                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0609n.06

                                           No. 09-3316                                   FILED
                                                                                     Sep 14, 2010
                          UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


GREGORY T. KELLY,                                )
                                                 )
       Plaintiff-Appellant,                      )
                                                 )
v.                                               )      ON APPEAL FROM THE UNITED
                                                 )      STATES DISTRICT COURT FOR THE
WARREN C OUNTY BOARD OF                          )      SOUTHERN DISTRICT OF OHIO
COMMISSIONERS; THOMAS ARISS;                     )
RACHEL A. HUTZEL; FRANK YOUNG;                   )
and ERIK TONSTAD,                                )
                                                 )
       Defendants-Appellees.                     )




       Before: BATCHELDER, Chief Judge; MOORE and COOK, Circuit Judges.


       COOK, Circuit Judge. Gregory Kelly sued the Warren County Board of Commissioners

(Board), Sheriff Thomas Ariss, and Prosecutor Rachel Hutzel for First Amendment retaliation after

the Board refused to hire him as a 911 dispatcher. The district court granted the defendants summary

judgment. Kelly now appeals, asserting that he provided sufficient evidence to permit a reasonable

jury to conclude that: (1) the Board’s refusal to hire him constituted First Amendment retaliation;

and (2) Ariss and Hutzel violated Kelly’s First Amendment rights by contacting South to express

concern over Kelly’s hire. Because Kelly failed to make a prima facie showing of First Amendment

retaliation against any of the defendants, we affirm.
No. 09-3316
Kelly v. Warren County Board of Commissioners


                                               I.


       Kelly worked as a 911 operator for Warren County for approximately four years during the

late 1980s. Department supervisor Frank Young recalled Kelly as an “outstanding communications

officer.” Kelly began his law enforcement career in 1989 and for eight years worked as a police

officer for Hamilton Township under the auspices of the Warren County Sheriff’s Department. As

Warren County Sheriff, defendant Ariss reviewed Kelly’s 1995 application to become a full-time

deputy and determined that Kelly’s background left him unsuited for the job.


       Kelly’s propensity to clash with supervisors repeatedly jeopardized his employment status,

leading to numerous job changes over the years that followed. While working as a police officer,

he complained about dishonesty and cover-ups within the Hamilton Township Police

Department—including one episode in which a fellow officer put a gun to Kelly’s head—and filed

suit against Police Chief Eugene Duvelius and the Township in 1999. Kelly alleged that Duvelius

threatened to fire him in violation of the First Amendment for exposing the Department’s

shortcomings. The parties settled in early 2000. The Village of Lynchburg hired Kelly as a police

officer in 2001, but terminated him in early 2002 after he accused the police chief of destroying

evidence and assaulting a juvenile. Kelly’s next employer, CSX Railroad, terminated him after he

allegedly threatened a hearing officer.


       Upon losing his job with CSX, Kelly contacted Young and asked if he might return to work

as a 911 dispatcher. He revealed the two misdemeanors in his record and warned that Sheriff Ariss

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might try to interfere with his hire because he campaigned for Ariss’s opponent in the recent election.

Young nonetheless recommended Kelly’s hire in early January 2005.                 The Board’s three

Commissioners, who together constitute the appointing authority for the County’s 911 dispatchers,

unanimously approved Young’s recommendation subject to a background check.


       Within a few days, Commissioner Pat South received separate phone calls from Ariss and

Prosecutor Hutzel expressing concern about Kelly’s potential hire. Ariss told South that hiring Kelly

would “not be a very good idea.” The Sheriff remained concerned about Kelly’s trustworthiness and

recommended that the Commissioners perform a thorough background check. Hutzel relayed

limited information to South about Kelly’s prior run-ins with Duvelius—all of which South later

acknowledged she learned about from contemporaneous newspaper reports—and, like Ariss, advised

the Board to look into Kelly’s background. South reassured Ariss and Hutzel that the Board would

review the results of a background check, as Board procedures dictated.


       The Commissioners met in executive session to review the background documents collected

by the County’s Human Resources Department, which exposed Kelly’s two misdemeanor

convictions: one arising from Kelly’s ongoing disputes with neighbors; the other from a physical

altercation between Kelly and an individual angry with Kelly’s then-girlfriend. In deposition, each

Commissioner revealed what prompted his or her decision to rescind the provisional employment

offer. Although she did not remember the specific charges, Commissioner South recalled reading

about Kelly fighting with someone, noted that the word “gun” appeared in the reports, and expressed


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concern over Kelly’s numerous conflicts with law enforcement. She also recollected learning that

Kelly intimidated his female co-workers. Commissioner Mike Kilburn, Kelly’s family friend who

supported him in employment endeavors in the past, cited Kelly’s past problems with law

enforcement and remembered a particular altercation with a Hamilton Township police officer

involving a gun. Kilburn recalled details of two incidents between Kelly and his neighbors resulting

in one of Kelly’s misdemeanor convictions for aggravated menacing and assault. Commissioner

David Young noted Kelly’s several incidents with police (also recalling a gun’s involvement) and

expressed concern over past conflicts with local police departments where Kelly worked, including

the Hamilton Township Police Department, though Young could not remember details. Young also

disclosed his discomfort with Kelly’s interactions with the Commissioner’s brother, Warren, who

Kelly called and asked to put in a “good word” for him. The Commissioners determined that Kelly’s

misdemeanor convictions and employment history made him ill-suited for the position, which, due

to the heavy reliance placed on dispatchers by law enforcement officers, required a high degree of

trust. This conclusion prompted them to rescind their employment offer by unanimous vote.


       Kelly sued the Board, Ariss, and Hutzel under 42 U.S.C. § 1983, alleging that his previous

lawsuit against Police Commissioner Eugene Duvelius and support of Ariss’s political

opponent—both activities protected by the First Amendment—motivated the Board’s decision. The

Board responded that Kelly’s checkered background, not his protected speech, persuaded it of

Kelly’s unfitness to serve as a dispatcher. Following discovery, the district court granted summary

judgment to all defendants. Though the court found that Kelly’s actions constituted protected

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conduct, and that the Board perpetrated an adverse employment action when it refused to hire him,

it concluded that Kelly did not present sufficient evidence to support the contention that his protected

conduct motivated the Board’s decision. The court also granted Ariss and Hutzel summary

judgment, finding that qualified immunity protected them from suit in their individual capacities,

and that Kelly failed to provide sufficient evidence of retaliation to hold them liable in their official

capacities. Kelly timely appealed.


                                                   II.


        We review the district court’s grant of summary judgment de novo, affirming if the evidence,

viewed in the light most favorable to Kelly, demonstrates that no genuine issue exists as to any

material fact and that the defendants are entitled to judgment as a matter of law. Village of Oakwood

v. State Bank & Trust Co., 539 F.3d 373, 377 (6th Cir. 2008).


A.      First Amendment Retaliation Claim Against the Board1


        To establish a prima facie case of First Amendment retaliation against the Board under §

1983, Kelly must establish that: (1) he engaged in protected conduct; (2) he suffered an adverse

action likely to chill a person of ordinary firmness from continuing to engage in the protected



        1
         Because Kelly’s claim against the Board fails on the merits, we proceed as if Kelly presented
sufficient evidence of a county policy or custom underlying the Board’s refusal to hire him to satisfy
the Monell policy or custom requirement. See Monell v. New York Dept. of Soc. Servs., 436 U.S.
658, 691 (1978).

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activity; and (3) his protected conduct was a substantial or motivating factor in the adverse action.

Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). When a potential public

employee seeks to demonstrate protected conduct in the First Amendment retaliation context, he

must show that the speech touched on a matter of public concern. Connick v. Myers, 461 U.S. 138,

145–49 (1983). If Kelly makes the prima facie showing, the burden shifts to the Board. Mt. Healthy

Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). The Board may defeat Kelly’s claim by

showing either that, under the balancing test established by Pickering v. Board of Education, 391

U.S. 563, 568 (1968), the Board’s legitimate interest in regulating employee speech to maintain an

efficient workplace outweighed Kelly’s First Amendment rights, Connick, 461 U.S. at 150, or that

under the mixed-motive analysis established by Mt. Healthy, 429 U.S. at 287, it would have

rescinded Kelly’s offer even absent his protected conduct, id.


       Kelly’s failure to establish that his protected conduct motivated the Board’s decision to

rescind its offer dooms his retaliation claim. Mt. Healthy, 429 U.S. at 287. No direct evidence exists

that the Commissioners considered Kelly’s protected conduct when they decided to rescind their

employment offer. In an attempt to show causation, Kelly questions how the Board could have

placed so much weight on his misdemeanor convictions, which he calls “minor disputes arising from

personal issues,” both of which occurred more that five years prior to the Board’s hiring decision and

resulted from his negative relationship with the Warren County Prosecutor’s Office. He doubts that

his background could have caused the Board to rescind its offer when both Frank Young and

Commissioner Kilburn knew of his misdemeanor record, and allegedly deemed it “insignificant.”

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He avers that jurors could easily find that Ariss’s and Hutzel’s conversations with Commissioner

South negatively influenced the Board. But Kelly presented insufficient evidence to raise an

inference of causation and his mere speculation does not create a genuine issue of material fact to

overcome summary judgment. See Hartsel v. Keys, 87 F.3d 795, 801–02 (6th Cir.1996) (conclusory

statements, subjective beliefs, or intuition cannot defeat summary judgment).


       Indeed, direct evidence reveals that neither of Kelly’s two protected activities—campaigning

for Ariss’s opponent and suing Duvelius—prompted the Board to rescind its offer. All of the

Commissioners consistently testified that Kelly’s run-ins with law enforcement and his history of

rocky employment relationships led them to question whether he could perform well as a 911

dispatcher. Only Commissioner Young’s acknowledgment that he considered Kelly’s negative

employment relationship with the Hamilton Township Police Department in evaluating Kelly’s

background arguably supports Kelly’s claim. Yet, two other Commissioners considered only

unquestionably proper information.2 And because only two Commissioners needed to vote to


       2
         The dissent concedes that no causal connection exists between Kelly’s protected activities
and South’s vote against his hire for the dispatch position. The dissent argues, however, that “the
vague statements of Commissioner[] Kilburn . . . leave open the possibility that [he] considered not
only that Kelly had a negative relationship with the Hamilton Township Police Department because
he had quit and had an altercation with an officer, but also that Kelly had previously sued the
Hamilton Township Chief of Police.” Dissent at 7. We respectfully disagree that Kilburn made
“vague statements” open to such varying interpretations. In discussing the reasons the
Commissioners declined to hire Kelly, Kilburn identified the incident he deemed problematic.
Kilburn Dep. at 24–25. Though he did not “really recall all the specifics,” he did recall that “there
could have been a gun involved.” Id. This statement refers to Kelly’s allegation that another police
officer put a gun to Kelly’s head. Notably, Kilburn never referred to the lawsuit against Duvelius.


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rescind their offer, Young’s admission alone (which itself remains vague enough to label it an

evaluation of his past employment, not his protected conduct) cannot render the Board’s decision

unconstitutional.


        Kelly attempts to overcome the direct evidence against him with circumstantial evidence that,

he contends, permits an inference of unconstitutionality. Barrett v. Harrington, 130 F.3d 246, 263

(6th Cir.1997) (finding “inferences raised by the evidence . . . sufficient to create a question of fact

and avoid summary judgment” where the record statements “reveal the possibility that . . .

[defendant] did have a retaliatory motive”). He urges the court to reverse summary judgment by

inferring unconstitutional motives from the Board’s failure to (1) treat him like other potential hires

and (2) follow regular procedures.


        First, Kelly points to Lori Jones’s re-hire following her discharge for violating an internal

policy—specifically, fraternizing with an inmate—as evidence of different treatment, implying an

unconstitutional motive. Though disparate treatment can give rise to an inference of unlawful

motives, Arnett v. Myers, 281 F.3d 552, 560–61 (6th Cir. 2002), Kelly’s attempted comparison

misses the mark. Jones violated policy, but did not give the Board cause to believe that she could

not be trusted while working with law enforcement in Warren County. Though the Board might

doubt her trustworthiness as a prison guard, her past indiscretion says nothing about her ability to

perform 911 dispatcher duties. By contrast, Kelly’s background check and employment history




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prompted the Board to believe that he could not establish the required trust with the law enforcement

personnel who would rely on him for their safety.


       Second, Kelly contends that the Board strayed from its stated policies, holding him to a

higher standard. See Village of Arlington Hts. v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267

(1977). He highlights the fact that the job application form does not ask about misdemeanors and

that Frank Young’s recommendation usually suffices as a basis for the Board to hire an applicant,

but it did not for him. No one disputes that the Board’s policy dictated that it hire a candidate

provisionally, subject to a background check. The provisional-hire policy afforded the Board a

safety valve, allowing it to reject candidates whom, though recommended and conditionally hired

at the urging of a supervisor, the background check disqualified. Even if the Board confirmed all

previous individuals’ provisional employment offers after looking into their background, its failure

to do so here does not evidence a departure from normal procedure unless Kelly demonstrates that

background checks of other candidates revealed similarly disconcerting information, a showing he

fails to make.


       Without direct or circumstantial evidence to create a genuine issue of material fact as to the

causation element, Kelly’s First Amendment retaliation claim against the Board fails.




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B.      First Amendment Retaliation Claims Against Ariss and Hutzel3


        Kelly similarly fails to make a prima facie showing of First Amendment retaliation in his suit

against Ariss and Hutzel, the individuals who cautioned South against hiring Kelly, because he does

not show “an adverse action by [Ariss and Hutzel] . . . that would deter a person of ordinary firmness

from continuing to engage” in the protected activity. See Fritz v. Charter Twp. of Comstock, 592

F.3d 718, 723 (6th Cir. 2010). The only adverse action Kelly complains of is the Board’s refusal to

hire him. Ariss and Hutzel counter that they cannot be liable for the Board’s decision because the

Board possessed final hiring authority. Although a recent Sixth Circuit case forecloses their

argument, the standard that case establishes proves fatal to Kelly’s claim nonetheless. See id. at

726–28.


        In Fritz, this court decided a “close” case involving a public official who encouraged a

private employer to terminate someone because of her protected conduct. The court noted that a

public official need not have the direct authority to make employment decisions in order for his

actions to qualify as adverse. Id. at 726. It evaluated instead the official’s ability to exercise control

over the employer’s business, finding that the public official’s comments in Fritz qualified as “‘a

threat to take action tangibly affecting employment status.’” Id. at 728 (quoting Samad v. Jenkins,



        3
         Kelly sued Ariss and Hutzel in their official and individual capacities. Though the district
court resolved the individual- and official-capacity claims on different grounds, both claims require
Kelly to make the three-part prima facie showing to prevail. Because he fails to do so, we need not
differentiate between the two claims.

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845 F.2d 660, 663 (6th Cir. 1988)). The court decided that the public official’s “power to

substantially affect [the plaintiff’s] ability to do business in [the area] through [his] role in enacting

township ordinances and making zoning decisions” made the threat credible and would deter a

person of ordinary firmness from engaging in the protected conduct. Id. at 726. Unlike the

defendants in Fritz, Ariss and Hutzel lacked power to affect the Board’s decisions. Though Kelly

alleges that personal, social, or familial relationships gave Ariss’s and Hutzel’s recommendations

extra weight, he does not substantiate the claim in any cognizable way. Thus, even if Ariss and

Hutzel expressly encouraged South to vote against Kelly’s hire because of his protected conduct, and

the Board did just that, Kelly fails to present evidence that either individual held sufficient influence

over the Board to deter a person of ordinary firmness from exercising his free expression rights.


        This influence analysis allows us to easily distinguish the two cases upon which Kelly relies

to demonstrate Ariss’s and Hutzel’s liability. In Worell v. Henry, 219 F.3d 1197 (10th Cir. 2000),

a police officer, without whom a drug task force could not operate, wielded his influence to

unconstitutionally prevent the hire of another officer. Id. at 1202. The court found the adverse

action element of the plaintiff’s prima facie case met because the influential officer “caused” the

supervisor to rescind his employment offer. Id. at 1213. Similarly, in Helvey v. City of Maplewood,

154 F.3d 841 (8th Cir. 1998), a city manager with control over liquor licenses told a bar owner to

fire an employee for testifying against the city’s police officers. Id. at 843. The court found that the

employee’s allegations that the city manager used his regulatory authority to coerce the employee’s

termination were sufficient to create a factual dispute and avoid summary judgment. Id. at 844.

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      Unable to prove the second prima facie element, Kelly’s claims against Ariss and Hutzel fail.


                                               III.


      We affirm the district court’s grant of summary judgment to all defendants.




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       KAREN NELSON MOORE, Circuit Judge, dissenting in part and concurring in the

judgment in part. I dissent from Part II.A of the majority opinion because I believe that the facts

viewed in the light most favorable to Kelly demonstrate that he has shown that a genuine issue of

material fact exists regarding whether the Commissioners improperly considered Kelly’s exercise

of his First Amendment rights.


                     I. FIRST AMENDMENT RETALIATION CLAIM
                                    AGAINST THE BOARD


       Because I think that Kelly has presented a genuine issue of material fact as to causation and

that the Board is not entitled to summary judgment, I dissent from Part II.A and would allow Kelly’s

municipal-liability claim to proceed against the Board.


       I disagree with the majority opinion’s conclusion that Kelly cannot satisfy the third element

of his prima facie case because he has presented only “mere speculation.” Slip op. at 7. Kelly claims

that the statements Ariss and Hutzel made to Commissioner South were retaliatory interferences with

his employment process and constituted an adverse action because it “would be likely to chill a

person of ordinary firmness from engaging in protected activity.” Appellant Br. at 38. Although I

agree that Kelly has not shown that Ariss and Hutzel had sufficient influence to affect the hiring

process in their own right, I believe that Kelly has presented a genuine issue of material fact

regarding Hutzel’s influence—although the alleged statements to South did not persuade South, it

is unclear whether the other members of the Board relied solely on the information obtained through

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Kelly v. Warren County Board of Commissioners


an independent background check conducted by the County’s Human Resources Department (“HR”).

As reflected in the resolution to hire Kelly provisionally, the Board had already decided to make

Kelly’s employment subject to a background check prior to the alleged interferences by Ariss and

Hutzel. If the Board merely followed through with this plan, then any statements made in the interim

before the background check was reviewed would not be motivating if the Board ultimately relied

on the background check without reference to the additional concerns that Ariss and Hutzel raised.

However, this remains a disputed question of material fact.


       I believe that a more thorough review of the depositions in the record supports Kelly’s

contention of an inference of causation. South testified at her deposition that after the Board passed

the resolution to hire Kelly provisionally, she received phone calls from Ariss and Hutzel, and she

passed Ariss’s and Hutzel’s general concerns on to HR, telling Dan Arnold, the HR Director, that

“I had received phone calls over the weekend from both Mrs. Hutzel as well as Sheriff Ariss

encouraging us to make sure we looked thoroughly at the background check, and told him to make

sure that we did a thorough one and to bring the background check to our Board when he got it

done.” Dist. Ct. Doc. (“Doc.”) 23 (South Dep. at 15–16). The majority opinion neglects this

information and also the additional fact that South also stated that prior to the Board’s executive

session to discuss Kelly’s background check, she had


       shared that information [her conversations with Ariss and Hutzel] with my colleagues
       [Commissioners Kilburn and Young] right after . . . when I spoke with Mr. Arnold
       to make sure that he did a thorough background check. I think I shared with my
       colleagues at that time that I had received telephone calls from both the Prosecutor

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       and the Sheriff, and that I had asked Dan Arnold to make sure he did a thorough
       background check and bring it to us.


Id. at 37–38. According to South’s recollection, the Board received Kelly’s background check from

Arnold and discussed it in an executive session with the three Commissioners, Arnold, Bruce

McGary (legal counsel), Bob Price (County Administrator), and Frank Young (“F. Young”) present.

Id. at 21–22. There are no minutes for executive sessions. Id. at 51.


       Commissioner Kilburn had only vague recollections of the discussions surrounding Kelly’s

application, but he remembered that parts of Kelly’s background check indicated that Kelly

previously had confrontations with law enforcement and had contacted Commissioner Young’s

brother to recommend him for the job, which caused some concern regarding Kelly’s fitness for the

position. Doc. 24 (Kilburn Dep. at 14–43). Kilburn stated that Ariss had not talked to him about

Kelly’s hiring potential, noting that Ariss “doesn’t have that much clout to [dictate hiring decisions]

for any County Department.” Id. at 44.


       Commissioner Young had a better recollection of the reasons the Board chose not to hire

Kelly, stating that “[e]ssentially what came to light post-hiring were a couple factors that made me

change my mind,” including that “upon the background check we saw there had been several

incidents involving Mr. Kelly and the police[ and s]everal of those actually involved guns,” that

“there has been a conflict with a previous employer here in the County, Hamilton Township Police

Force,” and “thirdly, which was not as big a factor but a factor in the back of my mind, Mr. Kelly


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went and visited my brother, who he knew, and kind of put my brother on the spot, and said ‘Hey,

I have one commissioner’s vote and one against me and your brother will decide if I get a job or not.’

. . . I personally did not really like that.” Doc. 25 (D. Young Dep. at 11–12). Young reasserted that

“honestly, the main thing was seeing someone coming in to work with law enforcement that had

problems with an agency inside the County and the fact there had been run-ins with the police, and

a big thing was it involved guns in some way.” Id. at 12, 20. Young believed that Ariss had been

present in the executive session with the three Commissioners, McGary, and possibly Price, but he

could not remember if anyone else was present. Id. at 15–16, 22–23. Young had not discussed

Kelly’s potential employment outside of the executive session with anyone other than a quick phone

call with his brother when his brother conveyed Kelly’s request for a recommendation. Id. at 18, 20,

26, 30.


          Ariss testified that he “did not really get involved other than I passed on to the commissioner

— I talked to Pat South and said, ‘I hear Kelly has an application in. Do a background, do a

background’” because Ariss “ha[d] no authority other than to say, ‘Do a background.’” Doc. 26

(Ariss Dep. at 45, 49). Ariss also talked to Hutzel because they had the same concerns about Kelly’s

background and because Ariss saw Hutzel as “my legal advisor within the County.” Id. at 47, 49–50.

Ariss did not recall talking to anyone else concerning Kelly. Id. at 51–52.


          F. Young testified that his recollection of the meeting was that the Commissioners, McGary,

and Arnold discussed the results of Kelly’s background check and were concerned that Kelly would


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not be able to garner the level of trust and confidence required between law enforcement and

dispatchers for an effective working relationship. Doc. 28 (F. Young Dep. at 85–89). F. Young

testified that after the background check was done, Ariss had contacted him and expressed that he

would be concerned if Kelly was a dispatcher, and F. Young “listened to what the Sheriff had to say”

because he cared about what the Sheriff had to say “[o]n that particular issue.” Id. at 82–85, 90. But

F. Young was not sure whether Ariss or HR had first brought Kelly’s background check issues to

his attention. Id. at 106–07.


       Kelly testified that his cousin Heath Kilburn had heard from Commissioner Kilburn, Heath’s

first cousin, that Ariss and Warren Young (Commissioner Young’s brother) “were making things

difficult on [Kelly].” Doc. 21 (Kelly Dep. I at 282–89, 478–79). Kelly’s understanding was that “it

was the sheriff, Tom Ariss, who I had campaigned against in support of my cousin, Heath Kilburn,

who had run for sheriff, had made reference to me committing some type of act with a firearm” and

that Warren Young previously had some conversation with Commissioner Young that influenced

Young to desire that Kelly not receive a position. Id. Kelly acknowledged that his employment was

contingent on a satisfactory drug test and background check, id. at 473–74, but he believed that his

background check had no impact on the employment decision, id. at 480–81. Kelly testified that

South explained to him that the reason he was not hired “was because of a misdemeanor.” Doc. 22

(Kelly Dep. II at 193, 196).




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        In the employment-discrimination context, this court has recognized that “when a plaintiff

challenges his termination as motivated by a supervisor’s discriminatory animus, he must offer

evidence of a ‘causal nexus’ between the ultimate decisionmaker’s decision to terminate the plaintiff

and the supervisor’s discriminatory animus.” Madden v. Chattanooga City Wide Serv. Dep’t, 549

F.3d 666, 677 (6th Cir. 2008). The causal nexus is lacking if the ultimate decision “was based on

an independent investigation” and the plaintiff “presented no evidence that the supervisor’s

discriminatory animus had influenced the decision.” Id. at 678. The plaintiff must show that “[b]y

relying on this discriminatory information flow, the ultimate decisionmakers acted as the conduit of

the supervisor’s prejudice—his cat’s paw.” Id. (internal quotation marks and alterations omitted);

see Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990). In this context, the fact that an

independent investigation was conducted may not be sufficient to break the causal chain if the

evidence supports that the bias-tainted information played an influential role. See Madden, 549 F.3d

at 677–79; Noble v. Brinker Int’l, Inc., 391 F.3d 715, 723 (6th Cir. 2004) (noting further that the

plaintiff “presented no evidence that [the tainted person’s] alleged opinions or attitudes influenced

[the ultimate] decision to terminate the plaintiff or otherwise caused the plaintiff’s discharge”), cert.

denied, 546 U.S. 821 (2005). “[M]ere knowledge” of another’s ill-perceptions of a plaintiff, and the

plainitiff’s “mere speculation” that the ill-perceptions must have been transmitted to the

decisionmaker in a way that contaminated the decisionmaker, is insufficient for a causal nexus. Id.

at 723–24.




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       I agree that Kelly has failed to satisfy his burden to survive summary judgment for his first

claim related to his campaign activities. No Commissioner cited Kelly’s campaign activities, or the

Sheriff’s potential dislike for Kelly, as a reason not to hire Kelly permanently. But the record clearly

supports that a genuine issue of material fact exists regarding Hutzel’s statements related to Kelly’s

suit against Chief Duvelius. The majority fails to acknowledge that both Commissioner Kilburn and

Commissioner Young indicated that they considered Kelly’s past turbulent employment relationship

with the Hamilton Township Police Department. Doc. 24 (Kilburn Dep. at 24–25); Doc. 25 (D.

Young Dep. at 11–12). Although South did not indicate that she considered Kelly’s prior

relationship with the Hamilton Township Police Department, South stated that anything Hutzel may

have told her about the incident with Chief Duvelius she had already known from reading newspaper

reports, Doc. 23 (South Dep. at 12-13), which negates any causal connection between Hutzel’s

statements and South’s decision. But because the background-check documents, other than the

criminal-history report, were not included in the record on appeal (and did not seem to be before the

district court), the vague statements of Commissioners Kilburn and Young leave open the possibility

that they considered not only that Kelly had a negative relationship with the Hamilton Township

Police Department because he had quit and had an altercation with an officer, but also that Kelly had

previously sued the Hamilton Township Chief of Police. Neither Kilburn nor Young stated how they

acquired their knowledge of Kelly’s relationship with the Hamilton Township Police Department,

and a reasonable jury could infer that they learned of the information from South who conveyed that

Hutzel had highlighted this relationship. Doc. 23 (South Dep. at 37-38).


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        Therefore, I would conclude that the district court erred in concluding that Kelly has not

presented a genuine issue of material fact and cannot prove his prima facie case of retaliation. I

dissent from Part II.A and would reverse the district court’s summary-judgment order and remand

for further proceedings.


                     II. FIRST AMENDMENT RETALIATION CLAIMS
                                AGAINST ARISS AND HUTZEL


        I concur in the majority’s judgment in Part II.B upholding summary judgment in favor of

Ariss and Hutzel based on Fritz v. Charter Township of Comstock, 592 F.3d 718, 725–28 (6th Cir.

2010). I write separately to note that favorable precedents would support Kelly’s claim at the

summary-judgment stage if he had provided more information related to Hutzel’s potential direct

influence on Commissioners Kilburn and Young. See Harris v. Bornhorst, 513 F.3d 503, 518–20

(6th Cir.) (reversing summary judgment and holding adverse-action causation element satisfied by

Marine Corps’s testimony that prosecutor’s statement deterred the Corps from proceeding with

plaintiff’s employment application), cert. denied, 128 S. Ct. 2938 (2008); see also Paige v. Coyner,

— F.3d —, 2010 WL 2976052, at *6–9 (6th Cir. 2010) (reversing grant of motion to dismiss and

holding that plaintiff’s private employer’s specific reference to government officer’s allegations

against plaintiff in the private employer’s decision to fire plaintiff satisfied adverse-action causation

element in plaintiff’s action against the port authority and board of commissioners).




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