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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

JOHN GREINER, 

 Plaintiff, Case No. 14-cv-13979 

 Hon. Matthew F. Leitman 

v. 

CHARTER COUNTY OF 

MACOMB, MICHIGAN, a/k/a 

MACOMB COUNTY, et al., 

 Defendants. 

_________________________________/ 

ORDER GRANTING DEFENDANT’S MOTION FOR 

SUMMARY JUDGMENT ON PLAINTIFF’S FIRST 

AMENDMENT RETALIATION CLAIM (ECF #123) 

 In this action, Plaintiff John Greiner brought several claims challenging the 

termination of his employment by Defendant Charter County of Macomb (the 

“County”). The Court previously granted summary judgment against Plaintiff on all 

of his claims other than his First Amendment retaliation claim. (See ECF #117.) 

For the reasons explained below, the Court now grants summary judgment against 

Plaintiff on that remaining claim. 

I 

 The Court set forth the facts of this case in great detail in its prior summary 

judgment order. (See id.) The Court incorporates herein the factual recitation from 
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the earlier order. The Court highlights below only those facts that are essential to 

understand the Court’s ruling below. 

 Plaintiff worked for the Macomb County Road Commission (“MCRC”) from 

2000 to 2012. (See Greiner Dep. at 37, 148, ECF #89-2 at Pg. ID 1010, 1037.) 

During the course of his employment, he had numerous disciplinary issues and 

instances of negligent operation of County equipment. As a result of his poor 

performance, Plaintiff entered into a Last Chance Agreement (“LCA”) with the 

County in 2009. (See LCA, ECF #90-7.) The LCA provided that “[a]ny further acts 

of negligence, insubordination, or unsafe activity on [his] part shall be cause for his 

immediate discharge form [sic] employment with the [MCRC].” (Id.) 

After Plaintiff entered into the LCA, he continued to have disciplinary issues, 

and the County commenced three separate disciplinary proceedings against him. 

The Court described these proceedings in its earlier order. (See Opinion and Order 

at 10-14, ECF #117 at Pg. ID 4536-4540.) Each proceeding began with notice to 

Plaintiff of his alleged misconduct, and each involved a Loudermill hearing to 

inquire into the circumstances of the alleged misconduct. And each Loudermill

hearing concluded with a finding that Plaintiff had committed misconduct. 

With each successive misconduct finding, the County imposed progressive 

discipline. Following the first finding, the County suspended Plaintiff for three days. 

(See 7/16/12 Suspension Letter, ECF #90-36.) Following the second finding, the 
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County suspended Plaintiff for ten days. (See 8/17/12 Suspension Letter, ECF #89-

23.) Following the third finding, the County terminated Plaintiff’s employment. (See 

Termination Letter, ECF #89-26.) 

 Under the Collective Bargaining Agreement between Plaintiff’s union and the 

County, the union had the option to challenge the termination of Plaintiff’s 

employment in arbitration proceedings. (See Collective Bargaining Agreement at 

Article 9, ECF #90-2 at Pg. ID 1424-27.) The union declined to seek arbitration 

because the union concluded that the County had reasonable grounds for firing 

Plaintiff. (See 1/8/2013 Letter, ECF #90-45.) 

 Plaintiff now challenges his termination as a violation of his First Amendment 

rights. He alleges that prior to his termination, he complained to the County that 

several County workers were committing overtime fraud (i.e., collecting increased 

overtime pay based upon the false assertion that they had worked more than the 

allotted hours), and he insists that the County fired him because he complained about 

that fraud. 

II 

A movant is entitled to summary judgment when it “shows that there is no 

genuine dispute as to any material fact . . . .” SEC v. Sierra Brokerage Servs., Inc., 

712 F.3d 321, 326-27 (6th Cir. 2013) (citing Anderson v. Liberty Lobby, Inc., 477 

U.S. 242, 251-52 (1986)) (quotations omitted). When reviewing the record, “the 
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court must view the evidence in the light most favorable to the non-moving party 

and draw all reasonable inferences in its favor.” Id. “The mere existence of a scintilla 

of evidence in support of the [non-moving party’s] position will be insufficient; there 

must be evidence on which the jury could reasonably find for [that party].” 

Anderson, 477 U.S. at 252. Summary judgment is not appropriate when “the 

evidence presents a sufficient disagreement to require submission to a jury.” Id. at 

251-52. Indeed, “[c]redibility determinations, the weighing of the evidence, and the 

drawing of legitimate inferences from the facts are jury functions, not those of a 

judge . . . .” Id. at 255. 

III 

A 

 The United States Court of Appeals for the Sixth Circuit has established the 

following framework for evaluating First Amendment retaliation claims at the 

summary judgment stage: 

First Amendment retaliation claims are analyzed under a 

burden-shifting framework. A plaintiff must first make a 

prima facie case of retaliation, which comprises the 

following elements: “(1) he engaged in constitutionally 

protected speech or conduct; (2) an adverse action was 

taken against him that would deter a person of ordinary 

firmness from continuing to engage in that conduct; (3) 

there is a causal connection between elements one and 

two—that is, the adverse action was motivated at least in 

part by his protected conduct.” Scarbrough v. Morgan 

Cnty. Bd. of Educ., 470 F.3d 250, 255 (6th Cir.2006). If 

the employee establishes a prima facie case, the burden 
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then shifts to the employer to demonstrate “by a 

preponderance of the evidence that the employment 

decision would have been the same absent the protected 

conduct.” Eckerman v. Tenn. Dep't of Safety, 636 F.3d 

202, 208 (6th Cir.2010) (internal quotation marks 

omitted). “Once this shift has occurred, summary 

judgment is warranted if, in light of the evidence viewed 

in the light most favorable to the plaintiff, no reasonable 

juror could fail to return a verdict for the 

defendant.” Id. Unlike in the McDonnell Douglas burdenshifting framework, the burden does not shift back to a 

plaintiff to show pretext in First Amendment retaliation 

claims. 

Dye v. Office of the Racing Comm'n, 702 F.3d 286, 294–95 (6th Cir. 2012). 

 The County argues that it is entitled to summary judgment for two reasons. 

First, the County contends that Plaintiff has failed to establish the causation element 

of his prima facie case. Second, the County says that it has established that it would 

have fired Plaintiff even absent his protected conduct and that no reasonable juror 

could find to the contrary on this record. The Court agrees with both of those 

contentions. 

B 

1 

 Plaintiff attempts to establish the causation element of his prima facie case by 

presenting evidence concerning the “timing of events.”1

 (See Pl.’s Resp. at 10, ECF 

                                                            

1

 Greiner also offers as evidence his “belie[f]” that he was fired in retaliation for 

reporting the alleged overtime fraud. (Pl.’s Resp. at 7, ECF #133 at Pg. ID 9453.) 

However, his belief does not suffice as evidence of retaliation. 
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#133 at Pg. ID 9456, quoting Arnett v. Myer, 281 F.3d 552, 560-61 (6th Cir. 2002).) 

More specifically, Plaintiff tries to show a temporal proximity between his 

complaints of overtime fraud and his firing, and he argues that this proximity 

demonstrates causation. (See id. at 6-10, Pg. ID 9452-9456.) Plaintiff’s temporal 

proximity argument rests upon a letter that he faxed to County official Karen 

Bathanti on November 5, 2012 – after the presentation of evidence at the third 

Loudermill hearing but before the County announced its decision to fire Plaintiff. In 

the letter, Plaintiff “insisted” that the third Loudermill hearing “needed to be 

continued so that my witnesses Chris Knapp and Les Durr could testify on my 

behalf.” (Id. at 7, Pg. ID. 9453.) Plaintiff suggests that this letter notified Bathanti 

that he wanted to raise his allegations of overtime fraud during the continuation of 

the third Loudermill hearing, and he notes that the County fired him two days after 

he sent the letter. Plaintiff argues that this sequence of events shows that the County 

fired him because of his efforts to expose overtime fraud. Plaintiff’s argument 

suffers from fatal factual and legal flaws. 

 2 

 The essential factual premise underlying Plaintiff’s temporal proximity 

argument – that his November 5, 2012 letter put Bathanti on notice that he sought to 

raise overtime fraud issues at a continuation of the third Loudermill hearing – is 

wrong. The letter says nothing about overtime fraud. Indeed, the letter does not 
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even say that Plaintiff intended to show that anyone else committed any wrongdoing. 

Instead, the letter said that Plaintiff wanted to present his “response” to the 

“allegations” against him. (ECF #104-7 at Pg. ID 3788.) 

And while the letter does reference Plaintiff’s desire to present testimony from 

two witnesses, Plaintiff’s deposition testimony makes clear that he intended to offer 

these witnesses to rebut allegations that he committed wrongdoing, not to support a 

claim that others committed overtime fraud: 

 Q. ... You indicated that you had two witnesses 

that you wanted to have testify at the [L]oudermill hearing, 

Chris Knapp and Les Durr, do you recall that? 

 A. Chris Knapp and Les Durr to be able to 

testify. 

 Q. These are the witnesses you wanted to call? 

 A. Correct. 

 Q. Who are they? 

 A. Chris Knapp is an assistant foreman in 

division 3 and Les Durr is, or was – I should probably say 

that about Knapp, is or was, Les Durr was the stockroom 

manager. 

 Q. They work in the roads department? 

 A. Yes. 

Q. What were they going to testify about? 

 A. Chris Knapp would testify to the fact that I 

did not ever refuse to lift the tri-rail on September 27th as 

alleged, and Les Durr would have testified that I received 

operable walkie-talkies from him and that I returned 

operable walkie-talkies to him at the end of the day. 

(Greiner Dep. at 325-26, ECF #134-2 at Pg. ID 9558; emphasis added.) 
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Because Plaintiff’s letter did not raise the issue of overtime fraud, it does not 

support Plaintiff’s temporal proximity theory of causation. 

3 

Even if Plaintiff’s letter had put the County on notice that he wished to make 

overtime fraud allegations, Plaintiff’s temporal proximity theory of causation would 

still fail as a matter of law. The sequence of events involving the letter does not raise 

an inference of causation because (1) the Plaintiff had been the subject of progressive 

disciplinary sanctions for a substantial period of time before he sent the letter and 

(2) the County accused Plaintiff of the wrongdoing that led to his termination and 

commenced the disciplinary proceedings based on that wrongdoing against Plaintiff 

before he sent the letter. 

Simply put, “[w]here timing is the only basis for a claim of retaliation, and 

gradual adverse job actions began well before the plaintiff had ever engaged in any 

protected activity, an inference of causation does not arise.” Slattery v. Swiss 

Reinsurance America Corp., 248 F.3d 87, 95 (2nd Cir. 2001) (affirming summary 

judgment on retaliation claim where employer had imposed “an extensive period of 

progressive discipline” before employee engaged in protected conduct). Indeed, 

numerous federal courts have held that temporal proximity, alone, does not establish 

causation where the employer commenced substantial disciplinary proceedings 

before the employee engaged in the protected conduct. See, e.g., Francis v. Booz, 
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Allen & Hamilton, Inc., 452 F.3d 299, 309 (4th Cir. 2006) (holding that plaintiff 

failed to show causation where the employer’s “actions that led to [the plaintiff’s] 

probation and termination began before her protected activity . . . .” (emphasis in 

original)); Carrington v. City of Des Moines, Iowa, 481 F.3d 1046, 1051 (8th Cir. 

2007) (holding that plaintiff failed to show causation where he engaged in protected 

activity “after” disciplinary investigation began); Ehrlick v. Kovack, 2017 WL 

4071134 at *4 (6th Cir. 2017) (concluding that fact that employer disciplined 

employee after employee engaged in protected conduct was “not evidence of 

causation” because, among other things, employer “had drafted the pre-disciplinary 

hearing letter prior to [plaintiff’s] speech”). As this settled authority makes clear, 

Plaintiff cannot succeed on his temporal proximity theory of causation based upon 

the November 5, 2012 letter to Bathanti because the County began progressive 

disciplinary proceedings against him well before he sent the letter and because the 

County likewise began the particular proceedings that led to his discharge before he 

sent the letter. 

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Finally, even if Plaintiff had established the causation element of his prima 

facie case, the County would still be entitled to summary judgment on his retaliation 

claim. That is because the County presented substantial evidence that it would have 

fired him even absent his complaints about overtime fraud and because, on this 
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record, no reasonable juror could fail to return a verdict in favor of the County. Dye, 

702 F.3d at 294-95. 

As set forth in detail in the Court’s earlier summary judgment ruling, Plaintiff 

had a lengthy record of poor performance and disciplinary problems, and the County 

had a long history of imposing progressive discipline on Plaintiff. (See Opinion and 

Order at 3-6, 9-14, ECF #117 at Pg. ID 4529-4532, 4535-40.) The discipline 

included placing Plaintiff on the LCA, suspending Plaintiff for three days, and then 

suspending Plaintiff for ten days. The County showed a consistent unwillingness to 

tolerate Plaintiff’s poor performance and (through the LCA) had warned Plaintiff 

that his job was in jeopardy long before Plaintiff complained about overtime fraud. 

Under these circumstances, no reasonable juror could conclude that the County fired 

Plaintiff because he raised concerns about the alleged fraud. 

IV 

For the reasons explained above, IT IS HEREBY ORDERED that the 

County’s motion for summary judgment on Plaintiff’s First Amendment retaliation 

claim (ECF #123) is GRANTED. 

IT IS SO ORDERED. 

 s/Matthew F. Leitman 

 MATTHEW F. LEITMAN 

 UNITED STATES DISTRICT JUDGE 

Dated: November 13, 2017 
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I hereby certify that a copy of the foregoing document was served upon the 

parties and/or counsel of record on November 13, 2017, by electronic means and/or 

ordinary mail. 

 s/Holly A. Monda 

 Case Manager 

 (810) 341-9764