               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 18a0341n.06

                                       Case No. 17-2056

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                    FILED
                                                                               Jul 12, 2018
UNITED STATES OF AMERICA, ex rel.                  )                      DEBORAH S. HUNT, Clerk
MARIANNE GUZALL and MARIANNE D.                    )
GUZALL a/k/a MARIANNA GUZALL,                      )
individually,                                      )      ON APPEAL FROM THE UNITED
                                                   )      STATES DISTRICT COURT FOR
       Plaintiffs-Appellants,                      )      THE EASTERN DISTRICT OF
                                                   )      MICHIGAN
v.                                                 )
                                                   )
CITY OF ROMULUS, MICH., ALAN R.                    )
LAMBERT, BETSEY KRAMPITZ,                          )
                                                   )
       Defendants-Appellees.                       )




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 Defendant-Appellee City of Romulus, Michigan (the “City”). At the time, the City was

experiencing severe financial adversity and had twice failed to pass millages to 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
Case No. 17-2056
United States ex rel. Guzall et al. v. City of Romulus, Mich., et al.

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, 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



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. 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.

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Case No. 17-2056
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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 be re-

hired 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.




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United States ex rel. Guzall et al. v. City of Romulus, Mich., et al.

       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 vacation 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


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Case No. 17-2056
United States ex rel. Guzall et al. v. City of Romulus, Mich., et al.

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 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.




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       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 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




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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 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.


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Case No. 17-2056
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        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, 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.


                                                  -8-
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United States ex rel. Guzall et al. v. City of Romulus, Mich., et al.

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, 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).




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.)

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United States ex rel. Guzall et al. v. City of Romulus, Mich., et al.

         Guzall’s second argument regarding her First Amendment claim—that the district court

improperly failed to consider and address the affidavits of former 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 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,



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.

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United States ex rel. Guzall et al. v. City of Romulus, Mich., et al.

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 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


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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 work-force 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 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


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Case No. 17-2056
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(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

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


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detrimental reliance. Accordingly, we find that the district court did not err in dismissing Guzall’s

promissory estoppel and fraud claims.

   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.




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   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 appropriate

standard of review, this claim fails for the preceding reasons.




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Case No. 17-2056
United States ex rel. Guzall et al. v. City of Romulus, Mich., et al.

   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 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


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Case No. 17-2056
United States ex rel. Guzall et al. v. City of Romulus, Mich., et al.

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 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;


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Case No. 17-2056
United States ex rel. Guzall et al. v. City of Romulus, Mich., et al.

(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.

       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


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Case No. 17-2056
United States ex rel. Guzall et al. v. City of Romulus, Mich., et al.

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 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 scheduling-order 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


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Case No. 17-2056
United States ex rel. Guzall et al. v. City of Romulus, Mich., et al.

obtain his tax records and sought other relief. Indeed, Mayor Lambert concedes that discovery

disputes related 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 district 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


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Case No. 17-2056
United States ex rel. Guzall et al. v. City of Romulus, Mich., et al.

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.

                                            V. 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.




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Case No. 17-2056
United States ex rel. Guzall et al. v. City of Romulus, Mich., et al.

           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 satisfy the causation element

because she presented only assumptions, speculation, or hearsay that Lambert was involved in the

decision to lay her off. PID 4698-99. 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


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.
2
    Lambert invoked the Fifth Amendment at his deposition.

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Case No. 17-2056
United States ex rel. Guzall et al. v. City of Romulus, Mich., et al.

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 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 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

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Case No. 17-2056
United States ex rel. Guzall et al. v. City of Romulus, Mich., et al.

       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.




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