                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0742n.06
                            Filed: October 6, 2006

                                           No. 04-2420

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


TERI LYNN ENTERPRISES, INC., a                    )
Michigan corporation, TERI WOJAHN,                )
and STEPHANIE NELSON ,                            )
                                                  )
       Plaintiffs-Appellees,                      )
                                                  )   ON APPEAL FROM THE
v.                                                )   UNITED STATES DISTRICT COURT
                                                  )   FOR THE EASTERN DISTRICT OF
ROBERT J. PICKELL,                                )   MICHIGAN
                                                  )
       Defendant-Appellee,                        )
                                                  )
CHARTER TOWNSHIP OF VIENNA                        )
and ANTHONY McKERCHIE,                            )
                                                  )
       Defendants.                                )


Before: BOGGS, Chief Circuit Judge; GIBBONS, Circuit Judge; and ROSE, District
Judge.*

       JULIA SMITH GIBBONS, Circuit Judge. Robert J. Pickell, the sheriff of Genesee

County, Michigan, appeals the denial of his motion for summary judgment based on qualified

immunity. A towing company and its officers sued Pickell in the United States District Court for

the Eastern District of Michigan pursuant to 42 U.S.C. § 1983, alleging that Sheriff Pickell violated

the First and Fourteenth Amendments by directing the Genesee County Sheriff’s Department to use


       *
         The Honorable Thomas M. Rose, United States District Judge for the Southern District of
Ohio, sitting by designation.

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other towing companies when it needed to tow vehicles. Finding that Sheriff Pickell’s allocation of

towing business violated clearly established constitutional rights of which a reasonable officer should

know, the district court refused to grant him qualified immunity and denied his motion for summary

judgment. We reverse because plaintiffs have come forward with insufficient evidence to permit a

finding that Pickell violated their constitutional rights.

                                                  I.

        Teri Lynn Enterprises (“Teri Lynn”) is a towing company located in Vienna Township

(“Vienna”), Michigan. Teri Wojahn is president and CEO of Teri Lynn, and Stephanie Nelson is

its secretary/treasurer. David Wojahn, Teri’s husband and Stephanie’s father, is involved in the

operation of the business, generally known in the area as Dave and Teri’s. Teri Lynn has been in

business for more than fifteen years and had considerable profits—as much as $500,000 per

year—during a five-year period spanning the late 1990s and the early 2000s. Teri Lynn’s success

resulted substantially from a provision in a contract between Vienna and the Genesee County

Sheriff’s Department under which the Sheriff’s Department provided law enforcement protection

for Vienna. Prior to October 2001, the provision required the Sheriff’s Department to use a towing

company located in Vienna whenever it towed vehicles in the town. This requirement gave Teri Lynn

a de facto monopoly because it was the only towing company in Vienna. In October 2001, Vienna

changed this provision of its contract with the Sheriff’s Department by vote of the township trustees.

The new contract permitted the Sheriff’s Department to tow vehicles from Vienna using towing

companies located elsewhere in Genesee County.

        Teri Lynn, Teri Wojahn, and Nelson brought this civil rights action against Vienna; its

supervisor, Anthony McKerchie; and Sheriff Pickell. The plaintiffs claim that the government


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contract was changed because David Wojahn engaged in protected speech and because Teri Lynn

is owned and operated by women. The complaint alleges that defendants’ conduct violated

plaintiffs’ First Amendment free speech rights and their substantive due process, procedural due

process, and equal protection rights under the Fourteenth Amendment.

       The alleged constitutional violations stem from an incident involving a disgruntled customer.

The customer, after becoming angry about the price for retrieving his towed vehicle from Teri Lynn,

uttered a vulgar gender epithet about Nelson. The customer’s comment was captured on Teri Lynn’s

video surveillance system. After the customer complained about Teri Lynn’s prices and service at

a meeting of the township trustees, David Wojahn took the videotape to the Sheriff’s Department

in an effort to have the disgruntled customer prosecuted under a Vienna ordinance that prohibits the

use of profanity in public places in the presence of women and children. The local prosecutor

declined to prosecute, and the sheriff was also not interested in pursuing the matter. David Wojahn

then asked McKerchie to view the videotape, which he did along with other Vienna officials and the

plaintiffs. Plaintiffs present evidence that, after viewing the videotape, McKerchie pointed at Nelson

and said, “Looks like there’s your problem, you need to get rid of her and hire a man.” McKerchie

and other witnesses deny that McKerchie said this. The incident with the customer, the customer’s

complaint, and David Wojahn’s activities regarding the disgruntled customer incident all occurred

in July 2001, a few months before the change in the contract.

       Various representatives of Vienna and the Sheriff’s Department testified in depositions that

there were complaints about Teri Lynn’s towing charges, which are disputed but may have been as

much as three times greater than those of other companies in some instances, and poor customer

service. In addition to this testimony, the record contains independent evidence of at least two


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customer complaints in addition to the one made in July 2001–one made at a trustee’s meeting and

one made by letter, both in August 2001. There was also evidence that the Sheriff’s Department was

frequently called to Teri Lynn, apparently to assist with the removal of personal property from towed

cars. Given this situation, Vienna investigated the prices of other towing companies in the county

and concluded that Teri Lynn’s prices were likely higher. Vienna officials determined that the

township should change the contract provision giving Teri Lynn a monopoly on towing in Vienna.

       Vienna officials made Sheriff’s Department representatives and Pickell personally aware of

the reasons for the change. Sheriff Pickell did not participate in the negotiations for the new contract

but agreed to it and signed it on behalf of the Department. McKerchie also communicated to Pickell

that Vienna did not want to do business with Teri Lynn. While Pickell testified that he never

directed the Department not to use Teri Lynn and some Department representatives thought that Teri

Lynn was still being called along with other towing companies on a rotating basis, there is also

evidence that the Department did not call Teri Lynn at all after the contract change.1

       The contract change and its implementation caused a significant reduction in Teri Lynn’s

business. As a result, David Wojahn sought and obtained a meeting with Pickell to discuss the

situation. Plaintiffs present evidence that during the time period after the contract change Pickell

told David Wojahn that he worked for Vienna and Vienna officials had instructed him not to do

business with Teri Lynn and also commented that “It’s all politics . . . you know how politics is.”



       1
        Plaintiffs make much of a memo, not authored by Pickell, about which there was some
deposition testimony indicating that the memo said that Sheriff’s Department employees should not
call Dave and Teri’s. The memo itself is not in evidence, and the testimony about it is inadmissible
hearsay. The only memo in the record establishing a protocol for calling towing companies is dated
May 2003 and would not exclude Teri Lynn in all instances–for example, if the call was not a police
impound and the customer preferred Teri Lynn.

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Pickell denies the latter comment. His version of the first comment is that he told David Wojahn

that his contract was with his customer, Vienna Township, and that if Vienna’s elected officials did

not want to do business with Teri Lynn due to its prices, that was fine with him.

                                                   II.

       The district court granted summary judgment to all defendants on plaintiffs’ substantive and

procedural due process claims, finding that the evidence submitted by plaintiffs could not establish

a violation of due process rights. With respect to the First Amendment and equal protection claims,

the district court determined that plaintiffs had presented evidence from which a trier of fact could

find in their favor. Thus, when the district court considered Pickell’s qualified immunity argument,

only the First Amendment and equal protection claims remained. On appeal, therefore, we deal only

with those two claims.

       “We review the district court's denial of defendant’s claims that he is entitled to . . . qualified

immunity de novo, as that issue is a question of law.” Spurlock v. Satterfield, 167 F.3d 995, 1000

(6th Cir. 1999). Pickell asserted his claim of qualified immunity through a motion for summary

judgment, and we review the district court’s denial of that motion de novo, drawing all reasonable

factual inferences in plaintiffs’ favor. Barnes v. Wright, __ F.3d __, 2006 WL 1506714 (6th Cir.

2006). “‘Summary judgment is appropriate only where there is no genuine issue of material fact and

the moving party is entitled to summary judgment as a matter of law.’” Ireland v. Tunis, 113 F.3d

1435, 1440 (6th Cir. 1997) (quoting Pusey v. City of Youngstown, 11 F.3d 652, 655 (6th Cir.1993)).

       Qualified immunity shields “government officials performing discretionary functions . . .

from liability for civil damages insofar as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457


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U.S. 800, 818 (1982). We determine whether a government official is entitled to qualified immunity

through application of a three-part test:

       First, we determine whether, based upon the applicable law, the facts viewed in the
       light most favorable to the plaintiffs show that a constitutional violation has occurred.
       Second, we consider whether the violation involved a clearly established
       constitutional right of which a reasonable person would have known. Third, we
       determine whether the plaintiff[s] [have] offered sufficient evidence to indicate that
       what the official allegedly did was objectively unreasonable in light of the clearly
       established constitutional rights.

Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003) (alteration added). If we conclude that the

plaintiffs have failed to establish any of these three elements, qualified immunity must be granted.

Radvansky v. City of Olmstead Falls, 395 F.3d 291, 302 (6th Cir. 2005).

       In analyzing this appeal, we need not decide whether the district court was correct in its

conclusion that plaintiffs had presented evidence sufficient to survive summary judgment as to

defendants other than Pickell. The district court failed to examine the precise evidence relating to

Pickell himself, as is required when a defendant is sued in his individual capacity and not in his

official capacity as a policy-maker or decision-maker for Genesee County, see Taylor v. Franklin

County, Ky., 104 F. App’x 531, 541 (6th Cir. 2004) (considering only the evidence adduced against

an individual defendant in determining whether that defendant was entitled to qualified immunity

rather than making the qualified immunity determination on the evidence accumulated against all

of the defendants), but instead considered collectively all the defendants and even representatives

of Vienna and the Sheriff’s Department who are not defendants as a group. This failure led to a

qualified immunity conclusion that is flawed whether or not the district court’s ruling as to the other




                                                 -6-
defendants was correct.2

       To permit a finding that a First Amendment violation has occurred, plaintiffs must present

evidence of a causal connection between any protected conduct and an adverse action. Thaddeus-X

v. Blatter, 175 F.3d 378, 394-95 (6th Cir. 1999) (en banc). In this record there is no evidence

whatever that protected speech by David Wojahn or any plaintiff motivated Pickell to agree to the

contract change or to stop doing business with Teri Lynn. Pickell’s agreement to the contract change

and the Department’s refusal to do business with Teri Lynn are relevant to the issue of Pickell’s

participation in any adverse action but not to the issue of his motivation. Pickell’s comments

subsequent to the change permit no inference that the speech had any connection to the change; if

anything the comments permit only the inference that Pickell acquiesced in Vienna’s wishes without

any improper motivation of his own. And plaintiffs do not argue that any inference arises from

Pickell’s disinterest in pursuing prosecution of the disgruntled customer. Plaintiffs thus cannot

establish that Pickell violated their First Amendment rights.

       The equal protection claim requires proof of purposeful discrimination. Smith v. City of

Salem, 378 F.3d 566, 577 (6th Cir. 2004). Yet, its assertion of gender-based discrimination is

supported only by the comment that McKerchie allegedly made concerning the replacement of

Nelson with a man and the fact that females control Teri Lynn, while males own and operate the

towing companies now towing vehicles in Vienna. McKerchie’s comment cannot be attributed to

Pickell, and a trier of fact could not find that Pickell intentionally discriminated on the basis of

gender from the simple fact of a change from a female-controlled company to male-controlled


       2
         We need not reach, for example, questions about whether the government employee speech
cases relied on by the district court are appropriate in this context or what impact the fact that the
speaker was David Wojahn, not the plaintiffs, has on the analysis.

                                                 -7-
companies. The first step of the qualified immunity analysis is not met because Pickell did not

violate plaintiffs’ equal protection rights.

                                               III.

        For the foregoing reasons, we reverse the judgment of the district court and enter summary

judgment for Sheriff Pickell on the qualified immunity issue raised in this appeal.




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