Jeff Dye v. Office of the Racing Comm'n

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 12a0409p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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JEFF DYE, TAMMIE ERSKINE, PATRICK HALL,

Plaintiffs-Appellants, --

and ERIC PERTTUNEN,

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No. 11-1828

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v.

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OFFICE OF THE RACING COMMISSION;

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CHRISTINE WHITE, individually and in her

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official capacity as Racing Commissioner;

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and GARY POST, individually and in his

Defendants-Appellees. -

official capacity as Deputy Commissioner,

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Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 2:09-cv-13048—Nancy G. Edmunds, District Judge.

Argued: October 4, 2012

Decided and Filed: December 18, 2012

Before: MERRITT, MOORE, and McKEAGUE, Circuit Judges.

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COUNSEL

ARGUED: Lisa C. Ward, Okemos, Michigan, for Appellants. Jeanmarie Miller,

OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for

Appellees. ON BRIEF: Lisa C. Ward, Okemos, Michigan, for Appellants. Jeanmarie

Miller, Margaret A. Nelson, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,

Lansing, Michigan, for Appellees.

MOORE, J., delivered the opinion of the court, in which MERRITT, J., joined.,

and McKEAGUE, J., joined in part. McKEAGUE, J. (pp. 31–46), delivered a separate

opinion concurring in part and dissenting in part.

1

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_________________

OPINION

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KAREN NELSON MOORE, Circuit Judge. Four racing stewards employed by

the State of Michigan argue that their Democratic supervisors retaliated against them for

voicing support for or being perceived as affiliated with the Republican candidate in the

2006 Michigan gubernatorial election. Although certain stewards openly endorsed this

candidate in the workplace, others remained silent. Nonetheless, all allege that they

were retaliated against on the basis of political speech and affiliation. These facts thus

present us with an issue of first impression for our court: whether individuals claiming

to have been retaliated against because of their political affiliation must show that they

were actually affiliated with the political party or candidate at issue. We believe that

they do not.

Plaintiffs-Appellants Jeff Dye, Tammie Erskine, Patrick Hall, and Eric Perttunen

(collectively, “the stewards”) appeal the district court’s grant of summary judgment in

favor of Defendants-Appellees former Racing Commissioner Christine White and former

Deputy Racing Commissioner Gary Post (collectively, “the defendants”). For the

reasons stated below, we reverse the district court with respect to Dye’s protected-speech

and political-affiliation retaliation claims and part of the stewards’ political-affiliation

retaliation claims. We affirm the remainder of the district court’s grant of summary

judgment.

I. BACKGROUND

The Office of the Racing Commissioner (“ORC”) is a state government agency

that regulates the Michigan horse-racing industry. The ORC hires racing stewards as

independent contractors to perform regulatory, judging, and enforcement functions in

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 3

conjunction with the three types of horse races that occur in Michigan: Harness,

Thoroughbred, and Quarter Horse.

The plaintiffs in this case were appointed as racing stewards in the 1980s and

1990s. Patrick Hall was appointed on March 17, 1980, and currently works as a state

steward for the Michigan Gaming Board. Jeff Dye was appointed on April 22, 1988, and

was promoted to Administrative Liaison Steward in 1998. Dye was demoted to State

Steward on December 31, 2006, and was terminated in June 2009. Eric Perttunen was

appointed on March 22, 1994, and remains employed as a racing steward for the

Michigan Gaming Board. Tammie Erskine was appointed on September 20, 1999, and

was terminated on June 6, 2009.

The claims brought by the stewards require an understanding of the political

context in Michigan and within the ORC during the 2005-2007 period. In 2005, when

the alleged speech began, Democrat Jennifer Granholm was the Governor of Michigan.

In January 2005, Granholm appointed White to serve as Racing Commissioner, and

White was confirmed in October 2005 after a confirmation hearing before the state

Senate. In the fall of 2006, Granholm was successful in her bid for reelection against

Republican candidate Dick DeVos. White remained Racing Commissioner until July

2009.

Prior to being confirmed, White served as interim Racing Commissioner and was

present in the agency on a daily basis leading up to the confirmation hearings. In July

2006, White hired Gary Post as a contract management consultant. When his assignment

was complete in September 2006, White appointed him to the Deputy Racing

Commissioner position, which he began on October 11, 2006.

After White’s confirmation and Post’s appointment, the defendants began making

administrative changes to the stewards’ job duties, timekeeping procedures, number of

days worked, and travel reimbursements. In October or November of 2006, Post told

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 4

Dye that White planned to eliminate the Administrative Liaison Steward position at the

expiration of Dye’s contract on December 31, 2006. Dye continued working as a racing

steward until both he and Erskine were terminated in June 2009. The stewards argue

that these actions were taken in retaliation for their being perceived as affiliated with the

Republican Party and having engaged in protected speech during the 2006 gubernatorial

election and confirmation process.

The plaintiffs filed a civil action in the U.S. District Court for the Eastern District

of Michigan alleging a § 1983 First Amendment retaliation claim against the ORC;

White, individually and in her official capacity as Racing Commissioner; and Post,

individually and in his official capacity as Deputy Commissioner. The parties stipulated

to dismiss with prejudice the claims against the ORC and White in her official capacity,

and the district court granted in part and denied in part a dismissal motion with respect

to the declaratory and injunctive relief claims against Post in his official capacity.

The remaining defendants brought a motion for summary judgment before the

district court, arguing that the stewards could not provide evidence to sustain their

burden. The district court granted the motion and entered judgment for the defendants.

Additionally, in the order granting summary judgment, the district court dismissed all

claims against Post in his official capacity as moot given that Post is no longer employed

in any state capacity. Dye v. Office of Racing Comm’n, No. 09-13048, 2011 WL

2144485, at *1 (E.D. Mich. May 31, 2011).

II. PROTECTED FIRST AMENDMENT ACTIVITY

At issue in this appeal are claims of retaliation based on protected speech

(“protected-speech retaliation”) and retaliation based on political affiliation (“political-

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 5

affiliation retaliation”).1 Protected-speech retaliation and political-affiliation retaliation

are both governed by the First Amendment retaliation doctrine.2

A. Standard for First Amendment Retaliation Claims

We review de novo a district court’s grant of summary judgment. Int’l Union v.

Cummins, Inc., 434 F.3d 478, 483 (6th Cir. 2006). We review the evidence and draw all

inferences in the light most favorable to the stewards as the nonmoving parties. Id.

First Amendment retaliation claims are analyzed under a burden-shifting

framework. A plaintiff must first make a prima facie case of retaliation, which

comprises the following elements: “(1) he engaged in constitutionally protected speech

or conduct; (2) an adverse action was taken against him that would deter a person of

ordinary firmness from continuing to engage in that conduct; (3) there is a causal

connection between elements one and two—that is, the adverse action was motivated at

least in part by his protected conduct.” Scarbrough v. Morgan Cnty. Bd. of Educ.,

470 F.3d 250, 255 (6th Cir. 2006). If the employee establishes a prima facie case, the

burden then shifts to the employer to demonstrate “by a preponderance of the evidence

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

Eckerman v. Tenn. Dep’t of Safety, 636 F.3d 202, 208 (6th Cir. 2010) (internal quotation

1

The stewards also cite political-patronage dismissal cases in their brief. Although this raises

some ambiguity as to the nature of the claim, the record suggests that they are asserting a political-

affiliation retaliation claim rather than a political-patronage dismissal claim. The operative complaint

alleges that “Defendants’ actions in limiting and terminating Plaintiffs’ employment because of their

constitutionally protected speech and political association abridged their rights to freedom of speech and

political association in violation of the First and Fourteenth Amendments to the U.S. Constitution.” R. 14

(Second Am. Compl. at ¶ 61) (Page ID #76). The complaint also specifically alleges retaliation for

political views: “In retaliation for their differing political views . . . .” Id. at ¶ 40 (Page ID #73).

Further, the legal framework for a political-patronage dismissal claim is entirely distinct from a

First Amendment retaliation claim. Under the political-patronage doctrine, we must first “ask[] whether

the party asserting that he was wrongfully terminated has produced sufficient evidence for a jury to find

that he was discharged because of his political beliefs or affiliations.” Lane v. City of LaFollette, Tenn.,

490 F.3d 410, 419 (6th Cir. 2007). If this burden is met, “then the burden shifts to the employer to

demonstrate that the terminated party’s job was one for which political affiliation was an appropriate

requirement.” Id.

2

The Supreme Court has clearly established that First Amendment protections extend to

independent contractors hired by the state. O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712,

714–15 (1996).

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 6

marks omitted). “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. Unlike in the McDonnell

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

pretext in First Amendment retaliation claims.

B. Protected-Speech Retaliation Claim

The stewards appeal the district court’s determination that Erskine, Hall, and

Perttunen did not engage in protected speech. The district court concluded that Dye

engaged in protected speech when he vocalized his support for gubernatorial candidate

DeVos to Post and other employees in the office. Dye, 2011 WL 2144485, at *8. These

discussions were accurately depicted as protected speech by the district court,3 and

Dye’s claim therefore prevails at this stage. We will now turn to the alleged protected

speech of Erskine, Hall, and Perttunen.

In a protected-speech case, the court must first discern whether the speech is

protected. In order to establish this element, the stewards must show that the speech

touches on a matter of public concern. Scarbrough, 470 F.3d at 255. The Supreme

Court has defined “public concern” as speech “relating to any matter of political, social,

or other concern to the community.” Connick v. Myers, 461 U.S. 138, 146 (1983).

When speech does relate to a matter of public concern, the court must then apply

the Pickering balancing test “to determine if the employee’s free speech interests

outweigh the efficiency interests of the government as an employer.” Scarbrough,

470 F.3d at 255 (internal quotation marks omitted) (relying on Pickering v. Bd. of Educ.,

391 U.S. 563 (1968)). Considerations involved in this balancing test include “whether

the statement impairs discipline by superiors or harmony among co-workers, has a

3

Neither side disputes this conclusion or provides any evidence controverting the underlying

facts. Appellees Br. at 36, 43, 51.

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 7

detrimental impact on close working relationships for which personal loyalty and

confidence are necessary, or impedes the performance of the speaker’s duties or

interferes with the regular operation of the enterprise.” Rankin v. McPherson, 483 U.S.

378, 388 (1987).

1. Erskine

The stewards argue that Erskine engaged in protected speech when she declined

to testify at White’s confirmation hearing for fear of being fired, spoke to state senators

about White, and critiqued White’s performance as Racing Commissioner to her

coworkers. Appellants Br. at 19, 37. Erskine testified in her deposition that she had

discussions with the offices of two state senators. The first discussion occurred when

State Senator Gotchka contacted Erskine to discuss a complaint his office had received

regarding a discrepancy between the times clocked by two different race clockers at a

horse race. Even when reading her deposition testimony in the light most favorable to

the stewards, this alleged discussion appears to be nothing more than Erskine fielding

a complaint from a public official regarding the ORC’s policy of clocking horse races.

It simply makes no sense to construe this interaction as protected speech related to

White’s confirmation hearing or the gubernatorial election, the only two bases on which

the stewards seek relief.

State Senator Gotchka’s office subsequently asked Erskine if she would like to

testify against White at her confirmation hearing. Erskine testified that she declined to

speak at White’s confirmation hearing because “[White] was trying to find out

consistently who was involved in her confirmation hearing and had made statements to

other people that worked in the office.” R. 50-1 (Erskine Tr. at 72:11–14) (Page ID

#871). Erskine continued that “I chose not to for the fear of being fired. We were asked

to; and had we testified, the statement was, she probably wouldn’t have been

confirmed.” Id. at 73:10–12 (Page ID #872). Such an allegation, though, does not fit

into the protected-speech retaliation doctrine. If anything, Erskine is describing

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 8

preemptive behavior on the part of White rather than retaliatory actions. This is

confirmed by Erskine’s repeated denials, or statements that she cannot remember, that

she gave any information to the state senator’s office concerning White during any of

these conversations.

Additionally, after the confirmation, Erskine contacted State Senator Birkholz’s

office to gather more information on an accusation made by Erskine’s friend that White

had improperly spoken to state senators prior to her confirmation hearing. Specifically,

Erskine inquired as to whether any policy proscribed such behavior. Erskine testified

that she did not tell Senator Birkholz whether she supported White. As with the

discussion regarding the race clockers, this interaction with a state senator’s office

cannot support a claim of retaliation. A phone conversation with an aide in a state

senator’s office in which the sole question asked was whether a policy existed is vastly

different from filing a complaint, either written or oral, with a state senator concerning

opposition to a public official’s confirmation. Erskine attempts to categorize this phone

call as the latter, but the facts do not support reaching such a conclusion.

Erskine also testified that after working with White “on a day-to-day basis in a

working relationship,” she stopped supporting White and began discussing her

complaints with other employees, her family, and her peers. Id. at 57:1–58:5 (Page ID

#864). These comments, however, reflect matters of personal concern. See Thomson

v. Scheid, 977 F.2d 1017, 1020–21 (6th Cir. 1992) (“Not all matters discussed within a

government office are of public concern, and thus internal office communication does

not necessarily give rise to a constitutional claim.”). Although White is a public official,

the complaints mentioned by Erskine in the record are those of a personal nature that

come from working with White on a daily basis rather than those that touch on political,

policy, or social matters affecting the public. See Farhat v. Jopke, 370 F.3d 580, 593

(6th Cir. 2004) (“[V]iewed in the context of the complete record, we believe that the

primary focus, point, or communicative purpose of Appellant’s letters was his own

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 9

personal beef with the union and the school district concerning his deteriorating job

situation, and his references to collusion or corruption were passing references that were

incidental to the message conveyed. Thus his letters were not matters of public

concern.”) (internal quotation marks and footnotes omitted). Erskine testified that “it

would be a personal nature; but professionally, we had to support her;” “Well, it would

be, example of not liking someone but you have to work with them, you know; so you’re

professional and you do what you’re supposed to do and your duties;” and she discussed

with her peers that “I didn’t—I couldn’t believe or anybody else could believe she was

confirmed.” R. 50-1 (Erskine Tr. at 59:1–25) (Page ID #865). Erskine also mentioned

that she was critical of certain policies that White enacted, but she could not offer any

specific examples: “There were many occasions [Post and White] would do something,

and it was, like, they would call me, ask me my opinion. I would tell them. I was

critical of what was taking place.” Id. at 60:5–12. In sum, although Erskine spoke with

many people about her disapproval of White both personally and professionally, the

district court was correct in concluding that none of this testimony supports a finding

that Erskine engaged in protected speech.

2. Hall

The stewards argue that Hall engaged in protected speech when he asserted his

support for DeVos to licensees at races that he was working. Appellants Br. at 39. The

stewards cite excerpts of White’s deposition testimony to support this argument. Id.

White testified at her deposition that she had received complaints about Hall from

licensees that the ORC regulates and that she discussed these complaints at a meeting

with the stewards. White explained that the complaints detailed an instance in which

“Hall had been campaigning on—while he was duty [sic] with licensees that we

regulated.” R. 49-3 (White Tr. at 83:17–25) (Page ID #578).4

4

Additionally, the district court analyzed statements made by Hall in his deposition that he

expressed opposition to White’s confirmation to the other stewards. Dye, 2011 WL 2144485, at *10. As

the stewards do not make any arguments concerning these statements and do not cite this deposition

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 10

Although Hall’s speech touched on a matter of public concern—the gubernatorial

election—it was not protected speech under the Pickering balancing test. As the district

court observed, Hall’s speech “involved his urging licensees regulated by the ORC to

vote for DeVos and thus had the potential to interfere with the ORC’s efficacy and

efficiency.” Dye, 2011 WL 2144485, at *8. The law is clear that speech disruptive to

the effective operation of a government agency outweighs its First Amendment

protections. Waters v. Churchill, 511 U.S. 661, 681 (1994) (plurality opinion) (“As a

matter of law, this potential disruptiveness was enough to outweigh whatever First

Amendment value the speech might have had.”); Farhat v. Jopke, 370 F.3d 580, 594 (6th

Cir. 2004) (“Appellants ‘speech’ was highly disruptive to the point that it interfered with

the effective operation of the school district’s custodial staff.”). Hall’s speech was

plainly disruptive to the agency’s effective operation of its horse races. Hall was

campaigning for a gubernatorial candidate on-site during work hours to individuals

regulated by the agency. Therefore, the district court was correct in determining that this

was not protected speech.

3. Perttunen

The stewards do not provide any evidence that Perttunen engaged in protected

speech. The only evidence provided specific to Perttunen is deposition testimony in

which he states that “[t]here may have been discussions amongst stewards only about

who may be a better candidate for our industry to survive.” R. 47-6 (Perttunen Tr. at

54:2–4) (Page ID #368) (emphasis added). This evidence does not reflect that Perttunen

ever took part in these discussions or that these discussions even occurred. The district

court was therefore correct in determining that Perttunen did not provide evidence that

he engaged in protected speech.

testimony in their brief, any argument regarding these statements is abandoned. Thaddeus–X v. Blatter,

175 F.3d 378, 403 n.18 (6th Cir. 1999) (en banc).

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 11

In sum, the district court did not err in granting summary judgment for the

defendants on the political-speech retaliation claims of Erskine, Hall, and Perttunen or

in concluding that Dye engaged in protected speech.

C. Political-Affiliation Retaliation Claim

The stewards contend that the district court erred in granting summary judgment

for the defendants on the basis that none of the stewards had established that they were

affiliated with the Republican Party or gubernatorial candidate DeVos. Appellants Br.

at 25. Specifically, they argue that the district court improperly applied the protected-

speech retaliation standard when evaluating the political-affiliation retaliation

allegations. Id. at 30. The defendants rejoin that the stewards did not provide sufficient

evidence to support a claim of protected-speech or political-affiliation retaliation and

that the district court engaged in the correct analysis. Appellees Br. at 37.

1. Political-Affiliation Retaliation Claim Standard

The district court framed the political-affiliation allegations as those arising

under a retaliation claim; however, it then stated the basic principles of the political-

patronage dismissal standard—that taking adverse employment actions based on

political affiliation is unconstitutional under the First Amendment unless there exists a

vital governmental interest in doing so. Dye, 2011 WL 2144485, at *12. When it turned

to its analysis, the district court appeared to apply the retaliation standard that it had

outlined in the protected-speech portion of its order. Id. at *13. It is thus unclear which

standard the district court applied because under each test, a plaintiff must show that he

was adversely affected as a result of engaging in protected First Amendment activity.

This issue was the only one reached by the district court in this portion of its opinion.

Under either standard, the district court erred. The court summarily determined

that “[t]o the extent Plaintiffs’ association/ affiliation claim arises from their political

speech concerning the 2006 gubernatorial election, those claims are addressed above.”

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 12

Id. The court then concluded that because plaintiffs cannot show that White or Post

knew about their affiliation with the Republican Party, their political-affiliation

retaliation claim fails. Id. When utilized properly, however, the two standards can

produce distinct conclusions. For example, while an individual’s improper campaigning

during work hours may not be protected speech, it certainly could alert those who heard

the speech of his political affiliation, thereby fulfilling part of the political-affiliation

standard. Therefore, the district court erred in assuming that reviewing the same

evidence to determine if the stewards engaged in a different protected activity would

necessarily result in the same conclusion.

Moreover, the district court erred in its analysis of the stewards’ perceived

political-affiliation retaliation allegations by concluding that actual affiliation is

required. Id. at *12 n.8. At issue is whether an individual claiming to have been

retaliated against because of her political affiliation must show that she was actually

affiliated with the particular political group or candidate. Here, as will be shown in

greater detail below, the stewards have put forth evidence demonstrating that White and

Post operated under the assumption that each of the stewards was affiliated with DeVos

and the Republican Party.

We have not yet addressed whether actual affiliation is required for First

Amendment political-affiliation retaliation claims. The First Circuit squarely addressed

this issue in Welch v. Ciampa, 542 F.3d 927 (1st Cir. 2008), a case in which an employee

alleged that the defendants attributed to him an affiliation and retaliated against him as

a result. Id. at 938–39. The court discussed the evidence put forth by the employee as

follows: “But neither active campaigning for a competing party nor vocal opposition to

the defendant’s political persuasion are required. In this case, Welch adduced evidence

that officers who did not support the recall election were perceived as opposing it.” Id.

at 939. The First Circuit then concluded that “[w]hether Welch actually affiliated

himself with the anti-recall camp is not dispositive since the pro-recall camp attributed

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 13

to him that affiliation.” Id. The court further explained that although active support for

a political group would help an employee meet his evidentiary burden, such a showing

is not required in order to guarantee First Amendment protections. Id.

The Tenth Circuit has also recognized that the critical inquiry in certain political-

affiliation retaliation cases is the motivation of the employer, stating that the “only

relevant consideration is the impetus for the elected official’s employment decision vis-

a-vis the plaintiff, i.e., whether the elected official prefers to hire those who support or

affiliate with him and terminate those who do not.” Gann v. Cline, 519 F.3d 1090, 1094

(10th Cir. 2008). Moreover, Gann expressly rejected two concerns raised by the

defendant: “that it was impossible for Ms. Gann’s apolitical status to constitute a

substantial or motivating factor in his decision to discharge her because Ms. Gann never

made her political non-affiliation known to him” and that affording relief in this case

would “sanction[] future patronage claims by any public employee who keeps her

political beliefs private but suffers from an adverse employment decision.” Id. The

Tenth Circuit discredited these arguments by reiterating the well-established principle

that “a plaintiff must establish a causal link between the plaintiff’s political beliefs, or

lack thereof, and the defendant’s adverse employment decision with respect to the

plaintiff.” Id. The court further explained that “[t]here are, of course, many ways to

establish such a link beyond requiring a plaintiff to tell her boss that she does not

subscribe to his political beliefs.” Id.

The Third Circuit, however, has rejected a perceived-support theory, stating that

“Plaintiffs in First Amendment retaliation cases can sustain their burden of proof only

if their conduct was constitutionally protected.” Ambrose v. Twp. of Robinson, Pa.,

303 F.3d 488, 495 (3d Cir. 2002). The court relied upon the following statement in

Waters: “[w]e have never held that it is a violation of the Constitution for a government

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 14

employer to discharge an employee based on substantively incorrect information.”

Ambrose, 303 F.3d at 495 (quoting Waters, 511 U.S. at 679).5

An application of this principle in Waters to the First Amendment context,

however, is disingenuous. When read in context, it is clear that this sentence relates only

to due-process violations. In fact, the subsequent sentence references directly the due

process afforded public employees: “Where an employee has a property interest in her

job, the only protection we have found the Constitution gives her is a right to adequate

procedure.” Waters, 511 U.S. at 679. Moreover, we have previously recognized this

principle as one concerning due process: “[i]n Waters, a plurality of the Supreme Court

held the Connick test should be applied to what the government reasonably thought was

said, i.e. the government should not be held to the same evidentiary standards used by

a jury when making its decision whether or not to terminate an employee based on what

is thought to be unprotected speech.” Dambrot v. Cent. Mich. Univ., 55 F.3d 1177, 1189

n.9 (6th Cir. 1995). Given the plain meaning of Waters, along with our prior

interpretation of its holding, we find the Third Circuit’s conclusion unpersuasive.

For the reasons stated, we adopt the reasoning of the First and Tenth Circuits and

hold that retaliation based on perceived political affiliation is actionable under the

political-affiliation retaliation doctrine.

5

Several circuits have stated similar principles to those propounded by the Third Circuit, yet only

with respect to protected speech. Wasson v. Sonoma Cnty. Junior College, 203 F.3d 659, 663 (9th Cir.

2000) (“Accordingly, there can be no First Amendment claim when an employee is falsely accused of

making statements uttered by someone else.”); Jones v. Collins, 132 F.3d 1048, 1053 (5th Cir. 1998)

(“[R]etaliation based on this perception, in the absence of any actual expression by Jones that is subject

to First Amendment protection, does not constitute a constitutional violation.”); Barkoo v. Melby, 901 F.2d

613, 619 (7th Cir. 1990) (“To the extent Barkoo alleges that her employers retaliated against her because

they thought she was engaged in First Amendment protected speech on an issue of public concern, we

reject the notion that this allegation brings her claim within the requirements of § 1983.”). Because

perceived political-affiliation retaliation is the only issue before us now, we do not reach the question

whether a plaintiff can allege a protected-speech retaliation claim. See Welch, 542 F.3d at 938–39 (finding

an actionable political-affiliation retaliation claim where political affiliation was attributed to the plaintiff,

yet on the same facts concluding that the plaintiff did not show “an actionable violation of his right to free

speech”).

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 15

2. Analysis

In arguing that the stewards were affected adversely because of their political

affiliation with the Republican Party, the stewards focus heavily on the culture of the

workplace. The stewards paint a picture of a state agency divided by political affiliation,

in which White, a Democrat, retaliates and otherwise treats poorly those who do not

support her or then-Governor Granholm. Appellants Br. 40–47. In support of this

argument, the stewards present evidence applicable to all stewards and evidence

concerning specific stewards.

The strongest evidence in support of retaliation against all stewards on the

political-affiliation basis is the stewards’ description of a meeting on January 4, 2007,

that was attended by White, Post, Dye, Erskine, Hall, Perttunen, and Pete O’Hare,

another steward.6 The stewards argue that White “accused them of supporting Dick

DeVos in the 2006 Michigan Gubernatorial election . . . . [and of] trying to derail her

confirmation hearing by trying to convince others to vote for Republican candidate Dick

DeVos.”7 Id. at 16. Erskine stated: “She knew we voted for DeVos because she said

we voted for DeVos and, in turn to get rid—to bring a republican in, to get rid of her

because she’s democrat [sic].” R. 50-1 (Erskine Tr. at 110:16–19) (Page ID #890).

Erskine continued that Post “made the statement that, because we wrote our senators and

our governor against her confirmation hearing, that until we conformed to her ways, we

weren’t going to get nothing [sic].” Id. at 111:7–12. Hall reiterated this description of

the meeting: “In a meeting with the commissioner, [Post] indicated one of the reasons

for losing our banked days is because we supported DeVos.” R. 47-7 (Hall Tr. at

6

The argument that the stewards’ claim fails because a fifth steward was present at this meeting

is unavailing. The evidence shows that White and Post attributed a political affiliation to each of the five

stewards, including the four involved in this case, and we do not need to inquire as to why O’Hare is not

a party to this action.

7

The second part of this argument is illogical. The confirmation hearing preceded the

gubernatorial election by one year. This hearing could not have been derailed by convincing members of

the agency to vote for DeVos.

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 16

62:7–9) (Page ID #416). Perttunen similarly testified that “[i]n that meeting at Sports

Creek in January, it was told to us by Christine White and Gary Post, due to us

supporting Mr. DeVos, they would be taking away our banked time, and until we

conformed to her ways, we would not be getting it back.” R. 47-6 (Perttunen Tr. at

57:17–21) (Page ID #371).8

Additionally, the stewards provide affidavits of other employees of the ORC

detailing the political culture of the agency and White’s treatment of non-Democrats.

The district court summarily dismissed every affidavit produced by the stewards in a

single footnote, stating “[a]ffidavits that state Defendant White created a hostile work

environment yet fail to set out facts showing that the hostility was because of political

speech or association do nothing to advance Plaintiffs’ First Amendment retaliation

claim.” Dye, 2011 WL 2144485, at *13 n.11. Although certain affidavits are

insufficient in this regard,9 this description is not true of every affidavit presented. For

example, Brian Brown, a regulation agent at the ORC from 1998 to 2009 states that

“[d]uring my time with the ORC, I witnessed Christine White and Gary Post create a

work environment based on favoritism based on political patronage,” that “[e]mployees

with similar political ideals would receive more hours, access to promotions, and overall

favorable treatment,” and that “[d]uring meetings with Gary Post, he would make clear

his animosity toward the Plaintiff group.” R. 49-8 (Brown Aff. at ¶¶1–5) (Page ID

#635–36). Brown also states that during meetings, Post would say that “‘he did not trust

the stewards’” and would “make clear his animosity toward the Plaintiff group.” Id.

8

The stewards also reference an alleged meeting that occurred in October 2006. Appellants Br.

at 14. Appellants argue that all four stewards were present when Post made statements that Granholm was

the way to go and also when Post accused Hall and Erskine of attempting to have White removed by

convincing individuals to vote for DeVos. Id. Although this argument is made repeatedly in their brief,

the stewards provide no evidence of this meeting having occurred. The stewards point to Dye’s deposition

testimony in which he describes the conversations he had with Post in the fall of 2006 for support and to

the allegations in the Second Amended Complaint. Neither of these provide the requisite evidentiary basis

for this alleged meeting.

9

For example, Martin Vandevelde describes alleged apolitical and non-speech related actions

taken against him by White and Post. R. 49-10 (Vandevelde Affidavit) (Page ID #640–642).

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 17

¶¶ 5–6 (Page ID #636). Richard Jewell, an investigative supervisor at the ORC, declared

that “[i]f employees did not support [White and Post] on any issue, the employees would

be harassed and subject to a hostile work environment” and that “[a]pproximately one

year into [White’s] appointment, [Post] stated to me that ‘those stewards need to get on

the same page as her’ referring to [White]. He meant not only philosophically on the

same page, but politically.” R. 49-9 (Jewell Aff. at ¶¶ 1–4) (Page ID #638–39). These

affidavits corroborate the deposition testimony of the stewards.

There is also evidence that White and Post perceived an affiliation with DeVos

and the Republican Party specific to certain stewards. To begin, Dye’s conversations

with Post and other coworkers concerning the gubernatorial election would make known

his political affiliation. Dye testified at his deposition that in the fall of 2006, prior to

the gubernatorial election, he would “have occasion to go to lunch downstairs in the

office and it was discussed that racing, by Mr. Post would say or did say that we are

much better off with Granholm than we would be with DeVos.” R. 47-5 (Dye Tr. at

36:4–9, 41:1–10) (Page ID #319–20). Dye continued that “[m]y statements would be

DeVos is republican, is a business person and I think the state needs a business person

into it. So we had occasion to discuss that issue.” Id. 36:10–13 (Page ID #319). Dye

also explained that as part of conversations in the office, he would tell others that DeVos

was better because of his business background. Id. 42:6-22. (Page ID #321). Erskine’s

deposition testimony corroborates Dye’s assertion that Post would speak in support of

Granholm around the office: “[Post] talked about Jennifer Granholm was the way to go

[sic] if the horsemen felt they could get the slot machines in to help them with racing,

to pick up better purse pools.” R. 50-1 (Erskine Tr. at 108:6–9) (Page ID #888).

The district court appears to have denied Dye’s claim because Dye never

affirmatively stated that he was a member of the Republican Party. Dye, 2011 WL

2144485, at *13. This is a rigid interpretation of the evidence; from these discussions,

Post easily could have inferred an affiliation with the Republican Party and support for

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 18

DeVos. See Murphy v. Cockrell, 505 F.3d 446, 452 (6th Cir. 2007) (“[S]upport for a

political candidate falls within the scope of the right of political association.”) (internal

quotation marks omitted); Gann v. Cline, 519 F.3d 1090, 1094 (10th Cir. 2008) (“There

are, of course, many ways to establish such a link beyond requiring a plaintiff to tell her

boss that she does not subscribe to his political beliefs.”).

Additionally, although the speech that Hall engaged in was not protected, it

certainly alerted White and Post to Hall’s political affiliation. Moreover, White brought

Hall’s campaigning to the attention of the other stewards as an example of inappropriate

speech in the January 4, 2007 meeting. Erskine’s deposition testimony reflects that she

did not discuss politics at work, yet she testifies that she was grouped in with those who

had expressed support for DeVos: “I did not tell anybody to vote, nor pursue that. . . .

She knew we voted for DeVos because she said we voted for DeVos.” R. 50-1 (Erskine

Tr. at 109:19–110:19) (Page ID #889–90).

There is ample evidence to support the stewards’ contention that Post and White

attributed a political affiliation to the stewards, especially at the prima facie stage. An

employer that acts upon such assumptions regarding the affiliation of her employees

should not escape liability because her assumptions happened to be faulty.

III. ADVERSE EMPLOYMENT ACTIONS

The stewards allege that numerous adverse actions were taken against them

because they engaged in protected speech and were assumed to be affiliated with the

Republican Party. Certain actions, such as demotions and terminations, relate to specific

stewards. The remainder are alleged as actions taken against every steward. The district

court categorized the actions in the following manner:

(1) the Fall 2006 decision to eliminate the position of Administrative

Liaison Steward; (2) the decrease in assigned work days (and thus pay)

for Plaintiffs; (3) the adoption of stricter timekeeping procedures,

including (a) the scheduling and authorization of full days versus half

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 19

days, and (b) the elimination of the practice of “banking time” in a pay

period outside the period work was performed; (4) the elimination of

travel expense reimbursements in connection with the Harness Stewards’

bi-annual certification conference in November 2006 and 2008; and (5)

the elimination of two Harness Stewards—Plaintiffs Dye and

Erskine—in June 2009.

Dye, 2011 WL 2144485, at *13. As we discuss more fully below, the district court

implicitly or explicitly concluded that many of these actions constituted adverse

employment actions, and the defendants do not challenge these determinations in their

brief. In such instances, we will not consider the merits of categorizing these alleged

actions as adverse and will instead continue on to evaluate whether the district court was

correct in its causal-connection analysis.

In a First Amendment retaliation claim, we must consider whether the alleged

adverse employment action “would chill or silence a person of ordinary firmness from

future First Amendment activities.” Ctr. for Bio-Ethical Reform, Inc. v. City of

Springboro, 477 F.3d 807, 822 (6th Cir. 2007) (internal quotation marks omitted). “The

term ‘adverse action’ has traditionally referred to actions such as discharge, demotions,

refusal to [h]ire, nonrenewal of contracts, and failure to promote.” Handy-Clay v. City

of Memphis, --- F.3d ----, 2012 WL 4352228, at *11 (6th Cir. Sept. 25, 2012) (internal

quotation marks omitted) (alteration in original). However, we also recognize that “we

are required to tailor[] our analysis under the adverse action prong to the circumstances

of this specific retaliation claim.” Mezibov v. Allen, 411 F.3d 712, 721 (6th Cir. 2005).

A. Dye’s Demotion

Dye’s demotion from Administrative Liaison Steward to state steward constituted

an adverse employment action. See Eckerman, 636 F.3d at 208 (“[T]he district court

found, and we agree, that the demotion from lieutenant to sergeant alone constitutes

sufficient adverse action to satisfy this element of plaintiff’s retaliation claim.”). The

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 20

defendants do not dispute this characterization and instead focus their arguments on the

causal-connection element. Appellees Br. at 51.

B. Dye’s and Erskine’s Terminations

It is elemental that terminations are adverse employment actions. See v. City of

Elyria, 502 F.3d 484, 494 (6th Cir. 2007) (concluding that when terminated, “See

undeniably suffered an adverse action that would chill the free speech rights of an

ordinary person”). The parties do not dispute this characterization. Appellees Br. at

54–55.

C. Decrease in Work Days and Pay

A decrease in work days and pay is an adverse employment action. Clay v.

United Parcel Serv., Inc., 501 F.3d 695, 710–11 n.6 (6th Cir. 2007) (“We fail to

understand how a loss of pay is anything other than an adverse employment action,

regardless of the form in which the deprivation occurred.”); see also Miller v. City of

Canton, 319 F. App’x 411, 419 (6th Cir. 2009) (“Although he was later made whole in

December 2005, a reasonable jury could find that the loss of pay for sixty days would

constitute a hardship to the average officer and would chill the exercise of First

Amendment rights.”). The parties do not dispute that this is an adverse employment

action, and the district court did not reach this issue. Appellees Br. at 51–53.

D. Half-Day Employment

Although the district court concluded that the stricter timekeeping measures

requiring advance authorization to extend a scheduled half day at the race track to a full

day was not an adverse action, Dye, 2011 WL 2144485, at *20, the stewards have

waived review of this issue by not raising it in their brief or at oral argument.

Thaddeus–X v. Blatter, 175 F.3d 378, 403 n.18 (6th Cir. 1999) (en banc).

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 21

E. Banked-Time System

On January 4, 2007, White discontinued the use of the banked-time system. The

banked-time system enabled an employee to reserve receipt of payment on any time

worked in excess of ten full days in a fourteen-day period. The employee could then fill

in a pay period where he worked less than ten full days with these banked days. As

explained by Post, “[f]or example, if a Harness Steward worked 11 days in [a] two week

pay period, they would submit 10 days for payment on their timesheet, and put one day

in the ‘bank.’” R. 47-4 (Post Aff. at ¶ 13) (Page ID #301). Essentially, by choosing to

bank time, the employee was electing to receive compensation for time worked in a more

evenly distributed manner throughout the year, akin to the compensation structure of a

salaried employee.

We have addressed the concept of banked time in the context of retaliation under

the Fair Labor Standards Act. Adair v. Charter Cnty. of Wayne, 452 F.3d 482 (6th Cir.

2006). In Adair, the plaintiffs alleged that a freeze on the use of banked time constituted

an adverse employment action. Id. at 490. Under the freeze, “Plaintiffs simply were

required to utilize vacation days for just that—vacation—rather than permitted to save

vacation time and later exchange it for pay.” Id. Because “[t]his did not result in a

material loss of benefits, termination, demotion, transfer, or alteration of job

responsibilities,” we held that the plaintiffs had failed to show that freezing the use of

banked time was an adverse employment action. Id.

Given that we use a distinct standard in First Amendment retaliation claims,

Adair can instruct us only in a limited manner. In a First Amendment retaliation claim,

we must ask whether the alleged action would chill or silence a person of ordinary

firmness. The stewards have provided evidence that the banked-time program was a key

benefit to these stewards. Although White and Post changed the structure of

compensation in a way that would not inflict any potential monetary losses, as would

typically be required under the FLSA, it certainly imposed a different type of financial

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 22

burden on the stewards. The lack of a steady income, especially when combined with

the decrease in racing days, could certainly chill or silence a person of ordinary firmness.

Moreover, as is explained more fully below, see infra Part IV.E, there is evidence in the

record that White discontinued this program in order to silence the stewards. We

therefore find that the district court erred with respect to the banked-time system.

F. Travel-Expense Reimbursements

The district court did not discuss whether the decision to discontinue the practice

of reimbursing the stewards for travel expenses when they attended biannual

certification conferences constituted an adverse employment action. Dye, 2011 WL

2144485, at *23. Instead, the district court concluded that the stewards did not establish

a causal connection between the elimination of travel-expense reimbursements and the

protected activity. Id. However, we decline to reach either aspect of the district court’s

analysis, as the stewards have waived review of both issues by not raising either in their

brief or at oral argument.10 Thaddeus-X, 175 F.3d at 403 n.18.

IV. CAUSAL CONNECTION

The stewards argue that the district court erred in concluding that none of the

adverse employment actions were effectuated because of the protected activity. “In

order to establish a causal connection between the protected conduct and the adverse

action, plaintiff must produce enough evidence of a retaliatory motive such that a

reasonable juror could conclude that the [adverse employment action] would not have

occurred but for his engagement in protected activity.” Eckerman v. Tenn. Dep’t of

Safety, 636 F.3d 202, 209 (6th Cir. 2010). “A causal link can be shown through direct

10

In their statement of facts, the stewards describe the following events: “On November 12

through November 15, 2006, Plaintiffs participated in a biannual continuing education conference for

stewards, located in Louisville, Kentucky. On all previous conference trips, Plaintiffs were reimbursed

for their travel expenses. When Plaintiffs returned from this trip in November 2006, they were told that

their expenses would not be reimbursed.” Appellants Br. at 15–16 (internal citations omitted). However,

the stewards do not even reference these facts in their legal argument or in the section of their brief

detailing the genuine issues of material fact.

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 23

or circumstantial evidence, including showing temporal proximity between engaging in

protected activity and suffering an adverse employment action that may create an

inference of causation.” Id. Moreover, we have determined that incidents of misconduct

that do not rise to the level of an adverse employment action “may be relevant at trial to

show a pattern of mistreatment on the job based on plaintiff’s protected activities.” Id.

at 208–09.

A. Dye’s Demotion

The stewards argue that the temporal proximity between Dye’s protected activity

and his demotion satisfies the causal-connection element of his First Amendment

retaliation claim. Dye’s protected activity—the conversations with Post regarding the

gubernatorial election and the perceived political affiliation stemming from those

conversations—both occurred in the fall of 2006, prior to the election. Post averred that

he informed Dye of his demotion at some point between October 11, 2006, the date on

which Post was appointed Deputy Commissioner, and November 8, 2006, the date on

which Dye’s administrative duties in the Lansing office ceased. In this meeting, Post

informed Dye that his demotion would take effect at the expiration of his contract on

December 31, 2006, and that his duties in the Lansing office would cease on November

8, 2006. Dye testified that he discussed the gubernatorial election with Post in the fall

of 2006, prior to November 7, 2006, the date of the election. At the very earliest, then,

these discussions occurred on some date in September 2006, when Post was finishing

his duties as the contract management consultant. Although we do not have a specific

date for either the political discussions or the meeting regarding the demotion, the notice

of demotion must have occurred within two months, if not sooner, of the protected

activity.

In Mickey v. Zeidler Tool & Die Co., 516 F.3d 516 (6th Cir. 2008), we clarified

that temporal proximity alone can, in certain circumstances, suffice to show a causal

connection in a retaliation case: “Where an adverse employment action occurs very

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 24

close in time after an employer learns of a 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.” Id. at 525. We also

recognized the limitations to using temporal proximity alone—that “where some time

elapses between when the employer learns of a protected activity and the subsequent

adverse employment action, the employee must couple temporal proximity with other

evidence of retaliatory conduct to establish causality.” Id.

As we explained in Dixon v. Gonzales, 481 F.3d 324, 334 (6th Cir. 2007), and

recently reiterated in Gambill v. Duke Energy Corp., 456 F. App’x 578, 589 (6th Cir.

2012), “this Court has typically found the causal connection element satisfied only

where the adverse employment action occurred within a matter of months, or less, of the

protected activity.” A lapse of two months, as is the case here, is sufficient to show a

causal connection, and the district court erred in holding otherwise. See, e.g., Seeger v.

Cincinnati Bell Tel. Co., 681 F.3d 274, 283 (6th Cir. 2012) (“We agree with the district

court that the nearness in time between Seeger’s return from FMLA leave and his

termination—three weeks after his reinstatement and less than two months after he first

notified CBT of his medical leave—suffices in these circumstances to meet the low

threshold of proof necessary to establish a prima facie case of retaliatory discharge.”);

Bryson v. Regis Corp., 498 F.3d 561, 571 (6th Cir. 2007) (explaining that three months

is sufficient to show temporal proximity because “a plaintiff’s burden in establishing a

prima facie case is not intended to be an onerous one”) (internal quotation marks and

alterations omitted); Singfield v. Akron Metro. Housing Auth., 389 F.3d 555, 563 (6th

Cir. 2004) (concluding that a lapse of three months is a sufficient temporal proximity to

show causal connection).

B. Dye’s and Erskine’s Terminations

The stewards also argue that the district court erred in concluding that the

stewards failed to show a causal connection between the protected activity and the June

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 25

2009 terminations. As with Dye’s demotion, the stewards rely wholly on temporal

proximity to show a causal connection. The protected activity at issue began in the lead-

up to the 2006 gubernatorial election and ended, when viewing the facts in the light most

favorable to the stewards, in the winter of 2007. Both Dye and Erskine were fired in

June of 2009, more than two years after the protected conduct.

A lapse of more than two years between the protected activity and the adverse

employment action is simply insufficient to show a causal connection based solely on

a temporal-proximity theory. Dixon, 481 F.3d at 334 (“[T]he Supreme Court held that

a finding of causal connection was not warranted where, among other things, almost two

years elapsed between the employee’s participation in protected activity and the adverse

employment decision.”) (citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273–74

(2001)). Because the stewards do not proffer any additional evidence, we conclude that

the stewards fail to show a causal connection as to the terminations.

C. Decrease in Work Days and Pay

The district court granted the defendants’ motion on this portion of the stewards’

claims on two bases: (1) the stewards’ failure to show a causal connection and (2) the

convincing evidence proffered by the defendants in support of a legitimate reason to take

this action. On appeal, however, the stewards argue only that the district court erred in

concluding that the defendants had a legitimate reason to decrease the work days and

pay. Appellants Br. at 43–46. Such an argument ties our hands. It is a basic tenet in

retaliation claims that the burden shifts to the employer only after the employee has

established a prima facie case. Countering the defendants’ proffered reasons, as is done

in the stewards’ brief, does not establish a prima facie case. Under this framework, we

cannot consider the accuracy of the district court’s determination that the defendants

established legitimate reasons to take these employment actions unless the stewards have

first met their burden of showing a causal connection. Because the stewards have not

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 26

even referenced the prima facie case in their brief, let alone a specific theory upon which

they rely, we must affirm the district court on this portion of its order.

D. Banked-Time System

The stewards presented evidence that White and Post eliminated the practice of

banking days because of the stewards’ perceived affiliation with the Republican Party.

Perttunen testified that “[i]n that meeting at Sports Creek in January, it was told to us by

Christine White and Gary Post, due to us supporting Mr. DeVos, they would be taking

away our banked time, and until we conformed to her ways, we would not be getting it

back.” R. 47-6 (Perttunen Tr. at 57:17–21) (Page ID #371). Hall also testified that “[i]n

a meeting with the Commissioner, he indicated one of the reasons for losing our banked

days is because we supported DeVos.” R. 47-7 (Hall Tr. at 62:7–9) (Page ID #416).

Further, Hall recalled that each of the four plaintiffs in this case was present at that

meeting, as well as another steward, Post, and White. Id. at 63:24–63:3 (Page ID

#416–17); see also R. 50-1 (Erskine Tr. at 111:1–3) (Page ID #890) (stating these

individuals were present at the meeting).

Moreover, there is a temporal connection nearly identical to that involved in

Dye’s demotion. White and Post announced the change in the banked-time system at the

January 4, 2007 meeting, just two months after the gubernatorial election. Therefore,

we conclude that the stewards have established a prima facie case for the loss of the

banked-time system.

V. DEFENDANTS’ PROFFERED NON-DISCRIMINATORY REASONS

Once the stewards have established a prima facie case, the burden shifts to the

defendants, who must show by a preponderance of the evidence that “the employment

decision would have been the same absent the protected conduct.” Eckerman v. Tenn.

Dep’t of Safety, 636 F.3d 202, 208 (6th Cir. 2010) (internal quotation marks omitted).

The stewards were successful in establishing a prima facie case on two adverse

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 27

employment actions: Dye’s demotion on the basis of his political speech and political

affiliation and the stewards’ loss of the banked-time system on the basis of political

affiliation.

A. Evidentiary Objection

The defendants rely upon Post’s affidavit, White’s deposition testimony, and

Post’s deposition testimony to demonstrate that they would have made the decision to

demote Dye absent the protected activity. The stewards object to the use of Post’s post-

deposition affidavit as a violation of their Fourteenth Amendment due-process right,

arguing that Post introduced statements in this affidavit that were directly responsive to

questions that he had already answered in his deposition testimony. Appellants Br. at

31–33. The stewards specifically object only to the portions of Post’s affidavit

concerning the reasons behind Dye’s and Erskine’s terminations. Because we have held

that the stewards have not established a causal connection for these adverse employment

actions, we do not need to review the district court’s use of the affidavit in this manner.

Insofar as the stewards attempt to make a blanket objection to the entire affidavit, their

objection is insufficient. Merely pointing out that an affidavit was made after the

deposition does not render the entire affidavit improper. Rather, the stewards must show

that the affidavit directly contradicts the deposition testimony or that the affidavit was

effectuated for the purpose of creating a sham issue of fact. Aerel, S.R.L. v. PCC

Airfoils, L.L.C., 448 F.3d 899, 908–09 (6th Cir. 2006). They have not shown either.

B. Dye’s Demotion

The defendants argue that they demoted Dye “for budgetary reasons and certain

functions were being reassigned to [Post].” Appellees Br. at 9. In support of this

argument, the defendants cite White’s deposition testimony, in which she states the

decision was made “based on the fact that [Post] felt that he could do those

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 28

responsibilities.” R. 47-2 (White Tr. at 87:12–15) (Page ID #282). The defendants also

rely on the statement in Post’s affidavit in which he avers as follows:

The Racing Commissioner determined, and I agreed that the amount and

type of work required could no longer justify the full time position of

Administrative Steward in the Lansing office. There was simply not

enough work to justify the continued cost of the position. Additionally,

budget concerns required an examination of how staff were being utilized

and the best use of that staff. Many of the tasks at an administrative

level, such as policy writing, scheduling and budget development, require

excellent writing skills and proficiency with electronic spreadsheets, for

example.

R. 47-4 (Post Aff. ¶ 8) (Page ID #297–98). Post also avers that Dye did not have the

necessary computer or writing skills for the position, a less convincing statement given

that there is also evidence on the record indicating that Dye had been the Administrative

Steward for eight years at that point. Id. The defendants also point to Dye’s deposition

testimony, in which he states that Post provided the reason for his demotion as

“[b]udgetary concerns.” R. 47-5 (Dye Tr. at 29:12–17) (Page ID #317).

Although the defendants provide evidence in support of their proffered reason

for Dye’s demotion, this evidence is nonetheless insufficient to show that no reasonable

juror could fail to return a verdict for Dye. The temporal proximity of the demotion and

the protected speech, as well as the testimony concerning the political atmosphere of the

agency leading up to the gubernatorial election, create a genuine issue of material fact

as to the reason behind Dye’s demotion. Moreover, in the First Amendment context,

“[a] defendant’s motivation for taking action against the plaintiff is usually a matter best

suited for the jury.” Paige v. Coyner, 614 F.3d 273, 282 (6th Cir. 2010). The district

court thus erred in granting the defendants’ motion for summary judgment on Dye’s

retaliation claim.

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 29

C. Banked-Time System

The defendants argue that they eliminated the banked-time system because they

“were concerned about the appropriateness, accountability, and lack of management

oversight for this process.” Appellees Br. at 18. In support of this argument, the

defendants present Post’s affidavit, in which he explains that he and White “were

concerned about the appropriateness, accountability and lack of management oversight

of this process and after discussing it with the Commission’s Human Resources Director,

the decision was made to discontinue this practice.” R. 47-4 (Post Aff. at ¶ 13) (Page

ID #301). The defendants also rely upon White’s deposition testimony, in which she

denies making any statement that she eliminated the banked-time system because of the

stewards’ political affiliation.

The district court concluded, that based on this evidence, no reasonable juror

could find for the stewards. Dye, 2011 WL 2144485, at *23. We disagree. The totality

of the evidence shows that there is a credibility determination to be made by the

factfinder as to whether White stated that she was eliminating the banked-time system

on the basis of the stewards’ political affiliation. White’s deposition testimony, coupled

with Post’s broad explanation in his affidavit, does not require a reasonable juror to find

for the defendants. We therefore conclude that a genuine issue of material fact exists as

to the banked-time system.

VI. CONCLUSION

For the reasons stated above, we reverse the district court on Dye’s protected-

speech and political-affiliation retaliation claims, and on each steward’s political-

affiliation retaliation claim based on the loss of the banked-time system. We affirm the

district court on Erskine, Hall, and Perttunen’s protected-speech retaliation claims and

on each of the stewards’ remaining political-affiliation retaliation claims.

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 30

___________________________________________________

CONCURRING IN PART AND DISSENTING IN PART

___________________________________________________

McKEAGUE, Circuit Judge. I agree with the majority that the district court

appropriately granted summary judgment on Erskine’s, Hall’s, and Perttunen’s protected

speech claims, and as to the bulk of plaintiffs’ political-affiliation claims. But the

majority also concludes that an individual’s perceived affiliation with a political party

can form the basis of a First Amendment retaliation claim, and that in this case, all four

plaintiffs have established questions of fact as to whether their perceived affiliation with

the Republican Party motivated defendants’ decision to take away their banked-days.

The majority further concludes that there are material questions of fact with respect to

plaintiff Dye’s First Amendment protected speech claim. Because the majority’s

conclusion that an individual’s perceived political affiliation should receive First

Amendment protection is not supported by political affiliation case law, and because

Dye’s protected speech claim hangs entirely on a very thin temporal thread, I

respectfully dissent.

I.

A plaintiff-employee seeking to establish a prima facie case of retaliation under

the First Amendment must point to evidence sufficient to establish three elements: 1) the

plaintiff engaged in a constitutionally protected activity; 2) an adverse action was taken

against the plaintiff that caused him or her to suffer an injury that would deter a person

of ordinary firmness from continuing to engage in the conduct; and 3) the adverse action

was motivated at least in part by the plaintiff's protected activity. This standard applies

in both protected speech retaliation claims and in political affiliation retaliation claims

not brought under the political patronage dismissal doctrine. Eckerman v. Tenn. Dep't

of Safety, 636 F.3d 202, 207 (6th Cir. 2010) (finding protected conduct for purposes of

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 31

a political affiliation claim where plaintiff publicly supported Republican candidates

with signs, bumper stickers, attendance at rallies and monetary donations).

If the plaintiff succeeds in establishing these three elements, then the defendant

must show that he would have made the same decision in the absence of the protected

conduct. Id. at 208. Summary judgment is warranted if, "in light of the evidence . . . no

reasonable juror could fail to return a verdict for the defendant." Id. If the defendant

meets his or her burden, that is the end of the inquiry, and the burden does not then shift

back to the plaintiff to prove pretext. Helwig v. Pennington, 30 F. App'x 516, 519 (6th

Cir. 2002).

We have recognized that under the Supreme Court’s political patronage cases,

“[t]he right of political association is well established as falling within the core of

activities protected by the First Amendment.” See Sowards v. Loudon County, 203 F.3d

426, 432 (6th Cir. 2000) (concluding there was protected political affiliation activity

supporting a First Amendment retaliation claim where plaintiff was supporting her

husband’s campaign for office). We have also recognized that “[s]upport of a political

candidate falls within the scope of the right of political association.” Id. (citing Elrod

v. Burns, 427 U.S. 347, 356-57 (1976)).

Applying these standards here, plaintiffs Dye and Hall can likely satisfy the first

prong of the prima facie test in that each of them engaged in conduct from which

defendants could conclude they were affiliated with the Republican Party (Dye by

speaking directly to defendants about his affinity for the Republican candidate and Hall

by campaigning for the Republican candidate at the racetrack). This conclusion is based

on the fact that they engaged in constitutionally protected conduct by speaking out about

their particular political leanings.

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 32

By contrast, neither plaintiff Erskine nor Pertunnen engaged in any such conduct.

In fact, they expressly denied that they did.1 Yet the majority concludes that defendants’

alleged perception that Erskine and Pertunnen were affiliated with the Republican Party

is enough to satisfy plaintiffs’ burden of establishing that they engaged in protected

activity. Because the Supreme Court has not spoken directly on this issue, and because

the case law is ambiguous with respect to whether such a claim is cognizable, we should

not expand the scope of First Amendment protections to this as yet unrecognized

context.

The Supreme Court’s political affiliation cases, relied on by this Court in First

Amendment retaliation cases like Eckerman and Sowers, are silent on whether perceived

political affiliation, without more, is protected First Amendment activity. As described

by the Elrod plurality, the unacceptable behavior these cases sought to rectify was the

restraint patronage practices place on freedoms of belief and association. 427 U.S. at

1

Pertunnen testified:

Q: Did you support Dick DeVos?

A: No.

Q: Did you make a campaign contribution to Dick DeVos?

***

A: No.

Q: Did you have a bumper sticker for Dick DeVos on your car?

A: No.

(Pertunnen Dep., Page ID # 373).

Similarly Erskine testified:

Q: Did you ever tell Mr. Post that you did not support Jennifer Granholm but that you supported Dick

DeVos?

A: No.

Q: Did you ever tell Commissioner White that you supported Dick DeVos and not Jennifer Granholm?

A: No. She just assumed that.

Q: How do you know she assumed that?

A: Because of what she said in a meeting we had.

Q: So I understand, though, you at no time ever told her your political views or who you supported for

the gubernatorial office?

A: No.

Q: And the same thing with respect to Gary Post?

A: Correct.

(Erskine Dep., Page ID #461).

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 33

355. Accordingly, all of the cases involved some type of coercive requirement that

employees affiliate with a particular political party in order to avoid an adverse

employment action. See Elrod, 427 U.S. at 355 (“In order to maintain their jobs,

respondents were required to pledge their political allegiance to the Democratic Party,

work for the election of other candidates of the Democratic Party, contribute a portion

of their wages to the Party, or obtain the sponsorship of a member of the party, usually

at the price of one of the first three alternatives.”); Branti v. Finkel, 445 U.S. 507, 509

(1980) (“With one possible exception, the nine [individuals] who were to be appointed

or retained were all Democrats and were all selected by Democratic legislators or

Democratic town chairmen on a basis that had been determined by the Democratic

caucus. The District Court found that Finkel and Tabakman had been selected for

termination solely because they were Republicans and thus did not have the necessary

Democratic sponsors[.]”); Rutan v. Republican Party of Illinois, 497 U.S. 62, 66 (1990)

(“In reviewing an agency’s request that a particular applicant be approved for a

particular position, the Governor’s Office has looked at whether the applicant voted in

Republican primaries in past election years, whether the applicant has provided financial

or other support to the Republican Party and its candidates, whether the applicant has

promised to join and work for the Republican Party in the future, and whether the

applicant has the support of the Republican Party officials at state or local levels.”).2

Two circuit courts have relied on these patronage cases as a basis for concluding

that government employers cannot take adverse employment actions against politically

unaffiliated employees solely because the employees were politically unaffiliated or

perceived as being unaffiliated with the party in power. See Welch v Ciampa, 542 F.3d

927 (1st Cir. 2008); Gann v. Cline, 519 F.3d 1090, 1094 (10th Cir. 2008). The majority

2

The patronage cases also recognize that the First Amendment protects employees who elect not

to affiliate with any party. See Rutan, 497 U.S. at 76 (“The First Amendment prevents the government,

except in the most compelling circumstances, from wielding its power to interfere with its employees’

freedom to believe and associate, or to not believe and not associate.”). None of the plaintiffs in this case

have claimed defendants were interfering with their right not to affiliate.

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 34

here relies on Welch and Gann to argue that in this case defendants’ mere perception of

plaintiffs Erskine and Pertunnen as Republican is enough to satisfy the protected activity

prong of the prima facie test.

By contrast, in Ambrose v. Twp. of Robinson, Pa., 303 F.3d 488, 495 (3d Cir.

2002), the Third Circuit clearly rejected what it termed a “perceived support” theory.

In that case, officials discussed the plaintiff’s alleged actions in stealing files to support

a colleague who had filed a lawsuit against the employer. The plaintiff in part alleged

that adverse action was taken against him because the employer believed he was

supporting the colleague even though the plaintiff did no such thing and even denied that

he did. The court rejected this “perceived support” theory arguing “[p]laintiffs in First

Amendment retaliation cases can sustain their burden of proof only if their conduct was

constitutionally protected, and, therefore, only if there actually was conduct.” Id. (citing

Fogarty v. Boles, 121 F.3d 886, 890 (3d Cir. 1997) (emphasis added).

In justifying its conclusion, the court relied primarily on several protected speech

cases. See, e.g., Fogarty, 121 F.3d at 890 (holding that principal’s mistaken belief that

teacher had engaged in protected conduct, when teacher had not engaged in any conduct

at all, could not support First Amendment retaliation claim); Wasson v. Sonoma Cnty.

Junior Coll., 203 F.3d 659, 663 (9th Cir. 2000) (“[T]here can be no First Amendment

cause of action where there was no speech by the plaintiff.” “[A] plaintiff must

demonstrate that she has engaged in constitutionally protected expression to establish

a First Amendment retaliation claim.”); Jones v. Collins, 132 F.3d 1048, 1050-51 (5th

Cir. 1998) (no protected conduct where school principal was alleged to have leaked

information and was transferred as a result, but never really leaked the information and

denied doing so); Barkoo v. Melby, 901 F.2d 613 (7th Cir. 1990) (concluding there was

no protected conduct where plaintiff claimed her employer retaliated against her based

on the mistaken belief that plaintiff was providing information to the press about her

employer’s inadvertent eavesdropping).

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 35

The Ambrose court also noted that a protected speech case from the Supreme

Court, Waters v. Churchill, 511 U.S. 661, 679 (1994), supported its conclusion because

in that case the Court stated: “We have never held that it is a violation of the

Constitution for a government employer to discharge an employee based on

substantively incorrect information.” Ambrose, 303 F.3d at 495 (quoting Waters, 511

U.S. at 679).

Like the Third Circuit, the majority here also relies on Waters, albeit to reach the

opposite conclusion. The majority asserts that Waters establishes that whether there was

protected speech or conduct (the Connick test that is applied in protected speech cases)

should depend on what the government reasonably thought was said rather than what,

if anything, was actually said. Extending this proposition to the political affiliation

context, the majority claims we should consider what defendants reasonably believed to

be true about plaintiffs’ affiliation with the Republican Party—even if the evidence does

not include conduct establishing the existence of such an affiliation. But the majority’s

reading of Waters does not comport with that decision’s underlying rationale, nor does

the majority explain why a protected speech case (Waters) should govern the outcome

in this political affiliation case.

In Waters, a nurse was fired by her government employer based on what the

employer thought she said to some other nurses about regulatory violations and the poor

quality of nursing care in the hospital. The employer conducted a thorough investigation

into the alleged speech and concluded it was true. The discharged nurse admitted

speaking on hospital policy matters, but denied making some of the statements attributed

to her. After her termination and grievances, she filed a § 1983 action claiming her

termination violated her First Amendment rights.

The Supreme Court plurality explained:

[C]onstitutional review of government employment

decisions must rest on different principles than review of

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 36

speech restraints imposed by the government as

sovereign. The restrictions discussed above are allowed

not just because the speech interferes with the

government’s operation . . . Rather, the extra power the

government has in this area comes from the nature of the

government’s mission as employer.

*****

The key to First Amendment analysis of government

employment decisions, then, is this: The government's

interest in achieving its goals as effectively and

efficiently as possible is elevated from a relatively

subordinate interest when it acts as sovereign to a

significant one when it acts as employer. The government

cannot restrict the speech of the public at large just in the

name of efficiency. But where the government is

employing someone for the very purpose of effectively

achieving its goals, such restrictions may well be

appropriate.

Waters, 511 U.S. at 674-75.

Accordingly, the plurality concluded that a requirement that only the employee’s

actual speech can be considered in an employment decision was too rigid a test to satisfy

the government’s interest in efficient employment decisionmaking. Id. at 675. Thus,

government employers should be given some leeway in deciding how to weigh differing

versions of a conversation, who to credit, and how personal knowledge should play a

role in the ultimate decision, even if the risk in these procedures was that the employer

may erroneously punish protected speech. Id. at 676.

The deliberate effect of Waters is to give more deference to government

employers’ employment decisions. In stark contrast, the majority’s application of

Waters in this case makes it more difficult for the government to make employment

decisions—including rudimentary changes in employment practices such as offering

comp time. Yet, the majority here proposes extending Waters in just this way. The

majority claims that what defendants reasonably believed about plaintiffs’ affiliation

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 37

with the Republican Party—even if untrue—satisfies the protected activity element. On

this basis the majority concludes that plaintiffs here engaged in protected conduct and

that defendants’ decision to take away the banked time system was motivated by that

perceived conduct.3

The majority’s reading of Waters is troubling for two reasons. First, by allowing

a perceived affiliation claim such as the one here to go forward, the Court is essentially

providing more First Amendment protection to government employees—specifically,

the Court is extending First Amendment protection to government employees who have

not even engaged in any actual conduct or speech. That result seems to be totally

inconsistent with the Waters plurality’s main justification that we should be giving

deference to government employer’s efficiency concerns in employment decision

making.

Second, the majority does not explain why Waters, a protected speech case,

should apply with equal force to a political affiliation case such as this one. In my view,

even though this is not a political patronage case, any decision on the perceived

affiliation issue should certainly take into account the governing principles in the

Supreme Court’s political patronage dismissal cases, Elrod, Branti, and Rutan (rather

than protected speech cases such as Waters). Those cases deal directly with First

Amendment protection of the right to political affiliation, and are thus a window into

how the Court views such claims. We have previously used the political patronage cases

to inform our decisions on whether plaintiffs engaged in protected affiliation activity for

purposes of a retaliation claim. See Sowards, 203 F.3d at 432; Eckerman, 636 F.3d at

3

The majority relies on Dambrot v. Cent. Mich. Univ., 55 F.3d 1177, 1189 n.9 (6th Cir. 1995) as

the authority for this Court’s interpretation of Waters. But in that case, in contrast to the majority’s

conclusion, the Court’s decision comported with the Waters’ rationale of giving deference to employment

decisionmaking. There, a basketball coach used the N-word with his players. He claimed it was a

motivational tool. In addressing that argument, this Court stated, “[w]hat the First Amendment does not

do, however, is require the government as employer or the university as educator to accept this view as

a valid means of motivating players.” Dambrot, 55 F.3d at 1190. Thus, the majority’s reliance on

Dambrot as an interpretation of Waters to be applied to the facts here is misplaced.

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 38

208. In the patronage cases, the Court was not concerned about whether a category of

speech was protected, but rather it was troubled by “the restraint . . . on freedoms of

belief and association”— an issue that hews much more closely to the facts in this case.

427 U.S. at 355. In all of those cases, there were affirmative restraints placed on the

employee’s ability to affiliate or remain unaffiliated, such as requiring a portion of

wages to be given to a particular political party or requiring sponsorship from a party

member.

Here, by contrast, defendants did not require plaintiffs Erskine and Pertunnen to

pledge support for a party or seek a party sponsor. Nor did defendants know, based on

Erskine’s and Pertunnen’s conduct, that they were affiliated with the Republican Party.

In fact, Erskine and Pertunnen denied engaging in any conduct that would have shown

their affiliation with the party.4

In sum, the Supreme Court has not spoken on the precise issue here—whether

an employer’s mere perception of an employee’s affiliation is sufficient to establish that

the employee engaged in protected First Amendment activity. By permitting this type

of claim, the majority extends First Amendment protections to a context not previously

recognized. The majority’s conclusion also seems contrary to the Supreme Court’s

rationale for addressing First Amendment claims involving government employers.

Absent controlling law on this issue, I cannot conclude that plaintiffs Erskine and

Pertunnen have satisfied their burden of showing they engaged in protected First

Amendment activity.

Moreover, in my view, it was unnecessary for us to even decide this issue

because none of the plaintiffs can satisfy the additional elements of a prima facie

retaliation claim.

4

See supra, note 1.

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 39

II.

A. Dye’s Protected Speech Claim

The majority concludes that the temporal proximity between Dye’s speech and

his demotion satisfies the causal-connection element of his First Amendment Claim.

The majority grounds this conclusion on flimsy evidence that Dye’s speech and his

demotion actually occurred within two months of each other.

It is true that sometime between October 11, 2006 and November 8, 2006,

defendant Post informed Dye that his position was being eliminated. From this, the

majority concludes that Dye’s political speech with Post happened “[a]t the very earliest

. . . on some date in September 2006.” The majority also acknowledges that there is no

specific date in the record, but argues that because Dye was told about his demotion

before November 8, 2006, the notice “must have occurred within two months, if not

sooner, of the protected activity.”5

The majority relies on a Title VII decision from this Circuit that concluded the

causation element of a prima facie case was met based on temporal proximity alone

where three months had lapsed. See Ante (citing Singfield v. Akron Metro. Housing

Auth., 389 F.3d 555, 563 (6th Cir. 2004). But this conclusion conflicts with a more

recent decision of this Court. See Arendale v. City of Memphis, 519 F.3d 587, 606

(2008) (affirming summary judgment for defendant and rejecting plaintiff’s argument

that retaliatory events occurring two months after an EEOC charge of discrimination

were alone sufficient to establish temporal causal connection).

Even assuming the gap here was within two to three months, the majority also

concedes that temporal proximity alone has its limitations and that “where some time

elapses between when the employer learns of a protected activity and the subsequent

5

At oral argument, the state conceded the discussion happened prior to the election, but could not

state precisely when it occurred.

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 40

adverse employment action, the employee must couple temporal proximity with other

evidence of retaliatory conduct to establish causality.” See Ante (citing Mickey v.

Zeidler Tool & Die Co., 516 F.3d 516 (6th Cir. 2008); see also, Arendale, 519 F.3d at

606 (“Plaintiff claims that the fact that the retaliatory events occurred just two months

after the EEOC charge of discrimination is enough by itself to support the causal

connection element. This is simply a misstatement of the law. Absent other evidence

of retaliation, Plaintiff's retaliation claim must fail.”).

Given that the evidence is unclear as to precisely when Dye and Post talked

politics and when Post informed Dye his position was being eliminated, and that in any

event it is likely the gap in time is at the outside limits of what this Court has determined

is acceptable, Dye should have been required to bring some other evidence of retaliatory

conduct in order to establish the elimination of his position was based on his protected

speech. But neither Dye nor the majority point to any other evidence, specifically as it

pertains to the elimination of Dye’s position. In this case, temporal proximity alone is

not sufficient for Dye to establish causation. This conclusion is even more clear when

considering defendants’ proffered reasons for eliminating Dye’s position.

The majority discusses that defendants’ eliminated Dye’s position for budgetary

reasons and that certain of Dye’s functions were being reassigned to Post. Yet, the

majority ultimately determines that defendants’ evidence is not sufficient to conclude

that no reasonable juror could fail to return a verdict for defendants. But the majority’s

discussion of the evidence in this case is incomplete.

The opinion neglects to mention that Dye knew as early as June or July of 2006

that his job responsibilities were being diminished. This was several months before he

engaged in any protected activity. Dye’s reduced responsibilities (and the eventual

elimination of his position) is completely consistent with defendants’ claims that

budgetary concerns required examination of how staff were being used and that there

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 41

was not enough work to justify the continued cost of the position.6 (Post. Aff. ¶ 8, Page

ID #297-98). This in turn is consistent with the precipitous decline in race dates and

revenues during this time period, (Post Aff., Exhibit 3, Page ID #307), culminating in

drastic budget cuts in 2007, 2008, and 2009. (Post Aff. ¶ 14-15, Page ID #302).

The fact that Dye’s position was eliminated because of budget issues is also

supported by Post’s decision to add Dye’s job responsibilities to his own, and that

defendants did not hire someone new to fill Dye’s Administrative Liaison role. (Dye

Dep., Page ID #318).

This evidence belies the majority’s conclusion that Dye established causation

here simply by asserting an imprecise and attenuated connection between his political

speech and the elimination of his position. Instead, when contrasted with Dye’s feeble

causal nexus, this evidence compels the conclusion that no reasonable juror could fail

to return a verdict for defendants.

B. Dye and Hall’s Affiliation Claims

For the reasons discussed above, in my view, only Plaintiffs Dye and Hall may

be able to satisfy the protected activity element of their political affiliation claim on the

basis that their conduct may be enough to establish that defendants believed Dye and

Hall were affiliated with a political party.7 See Sowards, 203 F.3d at 432 (“Support of

a political candidate falls within the scope of the right of political association.”). That

said, Dye and Hall would also still have to establish that elimination of the banked time

system was an adverse action and that defendants took that action at least in part because

of Dye and Hall’s affiliation with the Republican party.

6

The majority also fails to wrestle with Dye’s own testimony on what the costs of his position

were, including discrepancies regarding Dye’s salary, the fact that Dye had a state car, a gas card, a state-

issued phone, and that the state paid his expenses for overnight stays and meals. (Arg. Audio at 23:20;

Dye Dep., Page ID #316).

7

Even if Erskine and Pertunnen could satisfy the protected activity requirement, as the subsequent

analysis shows, their claims would fail on the other elements.

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 42

The district court concluded elimination of the banked time system was not an

adverse employment action because plaintiffs would still continue to be paid for each

work day. The majority comes to the opposite conclusion.

In Adair v. Charter Cnty of Wayne, 452 F.3d 482 (6th Cir. 2006), this Court

addressed the argument that a freeze on the use of banked time was an adverse

employment action for purposes of a retaliation claim under the Fair Labor Standards

Act. We held that the freeze on banked time was not an adverse action because it “did

not result in a material loss of benefits, termination, demotion, transfer, or alteration of

job responsibilities.” Id. at 490. Rather, defendants merely required plaintiffs to use

vacation days for vacation rather than save it for pay at a later date. Id.

The majority here asserts that Adair is only of limited instructional value because

of the “distinct standard” applied to First Amendment retaliation claims where the

question is whether the alleged action would “deter a person of ordinary firmness from

exercising the right at stake.” Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999) (en

banc). Applying this standard, the majority concludes that here the banked time program

“was a key benefit to these stewards,” and “[a]lthough White and Post changed the

structure of the compensation in a way that would not inflict any potential monetary

losses, it certainly imposed a different type of financial burden on the stewards. The lack

of a steady income, especially when combined with the decrease in racing days, could

certainly chill or silence a person of ordinary firmness.”

This conclusion is not warranted by how the banked time system actually

worked. The system allowed the Harness Stewards to essentially “bank” days they

worked over the regular ten days in any 14 day period. Thus, if a steward worked 11

days in two weeks, that steward could put one day in the “bank” to use at a later time,

for example to fill in for missed days in a later pay period if he or she took time off.

When defendants eliminated the banked time program, they still allowed plaintiffs to use

any accumulated time until it ran out, and plaintiffs would still be paid for any days

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 43

worked over their ten regular days, but they simply could no longer bank those days for

later use. The fact that plaintiffs still get paid for any days worked over ten days cuts

against the majority’s conclusion that elimination of the banked time system resulted in

a “lack of a steady income,” which “when combined with the decrease in racing days,

could certainly chill or silence a person of ordinary firmness.”

Even after the system was eliminated, plaintiffs were still permitted to use time

they had banked until it ran out. Additionally, plaintiffs could still work additional days

over the regular ten and get paid for it. The only real difference is that plaintiffs would

be personally responsible for saving the money from that extra day of work instead of

having the state hold onto it for them. In other words, rather than having the state

“bank” plaintiffs’ rainy day funds, plaintiffs themselves would be required to deposit the

money into a savings account or put it into an envelope and use it when they needed it.

Plaintiffs’ complaints regarding elimination of the banked-time system amount

to nothing more than purely personal reasons for preferring a former state of affairs over

the current state of affairs, which this Court has stated in the Title VII context does not

constitute an adverse action. See Strouss v. Michigan Dept. of Corrections, 250 F.3d

336, 343 n.2 (6th Cir. 2001); see also Smith v. Cnty. of Hamilton, 34 F. App’x 450, 456

(6th Cir. 2002) (concluding loss of opportunity for compensatory time was not adverse

employment action under Title VII). Essentially, as contract employees, the only thing

plaintiffs here lost was the state’s willingness to hold onto their extra pay when they

wanted to take a day off or when there was no work. Now they would be responsible for

that. This hardly seems to be the type of loss that would deter a person of ordinary

firmness from affiliating with a political party.

Moreover, even assuming the loss of banked time was an adverse action, Dye and

Hall would still have to show the system was eliminated because of their political

affiliation and that defendants’ stated reasons for eliminating the system do not support

the conclusion that no reasonable juror could fail to return a verdict for defendants.

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 44

Dye and Hall’s best evidence of causation are defendants’ alleged statements that

they were eliminating banked time because of plaintiffs’ support for the Republican

candidate in the previous gubernatorial election. Even though these statements go to the

causation element, when considered alongside evidence that defendants did not just

eliminate the banked time system for plaintiffs but they also eliminated it for two other

Harness Stewards who were not a part of this lawsuit, the causal connection is not so

clear. Additionally, defendant White denied ever making a statement that she eliminated

the banked time system because of plaintiffs’ political affiliations. Even though at the

summary judgment stage we view the evidence in the light most favorable to the non-

moving party, this other evidence at the very least creates some doubt about plaintiffs’

claim that defendants eliminated the banked time system because of plaintiffs’

Republican affiliations.

This conclusion is even more questionable when defendants’ reasons for

eliminating the banked time system are considered. White testified that she consulted

with the Department of Agriculture’s Human Resource Director “soon after [White]

learned of the banked days,” and that the Director informed her that the banking system

was a liability for the Agency. The Director told White that because plaintiffs were

contract employees and not entitled to sick leave or annual leave, they should not be

getting banked days to use for that purpose. White relied on this advice when she

decided to end the practice, and because she had consulted with the Director, she did not

consider her decision to be discretionary.

Defendant Post’s testimony corroborates White’s assertions. He testified that he

and White were concerned about the lack of oversight and accountability with the

“banking” process, and that after consulting the Department of Agriculture’s Human

Resource Director, the decision was made to eliminate it because it was not governed

by any written policy or Civil Service rules, it was not used by any other types of racing

stewards, and there was no management or oversight of the process.

No. 11-1828 Dye et al. v. Office of the Racing Comm’n et al. Page 45

Plaintiffs allege that at the January 2007 meeting, White said the banked time

was being eliminated because of plaintiffs’ perceived affiliation. But when that alleged

statement is stacked up next to evidence that the system was eliminated for all of the

Harness stewards not just plaintiffs, that White testified she did not make those

statements at the January meeting, that White and Post were concerned about the lack

of oversight and thus consulted with the Director of the Department who told them the

practice should cease, and that White did not consider her decision to be discretionary,

it seems clear that no reasonable juror could fail to return a verdict for defendants with

respect to whether their decision was politically motivated.

III.

For the foregoing reasons, I disagree with the majority’s conclusions on these

issues and would therefore affirm the district court’s decision to grant defendants’

summary judgment motion.