               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 09a0616n.06

                                          No. 08-4318
                                                                                       FILED
                          UNITED STATES COURT OF APPEALS                           Aug 27, 2009
                               FOR THE SIXTH CIRCUIT                          LEONARD GREEN, Clerk



DENNIS HARRIS,                                       )
                                                     )
       Plaintiff-Appellant,                          )
                                                     )
v.                                                   ) ON APPEAL FROM THE UNITED
                                                     ) STATES DISTRICT COURT FOR THE
BUTLER COUNTY, OHIO, BY AND                          ) SOUTHERN DISTRICT OF OHIO
THROUGH ITS SHERIFF’S                                )
DEPARTMENT; RICHARD K. JONES,                        )
SHERIFF,                                             )
                                                     )
       and                                           )
                                                     )
JOHN DOE 1, 2, and 3,                                )
                                                     )
       Defendants-Appellees.                         )
                                                     )
                                                     )

Before: SILER, GIBBONS, and GRIFFIN, Circuit Judges.

     JULIA SMITH GIBBONS, Circuit Judge. Plaintiff-appellant Dennis Harris appeals the

district court’s grant of summary judgment on Harris’s claim of wrongful termination in violation

of the First and Fourteenth Amendments and 42 U.S.C. § 1983. Because the district court did not

err in granting summary judgment, we affirm.

                                                I.

       Harris was hired as a deputy sheriff by Butler County in 1999. Aside from a brief four-month

departure during which Harris held a job outside of the sheriff’s department, Harris worked in the


                                                1
corrections division of the sheriff’s department until his separation in January 2006.

        Defendant Richard Jones was elected Butler County Sheriff in November 2004 and began

his new position in January 2005. Harris received his regular commission from Jones after being

re-sworn in but did not receive a “special commission” that would allow him to carry a gun and to

work additional shifts for outside companies. Harris claims that he attempted to arrange a meeting

with Jones to discuss the special commission but was unable to schedule it. Harris subsequently

happened upon Jones in a hallway and asked why he had not received his special commission.

Harris claims that Jones responded that it was “because you was [sic] out campaigning for Patton.”1

Harris Dep. at 87. Patton was one of Jones’s opponents for the office of sheriff. Harris states that

he denied campaigning for Patton and that Jones responded that “I heard you was [sic] at a fundraiser

. . . and you was [sic] really shoveling it on me and talking bad [about me].” Harris Dep. at 87-88.

Harris asserts that Jones continued to complain that Harris had never campaigned for him and stated

that Harris “should pick [his] friends wiser.” Harris Dep. at 105-106. Harris responded that he did

not campaign for anyone but admitted that he had attended a hog roast fundraiser for former Sheriff

Don Gabbard that was held at Harris’s church. Several days later, Jones told Harris that he had

decided to give him the special commission after his wife had encouraged him to do so.

        The district court clarified the import of this conversation in its order dated September 3,

2008:

        Plaintiff Harris and former Sheriff Gabbard’s family belong to the same church. Also
        involved is another Butler County Deputy Sheriff, Roger Brooks. Brooks is the son-

        1
         Although the parties dispute the content of the conversation, we credit Harris’s version of
the facts because we are reviewing the district court’s grant of summary judgment. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

                                                 2
       in-law of former Sheriff Gabbard and is also Plaintiff Harris’ good friend.
       Apparently there is a long standing hostile relationship between former Sheriff
       Gabbard and Sheriff Jones and their families, which Plaintiff Harris believes
       contributed to Sheriff Jones’ animosity toward him.

Harris v. Butler County, No. 1:07CV069, 2008 U.S. Dist. LEXIS 86385, at *4 (S.D. Ohio Sept.

3, 2008).

       Jones asserts that Harris was not terminated for political reasons but for his admitted

violation of the Butler County Sheriff’s Office associations policy, which prohibits employees from

establishing personal relationships with former inmates for at least twelve months after an inmate

has been released from detention. While admitting that he contacted a former inmate, Harris claims

that he wanted to encourage repeat offenders to improve their lives and stay out of prison in the

future. He obtained contact information from jail records for a former inmate, Tabitha Holland, and

contacted her several times. First, he called Ms. Holland’s home contact number and was told by

her mother that Holland was not there. Another time, Harris called Holland and spoke with her

directly. He identified himself as “Dave Harris,” rather than “Dennis Harris,” and asked to see her.

Holland refused to meet with Harris because she did not know who he was. Harris subsequently

called Holland again and arranged to drive by her home, stopping the car to speak with her for about

five minutes. Harris met with Holland one other time, at which point she entered Harris’s car and

they had a conversation. Harris claims that Holland gave him a brief kiss before exiting the car, but

Holland complained that Harris groped her while she was in his car.

       Holland subsequently reported these contacts to the sheriff’s office, and Harris was brought

in to discuss the allegations with Captain Katie McMahon. Harris admitted to contacting Holland

and the brief kiss but denied any other physical contact with Holland. Captain McMahon informed


                                                 3
Harris that his contacts with Holland violated the department’s associations policy, and he was told

that he could either resign to avoid publicity or that he would be terminated. Harris was given until

the next morning to make his decision. After speaking with his wife and his union steward, Harris

resigned that afternoon rather than waiting until the following morning.

       Harris filed suit, alleging violations of his First and Fourteenth Amendment speech and

association rights as well as procedural and substantive due process violations.2 He made additional

state law claims including violations of his rights to free speech and assembly, retaliatory discharge,

defamation, and tortious interference with an employment relationship. The defendants moved for

summary judgment on all of Harris’s claims, which the district court granted in an order dated

September 3, 2008.

       The district court found that Harris presented no evidence to support his claim of a

substantive due process violation and that he could not establish a procedural due process violation

because his resignation was voluntary and informed. Harris, 2008 U.S. Dist. LEXIS 86385, at *17-

21. The district court also granted summary judgment on Harris’s state constitutional claims, finding

that there is no private right of action to remedy violations of the Ohio Constitution. Id. at *21-22.

Next, the district court found that Harris could not establish a violation of Ohio public policy because

he was not an at-will employee and could not maintain either a defamation or tortious interference


       2
        We note that Harris’s complaint was based upon Sheriff Jones’s direct actions rather than
a theory of respondeat superior. Section 1983 does not permit municipal liability based upon a
theory of respondeat superior. See Miller v. Calhoun County, 408 F.3d 803, 813 (6th Cir. 2005).
“Municipal liability may attach for policies promulgated by the official vested with final
policymaking authority for the municipality.” Id. (citing Pembaur v. Cincinnati, 475 U.S. 469, 482-
83 (1986)). In this case, Sheriff Jones’s personnel management decisions constituted the policy of
Butler County, Ohio.

                                                   4
with employment claim because he presented no evidence that the defendants were contacted by any

potential employers or made any false claims relating to Harris. Id. at *22-27. Finally, the district

court addressed Harris’s claim that he was terminated in retaliation for failing to support Sheriff

Jones, in violation of his federal constitutional rights of free speech and political association. It

found that Harris was unable to establish a prima facie case of retaliation for political speech because

Jones’s actions were based upon his dislike of Harris’s friendships rather than his political leanings.

Id. at *29. In addition, even if Harris could establish a prima facie retaliation case, he could not

survive the burden-shifting analysis because of his admitted violations of the associations policy via

his contacts with Holland. Id. at *31. Harris timely appealed.

                                                  II.

        We review a district court’s grant of summary judgment de novo. Mazur v. Young, 507 F.3d

1013, 1016 (6th Cir. 2007). Summary judgment is warranted if “there is no genuine issue as to any

material fact and . . . the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).

“The district court must draw all reasonable inferences in favor of the nonmoving party.” Skowronek

v. Am. S.S. Co., 505 F.3d 482, 484 (6th Cir. 2007) (citation omitted).

        A plaintiff must establish three elements for a claim of employment-based retaliation: first,

that the employee “engaged in protected conduct”; second, that “an adverse action was taken against

the [employee] that would deter a person of ordinary firmness from continuing to engage in the

conduct”; and third, that “the adverse action was motivated at least in part by the [employee’s]

protected conduct.” Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc) (Moore, J.).3

        3
        Some cases cite a test with four prongs, adding in a second element that the defendant knew
about the plaintiff’s protected conduct. See Thaddeus-X, 175 F.3d at 387 n.3. “This element is

                                                   5
If the plaintiff succeeds in establishing these three elements, then the defendant must show that he

would have made the same decision in the absence of the protected conduct to be entitled to prevail

on summary judgment. See id. at 399.

       The right of political association is well established as falling within the core of activities

protected by the First Amendment. See Sowards v. Loudon County, 203 F.3d 426, 432 (6th Cir.

2000). “Support of a political candidate falls within the scope of the right of political association.”

Id. (citing Elrod v. Burns, 427 U.S. 347, 356-57 (1976)). Although Harris stated in his deposition

that he did not campaign for any of the candidates for sheriff, he had previously attended a political

fundraiser for former Sheriff Gabbard, the sheriff before Jones. Harris also claims that Jones

believed that Harris had campaigned for a political rival, Patton. In addition, Harris did not

campaign for Sheriff Jones and claims that he was berated by Jones for failing to campaign for him.

Therefore, Harris has established the first element of protected conduct for his retaliation claim. See

Sowards, 203 F.3d at 432.

       The second element of the retaliation claim is that the employee suffered a materially adverse

action. “The term ‘adverse action’ is drawn from employment case law; examples in that context

include discharge, demotions, refusal to hire, nonrenewal of contracts, and failure to promote.”

Thaddeus-X, 175 F.3d at 396 (citations omitted). “The Sixth Circuit has consistently held that de

minimis employment actions are not materially adverse and, thus, not actionable.” Bowman v.

Shawnee State Univ., 220 F.3d 456, 462 (6th Cir. 2000) (citations omitted). Harris argues that he

suffered two adverse employment actions: his failure to receive his special commission in a timely


captured by the third prong above: the defendant must have known about the protected activity in
order for it to have motivated the adverse action.” Id.

                                                  6
manner and his effective termination.

       Harris faced a two to three month delay in receiving his special commission, which could be

sufficient to constitute a materially adverse employment action if it caused Harris to suffer a

“material loss of benefits.” See Jordan v. City of Cleveland, 464 F.3d 584, 596 (6th Cir. 2006)

(finding that a “denial of money” qualified as a materially adverse action in a Title VII retaliation

case).4 However, Harris acknowledged in his deposition that the special commission does not entitle

a deputy to additional pay; rather, it allows deputies to perform special “blacktopping details”

directing traffic for outside companies. In Bowman, a ten-day loss of a position which was merely

a title and did not include additional duties or extra pay was not held to be a materially adverse

employment action in a Title VII case. 220 F.3d at 462. In Smith v. County of Hamilton, a loss of

opportunity for compensatory time was not held to constitute an adverse employment action. 34 F.

App’x 450, 456 (6th Cir. 2002). Given the temporary nature of the delay in receiving the special

commission and a lack of direct effect on Harris’s level of pay, we find that the temporary delay in

receiving his special commission did not constitute a material adverse employment action. See

Freeman v. Potter, 200 F. App’x 439, 442 (6th Cir. 2006) (finding that a material adverse

employment action generally “inflicts direct economic harm”) (emphasis added).

       Harris next argues that he meets the second prong of his retaliation claim through his

effective termination. Although Harris submitted a letter of resignation, he did so under the threat

of immediate termination if he chose not to resign. Generally, employee resignations are presumed


       4
         Although retaliation claims arise in a variety of constitutional and statutory contexts, “the
essential framework remains the same” despite the variations that can arise in different bodies of
statutory law. See Thaddeus-X, 175 F.3d at 386-87.

                                                  7
to be voluntary. See Rhoads v. Bd. of Educ., 103 F. App’x 888, 895 (6th Cir. 2004) (citing Leheny

v. City of Pittsburgh, 183 F.3d 220, 227 (3d Cir. 1999)). We have found, however, that an

employee’s resignation may constitute a constructive discharge when the employee reasonably

believed his termination to be imminent. See Ford v. Gen. Motors Corp., 305 F.3d 545, 554 (6th

Cir. 2002).   Although it is debatable whether Harris has met his burden of demonstrating

constructive discharge, we need not decide whether Harris has satisfied the second prong of his claim

of employment-based retaliation because the third element is dispositive. See, e.g., Mullins v. U.S.

Bank, 296 F. App’x 521, 526 (6th Cir. 2008) (assuming plaintiff showed an adverse employment

action when she was unable to satisfy later elements of the claim); Holley v. Giles County, 165 F.

App’x 447, 451-52 (6th Cir. 2006) (assuming without deciding that plaintiff’s resignation constituted

a constructive termination and therefore an adverse action).

       Harris is unable to meet the third prong of demonstrating that the adverse employment action

was motivated at least in part by his protected conduct. This element requires a causal connection

between the employee’s protected conduct and the adverse action taken against him. See Thaddeus-

X, 175 F.3d at 394. Harris cannot show that his political affiliation was a substantial or motivating

factor for the resignation because he has not demonstrated a link between his resignation and his lack

of political support for Sheriff Jones. See Kreuzer v. Brown, 128 F.3d 359, 363 (6th Cir. 1997)

(requiring that it be a motivating factor). Indeed, Harris admitted violating the associations policy

and knew that a violation of the associations policy would result in termination. Harris’s belief that

he was terminated for political reasons is insufficient to demonstrate the causal connection required

to establish a claim of retaliation. See Coffey v. Chattanooga-Hamilton County Hosp. Auth., No. 98-



                                                  8
6230, 1999 U.S. App. LEXIS 25187, at *13 (6th Cir. Oct. 6, 1999) (unpublished) (finding that

“rumors, conclusory allegations and subjective beliefs” are insufficient to defeat a motion for

summary judgment) (citing Mitchell v. Toledo Hosp., 964 F.2d 577, 585 (6th Cir. 1992)).

        Finally, even if Harris could establish a prima facie case of retaliation, he would be unable

to survive the burden shifting portion of the analysis. “If the plaintiff meets [his] burden, the burden

then shifts to the defendants to prove by a preponderance of the evidence that the employment

decision would have been the same absent the protected conduct.” Sowards, 203 F.3d at 431

(citation omitted). Butler County has presented evidence that Harris’s admitted violation of the

associations policy led to his resignation and that Harris therefore would have been asked to resign

or be terminated even if he had not engaged in any protected conduct. Harris also stated that he

knew he could be terminated for his contacts with Holland. Butler County’s interest in preventing

exploitative relationships between its employees and former inmates constitutes a legitimate reason

supporting Harris’s termination. Harris has not come forward with evidence permitting the trier of

fact to conclude that Butler County would not have terminated him absent protected conduct on

Harris’s part. See Garvey v. Montgomery, 128 F. App’x 453, 463 (6th Cir. 2005) (holding that

evidence of misconduct or a “deficient work performance record” precluded the plaintiff from

establishing a genuine issue of material fact such that a reasonable juror could find for the plaintiff);

Driggers v. City of Owensboro, 110 F. App’x 499, 511 (6th Cir. 2004) (finding that a legitimate

internal investigation of a police officer’s conduct could not suffice to demonstrate retaliation at the

prima facie stage or as evidence of pretext).

                                                  III.



                                                   9
        For the first time on appeal, Harris raises a claim that he was terminated because of his close

friendships with members of the Gabbard family, who were disliked by Sheriff Jones. As a threshold

matter, Harris has waived this claim by failing to raise it below. “Issues that are not squarely

presented to the trial court are considered waived and may not be raised on appeal.” O’Bryan v.

Holy See, 556 F.3d 361, 375 (6th Cir.), petition for cert. filed, 77 U.S.L.W. 3645 (U.S. May 7, 2009)

(No. 08-1384) (quoting Thurman v. Yellow Freight Sys., 90 F.3d 1160, 1172 (6th Cir. 1996)). Even

if Harris had not waived the claim, his right of intimate association claim is properly characterized

as duplicative of his retaliation claim rather than as a separate claim. See Henley v. Tullahoma City

Sch. Sys., 84 F. App’x 534, 543 (6th Cir. 2003) (finding that in order to maintain a separate freedom

of association claim, a plaintiff must show that the adverse action would have been constitutionally

impermissible even if the defendants did not have a retaliatory motive). In Henley, the plaintiffs

were prevented from playing on their school’s basketball team and alleged that it was in retaliation

for their parents’ complaints. The panel found that excluding the plaintiffs from the basketball team

was not constitutionally impermissible absent a retaliatory motive because it did not “unduly

intrude[] on their familial relations or friendships.” Id. The defendants’ actions in that case did not

interfere with the plaintiffs’ intimate associations but were instead collateral effects of the

defendants’ alleged retaliation. Id; see also Sowards, 203 F.3d at 433 n.2 (“[I]t is clear that . . . the

right of intimate association is protected only where the plaintiff alleges an undue interference with

a protected intimate relationship.”). Likewise, Harris’s termination would not be constitutionally

impermissible if made with a pure motive. A termination of employment cannot be characterized

as an action that is likely to constitute an “undue intrusion” into the intimate associations of the



                                                   10
terminated employee. See Adkins v. Bd. of Educ., 982 F.2d 952, 956 (6th Cir. 1993) (quoting

Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984)). Therefore, we find that Harris is

unable to establish a separate freedom of association claim and to avoid summary judgment on that

basis. See Henley, 84 F. App’x at 543-44; Ward v. Athens City Bd. of Educ., No. 97-5967, 1999

U.S. App. LEXIS 22766, at *15-20 (6th Cir. Aug. 11, 1999) (finding that plaintiffs could not

establish a First Amendment freedom of association claim where the claim was not based on

interference by the school board in their family relations).

                                                 IV.

       For the foregoing reasons, we affirm the district court’s grant of summary judgment to the

defendants.




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