                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                   File Name: 09a0372n.06
                                                                                      FILED
                                          No. 08-5013                              May 27, 2009
                                                                             LEONARD GREEN, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


JERRY GRITTON,

        Plaintiff-Appellant,

v.                                                  ON APPEAL FROM THE UNITED
                                                    STATES DISTRICT COURT FOR THE
WILLIAM DISPONETT, et al.,                          EASTERN DISTRICT OF KENTUCKY

        Defendants-Appellees.

                                           /



BEFORE:         BATCHELDER and CLAY, Circuit Judges; and COX, District Judge.*

        CLAY, Circuit Judge. In this First Amendment retaliation case filed pursuant to 42

U.S.C. § 1983, Plaintiff-Appellant Jerry Gritton alleges that he was unlawfully transferred from

his job based on his political affiliation. On appeal, Gritton challenges (1) the district court’s

dismissal of his claims against the Kentucky Transportation Cabinet and the Republican Central

Executive Party; (2) the court’s denial of his motion to alter judgment based on previously

unavailable evidence; and (3) the court’s grant of summary judgment to William David

Disponett and Richard Murgatroyd. For the reasons that follow, we AFFIRM the judgments of

the district court.

                                       BACKGROUND


        *
       The Honorable Sean F. Cox, United States District Judge for the Eastern District of
Michigan, sitting by designation.
                                            No. 08-5013

               A.      Procedural History

       Plaintiff-Appellant Jerry Gritton filed suit against William David Disponett, Richard

Murgatroyd,1 the Kentucky Transportation Cabinet, and the Republican Central Executive

Committee (“the Republican Party”) pursuant to 42 U.S.C. § 1983, alleging that his job was

unlawfully transferred because of his political affiliations in violation of his rights under the First

Amendment and Kentucky law. Defendants Murgatroyd, the Kentucky Transportation Cabinet,

and the Republican Party each filed motions to dismiss the claims against them. The district

court dismissed Gritton’s claims against the Kentucky Transportation Cabinet and the

Republican Party, but denied Murgatroyd’s motion to dismiss.

       The case proceeded against Disponett and Murgatroyd, and the district court entered an

order directing that discovery be completed on or before May 31, 2007.               Both remaining

defendants filed motions for summary judgment and Gritton filed responsive pleadings.

Subsequently, on September 21, 2007, Gritton filed a motion to extend time to complete and

reopen discovery, and the court denied the motion. The court thereafter granted summary

judgment to Disponett and Murgatroyd on each of Gritton’s claims, and denied Gritton’s motion

to alter or amend the judgment. Gritton filed a timely notice of appeal.

       B.      Substantive Facts

       Jerry Gritton was employed by the Transportation Cabinet of the Commonwealth of

Kentucky until his retirement on September 1, 2006. During the period relevant to this case, he



       1
        Gritton filed suit against Disponett individually and in his official capacity as an Agent on
the Republican Executive Committee, and against Murgatroyd individually and in his official
capacity as Deputy Secretary of the Kentucky Transportation Cabinet.

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                                          No. 08-5013

held the position of Maintenance Superintendent II, which involved the supervision and direction

of several workers on a road crew in Anderson County, Kentucky, where Gritton had lived and

worked until his job transfer in 2004.

       Gritton is a registered Democrat. He alleges that after the Republican Administration of

Governor Ernie Fletcher took office in 2003, he began to hear rumors that his job would be

threatened by the administration’s political patronage program.            Defendant Disponett

campaigned for Governor Fletcher and served as the Treasurer of the Republican Executive

Committee. After Governor Fletcher was elected, Disponett was supplied with a state-funded

office and staff in the state capitol, where he made personnel recommendations to Governor

Fletcher’s staff and was classified as a volunteer. Disponett testified that individuals would

routinely seek him out to inquire about positions in state government and to ask for

recommendations. Disponett also lives in Anderson County, Kentucky, and testified that he has

known Gritton since he was born.

       Gritton testified that Bob and Edward Cook, who work for Disponett, approached him

several times and indicated that they were surprised that he was still working and that he had not

been transferred, given the change in administration. After hearing these comments, Gritton

voiced concerns to his supervisor, Karen Doumas, and she assured him that he was a merit

employee who could only be transferred under certain circumstances.

       In late 2004, Disponett’s nephew, Tony Disponett, approached Disponett about a position

in the Anderson County Highway Department. Disponett testified that he referred his nephew to

Jessica Masters, an employee who worked in the governor’s office. Disponett also spoke to Dan

Druen, who served as a personnel liaison between the Transportation Cabinet and the governor’s

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office, and informed him that his nephew needed a job that would provide him with stable

employment. Disponett also approached personnel liaison Cory Meadows, told him that he was

aware of a number of complaints about Gritton, and inquired about whether Gritton could be

transferred.

        Defendant Richard Murgatroyd, who served as the Deputy Secretary of the

Transportation Cabinet, attended weekly meetings with Meadows and Druen in which

Transportation Cabinet personnel decisions were discussed.          In one of those meetings,

Murgatroyd learned of Tony Disponett’s interest in a position in Anderson County, the alleged

complaints against Gritton, and the possibility that Gritton might be interested in a transfer.

Murgatroyd testified that after this meeting, he “turned [the matter] over to personnel” and had

no further involvement in the hiring of Tony Disponett or the transfer of Gritton.          (Joint

Appendix “J.A.” at 246-58.)

        Murgatroyd did testify, however, that he discussed possible Anderson County Highway

Department personnel changes with Disponett at a restaurant one evening, although he denied

discussing Tony Disponett’s application. After that conversation, Murgatroyd wrote Disponett

an email that stated,

                 “Dave: The other night at Applebee’s we were talking about Jerry
                 Gritton. I had a note in my file that he might want to be
                 transferred. Is that the case?”

(J.A. at 379.)

        Gritton alleges that around this time, he was pressured by various individuals to transfer

to Fayette County. At a September 9, 2004 meeting, Gritton’s superiors, Jim Rummage and Bob

Sturgeon, asked Gritton whether he would accept a transfer. Gritton declined, in part because he

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wished to be close to his home so he could care for his sick wife. Gritton testified that he

received a phone call from Jimmy Morgan (a friend of Gritton’s and the nephew of Disponett),

who told Gritton that he was “taking hits[,]” asked Gritton if he wanted to keep his job, and

pressured Gritton to call David Disponett. Gritton testified that he attempted to call Disponett

but that he never spoke to him.

       Gritton also testified that his brother, who was a general contractor for Disponett, advised

him that he had spoken with Disponett and that he should accept the transfer or he would risk

being fired or transferred to a more remote location. Gritton approached Doumas with concerns,

and Doumas stated that, according to Murgatroyd, Gritton no longer had a choice in the matter.

       Gritton signed a Voluntary Transfer form on November 1, 2004. He testified that prior to

signing the document, he informed Rummage and Sturgeon that he was agreeing to the transfer

only as a result of continued pressure and a fear that he would lose his job. Gritton testified that

Rummage later told him he was transferred because the state administration wanted his job.

After Gritton’s transfer, Tony Disponett was hired as a Superintendent II for Anderson County.

       Gritton testified that he suffered a number of negative consequences as a result of the

transfer. His commute time increased by an hour a day and he lost the opportunity to be close to

his home so he could care for his sick wife. He also was required to pay an employment tax that

did not apply in Anderson County, which resulted in a yearly loss of $2,000, and he lost the

opportunity to work overtime because he was not close enough to his post to handle emergency

calls. Gritton also testified that the work in Fayette County was more arduous due to an

increased proximity to interstate highways and a much larger number of roads.




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       After his transfer, Gritton became aware that Disponett and Murgatroyd had been

indicted for their alleged involvement in making unlawful personnel decisions on behalf of the

Fletcher administration, which included the hiring of Tony Disponett, and that they had accepted

pardons from Governor Fletcher.

                                         DISCUSSION

                                                I.

       Gritton first argues that the district court erred in dismissing his claims against the

Kentucky Transportation Cabinet and the Republican Party. This Court reviews de novo a

district court’s decision to grant a motion to dismiss a claim pursuant to Federal Rule of Civil

Procedure 12(b)(6). See Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir. 2008). A court must

construe the complaint in the light most favorable to the non-moving party, and accept all of its

factual allegations as true. See Dubay v. Wells, 506 F.3d 422, 427 (6th Cir. 2007). In doing so,

however, the court does not accept “the bare assertion of legal conclusions” as enough, nor does

it “accept as true . . . unwarranted factual inferences.” In re Sofamor Danek Group, Inc., 123

F.3d 394, 400 (6th Cir. 1997).

       The factual allegations in a complaint need not be detailed; they “need only give the

defendant fair notice of what the claim is and the grounds upon which it rests.” Erickson v.

Pardus, 551 U.S. 89, 93 (2007) (internal quotations and citations omitted). “[W]hen a complaint

adequately states a claim, it may not be dismissed based on a district court’s assessment that the

plaintiff will fail to find evidentiary support for his allegations or prove his claim to the

satisfaction of the factfinder.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007).

Further, this Court may affirm the district court’s dismissal of a plaintiff’s claims on any

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                                            No. 08-5013

grounds, including those not relied on by the district court. In re Comshare, Inc. Sec. Litig., 183

F.3d 542, 548-49 (6th Cir. 1999).

        The district court dismissed Gritton’s claims against the Kentucky Transportation

Cabinet based on sovereign immunity. Gritton did not address the issue of sovereign immunity

in his brief, and other than providing a heading that stated that “The Plaintiff stated a claim

against Republican Party and Transportation Cabinet sufficient to withstand a 12(b) motion,” his

brief did not discuss his claim against the Kentucky Transportation Cabinet. Under Radvansky v.

City of Olmsted Falls, 395 F.3d 291, 310-311 (6th Cir. 2005), we may treat a party’s failure to

pursue an argument in his appellate briefs as a waiver of the argument on appeal. We therefore

hold that Gritton waived his claims against the Kentucky Transportation Cabinet.

        Gritton also challenges the district court’s dismissal of his claims against the Republican

Party. The court granted the motion to dismiss because it found that the Republican Party was

not acting under the color of state law as required by § 1983. “To state a claim for relief in an

action brought under § 1983, [plaintiffs] must establish that they were deprived of a right

secured by the Constitution or laws of the United States, and that the alleged deprivation was

committed under color of state law.” American Mfrs. Mutual Ins. Co. v. Sullivan, 526 U.S. 40,

49-50 (1999). “[T]he under-color-of-state-law element of § 1983 excludes from its reach merely

private conduct, no matter how discriminatory or wrongful[.]” Id. at 50 (quotation marks and

citations omitted). This Court applies a three-part test to determine if private conduct is fairly

attributable to the state:

                The public function test requires that the private entity exercise
                powers which are traditionally exclusively reserved to the state. . .

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                                            No. 08-5013

                . The state compulsion test requires proof that the state
                significantly encouraged or somehow coerced the private party,
                either overtly or covertly, to take a particular action so that the
                choice is really that of the state. Finally, the nexus test requires a
                sufficiently close relationship (i.e., through state regulation or
                contract) between the state and the private actor so that the action
                taken may be attributed to the state.


Tahfs v. Proctor, 316 F.3d 584, 591 (6th Cir. 2003) (quoting Ellison v. Garbarino, 48 F.3d 192,

195 (6th Cir. 1995)).

        In his complaint, Gritton first alleges that the Republican Party acted in concert with

other named defendants in violating his constitutional rights. This allegation fails to satisfy the

public function and the state compulsion test because Gritton does not allege that the Republican

Party had the ability to take personnel actions against him, nor does he allege that the state

coerced the Party to take a prohibited action. See Tahfs, 316 F.3d at 591. The conspiracy

allegation also fails to satisfy the nexus test because Gritton does not allege facts that establish a

sufficiently close relationship between the state and the Party so as to attribute the Party’s

actions to the state. See id.

        Gritton also alleges that “all of the Defendants were acting under the color of state law.”

(J.A. at 21-22.) This allegation is a legal conclusion that carries little weight. See In re Sofamor

Danek Group, Inc., 123 F.3d at 400 (holding that this Court does not accept “the bare assertion

of legal conclusions” or “unwarranted factual inferences” when determining if a plaintiff has

stated a claim).

        Gritton relies upon Rutan v. Republican Party, 497 U.S. 62, 69 (1990), in his arguments

to the contrary. He argues that political organizations such as the Republican Party can be held


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                                            No. 08-5013

liable for First Amendment violations filed pursuant to § 1983 for their participation in operating

a political patronage system that conditions public employment on “political allegiance.” Id.

Gritton’s reliance on Rutan is misguided. The Rutan Court never reached the issue of whether

the Republican Party was a state actor because the plaintiffs’ claims had been dismissed on other

grounds. Rutan does not support a conclusion that the Republican Party should always be

considered a state actor. Instead, a plaintiff’s claims against a state actor must satisfy the three-

part state-actor test. See Tahfs, 316 F.3d at 591.

       In sum, after applying the state-actor test, the district court properly concluded that the

complaint “d[id] not allege any specific act of the Republican Party, nor d[id] it allege that any

defendant acted at its direction or with its authorization.” (J.A. at 31.) Consequently, we find

that the court did not err in dismissing Gritton’s claims against the Republican Party pursuant to

Rule 12(b)(6).2

                                                 II.

       Gritton next argues that the district court abused its discretion in denying his motion to

alter or amend judgment pursuant to Federal Rule of Civil Procedure 59(e) because significant

new evidence from two witnesses had become available. This Court reviews a district court’s

decision to alter or amend its judgment for abuse of discretion. Scottsdale Ins. Co. v. Flowers,

513 F.3d 546, 569 (6th Cir. 2008).


       2
         Even if Gritton were to establish that the Republican Party were a state actor, Gritton’s
claims against the Republican Party would fail because of the conclusory nature of Gritton’s
allegations. See Farhat v. Jopke, 370 F.3d 580, 599 (6th Cir. 2004) (“Claims of conspiracy must
be pled with some specificity: vague and conclusory allegations that are unsupported by material
facts are not sufficient to state a § 1983 claim.”)

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                                            No. 08-5013

       We have held that “[t]he purpose of Rule 59(e) is to allow the district court to correct its

own errors, sparing the parties and appellate courts the burden of unnecessary appellate

proceedings.” Howard v. United States, 533 F.3d 472, 475 (6th Cir. 2008) (quotation marks and

citations omitted). “Rule 59(e) motions serve a limited purpose and should be granted for one of

three reasons: (1) because of an intervening change in controlling law; (2) because evidence not

previously available has become available; or (3) because it is necessary to correct a clear error

of law or prevent manifest injustice.” General Truck Drivers, Chauffeurs, Warehousemen &

Helpers, Local No. 957 v. Dayton Newspapers, Inc., 190 F.3d 434, 445 (6th Cir. 1999).

       Here, Gritton sought the admission of statements from Dan Druen and Missy McCray.3

He argues that the statements have direct relevance to Murgatroyd and Disponett’s efforts to

violate his First Amendment rights, and that they constitute previously unavailable evidence

because they had been shielded as part of the grand jury indictments of Disponett and

Murgatroyd.

       The district court denied Gritton’s motion because it found that he did not allege a

change of law or a clear error of law, and that the alleged “new evidence” was not previously


       3
         Gritton submitted an unsworn statement in which Druen identified Murgatroyd as a person
substantially involved in Gritton’s transfer and indicated that Murgatroyd was “obsessed” with
replacing Democrats with loyal Republicans. (J.A. at 668-69.) Druen stated that he met frequently
with Disponett, described how Disponett arranged for the hiring of his nephew, and discussed how
Disponett was a key figure in placing Republicans in merit positions in the Transportation Cabinet.
Gritton also submitted a sworn statement from McCray in which she stated that Gritton was
transferred specifically to create a job opening for Tony Disponett, and that she believed that merit
system jobs “were being created and/or filled as a result of political reasons.” (J.A. at 746.) McCray
stated that the personnel department performed background checks and explained “I think they’re
looking at the registrar for Republican or Democrat, how you voted, how you’re registered to vote
and if you contributed any monetary contributions to either side.” (J.A. at 747-48.)

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                                             No. 08-5013

unavailable.    The court stated that Gritton “had ample opportunity to investigate [those]

matter[s], to interview or notice the depositions of Mr. Druen and Ms. McCray, and to timely

obtain the evidence they had to offer or note and attest to his inability to obtain it.” (J.A. at 36.)

        We agree that the evidence was not previously unavailable. While the statements of

Druen and McCray might have been unavailable to Gritton, Gritton cannot reasonably contend

that he was unaware of the existence of those individuals or their potential knowledge of facts

relevant to the case prior to the close of discovery. Although Gritton argues that Druen was

previously uncooperative, the district court properly noted that he never sought to obtain a

subpoena to compel Druen to testify and that he provided no persuasive reason for failing to do

so.4

        We have advised that “[w]here the full period for pretrial discovery has run its course, a

party should generally be precluded from reopening discovery months after it has closed in a

last-ditch attempt to salvage a deficient claim or defense.”           Majewski v. Automatic Data

Processing, Inc., 274 F.3d 1106, 1114 (6th Cir. 2001). Here, discovery had run its course, and

the district court did not abuse its discretion in denying Gritton’s motion to re-open discovery or

in denying Gritton’s subsequent motion to alter or amend judgment.

                                                  III.


        4
        The district court also noted that even if it were to reconsider defendants’ motions for
summary judgment using the affidavits submitted by Gritton, the court could not consider Druen’s
unsworn statement. Druen asserted his Fifth Amendment right against self-incrimination in
response to questions about his involvement in the events giving rise to Gritton’s case, and the court
found that “his unsworn statement - even if considered otherwise admissible – must be stricken on
those [Fifth Amendment] grounds and not considered by the Court.” (J.A. at 37 (citing Tolliver v.
Federal Republic of Nigeria, No. 03-2341, 2005 WL 783350, at *2 (6th Cir. April 8, 2005)).)

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                                           No. 08-5013

       In his final assignment of error, Gritton argues that the district court erred in granting

summary judgment to Defendants Disponett and Murgatroyd because he has presented questions

of material fact regarding his First Amendment retaliation claims.

       This Court reviews a district court’s grant of a motion for summary judgment de novo.

Miller v. Admin. Office of the Courts, 448 F.3d 887, 893 (6th Cir. 2006). A moving party is

entitled to summary judgment “if the pleadings, the discovery and disclosure materials on file,

and any affidavits show that there is no genuine issue as to any material fact and that the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). When a court reviews the

record, it is to draw all inferences in the light most favorable to the non-moving party.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 577 (1986). Ultimately, the

proper inquiry is whether the state of the evidence is such that a reasonable jury could return a

verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986);

Stromback v. New Line Cinema, 384 F.3d 283, 292 (6th Cir. 2004).

       To establish a prima facie case of First Amendment retaliation pursuant to 42 U.S.C. §

1983, Gritton must establish three elements:

               (1) that he was engaged in a constitutionally protected activity; (2)
               that the defendant’s adverse action caused him to suffer an injury
               that would likely chill a person of ordinary firmness from
               continuing to engage in that activity; and (3) that the adverse
               action was motivated at least in part as a response to the exercise
               of his constitutional rights.


Vaughn v. Lawrenceburg Power Sys., 269 F.3d 703, 715 (6th Cir. 2001); see also Thaddeus-X v.

Blatter, 175 F.3d 378, 394 (6th Cir. 1999).



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        The district court concluded, and Defendants appear to concede, that membership in a

political party is a constitutionally protected activity.   The parties dispute whether the transfer

constituted an adverse action, but we decline to reach that issue because we find that Gritton fails

to establish that his transfer was motivated at least in part as a response to the exercise of his

constitutional rights.

        The analysis of a defendant’s motives in retaliation claims is well established: the

plaintiff has the burden of establishing that his protected conduct was a motivating factor behind

any harm, and then the burden of production shifts to the defendant, who must show that he

would have taken the same action in the absence of the protected activity. See Thaddeus-X, 175

F.3d at 399; see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (discussing the burden

shifting analysis that applies to summary judgment motions).

        Gritton fails to establish a causal connection between his transfer and his political

affiliation. Gritton essentially argues that because he is a Democrat, and because Disponett and

Murgatroyd are Republicans who knew that Gritton was a Democrat, it follows that Disponett

and Murgatroyd retaliated against him in violation of the First Amendment when they

transferred him.

        Other than this assertion, Gritton points to no admissible evidence that creates a genuine

issue of material fact as to whether his political affiliation was a basis for his transfer. He did

not present admissible incriminating statements by Defendants, patterns of discriminatory

treatment of Democrats, or other evidence that might put his political affiliation into play. To be

sure, Gritton might have survived summary judgment if he had timely submitted the statements


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of Druen and McCray. Those statements could lead a juror to believe – at least arguably – that

Gritton was transferred because the administration was seeking to place Republicans in protected

positions to gain political favor. However, as discussed above, Gritton offers no compelling

argument as to why he did not pursue evidence from these potentially material witnesses within

the discovery deadlines, and the district court was acting within its discretion when it denied

Gritton’s motion to re-open discovery.

       Without the aforementioned statements, the remaining evidence that Gritton presents

establishes that Defendants intentionally sought to transfer him, even though he was a merit

employee who could not be fired or transferred except for cause. As the district court properly

noted, the evidence indicates that this is a case where individuals in a position of power used,

and likely abused, their authority to pressure Gritton to transfer so they could give a favorable

position to Disponett’s nephew. While the alleged actions might violate the terms of Gritton’s

employment contract or the terms of the state employee merit system, they do not establish that

Gritton’s transfer was motivated by his exercise of his constitutional rights.

       Because Gritton points to no admissible evidence to establish that his political affiliation

was a basis for his transfer, we conclude that the district court did not err when it held that

Gritton did not establish a causal connection between his transfer and the protected activity.

Consequently, we affirm the district court’s grant of summary judgment to Defendants Disponett

and Murgatroyd.

                                         CONCLUSION

      For the reasons stated above, we AFFIRM the judgments of the district court.


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