                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0448n.06

                                         Case No. 19-1691

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                                 FILED
CHARLES FUNK,                                        )                      Jul 31, 2020
                                                                       DEBORAH S. HUNT, Clerk
                                                     )
       Plaintiff-Appellant,                          )
                                                     )       ON APPEAL FROM THE UNITED
v.                                                   )       STATES DISTRICT COURT FOR
                                                     )       THE WESTERN DISTRICT OF
CITY      OF      LANSING,       MICHIGAN;           )       MICHIGAN
MICHAEL A. YANKOWSKI, in his                         )
individual and official capacity                     )
                                                     )
      Defendants-Appellees.
____________________________________/


Before: MERRITT, GUY, and STRANCH, Circuit Judges

       MERRITT, Circuit Judge. Plaintiff Charles Funk is an African American man who

worked for Defendant City of Lansing, Michigan’s Police Department from 1997 until his

resignation in 2016. Funk brings a failure to promote claim and a constructive discharge claim

under Title VII. He also alleges retaliation claims in violation of the First Amendment and Title

VII. The district court granted summary judgment to Defendant on all claims. For the reasons

below, we agree with the district court with respect to Funk’s failure to promote claim, constructive

discharge claim, and First Amendment retaliation claim. However, we find that the district court

improperly analyzed Funk’s Title VII retaliation claim.
Case No. 19-1691, Funk v. City of Lansing, Mich., et al.


                                                 I.

       Funk began serving as a Sergeant in September 2012, and began working as a jail sergeant

April 2013. Funk eventually transferred back to road patrol, where he served until his resignation.

       Captain Darin Southworth served as a Captain from 2014 until he retired in 2018, and, as

Captain, reviewed disciplinary investigations by Internal Affairs and made disciplinary

recommendations to the Defendant Chief of Police, Michael Yankowski. Internal Affairs is the

Department’s office that investigates complaints filed by citizens or employees. A sergeant and

lieutenant head the office. Internal Affairs investigates the claim and determines its merits, and

issues a report with guidelines based on the Department’s disciplinary algorithm, the “matrix.”

The immediate supervisor of the alleged wrongdoer can approve or alter the recommended

discipline. The action then goes to the Chief of Police for final approval.

       As Chief of Police, Chief Yankowski was the final decision-maker for disciplinary and

promotion matters and was Chief of Police at all times relevant to this appeal. Some of Funk’s

conversations with Chief Yankowski are the basis of Funk’s failure to promote and constructive

discharge claims.

       Amid public controversies surrounding police treatment and African Americans, Funk

expressed concerns to Chief Yankowski about such issues Funk noticed within the Department.

Funk emailed Chief Yankowski in December 2014, January 2015, and August 2015, explaining

that Funk needed to speak to him. Funk and Chief Yankowski spoke in person shortly after each

email, and Funk mentioned two different incidents within the Department in which a white officer

arrested an African American citizen, but the arrest reports did not contain the required elements

for the alleged crimes. During this time, Funk was a jail sergeant and was responsible for




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Case No. 19-1691, Funk v. City of Lansing, Mich., et al.


reviewing arrest and intake reports submitted by officers. Funk asserts that these conversations

prevented him from being promoted about eight months later.

        In April 2016, Funk applied for a promotion to Lieutenant along with then-Sergeants

Rodney Anderson (African American) and Rob Backus (white).1 The promotion process involved

a variety of factors. Among other things, an outside vendor conducted a written test, interviewed

the candidates, and provided the results to the Department. The top five scores made up the “A

Band,” followed by the next five highest scores, the “B Band.” The A Band was to be exhausted

before considering any candidate from the B Band. Funk was in the A Band and had one of the

highest scores for the written portion. Those scores were only one component of the promotion

process. Funk understood that Chief Yankowski was permitted to consider many other factors in

deciding whom to promote. The Department promoted both Anderson and Backus but did not

promote Funk.

        Funk spoke to Chief Yankowski shortly after he was denied the promotion. Chief

Yankowski told Funk that he had an opportunity for a promotion in the near future. He also stated

later that if Funk had not resigned, he would have “had the opportunity to get promoted” as Funk

was the only remaining candidate in the A Band. On April 12, 2016, Funk filed a complaint with

Human Resources regarding his promotion denial, alleging racial discrimination.2

        In 2016, Funk received a spate of Internal Affairs complaints. On April 14, 2016, Funk

received an Internal Affairs complaint for three incidents during one shift for failing to properly

respond to a request to restrain an inmate. Internal Affairs recommended a ten-day suspension,



        1
          Because most of Funk’s claims are subject to the framework under McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), which requires Funk to show that Defendant treated him differently than a similarly situated
employee of a non-protected class, we focus on Backus, not Anderson.
        2
          Funk filed a grievance on April 6, 2016, which was denied in arbitration. Funk also filed a complaint with
the Equal Employment Opportunity Commission on September 7, 2016.

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Case No. 19-1691, Funk v. City of Lansing, Mich., et al.


but Captain Southworth reduced the suspension to three days. On May 1, 2016, Funk received a

written reprimand for a March 15, 2016 incident, for failing to secure a firearm while working in

the jail. On the same day, he also received a counseling notation for failing to complete routine

shift paperwork from March 14-20, 2016. Funk received another Internal Affairs complaint on

July 3, 2016, for failing to appear for an overtime shift and for failing to notify anyone of his

absence. He received a three-day suspension for this offense. Funk claims that the Department

only called his work phone, which he was not required to have off duty, and that the Department

never called his home phone, which would have happened for anyone else.

       Funk had not received any disciplinary actions in 2014 or 2015. Captain Southworth said

that it was uncommon for an officer to have a pattern of “back-to-back” disciplinary actions as

Funk did in 2016 and also that he did not observe Funk’s performance objectively worsen around

that time. Southworth explained, too, that he was never asked to “keep a closer eye” on Funk and

stated that the pattern of disciplinary actions towards Funk “just so happened.”

       On August 8, 2016, Funk was on duty in a marked Lansing Police SUV at an intersection

in Lansing. While Funk was turning, his vehicle made contact with a wheelchair occupied by Paul

Palmer. Later that same day, Palmer called the Department and filed a complaint. Palmer’s

complaint was referred to Internal Affairs, and at this time the Department placed Funk on paid

administrative leave. The Department hired a law firm to investigate the complaint, and the

Michigan State Police conducted an investigation as well. Palmer’s and Funk’s versions of events

contradict one another, and Defendant claims that Funk was untruthful during the investigation.

The exact events surrounding the Palmer incident, however, are not material to our analysis.

       Internal Affairs concluded that Funk violated Michigan Motor Vehicle Code §257.612(4)

and Department policies regarding truthfulness, conformance to laws, accountability,



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Case No. 19-1691, Funk v. City of Lansing, Mich., et al.


insubordination, and violation of rules. 3 The Michigan State Police charged Funk with violating

the statute, and a jury convicted him. The disciplinary actions surrounding this incident eventually

led to Funk’s resignation.

         Captain Southworth reviewed the Internal Affairs investigation and recommended

termination. The Department scheduled a pre-determination hearing for Funk on September 15,

2016. Prior to the hearing, Funk and Chief Yankowski each spoke separately with Attorney

Anthony Lett, who represented the police union. Chief Yankowski told Attorney Lett that the

Department was reviewing the matter and evaluating some “pretty significant sustained charges at

the predetermination hearing.” Attorney Lett asked Chief Yankowski what he “was going to do

with” Funk, and Chief Yankowski responded that he had not “made that determination yet” but

indicated it was a “worst case scenario.” According to Funk, Attorney Lett then told him that he

could either go to the hearing and be terminated, or resign.

         Funk resigned on September 12, 2016, Chief Yankowski received and signed Funk’s letter

of resignation on September 13, 2016.                  Chief Yankowski received Captain Southworth’s

recommendation for dismissal on September 13 as well, but never signed off on it because there

was no predetermination hearing due to Funk’s resignation. Funk stated that he never saw any

document regarding his discipline before resigning.

         Funk filed his complaint on June 7, 2017, lodging a host of state and federal discrimination

and retaliation claims.

         On December 28, 2018, Defendants filed a motion for summary judgment. The district

court granted Defendants’ motion for summary judgment on May 24, 2019. This appeal followed.



         3
           Truthfulness, accountability, and insubordination violations are Class D offenses, the most extreme offenses
per the matrix. “Insubordination” is “disrespect toward a supervisor, open defiance, or the refusal to obey any lawful
order or directive of a supervisor in a timely and satisfactory manner.”

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Case No. 19-1691, Funk v. City of Lansing, Mich., et al.


                                                      II.

        We review de novo a district court’s grant of summary judgment. Redlin v. Grosse Pointe

Pub. Sch. Sys., 921 F.3d 599, 606 (6th Cir. 2019). “Summary judgment is proper where 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.” Id. (citing Fed. R. Civ. P. 56(a)) (internal quotation marks omitted). “In

considering a summary judgment motion, this Court must consider the evidence in the light most

favorable to the non-moving part[y], drawing all justifiable inferences in [his] favor.” Id. (internal

quotation marks omitted). The key question “is whether the evidence presents a sufficient factual

disagreement to require submission of the case to the jury, or whether the evidence is so one-sided

that the moving part[y] should prevail as a matter of law.” Id.

        Funk brings two racial discrimination claims under Title VII: a failure to promote claim

and a termination claim by way of constructive discharge claim. He also asserts retaliation claims

under the First Amendment and Title VII.

        A. Funk’s Race Discrimination Claims

            i. Failure to Promote

        Funk first alleges that Defendants denied Funk promotion on account of his race, in

violation of Title VII.4 A plaintiff may prove discrimination by direct evidence or use indirect

evidence under the three-part burden-shifting framework established by McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). Id. (citing White v. Baxter Healthcare Corp., 533 F.3d 381,

391 (6th Cir. 1998)).




        4
           Title VII makes it “an unlawful employment practice for an employer . . . to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of employment, because of such
individual’s race . . . .” 42 U.S.C. § 2000e-2(a)(1).

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Case No. 19-1691, Funk v. City of Lansing, Mich., et al.


       The McDonnell Douglas framework first requires that the plaintiff make out a prima facie

case of discrimination by demonstrating he or she (1) “is a member of a protected class;” (2) “was

qualified for [the] job;” (3) “suffered an adverse employment decision;” and (4) “was replaced by

a person outside the protected class or treated differently than similarly situated non-protected

employees.” Id. at 606‒07. If the plaintiff establishes a prima facie case, “the burden shifts to the

defendant to articulate some legitimate, nondiscriminatory reason for the adverse employment

action.” Id. at 607. If the defendant does so, “the plaintiff then must prove by a preponderance of

the evidence that the stated reasons were a pretext for discrimination.” Id.

       Funk establishes a prima facie case for his failure to promote claim. The parties do not

dispute that, Funk, an African American, is a member of a protected class. Nor do they dispute

Funk’s qualifications for the promotion to Lieutenant and that Defendant denied Funk that

promotion. “For the purposes of Title VII, a failure to promote is an adverse employment action.”

Nguyen v. City of Cleveland, 229 F.3d 559, 562 (6th Cir. 2000) (citing Hale v. Cuyahoga Cty.

Welfare Dep’t, 891 F.2d 604, 606 (6th Cir. 1989)). Defendant also treated Funk differently than a

similarly situated employee of a non-protected class: Backus, a Caucasian, was promoted. Funk

has thus established a prima facie case.

       Defendant has articulated a legitimate, non-discriminatory reason for not promoting Funk

to Lieutenant. Chief Yankowski explained in his deposition that he did not promote Funk for a

variety of reasons. Chief Yankowski considered Funk’s disciplinary history, recommendations

from captains, and community outreach, among other things. He explained that Funk had 52 total

complaints (22 of which were formal), 3 written reprimands, 3 counseling notations, and

1 suspension. Funk had three awards. During this time Funk also had three open and pending

Internal Affairs investigations. Chief Yankowski also stated that Funk “had not volunteered to do



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Case No. 19-1691, Funk v. City of Lansing, Mich., et al.


anything extra within the organization” and that, on the whole, Funk’s “body of work” was not

“more deserving” than Backus’s.

       Chief Yankowski stated that Backus, however, “was involved with community outreach”

and volunteered for the Police Benevolent Association, was a union representative, started certain

crime prevention and crime strategy programs within the organization,” and “volunteered to write

grants.” Backus “was [also] highly regarded inside the organization and outside.” Additionally,

Backus had 23 total complaints (12 of which were formal), 1 counseling notation, 0 written

reprimands, and 2 suspensions.       Backus had 34 awards.        Funk must therefore show by a

preponderance of the evidence that Defendant’s reasons were a pretext for discrimination.

       A plaintiff can show pretext in three ways: “(1) that the proffered reasons had no basis in

fact, (2) that the proffered reasons did not actually motivate the employer’s action, or (3) that they

were insufficient to motivate the employer’s action.” Redlin, 921 F.3d at 612.

       Funk suggests that the reasons given by Defendants were false. The promotional review

forms, however, show that Funk had a more extensive disciplinary history at the time of the

promotion than did Backus. Funk argues that the violent crime initiative in which Backus was

engaged was not “community outreach” but a work assignment, but Funk does not provide any

support for this proposition beyond his own assertion. Moreover, Backus’ promotional review

form lists numerous activities under the “community outreach” section, and Funk does not claim

that he engaged in any community outreach at all. So, even if some of the projects in which Backus

was involved were in fact not community outreach, Backus still was involved in more community

outreach activities than Funk. Funk cannot show that Defendant’s reasons were false.

       Nor can Funk show pretext with evidence that Defendants’ proffered reasons did not

actually motivate its decision.     Funk does not provide any evidence to contradict Chief



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Case No. 19-1691, Funk v. City of Lansing, Mich., et al.


Yankowski’s testimony for promoting Backus instead of Funk. Indeed, Funk’s testimony about

the explanation Chief Yankowski provided him is largely consistent with the reasons Chief

Yankowski discussed in his own deposition. Defendants’ explanation for promoting Backus

instead of Funk thus consists of legitimate, non-discriminatory reasons. To the extent that Funk

argues that his HR complaint and the Palmer incident provide evidence of pretext, those events

had not yet occurred at the time of Funk’s promotion denial.

       Finally, Funk cannot show pretext on the basis that Defendant provided insufficient reasons

for not promoting him. Funk maintains that the promotion process consisted of some subjective

components, and that White “recognized that subjective components of ‘reasons’ can be rejected

by juries[.]” In White, the subjective components of the promotion process the court questioned

involved interviews of candidates performed by employees of the same organization who said that

the plaintiff was “extremely aggressive” in the interviews. White, 533 F.3d at 386–87, 394–95.

Funk does not assert that the interview during his promotion process was the subjective

component, however.      He instead argues that the “community outreach” component was

subjective.   But whether an employee engaged in community outreach is an objective

consideration. Moreover, there is evidence that Backus was involved with community outreach,

was a union representative, volunteered to write grants, and received 34 awards for his work in the

Department. And Funk admitted that he understood Chief Yankowski could consider other factors

than test scores. Funk has thus failed to show that Defendants’ reasons for denying Funk

promotion were pretext for racial discrimination.

       ii.     Constructive Discharge

       Funk asserts a termination claim under Title VII by way of a constructive discharge. Funk

relies on circumstantial evidence, so the McDonnell Douglas framework applies. See Laster v.



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Case No. 19-1691, Funk v. City of Lansing, Mich., et al.


City of Kalamazoo, 746 F.3d 714, 727 (6th Cir. 2014). The parties do not dispute the first two

elements of Funk’s prima facie case—Funk’s membership of a protected class and his

qualifications for Lieutenant. But Funk cannot establish a prima facie case for his constructive

discharge claim because here, unlike his failure to promote claim, he cannot show that he suffered

an adverse employment action.

       A constructive discharge is an adverse employment action for purposes of Title VII. Id.

(citing Kocsis v. Multi-Care Mgmt. Inc., 97 F.3d 876, 885 (6th Cir. 1996)). “A constructive

discharge occurs when the employer, rather than acting directly, deliberately makes an employee’s

working conditions so intolerable that the employee is forced into an involuntary resignation.” Id.

(internal quotation marks omitted). For a constructive discharge claim, a plaintiff must show that

(1) “the employer deliberately created intolerable working conditions, as perceived by a reasonable

person,” and (2) “the employer did so with the intention of forcing the employee to quit.” Id. at

727–28 (citing Saroli v. Automation and Modular Components, Inc., 405 F.3d 446 (6th Cir. 2005);

Logan v. Denny’s, Inc., 259 F.3d 558, 568 (6th Cir. 2001)).

       Laster is instructive here. There, one of the defendant’s employees was “given a direct

order to immediately report any wrongdoing” by the plaintiff. Id. at 722. But the court held that

the plaintiff was not constructively discharged because he offered no evidence that the defendant

took those measures with “with the specific intention” of forcing him to quit. Id. at 728. Here,

while Captain Southworth said that Funk’s 2016 disciplinary pattern was unusual, he was never

asked to “keep a closer eye” on Funk. Chief Yankowski also stated that, had Funk not resigned,

Funk would have “had the opportunity to get promoted.” Moreover, Funk “ultimately resigned

not because of the intolerable working conditions,” but because, based on his conversations with

Attorney Lett, he thought he would be terminated. Id. As such, Funk cannot show that Defendant



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Case No. 19-1691, Funk v. City of Lansing, Mich., et al.


“deliberately created intolerable working conditions with the intention of forcing [him] to quit.”

Id.

        Laster also recognized that, in addition to a traditional constructive discharge claim

alleging discriminatory harassment, “[w]hen an employer acts in a manner so as to have

communicated to a reasonable employee that []he will be terminated, and the plaintiff employee

resigns, the employer’s conduct may [also] amount to constructive discharge.” Id. (citing E.E.O.C.

v. Univ. of Chicago Hosps., 276 F.3d 326, 331‒32 (7th Cir. 2002)) (emphasis omitted). “In other

words, constructive discharge occurs where, based on an employer’s actions, ‘the handwriting was

on the wall and the axe was about to fall.’” Id. (quoting Univ. of Chicago Hosps., 276 F.3d at

332).

        Defendants did not act in a manner so as to have communicated to Funk that he would

likely be terminated. “[I]t is undisputed that [Funk] was not directly told that he would be

terminated at the pre-determination hearing.” See id. at 728‒29. Although Attorney Lett told Funk

that he would likely be terminated at the hearing, “there is nothing in the record to indicate that

[Defendant] actually communicated as much to [Funk].” Id. at 729. Funk resigned because of

what Attorney Lett communicated to him, not Defendants.              And Funk never saw any

documentation regarding his discipline before resigning. Funk cannot establish that he was

constructively discharged.

        C. Funk’s Retaliation Claims

        Funk also brings two retaliation claims. Funk brings his first retaliation claim under 42

U.S.C. § 1983 and the First Amendment. His second alleges Title VII retaliation.




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Case No. 19-1691, Funk v. City of Lansing, Mich., et al.


       i.      First Amendment Retaliation

   A prima facie case of First Amendment retaliation requires a public employee to show that:

       (1) he engaged in constitutionally protected speech or conduct; (2) the employer
       took an adverse action against him that would deter an ordinary person from
       engaging in that conduct; and (3) the protected speech was a substantial or
       motivating factor in the adverse action.

Laster, 746 F.3d at 733 (citing Scarbrough v. Morgan Cty. Bd. of Educ., 470 F.3d 250, 255 (6th

Cir. 2006); Farhat v. Jopke, 370 F.3d 580, 588 (6th Cir. 2004)). Funk fails to satisfy the first

element.

       For a public employee to have a cause of action under the First Amendment, the speech

must be of public concern and must be spoken as a citizen, meaning that the speech cannot be

“ordinarily within the scope of an employee’s duties.” Lane v. Franks, 573 U.S. 228, 240 (2014)

(“The critical question under Garcetti is whether the speech at issue is itself ordinarily within the

scope of an employee’s duties, not whether it merely concerns those duties.”); Garcetti v. Ceballos,

547 U.S. 410, 418 (2006) (stating that an “employee has no First Amendment cause of action” if

the employee did not speak “as a citizen on a matter of public concern”) (citing Connick v. Meyers,

461 U.S. 138, 147 (1983)).

       The parties do not dispute that Funk’s conversations with Chief Yankowski about potential

racial discrimination within the Department involved matters of public concern. See Hughes v.

Region VII Area Agency on Aging, 542 F.3d 169, at 181‒82 (6th Cir. 2008) (stating that matters

of public concern include speech relating “to any matter of political, social, or other concern to the

community”) (quoting Connick, 461 U.S. at 146). Defendant contends, however, that Funk made

those statements pursuant to his official duties, and thus his speech is not protected.

       We agree with Defendant. In Garcetti, the plaintiff was a supervising deputy district

attorney and calendar deputy. Garcetti, 547 U.S. at 413. The plaintiff reviewed a case, and after


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Case No. 19-1691, Funk v. City of Lansing, Mich., et al.


concluding that an affidavit for a search warrant contained misrepresentations, he spoke to his

supervisors and wrote a memorandum recommending the case be dismissed. Id. at 413‒14. The

Court found that the plaintiff’s expressions were made as an employee, specifically in his role as

a calendar deputy. Id. at 422 (“[The plaintiff] did not act as a citizen when he went about

conducting his daily professional activities, such as supervising attorneys, investigating charges,

and preparing filings.”) Funk, too, was “conducting his daily professional activities” when he

spoke to Chief Yankowski about the arrest reports, as part of his job as a jail sergeant was to review

such reports submitted by other officers. See Haynes v. City of Circleville, 474 F.3d 357, 364 (6th

Cir. 2007) (“The fact that [the plaintiff] communicated solely to his superior also indicates that he

was speaking in [his] capacity as a public employee . . . .”) (second alteration in original) (internal

citation and internal quotation marks omitted). Funk’s speech was thus “ordinarily within the

scope” of his duties as jail sergeant, and his First Amendment retaliation claim fails.

         ii.      Title VII Retaliation

    Finally, we address Funk’s Title VII retaliation claim.5 As with a Title VII discrimination

claim, a plaintiff may establish a Title VII retaliation claim by direct or circumstantial evidence.

Laster, 746 F.3d at 730 (quoting Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 538 (6th

Cir. 2008)). Funk again relies on circumstantial evidence, so the McDonell Douglas framework

applies. Id.

    “The elements of a retaliation claim are similar but distinct from those of a discrimination

claim.” Id. For a prima facie case of Title VII retaliation, a plaintiff must show that:

         (1) he engaged in activity protected by Title VII; (2) his exercise of such protected
         activity was known by the defendant; (3) thereafter, the defendant took an action


         5
          Title VII’s anti-retaliation provision states: “It shall be an unlawful employment practice for an employer
to discriminate against any of his employees . . . because he has opposed any practice made . . . unlawful . . . by this
subchapter.” 42 U.S.C. § 2000e-3(a).

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Case No. 19-1691, Funk v. City of Lansing, Mich., et al.


         that was materially adverse to the plaintiff; and (4) a causal connection existed
         between the protected activity and the materially adverse action.


         Id. (citation and internal quotation marks omitted). “The burden of establishing a prima

facie case in a retaliation action is not onerous, but one easily met.” Nguyen, 229 F.3d at 563

(citing EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir. 1997)).

    The district court summarily concluded that Funk did not satisfy the first three elements of a

prima facie case for retaliation and held that he did not establish causation. Viewing the evidence

in the light most favorable to Funk, however, a rational juror could conclude that Funk suffered a

materially adverse action and that there is a causal connection between the protected activity and

the materially adverse action.

    Funk does not argue that his conversations with Chief Yankowski are part of his Title VII

retaliation claim. As for Funk’s HR complaint, we have “repeatedly held that complaints to human

resources personnel regarding potential violations of Title VII constitute protected activity for

purposes of establishing a prima facie case of retaliation.” Trujillo v. Henniges Auto. Sealing Sys.

N. Am., Inc., 495 F. App’x 651, 655 (6th Cir. 2012) (citing Michael v. Caterpillar Fin. Servs.

Corp., 496 F.3d 584, 595 (6th Cir. 2007)).

    Defendant knew of Funk’s HR complaint, which he filed on April 12, 2016. Chief Yankowski

learned of Funk’s HR complaint at some point before the HR office hired a law firm to investigate

the claim, which conducted the first interview on April 26, 2016.6




     6
       While Chief Yankowski is the only named defendant other than the City of Lansing, others knew of the HR
complaint as well. Lieutenant Bayliss, who worked in Internal Affairs during this time, was aware of the complaint
before the Palmer incident (August 8, 2016). Bayliss indicated that the other officer in Internal Affairs also knew of
the complaint. Captain Southworth knew of the complaint by May 4, 2016, at the latest, when the law firm interviewed
him.

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Case No. 19-1691, Funk v. City of Lansing, Mich., et al.


         The district court did not discuss whether Funk suffered a materially adverse action but

stated that Funk must show that Defendant took an “adverse employment action” against him.

A plaintiff claiming Title VII retaliation is not required to prove an “adverse employment action”

but instead a “materially adverse” action. See Burlington N. & Santa Fe Ry. Co. v. White, 548

U.S. 53, 57 (2006). “[T]hat means that the employer’s actions must be harmful to the point that

they could well dissuade a reasonable worker from making or supporting a charge of

discrimination.” Id.

         Some of the facts underlying Funk’s constructive discharge claim also apply to his Title

VII retaliation claim. Funk received an Internal Affairs complaint two days after filing his HR

complaint, for which he was issued a three-day suspension. Funk received another complaint on

July 3, 2016, for failing to report for duty. Funk stated that the Department called only his work

phone, which he was not required to have off duty, and that the Department never called his home

phone, which Funk claims would have happened for anyone else. This complaint resulted in

another three-day suspension. Funk also claims that Internal Affairs did not take any action on

matters that originated in March 2016 until after Funk filed his HR complaint.7 Additionally, the

Department later placed Funk on administrative leave when Internal Affairs began investigating

the Palmer incident. See Rogers v. Henry Ford Health Sys., 897 F.3d 763, 776 (6th Cir. 2018)

(stating that a reasonable fact finder could conclude that the plaintiff suffered an adverse action

where she was “referred to a fitness-for-duty exam, placed on leave, escorted out of the office, had



7
         At the time of his HR complaint, Funk had two pending Internal Affairs complaints. One was dated March
14-20, 2016, for failing to complete routine shift paperwork for six consecutive days. Funk received a counseling
notation for this complaint on May 16, 2016.
          The other complaint was dated March 15, 2016, primarily for leaving his handgun unsecured while on duty
in the jail, as jail sergeants are not permitted to be armed while on duty. Funk received a written reprimand for this
on May 16, 2016. Funk, however, claims he was suspended for three days. Captain Southworth could not recall any
other jail officer ever being written up for violating that policy.

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her badge removed” and upon return to work was forced to choose between a severance package

and a transfer to an inferior position); Michael, 496 F.3d at 596 (holding that putting plaintiff on

brief paid administrative leave and a 90-day performance plan met the “relatively low bar” of a

materially adverse action); Halfacre v. Home Depot, U.S.A., Inc., 221 F. App’x 424, 432 (6th Cir.

2007) (remanding for reconsideration, in light of Burlington N., whether the plaintiff suffered a

materially adverse action when the plaintiff received a lower performance grade than prior

evaluations). A rational juror could conclude that, based on the above events, Funk suffered a

materially adverse action.

       Funk must also establish causation between his HR complaint and the materially adverse

action. “To establish a causal connection . . . a plaintiff must produce sufficient evidence from

which an inference could be drawn that the adverse action would not have been taken had the

plaintiff not filed a discrimination action.” Nguyen, 229 F.3d at 563.

       The district court held that Funk did not establish causation because of “the time lapse of

several months” between his conversations with Chief Yankowski and his promotion denial. In

his response to Defendants’ motion for summary judgment, however, Funk asserted that the

materially adverse action came after his HR complaint when Defendants issued Funk repeated

disciplines, placed him on unpaid suspension, recommended his termination, and forced him to

risk his monthly pension. The events following Funk’s HR complaint may create a genuine issue

of material fact as to whether Funk establishes causation. The Internal Affairs complaint issued

two days after Funk’s HR complaint is of particular concern. Nguyen, 229 F.3d at 563, 566‒67

(explaining that temporal proximity is relevant to causation). But Funk’s entire 2016 disciplinary

history, in light of Captain Southworth’s testimony, could lead a rational juror to conclude that the




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Case No. 19-1691, Funk v. City of Lansing, Mich., et al.


disciplinary actions preceding Funk’s resignation would not have occurred had Funk not filed his

HR complaint.

                                        III. Conclusion

       For the above reasons, we AFFIRM the district court’s judgment with respect to Funk’s

racial discrimination claims under Title VII and his First Amendment retaliation claim, and

REMAND Funk’s Title VII retaliation claim for further proceedings consistent with this opinion.




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