                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 18a0557n.06

                                        Case No. 18-1294

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                  FILED
                                                                              Nov 05, 2018
SHAWNA HARTWELL,                                      )                   DEBORAH S. HUNT, Clerk
                                                      )
       Plaintiff-Appellant,                           )
                                                      )        ON APPEAL FROM THE
v.                                                    )        UNITED STATES DISTRICT
                                                      )        COURT FOR THE EASTERN
HOUGHTON LAKE COMMUNITY SCHOOLS                       )        DISTRICT OF MICHIGAN
and AMY PETERSON,                                     )
                                                      )
       Defendants-Appellees.                          )                             OPINION


BEFORE: SUTTON, McKEAGUE, and THAPAR, Circuit Judges.

       McKEAGUE, Circuit Judge. Shawna Hartwell’s story as a teacher at Houghton Lake

Community Schools started with family. Her mom’s friend got her the job. Hartwell believes her

story ended with family as well. She alleges the school fired her because of her relationships with

her husband and stepchildren. Finding no evidence to support Hartwell’s claim, we affirm the

district court’s decision to grant summary judgment for the defendants.

                                                I.

       In 2014, Houghton Lake Community Schools hired Shawna Hartwell as a probationary

teacher. Like most new employees, Hartwell showed promise but struggled with the learning

curve. In her first year-end review, Amy Peterson (the school principal) described Hartwell as “an
Case No. 18-1294, Hartwell v. Houghton Lake Community Schools


extremely hard worker” who “will grow to be a great teacher.” But having not yet attained

greatness, Hartwell received a “minimally effective” score.

       Hartwell’s second year did not go as smoothly. First, personal issues began to surface. By

way of background, Hartwell’s husband Scott had joint custody of two children from his previous

marriage to Neika King. Both kids were students at Houghton Lake Community Schools, and one

attended the school where Hartwell worked. In August 2015, King complained that Hartwell was

harassing the children during a summer program at school. Although nothing inappropriate came

to light, Peterson advised Hartwell to talk to her stepchildren only during her husband’s parenting

time. Shortly after the summer-program allegations, King tried to transfer her daughter to another

school. Hartwell, however, told a secretary not to send the daughter’s records to the new school

because her husband was contesting the transfer. The next week, King came to pick up her

daughter after school. But her daughter was not in the designated pick-up area because Hartwell

had picked her up from her classroom. Trying to address the situation, Peterson told Hartwell that

she needed to release the child to King. Hartwell at first refused. The police then came to the

school, and Hartwell relented.     The next day, Peterson formally reprimanded Hartwell for

interfering with the records transfer, refusing to release her stepdaughter to King, and sending a

note to another teacher about her stepdaughter after Peterson advised that all communications must

come from a biological parent.

       Performance issues emerged as well.        Peterson observed Hartwell twice during the

academic year. After the first observation, Peterson reported that Hartwell had shown progress

but needed to improve at instructing her students. The second observation suggested that Hartwell

struggled with professionalism, classroom management, and acceptance of feedback. Peterson




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then completed Hartwell’s second year-end evaluation, and Hartwell again earned a minimally

effective rating. But her numerical score dropped from 2.45 to 2.0.

       With that in mind, Peterson sent a letter to the school board recommending that it not renew

Hartwell’s contract because “her services have been minimally effective.” Peterson added in a

supplemental letter that Hartwell resisted coaching and waited too long to use available

instructional aides. She also advised the school board that Hartwell made the school’s secretaries

uncomfortable when she told them not to comply with King’s request to transfer her daughter’s

records and that Hartwell put the district in legal jeopardy when she refused to release her

stepdaughter to a legal guardian. The school board ultimately issued a resolution terminating

Hartwell’s contract based on “sufficient reason” furnished in Peterson’s recommendation.

       Following her termination, Hartwell sued Houghton Lake Community Schools and

Peterson in her official capacity (collectively, Houghton Lake). In her complaint, Hartwell alleged

violations of the First and Fourteenth Amendments.           Houghton Lake moved for summary

judgment, and the district court granted the motion. Hartwell now appeals.

                                                  II.

       We review de novo a summary judgment ruling. Smith v. Perkins Bd. of Educ., 708 F.3d

821, 825 (6th Cir. 2013) (citation omitted). Summary judgment is proper “if the movant shows

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

matter of law.” Fed. R. Civ. P. 56(a). A fact is material if it would establish or refute an “essential

element[] of a cause of action or defense asserted by the parties[.]” Kendall v. Hoover Co.,

751 F.2d 171, 174 (6th Cir. 1984) (quotation omitted). And a factual dispute is genuine if it is

based on evidence that a reasonable jury could use to return a verdict. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). When reviewing the record, we view the evidence in the light



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most favorable to the nonmoving party and draw all reasonable inferences in the nonmoving

party’s favor. Smith, 708 F.3d at 825 (quotation omitted).

                                                III.

       Hartwell advanced below both an interference theory and a retaliation theory, but she limits

her appeal to the retaliation theory. Under that retaliation theory, Hartwell makes one argument:

that Houghton Lake fired her because of her relationships with her husband and stepchildren.

Hartwell claims that violated her right to intimate association under both the First Amendment and

the Fourteenth Amendment. That raises a threshold question. Does the First or Fourteenth

Amendment (or both) govern Hartwell’s claim? The answer, we conclude, is the Fourteenth

Amendment.

       Hartwell’s right to intimate association stems from Roberts v. U.S. Jaycees, 468 U.S. 609

(1984). There, the Supreme Court held that the choice “to enter into and maintain certain intimate

human relationships must be secured against undue intrusion by the State[.]” Id. at 617–18. But

Roberts left unclear which provision of the Constitution protected that right. As time passed, the

answer became even less clear. Some cases in this circuit looked at the right under the First

Amendment. See Vaughn v. Lawrenceburg Power Sys., 269 F.3d 703, 711 (6th Cir. 2001);

Sowards v. Loudon Cty., 203 F.3d 426, 432 (6th Cir. 2000); Adkins v. Bd. of Educ., 982 F.2d 952,

955–56 (6th Cir. 1993). Others looked to the Fourteenth Amendment. See Flaskamp v. Dearborn

Pub. Sch., 385 F.3d 935, 941–43 (6th Cir. 2004); Anderson v. City of LaVergne, 371 F.3d 879, 881

(6th Cir. 2004); Akers v. McGinnis, 352 F.3d 1030, 1035 (6th Cir. 2003); Corrigan v. City of

Newaygo, 55 F.3d 1211, 1214–15 (6th Cir. 1995). And at least one looked at both. Montgomery

v. Carr, 101 F.3d 1117, 1124 (6th Cir. 1996). Rather than let the confusion continue, we will now

try to shed light on which provision of the Constitution protects the right to intimate association.



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        We start, as we must, with the constitutional text. The First Amendment provides that

“Congress shall make no law . . . abridging the freedom of speech[.]” U.S. Const. amend. I. On

its face, that says nothing about associational rights. But implicitly, it says a lot. An individual

exercises his right to speak most effectively by combining his voice with the voices of others.

Rumsfeld v. Forum for Acad. & Inst’l Rights, Inc., 547 U.S. 47, 68 (2006). And if the government

could restrict an individual’s right to join others to speak, then it could silence the views that the

First Amendment is intended to protect. Id. For those reasons, the expressly guaranteed right to

speak implicitly protects “the right to associate for the purpose of speaking[.]” Id. Intimate

associations are associations of a different kind. Individuals enter intimate associations for

“emotional enrichment” and to independently “define [their] identity.” Roberts, 468 U.S. at 619.

The First Amendment does not expressly protect those interests, so the right to intimate association

does not flow, even implicitly, from the First Amendment’s text.

        Let’s look at the Fourteenth Amendment. There, the Constitution provides that a state must

not “deprive any person of life, liberty, or property, without due process of law[.]” U.S. Const.

amend. XIV. At first blush, that says nothing about the right to intimate association either. But

we are not painting on a blank canvas. The Supreme Court has said that the Due Process Clause

contains a substantive component that protects “fundamental rights” not expressly mentioned in

the Constitution. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846–47 (1992); Roe

v. Wade, 410 U.S. 113, 152 (1973). Those rights include the “certain personal choices central to

individual dignity and autonomy, including intimate choices that define personal identity and

beliefs.”   Obergefell v. Hodges, 135 S. Ct. 2584, 2597 (2015) (citations omitted).              The

Constitution’s text provides little guidance about which rights are fundamental or central to dignity

and autonomy, so courts are left to look at what is “implicit in the concept of ordered liberty” and



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“deeply rooted in this Nation’s history and tradition.” Id. at 2618 (Roberts, C.J., dissenting)

(quoting Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997)) (collecting cases).

       Those principles make clear what Roberts did not: the right to intimate association falls

under the Fourteenth Amendment. Roberts reasoned based on principles of culture and tradition,

autonomy, identity, and ordered liberty. 468 U.S. at 617–20. With the help of contemporary

caselaw, we now know that such reasoning animates substantive due process analysis. We thus

find that Roberts recognized the right to intimate association under the Fourteenth Amendment.

Analysis of Hartwell’s claim must advance accordingly.

       With Hartwell’s claim narrowed to the Fourteenth Amendment, we must decide how to

analyze that claim.1 Our caselaw does not provide a clear answer. In the intimate-association

context, some cases apply a tier of scrutiny. See Zablocki v. Redhail, 434 U.S. 374 (1978); Vaughn,

269 F.3d 703; Montgomery, 101 F.3d 1117. Others do not. See Gaspers v. Ohio Dep’t of Youth

Servs., 648 F.3d 400 (6th Cir. 2011); Sowards, 203 F.3d 426; Adkins, 982 F.2d 952. Perhaps that

divergence is due to the prior confusion about whether the First or Fourteenth Amendment protects

intimate association. The cases that did not apply a tier of scrutiny generally viewed the right

under the First Amendment. See Gaspers, 648 F.3d 400; Sowards 203 F.3d 426; Adkins, 982 F.2d

952. And the cases that did apply a tier of scrutiny often viewed the right under the Fourteenth

Amendment. See, e.g., Zablocki, 434 U.S. 374; Flaskamp, 385 F.3d 935; but see Vaughn, 269

F.3d 703. That distinction would make sense in most contexts. See Thaddeus-X v. Blatter, 175

F.3d 378, 386–88 (6th Cir. 1999) (en banc) (explaining the difference between retaliation claims

under the Due Process Clause and other provisions of the Constitution). Yet we cannot rely on it



1
 Hartwell advocates for a two-part test adopted in A.M. ex rel. Youngers v. N.M. Dep’t of Health,
117 F. Supp. 3d 1220 (D.N.M. 2015). We decline the invitation to stray from Sixth Circuit
precedent to adopt a test from the District of New Mexico.
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Case No. 18-1294, Hartwell v. Houghton Lake Community Schools


here. At least when it comes to the right to marry, this Court held that a claim should be “reviewed

in the same fashion whether advanced on the theory that it violates substantive due process or

advanced on the theory that it violates the First Amendment’s right to intimate association.”

Montgomery, 101 F.3d at 1131.

       To escape the confusion, Hartwell points us to Gaspers. There, this Court homed in on

the tension between the cases that apply a tier of scrutiny and the cases that do not. To ease the

tension, Gaspers sorted the cases into two categories. 648 F.3d at 412–13. The first category

includes challenges to policies, such as a school rule that a married couple cannot work in the same

building. Id. at 413. The second concerns challenges to isolated adverse actions not justified or

authorized by any preexisting policy. Id. Leveraging that distinction, Gaspers suggested that we

should apply a tier of scrutiny to policy cases and should look directly for causation in isolated-

action cases. Id. That seems like a clear answer. Not quite. In an earlier case, this Court was

unpersuaded that “isolated instances of state action should be treated any differently than broad-

ranging state policies.” Montgomery, 101 F.3d at 1127. On first glance, it looks like Gaspers and

Montgomery reach opposite conclusions.

       But further reflection suggests otherwise. Rather than conflicting with precedent, Gaspers

explains how courts look at a subset of cases under the tier-of-scrutiny framework. A refresher on

the analysis helps explain why. When applying a tier of scrutiny, courts are looking for two things:

(1) a governmental interest, and (2) appropriate tailoring. In an isolated-retaliation case, the

plaintiff claims that the motivation for an adverse action was to punish her for exercising her

constitutional rights. That can never be an appropriate governmental interest. Montgomery, 101

F.3d at 1127. So some courts first check whether there are enough facts to support the plaintiff’s

allegations about the state’s motives such that summary judgment is inappropriate. If the answer



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is yes, those courts then skip the remaining analysis for purposes of summary judgment because

the government action cannot survive any tier of scrutiny.2 See id.

        That is an efficient way to resolve cases, but it has some unintended effects. First, it

changes the order of operations. In most circumstances, a court first determines which tier of

scrutiny to apply, next looks for an appropriate governmental interest, and finally checks for proper

tailoring. If a court first checks for a retaliatory motive, then it is starting at the second step. And

if that analysis resolves the summary judgment motion, then it looks like the court did not apply a

tier of scrutiny. As our caselaw shows, that can create doctrinal confusion. That said, we do not

disavow the approach. At the end of the day, the outcome is the same. Plus if the evidence shows

that the state cannot survive any tier of scrutiny, courts can avoid making other unnecessary

decisions. Our aim here is merely to reillumine what has at times been unclear. We always apply

a tier of scrutiny to intimate-association cases when legitimate governmental interests at least

partially motivate a challenged government action.          Montgomery, 101 F.3d at 1128.           But

sometimes we need not apply that framework in detail at the summary judgment stage because

there is enough evidence for a reasonable jury to find that the only motivating factor was

punishment.

        Here, we have an isolated-action case. Hartwell challenges no policy, and Houghton Lake

does not contend that a policy authorized the termination. So we check first whether there is

sufficient evidence for a reasonable jury to find that Houghton Lake’s motivation was to punish

Hartwell for her protected conduct. To do so, we see if Hartwell can show that her protected

conduct was a substantial or motivating factor of the termination. See Sowards, 203 F.3d at 431.



2
 By contrast, that move does not happen in policy cases because we know the plaintiff suffered
an adverse action because of the policy violation. The plaintiff is thus limited to challenging the
constitutionality of the policy, so we proceed directly to applying a tier of scrutiny to that policy.
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If she can make the showing, then the burden shifts to Houghton Lake to prove by a preponderance

of the evidence that it would have fired Hartwell regardless of her relationships. Id.

       Hartwell cannot clear the first hurdle. Houghton Lake fired Hartwell through a school-

board resolution. To justify that decision, the resolution cites the “conclusions and supporting

rationale” in the “administrative recommendation.” The administrative recommendation consists

of two letters. In the first, Peterson recommends firing Hartwell because “her services have been

minimally effective.” In the second, Peterson clarifies that Hartwell resisted feedback, delayed

using an instructional coach in her classroom, placed the school district in legal peril by refusing

to release her stepdaughter to the girl’s biological mother, and interfered with the transfer of the

stepdaughter’s records. Simply put, Houghton Lake fired Hartwell because she performed poorly

inside the classroom and acted inappropriately outside the classroom.

       Hartwell protests that Houghton Lake did not fire other teachers who received poor

evaluations. But for Hartwell, the numbers do not tell the whole story. Unlike other low-

performing teachers, Hartwell’s resistance to feedback suggested she would not improve with

time. Peterson said as much in her deposition. Besides, there is no evidence that other teachers

placed the school in legal peril or interfered with administrative affairs. To the extent that Hartwell

suggests her constitutional rights protected or justified those actions, we disagree.             The

Constitution is not a shield for bad behavior in the workplace. Finally, Hartwell points to King’s

“harassment” of Houghton Lake. That is, King’s phone calls and emails to the school to voice

concerns about Hartwell’s behavior. Those complaints again center on Hartwell’s behavior rather

than her intimate associations, and are thus ultimately too distinct from Hartwell’s protected rights

to show causation. Perhaps recognizing that flaw, Hartwell points to a complaint sent a month

before the termination. She argues that the “temporal proximity alone is enough to show



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[causation.]” Not so. The relevant inquiry is the temporal proximity between the discovery of

protected conduct and an adverse action. See Mickey v. Zeidler Tool & Die Co., 516 F.3d 516,

525 (6th Cir. 2008). The protected conduct here is not King’s complaint, but rather Hartwell’s

familial relationships. And Houghton Lake knew about those relationships before even hiring

Hartwell. In sum, a reasonable jury could not find that Hartwell’s intimate associations were a

substantial or motivating factor of her termination.

       Because a reasonable jury could not find that Houghton Lake fired Hartwell for purely

illegitimate reasons, we proceed with the tier-of-scrutiny analysis. The first step is to decide which

tier to apply. To do so, we examine whether the challenged action directly or substantially

interferes with the right to intimate association. Montgomery, 101 F.3d at 1124 (citing Zablocki,

434 U.S. at 388). If it does, then we apply heightened scrutiny; and if it does not, then rational-

basis review is proper. Id. “Government action has a ‘direct and substantial influence’ on intimate

association ‘only where a large portion of those affected by the rule are absolutely or largely

prevented from [forming intimate associations], or where those affected by the rule are absolutely

or largely prevented from [forming intimate associations] with a large portion of the otherwise

eligible population of [people with whom they could form intimate associations].’” Flaskamp,

385 F.3d at 942 (brackets in original) (quoting Anderson, 371 F.3d at 882). Houghton Lake did

not prevent Hartwell from forming an intimate association. And at most, the action here could be

construed as a prohibition on a teacher marrying the biological parent of a child attending the

school where the teacher works. That subset of the population is too small to qualify as a direct

or substantial interference. See id. at 942–943. So we apply rational-basis review.

       To survive rational-basis review, a government action interfering with the right to intimate

association must be a reasonable means to advance a legitimate governmental interest. Vaughn,



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269 F.3d at 712. “The means chosen need not be the best for achieving these stated ends, but need

only be rational in view of those ends.” Montgomery, 101 F.3d at 1130 (citing Interstate Towing

Ass’n, Inc. v. City of Cincinnati, 6 F.3d 1154, 1166 (6th Cir. 1993)).

       Houghton Lake can clear that low bar. Hartwell’s bad behavior placed the school in legal

jeopardy for failing to release a student to her legal guardian, detracted from the school’s learning

environment, and interfered with the school’s administration. So by firing Hartwell, Houghton

Lake could reasonably advance its interests in avoiding legal risk, improving the learning

environment, and maintaining productivity. Houghton Lake’s decision to fire Hartwell therefore

survives rational-basis review.

                                                IV.

       In sum, Hartwell tried to turn her employment dispute into a constitutional case because

she is married and has children. The Supreme Court has said that the Constitution protects certain

intimate associations. But those protections are not a life vest for bad employees. We AFFIRM.




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