off. of the Racing Comm'n, 702 F.3d 286, 294 (6th Cir. 2012). “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.’” Id. (quoting

Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 255 (6th Cir. 2006)). The burden

then shifts to Defendants to show “by a preponderance of the evidence that the

employment decision would have been the same absent the protected conduct.” Id.

(quoting Eckerman v. Tenn. Dep't of Safety, 636 F.3d 202, 208 (6th Cir. 2010)). “Once this

shift has occurred, summary judgment is warranted if, in light of the evidence viewed in

the light most favorable to the plaintiff, no reasonable juror could fail to return a verdict for

the defendant.” Id. at 294-95 (quoting Eckerman, 636 F.3d at 208).

1. Protected Speech

The First Amendment protects an individual speaking as a public citizen regarding

a matter of public concern. Lane v. Franks, 573 U.S. 228, 235-36 (2014). Speech is

protected where (1) the speech relates to a “matter of public concern,” (2) the speech is

not made pursuant to the employee’s official duties, and (3) “the employee’s interest in

speaking, on balance, outweigh[s] the government’s interest in promoting an efficient

workplace and providing public services.” Ashford v. Univ. of Michigan, 89 F.4th 960, 971

(6th Cir. 2024). The speech at issue here—Plaintiff’s complaint to HR—satisfies all three

elements of this test.

First, the speech at issue involved a “matter of public concern.” Id. “[S]tatements

reporting instances of maladministration, to authorities both within and outside of an

employee's chain of command, constitute speech on a matter of public concern.” Id.

(quoting Buddenberg v. Weisdack, 939 F.3d 732, 739 (6th Cir. 2019)) (cleaned up). “[H]ow

police departments operate is an ‘obvious[]’ public concern.” Id. (quoting Solomon v.

Royal Oak Township, 842 F.2d 862, 865 (6th Cir. 1988)). Plaintiff’s complaint to HR about

alleged maladministration within a law-enforcement agency—specifically, the alleged

preferential treatment of Sheriff King’s brother after the drunk-driving arrest—relates to a

matter of public concern under Sixth Circuit precedent.

Second, Plaintiff’s report to HR was not made “pursuant to [his] ordinary official

duties.” Id. “Whether speech falls within a public employee's official duties does not turn

solely on whether the speech contained information they obtained as a result of their

employment… but depends primarily on whether the speech is ordinarily within the scope

of an employee's duties.” Id. at 972 (internal citations and quotation marks omitted).

“Speech made outside an individual's chain of command is less likely to be within an

employee's ordinary job responsibilities, as is speech that an employee's ordinary job

responsibilities would not require them to make.” Id. (collecting cases). For instance, in

Buddenberg, the Sixth Circuit held that a county employee’s report to the county board of

health regarding apparent sex-based pay disparities and possible ethics violations by one

of her superiors (as alleged in her complaint) was not made pursuant to her official job

duties because (1) her “ordinary duties did not include reporting employee misconduct to

the Board,” and (2) she “went outside the chain of command by bringing her complaints

to the Board.” Buddenberg v. Weisdack, 939 F.3d 732, 740 (6th Cir. 2019). So too here.

Neither party asserts that Plaintiff’s ordinary job duties included reporting perceived

misconduct to HR. And HR was not within Plaintiff’s chain of command; indeed, Plaintiff

testified that he went to HR precisely because it was “outside [his] department,” and he

was later informed that HR had no authority over the Sheriff. (ECF No. 36-2,

PageID.1378.)

Third, Plaintiff’s interest in exposing what he perceived to be favoritism or nepotism

within the Sheriff’s office “outweighs ‘the interest of the State, as an employer, in

promoting the efficiency of the public services it performs through its employees.’”

Ashford, 89 F.4th at 971 (quoting Buddenberg, 939 F.3d at 739). This is sometimes called

“Pickering balancing.” Id. at 973; see Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205,

Will Cnty., Illinois, 391 U.S. 563, 568 (1968). “[A]s the Supreme Court has explained, in

cases involving allegations of official misconduct and public corruption, ‘the employer's

side of the Pickering scale is entirely empty.’” Buddenberg, 939 F.3d at 740 (quoting Lane,

573 U.S. at 242). This remains true in the law-enforcement context, as “public safety

employers [do not] have a greater weight placed on their interests in order and discipline

than other employers have in their institutional interests.” Ashford, 89 F.4th at 973 (quoting

Mosholder v. Barnhardt, 679 F.3d 443, 451 (6th Cir. 2012)). Since Plaintiff alleged “official

misconduct” by the Sheriff in the form of obtaining special treatment for his brother,

Plaintiff’s interest in speaking outweighs Defendants’ interest in efficiently providing public

services. See Buddenberg, 939 F.3d at 740. Accordingly, Plaintiff’s HR complaint was

protected speech under the First Amendment.

2. Adverse Action

The second prong of Plaintiff’s prima facie requires him to show that he was

subjected to an adverse action that was “capable of deterring a person of ordinary

firmness from continuing to engage in the conduct.” Richards v. Perttu, 96 F.4th 911, 918

(6th Cir. 2024) (quoting Hill v. Lappin, 630 F.3d 468, 472 (6th Cir. 2010)) (emphasis in

original). The plaintiff need not show that the speech was actually deterred to satisfy this

requirement. Id. “[T]his element is not an overly difficult one for the plaintiff to meet.” Id.

(quoting Hill, 630 F.3d at 472). “[U]nless the claimed retaliatory action is truly

inconsequential, the plaintiff's claim should go to the jury.” Id. (quoting Bell v. Johnson,

308 F.3d 594, 603 (6th Cir. 2002)).

Plaintiff claims that he suffered three "adverse employment actions" sufficient to

support a retaliation claim: (1) "making him the target of a sham investigation that was

predetermined to end with finding Plaintiff as the leaker"; (2) making formal disciplinary

findings against Plaintiff; and (3) "constructively discharg[ing]" Plaintiff when he was

"forced to retire." (ECF No. 36, PageID.1167.) For reasons already discussed, the Court

does not find that Plaintiff was constructively discharged. See Part III.A, supra. The Court

will therefore address the alleged “sham” investigation and the disciplinary findings.

a. “Sham” Investigation

Plaintiff contends that Defendants subjected him to an adverse employment action

when they conducted an “investigation designed to find his [] guilt, despite doing nothing

wrong.” (ECF No. 36, PageID.1168-69.) Plaintiff points to Pasley v. Conerly, 345 F. App’x

981 (6th Cir. 2009), and Scott v. Churchill, 377 F.3d 565 (6th Cir. 2004), for the proposition

that “the mere potential threat of disciplinary sanctions is sufficiently adverse action to

support a claim of retaliation.” Pasley, 345 F. App’x at 985 (quoting Scott, 377 F.3d at 571-

72). In Pasley, the Sixth Circuit held that a prison official’s threat to move a prisoner “out

of his unit so that he would lose his job” and “use her influence with a warden to have him

moved to a location where his family would not be able to visit him” gave rise to a First

Amendment retaliation claim. Id. And in Scott, a prison guard retaliated against an inmate

after the inmate threatened to report the guard by filing a false major-misconduct charge

against the inmate; if successful, the charge could have resulted in “higher security

classification, placement in administrative segregation, or forfeiture of good-time credits.”

Scott, 377 F.3d at 567.

Defendants respond that Plaintiff’s argument about the threat of disciplinary action

is irrelevant because “it is undisputed that no such threat was ever made.” (ECF No. 38,

PageID.2698.) While Defendants are apparently correct that Sheriff King and his

subordinates never directly threatened Plaintiff with termination or other discipline, the

“threat” at issue was not a verbal threat. Plaintiff contends that Sheriff King retaliated

against him by launching an investigation that was “designed to find his guilt” and could

result in discipline. (ECF No. 36, PageID.1169.) In the same way, the adverse action taken

in Scott was not just that the plaintiff was verbally threatened, but that the plaintiff was

wrongfully subjected to charges that, if successful, would have resulted in disciplinary

consequences. See Scott, 377 F.3d at 567. Because a pretextual investigation would

similarly result in disciplinary consequences (including, possibly, termination), the Court

agrees that such a pretextual investigation could dissuade a person of ordinary firmness

from speaking out against an employer.

The Court also finds it significant that Plaintiff’s prospects for future employment

may have been affected by the investigation. Actions that threaten the plaintiff’s livelihood

or economic interests may constitute adverse action. Fritz v. Charter Twp. of Comstock,

592 F.3d 718, 728 (6th Cir. 2010); Harris v. Bornhorst, 513 F.3d 503, 519 (6th Cir. 2008).

Sheriff King executed an MCOLES separation affidavit indicating that Plaintiff “[r]etired

under investigation.” (ECF No. 36-22, PageID.2652.) Sellers testified that this could have

a negative impact on Plaintiff’s ability to obtain work in law enforcement in the future, if

he chose to pursue such opportunities. (ECF No. 36-19, PageID.2594.)5 Defendants do

not dispute this testimony but merely insist that the affidavit "had to be completed that

way" because Plaintiff was in fact “under investigation when he retired.” (ECF No. 38,

PageID.2699.) Of course, as Sheriff King acknowledged in his deposition, the

investigation was initiated at his direction, and he could have terminated the investigation

if he chose to do so. (ECF No. 32-2, PageID.474-77, 562.) Assuming it is true that the

Sheriff had no choice but to state that Plaintiff retired under investigation, the fact that he

had to do this only establishes that his choice to carry out the investigation had

foreseeable negative consequences for Plaintiff’s career prospects.

The allegedly retaliatory investigation created a threat of disciplinary

consequences and may impair Plaintiff’s ability to find work in law enforcement in the

future. Such consequences are significant enough that they are capable of deterring a

person of ordinary firmness from exercising First Amendment rights. The investigation

5 While Sellers recalls that Plaintiff did not have any interest in working at another-law

enforcement agency (id.), Plaintiff maintains that he would like to find another job in law

enforcement commensurate with his old position (ECF No. 36-2, PageID.1209-10).

therefore qualifies as an adverse action if it was motivated by a desire to retaliate against

Plaintiff for his exercise of First Amendment protected speech.

b. Formal Disciplinary Findings

Plaintiff claims that Defendants made “findings against him” that are “permanently

on Plaintiff’s record going forward.” (ECF No. 36, PageID.1169.) These “findings” are

apparently limited to Captain Pohl’s internal investigation report, which found that Plaintiff

violated the Department’s truthfulness, loyalty, and standard of conduct policies. (ECF

No. 32-13, PageID.1107.) After completing the report, Captain Pohl placed a copy in a

physical file folder. (ECF No. 32-8, PageID.825-26.) Plaintiff points to no evidence

establishing that these findings were shared with a third party or would be shared in the

future (other than in discovery in this lawsuit). To the extent that the “formal disciplinary

findings” are separate from the investigation itself as an act of retaliation, there is no

indication that the findings harmed Plaintiff’s reputation or otherwise caused Plaintiff any

material injury. They are therefore non-actionable as a matter of law. See Wurzelbacher

v. Jones-Kelley, 675 F.3d 580, 584 (6th Cir. 2012) (citations omitted) (affirming dismissal

of retaliation claim where plaintiff “did not suffer a threat to his economic livelihood,” “was

not defamed,” “did not endure a search or seizure of property,” and “did not experience

the public disclosure of intimate or embarrassing information”). So, while the alleged

“sham” investigation may constitute an adverse action for First Amendment purposes, the

mere fact that disciplinary “findings” were made against Plaintiff does not.

3. Causation

The third prong of Plaintiff’s prima facie case requires him to show that “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.” Ashford, 89 F.4th at 974 (quoting Dye,

702 F.3d at 294). If Plaintiff establishes that the retaliatory action was caused, at least in

part, by his protected speech, Defendants have the burden of showing, by a

preponderance of the evidence, that they would have taken the same alleged retaliatory

action absent the protected conduct. Ashford, 89 F.4th at 974. But “[u]nlike in the

McDonnell Douglas burden-shifting framework, the burden does not shift back to a

plaintiff to show pretext in First Amendment retaliation claims.” Dye, 702 F.3d at 295.

Defendants argue that Plaintiff cannot prove causation because "Plaintiff cannot

establish that the investigation would not have taken place had he not gone to human

resources." (ECF No. 32, PageID.375.) In response, Plaintiff identifies two pieces of

circumstantial evidence supporting causation. First, Plaintiff points to the temporal

proximity (or lack thereof) between the leaks and the investigation: Plaintiff observes that

"Defendants waited more than two weeks after Lindke's initial posts on November 9 to

launch an investigation into the social media leak, doing so only after Plaintiff's complaint

[to HR]." (ECF No. 36, PageID.1171.) Second, Plaintiff argues that Deputy Cronkright was

not subjected to the same degree of scrutiny as Plaintiff, despite Deputy Cronkright’s

admission that he provided at least some information about the arrest to Goodrich. (Id. at

PageID.1172.)

Plaintiff has carried his burden to show a prima facie case of causation. “Temporal

proximity between the protected activity and the adverse action can support a causal

connection.” Buddenberg, 939 F.3d at 741; see also Lee v. Cleveland Clinic Found., 676

F. App'x 488, 499 (6th Cir. 2017) (quoting Hamilton v. Gen. Elec. Co., 556 F.3d 428, 435

(6th Cir. 2009) (“[W]here an adverse employment action occurs very close in time after

an employer learns of protected activity, such temporal proximity between the events is

significant enough to constitute evidence of a causal connection for the purposes of

satisfying a prima facie case of retaliation.”) The fact that Sheriff King directed Captain

Pohl to begin an investigation on November 23, 2022—about two weeks after the leaks

began, but less than a week after Plaintiff informed Captain Pohl and Undersheriff

Spadafore about the HR complaint on November 17—supports an inference that Sheriff

King launched the investigation in response to Plaintiff’s complaint. The fact that Deputy

Cronkright received no discipline whatsoever, despite admitting to providing information

to Goodrich, also somewhat undermines the notion that the Sheriff and his subordinates

were solely motivated by a desire to find or punish the leaker. There is sufficient evidence

to suggest that the investigation was motivated, at least in part, by a desire to punish

Plaintiff for his complaint to HR.

Defendants respond that “the Sheriff had ample reason to investigate to determine

who was the source of the social media leaks independent of Plaintiff, and conducting

such an investigation is a legitimate, non-retaliatory/non-discriminatory reason.” (ECF No.

32, PageID.375-76.) It is certainly possible that the investigation was solely motivated by

the Sheriff’s desire to find the source of the leak. Yet, as discussed, there is also

circumstantial evidence suggesting that the investigation was motivated by the Sheriff’s

desire to punish Plaintiff’s report to HR. Both theories are plausible, but neither can be

proven conclusively at this stage.

"[I]n the First Amendment context, ‘[a] defendant's motivation for taking action

against the plaintiff is usually a matter best suited for the jury.’" Dye, 702 F.3d at 308

(quoting Paige v. Coyner, 614 F.3d 273, 282 (6th Cir.2010)). This case is no exception.

There is a genuine issue of material fact as to the motivations underlying the Sheriff's

actions, such that a reasonable factfinder could conclude that "the adverse action was

motivated at least in part by [Plaintiff’s] protected conduct.” Ashford, 89 F.4th at 974

(quoting Dye, 702 F.3d at 294). Summary judgment on the issue of causation is therefore

improper.

4. Elrod/Branti

Defendants also claim that Plaintiff’s First Amendment claim fails under the

Elrod/Branti exception. This doctrine provides that “public employees in ‘policymaking or

confidential positions’ may be terminated for politically-motivated reasons without

violating the First Amendment.” Simasko v. Cnty. of St. Clair, 417 F.3d 559, 562 (6th Cir.

2005); see Elrod v. Burns, 427 U.S. 347, 367-68 (1976) (plurality opinion); Branti v. Finkel,

445 U.S. 507, 517 (1980). “The Elrod/Branti exception applies not only to discharges

based on political affiliation, but also to terminations based on actual speech.” Simasko,

417 F.3d at 562 (citation omitted). In determining whether Elrod/Branti applies, the Court

must examine the “inherent duties of the position, rather than the actual tasks undertaken

by the employee.” Latham v. Off. of Atty. Gen. of State of Ohio, 395 F.3d 261, 267 (6th

Cir. 2005) (citation omitted). “While the ‘inherent duties of the position’ are not necessarily

those that appear in the written job description and authorizing statute, such descriptions

can be instructive.” Id. (citation omitted). “[T]he ultimate inquiry is not whether the label

‘policymaker’ or ‘confidential’ fits a particular position; rather, the question is whether...

party affiliation is an appropriate requirement for the effective performance of the public

office involved.” Cagle v. Headley, 148 F. App'x 442, 445 (6th Cir. 2005) (quoting Branti,

445 U.S. at 518).

The Sixth Circuit has outlined four categories of employees who may be

discharged for their political speech or beliefs under Elrod/Branti:

Category One: positions specifically named in relevant federal, state,

county, or municipal law to which discretionary authority with respect to the

enforcement of that law or the carrying out of some other policy of political

concern is granted;

Category Two: positions to which a significant portion of the total

discretionary authority available to category one position-holders has been

delegated; or positions not named in law, possessing by virtue of the

jurisdiction's pattern or practice the same quantum or type of discretionary

authority commonly held by category one positions in other jurisdictions;

Category Three: confidential advisors who spend a significant portion of

their time on the job advising category one or category two position-holders

on how to exercise their statutory or delegated policymaking authority, or

other confidential employees who control the lines of communications to

category one positions, category two positions or confidential advisors;

Category Four: positions that are part of a group of positions filled by

balancing out political party representation, or that are filled by balancing

out selections made by different governmental agents or bodies.

McCloud v. Testa, 97 F.3d 1536, 1557 (6th Cir. 1996) (footnotes omitted). On the other

hand, “positions that exercise ‘no discretion of political significance’ are generally entitled

to First Amendment protection.” Back v. Hall, 537 F.3d 552, 556 (6th Cir. 2008) (quoting

id. at 1559).

Defendants argue that Plaintiff is a category three official within the McCloud

framework because:

Plaintiff was one of four lieutenants who supervised an entire platoon of 12

officers on behalf of the Sheriff and thus “control the lines of

communications” to those officers, he was expected to “carry out the

directives and the missions of the sheriff,” he acted on behalf of the sheriff

and represented the sheriff in his absence, he appeared and spoke on

behalf of the sheriff at township board meetings, represented the sheriff at

community events, fire chief meetings, and on the honor guard.

(ECF No. 32, PageID.378-79.)

These activities do not make Plaintiff a category three official. The defining

characteristic of such officials is that they “advise[]” or “control the lines of communications

to” persons within category one or category two, who are typically high-level executive

decisionmakers or persons with similar authority. See McCloud, 97 F.3d at 1557, 1557

n.30. But Defendants do not suggest that Plaintiff routinely advised Sheriff King, a

category one official, or Undersheriff Spadafore and Captain Pohl, who might qualify as

category two officials, on how they should exercise their authority. Nor do Defendants

suggest that Plaintiff “control[ed] the lines of communication to” these individuals. Id. at

1557 (emphasis added). Rather, Plaintiff apparently “control[led] the lines of

communication” from those individuals to his inferiors. (See ECF No. 32, PageID.378.)

But merely having supervisory responsibilities does not take a government employee

outside of First Amendment protection. Indeed, one of the plaintiffs in Elrod was a chief

deputy sheriff who oversaw multiple departments, and the Supreme Court held that this

supervisory officer could not be terminated for political reasons. Elrod, 427 U.S. at 350-

51; see also McCloud, 97 F.3d at 1554 (observing that a “chief deputy sheriff of process

division who supervises all departments of a sheriff's office working on one floor of the

building housing the office,” like one of the plaintiffs in Elrod, “clearly fall[s] outside of the

Branti exception”). Thus, the fact that Plaintiff occupied a supervisory role in a law-

enforcement agency does not make him subject to termination or other adverse action

for political reasons under Elrod/Branti. Absent further evidence that Plaintiff advised the

Sheriff or exercised some “discretion of political significance” on the Sheriff’s behalf, the

Court cannot conclude that Elrod/Branti applies. See Back, 537 F.3d at 556.6

Cagle, discussed by Plaintiff and Defendants, offers a useful contrast to this case.

There, the Sixth Circuit found that the lieutenants of the Williamson County, Tennessee

sheriff’s department were category-three policymakers for the purpose of Elrod/Branti

where they were “the Sheriff’s primary advisers, implementers of policy and managers of

numerous deputy sheriffs.” Cagle, 148 F. App’x at 446-47. “The lieutenants also advised

the sheriff on policy and personnel matters, including employment decisions involving

promotion, demotion, termination and hiring.” Id. at 447. Further, the lieutenants “had

authority to assume command of the department in the absence of the sheriff” and the

plaintiff had exercised this authority in the past. Id. “The lieutenants, in short, were

collectively the sheriff’s second in command….” Id.

Plaintiff’s position is different from that of the lieutenants in Cagle in several

material respects. First, as noted, the record does not indicate that Plaintiff was one of

Sheriff King’s “primary advisers.” Cagle, 148 F. App’x at 446. Second, the lieutenants in

Cagle were directly subordinate to the sheriff in the chain of command or separated by

only one layer of command, see id. at 447, whereas Plaintiff was separated from Sheriff

King by at least two layers of command. Third, there is no indication that Plaintiff exercised

“command of the department in the absence of the sheriff.” Id. Plaintiff’s job description

contemplates that he will “[a]ssume command at investigations or emergency situations

6 As noted, Defendants also point to evidence that Plaintiff “represented” or “spoke on

behalf” of the Sheriff at township board meetings and community events, such as

parades, 4H fairs and the honor guard. Defendants do not supply any caselaw or

reasoning to explain how these responsibilities made Plaintiff an employee for whom

termination or other politically motivated adverse actions would be appropriate.

in the absence of the Undersheriff or Sheriff” (ECF No. 36-23, PageID.2655) but does not

suggest that Plaintiff would ever have occasion to take command of the entire 250-person

department.

Plaintiff may share the same title as the lieutenants in Cagle, but he did not advise

the Sheriff on policy matters or exercise the Sheriff’s discretionary authority in a politically

relevant way. Thus, the Court cannot conclude that Plaintiff occupied a confidential or

policymaking position subject to politically motivated discipline or retaliation under

Elrod/Branti.

Elrod/Branti is also inapplicable because Plaintiff’s complaint to HR cannot be

construed as a disagreement about politics or policy. The doctrine is typically applied in

cases of politically motivated “patronage dismissals.” See, e.g., Elrod, 427 U.S. at 358;

Branti, 445 U.S. at 514; see also Simasko, 417 F.3d at 562 (emphasis added) (“[P]ublic

employees in ‘policymaking or confidential positions’ may be terminated for politically-

motivated reasons without violating the First Amendment.”). While Defendants contend

that “Plaintiff’s alleged complaint to Human Resources is obviously a difference in the

Sheriff’s policy views” (ECF No. 38, PageID.2694), Defendants do not identify any specific

policy disagreement between Plaintiff and Sherrif King. Indeed, Plaintiff claims that he

was subjected to investigation in retaliation for his complaint to HR about a conflict of

interest, not for his disagreement with any policy views held by the Sheriff. Plaintiff alleges

retaliation for what essentially amounts to an ethics complaint, and “[s]uch complaints

cannot be brushed off as mere political or policy disagreements.” Kardasz v. Spranger,

No. 17-cv-10937, 2019 WL 1989021, at *4 (E.D. Mich. May 6, 2019) (declining to apply

Elrod/Branti exception where plaintiffs were discharged after complaining to county ethics

board).

In sum, there is a question of fact as to whether the Sheriff’s investigation was

motivated, at least in part, by a desire to retaliate against Plaintiff for speech protected

under the First Amendment. Defendants’ Elrod/Branti defense fails because Plaintiff did

not occupy a confidential or policymaking position, and the alleged retaliation was not

based on political or policy disagreements. For the foregoing reasons, summary judgment

on Plaintiff’s First Amendment claim is GRANTED to the extent that the claim is predicated

on a constructive discharge or the disciplinary findings that were not published to third

parties but is otherwise DENIED.

C. Due Process

The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution

provides that no State shall “deprive any person of life, liberty, or property, without due

process of law.” U.S. Const. amend. XIV, § 1. “An essential principle of due process is

that a deprivation of life, liberty, or property ‘be preceded by notice and opportunity for

hearing appropriate to the nature of the case.’” Cleveland Bd. of Educ. v. Loudermill, 470

U.S. 532, 542 (1985) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S.

306, 313 (1950)). “To establish a procedural due process claim pursuant to § 1983,

plaintiffs must establish three elements: (1) that they have a life, liberty, or property

interest protected by the Due Process Clause of the Fourteenth Amendment to the United

States Constitution, (2) that they were deprived of this protected interest within the

meaning of the Due Process Clause, and (3) that the state did not afford them adequate

procedural rights prior to depriving them of their protected interest.” Hahn v. Star Bank,

190 F.3d 708, 716 (6th Cir. 1999) (citing Zinermon v. Burch, 494 U.S. 113, 125-26 (1990)).

Plaintiff claims that he was unconstitutionally deprived of two constitutionally protected

interests without sufficient process.

First, Plaintiff contends that he was deprived of his property interest in continued

employment when he was constructively discharged. (ECF No. 17, PageID.198-99.) For

the reasons discussed above, Plaintiff cannot overcome the presumption that his

resignation was voluntary. Thus, Plaintiff’s resignation does not result in a constructive

discharge or a due process violation. See Rhoads, 103 F. App’x at 894 (“[I]f a plaintiff

resigns of her own free will, even as a result of the defendant's actions, then she

voluntarily relinquishes her property interest in continued employment, and the defendant

cannot be found to have deprived her of that interest without due process of law.”).

Second, Plaintiff contends that Defendants deprived him of his liberty interest in

his “good name, reputation, honor, and integrity” when they made disciplinary findings

against him after his resignation without giving him a chance to dispute them. (ECF No.

36, PageID.1175.) It is true that “[a] person's reputation, good name, honor, and integrity

are among the liberty interests protected by the due process clause of the fourteenth

amendment.” Quinn v. Shirey, 293 F.3d 315, 319 (6th Cir. 2002) (quoting Chilingirian v.

Boris, 882 F.2d 200, 205 (6th Cir.1989)). The Sixth Circuit has held that a public employee

is entitled to a “name-clearing hearing” to challenge a former employer’s defamatory or

stigmatizing statements where the following five requirements are satisfied:

First, the stigmatizing statements must be made in conjunction with the

plaintiff's termination from employment.... Second, a plaintiff is not deprived

of his liberty interest when the employer has alleged merely improper or

inadequate performance, incompetence, neglect of duty or malfeasance....

Third, the stigmatizing statements or charges must be made public. Fourth,

the plaintiff must claim that the charges made against him were false. Lastly,

the public dissemination must have been voluntary.

Id. at 320 (quoting Brown v. City of Niota, 214 F.3d 718, 722–23 (6th Cir.2000)). “Once a

plaintiff has established the existence of all five elements, he is entitled to a name-clearing

hearing if he requests one.” Id. (quoting Brown, 214 F.3d at 723.)

Plaintiff cannot satisfy the third requirement because there is no evidence that the

“stigmatizing statements”—the investigative findings against Plaintiff—were ever “made

public.” Id. (quoting Brown, 214 F.3d at 723); see also Loudermill, 470 U.S. at 547 n.13

(affirming dismissal of due process claims related to an “accusation of dishonesty”

because plaintiff did not “allege that the reasons for the dismissal were published”). As

discussed, it appears that the investigative findings were placed in a folder and never

disseminated to any third parties until they were produced in discovery in this case.

Because there is no evidence that any third party was aware of the disparaging

investigatory findings, Plaintiff cannot sustain a due process claim.7

Plaintiff cannot show that he was deprived of a property interest or a liberty interest

without due process of law. Accordingly, Defendant’s motion for summary judgment is

GRANTED as to the due process claims.

7 Plaintiff’s claim that he was deprived of a liberty interest in his reputation also fails

because there is no indication that Plaintiff ever requested a name-clearing hearing to

dispute the adverse disciplinary findings. See Quinn, 293 F.3d at 324 (“[A] plaintiff who

fails to allege that he has requested a hearing and was denied the same has no cause of

action, whether or not he had been informed of a right to a hearing before filing suit.”).

The Court cannot exactly fault Plaintiff for failing to request a hearing, since he would

have no reason to know about the disparaging findings until they were produced in

discovery. But, on the other hand, the fact that Plaintiff was never aware of the findings

until this lawsuit only underscores the point, made above, that Plaintiff’s reputation could

not have been damaged by disciplinary findings that were apparently never disclosed to

anyone outside the Sheriff’s office before this case.

D. Qualified Immunity

Defendants also assert that the claims against Sheriff King must be dismissed

under qualified immunity. The Court must consider “(1) whether, considering the

allegations in a light most favorable to the party injured, a constitutional right has been

violated, and (2) whether that right was clearly established” at the time of the violation.

Ashford, 89 F.4th at 970 (quoting Bazzi v. City of Dearborn, 658 F.3d 598, 606-07 (6th Cir.

2011)). “A right is clearly established if there is binding precedent from the Supreme Court,

the Sixth Circuit, the district court itself, or other circuits that is directly on point.” Gaspers

v. Ohio Dep't of Youth Servs., 648 F.3d 400, 417 (6th Cir. 2011) (quoting Risbridger v.

Connelly, 275 F.3d 565, 569 (6th Cir. 2002)). “This is not to say that an official action is

protected by qualified immunity unless the very action in question has previously been

held unlawful, but it is to say that in light of pre-existing law the unlawfulness must be

apparent.” Id. (quoting Wilson v. Layne, 526 U.S. 603, 615 (1999)). “Public officials could

‘still be on notice that their conduct violates established law even in novel factual

circumstances.’” Id. (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)).

On the first prong, the Court has already determined that there is a question of fact

as to whether Plaintiff’s First Amendment rights were violated when Sheriff King and his

subordinates allegedly retaliated against Plaintiff through their investigation and potential

discipline of him. On the second prong, Plaintiff’s exercise of First Amendment rights

under the circumstances described in this case are clearly established. “[T]here is no

doubt that there is a clearly established constitutional right to speak, even as a

government employee, on a matter of public concern regarding issues outside of one's

day-to-day job responsibilities, absent a showing that Pickering balancing favors the

government's particular interest in promoting efficiency or public safety.” Ashford, 89 F.4th

at 975 (citing Buddenberg, 939 F.3d at 739-40). It was also clearly established at the time

of the alleged constitutional violations that Plaintiff had a right to report perceived

misconduct within his workplace without retaliation. See Buddenberg, 939 F.3d at 741

(“Buddenberg's right to report public corruption, unethical conduct, and sex-based

discrimination within her workplace was clearly established.”).

Nor is Sheriff King entitled to qualified immunity under the Elrod/Branti defense. It

is clearly established that public employees who “exercise ‘no discretion of political

significance’ are generally entitled to First Amendment protection.” Back, 537 F.3d at 556

(quoting McCloud, 97 F.3d at 1559). As discussed, Plaintiff was not fired for his political

or policy views, so Elrod/Branti does not apply in this context. But even if it did, it is clearly

established that employees are not subject to dismissal under Elrod/Branti merely

because they occupy managerial or supervisory roles. See McCloud, 97 F.3d at 1558

(affirming denial of qualified immunity to group of “governmental middle managers”

absent further evidence of politically relevant discretion). The Sixth Circuit has expressly

stated that a “chief deputy sheriff of process division who supervises all departments of a

sheriff's office working on one floor of the building housing the office”—a position with

supervisory responsibilities similar to Plaintiff’s—would “clearly fall outside the Branti

exception.” Id. at 1554.8 Summary judgment on the basis of qualified immunity is therefore

DENIED.

8 In the Elrod/Branti context, a decision prohibiting the termination of an employee in a

similar position, not the same position, suffices to preclude qualified immunity. See Back,

537 F.3d at 557 (quoting McCloud, 97 F.3d at 1556) (“We have previously rejected ‘the

notion that there must be a separate patronage dismissal decision ... involving a particular

position before qualified immunity can be denied.’”).

E. Accord and Satisfaction

Defendants also seek summary judgment under the doctrine of accord and

satisfaction. Accord and satisfaction is an affirmative defense on which Defendants bear

the burden of proof. See Faith Reformed Church of Traverse City, Michigan v. Thompson,

639 N.W.2d 831, 833 (Mich. Ct. App. 2001). “An ‘accord’ is an agreement between parties

to give and accept, in settlement of a claim or previous agreement, something other than

that which is claimed to be due, and ‘satisfaction’ is the performance or execution of the

new agreement.” Id. “To prove the existence of an accord and satisfaction, a defendant

must show (1) its good-faith dispute of (2) an unliquidated claim of the plaintiff, (3) its

conditional tender of money in satisfaction of the claim, and (4) the plaintiff's acceptance

of the tender (5) while fully informed of the condition.” Id. at 833-34. The expression of

the condition must be "so clear, full and explicit that it is not susceptible of any other

interpretation." Nationwide Mut. Ins. Co. v. Quality Builders, Inc., 482 N.W.2d 474, 478

(Mich. Ct. App. 1992) (quoting Durkin v. Everhot Heater Co., 254 N.W. 187, 189 (Mich.

1934)).

Defendants argue that Plaintiff agreed to settle or release his claims against

Defendants by way of accord and satisfaction when he accepted the Sheriff’s voluntary

retirement proposal and entered into the December 14, 2022, agreement. (ECF No. 32,

PageID.380.) This argument fails because Defendants fail to show that Plaintiff was “fully

informed” of his purported release of claims against Defendants, the purported “condition”

of his voluntary retirement. See Faith Reformed Church, 639 N.W.2d at 834. The

December 14 agreement itself says nothing about a release of claims or waiver of rights

to sue Defendants. (See ECF No. 36-24.) And there is no evidence extrinsic to the

agreement clearly demonstrating that Plaintiff understood himself to be releasing

Defendants from any future claims. The most Defendants offer is Sellers’s testimony

characterizing the voluntary retirement deal as a “settlement agreement type thing.” (ECF

No. 36-19, PageID.2581.) The surrounding testimony, however, contains no reference to

a contemplated lawsuit by Plaintiff against Defendants or the possibility that Plaintiff was

waiving the right to bring such a lawsuit. Sellers’ use of the term “settlement” could just

as easily refer to a settlement of the investigation or the disciplinary proceedings. To the

extent that this statement can be construed as suggesting that the parties understood

Plaintiff’s voluntary retirement to be a waiver of a right to sue, it is hardly “so clear, full and

explicit that it is not susceptible of any other interpretation." Nationwide Mut. Ins. Co., 482

N.W.2d at 478 (quoting Durkin, 254 N.W. at 189). Defendants bear the burden of proof

on this defense, and they have not met it. The Court therefore DENIES summary

judgment on the accord and satisfaction theory.

F. Monell Liability

Finally, Defendants seek summary judgment in favor of the County because it

cannot be liable under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). Defendants

argue that Monell liability cannot attach because “Plaintiff cannot point to any County

policy or custom that caused the alleged deprivation of his rights.” (ECF No. 32,

PageID.381.) Plaintiff responds that the County is responsible for the Sheriff’s actions

because the Sheriff is an official whose “edicts or acts may fairly be said to represent

official policy.” (ECF No. 36, PageID.1178 (quoting Monell, 436 U.S. at 694)).

Under Monell and subsequent cases, an “official policy” often, but not always,

refers to “fixed plans of action to be followed under similar circumstances consistently

and over time.” Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81 (1986). But when a

governmental body’s “authorized decisionmakers” adopt a particular course of action, “it

surely represents an act of official government ‘policy’ as that term is commonly

understood.” Id. at 481. Thus, municipal liability attaches when a constitutional violation

is attributable to an official who “possesses final authority to establish municipal policy

with respect to the action ordered.” Id.

Here, Sheriff King’s actions can be imputed to the County under Monell. Sheriff

King testified that he had exclusive disciplinary authority within his department. (ECF No.

36-6, PageID.1725.) There is no indication that the Sheriff’s actions are subject to the

review of anyone else within the County. His actions therefore constitute the policy of the

County with respect to disciplinary actions within his own department—including his

department’s allegedly retaliatory investigation of Plaintiff. Since the alleged act of First

Amendment retaliation was an investigation carried out at the direction of an official whose

actions represent the official policy of the County, the Court DENIES summary judgment

on Monell liability.

IV. Conclusion

Summary judgment is GRANTED as to Plaintiff’s due process claim. Summary

judgment is GRANTED as to Plaintiff’s First Amendment theory to the extent that it relies

on Plaintiff’s alleged constructive discharge or the disciplinary findings that were not

shared with third parties before this lawsuit. Summary judgment is otherwise DENIED as

to Plaintiff’s First Amendment claim and is DENIED in all other respects.

SO ORDERED.

s/ Nancy G. Edmunds

Nancy G. Edmunds

United States District Judge

Dated: December 29, 2025

I hereby certify that a copy of the foregoing document was served upon counsel

of record on December 29, 2025, by electronic and/or ordinary mail.

s/ Marlena Williams

Case Manager