Petition for Writ of Certiorari — Marianne Guzall, Petitioner v. City of Romulus, Michigan, et al.

APPENDIX TABLE OF CONTENTS

Opinion of the Sixth Circuit

(July 12, 2018) .................................................... 1a

Opinion and Order Granting Defendants’

Motion for Summary Judgment

(August 8, 2017) ............................................... 30a

Order of the Sixth Circuit Denying Petition for

Rehearing En Banc (September 6, 2018) ........ 69a

App.1a

OPINION OF THE SIXTH CIRCUIT

(JULY 12, 2018)

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

________________________

UNITED STATES OF AMERICA, EX REL.

MARIANNE GUZALL and MARIANNE D. GUZALL

A/K/A MARIANNA GUZALL, Individually,

Plaintiffs-Appellants,

v.

CITY OF ROMULUS, MICH.,

ALAN R. LAMBERT, BETSEY KRAMPITZ,

Defendants-Appellees.

________________________

No. 17-2056

On Appeal from the United States District Court

for the Eastern District of Michigan

Before: MERRITT, WHITE, and

DONALD, Circuit Judges.

BERNICE BOUIE DONALD, Circuit Judge.

In 2011, Plaintiff-Appellant Marianne Guzall

(“Guzall”) was laid off from her position as an administrative assistant in the Mayor’s office for DefendantAppellee City of Romulus, Michigan (the “City”). At

the time, the City was experiencing severe financial

adversity and had twice failed to pass millages to

App.2a

increase its revenue. Guzall claimed that she was fired

because of her stated refusal to lie to Michigan State

Police regarding an investigation into the City’s police

force and Mayor’s office, and for later allegedly reporting illegal activities to the City Council. Accordingly,

she filed a lengthy complaint alleging at least six

distinct claims against the City, the City’s former

mayor, Alan Lambert (“Mayor Lambert”), and Mayor

Lambert’s former chief of staff Betsey Krampitz

(“Krampitz”). After protracted litigation, the district

court granted summary judgment to Defendants on

each count. For the reasons that follow, we AFFIRM

the judgment of the district court in full.

I

In November 2001, newly-elected Mayor Lambert

hired Guzall as an administrative assistant. Guzall

joined another administrative assistant, Krampitz, who

had served in that capacity under a previous mayor.

Guzall’s employment was at-will and she served at the

pleasure of Mayor Lambert. She was the lowest in

command in the office. In 2006, Mayor Lambert promoted Krampitz to chief of staff. Guzall was not promoted to Krampitz’s vacated position, and Julie

Wojtylko (“Wojtylko”) was hired to replace Krampitz.

In 2009, the City began experiencing numerous

financial issues and shortfalls tied to the global

economy and well-publicized issues with Michigan real

estate and the state’s financial health.1 Entering 2010,

1 On appeal, Guzall takes issue with this fact, asserting that

the City was not in financial distress. (Appellant’s Br. at 19-20.)

However, the evidence supporting financial problems is overwhelming and Guzall’s contentions that the City’s financial distress was caused by greed and malfeasance are mere conjecture.

App.3a

the City identified a five-year deficit of approximately

$20 million. In response, the City created a task force to

address the deficit: the Action in Challenging Times

Committee (“ACT NOW Task Force”). The task force

proposed cost-saving and revenue-enhancing measures.

Between June and August 2010, the City laid off

twenty-eight full-time city employees, including policemen, firefighters, and Department of Public Works

employees. The City also closed its public library and

reduced hours at its Senior Center. No Mayor’s office

employees were affected during that period. The City

then proposed a millage in order to pay for public

services. It failed.

In January 2011, each City department was asked

to reduce its budget by five percent, including the

Mayor’s office. The City also planned a special election

the following month asking voters to approve a millage

to pay for various public services. In the event the

millage failed, the City planned to reduce its workforce

further. In preparation for that eventuality, the City

issued correspondence to twelve employees, including

Guzall, stating, in pertinent part, that “due to budget

cuts, your position will be eliminated and you will be

laid off effective March 11, 2011 at the end of your

work day. If the millage vote on February 22, 2011 is

favorable, this notice will be rescinded.” RE 153-9,

PageID #2517. The millage failed and Guzall was laid

off. Though Guzall testified that the Mayor’s office

told her not to clean her desk out because she would

Indeed, her only citation regarding a lack of financial distress is

a statement from her deposition that is untethered to any factual

evidence that the City spent more after the millages failed.

App.4a

be rehired within three months, and that Mayor

Lambert advised her not to look for a job because they

would find a way to retain her in some capacity,

Guzall’s employment never resumed. Nor was her

position filled by another employee.

Prior to the layoffs, in 2009, the Michigan State

Police (“MSP”) began investigating the City’s police

department following allegations of corruption. In

the course of the investigation, allegations of wrongdoing against Mayor Lambert and his office surfaced.

In response, the MSP opened a separate investigation

into the Mayor’s office in April 2010.

In May 2012, more than a year after Guzall was

laid off, the MSP interviewed her. The following year,

MSP searched Mayor Lambert’s home and City Council

Chairman Leroy Burcroff (“Burcroff”) requested that

Mayor Lambert resign. Mayor Lambert did not resign,

but declined to seek reelection, and Burcroff was

later elected mayor.

In 2013, Guzall filed an amended Complaint, which

was unsealed in 2014 when the United States declined

to intervene, alleging: (1) retaliation and retaliatory

discharge in violation of 31 U.S.C. § 3730(h), public

policy, and the First Amendment; (2) violation of the

federal False Claims Act (“FCA”) in qui tam form; (3)

violations of the Racketeer Influenced and Corrupt

Organizations Act (“RICO”); (4) promissory estoppel

and fraud; (5) a due process violation; (6) hostile work

environment; (7) intentional infliction of emotional distress; and (8) conspiracy.

As the district court summarized, Guzall identified

several discussions that she believed informed the

decision to lay her off. First, while Guzall was on vaca-

App.5a

tion in May 2010, Wojtylko phoned Guzall regarding

interviews of the Mayor’s staff in connection with the

MSP’s investigation into the City’s police department. Guzall testified that she told Wojtylko not to

lie for anyone and that she would not lie for Mayor

Lambert. Guzall stated that when she returned from

vacation, she said that she would tell the truth in

any interview. Krampitz responded that they were

going to give Guzall a pink slip, handed her one, and

stated that they would give Guzall a box to pack her

belongings if she did not lie. Guzall testified this exchange occurred right before a meeting in which the

City was deciding who would be laid off during the

initial June 2010 reduction. However, Guzall was not

laid off at that time.

Second, Guzall testified that she met with Leroy

Burcroff, mayor pro tem and chairman of the City

Council, and reported illegal and improper activities

in the Mayor’s office. Guzall stated that she believed

Burcroff told Mayor Lambert about that conversation

because Krampitz had warned her that “Burcroff’s a

politician and he talks.” RE 154-4, PageID #2874.

In addition to these claims regarding protected

speech and retaliation, Guzall’s remaining claims were

based on allegations of a vast criminal conspiracy within the Mayor’s office, her refusal to either participate

in that criminal venture or Defendants’ threats against

her when she declined to participate or cover up the

illegal activities, and the Mayor’s office defrauding

the United States government. Guzall also alleged that

her job was promised, statutorily guaranteed, and

that she was assured she would be rehired.

During the course of litigation, several relevant

motions were filed and rulings issued. First, during

App.6a

the initial eighteen months of litigation, Guzall was

represented by her husband, attorney Raymond Guzall,

III (“Mr. Guzall”). Eventually, Defendants filed a

joint motion to disqualify Mr. Guzall, asserting that

he acted as an Assistant City Attorney for the City

during the relevant period of this action. After a

hearing, the district court granted the motion, finding

that an attorney-client relationship existed between

Mr. Guzall and the City, and that Mr. Guzall acquired

confidential information during that relationship.

Moreover, the district court found that such information

was substantially related to Mr. Guzall’s wife’s claims

and would materially advance her action. Because Mr.

Guzall did not have the City’s consent, the district

court found that Mr. Guzall could no longer represent

his wife.

Next, the City filed a motion to compel Guzall to

produce the original “unedited surprise audio evidence,” i.e., Guzall’s conversation with Burcroff that

Guzall testified at deposition she had taped, and which

Guzall’s counsel played, from his own phone, at

Burcroff’s deposition. RE 70/PageID #1005; RE

74/PageID #1019. The district court allowed forensic

review of Guzall’s phone, despite Guzall’s objections

that her husband—and former counsel—owned the

phone, thereby implicating attorney-client privilege.

When Guzall refused to produce the phone, the district

court adopted the Magistrate Judge’s Report and Recommendation and fined her $500. In her motion for

reconsideration, Guzall stated that she had requested

forensic review of Defendants’ phones during a May

20, 2016 phone conference, which the district court

never ordered.

App.7a

Finally, the district court’s Fourth Amended

Scheduling Order set the deadline for dispositive motions at August 11, 2016. On January 5, 2017, Mayor

Lambert moved the court to allow him to file a tardy

motion for summary judgment, citing the existence of

outstanding material issues regarding his deposition

and production of tax documents. The district court

granted Mayor Lambert’s motion on January 11, 2017.

Guzall subsequently moved to set aside that order,

arguing that she should have been afforded time to

respond to the motion under local rules and that Mayor

Lambert was not entitled to the relief for various

reasons. The district court denied Guzall’s motion

and considered Mayor Lambert’s motion when ruling

on the other Defendants’ motions.

The district court granted summary judgment to

Defendants on all counts, reasoning that: (1) Guzall

failed to establish the causation element in her First

Amendment claim, offering no probative evidence

showing that Krampitz or Mayor Lambert were

involved in her dismissal, or that anyone involved in

that decision was aware of Guzall’s alleged protected

speech; (2) Guzall failed to provide evidence of fraud

on the federal government with respect to claims for

payment, as required by the FCA; (3) Guzall failed to

identify an injury to her business or property, as required to sustain a RICO claim; (4) there was no evidence of a clear and definite promise that Guzall

would keep her job or that she relied on such promise;

(5) no due process claim could be made when it was

undisputed that Guzall’s position was at-will and

that she served at the pleasure of Mayor Lambert; (6)

none of Guzall’s complaints were related to race, color,

religion, sex, or national origin such that a Title VII

App.8a

hostile-work-environment claim could be made and

that any First Amendment-based § 1983 claim failed

for lack of causation; (7) Guzall failed to identify

extreme or outrageous conduct—or any evidence of

injury—to support her claim of intentional infliction

of emotional distress; (8) Guzall’s civil fraud claim

failed because she did not establish any of the

requisite elements under Michigan law; and (9) Guzall’s

conspiracy claim failed because she presented no evidence of fraud and, standing alone, her conspiracy

claim is not actionable.

Guzall does not appeal the district court’s ruling

on her FCA, RICO, or Due Process claims, thus we do

not address them. See In re Anheuser-Busch Beer

Labeling Marketing & Sales Practices Litig., 644 F.

App’x 515, 529 (6th Cir. 2016) (“Where . . . a litigant

has failed to clearly raise an argument in the district

court, we have concluded that the argument is forfeited.”). However, Guzall does appeal the district court’s

grant of summary judgment as to each of her other

claims. She also challenges the disqualification of her

attorney, the district court’s discovery management,

and the sanction the district court levied. Additionally,

Guzall has filed a Motion to Correct Error and Supplement and Correct the Complete Record to add

Mayor Lambert’s deposition testimony—which Guzall

intended to attach to her Response to Mayor Lambert’s

Motion for Summary Judgment—that is not part of the

appellate record.

II

The district court had jurisdiction pursuant to 28

U.S.C. § 1331 and 28 U.S.C. § 1343, primarily due to

App.9a

Guzall’s § 1983 claim. This Court has jurisdiction pursuant to 28 U.S.C. § 1291 and Fed. R. App. P. 4.

III

A.

First Amendment

Guzall’s brief appears to make three arguments

allegedly demonstrating the district court’s error in

dealing with her First Amendment claim: (1) improperly

excluding as hearsay, or discounting as speculative,

testimony that would have precluded summary judgment; (2) failing to consider and address affidavits from

Romulus Police Officers Landry, Ladach, and Droege;

and (3) failing to apply facts and law in Guzall’s favor.

Guzall’s first argument—that the district improperly excluded portions of Virginia Williams’ affidavit as hearsay—is without merit. We typically

review the evidentiary rulings of the district court for

abuse of discretion. General Electric Co. v. Joiner,

522 U.S. 136, 141 (1997). However, whether the proffered evidence is hearsay under the Federal Rules of

Evidence is a question of law that we review de novo.

See Jacklyn v. Schering Plough Healthcare Prods. Sales

Corp., 176 F.3d 921, 927 (6th Cir. 1999) (also noting

that “[h]earsay evidence may not be considered on

summary judgment”). Hearsay is “a statement, other

than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the

truth of the matter asserted.” Fed. R. Evid. 801(c).

The statements at issue are Mayor Lambert’s allegedly

telling Williams that Guzall was “going to be let go

because she talks too much” and Krampitz’s purportedly

telling Williams that Mayor Lambert said “Guzall talks

too much and that she had to be let go.” RE 175-4,

App.10a

PageID #4485. Both are hearsay. Even though Williams

alleges that she personally heard Mayor Lambert state

an alternative reason for Guzall’s dismissal, Guzall

cannot use that statement to prove the truth of the

matter asserted—that she was let go because she talks

too much. Moreover, statements allegedly made by

Krampitz to Williams about what Mayor Lambert said

elsewhere add an additional level of hearsay. See

Fed. R. Evid. 805.

Despite arguing that Williams’ affidavit contains

no hearsay, Guzall also contends that any hearsay is

admissible under Federal Rule of Evidence 801(d)(2)(A)

because the relevant statements were made by party

opponents. Under that rule, statements are nonhearsay

if made by, and offered against, the opposing party.

United States v. Cunningham, 679 F.3d 355, 383 (6th

Cir. 2012) (explaining that the rule permits “a party’s

own statement to be offered as evidence against that

party even where the statement would otherwise be

inadmissible as hearsay”). Here, Mayor Lambert and

Krampitz are both defendants and thus fall under the

broad scope of the rule. However, for Rule 801(d)(2)

to apply, such statements must be made within the

scope of employment. See Carter v. Univ. of Toledo,

349 F.3d 269, 274-75 (6th Cir. 2003). Statements by

employees are outside of the scope of employment,

and therefore not subject to the party-admission rule,

when they concern decision-making processes into

which the employee has no input, or decisions to which

the employee was not a party. Id. Guzall has not provided any evidence to establish that either Mayor

Lambert or Krampitz were involved in the layoff

decisions or that they could have influenced those

decisions. The only evidence in the record, instead,

App.11a

shows the opposite: that the City Council has final

policy-making authority. Nor does Guzall provide

evidence that either party had authority to bind the

City.2 Thus, the district court properly excluded the

content of Williams’ affidavit.

Even were this purported evidence not hearsay,

the district court found that Williams’ statement that

“Guzall was wrongfully fired/laid off” was mere speculation and conjecture. We agree. Williams’ statement that Mayor Lambert thought that Guzall “talks

too much” does not suggest that Guzall was engaged

in protected speech or that any conduct was retaliatory;

nor does it in any way implicate either party in the

decision to lay off Guzall. Without such connections,

the statements were insufficient to preclude summary

judgment. See Fed. R. Civ. P. 56(e); Mitchell v. Toledo

Hosp., 964 F.2d 577, 584-85 (6th Cir. 1992) (discounting

“rumors, conclusory allegations and subjective beliefs”

in affirming district court’s grant of summary judgment).

Guzall’s second argument regarding her First

Amendment claim—that the district court improperly

failed to consider and address the affidavits of former

2 In her Reply, Guzall incorrectly argues that the City waived

this argument by failing to raise it below. (Appellant’s Reply at

7.) The City raised the hearsay issues in its their Reply in Support of Summary Judgment. Guzall made a cursory argument that

“witness statements of employees are not hearsay as per FRE

801(d)(2)(A) and (D)” with no further explanation. RE 175,

PageID #4421. The City, however, clearly noted that her hearsay

arguments, among other things, failed to implicate the ultimate

policy maker. Moreover, Guzall’s only argument that Mayor

Lambert or Krampitz actually had such authority is based on

her own testimony, which itself contains hearsay. (Appellant’s Br.

at 12 n. 2.)

App.12a

Romulus Police Officers Landry and Droege—is equally

without merit. There is no evidence that the district

court excluded these affidavits on evidentiary grounds,

and we review the court’s ruling de novo. See Combs

v. Int’l Ins. Co., 354 F.3d 568, 576 (6th Cir. 2004). The

affidavits of former or current police officers make

vague and general assertions that the City “retaliates

against those people who would not do what [the

City] wanted to be done,” and that the City “retaliates

against those people who report illegal activity occurring in the City,” and even reference specific acts of retaliation against individual citizens on Mayor

Lambert’s behalf. RE 175-1, PageID #4459, RE 175-3,

PageID #4483. These statements do not speak whatsoever to the facts at issue in Guzall’s case. There are

no allegations of similar retaliation against Guzall, or

even any mention of her. Though Guzall is correct

that the district court did not address these affidavits,

the reason is clear: they were unrelated to Guzall’s case

and wholly unnecessary to its disposition.

Finally, Guzall argues that the district court

failed to view the evidence in the light most favorable

to her as plaintiff and non-movant.3 We review such

assertions de novo. See Kouekassazo v. Intellisource,

No. 16-4140, 2017 WL 4513404, at *2 (6th Cir. Aug.

10, 2017). Guzall fails to cogently indicate which

3 This assertion is only clear in the table of contents. The

internal heading and argument state that the district court

“failed to apply additional evidence which allowed for Plaintiff’s

claims.” (Appellant’s Br. at 8.) This section of Guzall’s appellate

brief simply reiterates much of her testimony regarding the specific illegal activities that she alleges occurred in the Mayor’s

office and persists in the attempt to prove her First Amendment

claim through speculation and hearsay.

App.13a

facts and inferences were not viewed in the light

most favorable to her. The district court’s opinion

does not, in any obvious way, draw inferences in favor

of Defendants. Instead, Guzall appears to insist once

more that irrelevant or improper evidence was ignored.

Even were we to consider the speculative and conjectural statements, disregarding that they are hearsay, the district court explained in detail Guzall’s inability to show causation. A prima facie case of First

Amendment-based retaliation requires a showing that

the employee “(1) engaged in constitutionally protected

speech or conduct; (2) an adverse action was taken

against [her] 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 [the employee’s] protected conduct.”

Dye v. Office of the Racing Comm’n, 702 F.3d 286, 294

(6th Cir. 2012) (citation omitted) (alterations added).

Guzall has been unable to show that any person

aware of her alleged protected speech—even non-party

Mayor Pro Tem Burcroff—effectuated her employment decision, or that their acts gave rise to the ultimate alleged harm. See King v. Zamiara, 680 F.3d

686, 695 (6th Cir. 2012). Moreover, the span of time

between the alleged speech and the actual layoffs is

too long to conclude that her speech motivated the decision. See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S.

268, 273 (2001) (explaining that temporal proximity

must be “very close” when used as the sole evidence

to show causation). Guzall’s actual involvement with

the MSP investigation occurred well after her layoff.

Even were these deficiencies not enough to warrant

defense summary judgment, there is ample evidence

App.14a

in the record to conclude that, given the City’s dire

financial straits, the adverse action “would have been

the same absent the protected conduct.” See Eckerman

v. Tenn. Dep’t of Safety, 636 F.3d 202, 208 (6th Cir.

2010) (citation omitted). Guzall’s position was the

most junior in the Mayor’s office, and its elimination

put the Mayor’s office in line with a five-percent

budget decrease. Guzall was not replaced and her

position remained vacant. Had Defendants wished to

fire her due to her reputation for and attestations of

truthfulness, they had the opportunity to do so directly

after those purported statements in June 2010.

Tellingly, Guzall remained on staff for some time and

survived the initial workforce reduction. Even more

significantly, Guzall was told she would stay on if the

millage passed, and it is uncontroverted that, had

the measure passed, she would have stayed on.

In sum, the district court did not err in its analysis of the evidence, the inferences to be drawn from

it, or the ultimate conclusion that Guzall cannot establish a First Amendment retaliation claim, with or without any excluded evidence.

B.

Promissory Estoppel and Fraud

Guzall next claims that, in dismissing her promissory estoppel claim, the district court erred in

several ways: (1) by finding no evidence of a promise

that she would keep her job; (2) by determining that

Guzall could only rely on a promise that she would

not be laid off as it related to the first round of workforce reduction; (3) by failing to acknowledge that,

even after she was laid off, Defendants promised Guzall

that she would be promptly brought back to work; and,

(4) when analyzing the alleged promises, by ignoring

App.15a

City code requirements that the Mayor have administrative secretaries. Guzall also appeals judgment

on her fraud claim, arguing that the same conduct

makes an actionable case of fraud under Michigan

law. Our review is de novo. Combs, 354 F.3d at 576.

As the district court correctly stated, a promissory

estoppel claim under Michigan law requires “‘(1) a

promise, (2), that the promisor should reasonably have

expected to induce action of a definite and substantial character on the part of the promise, (3) which in

fact produced reliance or forbearance of that nature,

(4) in circumstances such that the promise must be

enforced if injustice is to be avoided.’” Gason v. Dow

Corning Corp., 674 F. App’x 551, 558-59 (6th Cir. 2017)

(quoting Leila Hosp. & Health Ctr. v. Xonics Med. Sys.,

Inc., 948 F.2d 271, 275 (6th Cir. 1991)). Michigan

precedent emphasizes that the promise must be clear

and definite and any subsequent reliance must be reasonable. DBI Investments, LLC v. Blavin, 617 F. App’x

374, 385 (6th Cir. 2015) (quoting State Bank of

Standish v. Curry, 500 N.W.2d 104, 108 (Mich. 1993)).

As to Guzall’s first three arguments, none of the

alleged statements satisfy Michigan’s elements of promissory estoppel. Any promise made when she

returned from vacation in March 2010 would reasonably

be related to the first work-force reduction, and

Guzall was not laid off during that time. Though Guzall

claims that she could rely on that promise for the

second round as well, that assertion does not comport

with the law. Such a promise is not clear and definite,

and reliance on a promise of employment that could

conceivably continue indefinitely is patently unreasonable. As to the alleged promise that she would be

rehired within months, that promise, too, was not

App.16a

particularly clear or definite. Indeed, it was unclear

in what capacity, with what funds, or through what

mechanism Guzall would be brought back into the fold,

and the financial situation and termination notice

were clear. Moreover, Guzall fails to identify any

detrimental reliance on that promise. Instead, Guzall

states the opposite—that she did not trust the assurance she was given that she would not be fired.

Finally, as to the fact that City Code states that the

Mayor’s office will have administrative secretaries,

that does not constitute a promise that the mayor will

have a certain number of administrative secretaries or

that one of those secretaries will be Guzall. Even if Defendants used the code as further assurance that she

would be brought back, those promises remain amorphous and do not ameliorate Guzall’s lack of detrimental reliance.

As to fraud, Michigan law requires similar elements: (1) a material representation, (2) that was

knowingly false (or made with reckless disregard as

to its truth) at the time, (3) with intention that plaintiff rely on the promise, (4) actual reliance, and (5)

causal injury. See Hord v. Envtl. Research Inst. of

Michigan, 617 N.W.2d 543, 546 (Mich. 2000). In addition to the deficiencies identified in her promissory

estoppel claim, Guzall failed to present evidence that

any of the alleged statements were knowingly false

at the time made, or evidence of any injury based on

detrimental reliance. Accordingly, we find that the

district court did not err in dismissing Guzall’s promissory estoppel and fraud claims.

App.17a

C.

Public Policy

Guzall asserts that each Defendant failed to

address her public policy claim, waiving any challenge

to that claim, and the district court thus “abused its

discretion” in dismissing it. Despite Guzall’s argument,

our review is de novo. Combs, 354 F.3d at 576. Under

either standard, Guzall’s claim fails. First, the district court was skeptical that a separate public policy

claim was pleaded at all. But any public policy claim,

by Guzall’s own admission, was contained in Count I

of her Complaint. (Appellant’s Br. at 29 (citing RE 4,

PageID #132)). As the City noted in its summary judgment motion as well as on appeal, several Defendants

addressed Count I extensively. While other briefs addressed the public policy claim together with the

FCA and fraud claims, the confusion is understandable, given Guzall’s prolix and often convoluted pleading. Moreover, when Guzall asserted in her Response

to Motions for Summary Judgment that Defendants

had failed to address the public policy claim, the City

and Lambert addressed the claim and identified the

method by which they met the argument.

Second, the district court did not improperly address Guzall’s alleged public policy claim. Instead, it

noted via footnote that Guzall’s responsive briefs asserted a separate violation of public policy based on

retaliatory discharge but found that the claim failed

for the same reason as her First Amendment claim—

causation. Given that the public policy claim—if it was

pleaded—is encompassed in and similar to the First

Amendment claim, the district court was not required

to expand on its analysis. We affirm the dismissal of

this claim.

App.18a

D.

Hostile Work Environment

Guzall claims that the district court erred in dismissing her hostile-work-environment claim when it

erroneously noted that she failed to allege any Title

VII-based discrimination. However, the district court

did not base its decision solely on that ground. Instead,

it noted that it had already addressed her ability to

survive summary judgment on her claim that Defendants laid her off in retaliation for her speech under

the First Amendment. Only when faced with a confusing pleading, and in an effort to fulsomely address

Guzall’s claim, did the court explain the deficiencies

in any potential Title VII-based § 1983 claim. In any

event, Guzall has not attempted to clarify on appeal

which protected group she belongs to, or how she was

harassed or retaliated against based on membership

in such a group. See Wasek v. Arrow Energy Servs.,

Inc., 682 F.3d 463, 469 (6th Cir. 2012). Nor did she

participate in any EEOC proceeding. Reed v. ADM/

ARTCO, 57 F. App’x 682, 683 (6th Cir. 2003) (“A plaintiff must typically file a timely discrimination charge

with the EEOC in order to bring a Title VII lawsuit.”)

(citation omitted). No matter how the district court

construed Guzall’s hostile-work-environment claim,

or how much leniency it granted, Guzall has not established a prima facie case of a hostile-work-environment Title VII claim. See e.g., Barrett v. Whirlpool

Corp., 556 F.3d 502, 515 (6th Cir. 2009). The district

court properly dismissed it.

Guzall also claims that Krampitz failed to address

Guzall’s hostile-work-environment claim, thus waiving

any defense to that claim. Guzall asserts that by dismissing the claim, the district court “abused its discretion.” (Appellant’s Br. at 30.) Regardless of the

App.19a

appropriate standard of review, this claim fails for

the preceding reasons.

E.

Intentional Infliction of Emotional Distress

Guzall also asserts that the district court erred

in dismissing her intentional infliction of emotional

distress claims. To establish an IIED claim under

Michigan law, Guzall must show that Defendants

intentionally or recklessly engaged in extreme or outrageous conduct that caused her severe emotional

distress. Roberts v. Auto-Owners Ins. Co., 374 N.W.2d

905, 908 (Mich. 1985).

Assuming arguendo that Guzall satisfied the extreme or outrageous conduct prong, Guzall fails to

proffer any evidence of emotional distress. The district

court noted that “Guzall does not even respond to

Defendants’ arguments, let alone identify where in

the record there is proof of her severe emotional distress.” RE 179, PageID #4722. On appeal, Guzall

offers the following, alone, as evidence of her emotional

distress: that after she allegedly refused to lie, job

duties were taken away from her and she asked to be

let go when she had nothing to do. These facts do not

evidence emotional distress. We affirm the district

court’s grant of summary judgment as to IIED.

F.

Conspiracy

The district court dismissed Guzall’s civil conspiracy claim because it is “not actionable standing

alone; it is necessary to prove a separate actionable

tort.” RE 179, PageID #4724. On appeal, Guzall claims

that once this Court reinstates her remaining claims,

that will no longer be the case. In affirming the district court in full, we decline to revive any of Guzall’s

App.20a

previous claims and her argument as to conspiracy

fails.

G.

Disqualification of Attorney

Guzall also appeals the district court’s disqualification of her husband as her attorney. We review a

district court’s decision whether to disqualify an attorney for abuse of discretion. United States v. Brock,

501 F.3d 762, 771 (6th Cir. 2007), abrogated on other

grounds, Ocasio v. United States, 136 S. Ct. 1423,

1428–29 (2016). After an evidentiary hearing, the

district court issued a detailed opinion addressing

each of Guzall’s arguments prior to disqualifying her

counsel. In short, it found that a prior attorney-client

relationship categorically existed between Mr. Guzall

and the City. Mr. Guzall admitted as much. As part

of that relationship, he obtained information protected

by that privilege related to City wrongdoing. Revealingly, Mr. Guzall freely asserted his attorney-client

privilege with the City when questioned by MSP investigators. Given the sprawling complaint and prolific

allegations of wrongdoing, it was a near certainty

that Mr. Guzall’s prior representation of the City

would overlap with the facts and theories at issue in

Guzall’s suit, even if not pertaining to the specific

individual Defendants.

On appeal, Guzall cites several cases and propositions that effectively limit the attorney-client privilege in governmental situations due to the public

interest inherent in an open and honest government.

Guzall also cites to situations in which the content of

governmental meetings is not confidential or privileged

due to the attendant circumstances. Additionally,

Guzall claims that the district court failed to identify

App.21a

any employee who sought legal advice from Mr. Guzall

privately, thus negating any claim of privilege. Again,

this misstates the district court’s reasoning for disqualification. Guzall’s cited precedent and propositions have no relation to her husband’s disqualification, which was exhaustively explained by the district court. Accordingly, we find that the district court

did not abuse its discretion in disqualifying Mr. Guzall.

H. Case Management

Guzall asserts several deficiencies in the district

court’s managing of the case during discovery, as well

as in the magistrate judge’s report and recommendations adopted by the district court. In particular,

Guzall asserts that the district court: (1) permitted

improper obstruction and delay of Mayor Lambert’s

deposition; (2) inequitably ordered forensic discovery

of her cellular telephone but denied her the same discovery regarding Defendants’ electronic devices; (3)

improperly sanctioned Guzall after she failed to produce her phone for forensic review; and (4) improperly

granted Mayor Lambert additional time to file his

Motion for Summary Judgment in violation of the

scheduling order. We address each issue in turn.

First, while there was undoubtedly delay in

obtaining Mayor Lambert’s deposition, Guzall admits

that his deposition took place. Further, she cites to

no precedent standing for the proposition that allowing

deposition delays warrants any remedy. Nor can she

cite to any court order that Mayor Lambert violated.

In sum, it is unclear what remedy Guzall seeks regarding the deposition delay, what she believes she would

be entitled to, what law would support such unknown

remedies, or what harm was incurred by the delay.

App.22a

Second, a review of the voluminous record and

pleadings regarding the production of Guzall’s telephone

shows that there was no inequity. At the outset of

this litigation, no party was ordered to produce a

cellular phone for forensic review. However, after substantial discovery, during Burcroff’s deposition,

Guzall’s counsel unexpectedly played a recording of a

telephone conversation between Guzall and Burcroff.

Due to its quality as well as the fact that it had not

been previously produced, the recording—and in consequence, Guzall’s phone itself—became the subject of

a fervent discovery dispute. Only in response to Defendants’ motion to compel her phone did Guzall seek

inspection of Defendants’ phones. Even then she failed

to file a countering motion to compel or formally explain why review of their phones was necessary—

other than because she had been ordered to turn her

phone over. Though Guzall was required to produce

her phone and Defendants were not, the reason is

obvious. No Defendant had attempted to introduce any

evidence from a phone that had not been previously

produced. Moreover, Guzall does not point to any motion

seeking the relief she now claims was an abuse of

discretion to deny. Nor does she identify particular

prejudice or what discovery or potential discovery she

was improperly denied. In any event, no Defendant

cited any evidence from Guzall’s phone in their motions

for summary judgment, and the evidence obtained is

of no moment.

Third, the district court’s sanction was not an

abuse of discretion. Rentz v. Dynasty Apparel Indus.,

Inc., 556 F.3d 389, 395 (6th Cir. 2009). Guzall failed

to respond to Defendants’ motion to compel. After the

motion was referred to a Magistrate Judge and granted

App.23a

in part, Guzall was to produce her cell phone by September 11, 2015. Guzall failed to comply with the

order and her counsel conceded the Magistrate Judge’s

order was violated. Defendants then moved to dismiss

Guzall’s entire case. Two months after Guzall was to

have produced the phone, the Magistrate Judge held

an evidentiary hearing on Defendants’ Motion to

Dismiss and Guzall produced her telephone. For her

violation of the original order, Guzall was fined $500.

Such a sanction is not an abuse of discretion. The

record shows that Defendants made multiple objections

when the unproduced recording was introduced at deposition, made numerous attempts to obtain the recording post-deposition, and timely filed a motion to

compel when those attempts failed. The record is also

clear that when ordered to produce the phone, Guzall

did not do so until another order followed and after

Defendants were forced to move to dismiss her case.

Though she argues that she did attempt to provide the

phone, (Appellant’s Br. at 45 (citing RE 79-7, PageID

#1096)), the record below is to the contrary, RE 116.

Thus, we find that the district court did not abuse its

discretion in sanctioning Guzall.

Fourth, Guzall wholly mischaracterizes the district

court’s order allowing Mayor Lambert to file a motion

for summary judgment after the operative schedulingorder deadline. As the district court explained in its

order denying Guzall’s motion to set aside its order

allowing such a filing, Guzall had previously filed a

motion to set aside the court’s order extending the

dispositive motion deadline. There, Guzall explained

the efforts to take Mayor Lambert’s deposition and

obtain his tax records and sought other relief. Indeed,

Mayor Lambert concedes that discovery disputes related

App.24a

to his deposition and tax-related discovery documents

existed. The district court noted that the issues

raised in Guzall’s motion were irrelevant to the extension of the dispositive motion deadline. Given that

outstanding discovery remained, and that Guzall was

permitted to depose Mayor Lambert and was granted

multiple extensions before responding to his motion,

the district court did not abuse its discretion in granting Mayor Lambert additional time to file his motion

after the dispositive motion deadline had passed. Dietz

v. Bouldin, 136 S. Ct. 1885, 1892 (2016) (noting district

courts’ “inherent authority to manage their dockets”);

Andretti v. Borla Performance Indus., Inc., 426 F.3d

824, 830 (6th Cir. 2005) (upholding district court’s decision to allow summary judgment filing past dispositive motion deadline in scheduling order).

I.

Motion to Correct, Supplement and Correct

Finally, there remains pending Guzall’s “Motion

to Correct Error and Supplement and Correct the

Complete Record,” which asserts that in her Response

to Mayor Lambert’s Motion for Summary Judgment she

referred to numerous excerpts from Mayor Lambert’s

deposition, each time referring to “Exhibit 17,” and

that this court should supplement the record with

that exhibit.

However, Exhibit 17 was not electronically filed.

Although Guzall claims that it was included in the

U.S. mail version provided to the district court, the

district court’s order denying Guzall’s motion makes

clear that it did not receive it. The district court

denied Guzall’s motion below to send a record to the

appellate court including Exhibit 17 because the dis-

App.25a

trict court did not rely upon or refer to the unreceived

exhibit in its opinion.

Federal Rule of Appellate Procedure 10(e) allows

for correction of the record and is meant “to allow the

[district] court to correct omissions from or misstatements in the record for appeal, not to introduce new

evidence in the court of appeals.” Inland Bulk Transfer

Co. v. Cummins Engine Co., 332 F.3d 1007, 1012 (6th

Cir. 2003) (quoting S & E Shipping Corp. v. Chesapeake & Ohio Ry. Co., 678 F.2d 636, 641 (6th Cir.

1982)). Generally, appellate courts consider the record

that was before the district court. Id. Guzall explicitly seeks to introduce evidence that was not

before the district court, which is not permitted by

Rule 10(e). Id. For these reasons, we deny the motion.

IV. CONCLUSION

For the reasons above, we DENY Plaintiff-Appellant

Marianne Guzall’s “Motion to Correct Error and Supplement and Correct the Complete Record” and AFFIRM

the district court’s opinion in full.

App.26a

CONCURRING OPINION OF JUSTICE WHITE

HELENE N. WHITE, Circuit Judge, (concurring in

part, dissenting in part).

I agree with the majority’s disposition except

regarding Guzall’s First Amendment retaliation claim

against Defendant Alan Lambert.1 I conclude that

Guzall presented sufficient evidence of causation, i.e.,

that her speech was a substantial or motivating factor

in Defendants’ decision to lay her off, to survive summary judgment. See Taylor v. Keith, 338 F.3d 639, 643

(6th Cir. 2003).

Public-employee First Amendment retaliation

claims are analyzed under a three-step test: Guzall

must 1) establish that her speech is protected, that

is, touches on a matter of public concern, and demonstrate that her interest in the speech outweighs the

government’s countervailing interest in promoting the

efficiency of the public service it provides as an

employer; 2) show that the employer’s adverse action

would chill an ordinary person in the exercise of her

First Amendment rights; and 3) must present sufficient

evidence to create a genuine issue as to whether her

speech was a substantial or motivating factor in the

employer’s decision to lay her off. Taylor v. Keith,

338 F.3d 639, 643 (6th Cir. 2003); see also PID 4696.

Defendant Lambert challenges only the third

element, causation. Lambert Br. 17-19; Krampitz Br.

20-24. The majority concludes that Guzall did not

1 Guzall presented no evidence that the other individual Defendant, Betsey Krampitz, was involved in determining who from

the Mayor’s office would be laid off in 2011 if the millage did not

pass.

App.27a

satisfy the causation element because she presented

only assumptions, speculation, or hearsay that Lambert

was involved in the decision to lay her off. PID 469899. I disagree with that determination for several

reasons. First, Defendants did not identify the individual decision-makers behind the 2011 layoffs and

the evidence they rely on leaves open the possibility

that Lambert2 made or influenced the determination

of who in his department would be laid off. City Finance

Director Debra Hoffman’s affidavit states that a “team

of persons representing the various departments”

determined which positions would be eliminated, and

that “Guzall’s position was collectively agreed upon

to be among those selected for elimination because it

was determined to be the least critical to operation of

the Mayor’s office.” PID 2442-43.

Second, the affidavit of Virginia Williams, on

which Guzall relies, contains party admissions by

Defendant Lambert:

Shortly before [] Guzall’s employment was

terminated in Romulus, Betsey Krampitz

told me that Mayor Lambert told her that []

Guzall talks too much and that she had to

be let go, and that [Mayor Pro Tem] Leroy

Burcroff was complaining to Mayor Lambert

about [] Guzall complaining to Burcroff

about things going on in the Mayor’s office.

. . . Alan Lambert told me prior to the

millage increase vote in Romulus that []

Guzall was going to be let go because she

talks too much, so I know when Mayor

Lambert and the City of Romulus later

2 Lambert invoked the Fifth Amendment at his deposition.

App.28a

claimed that they had to lay off [] Guzall

because of the millage not passing, that was

a false statement and not the real reason

they terminated her employment. Alan

Lambert told me that [] Guzall was complaining about things that were going on in

the Mayors [sic] office and was making those

complaints to Leroy Burcroff, and Lambert

said those things that [Guzall] was saying

were not true. I told him Marianna is loyal

and his best employee and that she should

not be fired. He told me she had to go. I had

all of those conversations with Mayor

Lambert at the Romulus Athletic Club. . . .

PID 1803. Lambert’s statements to Williams qualify

as party admissions under Fed. R. Evid. 801(d)(2)(A),

since they are statements offered against an opposing

party and were made by the party. As the Mayor, these

statements were within his authority.

I note that Lambert’s statements to Williams

regarding Mayor Pro Tem Burcroff coincide with

Guzall’s deposition testimony that several months

before she was laid off in 2011, she told Burcroff about

the illegal conduct in Lambert’s office:

Prior to my layoff, [Burcroff] and I met for

lunch . . . I told him everything that was

going on, from the campaign finance report, . . . from the allegation that the Mayor

was taking money from local businessmen

for whatever reasons, like the Park and Fly,

things of that nature, the landing strip.

I informed him that they were holding this

pink slip over my head because they didn’t

App.29a

believe that I hadn’t spoken up to the

Michigan State Police, and I had told them

that I wouldn’t lie to the Michigan State

Police, and I asked him to help— . . . I said,

you know . . . As Mayor Pro Tem, your job is

to ask [him] to step down if he’s doing something illegal or allegedly—to help or to

intervene on behalf of myself, the other

employees and the residents, because they

deserve better than what they were getting.

PID 4663/Guzall dep.

Given Defendant Lambert’s admissions, I also

disagree with the majority that Guzall presented no

evidence that any person aware of her alleged protected

speech effectuated or influenced the decision to lay

her off. Maj. Op. at 12.

For these reasons, I would reverse the district

court’s grant of summary judgment to Lambert on

Guzall’s First Amendment retaliation claim.

App.30a

OPINION AND ORDER GRANTING DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT

(AUGUST 8, 2017)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

________________________

UNITED STATES OF AMERICA, EX REL.

MARIANNE GUZALL and MARIANNE D. GUZALL

A/K/A MARIANNA GUZALL, Individually,

Plaintiffs,

v.

CITY OF ROMULUS, ALAN R. LAMBERT,

and BETSEY KRAMPITZ,

Defendants.

________________________

Civil Case No. 13-cv-11327

Before: Hon. Linda V. PARKER,

United States District Judge.

Marianne D. Guzall (“Ms. Guzall”), a former

employee of Defendant City of Romulus (“City” or

“Romulus”), filed this lawsuit against Defendants as

a qui tam action alleging violations of the federal

False Claims Act (“FCA”), and as an individual action

alleging violations of her rights under federal and

state law. Specifically, Ms. Guzall alleges the following

App.31a

counts in her four hundred and twelve paragraph

Amended Complaint:

(I)

Retaliation and Retaliatory Discharge in

Violation of 31 U.S.C. § 3730(h), public policy,

and the First Amendment to the U.S. Constitution;

(II) Violation of Federal False Claims Act—Qui

Tam and (RICO) Racketeer Influenced and

Corrupt Organizations Act;

(III) Promissory Estoppel;

(IV) Due Process Violation and Hostile Work Environment Claim;

(V) Intentional Infliction of Emotional Distress;

(VI) Fraud—Intentional and/or Constructive

Fraud—Conspiracy and Concert of Actions.

(Pl.’s Am. Compl., ECF No. 4.) Defendants are the

City, the City’s former mayor Alan R. Lambert (“Mayor

Lambert”), and the City’s former chief of staff Betsey

Krampitz (“Ms. Krampitz”). The matter presently is

before the Court on separate motions for summary

judgment filed by Defendants. (ECF Nos. 153, 154, 171.)

The motions have been fully briefed. Finding the facts

and the parties’ legal arguments sufficiently presented in their submissions, the Court is dispensing

with oral argument with respect to the motions pursuant to Eastern District of Michigan Local Rule 7.1.

I.

Summary Judgment Standard

Summary judgment pursuant to Federal Rule of

Civil Procedure 56 is appropriate “if the movant shows

that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter

App.32a

of law.” Fed. R. Civ. P. 56(a). The central inquiry is

“whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of

law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

251-52 (1986). After adequate time for discovery and

upon motion, Rule 56 mandates summary judgment

against a party who fails to establish the existence of

an element essential to that party’s case and on which

that party bears the burden of proof at trial. Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The movant has the initial burden of showing “the

absence of a genuine issue of material fact.” Id. at

323. Once the movant meets this burden, the “nonmoving party must come forward with specific facts

showing that there is a genuine issue for trial.”

Matsushita Electric Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986) (internal quotation marks

and citation omitted). To demonstrate a genuine issue,

the nonmoving party must present sufficient evidence

upon which a jury could reasonably find for that party;

a “scintilla of evidence” is insufficient. See Liberty

Lobby, 477 U.S. at 252. The court must accept as true

the non-movant’s evidence and draw “all justifiable

inferences” in the non-movant’s favor. See Liberty

Lobby, 477 U.S. at 255.

“A party asserting that a fact cannot be or is

genuinely disputed” must designate specifically the

materials in the record supporting the assertion,

“including depositions, documents, electronically stored

information, affidavits or declarations, stipulations,

admissions, interrogatory answers, or other materials.”

Fed. R. Civ. P. 56(c)(1). Rule 56 provides that “[a]n

affidavit or declaration used to support or oppose a

App.33a

motion must be made on personal knowledge, set out

facts that would be admissible in evidence, and show

that the affiant or declarant is competent to testify

to the matters stated.” Fed. R. Civ. P. 56(c)(4). “In

order to survive a motion for summary judgment, the

non-moving party must be able to show sufficient

probative evidence that would permit a finding in his

favor on more than mere speculation, conjecture, or

fantasy.” Lewis v. Philip Morris, Inc., 355 F.3d 515,

533 (6th Cir. 2004) (internal quotations and brackets

omitted).

Notably, the trial court is not required to construct

a party’s argument from the record or search out facts

from the record supporting those arguments. See, e.g.,

Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80

(6th Cir. 1989) (“the trial court no longer has a duty

to search the entire record to establish that it is bereft

of a genuine issue of material fact”) (citing Frito-Lay,

Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C. Cir.

1988)); see also InterRoyal Corp. v. Sponseller, 889

F.2d 108, 111 (6th Cir. 1989), cert. denied, 494 U.S.

1091 (1990) (“A district court is not required to speculate on which portion of the record the nonmoving

party relies, nor is it obligated to wade through and

search the entire record for some specific facts that

might support the nonmoving party’s claim.”). The

parties are required to designate with specificity the

portions of the record such that the court can “readily

identify the facts upon which the . . . party relies[.]”

InterRoyal Corp., 889 F.2d at 111.

II.

Factual and Procedural Background

In 2001, Mayor Lambert was elected mayor of

Romulus. Upon his election, Mayor Lambert hired Ms.

App.34a

Krampitz to serve in an administrative position similar

to the one she held under a previous mayor. In November 2001, Mayor Lambert hired Ms. Guzall to serve

as his administrative assistant. This was the most

junior position within the office. (Guzall 12/4/15 Dep.

at 28, ECF No. 154-4.) Ms. Guzall had no prior experience working for the City.

The City of Romulus Charter provides that “[t]here

shall be administrative secretaries for the Mayor,

Clerk and Treasurer. They shall be hired by the official

they serve. They will be non-union and non-civil

service.” (Lambert’s Mot., Ex. B, ECF No. 171-3.)

During her deposition in this matter, Ms. Guzall acknowledged that she served in an appointed position at

the pleasure of the mayor and was not subject to

union membership. (Guzall 12/4/15 Dep. at 30-31, ECF

No. 154-4.) Relying on the language of the City of

Romulus Charter, however, Ms. Guzall asserted that

she was not an at-will employee and could be terminated only for cause. (Id. at 28.) Specifically, Ms. Guzall

testified that the City’s finance director, Debra Hoffman, and its human resources director, Carol Mayerich,

told her that her “job was protected by the city

charter.” (Id.)

In 2006, Mayor Lambert promoted Ms. Krampitz to

serve as his chief of staff, and he hired Julie Wojtylko

(“Ms. Wojtylko”) to fill the position Ms. Krampitz previously occupied. (Wojtylko Dep. at 8, 13, ECF No.

154-3; Krampitz Dep. at 10-11, ECF No. 154-2.) Ms.

Guzall was passed over for the promotion given to

Ms. Wojtylko, which Ms. Guzall had expected to receive.

(Guzall 12/4/15 Dep. at 57, ECF No. 154-4.) Ms.

Wojtylko began working for Romulus through a co-op

program at her high school in 1985, and she held

App.35a

various positions throughout the City before Mayor

Lambert hired her. (Wojtylko Dep. at 11-13, ECF No.

154-3.)

In her Complaint and during her deposition, Ms.

Guzall contends that Mayor Lambert, Ms. Krampitz,

other City officials and employees, and several Romulus

residents engaged in improper and/or illegal acts

during Ms. Guzall’s tenure with the City. For example,

Ms. Guzall claims that Mayor Lambert and Ms.

Krampitz listed, or directed other employees to list,

individuals as donors on campaign finance reports

when, according to Ms. Guzall, those individuals did

not donate money to Mayor Lambert’s campaign. Ms.

Guzall also claims that Mayor Lambert and Ms.

Krampitz failed to deposit and report cash donations

and directed employees to use Romulus supplies and

work on Mayor Lambert’s campaign during city business hours. According to Ms. Guzall, she reported this

misconduct to the City’s Attorney, Barry Seifman, but

he did nothing.

Beginning in 2009, Romulus, like many other

Michigan municipalities, began experiencing a shortfall

in revenue due to a decrease in funds received from

the state and from property taxes.1 (Hoffman Aff.

1 During her deposition and in response to Defendants’ motions,

Ms. Guzall asserts that the City’s claimed financial distress was

a sham to secure higher salaries for its officials and to make

the City’s “residents . . . feel a crunch, so that they would vote

the millage through.” (6/28/16 Guzall Dep. at 63, 70.) Ms. Guzall

presents no evidence to support her assertion, however. Moreover,

in light of the record evidence and this Court’s ability to take

judicial notice of the financial crisis felt globally during this

period, it finds Ms. Guzall’s analysis of Romulus’ financial condition unbelievable.

App.36a

¶¶ 3-4, ECF No. 154-5; Audia Aff. ¶¶ 7-8, ECF No.

154-15.) By the end of 2009, Romulus faced a fiveyear financial deficit forecast of approximately $20

million. (Hoffman Aff. ¶ 5; Audia Aff. ¶ 9.) To address

the shortfall, Romulus formed the Action in Changing

Times Committee (“ACT NOW Task Force”) to propose

cost-saving and revenue enhancing measures. (Hoffman

Aff. ¶¶ 6-7; Audia Aff. ¶¶ 10-11; Krampitz Mot., Ex.

E, ECF No. 154-6.) A facilitator from the consulting

firm Plante Moran moderated the ACT NOW Task

Force, which consisted of elected City officials, school

officials, union representatives, city department heads,

business leaders, and community representatives and

religious leaders. (Krampitz Mot., Ex. E, ECF No.

154-6.)

Within this context, Romulus decided to lay off

twenty-eight full-time city employees between June

and August 2010. (Mayerich Aff. ¶ 5, ECF No. 154-7;

Hoffman Aff. ¶ 8.) The record fails to reflect who

decided which positions would be eliminated; however,

the City’s finance director, Debra Hoffman, attests in

her affidavit that these decisions “were made and

ultimately agreed upon collectively and objectively by

a team of persons representing the various departments.” (Hoffman Aff. ¶ 15.) Among the employees

laid off between June and August 2010 were City

police officers, firefighters, and department of public

works employees. (Mayerich Aff. ¶ 6.) No one in the

mayor’s office was impacted by the layoffs. (Id. ¶ 9.)

The City further reduced its costs by reducing the

hours of its senior center and closing the public

library and recreation department between June and

August 2010. (Id. ¶¶ 7-8.)

App.37a

Seeking to avoid additional cuts to city personnel

and services, in August 2010, Romulus voters were

asked to approve a millage increase to pay for police

and fire services. (Hoffman Aff. ¶ 9.) The voters

rejected the increase. (Id. ¶ 10.) On November 8,

2010, the Romulus City Council voted to hold a special

election on a 2.75 millage increase proposal for general

operation services in February 2011. (Id. ¶ 12; 11/8/10

Romulus Council Meeting Minutes, ECF No. 154-8.) In

the event the millage did not pass, the City prepared

to implement a second reduction-in-force, laying off

an additional nine full-time employees and three parttime employees. (Mayerich Aff. ¶ 10.) Notices to the

targeted employees informed them that they were being

laid off effective March 11, 2011 due to budget cuts,

but that the notice would be rescinded if Romulus

residents voted in favor of the millage on February

22, 2011. (Id. ¶ 14; Wojtylko Dep. at 185, ECF No.

154-3.)

Ms. Guzall was among the employees laid off

during this second reduction-in-force. (Mayerich Aff.

¶ 11.) According to Carol Mayerich, the City’s director

of human resources from 2007-2013, she told Mayor

Lambert that the March 2011 reduction-in-force needed

to include one position in his office and thus an existing member of his staff. (Id. ¶ 12.) Ms. Guzall’s

position was selected for elimination because it would

have the least impact on the continued operation of

the mayor’s office. (Id. ¶ 13.) The parties fail to

identify who, specifically, made this determination or

was part of the team making the layoff decisions.2

2 Ms. Guzall testified during her deposition that her layoff was

discussed at a meeting attended by Tim Keyes, Mayor Lambert,

Betsey Krampitz, Julie Wojtylko, Debra Hoffman, and Leroy

App.38a

The Court was unable to glean this information through

its independent review of the record evidence.

According to Ms. Guzall, “they” told her not to

clean out her desk and that she would be brought back

to work within three months of being laid off. (Guzall

6/28/16 Dep. at 53.) Ms. Guzall testified that Mayor

Lambert told her not to look for another job because

if they could not find a position for her in his office,

they would let her float between the mayor’s office,

clerk’s office, and human resources. (Id. at 80.)

Romulus did not return Ms. Guzall to work, however.

Over time, some laid off employees did regain employment. (Guzall 12/4/15 Dep. at 81.) However, no

employee assumed Ms. Guzall’s former position.3

(Mayerich Aff. ¶ 16, ECF No. 1543-4.)

Prior to her layoff, Ms. Guzall had several discussions that she believes were the cause of the layoff

decision. First, in May 2010, while Ms. Guzall was on

Burcroff, and that Mr. Burcroff “brought [Ms. Guzall’s] name

up.” (Guzall 12/4/15 Dep. at 127.) This testimony constitutes

inadmissible hearsay, however, as Ms. Guzall was not at the

meeting and testified that she was told this by Ms. Wojtylko.

(Id.) Further, even if Ms. Wojtylko told Ms. Guzall that Mayor

Pro Tem Burcroff brought up Ms. Guzall’s name, it does not

demonstrate that he did so to include her in the layoffs. Moreover,

Ms. Guzall is not even certain when this meeting occurred. (Id. at

126.) As such, it may not have resulted in her layoff or may

have occurred before Ms. Guzall reported the alleged misconduct to Mayor Pro Tem Burcroff.

3 Ms. Guzall asserts that Jill Lambert, who also was laid off

during the second reduction-in-force, assumed Ms. Guzall’s previous position in the mayor’s office. The evidence reflects, however, that Ms. Lambert was re-hired on a temporary basis to fill

in for Ms. Wojtylko while Ms. Wojtylko was on medical leave.

(Wojtylko Dep. at 160; ECF No. 154-3 at Pg ID 2736.)

App.39a

vacation, she received a telephone call from Ms.

Wojtylko who was upset because the Michigan State

Police had contacted her for an interview in connection with its investigation of the Romulus Police

Department. (Guzall 6/28/16 Dep. at 54-55, ECF No.

154-4.) According to Ms. Guzall, she told Ms. Wojtylko

that Ms. Wojtylko should not lie for anyone and that

she (Ms. Guzall) would not lie for the mayor. (Id. at

54-55, 59.)

Ms. Guzall further testified that on the day she

returned from her vacation, she spoke to Ms. Wojtylko

and Ms. Krampitz about the Michigan State Police

investigation and again stated that, if interviewed,

she would tell the truth. (Id. at 53-54, 59, 77.) According

to Ms. Guzall, Ms. Krampitz responded, “we’re gonna

give you a pink slip today” and then she gave Ms.

Guzall a pink slip.4 (Id.) Ms. Guzall testified, “They

said they would give me a box to pack my stuff if I

didn’t lie.” (Id. at 81.)

This last exchange apparently occurred when the

City was deciding who would be laid off during the

first reduction-in-force in June 2010. (Id. at 108.) In

fact, Ms. Guzall testified that when Ms. Krampitz

gave her the pink slip, they were headed into a meeting

where other employees’ names would be called to

receive a pink slip, but hers was “just for show.” (Id.

4 When Ms. Guzall first testified about this exchange, she

claimed that it occurred during a telephone conversation with

Ms. Krampitz while Ms. Guzall was on vacation. (6/28/16 Guzall

Dep. at 53-54, 59.) It makes more sense that it occurred after

Ms. Guzall returned to work, as she also claims that, in

response, Ms. Krampitz handed her a pink slip and that they

were going into a departmental meeting. (Id. at 77-78.)

App.40a

at 78.) Despite allegedly receiving this pink slip, Ms.

Guzall was not laid off at this time.

According to Ms. Guzall, some time prior to when

she in fact was laid off, she met with Leroy Burcroff,

mayor pro tem and chairman of the city council (“Mayor

Pro Tem Burcroff”), and told him about the illegal

and/or improper activities in the mayor’s office.5

(6/28/16 Guzall Dep. at 112-13, ECF No. 154-4.) Ms.

Guzall believes Mayor Pro Tem Burcroff told Mayor

Lambert about their conversation because the day after

she met with Mayor Pro Tem Burcroff, Ms. Krampitz

came to Ms. Guzall and said: “Just remember, Mr.

Burcroff’s a politician and he talks.” (Id. at 118.)

Plaintiff explained, “she [Ms. Krampitz] looked right

at me, and it was—I just knew that she knew.” (Id.)

On May 3, 2012, three months after Ms. Guzall

was laid off, the Michigan State Police interviewed

her in connection with its investigation of wrongdoing

within the City. (Lambert’s Mot., Ex. J, ECF No. 17111.) Apparently, the initial investigation into misconduct within the Romulus Police Department uncovered

suspected illegalities within the mayor’s office.

(City’s Mot., Ex. 11, ECF No. 153-12.)

5 In her response brief, Ms. Guzall states that her meeting with

Mayor Pro Tem Burcroff occurred within three months of her

termination. (See, e.g., Pl.’s Resp. Br. to Lambert’s Mot. at 2,

ECF No. 175 at Pg ID 4419.) During her deposition, however, Ms.

Guzall could not specifically recall when this meeting occurred.

(Id. at 113.) She also could not remember if the meeting occurred

before or after she received the notice that she was being laid off.

(Id.) Although a specific time frame may be included in her

Amended Complaint, the pleading is not—despite Ms. Guzall’s

contrary assertion—a “verified” complaint, as it lacks the required verifying language. See Williams v. Browman, 981 F.2d

901, 905 (6th Cir. 1992); 28 U.S.C. § 1746.

App.41a

III. Applicable Law and Analysis

A. Retaliation in Violation of the First Amendment

1. Applicable Law

In Count I of her Amended Complaint, Ms. Guzall

asserts that she was laid off in retaliation for her

speech in violation of the First Amendment to the

United States Constitution.

“A public employee has a constitutional right to

comment on matters of public concern without fear of

reprisal from the government as employer.” Taylor v.

Keith, 338 F.3d 639, 643 (6th Cir. 2003) (citing Connick

v. Myers, 461 U.S. 138, 140, 145-46 (1983); Pickering

v. Bd. of Educ., 391 U.S. 563, 574 (1986)). “‘Retaliation

by a government employer against an individual who

exercises h[er] First Amendment rights constitutes a

First Amendment violation.’” Id. (quoting Perry v.

McGinnis, 209 F.3d 597, 604 (6th Cir. 2000)). The

Sixth Circuit utilizes a three-step test for evaluating

a public employee’s First Amendment retaliation claim:

First, the employee must establish that his

speech is protected. To accomplish this, the

employee must show that his speech touches

on a matter of public concern, Connick, 461

U.S. at 147, 103 S. Ct. 1684, and demonstrate

that his interest in the speech outweighs

the government’s countervailing interest in

promoting the efficiency of the public service

it provides as an employer. Pickering, 391

U.S. at 574, 88 S. Ct. 1731. This determination

is a question of law for the court to decide.

Connick, 461 U.S. at 148 n. 10, 103 S. Ct.

1684. Second, the employee must show that

App.42a

the employer’s adverse action would chill an

ordinary person in the exercise of his First

Amendment rights. Cockrel v. Shelby County

Sch. Dist., 270 F.3d 1036, 1048 (6th. Cir.

2001). Finally, the employee must present

sufficient evidence to create a genuine issue

as to whether his speech was a substantial

or motivating factor in the employer’s decision to discipline or dismiss. Mt. Healthy

City Sch. Dist. Bd. of Educ. v. Doyle, 429

U.S. 274, 287, 97 S. Ct. 568, 50 L.Ed.2d 471

(1977).

Taylor, 338 F.3d at 643.

With respect to the first prong, the plaintiff need

not have spoken to the press or the public for her

speech to be protected. Id. (citing Givhan v. W. Line

Consol. Sch. Dist., 439 U.S. 410, 412 (1979)); see also,

e.g., Perry v. McGinnis, 209 F.3d 597, 608 (6th Cir.

2000). Thus in Taylor, the Sixth Circuit held that the

First Amendment protected reports and statements

the plaintiffs, a police officer and police sergeant, made

internally to other members of their police department. Id. Similarly, in Perry, the appellate court held

that the plaintiff’s complaints about a matter of public

concern made in private conversations to his supervisors were protected. 209 F.3d at 608. As the Supreme

Court reasoned in Givhan: “Neither the [First] Amendment itself nor our decisions indicate that [freedom of

speech] is lost to the public employee who arranges to

communicate with his employer rather than to spread

his views before the public.” 439 U.S. at 415-16.

Speech touches upon a matter of public concern

if it can be “fairly considered as relating to any matter

of political, social or other concern to the community.”

App.43a

Connick, 461 U.S. at 146. “[W]hen a public employee

speaks not as a citizen upon matters of public concern,

but instead as an employee upon matters only of a personal interest,” his or her speech is not entitled to

constitutional protection. Id. at 147. “Whether an

employee’s speech addresses a matter of public concern must be determined by the content, form, and

context of a given statement, as revealed by the

record as a whole.” Id. at 147-48. The Sixth Circuit

has held that “speech disclosing public corruption is

a matter of public interest.” Solomon v. Royal Oak

Twp., 842 F.2d 862, 865 (6th Cir. 1998); see also

Marohnic v. Walker, 800 F.2d 191 (6th Cir. 1986)

(stating that “[p]ublic interest is near its zenith when

ensuring that public organizations are being operated

in accordance with the law”).

To satisfy the third prong of this three-part test,

the plaintiff “‘cannot rely on the mere fact that an

adverse employment action followed speech that the

employer would have liked to prevent.’” Taylor, 338

F.3d at 646 (quoting Cockrel, 270 F.3d at 1055).

“Rather, to survive a motion for summary judgment,

the employee must present sufficient evidence linking

his [or her] speech to the employer’s adverse decision

so that a reasonable factfinder could conclude, by a

preponderance of the evidence, that the speech, at

least in part, motivated the decision to discharge.” Id.

2. Analysis

Defendants uniformly argue that Ms. Guzall

cannot establish the third element necessary to establish her First Amendment retaliation claim: causation.

This Court agrees.

App.44a

First, Ms. Guzall presents no probative evidence

to show that Ms. Krampitz or Mayor Lambert were

involved in the City’s lay-off decisions or that anyone

involved in the decision was aware of Ms. Guzall’s

alleged protected conduct.6 Ms. Guzall professed during

her deposition that the mayor had the final say as to

who would be laid off. (6/28/16 Guzall Dep. at 70-71.)

She presents no evidence to support this assertion,

however, and her deposition testimony reflects that

this is her subjective belief based on nothing more

than speculation.

Ms. Guzall claims that Ms. Krampitz gave her a

“pink slip” in May 2010, after Ms. Guzall stated that

she would not lie if interviewed by the Michigan State

Police. As an initial matter, Ms. Guzall’s broad statement that she would tell the truth if interviewed,

without any elaboration regarding what she would

reveal, does not establish that she spoke on a matter

of public concern entitling her to First Amendment

protection. In any event, this “pink slip” did not

result in Ms. Guzall suffering an adverse action. The

span of time between this interaction and Ms.

Guzall’s actual layoff in early 2011 is too long to conclude, without more, that Ms. Guzall’s statement

6 Ms. Guzall argues that Ms. Krampitz had the ability to terminate

her employment, relying on Ms. Guzall’s deposition testimony

as proof of this asserted fact. (Guzall 12/4/15 Dep. at 78-79.)

Even if true, Ms. Guzall fails to present evidence to show that

Ms. Krampitz in fact was involved in the layoff decisions. As

stated in Section I, a trial court has no duty to search out facts

from the record supporting a party’s arguments. Street, 886 F.2d

at 1479-80. Nevertheless, this Court independently scoured the

record to determine if it contained such evidence, along with the

other evidence Ms. Guzall failed to identify to prove her claims.

It found the evidence lacking.

App.45a

motivated the layoff decision. See Clark Cty. Sch.

Distr. v. Breeden, 532 U.S. 268, 273 (2001) (explaining

that “[t]he cases that accept mere temporal proximity

between an employer’s knowledge of protected activity

and an adverse employment action as sufficient evidence of causality to establish a prima facie case

uniformly hold that the temporal proximity must be

‘very close,’” and citing cases finding three and four

month gap insufficient); see also Clay v. United Parcel

Serv., Inc., 501 F.3d 695 (6th Cir. 2007) (holding temporal proximity of six months between the filing of

the plaintiff’s EEOC complaint and his termination

insufficient to satisfy causation element); Nguyen v.

City of Cleveland, 229 F.3d 559, 567 (6th Cir. 2000)

(finding one-month gap, without more, insufficient to

establish causation).

Even if there was evidence to support Ms. Guzall’s

assertion that she was laid off a few months after

reporting improper and/or illegal activities in the

mayor’s office to Mayor Pro Tem Burcroff, Ms. Guzall’s

assertion that Mr. Burcroff made the decision to include

her in the layoff is based on hearsay and pure speculation and conjecture. See Mitchell v. Toledo Hosp.,

964 F.2d 577, 584-85 (6th Cir. 1992) (providing that

rumors, conclusory allegations, and subjective beliefs

are insufficient to create a genuine issue of material

fact).

During her deposition, when asked if she had any

facts suggesting that Mr. Burcroff had any input into

the decision to include her in the second round of

layoffs, Ms. Guzall responded: “He was in the meeting

where they determined who was going to be laid off.”

(Guzall 12/4/15 Dep. at 124.) Ms. Guzall indicated

that she was not at the meeting, but Ms. Wojtylko

App.46a

“told [Ms. Guzall].” (Id.) What precisely Ms. Wojtylko

told Ms. Guzall is unclear from Ms. Guzall’s deposition

testimony. Further, what Ms. Wojtylko told Ms. Guzall

constitutes inadmissible hearsay and there is no

indication from Ms. Wojtylko’s deposition that she

would support Ms. Guzall’s assertion.

To demonstrate a connection between her speech

and layoff, Ms. Guzall relies heavily on Virginia

Williams’ affidavit, in which Ms. Williams states that

she “had several conversations with Betsey Krampitz

regarding the employment of Marianne Guzall.”

(Williams Aff. ¶ 2, ECF No. 123-6.) There are multiple

levels of inadmissible hearsay within Ms. Williams’

affidavit, and her conclusion that “[Ms.] Guzall was

wrongfully fired/laid off” is mere speculation and conjecture. As such, her statements are insufficient to

establish that Ms. Guzall was terminated because of

her protected activity. See Fed. R. Civ. P. 56(e);

Mitchell, 964 F.2d at 584-85. Moreover, Ms. Williams’

affidavit does not establish that any individual who

purportedly stated that Ms. Guzall “had to be let go”

because she “talks too much” or because she complained

to Mayor Pro Tem Burcroff was involved in the layoff

decision.

Ms. Guzall is correct that a defendant may be

liable under 42 U.S.C. § 1983 even if the defendant

did not execute the adverse action, but if his or her

acts gave rise to the ultimate harm. See, e.g., King v.

Zamiara, 680 F.3d 686, 695 (6th Cir. 2012). Yet, Ms.

Guzall lacks evidence to show that Ms. Krampitz or

Mayor Lambert took any action that gave rise to the

decision to lay her off. Her assumption or speculation

that they influenced the decision is insufficient to

survive summary judgment.

App.47a

For these reasons, the Court concludes that

Defendants are entitled to summary judgment with

respect to Ms. Guzall’s First Amendment retaliation

claim.7

B. Retaliation in Violation of the False Claims

Act, 31 U.S.C. § 3730(h)

1. Applicable Law

“Under the FCA, it is illegal to present a false

claim for payment to the [federal] government.”8 United

7 In response to Defendants’ summary judgment motions, Ms.

Guzall asserts that she alleged a separate violation of public

policy claim based on her retaliatory discharge. Such a claim

fails for the same reason as her First Amendment retaliation

claim—that is, she cannot show that she was laid off because of

her protected speech. See Hoven v. Walgreen Co., 751 F.3d 778,

784 (6th Cir. 2014) (setting forth the elements of a public policy

claim under Michigan law).

8 The FCA imposes liability on an individual who:

A)

knowingly presents, or causes to be presented, a false

or fraudulent claim for payment or approval;

B)

knowingly makes, uses, or causes to be made or used, a

false record or statement material to a false or fraudulent claim;

C)

conspires to commit a violation of subparagraph (A),

(B), (D), (E), (F), or (G);

D)

has possession, custody, or control of property or money

used, or to be used, by the Government and knowingly

delivers, or causes to be delivered, less than all of that

money or property;

E)

is authorized to make or deliver a document certifying

receipt of property used, or to be used, by the Government and, intending to defraud the Government,

App.48a

States ex rel. Antoon v. Cleveland Clinic Found., 788

F.3d 605, 613 (6th Cir. 2015) (citing 31 U.S.C.

§ 3729(a)(1)) (brackets added and emphasis removed).

The FCA also protects “whistleblowers” who expose

such fraud against the United States government. See

31 U.S.C. §§ 3720-3730. Section 3730 of the FCA states,

in pertinent part:

Any employee, contractor, or agent shall be

entitled to all relief necessary to make that

employee, contractor, or agent whole, if that

employee, contractor, or agent is discharged,

demoted, suspended, threatened, harassed,

or in any other manner discriminated against

in the terms and conditions of employment

because of lawful acts done by the employee,

contractor, agent or associated others in furtherance of an action under this section or

other efforts to stop 1 or more violations of

this subchapter.

31 U.S.C. § 3730(h)(1).

makes or delivers the receipt without completely

knowing that the information on the receipt is true;

F)

knowingly buys, or receives as a pledge of an obligation or debt, public property from an officer or employee

of the Government, or a member of the Armed Forces,

who lawfully may not sell or pledge property; or

G)

knowingly makes, uses, or causes to be made or

used, a false record or statement material to an obligation to pay or transmit money or property to the

Government, or knowingly conceals or knowingly

and improperly avoids or decreases an obligation to

pay or transmit money or property to the Government,

31 U.S.C. § 3729.

App.49a

A retaliation claim brought under the FCA, 31

U.S.C. § 3730(h), overlaps a First Amendment retaliation claim in that the plaintiff must show that she

engaged in protected activity known to her employer

and that the employer took an adverse action against

the plaintiff as a result of the protected activity.

McKenzie v. BellSouth Telecomms., Inc., 219 F.3d 508,

514 (6th Cir. 2000) (citations omitted). Protected

activity under the FCA is limited, however, to activity

“done . . . in furtherance of an action under [31

U.S.C. § 3730] or other efforts to stop 1 or more violations of this subchapter.” 31 U.S.C. § 3730(h)(1). The

Sixth Circuit has held that courts should “broadly construe the plaintiff’s protected activity[.]” McKenzie,

219 F.3d at 515. Nevertheless, the court also cautioned

that this “does not eliminate the necessity that the

actions be reasonably connected to the FCA” and “that

they relate to exposing fraud or involvement with a

false claims disclosure.” Id. at 515-16 (quotation

marks and citations omitted).

2. Analysis

For the reasons discussed with respect to Ms.

Guzall’s First Amendment retaliation claim, she fails

to create a genuine issue of material fact with respect

to whether Defendants took an adverse action against

her because of protected activity. Moreover, Ms. Guzall

fails to establish that she even engaged in activity

protected under the FCA. Neither Ms. Guzall’s

Amended Complaint nor her deposition testimony

suggest that she disclosed evidence of fraud on the

federal government with respect to claims for payment.9

9 A review of Ms. Guzall’s Amended Complaint and her deposition testimony reflects that she believes Defendants violated the

App.50a

(See Am. Compl. ¶¶ 237-244, 247-275, 285.) Merely

reporting wrongdoing by supervisors is not protected

activity. McKenzie, 219 F.3d at 516 Id. (citing cases).

“[T]he internal reports must allege fraud on the [federal] government.” Id. Finally, the public disclosure bar

precludes Ms. Guzall’s FCA retaliation claim.

The FCA places several restrictions on a relator’s

ability to bring a qui tam action, one of which is the

public-disclosure bar in 31 U.S.C. § 3730(e)(4)(A).10

Section 3730(e)(4)(A) describes three types of disclosures that strip the courts of jurisdiction:

“No court shall have jurisdiction over an

action under this section based upon the

public disclosure of allegations or transactions

[1] in a criminal, civil, or administrative

hearing, [2] in a congressional, administrative,

or Government Accounting Office [(GAO)]

FCA by making fraudulent statements on campaign finance reports

and/or by failing to report income on tax returns. It is unclear

how the former relates to claims for payments from the federal

government. While a false statement on a tax return could result

in a payment (i.e., a tax refund) from the federal government,

the FCA expressly excludes from its applicability “claims, records,

or statements made under the Internal Revenue Code of 1986.”

31 U.S.C. § 3729(d).

10 Congress amended the FCA in March 2010 and these

amendments modified several aspects of the public disclosure

bar. The 2010 FCA amendments do not apply to cases arising

from conduct that predated the amendments, even if the qui

tam relator files his or her complaint after their effective date.

See Antoon, 786 F.3d at 615. Defendants rely on the earlier version of the statute and the Court concludes this is the appropriate version because the conduct on which Ms. Guzall bases her

FCA claims occurred before March 2010. In any event, Ms.

Guzall has not argued that the 2010 amendments apply.

App.51a

report, hearing, audit, or investigation, or

[3] from the news media, unless the action

is brought by the Attorney General or the

person bringing the action is an original

source [4] of the information.”

Graham Cty. Soil & Water Conservation Dist. v.

United States ex rel. Wilson, 559 U.S. 280, 286 (2010)

(brackets in original) (quoting 31 U.S.C. § 3730(e)(4)(A)

(1986) (footnote omitted)). Pursuant to this provision,

“when the basis of the lawsuit has been publicly disclosed in advance, the person filing the action must

be the original source of the information that a false

claim has been presented.” Antoon, 788 F.3d at 614

(citing United States ex rel. Poteet v. Medtronic, Inc.,

552 F.3d 503, 507 (6th Cir. 2009)). If the relator

cannot establish that she is an original source of the

information, the court (under the pre-2010 version of

the statute) lacks subject matter jurisdiction and

must dismiss the action.11 31 U.S.C. § 3730(e)(4)(A)

(1986).

Defendants assert that the fraudulent conduct

Ms. Guzall alleges in her Amended Complaint was

publicly disclosed through the Michigan State Police

investigation of the City, which was reported in the

media. Ms. Guzall does not contradict Defendants’

11 The 2010 amendments to § 3730 removed the jurisdictional

language of the public disclosure bar. Courts have interpreted

the amendment as transforming the public disclosure bar from

a jurisdictional bar to an affirmative defense. See, e.g., United

States ex rel. Advocates for Basic Legality, Inc. v. U.S. Bank,

N.A., 816 F.3d 428, 433 (6th Cir. 2016) (“The public disclosure

bar is no longer jurisdictional, as every other circuit to address

the question has concluded.”) (citing cases).

App.52a

assertion. Instead, she argues she is the original

source of the information.

Congress has defined an “original source” as

someone “who has direct and independent knowledge

of the information on which the allegations are based

and has voluntarily provided the information to the

Government before filing an action under this section

which is based on the information.” 31 U.S.C. § 3730

(e)(4)(B) (1986). The statute’s reference to “Government” means the “federal government.” See Antoon,

788 F.3d at 617 (citing United States ex rel. Jones v.

Horizon Healthcare Corp., 160 F.3d 326, 334-35 (6th

Cir. 1998)). Not only must the relator have provided

information to the federal government prior to filing

her FCA lawsuit, she “must also provide the government with the information upon which the allegations

are based prior to any public disclosure.” Poteet, 552

F.3d at 515 (quoting Jones, 160 F.3d at 333-34)

(brackets, ellipsis, and additional citation removed).

There is no requirement “that the qui tam relator

possess direct and independent knowledge of all of

the vital ingredients to a fraudulent transaction.”

Antoon, 788 F.3d at 619 (internal quotation marks

and citations omitted, emphasis in original). Nevertheless, the qui tam relator’s conclusion that fraud

occurred cannot be “‘based on pure speculation or

conjecture.’” Id. at 620 (quoting United States ex rel.

Aflatooni v. Kitsap Physicians Servs., 163 F.3d 516,

526 (9th Cir. 1998)). “‘Mere suspicion that there must

be a false or fraudulent claim lurking around somewhere simply does not carry a relator’s burden of

proving that he is entitled to original source status.’”

Id. (quoting United States ex rel. Vuyyura v. Jadhav,

555 F.3d 337, 353 (4th Cir. 2009)).

App.53a

The evidence does not reflect that Ms. Guzall

has direct and independent knowledge of a false claim

made by Defendants to the federal government. Ms.

Guzall only suspects that Defendants made false claims

and, as mentioned earlier, it does not appear that

any claims fall within the FCA’s proscriptions. This

is insufficient to qualify her as an original source.

Moreover, there is no evidence that Ms. Guzall alerted

the federal government to the alleged fraud before

filing this lawsuit.

For the above reasons, the Court concludes that

Ms. Guzall’s retaliation claim under the FCA is subject

to dismissal.

C. False Claims Act

In Count II of her Amended Complaint, Ms. Guzall

alleges that Defendants violated the FCA. For the

reasons discussed above, Defendants are entitled to

summary judgment with respect to this claim.

D. RICO

In Count II, Ms. Guzall also asserts a RICO claim

against Defendants. Specifically, Ms. Guzall alleges:

“Defendants and other co-conspirators engaged in the

illegal act of fraud against the United States Government in violation of 18 U.S.C.A. § 371 (RICO) Racketeer Influenced and Corrupt Organizations Act, and

26 USCA [sic] 7201 . . . ” (Am. Compl. ¶ 232, ECF No.

4 at Pg ID 142.)

RICO’s civil enforcement scheme includes the following provision for private lawsuits:

Any person injured in his business or property by reason of a violation of section 1962

App.54a

of this chapter may sue therefor in any

appropriate United States district court and

shall recover threefold the damages he

sustains and the cost of the suit, including a

reasonable attorney’s fee[.]

18 U.S.C. § 1964(d). A plaintiff has standing to assert

a RICO claim, and can only recover to the extent

that, “he has been injured in his business or property

by the conduct constituting the [RICO] violation.”

Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985)

(emphasis added). “[B]oth personal injuries and pecuniary losses flowing from those personal injuries fail

to confer relief under § 1964(c).” Jackson v. Sedgwick

Claims Mgmt. Servs., Inc., 731 F.3d 556, 565-66 (6th

Cir. 2013) (citations omitted). Defendants seek summary judgment with respect to Ms. Guzall’s RICO

claim, arguing, in part, that she fails to demonstrate

an injury sufficient to grant her RICO standing.

In response to Defendants’ summary judgment

motions, Ms. Guzall does not identify an injury to her

business or property resulting from Defendants’

asserted RICO activity. Ms. Guzall responds only with

a quotation from and citation to case law indicating

that indirect injuries confer standing. (See, e.g., Pl.’s

Resp. to City’s Mot. at 38-39, ECF No. 157 at Pg ID

3126-27, quoting Cty. of Oakland by Kuhn v. City of

Detroit, 784 F. Supp. 1275, 1283-84 (E.D. Mich. 1992));

but see Anza v. Ideal Steel Supply Corp., 547 U.S.

451, 457 (2006) (holding that the injury required to

confer RICO standing can be neither remote, purely

contingent, nor indirect). Nevertheless, Ms. Guzall

never identifies the indirect injury she suffered to

her business or personal property.

App.55a

To the extent Ms. Guzall is asserting an indirect

injury due to Defendants’ alleged “bilking the U.S.

Federal Government out of tens of thousands of

dollars” in tax revenue (see Am. Compl. ¶ 234), this is

insufficient to confer standing. See Illinois ex rel. Ryan

v. Brown, 227 F.3d 1042, 1045-46 (7th Cir. 2000)

(holding that the plaintiff, a taxpayer whose asserted

injury was based upon the state’s lost revenue following

the misappropriation of government funds, lacked

standing); Amsterdam Tobacco Inc. v. Philip Morris

Inc., 107 F.Supp.2d 210, 219-20 (S.D.N.Y. 2000)

(“Where, as here, the primary purpose of an alleged

racketeering enterprise is to avoid paying taxes or

otherwise defraud the government, indirectly injured

parties do not have standing to bring RICO claims.”);

see also Anza, 547 U.S. at 458 (holding that the

defendant’s act of lowering prices was entirely distinct

from its alleged RICO fraud of not charging sales tax,

which defrauded the State of New York, not the

plaintiff, a competitor company of defendant). While

taxpayers and residents in general may be indirectly

harmed by RICO conduct wasting a city’s funds or

depriving the government of tax revenue, these are

not sufficiently direct injuries to sustain a RICO action. As the Supreme Court has held, standing cannot

be premised upon such “generalized grievance[s]” that

are “plainly undifferentiated and common to all

members of the public.” United States v. Richardson,

418 U.S. 166, 176-77 (1974).

Because Ms. Guzall fails to establish that she

has standing to bring her RICO claim, Defendants are

entitled to summary judgment with respect to this

claim.

App.56a

E. Promissory Estoppel

In Count III of the Amended Complaint, Ms. Guzall

asserts a promissory estoppel claim based on Defendants’ alleged promises that she would not be laid off

and, when she was, that she would be returned to

work with the City.

Under Michigan law, a claim for promissory

estoppel has four elements: “‘(1) a promise, (2) that

the promisor should reasonably have expected to induce

action of a definite and substantial character on the

part of the promisee, (3) which in fact produced reliance

or forbearance of that nature, (4) in circumstances

such that the promise must be enforced if injustice is

to be avoided.’” Gason v. Dow Corning Corp., ___ F.

App’x ___, 2017 WL 65564, at *5 (6th Cir. Jan. 6,

2017) (quoting Leila Hosp. & Health Ctr. v. Xonics

Med. Sys., Inc., 948 F.2d 271, 275 (6th Cir. 1991))

(additional citations omitted). “‘The doctrine of promissory estoppel is cautiously applied[.]’” Id. (quoting

Marrero v. McDonnell Douglas Capital Corp., 505

N.W.2d 275, 278 (Mich. Ct. App. 1993) (per curiam)).

To be actionable, the promise must be clear and

definite. DBI Investments, LLC v. Blavin, 617 F. App’x

374, 385 (6th Cir. 2015) (citing State Bank of Standish

v. Curry, 500 N.W.2d 104, 108 (Mich. 1993)). The

Michigan Supreme Court has “emphasized that ‘the

reliance interest protected by promissory estoppel is

reasonable reliance.’” Id. (quoting Curry, 500 N.W.2d

at 107) (emphasis in original and brackets removed).

Defendants argue that Ms. Guzall cannot establish

any of the elements necessary to prevail on her

promissory estoppel claim.

In fact, the Court finds no evidence of a clear

and definite promise by Defendants that Ms. Guzall

App.57a

would keep her job. Ms. Guzall relates Mayor Lambert’s

and Ms. Krampitz’s promises that she would not be

laid off; however, these promises were made when Ms.

Guzall returned from vacation in March 2010, during

the first round of layoffs when she in fact was not

laid off. (12/4/15 Guzall Dep. at 83, 139.) With respect

to any promise to bring her back to work, even if it

was reasonable for Ms. Guzall to rely on those promises,

she fails to explain how she detrimentally relied on

Defendants’ promises.

Defendants therefore are entitled to summary judgment with respect to Ms. Guzall’s promissory estoppel

claim.

F. Due Process Violation

In Count IV of her Amended Complaint, Ms. Guzall

alleges that Defendants did not afford her due process

consistent with the Fourteenth Amendment of the

United States Constitution when she was laid off.

“The requirements of procedural due process apply

only to the deprivation of interests encompassed by

the Fourteenth Amendment’s protection of liberty and

property.” Bd. of Regents of State Colleges v. Roth,

408 U.S. 564, 569 (1972). Property interests “are

created and their dimensions are defined by existing

rules or understandings that stem from an independent

source such as state law—rules or understandings that

secure certain benefits and that support claims of

entitlement to those benefits.” Id. at 577; Chilingirian

v. Boris, 882 F.2d 200, 203 (6th Cir. 1989).

In Michigan, employment contracts for an

indefinite term are presumed to be at-will and may

be terminated by either party at any time for any

App.58a

reason. Rood v. Gen. Dynamics Corp., 507 N.W.2d 591,

597 (Mich. 1993) (citation omitted); see also Pucci v.

Ninteenth Dist. Court, 628 F.3d 752, 766 (6th Cir.

2010) (citing Lytle v. Malady, 579 N.W.2d 906-910-11

(Mich. 1998) (“Michigan law generally presumes that

employment relationships are ‘at-will’ arrangements;

at-will employees, in turn, have no property interest

in their continued employment.”). The Sixth Circuit

has concluded that “a public employee does not have

a property interest in continued employment when his

position is held at the will and pleasure of his superiors

and when he has not been promised that he will only

be terminated for good cause.” Chilingirian, 882 F.2d

at 203 (citations omitted). Nevertheless, a party may

overcome the presumption of at-will employment in

one of three ways:

“(1) proof of a contractual provision for a

definite term of employment or a provision

forbidding discharge absent just cause; (2)

an express agreement, either written or

oral, regarding job security that is clear and

unequivocal; or (3) a contractual provision,

implied at law, where an employer’s policies

and procedures instill a legitimate expectation

of job security in the employee.”

Pucci, 628 F.3d at 766 (quoting Lytle, 579 N.W.2d at

911).

It is undisputed that Ms. Guzall held her position

with the City at the pleasure of Mayor Lambert, who

hired her for the position. (12/4/15 Guzall Dep. at 31.)

Ms. Guzall nevertheless claims that she was a justcause employee based on statements by Ms. Krampitz

and the City’s finance and human resources directors,

Ms. Hoffman and Ms. Mayerich, respectively. (12/4/15

App.59a

Guzall Dep. at 28.) According to Ms. Guzall, these

individuals told her that “[her] job was protected by

the city charter[,]” specifically the provision stating

that the mayor shall have a secretary. (Id. at 28-29.)

These statements are not sufficient to overcome the

presumption that Ms. Guzall’s position was at-will.

The city charter reads in pertinent part: “There

shall be administrative secretaries for the Mayor . . . ”

(Lambert’s Mot., Ex. B, ECF No. 171-3.) This provision

simply guarantees the mayor an administrative

secretary. It does not promise the individual serving in

that position job security, a definite term of employment, or forbid discharge absent cause. Ms. Guzall does

not otherwise relate a clear and unequivocal express

agreement concerning her job security, identify a contractual provision forbidding her discharge absent just

cause or promising her employment for a definite

period, or point to a City policy or procedure instilling

a legitimate expectation of job security.

In short, Ms. Guzall fails to present evidence to

establish that she had a constitutionally protected

interest in her position with the City. Defendants,

therefore, are entitled to summary judgment with

respect to her due process claim.

G. Hostile Work Environment

Count IV of Ms. Guzall’s Amended Complaint

includes “hostile work environment” in its title and

she refers to a hostile work environment in two paragraphs within this count:

314. Defendants and their employees conduct

and actions against Plaintiff as indicated

within this Complaint and incorporated with-

App.60a

in this Count created a hostile work environment for Plaintiff, in violation of Federal

law[,] the State of Michigan’s Public Policy

and other applicable law, substantially interfering with Plaintiff’s employment, as the

facts herein indicate.

315. Defendants intentionally sought to

terminate Plaintiff in accord with the facts

and allegations stated herein and created a

hostile working environment for Plaintiff.

(Am. Compl. ¶¶ 314-315, ECF No. 4 at Pg ID 152.) As

the remaining paragraphs of her Amended Complaint

referring to a hostile work environment suggest (id.

¶¶ 21, 24, 98, 120), and as Ms. Guzall confirms in

response to Defendants’ motions, the essence of her

hostile work environment claim is that she was subjected to a hostile work environment in retaliation for

engaging in protected activity. (See, e.g., Pl.’s Resp.

to City’s Mot. at 31-35, ECF No. 157 at Pg ID 311923.)

The Court’s first step in addressing Ms. Guzall’s

hostile work environment claim is determining the

law on which she premises her claim. At first glance

it appears that Ms. Guzall is relying on 42 U.S.C.

§ 1983. (See id. at 33, Pg ID 3121, quoting Sharpe v.

Cureton, 319 F.3d 259, 267-68 (6th Cir. 2003).) Yet,

§ 1983 “is a remedial statute which does not create

substantive rights.” Day v. Wayne Cty. Bd. of Auditors, 749 F.2d 1199, 1202 (6th Cir. 1984) (citing Chapman v. Houston Welfare Rights Organization, 441 U.S.

600, 616-18 (1979)). Instead, “it provides a remedy

for the violation of rights created elsewhere.” Id. Thus

in Sharpe, the plaintiffs were asserting a § 1983

App.61a

claim based on the violation of their First Amendment rights. See Sharpe, 319 F.3d at 261.

This Court already evaluated Ms. Guzall’s ability

to survive summary judgment on her First Amendment

and FCA retaliation claims. To the extent she is

asserting a retaliatory harassment claim under Title

VII, Ms. Guzall first must establish a prima facie

case by showing: “that (1) she engaged in activity

protected by Title VII”; (2) Defendants were aware of

Ms. Guzall’s “exercise of protected rights”; (3) Defendants subjected Ms. Guzall to “an adverse employment

action” or “severe or pervasive retaliatory harassment”;

and (4) “there was a causal connection between the

protected activity and the adverse employment action

or harassment.” Morris v. Oldham Cty. Fiscal Court,

201 F.3d 784, 792 (6th Cir. 2000) (citation omitted).

With respect to the first prong, the Sixth Circuit

has explained that “there are two types of protected

activity: participation in a proceeding with the Equal

Employment Opportunity Commission (“EEOC”) and

opposition to an apparent Title VII violation [i.e., discrimination based on race, color, religion, sex, or

national origin].” Wasek v. Arrow Energy Servs., Inc.,

682 F.3d 463, 469 (6th Cir. 2012) (citing Booker v.

Brown & Williamson Tobacco Co., 879 F.2d 1304, 1313

(6th Cir. 1989)); see also 42 U.S.C. §§ 2000e–2; 2000e–

3(a). Ms. Guzall does not provide evidence of activity

protected under Title VII. None of her complaints

related to race, color, religion, sex, or national origin.

Moreover, Ms. Guzall never filed an EEOC complaint.

Defendants, therefore, are entitled to summary

judgment with respect to Ms. Guzall’s hostile work

environment claim.

App.62a

H. Intentional Infliction of Emotional Distress

In Count V of her Amended Complaint, Ms. Guzall

asserts a claim of intentional infliction of emotional

distress (“IIED”). Ms. Guzall indicates in response to

Defendants’ motion that the claim is premised on

Defendants’ alleged demand that she engage in criminal

acts or risk discharge.12

To prove this claim, Ms. Guzall must show that

Defendants intentionally or recklessly engaged in extreme and outrageous conduct that caused her severe

emotional distress. Downing v. Life Time Fitness, 483

F. App’x 12, 18 (6th Cir. 2012) (citing Roberts v. AutoOwners Ins. Co., 374 N.W.2d 905, 908 (Mich. 1985)).

In Roberts, the Michigan Supreme Court described

“extreme and outrageous conduct” as follows:

It has not been enough that the defendant

has acted with an intent which is tortious or

even criminal, or that he has intended to

inflict emotional distress, or even that his

12 In comparison, in her Amended Complaint, Ms. Guzall identifies

the “extreme and outrageous conduct” as being “forced to go on

unemployment for the first time in her life after her employment was terminated” and being “told to lie to the media by

Defendants after Defendant Lambert set up an illegal blockade to

stop a movie star [George Clooney] who was filming in the City”

to allow Mayor Lambert to “meet that movie star.” (Am. Compl.

¶¶ 324, 332-33; ECF No. 4.) Ms. Guzall recites caselaw within

this count holding that when an employer “‘gains a position of

authority over an employee and forces the latter to cho[o]se

between performing a criminal act or losing his job, it cannot be

said as a matter of law that such conduct is not extreme and

outrageous.’” (Id. ¶¶ 326, 328, quoting Wilson v. Kiss, 751 F.

Supp. 1249, 1254 (E.D. Mich. 1990).) Nowhere in this count,

however, does Ms. Guzall allege that Defendants threatened to

terminate her employment if she did not engage in a crime.

App.63a

conduct has been characterized by “malice”,

or a degree of aggravation which would

entitle the plaintiff to punitive damages for

another tort. Liability has been found only

where the conduct has been so outrageous

in character, and so extreme in degree, as to

go beyond all possible bounds of decency,

and to be regarded as atrocious, and utterly

intolerable in a civilized community. Generally, the case is one in which the recitation

of the facts to an average member of the

community would arouse his resentment

against the actor, and lead him to exclaim,

“Outrageous!”

374 N.W.2d at 908-09. Liability does not arise from

“mere insults, indignities, threats, annoyances, petty

oppressions, or other trivialities[.]” Id. at 908. Moreover, the Sixth Circuit has set a high bar as to what

a plaintiff must show to satisfy the element of severe

emotional distress:

“Emotional distress passes under various

names, such as mental suffering, mental anguish, mental or nervous shock, or the like.

It includes all highly unpleasant mental reactions, such as fright, horror, grief, shame,

humiliation, embarrassment, anger, chagrin,

disappointment, worry, and nausea. It is only

where it is extreme that the liability arises.

Complete emotional tranquility is seldom

attainable in this world, and some degree of

transient and trivial emotional distress is a

part of the price of living among people. The

law intervenes only where the distress

inflicted is so severe that no reasonable man

App.64a

could be expected to endure it. The intensity

and the duration of the distress are factors

to be considered in determining its severity.”

Watkins v. City of Southfield, 221 F.3d 883, 893 (6th

Cir. 2000) (emphasis in original) (quoting Pratt v.

Brown Mach. Co., 855 F.2d 1225, 1240 (6th Cir.

1988)) (additional citations omitted).

The relationship between the parties is relevant

in evaluating an IIED claim. See Wilson v. Kiss, 751

F. Supp. 1249, 1253 (E.D. Mich. 1990). “[T]he extreme

and outrageous character of the conduct may arise

from the position of the actor or a relationship to the

distressed party.” Id. (citing Ledsinger v. Burmeister,

318 N.W.2d 558, 562 (Mich. Ct. App. 1982). “Such

conduct may occur through the abuse of a relationship

that puts the defendant in a position of actual or

apparent authority over a plaintiff or gives a defendant

power to affect a plaintiff’s interest.” Id. (citing

Margita v. Diamond Mortg. Co., 406 N.W.2d 268, 272

(Mich. Ct. App. 1987)). Thus in Wilson, the court

denied the defendant’s motion to dismiss the plaintiff’s

IIED claim alleging that “defendant utilized his

authoritative position as employer to demand that

plaintiff engage in criminal acts or risk discharge.”

Wilson, 751 F. Supp. at 1254.

Defendants seek summary judgment with respect

to Ms. Guzall’s IIED claim, arguing in part that she

fails to prove extreme and outrageous conduct or that

the alleged conduct caused her severe emotional distress.13 First, the Court agrees with Defendants that

13 The City and Mayor Lambert also argue that they are

immune from liability with respect to Ms. Guzall’s IIED claim

under Michigan’s governmental immunity from tort liability

App.65a

Ms. Guzall fails to identify a specific statement by

Defendants threatening her job if she did not engage in

criminal conduct; and, as discussed earlier, there is

no evidence that she was laid off in retaliation for her

refusal to commit a criminal act. Second, Ms. Guzall

presents no evidence in response to Defendants’ motions to show that she suffered emotional distress

because of the alleged extreme and outrageous conduct. As set forth in Section I, to survive summary

judgment, Ms. Guzall must set forth specific facts—

that is, specifically designate in the record where the

facts are established—to demonstrate a genuine

issue of material fact for trial. See, e.g., Matsushita

Elec. Indus. Co., 475 U.S. at 587; Liberty Lobby, 477

U.S. at 252. Ms. Guzall does not even respond to

Defendants’ arguments, let alone identify where in

the record there is proof of her severe emotional disprovision, Mich. Comp. Laws § 691.1407. This Court finds it

unnecessary to address this defense. The Court notes, however,

that Ms. Guzall is incorrect when she asserts that this immunity

does not extend to these defendants’ intentional torts or where

they acted in bad faith or with malice. The law on which Ms.

Guzall relies for this assertion—to the extent it remains good

law—does not apply to the immunity afforded a governmental

agency (i.e., the City) or the elective or highest appointive executive official (i.e., Mayor Lambert). See Am. Transmissions,

Inc. v. Attorney General, 560 N.W.2d 52 (Mich. 1997) (citing

Ross v. Consumers Power Co., 363 N.W.2d 641 (Mich. 1984))

(“[T]he highest executive officials of all levels of government are

absolutely immune from all tort liability whenever they are

acting within their executive authority.”) (emphasis added);

Smith v. Dep’t of Pub. Health, 410 N.W.2d 749, 776 (Mich. 1987);

see also Ross v. Consumers Power Co., 363 N.W.2d 641, 667-68

(Mich. 1984) (outlining the different tort immunity Michigan extends to “judges, legislators, and the highest executive officials

of all level of government” as opposed to “[l]ower level official,

employees, and agents”).

App.66a

tress. The issue, therefore, is deemed waived. See

Williams v. WCI Steel Co., 170 F.3d 598, 607 (6th

Cir. 1999) (finding, on appeal, that plaintiff waived

state law claims in district court by failing to present

any opposition to defendant’s argument concerning

the state law claims.

I. Fraud

Count VI of Ms. Guzall’s Amended Complaint is

titled “Fraud—Intentional and/or Constructive Fraud—

Conspiracy and Concert of Actions.” (Am. Compl. at

46, ECF No. 4 at Pg ID 156.) Nowhere within the

allegations of this count does Ms. Guzall identify the

fraud Defendants allegedly committed against her.

(Id. ¶¶ 338-412.) Instead, she refers to fraud committed against the federal government—the merits of

which the Court already addressed with respect to

her FCA charge. In response to Defendants’ summary judgment motions, Ms. Guzall asserts that this

claim is premised on the same assurances about her

job security as her promissory estoppel claim. (See,

e.g., Pl.’s Resp. Krampitz Mot. at 39-40, ECF No. 158

at Pg ID 3370-71.)

To support a claim of fraud under Michigan law,

Ms. Guzall must satisfy the following elements:

1.

The defendant made a material representation.

2.

The representation was false.

3.

When the defendant made the representation,

it knew that it was false, or the defendant

made the representation recklessly, without

any knowledge of its truth, and as a positive

assertion.

App.67a

4.

The defendant made the representation with

the intention that it should be acted on by the

plaintiff.

5.

The plaintiff acted in reliance on the representation.

6.

The plaintiff suffered injury due to his

reliance on the representation.

Hord v. Envtl. Research Inst. of Michigan, 617 N.W.2d

543, 546 (Mich. 2000). The plaintiff’s reliance on the

material misrepresentation must be reasonable. Foreman v. Foreman, 701 N.W.2d 167, 175 (Mich. Ct. App.

2005) (citations omitted). Ms. Guzall fails to establish

the necessary elements of her fraud claim.

First, she fails to present evidence to demonstrate

that any statement regarding her job security (i.e.,

that she would not be laid off and would be returned

to work once she was) was false when made. Moreover,

Ms. Guzall fails to explain how she acted in reliance

on the representations. Finally, she fails to identify

any injury she suffered because of this reliance.

As Ms. Guzall fails to show evidence of fraud,

her related conspiracy claim also is subject to dismissal. This is because a civil conspiracy claim is not

actionable standing alone; it is necessary to prove a

separate actionable tort underlying the conspiracy.

Advocacy Org. for Patients & Providers v. Auto Club

Ins. Ass’n, 670 N.W.2d 569, 580 (Mich. Ct. App.

2003) (quoting Early Detection Ctr., PC v. New York

Life Ins. Co., 403 N.W.2d 830 (1986)) (“‘[A] claim for

civil conspiracy may not exist in the air; rather, it is

necessary to prove a separate, actionable tort.’”).

App.68a

IV. Conclusion

For the reasons set forth above, the Court holds

that Defendants are entitled to summary judgment

with respect to the claims Ms. Guzall asserts against

them.

Accordingly,

IT IS ORDERED that Defendants’ motions for

summary judgment (ECF Nos. 153, 154, and 171) are

GRANTED.

/s/ Linda V. Parker

U.S. District judge

Dated: August 8, 2017

App.69a

ORDER OF THE SIXTH CIRCUIT

DENYING PETITION FOR REHEARING EN BANC

(SEPTEMBER 6, 2018)

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

________________________

UNITED STATES OF AMERICA, EX REL.

MARIANNE GUZALL and MARIANNE D. GUZALL

A/K/A MARIANNA GUZALL, Individually,

Plaintiffs-Appellants,

v.

CITY OF ROMULUS, MICHIGAN,

ALAN R. LAMBERT, BETSEY KRAMPITZ,

Defendants-Appellees.

________________________

No. 17-2056

Before: MERRITT, WHITE, and

DONALD, Circuit Judges.

The court received a petition for rehearing en

banc. The original panel has reviewed the petition for

rehearing and concludes that the issues raised in the

petition were fully considered upon the original submission and decision of the case. The petition then was

circulated to the full court. No judge has requested a

vote on the suggestion for rehearing en banc.

App.70a

Therefore, the petition is denied.

Entered by Order of the Court

/s/ Deborah S. Hunt

Clerk