Eric Kuhn v. Washtenaw County

RECOMMENDED FOR FULL-TEXT PUBLICATION

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

File Name: 13a0062p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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X

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ERIC KUHN,

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Plaintiff-Appellant,

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No. 12-1609

v.

,

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WASHTENAW COUNTY and JAMES

Defendants-Appellees. N-

ANUSZKIEWICZ,

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 2:10-cv-11191—Denise Page Hood, District Judge.

Argued: January 23, 2013

Decided and Filed: March 11, 2013

Before: CLAY, GILMAN, and McKEAGUE, Circuit Judges.

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COUNSEL

ARGUED: John H. DeYampert, Jr., DEYAMPERT LAW COMPANY PLLC,

Westland, Michigan, for Appellant. Keith E. Eastland, MILLER JOHNSON, Grand

Rapids, Michigan, for Appellees. ON BRIEF: John H. DeYampert, Jr., DEYAMPERT

LAW COMPANY PLLC, Westland, Michigan, for Appellant. Keith E. Eastland,

Thomas R. Wurst, MILLER JOHNSON, Grand Rapids, Michigan, for Appellees.

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OPINION

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RONALD LEE GILMAN, Circuit Judge. In October 2008, Deputy Eric Kuhn

of the Washtenaw County Sheriff’s Office stopped Marianne Joseph for a traffic

violation. Joseph falsely reported that Kuhn had raped her in connection with the stop.

An internal investigation that was opened to look into the rape allegation was not closed

until January 2009. Several months after the investigation was closed, Kuhn requested

1

No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 2

medical leave based on stress. Kuhn eventually took approximately seven months of

paid and unpaid leave that did not end until he was terminated in January 2010. He

subsequently filed suit for wrongful termination against both his employer, Washtenaw

County, and his superior, Lt. James Anuszkiewicz.

Against the County only, Kuhn asserted claims for termination without due

process of law, violation of Michigan’s Whistleblowers’ Protection Act, Mich. Comp.

Laws § 15.361 et seq., and retaliation in violation of Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq. Kuhn asserted a claim against Lt. Anuszkiewicz only

for tortious interference with a business expectancy. Against both the County and Lt.

Anuszkiewicz, Kuhn asserted claims for racial discrimination in violation of 42 U.S.C.

§ 1981, for racial discrimination and harassment in violation of Title VII, and for racial

discrimination and harassment in violation of Michigan’s Elliott-Larsen Civil Rights

Act, Mich. Comp. Laws § 37.2101 et seq.

The district court granted summary judgment in favor of both defendants on all

claims, and Kuhn appeals. For the reasons set forth below, we AFFIRM the judgment

of the district court.

I. BACKGROUND

Kuhn stopped Joseph at approximately 3:00 a.m. on October 20, 2008 for erratic

driving. Joseph attempted to flee, but backup officers apprehended her and placed

Joseph in the back of Kuhn’s squad car. While en route to the Washtenaw County Jail,

Joseph threatened to report that Kuhn had raped her, saying that she would be believed

because Joseph is white and Kuhn is black.

Joseph indeed reported to several officers at the Jail, including Sgt. Marlene

Radzik, that Kuhn had raped her. Pursuant to Washtenaw County Sheriff’s Office

procedure, this type of complaint required an internal investigation:

The Washtenaw County Sheriff’s Office will accept and

investigate all complaints about the conduct of its employees from any

citizen or agency employee. Following a thorough and impartial

No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 3

examination of the available factual information, it will be determined if

improper employee conduct did in fact occur. . . .

....

. . . Any allegation of improper or inappropriate conduct by an

employee . . . , regardless of its apparent validity, is a complaint or

inquiry and will be recorded on the appropriate form(s). . . .

Sgt. Radzik contemporaneously concluded that the rape allegation was false, and

she reported her conclusion to Lt. Anuszkiewicz. Lt. Anuszkiewicz initially directed

Sgt. Radzik to contact the Michigan State Police, but because these events were

transpiring in the middle of the night, Radzik could not reach any person at the local

State Police post and decided against calling a random state trooper on the road. Later,

Lt. Anuszkiewicz determined that there was no need to contact the State Police and

instead directed Sgt. Radzik to take action against Joseph for filing a false police report.

He also instructed Radzik to initiate a citizen’s complaint against Kuhn as required by

the Sheriff’s Office Policy and Procedure.

A few days later, an internal complaint number was issued. Joseph in the

meantime went to a local hospital reporting that she had been raped, and a rape kit was

completed. Lt. Anuszkiewicz directed Judi Swidan, the Sheriff’s Office property officer,

to send the rape kit to the Michigan State Police crime lab for the criminal investigation

of Joseph, but he contends that he did not instruct Swiden on how to fill out the

associated paperwork. Kuhn, on the other hand, alleges that Lt. Anuszkiewicz instructed

Swidan to list Kuhn as the suspected perpetrator of the alleged rape.

The results of the rape kit showed no seminal fluid. Lt. Anuszkiewicz then

directed Sgt. Radzik to add the results of the rape kit to the internal investigation and to

request that the state prosecutor charge Joseph with filing a false police report.

In December 2008, Kuhn informed Lt. Anuszkiewicz and Commander of Police

Services Marilyn Hall-Beard that he was concerned about the rape allegation.

Commander Hall-Beard mistakenly assured Kuhn that he was not under any internal

investigation, but she later discovered that a citizen’s complaint against Kuhn had in fact

No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 4

been initiated. She emailed Lt. Anuszkiewicz to ask why a citizen’s complaint had been

opened, and Lt. Anuszkiewicz explained that he had done so based on his understanding

of departmental policy. Commander Hall-Beard replied that she did not believe that the

policy required opening a citizen’s complaint under the circumstances, but she

acknowledged that Lt. Anuszkiewicz had done what he thought was proper. She also

directed Lt. Anuszkiewicz and Sgt. Radzik to stop the investigation. They did not,

however, immediately do so.

Dieter Heren assumed the position of Commander of Police Services on January

1, 2009, replacing Commander Hall-Beard. He promptly directed Lt. Anuszkiewicz and

Sgt. Radzik to complete and close the internal investigation without further delay, which

Sgt. Radzik did later in January. Due to an oversight, Commander Heren did not inform

Kuhn that the internal investigation was closed until March 2009.

Later that March, Kuhn filed a complaint against Lt. Anuszkiewicz, alleging that

the lieutenant had engaged in unprofessional behavior with respect to the internal

investigation. The investigation of Kuhn’s complaint was not completed until November

2009. In relevant part, the investigation determined that (1) although Lt. Anuszkiewicz

had the proper authority to involve the State Police in the investigation against Kuhn, he

did nothing wrong in ultimately deciding not to contact that organization;

(2) Lt. Anuszkiewicz did not violate any departmental policy in failing to notify either

Commander Hall-Beard or the police union of the citizen’s complaint and internal

investigation; and (3) Lt. Anuszkiewicz did not act with malice even if he did direct that

Kuhn be listed as a suspect on the paperwork for the rape kit. But the investigation

concluded that Lt. Anuszkiewicz had acted improperly in disobeying Commander Hall-

Beard’s directive to promptly close the internal investigation.

Kuhn began treatment in February 2009 for the stress that he was experiencing

as a result of the investigation. In May 2009, two months after he was informed that the

investigation against him had been closed, he requested leave under the Family and

Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., which he took until his FMLA

leave expired in late August 2009. Kuhn then requested discretionary leave, which was

No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 5

granted on an unpaid basis until the investigation of his complaint against Lt.

Anuszkiewicz was completed in November 2009.

In July 2009, Kuhn sent an email to his union president that expressed frustration

with the lack of information from the Sheriff’s Office about his complaint against Lt.

Anuszkiewicz. He also stated that he was “aware of several incidents involving other

deputies who were ignored, mistreated, unfairly targeted and denied advancement

because they spoke up about misconduct.” But Kuhn did not refer to any specific

incident.

In August 2009, Kuhn sent substantially the same email to County Administrator

Bob Guenzel and copied several other individuals, including Sheriff Jerry Clayton,

Undersheriff Mark Ptaszek, Commander Heren, Kuhn’s union representative, and the

union president. In this email, Kuhn requested a meeting with Guenzel to discuss his

pending complaint against Lt. Anuszkiewicz. Guenzel forwarded this email to the

County’s Risk Manager, Judy Kramer, and to the Director of Labor Relations, Diane

Heidt. Kramer then arranged a meeting between herself, Heidt, Kuhn, and Undersheriff

Ptaszek in September 2009. During this meeting, which was secretly recorded by Kuhn

and later transcribed, Undersheriff Ptaszek explained that the Sheriff’s Office wanted

Kuhn to return to work. Heidt added that a medical release was required before Kuhn

could resume his duties. Kuhn was also informed that they took his allegations of

deputy mistreatment seriously and wanted to investigate Kuhn’s claims, but Kuhn

refused to give specific information about the allegations.

At Kuhn’s request, Kramer sent Kuhn an email in October 2009 regarding his

rights under Michigan’s Whistleblowers’ Protection Act and a copy of the Act. She also

requested that Kuhn meet with her again to continue their discussion about deputy

mistreatment. Kuhn replied: “I will follow up with you when I receive a disposition for

my complaint against Lt. Anuszkiewicz.”

In November 2009, Undersheriff Ptaszek emailed Kuhn to inform him that the

investigation of Lt. Anuszkiewicz was complete and to arrange for Kuhn’s return to

work. Kuhn responded with a doctor’s note stating that he could not return to work until

No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 6

January 3, 2010. Undersheriff Ptaszek then extended Kuhn’s discretionary leave to that

date, but he cautioned that “doing so is extraordinary. I do not envision extending it any

further.” He reiterated that the Sheriff’s Office wanted to investigate Kuhn’s allegations

of deputy mistreatment and wanted Kuhn to return to work.

Kuhn nevertheless requested another extension of his discretionary leave on

December 11, 2009. On December 30, 2009, Undersheriff Ptaszek emailed Kuhn to

advise him that, due to “economic and operational conditions” faced by the County and

the Sheriff’s Office, the Sheriff’s Office could “no longer continue a discretionary

unpaid leave of absence.” Ptaszek cited a “void in public service” caused by Kuhn’s

absence and the fact that “as a result of contract revisions with Ypsilanti Township, the

Sheriff’s Office must eliminate seven (7) deputy positions.” For these reasons, Ptaszek

stated that the Sheriff’s Office was “unable to grant the further discretionary unpaid

leave of absence” that Kuhn had requested. The message concluded by informing Kuhn

that his “employment with the Washtenaw County Sheriff’s Office will terminate

effective Monday January 4th, 2010.”

Kuhn forwarded this message to his union representative, who “strongly

encourage[d]” that “if . . . at all possible . . . [Kuhn] return to work on January 3rd,

2010.” Kuhn did not do so. Instead, his attorney sent a letter to the Sheriff’s Office on

January 4, 2010, stating that “Kuhn will not be reporting to duty.”

II. ANALYSIS

A. Standard of review

We review de novo a district court’s grant of summary judgment. Huckaby v.

Priest, 636 F.3d 211, 216 (6th Cir. 2011). Summary judgment is proper where “there

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

a matter of law.” Fed. R. Civ. P. 56(a). In considering a motion for summary judgment,

the district court must construe the evidence and draw all reasonable inferences in favor

of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 587 (1986). The central issue is “whether the evidence presents a sufficient

No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 7

disagreement to require submission to a jury or whether it is so one-sided that one party

must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52

(1986).

B. Kuhn was afforded all the process that he was due

Kuhn alleges a procedural due process claim under the Due Process Clause of the

U.S. Constitution and 42 U.S.C. § 1983. He argues that the County unlawfully denied

him a hearing before terminating his employment as a deputy. The County, in response,

contends that the availability of post-deprivation remedies allows the pretermination

process to be less formal and that Kuhn was given all the pretermination process that he

was due.

To prevail on this claim, Kuhn must first establish that he had a protectable

property interest in his position as a law enforcement officer. See Miller v. Admin.

Office of the Courts, 448 F.3d 887, 895 (6th Cir. 2006) (noting that the first step in

analyzing a procedural due process claim “is to determine whether [a plaintiff] had an

interest that was protected by the Due Process Clause”). There is no dispute that Kuhn

had a protectable property interest in his job.

The second step of the analysis is to determine whether Kuhn was “afforded the

procedures to which government employees with a property interest in their jobs are

ordinarily entitled.” See id. (internal quotation marks omitted). The Supreme Court has

explained that the deprivation of a property interest must be preceded by notice and an

opportunity to be heard. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542

(1985). Sufficient pretermination process “need only include oral or written notice of

the charges, an explanation of the employer’s evidence, and an opportunity for the

employee to tell his side of the story.” Gilbert v. Homar, 520 U.S. 924, 929 (1997).

Such a procedure serves as an “initial check against mistaken decisions.” Loudermill,

470 U.S. at 545.

No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 8

1. Kuhn had sufficient notice of his impending termination

Kuhn first argues that he did not have notice of his termination. He contends that

the December 30, 2009 email terminated his employment immediately rather than

notified him of his impending termination. But the district court found that the

December 30th email did not immediately terminate Kuhn’s employment; instead, the

email stated that the termination was effective January 4, 2010. Kuhn v. Washtenaw

Cnty., No 10-11191, 2012 WL 1229890, at *5 (E.D. Mich. Apr. 12, 2012).

We find no error in that determination. Undersheriff Ptaszek’s email explained

that Kuhn had requested and been granted two periods of discretionary leave, extending

through January 3, 2010. The email further noted that Kuhn had requested a third period

of discretionary leave, which he had previously been informed was not likely to be

granted. Finally, the email stated that the County was declining to grant further

discretionary leave and, therefore, that Kuhn’s employment would terminate effective

January 4, 2010. Rather than immediately terminating Kuhn’s employment, this email

simply informed him that his employment would terminate at the end of his previously

approved discretionary leave. Kuhn appeared to be aware that he could have chosen to

return to work, as evidenced by his union representative’s email advising him to return

to work if possible by January 3 and by his attorney’s letter informing the Sheriff’s

Office that Kuhn would not be reporting for duty on January 4.

The termination notice set forth in the December 2009 email should therefore

have been no surprise to Kuhn. And this court has previously held that a plaintiff is

deemed to have received sufficient notice when he has “at least the sense of the charges

against him.” Guarino v. Brookfield Twp. Trs., 980 F.2d 399, 409 (6th Cir. 1992).

Together, the November and December emails gave Kuhn adequate notice that his

employment would be terminated on January 4, 2010 if he did not return to work prior

to that date.

Kuhn further argues that the reasons for his termination as cited in the December

30, 2009 email were pretextual. He bases this contention on Undersheriff Ptaszek’s

deposition testimony that the reference to the Ypsilanti Township deputy positions in the

No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 9

email “is just a general explanation of the condition of the organization at the time. The

Ypsilanti Township deputies per se didn’t have anything to do with [Kuhn’s

termination].” Kuhn construes this testimony as establishing that the elimination of the

deputy positions could not be the reason that he was terminated because no other

deputies were fired.

This argument is unavailing. Kuhn’s employment was not terminated as a result

of contract negotiations with Ypsilanti Township, nor does the email imply that this was

the case. Indeed, as Ptaszek explicitly stated elsewhere in his deposition, Kuhn was not

fired because of “a shortage of funds or budget cuts within the Sheriff’s Office as a result

of the elimination of the Ypsilanti Township deputy positions.” Rather, Ptaszek testified

that Kuhn’s discharge was necessary because he had “used up all his vacation time,

comp time and sick time. He used up his entire FMLA leave. . . . [He] had extended all

his benefits, plus he had been given additional time by the Sheriff’s Office and wasn’t

able to return to work, so I had to terminate him.” Ptaszek further testified that “[a]t

some point, you reach a point where the organization can no longer not have a person

coming to work.” He elaborated that the “economic and operational conditions”

language in the December 30th email referred to the fact that “[e]very time an employee

doesn’t come into work, somebody does that job for them. So there is a cost in either

redistribution of manpower [or] overtime.”

In short, Kuhn’s absence was causing problems for the Sheriff’s Office’s payroll

and human resources. The email accurately reflects these reasons for termination: the

Sheriff’s Office could no longer allow Kuhn’s “discretionary unpaid leave of absence”

because his absence was creating a “void in public service” that required either overtime

pay for or reassignment of deputies to cover Kuhn’s shifts.

In any event, if Kuhn wished to argue that the reasons cited in the December 30,

2009 email were pretextual, the opportunity to do so was at a post-termination

proceeding. See Duchesne v. Williams, 849 F.2d 1004, 1008 (6th Cir. 1988) (“The full,

post-termination, adversary, trial-type hearing will serve to ferret out bias, pretext,

deception and corruption in discharging the employee. The adversary processes

No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 10

employed in an adjudicatory, post-termination hearing controlled by an impartial judge

lend themselves to proving wrongful conduct by the employer.”). We conclude that the

pretermination notice of Kuhn’s discharge was constitutionally adequate.

2. The County’s explanation for the discharge

Kuhn further argues that he was not given a sufficient explanation for why he

was terminated. His argument rests on the contention that the reasons given for his

termination were pretextual. But as discussed above in Part II.B.1., there is no evidence

that Kuhn was discharged for any reason other than the fact that he had exhausted his

leave, that his absence was causing a staffing shortage at the Sheriff’s Office, that the

County elected not to continue his discretionary leave, and that he did not return to work.

“[P]olice departments, as a matter of public policy, need to ensure that officers show up

for work or are accounted for so an adequate force is available to maintain public

safety.” Hudson v. City of Chicago, 374 F.3d 554, 562 (7th Cir. 2004). The email from

Undersheriff Ptaszek adequately explained these reasons.

3. Kuhn had several days in which to respond

Kuhn makes a passing reference to the fact that he received the notice of his

termination “over the Christmas-New Years’ holiday season.” But he offers no evidence

or argument as to why he was unable to respond over the holidays, nor has he presented

any evidence or argument that he attempted to respond before the January 4th deadline

but was unable to do so.

Between December 30th, 2009 and January 4th, 2010, Kuhn could easily have

contacted the Sheriff’s Office and explained why he sought further administrative leave

or thought that the impending termination was erroneous. “The employee, being

confronted with the charges against him or her and being offered the chance to give a

version of the incident, is responsible for the choice to not offer any competing

evidence.” Buckner v. City of Highland Park, 901 F.2d 491, 495 (6th Cir. 1990). That

Kuhn in fact consulted with both his union representative and his attorney prior to

No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 11

January 4th bolsters the conclusion that he could have timely responded to Undersheriff

Ptaszek’s pretermination notice if he had wanted to.

4. Additional pretermination arguments

Kuhn raises two additional arguments with respect to the pretermination process.

First, in his reply brief only, he argues that the December 30th email violated Article

18.1 of the Collective Bargaining Agreement (CBA) under which he was covered.

Article 18.1 provides as follows:

Prior to any discipline or discharge of a bargaining unit member the

employee will be provided a written notice of charges which shall

contain the specific sections of rules and regulations and/or appropriate

law or ordinance which the member is alleged to have violated. The

notice of charges will be served on the employee at least ten (10)

business days prior to any disciplinary action being taken.

The entirety of his argument consists of the conclusory statement that the December 30th

email “violated the spirit” of the CBA.

This court does not usually consider issues raised for the first time on appeal in

a reply brief, whether or not they were previously raised in the district court. Osborne

v. Hartford Life & Accident Ins. Co., 465 F.3d 296, 301 (6th Cir. 2006). But even if we

assume arguendo that the issue is not waived, the section of the CBA that Kuhn cites has

no apparent application to instances of exhausted leave. Instead, Article 21.1 of the

CBA appears to be the relevant section, providing that “[a]ny employee desiring a leave

of absence from his employment shall secure written permission from the Sheriff or

Undersheriff. The maximum leave of absence shall be for thirty (30) days and may be

extended for like periods. Permission for extension must be secured from the Sheriff or

Undersheriff.” (Emphasis added.)

Article 21.1 indicates that administrative leave is discretionary and that

extensions may be denied, which is what happened in this case. In contrast, Article 18.1

deals with discipline or discharge stemming from a violation of departmental rules or

applicable laws. Given that the CBA argument is purely a breach-of-contract claim,

No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 12

Kuhn has not shown that the provision he cites actually applies to him. Kuhn’s counsel,

moreover, informed us at oral argument that Kuhn was not bringing any claims based

on the CBA.

Second, Kuhn argues that his “administrative leave was based upon the stress of

investigation,” which he contends raises a genuine dispute of material fact as to whether

he received sufficient process. This argument is misplaced. The procedural-due-process

inquiry asks whether Kuhn had constitutionally adequate notice of his termination and

an opportunity to respond. The reason for Kuhn’s leave and ultimate termination is not

a consideration relevant to this issue.

5. Post-termination process was available to Kuhn

“Where there is a system of post-termination procedures available to the

employee . . . coupled with a pretermination ‘right of reply’ hearing,” the due process

inquiry is satisfied. Farhat v. Jopke, 370 F.3d 580, 596 (6th Cir. 2004). This court has

held that “it is the opportunity for a post-deprivation hearing before a neutral

decisionmaker that is required for due process.” Id. (emphasis in original).

The district court concluded that Kuhn had the opportunity for post-deprivation

process because his union could have pursued arbitration, or he could have pursued his

own grievance without intervention from the union. Kuhn does not challenge this ruling

on appeal except for the conclusory statement that “the lower court’s treatment of post-

termination procedure does not address the core issue of pre-termination due process.”

Because the opportunity for a post-deprivation hearing like the one available here

“allows for an even less formal pre-termination hearing,” Guarino v. Brookfield Twp.

Trs., 980 F.2d 399, 409 (6th Cir. 1992), we find no fault with the district court’s

conclusion that the availability of post-termination procedures permitted the informal

pretermination process that Kuhn received.

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C. Kuhn cannot establish a prima facie case of race discrimination because an

internal investigation is not an adverse employment action

1. Burden-shifting standard

All of Kuhn’s discrimination claims are subject to the same burden-shifting

standard. See Amini v. Oberlin Coll., 440 F.3d 350, 358 (6th Cir. 2006) (discussing the

burden-shifting framework for Section 1981 claims); Kitchen v. Chippewa Valley Schs.,

825 F.2d 1004, 1011-12 (6th Cir. 1987) (discussing the same burden-shifting framework

for Title VII and Michigan civil-rights claims). Neither party disputes the applicability

of this standard. See Kuhn v. Washtenaw Cnty., No. 10-11191, 2012 WL 1229890, at

*6 n.3 (E.D. Mich. Apr. 12, 2012).

In order to prevail on the basis of race discrimination, Kuhn was required to

produce either direct or circumstantial evidence of disparate treatment. See DiCarlo v.

Potter, 358 F.3d 408, 414 (6th Cir. 2004). Direct evidence is proof that, if believed,

compels “the conclusion that unlawful discrimination was at least a motivating factor in

the employer’s actions.” Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp.,

176 F.3d 921, 926 (6th Cir. 1999). Kuhn offered no direct evidence of disparate

treatment.

In the absence of direct evidence of discrimination, this court analyzes disparate-

treatment claims under the burden-shifting analysis set forth in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). A plaintiff claiming race-based discrimination

supported only by circumstantial evidence must demonstrate that he (1) is a member of

a protected class, (2) was qualified for the job at issue, (3) was subjected to an adverse

employment action, and (4) was treated differently than a similarly situated nonprotected

person. See id. at 802.

Once a plaintiff establishes a prima facie case, “the burden of production of

evidence shifts to the employer to articulate some legitimate, nondiscriminatory reason

for its actions.” Hunter v. Sec’y of U.S. Army, 565 F.3d 986, 996 (6th Cir. 2009)

(internal quotation marks omitted). The burden then shifts back to the plaintiff to

No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 14

demonstrate “that the proffered reason was not the true reason for the employment

decision,” id. (internal quotation marks omitted), but was instead a pretext designed to

mask unlawful discrimination, White v. Baxter Healthcare Corp., 533 F.3d 381, 391-92

(6th Cir. 2008).

2. Kuhn’s race-based termination claims are waived

In his opening brief, Kuhn focuses solely on the internal investigation as

constituting an adverse employment action. The County in its responsive brief countered

Kuhn’s arguments, and then went further to address the race-based termination argument

that Kuhn could have made. Kuhn contends in his reply brief that he argued in the

district court that his termination was based on race.

This court has consistently held that arguments not raised in a party’s opening

brief, as well as arguments adverted to in only a perfunctory manner, are waived.

Caudill v. Hollan, 431 F.3d 900, 915 n.13 (6th Cir. 2005) (citing recent decisions that

stand for these two related propositions). In Kuhn’s opening brief, his sole contention

regarding his termination is that he “lost pay and his job on account of the investigation.”

The remaining pages of his brief devoted to his race-discrimination claims address only

the internal investigation. We therefore decline to address any discrimination claims

with respect to Kuhn’s termination. See Dillery v. City of Sandusky, 398 F.3d 562, 569

(6th Cir. 2005) (declaring an argument waived where the plaintiff had “wholly fail[ed]

to address th[e] issue in her appellate brief”). By failing to raise any specific challenges

to the district court’s decision regarding his termination, Kuhn has waived those

challenges. See id.

3. Failure to establish a prima facie case of race discrimination

Kuhn’s primary argument is that the internal investigation into the rape allegation

constituted an adverse employment action. The district court, however, held that “[t]he

act of investigating possible employee misconduct is not an adverse [employment]

action.” Kuhn, 2012 WL 1229890, at *7. “An adverse employment action in the context

of a Title VII discrimination claim is a materially adverse change in the terms or

No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 15

conditions of employment because of the employer’s actions.” Michael v. Caterpillar

Fin. Servs. Corp., 496 F.3d 584, 593 (6th Cir. 2007) (internal quotation marks omitted).

Materially adverse changes in the terms and conditions of employment include “a

termination of employment, a demotion evidenced by a decrease in wage or salary, a less

distinguished title, a material loss of benefits, significantly diminished material

responsibilities, or other indices that might be unique to a particular situation.” Id. at

594 (internal quotation marks omitted).

Kuhn responds by citing Peltier v. United States, 388 F.3d 984 (6th Cir. 2004),

for the proposition that an internal investigation may be an adverse employment action

if it is done in “bad faith.” Peltier was an employee of the U.S. Department of Justice’s

Bureau of Alcohol, Tobacco and Firearms. She was the focus of an internal

investigation when the agency believed that she had “tipped off” a suspect that the

suspect’s residence would be searched. Peltier was placed on paid administrative leave

pending the outcome of the investigation. The agency ultimately determined that Peltier

was innocent of wrongdoing, closed the investigation, reinstated Peltier, and instructed

her to return to work. But Peltier, due to stress and depression allegedly suffered as a

result of the investigation, refused to return to work. The agency subsequently

terminated her employment.

Reasoning that Peltier was placed on paid administrative leave, was exonerated,

and was allowed to return to work, the district court concluded that Peltier did not suffer

an adverse employment action. Id. at 988. This court agreed, citing its previous holding

that “a suspension with pay and full benefits pending a timely investigation into

suspected wrongdoing is not an adverse employment action.” Id. (citing cases)

(emphasis in original). A subsequent unpublished decision of this court reiterated this

principle in a slightly different manner, stating that “neither an internal investigation into

suspected wrongdoing by an employee nor that employee’s placement on paid

administrative leave pending the outcome of such an investigation constitutes an adverse

employment action.” Dendinger v. Ohio, 207 F. App’x 521, 527 (6th Cir. 2006)

(holding that an employer’s internal investigation of an employee and its failure to notify

No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 16

the employee of the investigation until after it had been completed did not constitute an

adverse employment action).

Kuhn argues that Peltier stands for the proposition that an internal investigation

is not an adverse employment action only if there is (1) suspension or paid leave with

benefits, (2) a timely investigation, and (3) a good-faith basis for suspecting employee

wrongdoing. But nothing in Peltier requires that a plaintiff be placed on leave pending

the outcome of an investigation before we may conclude that the investigation was not

an adverse employment action. We therefore decline to adopt Kuhn’s argument on that

point.

In the present case, Kuhn was never placed on leave, so he challenges only the

investigation itself. But he has not shown that the investigation, during the time it was

open, changed the form or conditions of his employment, let alone effected any change

in a “materially adverse” way. He suffered no disciplinary action, demotion, or change

in job responsibilities during the course of the investigation.

In addition, Kuhn does not cite, and we cannot locate, any cases that impose a

good-faith requirement on the employer regarding internal investigations. Such an

inquiry into the employer’s subjective motive would be contrary to the objective analysis

of whether an employment action is adverse. In any event, there is no evidence of bad

faith in the present case because, under department policy,“[a]ny allegation of improper

or inappropriate conduct by an employee . . . , regardless of its apparent validity, is a

complaint or inquiry.” (Emphasis added.) We thus find no error in the district court’s

conclusion that Kuhn failed to make out a prima facie case of race discrimination.

D. Kuhn’s EEOC charge does not allege a hostile-work-environment claim

The Equal Employment Opportunity Commission (EEOC) charge reads as

follows:

On May 30, 2008, I went on a medical leave. My medical leave

was necessitated by discrimination occurring on the job. I filed a charge

of discrimination against a Lieutenant in March 2009, and in October

2009, went to the County Administrator with my complaint. On January

No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 17

4, 2010 I was discharged. The reason given was economic conditions.

They stated several Deputies were cut. I am aware of at least two (2)

white Deputies who were off work for longer periods of time than me,

who were not fired.

I believe I have been discriminated against by being discharged,

based on my race, black, my disability, and in retaliation for complaining

of discrimination, in violation of Title VII of the Civil Rights Act of

1964, as amended, and the Americans with Disabilities Act of 1990, as

amended.

Kuhn failed to check the box for “continuing action” and, in response to the prompt

“Date(s) discrimination took place,” Kuhn listed only January 4, 2010—the date of his

termination. The district court held that Kuhn’s EEOC charge failed to put the EEOC

on notice of a hostile-work-environment claim because he alleged only distinct instances

of discrimination. Kuhn, 2012 WL 1229890, at *8.

On appeal, Kuhn argues that his hostile-work-environment claim was properly

exhausted at the administrative level because it could reasonably be expected to grow

out of the EEOC charge. The County responds by pointing out that this argument was

never presented to the district court and is therefore waived. In addition, the County

argues that Kuhn never presented any specific incidents of racially motivated

harassment.

Title VII protection extends to a plaintiff who shows that his or her workplace

“is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently

severe or pervasive as to alter the conditions of the victim’s employment and create an

abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)

(citation and internal quotation marks omitted). “As a general rule,” however, “a Title

VII plaintiff cannot bring claims in a lawsuit that were not included in his EEOC

charge.” Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 361 (6th Cir. 2010).

Furthermore, inclusion in an EEOC charge of discrete acts of discrimination to support

a claim of disparate treatment cannot, standing alone, support “a subsequent, uncharged

claim of hostile work environment unless the allegations in the complaint can be

No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 18

reasonably inferred from the facts alleged in the claim.” Id. at 362 (internal quotation

marks omitted).

Kuhn’s complaint alleges that he was subjected to a hostile work environment

based on (1) being assigned from 2005 to 2006 to Salem Township; (2) “experiencing”

in 2006 the fact that African-American deputies, but not white deputies, were assigned

to a locale where an African-American “suspect” had died; and (3) being subjected to

an internal investigation by Lt. Anuszkiewicz. These allegations exceed the scope of the

EEOC charge, which cites only discrete acts of alleged discrimination that occurred after

Kuhn had taken medical leave.

And even if the allegations in the complaint could be reasonably inferred from

the allegations in the charge, they fail to state a prima facie case for a hostile-work-

environment claim. To establish such a prima facie case, Kuhn must show that (1) he

was a member of a protected class; (2) he was subject to unwelcomed harassment;

(3) the harassment was race-based; (4) the harassment unreasonably interfered with his

work performance by creating an environment that was intimidating, hostile, or

offensive; and (5) the County was liable for the harassing conduct. See Clay v. United

Parcel Serv., Inc., 501 F.3d 695, 706 (6th Cir. 2007). The investigation in the present

case was a one-time occurrence required by department policy. This is a far cry from

the “severe or pervasive” standard articulated in Harris, 510 U.S. at 21. “A recurring

point in the Supreme Court’s opinions is that . . . isolated incidents (unless extremely

serious) will not amount to discriminatory changes in the terms and conditions of

employment and that conduct must be extreme to amount to a change in the terms and

conditions of employment.” Hafford v. Seidner, 183 F.3d 506, 512-13 (6th Cir. 1999)

(internal quotation marks omitted). We therefore find no error in the district court’s

dismissal of Kuhn’s hostile-work-environment claim.

E. Kuhn failed to establish a causal connection for purposes of his retaliation

claim between his engaging in protected activity and being terminated

Kuhn next asserts claims under both Title VII and Michigan’s Elliott-Larsen

Civil Rights Act (ELCRA) for retaliation. The analysis is the same under either act.

No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 19

Wasek v. Arrow Energy Servs., Inc., 682 F.3d 463, 472 (6th Cir. 2012) (“[T]he ELCRA

analysis [for retaliation claims] is identical to the Title VII analysis.”). In order to

establish a prima facie case of retaliation, Kuhn was required to show that (1) he

engaged in protected activity, (2) the County knew that Kuhn had exercised his civil

rights, (3) the County took an adverse employment action against Kuhn, and (4) there

was a causal connection between Kuhn’s protected activity and the adverse employment

action. See Morris v. Oldham Cnty. Fiscal Court, 201 F.3d 784, 792 (6th Cir. 2000).

The district court assumed for purposes of analysis that Kuhn’s August 2009

letter to County Administrator Guenzel and his September 2009 meeting with various

County employees constituted protected activity. Kuhn, 2012 WL 1229890, at *9. Even

with this assumption, however, the court held that Kuhn had not offered any evidence

tending to show a causal connection between the protected activity and his termination.

Id.

On appeal, Kuhn argues that “the timing and pretext surrounding [his]

termination provide a genuine fact dispute on the issue of causation.” He further

contends that there is a causal relationship because the “County administrators’ failed

efforts” to speak with Kuhn about his allegations of deputy mistreatment could be

viewed “as part and parcel of Kuhn’s subsequent termination.” The County correctly

points out, however, that Kuhn failed to support these contentions with any evidence.

As did the district court, we will assume for purposes of analysis that Kuhn

engaged in protected activity. If his August 2009 letter and the September 2009 meeting

were protected activities, then the County indisputably knew about them. Equally

irrefutable is the fact that the termination of his employment was an adverse employment

action. But Kuhn has provided no evidence to establish any link between the protected

activity and his termination several months later. The relatively short amount of time

elapsed does not, by itself, imply causation. See Tuttle v. Metro. Gov’t of Nashville,

474 F.3d 307, 321 (6th Cir. 2007) (“The law is clear that temporal proximity, standing

alone, is insufficient to establish a causal connection for a retaliation claim.”).

No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 20

Moreover, the events that transpired in this case do not support an inference of

retaliation based on temporal proximity. This court has previously held that “an

intervening legitimate reason” to take an adverse employment action “dispels an

inference of retaliation based on temporal proximity.” Wasek, 682 F.3d at 472 (holding

that an oil rig worker who had complained about sexual harassment to his superiors, but

who subsequently left his worksite without authorization, had engaged in an intervening

event that gave his employer a legitimate reason to discipline him). Here, Kuhn’s

extended discretionary leave and his failure to return to work caused a shortage of

available deputies in the Sheriff’s Office and constituted an intervening reason for the

County to terminate his employment. Furthermore, Kuhn failed to provide any evidence

aside from temporal proximity that links his protected activity to his termination. We

therefore find no error in the district court’s dismissal of Kuhn’s retaliation claim.

F. Kuhn cannot establish a claim under Michigan’s Whistleblowers’ Protection

Act

Section 2 of Michigan’s Whistleblowers’ Protection Act (WPA) provides as

follows:

An employer shall not discharge, threaten, or otherwise discriminate

against an employee regarding the employee’s compensation, terms,

conditions, location, or privileges of employment because the employee,

or a person acting on behalf of the employee, reports or is about to report,

verbally or in writing, a violation or a suspected violation of a law or

regulation or rule promulgated pursuant to law of this state, a political

subdivision of this state, or the United States to a public body, unless the

employee knows that the report is false, or because an employee is

requested by a public body to participate in an investigation, hearing, or

inquiry held by that public body, or a court action.

Mich. Comp. Laws § 15.362. A “public body” includes “[a]ny . . . body which is created

by state or local authority or which is primarily funded by or through state or local

authority, or any member or employee of that body.” Id. § 15.361(d)(iv).

To establish a prima facie case under the WPA, Kuhn was required to show that

(1) he engaged in protected activity as defined by the WPA, (2) he was discharged, and

No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 21

(3) a causal connection existed between the protected activity and the discharge.

See Shallal v. Catholic Soc. Servs. of Wayne Cnty., 566 N.W.2d 571, 574 (Mich. 1997).

The WPA contemplates three types of protected activity: “(1) reporting to a public body

a violation of a law, regulation, or rule; (2) being about to report such a violation to a

public body; or (3) being asked by a public body to participate in an investigation.”

Chandler v. Dowell Schlumberger Inc., 572 N.W.2d 210, 212 (Mich. 1998). Kuhn also

had to show that the County received “objective notice of [his] report or a threat to

report.” Roberson v. Occupational Health Ctrs. of Am., Inc., 559 N.W.2d 86, 88 (Mich

Ct. App. 1996) (internal quotation marks omitted).

If Kuhn had been deemed successful in establishing a prima facie case, the

burden would have shifted to the County to “establish a legitimate business reason” for

terminating him. See Shaw v. City of Ecorse, 770 N.W.2d 31, 37 (Mich. Ct. App. 2009).

The burden would then have shifted back to Kuhn to establish that the County’s

“proffered reasons were a mere pretext” designed to mask the true basis for his

termination. See id.

Kuhn advances essentially the same argument with respect to his WPA claim as

he did for his Title VII retaliation claim. The district court found that there was a

genuine dispute of material fact as to whether Kuhn had engaged in protected activity

when he sent an email to the County Administrator citing nonspecific incidents of deputy

mistreatment. Kuhn v. Washtenaw Cnty., No 10-11191, 2012 WL 1229890, at *10 (E.D.

Mich. Apr. 12, 2012). It also found that Kuhn had stated that he would “follow up” on

these allegations after the investigation against him was resolved (although Kuhn’s

actual email indicates that he planned to “follow up” after the investigation against Lt.

Anuszkiewicz was resolved). Id.

The district court further found that “there was some indication that [the County

was] worried that Kuhn would sue” over these concerns, leading the court to conclude

that there was a genuine dispute as to whether Kuhn was about to report a suspected

violation and whether this activity was the reason for his termination. Id. Ultimately,

however, the court concluded that, because Kuhn’s work restrictions were never lifted,

No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 22

“Kuhn was not qualified to work at the time he was discharged” and was thus “unable

to establish a prima facie case.” Id. at *11. It therefore dismissed Kuhn’s WPA claim.

As an initial matter, whether a plaintiff is qualified to work is not part of his

prima facie case under the WPA. The question of Kuhn’s ability to return to work would

be more appropriately considered as a legitimate business reason for terminating him.

But Kuhn was unable to establish a prima facie case in any event. As with his

retaliation claims, temporal proximity alone “does not demonstrate a causal connection

between the protected activity and any adverse employment action.” West v. Gen.

Motors Corp., 665 N.W.2d 468, 472-73 (Mich. 2003). Michigan courts have found,

however, that temporal proximity, coupled with some other indication of termination on

the basis of a protected activity, can satisfy the causation element. See, e.g., Henry v.

City of Detroit, 594 N.W.2d 107, 112-13 (Mich. Ct. App. 1999) (holding that an

employee who presented evidence of temporal proximity between a protected activity

and an adverse employment action, coupled with evidence of his supervisor’s

displeasure with the protected activity, satisfied the causation element of a prima facie

case under the WPA).

The fact that Kuhn was terminated in January 2010 after stating in August and

September 2009 that he was aware of instances of deputy mistreatment is evidence only

of a temporal proximity between these events. To establish a prima facie case under the

WPA, Kuhn was required to offer additional evidence from which a jury could infer that

his intent to report the alleged mistreatment influenced the County’s decision to

terminate him.

He failed to offer such evidence. In fact, the evidence shows that the County was

actively encouraging him to detail his allegations. The County administrators reached

out to Kuhn and asked for his information so that they could investigate. Undersheriff

Ptaszek, in granting Kuhn an extension of leave in November 2009, also requested

“whatever information” Kuhn had. Kuhn was ultimately terminated because he had

exhausted his permitted administrative leave and failed to return to work. “The fact that

No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 23

a plaintiff engages in a ‘protected activity’ under the Whistleblowers’ Protection Act

does not immunize him from an otherwise legitimate, or unrelated, adverse job action.”

West, 665 N.W.2d at 473. We therefore find no error in the district court’s dismissal of

Kuhn’s WPA claim.

G. Kuhn cannot establish that Lt. Anuszkiewicz tortiously interfered with a

business expectancy

Finally, Kuhn argues that the district court erred in dismissing his tortious-

interference claim against Lt. Anuszkiewicz. To make out a prima facie case of tortious

interference with a business expectancy under Michigan law, a plaintiff is required to

show “the existence of a valid business relationship or expectancy, knowledge of the

relationship or expectancy on the part of the defendant, an intentional interference by the

defendant inducing or causing a breach or termination of the relationship or expectancy,

and resultant damage to the plaintiff.” Mino v. Clio Sch. Dist., 661 N.W.2d 586, 597

(Mich. Ct. App. 2003) (internal quotation marks omitted). A plaintiff must also

“establish that the defendant was a ‘third party’ to the contract or business relationship.”

Reed v. Mich. Metro Girl Scout Council, 506 N.W.2d 231, 233 (Mich. Ct. App. 1993).

The district court concluded that Lt. Anuszkiewicz was not a third party to Kuhn’s

employment relationship with the County because the lieutenant was acting for the

benefit of the Sheriff’s Office. Kuhn, 2012 WL 1229890, at *11.

On appeal, Kuhn argues that reasonable minds could conclude that Lt.

Anuszkiewicz was effectively a “third party” because he was motivated by a “personal

vendetta” when he opened the internal investigation into the rape claim. He contends that

the Sheriff’s Office had previously investigated an assault involving Lt. Anuszkiewicz’s

brother, who was also employed by the Sheriff’s Office, and that Commander Hall-

Beard had given nothing more than a verbal warning to the brother. But Kuhn fails to

explain why a departmental investigation involving Lt. Anuszkiewicz’s brother would

cause Lt. Anuszkiewicz to have a vendetta against Kuhn.

Moreover, well-established Michigan law holds that “corporate agents are not

liable for tortious interference with the corporation’s contracts unless they acted solely

No. 12-1609 Kuhn v. Washtenaw Cnty., et al. Page 24

for their own benefit with no benefit to the corporation.” Reed, 506 N.W.2d at 233.

Kuhn does not dispute that the internal investigation was required by department policy.

Nor did he present any evidence showing that Lt. Anuszkiewicz acted solely for the

latter’s own benefit. We thus find no error in the district court’s conclusion that Lt.

Anuszkiewicz was acting pursuant to his duties as required by the Washtenaw County

Sheriff’s Office when he opened the internal investigation into Joseph’s rape claim.

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district

court.