NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0628n.06
No. 11-2201
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

ARNETTE RODGERS, CARM EN KN IGHT, TAMIE RICE, KA TRINA TATE-ANDERSON, JAUNICE F LOWERS , CHERYL SHARPLEY, ANTHONY COOP ER, SARAH JENKINS, WENDELL FINLEY, ARECIA STEVENS , CRYSTAL ALLE N-CR UCE, YOLANDA JOHNSON, KEITH CARTER, DORNITA CLEVELAND, ALVITA MOSS , LAURA HILL, and YVONNE MALVAUX,
P laintif fs-App ellees,

v. 36TH DIST RICT COURT and MARY LIN E. ATKINS,
Defendan ts-Appellants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) O N A P P E A L F R O M T H E UNITED STATE S DISTRICT CO URT F OR THE EASTE RN DISTRICT OF MICHIG AN

Before: DA UG HTREY, COLE , and GIBBO NS, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Def endant- appellant Mary

lin E. Atkins, chief judge of Michig an’s 36th J udicial District Court (“t h e 36th District”), appea ls the district court’s denial of her motion for summary judgme nt on the basis of qualified immunit y . The plaintiffs, who

are former employ ees of t h e 3 6 t h Di strict, sued t he 36th District and Atkins pursuant to 42 U.S.C. § 1 9 8 3 , alleg ing that they wer e terminated without due process of law in violation of t he Fifth and
Four teenth Amendments. They argue that under the collective barg aining ag ree ment (“ C BA ”) in

1Rodgers, et al. v. 36th District Court , et al.

No. 11-2201 eff ect at the time of their terminations, they could be discharg ed only fo r “j u s t cause ” and that, as just-cause employ ees, they had the rig ht to post-term i n at i o n evidentiar y hear ings befor e a neutra l decisionmake r, which t h ey d i d not rec eive beca use the 36th District denied their demands for arbitration. Atkins asser

ts that she is entitled to qualified immunit y beca use it was not clea

r whether the CBA was in eff

ect at the time the plaintiffs wer e ter m i n at ed and, there fore , whether they wer e just-cause employ ees with due proce ss rig hts. The district court denied Atkins’s motion for summary judgme nt on the basis of qualified immunit y as to claims broug ht ag ainst Atkins in her individual
capa city , except with reg ard to three plaintiffs, as to whom the motion was g rante d. For the rea sons that follow, we aff

irm the district court’s order denying Atkins qualified immunit y as to the other plaintiffs’ cla ims.
I

. The plaintiffs are former employ ees of the 36th Di strict who wer e also members of a collective ba

rg aining unit r epre sented by the Americ an Fe deration of State, County , and Municipal Employ ees Council 25 and its af filiated L ocal 3308 ( “AF SCME”).
AFSCME enter ed int o a C BA wi t h the 36t h District on behalf of court employ ees. Article
12 of the CBA provided that employ ees could be disciplined “only for j u s t cause .” Article 8 descr ibed a five-step procedur e by which employ ees could prese nt g rieva nces to the 36t h District.
Pursuant to Steps 1 throug h 3, employ ees could submit g rieva nces, b o t h o ra l ly and in writing , and meet with repr esenta tives from the 36th District to discuss their complaints. At Step 4, employ ees could submit their g rieva

nces to the Court Administrator or a desig nated repr esenta tive, who would conduct a meeting of the rele vant parties. I n case s involving suspension or discharg e, eit her party

2Rodgers, et al. v. 36th District Court , et al.

No. 11-2201 could reque st the o ther party to produce evidenc e, including witnesses, at the meeting or “as soon there afte r as prac ticable.” I f a g rieva nce rema ined unresolved afte r Step 4, Step 5 permitted a party to demand ar

bitration.
T h e i nitial term of the CBA was J uly 1, 2001 to J une 30, 2006. Article 50 ad d re s s ed t h e CBA’ s termination:

This Ag ree ment shall remain in full for ce a nd eff ect until J une 30, 2006. Th i s Agre ement shall continue in eff ect for consec utive y ear ly periods afte r J une 30, 2006, unless n o t i ce is g iven, in writing , by either of the Union or the Employ er, t o t h e other party at least ninety (90) day s prior to J une 30, 2006, or any anniver sary date there afte r, of its desire to modify , amend or termin ate this Ag ree ment.
I f such notice i s gi v en, this Ag ree ment shall be open to modification, amendment or termi nation, as such notice may indicate on J une 30, 2006, or the subsequent annive rsar

y date, a s the ca se may

be.
On Marc h 1, 2006, J ames Meadow s, the 36th District’s interim direc tor of human resour ces,
wrote a letter to Be verly Har ris, t h e p re s ident of AFSCME, notify ing her “of the Court’s intent to modify , amend, or terminate al l or parts of the [C BA ].” The 36th District and AFSCME later disputed whether Meadow s’s letter was sufficie nt to ter m i n at e the CBA or whether the CBA

rema ined in eff

ect afte r J une 30, 2006. The parties submitt ed this issue to an arbitra tor and litigated the issue in Michig an courts. On Fe bruar y 28, 2012, the M i chig an Court of Appea ls ruled that Meadow s’s letter did not terminate the CBA. 36th Dist. Court v. AFSCME Local 917 , 815 N.W.2d 494, 507 (Mich. Ct. App. 2012), rev’ d in part on other grounds, appeal denied in part , 821 N.W.2d 786 (Mich. 2012). The parties now a g ree that the CBA did not ter minate until J une 2009.

3Rodgers, et al. v. 36th District Court , et al.

No. 11-2201 Bet we en Fe b ruary 2007 and Fe bruar y 2009, the 36th District terminated the plaintiffs for
eng ag ing in a varie ty of alleg ed misconduct. The plaintiffs submitt ed g rieva nces to the 36th District, and the fede ral district court found that in all but four case s, the plaintiffs’ g rieva nces wer e proce ssed throug h Step 4. The plaintiffs demande d arbitra tion, but the 36th District ref used to arbitra te. I n its communications to the plaintiffs denying arbitra tion, the 36th District indicated that “[i] t is the
Court’s position that the Marc h 1, 2006 letter to L ocal 3308 constituted an ef fe ct i v e n otice to terminate the L abor Ag ree ment” and that “the Court has n o o b l i gat i o n to proce ed to arbitra tion on

a termination case , wher e the termination occur red afte r the J une 30, 2006 termination of the L abor Ag ree ment.” The 36th District reiter ated this position in its communications with arbitrators
reque sting that the pla intiffs’ g rieva nces not be schedule d for a rbitration. The plaintiffs broug ht suit in fede ral district court ag ainst the 36th District and Atkins under
42 U.S.C. § 1983, alleg ing that they wer e terminated from their positions without due proce ss of law. The parties filed cross-mot i o n s fo r summary judgme nt. The district court denied the plaintiffs’ motion for summary judgme nt. I t g rante d summary judgme nt to the 36t h Di s t ri ct and dismiss ed claims for damag es brou gh t aga i nst Atkins in her officia l capa city on the basis of sovere ign
i m munity

. I t denied the defe ndants’ motion for summary judgme nt on the basis of quali fi ed
im m u nity as to claims broug ht ag ainst Atkins in her individual capa city , except with reg ard to plaintiffs Yolanda Johnson, Yvonne Malvaux, and Donnita Cleveland, a s to w hom the motion wa s

4Rodgers, et al. v. 36th District Court , et al.

No. 11-2201
g rante d. Atkins now appea ls the district court’s denial of quali fi ed i m m u n i t y as to the other

1 plaintiffs’ cla ims.
I I

. “The appea l of a denial of qualified immunit y is an interlocutory appea l that this Court hear s

as a final decision of the dist ri ct co urt under 28 U.S.C. § 1291 pursuant to the ‘collate ral order ’ doctrine.” Gregory v. City of Louisvill e , 444 F. 3 d 7 2 5 , 7 4 2 (6th Cir. 2006) (citing Mitchell v. Forsyth , 472 U.S. 511 , 5 2 5-27 (1985))

. We revie w a district court’s denial of summary judgme nt

on the basis of qualified immunit y de novo . W alker v. Davis , 6 4 9 F.3d 502, 503 (6th Cir. 2011) (citing Harrison v. Ash , 539 F.3d 510, 516 (6th Cir. 2008)). Summary judgme nt is proper wher e no
g enuine issue of materia l fac t exis ts and the moving party is entitled to judgme nt as a matter of law.
Fe d R. Civ. P. 56(a)

. I n considering a motion for summary judgme nt, we construe all re as o n able infere nces in favor of the nonmoving party

. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). Qualified immunit y protec ts g overnme nt of ficials from liability “whe n a rea sonable officia l
in the defe n d an t ’s p o s i t ion would not have understood his or her actions to violate a person’ s constitutional rig hts.” Meals v. City of Mem phis , 493 F.3d 720, 729 (6th Cir. 2007) (citing Harlow v. Fitzgerald , 457 U.S. 800, 807 (1982)). “ Under the doctrine of qualified immunity , ‘g overnme nt officia ls perf

orming discretionar

y functions[] g ener ally are shielded from liability for civil damag es

The district court held that J ohnson and Malvaux, who wer e fired afte r the CBA terminated 1 in J une 2009, did not reta in proper ty interests in their employ ment protec ted by the Du e P ro cess Clause. I t also held t hat M alvaux and C leveland fa i l ed t o p u rs ue arbitration and, as a result, they waived the ir post-termination due pr ocess r ights. 5Rodgers, et al. v. 36th District Court , et al.

No. 11-2201 insofar as their conduct does not violate clea rly established statutory or constitutional rig hts of which

a re asonable person would ha ve known.’ ” Id. (quoting Harlow , 457 U.S. at 818).
I n Saucier v. Katz , the Supreme Court established a two-step inquiry for deter mining whether an official i s entitled to qualified im munity

. 533 U.S. 194, 201 (2001). A co u rt must consider (1) whether , viewing the evidenc e in the light most fa vorable to the injured party , a constitutional rig ht has been violated; and (2) whether t h at ri ght was clea rly established. Id. I n Pearson v. Callahan , the Supreme Court held that while the sequenc e set forth in Katz is often appropr iate, i t is not mandatory , and courts have discretion to de cide which of the two prong s of the qualifie d immunit y analy sis to address first. 555 U.S. 223, 236 (2009).
I n Feathers v. Aey , we established a three -pa rt test for evalua ting qualified immunit y defe nses: First, we deter

mine whether , based upon the appli ca b l e law, the facts viewed in the light most favor able to the plaintiffs show that a constitutional violation has occur red. Second, we consider whether the violat i o n involved a clea rly established constitutional rig ht of which a rea sonable person would have kno wn
. Third, we deter mine whether the plaintiff has offe red sufficie nt evidenc e “to indicate that what the officia l al l ege d l y did was objectively unrea sonable in light of the clea rly established constitutional rig hts.”
319 F.3d 843, 848 (6th Cir. 2003) (quoting W illiams v. Mehra , 186 F.3d 685, 691 (6th Cir. 1999) ( en banc ) (citations omitted)); see also Estate of Carter v. City of Detroit , 408 F.3d 305, 310 n.2 (6th Cir. 2005) (noting that while some pane ls of t his court sim ply apply Saucier ’s two -step a pproac h, “the three -step appr oach ma

y in some case s increa se the c larity of the prope r ana ly sis”).
Once a defe ndant raises the qualified immunit y defe nse, the burden is on the plain t i ff t o demonstrate that the officia l is not entitled to qualified immunit y by alleg ing fac ts sufficie nt to show

6Rodgers, et al. v. 36th District Court , et al.

No. 11-2201 that the official’s act violated clearly established law at t he ti me t hat i t was commit ted. Simmonds

v. Gene see Cnty. , 682 F.3d 438 , 4 4 4 (6 t h C ir. 2012). “To defe at the qualified immunit y bar, a plaintiff ‘m u s t prese nt evidenc e sufficie nt to cre ate a g enuine issue as to whether the defe ndant committed the acts that violated the law.’” Id. (quoting Adams v. Metiva , 31 F.3d 375, 386 (6th Cir. 1994)). “T o m ak e out a genuine issue of m ater ial fac t, plaintiff m ust prese nt signific ant probative evidenc e tending to support her version of the fac ts, evide nce on which a rea sonable jury could return

a ver dict for her.” Chappell v

. City of Cleveland , 585 F.3d 901, 913 (6th Cir. 2009) (c iting Scott v.
Harris , 550 U.S. 372, 380-81 (2007))

. A. First, we consider whether , based upon the applicable law, the fac ts viewed in the light most favor able to the plaintiffs show that a constitutional violation occur red. Feathers , 319 F.3d at 848. The Due Process Clause of the Four teenth Amendment provides that no s t at e s h al l “depr ive any
person of life, liberty , or proper ty without due proce ss of law.” U.S. Const. amend. XI V, § 1. I n order to establish a p rocedural due proce ss claim, the plaintiffs must show that (1) they had life, liberty , or proper

ty interests protec ted by the Due Pr o ce s s C lause; (2) they wer e deprive d of these protec ted interests; and (3) the state did not aff ord them adequate proce dural rig hts. W omen’ s Med. Prof’l Corp. v. Baird , 438 F.3d 595, 611 (6th Cir. 2006) (citing Hahn v. Star Bank , 190 F.3d 708, 716 (6th Cir. 1999)). The plaintiffs wer e deprive d of any proper ty interests they had in their employ ment when they wer e ter

minated, so we a ddress only the first and third r equire ments of a proce dural due
proce ss claim.

7Rodgers, et al. v. 36th District Court , et al.

No. 11-2201 i.
W e fi rs t ask whether the plaintiffs had proper ty interests in their employ ment protec ted b y the Due Process Clause. Baird , 438 F.3d at 6 1 1

. Property interests are not cre ated by the
C o n s t i t u t i o n
. Bd. of Rege nts v. Roth , 408 U.S. 564, 577 (1972). “[T] hey are cre ated and t h ei r dimensions are define d by exis ting ru les or understanding s that stem from an independe nt source such as state law—rules or understanding s that secur e cer tain benef

its and that support claims of entitlement to those benef its.” Id. “A proper

ty interest can be cre ated by a state statute, a formal
contra ct, or a contra ct implied from the circ umstances.” Singfield v. Akron Metro. Hous. Auth. , 389 F.3d 555, 565 ( 6th Cir. 2004). I n order to have a property interest in a benefit, a person must have

more than “an abstrac t need or desire for it” or “a unilatera l expectation of it.” Roth , 408 U.S. at 577.
“He must, inst ead, ha

ve a le g itimate claim of entitlement to it.” Id.
A statute or contra ct providing that employ ees may be disciplined or terminated only for “just

cause ” cre ates a proper

ty interest. Cleveland Bd. of Educ. v. Loudermill , 470 U.S. 532, 538-39 (1985) (holding that a s t at e s t atute providing that civil service employ ees could be dismiss ed only for “misfea sance , malfea sance , or nonfea sance in offic e” cre ated a proper ty interest in continued

em p l o y m ent); Singfield , 389 F.3d at 566 (holding that a CBA providing that “[n] o employ ee shall be discharg ed or suspended without just cause ” cre ated a proper ty interest in continued employ ment); Jefferson v. Jefferson Cnt y. Pub. Sch. Sys. , 360 F.3d 583, 587 (6th Cir. 2004) (holding t hat a CBA providing that a teac her may be suspended only for “just cause ” cre ated a proper ty int er es t in continued pay

and bene fits); Leary v. Daesc hner , 228 F.3d 729, 742 (6th Cir. 2000) (holding that a
CBA prohibi t i n g teac hers from being transfe rre d within a school district except on a showing of

8Rodgers, et al. v. 36th District Court , et al.

No. 11-2201 “g ood cause ” and “extenuating circ umstances” cre ated a proper ty interest in continued employ ment in a particula

r position). There fore , the CBA cre ated a proper ty interest in the plaintiffs’ continued employ ment. Atkins argues t hat t he dis trict court failed to rec og nize that the plaintiffs’ prope rty interests

wer e conting ent upon the CBA’ s “just cause ” provision. Her argument is without merit. The district
court ex plicitly stated t hat t he C BA was the source of t he plaintiffs’ pr operty interests. I t held t hat the plaintiffs who wer e ter m i n at ed prior to J une 30, 2009—while the CBA was still in eff ect—possesse d proper

ty interests in their continued employ ment, but the plaintiffs who wer e fired afte r the CB A terminate d did not. Theref ore, the district court did not err

. ii. Next, we ask whet h er Atkins provided the plaintiffs with adequate procedura l protec tions. Baird , 438 F.3d at 6 1 1

. “A l t houg h the exis tence of a proper ty interest is define d by state law, the
proce dures that must be followed in depr iving a n individual of that proper ty interest are define d by the fede ral Constit ution.” Silberstein v. City of Dayton , 440 F.3d 306, 315 (6 th Cir. 2006) (citing Loudermill , 470 U.S. at 541). The “‘r oot require ment ’ o f t he Due Process Clause” is “that an individual be g iven an opportunity for a hear ing before he is deprive d of any signific ant proper ty interest.” Loudermill , 470
U.S. at 542 (quoting Boddie v. Connecticut , 401 U.S. 371, 379 (1971))

. “This principle require s

som e k i n d o f a h earing prior to the discharg e of an employ ee who has a constitutionally protec ted
proper ty interest i n his employ

ment.” Id. (quotations marks and citations omitted). This hear ing, althoug h require d, “nee d not be elabor ate.” Id. at 5 4 5

. A public employ ee with a constitutionally

9Rodgers, et al. v. 36th District Court , et al.

No. 11-2201 protec ted interest in his employ ment “is entitled to oral or written notice of the char g es ag ainst him, an explanation of the e mploy er’ s evidenc e, and a n opportunity

to present his side of the story .” Id.
at 546; Buck

ner v. City of H

ighland Park, 901 F.2d 491, 494 (6th Cir. 1990). A public employ ee is
not entitled to a neutra l decisionmake r at a pre- termination hear ing. Duche sne v. W illiams 849 F.2d 1004, 1005 (6th Cir. 1988) ( en banc ). This is beca use t he purpose of a pr e-te rmination hear ing “ is
not to ‘def

initively resolve the propriety of the discharg e,’ as would be the case at t h e l ater formal hear ing.” Id. at 1007 (quoting Loudermill , 470 U.S. at 545). “[T] he require d extent of post-termination proc ed u re s i s inext rica bly intertwined with the
scope of pre- termination proce dures.” Carter v. W

. Reserv e Psychiatric Habilitati on Ctr. , 767 F.2d 270, 273 (6th Cir. 1985) (

per curiam ) (citing Loudermill , 470 U.S. at 547-48). I f a public employ ee

rec eives only “an abbre viated pre- termination hear ing, due proce ss requires t h at a discharg ed employ ee’ s post-termination hear ing be substantially more ‘mea ningf ul.’” Id. “At a minimum , this require s that the discharg ed employ ee be permitted to attend the hear ing, to have the assi s t an ce o f counsel, to call witnesses and produce evidenc e on his own behalf , and to kn o w an d h av e an opport u n i t y t o challenge the evidenc e ag ainst him.” Id. I n case s wher e an employ ee rec eives an abbre viated pre- termination hear ing, “the opportunity for a post-depriva tion hear ing befor e a neutra l decisionmake r
. . . is require d for due proce ss.” Farhat v

. Jopke , 370 F.3d 580, 596 (6th Cir. 2004) (empha sis re m o v ed ). “Where there is a sy stem of post-termination proce dures available to the employ ee that includes a neutra l decisionmake r and/or arbitra t i o n , coupled with a prete rmination

10Rodgers, et al. v. 36th District Court , et al.

No. 11-2201 ‘rig ht of reply ’ hear ing, then the employ ee has rec eived all the proce ss due under the Constit ution.” 2
Id. Atkins argues t hat t he dis trict court incorrec tly co n cluded that the pl aintiffs di d not rec eive
pre- termination heari n gs. The district court made contra dictory statements on this point. I t acknow ledg ed that “the Plaintiffs wer e provided with fairly substantial pre- termination proce dures, including (1) pre- termination meeting s, (2) meeting s wher e the termination decision was made, and (3) in all but four case s, the submissi on of the Plaintiffs’ g rieva nces throug h Step 4 of the CBA.” The district court also stated, however, that “the Pl aintiffs di d not rec eive a ny due proc ess bef

ore be ing terminated.” Such inconsistency is troubling, but Atkins’s ar gument ultimately is irrele vant. The plaintiffs do not challeng e the pr e-te rmination proce ss that they rec eived. They

argue that they

did
not rec eive hear ings befor e a neutra l decisionm ak er beca use Atkins denied their post-termination demands for

arbitration. This is enoug h to establish a constitutional violation under Farhat

. Atkins also argues that the plaintiffs are require d to exhaust available administrative and state
court reme dies, su ch as M i chig an Employ ment Relation Commi ssion or Way ne Circuit Court remedies, befor e they can demonstrate that they wer e deprived of their property rig hts without due
proce ss. In Mitchell , this court cons i d er ed wh en a plaintiff i s require d to show that available state

I n Mitchell v. Fank

hauser , which wa s decide d a fe w months a fter Farhat , we he ld that an 2 employ ee who rec eived an abbre viated pre- termination hear ing and no post-termination hear ing was denied due proce ss. 375 F.3d 477, 481 (6th Cir. 2004). We sug g ested in dicta that two hear ings are not alway s require d to satisfy due proc ess, ac knowledg ing that “[i] f the pre -termination hea ring is more ‘mea

ningf ul,’ as descr ibed in Carter , then no post-termination hear ing would be nece ssary .” Id. We need not addre ss the possibili ty that a single , compre hensive pre- termination hear ing befor e a neutra l decisionmake r could satisfy due proce ss, as it is undisputed that t h e plaintiffs did not rec eive suc h a hea

ring prior to their ter

minations. 11Rodgers, et al. v. 36th District Court , et al.

No. 11-2201
proce dures a

re inadequate to c ompensate him f or a de privation of prope rty in order to state a cla im under § 1983. 375 F.3d at 481. After an ex tensive s u rv ey o f this court’s sometimes contra dictory
prec edent, we conclude d that a plaintiff need not demonstrate the inadequa cy of state p rocesses in order to bring an action under § 1983 “whe re a depriva tion of proper ty is cause d by conduct pursuant
to established state proce dure, rathe r than random and u n au thorized conduct.” Id. at 482 (quoting
W atts v. Burkhart , 854 F.2d 839, 843 (6th Cir. 1988) (quoting Hudson v. Palmer , 468 U.S. 512, 532 (1984)) ); s ee a l

s o S ilberstein , 440 F.3d at 315 (finding that the rule requiring a § 1983 plaintiff to demonstrate the inadequa cy of a state’s post-depriva tion correc t ive proce eding s, established in
Parratt v. Taylor , 451 U.S. 527 (1981), applies “only wher e the depriva tion complained of is random and unpre dictable, suc h that the state c annot fe asibly provide a prede privation hea

ring ”). Atkins char acte rizes the plaintiffs’ claims as challeng es to the 36th Dis t rict’s unauthorized ref usals to arbitrate their g rieva nces. Howeve r, the plaintiffs wer e not terminated ra n d o mly or without authorization, but in confor mity with the 36th District’s established proce dure. At the time of the plaintiffs’ terminations, the 36th District consistently denie d t h e plaintiffs’ demands for arbitration, purportedly beca use the 36th District’s repr esenta tives believed that they had no duty to arbitrate in light of their belief that the CBA had terminated. Be cause the plaintiffs challeng e actions taken pursuant to established state proce dure, they are not require d to plead and prove the inadequa cy of administrative a

nd state cour

t remedie s in order to state a claim under

§ 1983.
I n sum, the fac ts, view ed i n t h e l i g ht most favor able to the plaintiffs, show that all three elements of a

proce dural due proce ss claim are met and that a c onstitut ional violation occurr ed.

12Rodgers, et al. v. 36th District Court , et al.

No. 11-2201 B. Second, we consider whether the constitutional violation involved a clea rly established rig ht of which a rea sonable person would have known. Feathers , 319 F.3d at 8 4 8

. I n order for a constitutional rig ht to be “cle arly established,” “[t] he contours of the rig ht must be sufficie ntly clea r that a re as o n able officia l would understand that what he is doing violates that rig ht.” Anderson v. Creighton , 483 U.S. 6 3 5 , 6 4 0 (1 9 8 7 ). “This is not to say that an officia l action is protec ted by qualified immunit y unless the very action in question has previously been held unlawful, but it is to
say that in the light of pre- exis ting law the unlawfulne ss must be appa rent.” Id. (citation omitted); Thomas v. Cohen , 304 F.3d 563, 580 (6th Cir. 2002). “When conducting an inqui ry t o d eter mine whether a constitutional rig ht is clea rly established, the law of our circ uit require s us to look first to decisions of the S upreme Court, then t o decisions of this Court and other c ourts within our circuit, and fina lly to the decisions of ot her circuits.” Daugherty v. Campbell , 935 F.2d 780, 784 ( 6th Cir. 1991). “[A]n action’s unl aw fu lness can be appar ent from direc t holdings, from specific examples descr ibed as prohibited, or from the g ener al rea soning tha t a cour t employ s.” Hensley

v. Gassman , 693 F.3d 681, 687 ( 6th Cir. 2012) (quoting Feathers , 319 F.3d at 848). Supreme Court and Six th Circuit prec edent clea rly establishes that public employ ees who
may be fired onl y for “just cause ” have property interests i n their continued employ ment protec ted by due proce ss. See, e.g. , Loudermill , 470 U.S. at 538-39; Singfield , 389 F. 3d at 566; Jefferson , 360 F.3d at 587. Farhat , which was decide d y ear s prior to the pl aintiffs’ t er m inations, establishes t hat the opportunity for a post-termination evidentiar y hear ing befor e a neutra l decisionmake r is require d

13Rodgers, et al. v. 36th District Court , et al.

No. 11-2201 for due proce ss. 370 F.3d at 596. There fore , the v i o l at i o n h ere involved a clea rly established constitutional right of w hich a r easona ble per son in Atkins’s posit ion would have known.
C. Finally , we consider whether Atkins’s actions we re obje ctively unrea sonable in light of the plaintiffs’ clea

rly established constitutional rig hts. Feathers , 319 F.3d at 848. Atkins argues that the district court err ed by failing to consider the circ umstances at the time that she acte d in deter mining whether her a ctions were objectively unrea sonable. The objective leg al rea sonablene ss standard require s courts to “ana ly ze[ ] claims of immunit y

on a fac t-specif

ic, case -by -ca se basis to deter mine whether a rea sonable officia l in the defe ndant’s position could have believed that his conduct was lawful, judge d from the perspe ctive of the

rea son ab l e officia l on the scene .” Cochran v. Gilliam , 656 F.3d 300, 306 (6th Cir. 2011) (citing Anderson , 483 U.S. at 640-41); Armstrong v. City of Melv indale , 432 F.3d 695, 699 (6th Cir. 2006) (“Whether qualified immunit y applies turns on the ‘objec tive leg al rea sonablene ss’ of the officia l’s action, viewed on a fac t-specifi c, case -by -ca se basis.”). The district court proper ly conclude d that Atkins’s subjective beliefs are irrele vant to the question of whether she acte d rea sonably

. See, e.g. , Caudill v. Hollan , 431 F.3d 900, 912 (6 t h Cir. 2005) (“[Q] ualified im munity is an objective rathe r than a subjective inquiry .”). The district court err ed, howeve r, by fail i n g to consider whether a

rea sonable officia l in Atkins’s position would have understood that she was violating the plaintiffs’ constitutional rig hts in light of the circu m s t an ce s at the time. We now consider whether Atkins’s actions we re obje ctively

unrea sonable unde r the c ircumstance s in which she ac ted.

14Rodgers, et al. v. 36th District Court , et al.

No. 11-2201 Atkins arg ues that at the time that the pla intiffs were terminated, it wa s unclea r (1) whe ther the CBA rema ined in eff

ect, and (2) how the CBA’ s termination would have aff ecte d the plaintiffs’
status as just-cause employ ees under Michig an law. Atkins argues that the 36th District’s ref usal to provide the plaintiffs with post-termination hear ings befor e a neutra l d ecisionm aker was not objectively unrea sonable, since it was not obvious that the plaintiffs wer e just-cause employ ees who

wer e entitled to this additional measure of proce ss. We need not addre ss how the CBA’ s termination 3
would have affe cted the plaintiffs’ st atus as j ust-cause employ ees under Mi chig an law beca use t he plaintiffs alleg e fac ts sufficie nt to show that a rea sonable officia l in Atkins’s position would not have thought that the CBA was proper ly terminated. The fac ts, viewed in the light most fa vorable to the plaintiffs, demonstrate that a rea sonable officia l w ould ha ve known that the CBA was still in e ffe ct during the time period in which the plaintiffs wer e terminated, that the plaintiffs wer e just-cause employ ees unde r the CB A, and that it was imprope r to deny their dema

nds for a rbitration. Atkins points to e vidence that she argues shows that it wa s objectively rea sonable for her to believe that Meadow s’s Marc h 2006 letter to Har ris terminated the CBA. First, an Aug ust 10, 2006, letter from Ha rr i s to Meadow s reg arding the 36th District’s canc ellation of schedule d contra ct
neg otiations acknow ledg ed that “AF SCME L ocal 3308’s contra ct expired on J une 30, 2006,”

Atk i n s als o arg

ues that under Michig an law an ag ree ment to arbitra te g rieva nces only 3 survives the expiration of a CBA, when the dispute conce rns the kinds of rig hts that vest during the term of the contra ct, and that the rig ht not to be discharg ed except for just cause does not vest, citing County of Ottawa v. Jaklinski , 377 N.W.2d 668 (Mich. 1985). Atkins contends that she rea sonably believed that the CBA terminated, and, there fore , that the plaintiffs had no contra ct u al rig ht to arbitration at the time their demands wer e denied. Whether the plaintiffs had a contra ctual rig ht to arbitration under the CBA is a separ ate question from whether they wer e just-cause employ ees with due proce ss rig hts under the U.S. Constit u t ion. The latter question is the only question that is rele vant to the qualified immunity analy sis. 15Rodgers, et al. v. 36th District Court , et al.

No. 11-2201

su gges t i n g t h at AFSCME considere d the CBA to have terminated and, there fore , that it was

rea sonable for Atkins to trea t the CBA as terminated as well. Second, an April 12, 2008, letter from
AFSCME’s attorney to a mediator also stated that the parties’ ag ree ment “expired on J une 30, 2006.” Third, on Aug ust 24, 2009, the Michig an Court of Appea ls ruled that the CBA had expired and that the plaintiffs in that ca se had not de monstrated that they had a c ontinuing rig ht to arbitration. 4
The plaintiffs counter that with the exception of the Aug ust 24, 2009, Michig an Court of Appea ls ruling , which was reve rsed a month later on a motion for reconsider ation, ever y arbitrator and state court to consider t h e i s s u e d uring the rele vant time period found that the CBA was not
proper ly terminated a

nd rema ined in eff

ect. Moreove r, t he plainti ffs argue that it was obvious that Meadow s’s letter did not termi n at e the CBA under the plain terms of the contra ct. Article 50 require d two steps to terminate the CBA: (1) written notice of intent to terminate the ag ree ment, and (2) some f

urther a ction to terminate the c ontrac t: This Ag ree ment s h all continue in eff ect for consec utive y ear ly periods afte r J une 30, 2006, unless notice is g iven, in wr i t i ng , by either of the Union or the Employ er, to the other party at l ea st ninety (90) day s prior to J une 30, 2006, or any anniver sary date there afte r, of its desire to modify , amend or terminate this Ag ree ment.
I f such notice is g iven, this Ag ree ment shall be open to modificati o n , amendment or termination, as such notice may indicate on J une 30, 200 6, or the subsequent annive rsar

y date, a s the ca se may

be.

Under Article 50, the CBA was to continue afte r its initial term of J uly 1, 2001 to J une 30, 4 2006 unless it was effe ctively terminated by eit her of the parties. Thus, the C BA could not rea lly “expire”— it ei t h er t erminated or continued. I t is unclea r what AFSCME repr esenta tives and the Michig an Court of Appe als meant when they used t he term “expired”: that the CBA ’s initial term had passed or that the CBA was no longe r in eff ect. To the extent that AFSCME repr esenta tives and the Michig an courts t reated the CBA as terminated, this may be rele vant to whether Atkins was objectively

unrea sonable unde r the c ircumstance s. 16Rodgers, et al. v. 36th District Court , et al.

No. 11-2201 First, the plaintiffs argue that Meadow s’s Marc h 2006 letter expressed “the Court’s intent to modify , amen d , o r t erminate all or parts of the [C BA ]” but did not specify which of those three options the 36th D istrict intende d to pursue. Second, the plaintiffs contend that even if Meadow s’s ambig uous letter did ex press the 36th District’s intent to terminate the C BA , the 36t h District took

no further action to terminate the contra ct. The Michig an Court of Appea ls acc epted these arguments when it held re cently

that Meadow s’s letter did not terminate the CBA: The first para g raph of article 50 must be understood in light of the second para g raph that expli citly states the ef fe ct of providing notice. “I f such notice is g iven, this Ag ree ment s h a l l b e o

p en to

. . . .” The second para g raph indicates that the 90-day notice is require d to prese rve the rig ht to modify , amend, or terminate the ag ree ment on J une 30, 2006, or a subsequent anniver sary date. The 90-day notice of the “desire to modify , amend or terminate” the ag ree ment is not itself eff ective as a modification, amendment, or

termination of the CBA. Rather, the CB A in this case c ontemplates some additional action. [The 36th District] does not point to any further action it took to terminate the ag ree ment. An aff idavit from [AFSCME’s] staff repr esenta tive states that [t he 36th District] “has never communicated in writing that it has terminated the coll ective barg aining ag ree ment.” There fore , the Marc h 1, 2006, letter d i d n o t terminate the CBA beca use it on l y re fe renc ed an intent to modify , amend, or terminate.
Fur thermore , [t he 36th District’s] conten t i o n t h at the Marc h 1 letter resulted in termination of the CBA ignor es the ambig uity of the lang uag e in the letter. The letter ref ere nced [ the 36t h District’s] int ent to “modify , amend or terminate all or parts of the L abor A g ree ment . . . .” A notice to terminate must be cle ar a nd expli cit . . . . A notice of modification is not a noti ce of termination and does not affe ct termination of the contra ct. When a party provides a notice that ref ers to an intent to both modify and terminate without spe cifying which one, the ambig uity of the notice destroy s its eff ectivene ss for any

purpose . . . . 36th Di s t

. C o u r t , 815 N.W.2d at 506-07(quoting the rea soning of a prior panel of the court in a rela ted case , 36th Dist. Court v. AFSCME Local 3308 , No. 2 9 1 6 4 3 , 2010 WL 2540940, at *2–3 (Mich. Ct. App. J une 24, 2010) ( per curiam ) (quotation mar ks and citations omitted)).

17Rodgers, et al. v. 36th District Court , et al.

No. 11-2201 We hold that the plaintiffs alleg e sufficie nt fac ts to l ead a jury to conclude that it was objectively unrea sonable for an officia l in Atkins’s position to believe that the CBA terminated and, there fore, t h at it was objectively unrea sonable to fire the plaintiffs and deny their demands for arbitration. Be cause the plaintiffs have prese nted evidenc e sufficie nt to cr ea t e a g enuine issue of materia l fac t on this point, it would be inappropria te to g rant summary judgme nt t o At k i n s on the basis of qualified immunity

. I I I

. Atkins argues that she is entitled to qualified immunit y beca use she mere ly supervised Meadow s, who handled da y -to-day human re source s matters, includingthe plaintiffs’ ter minations and the 36th District’s ref usals to arbitrate. She arg ues that the plaintiffs have not shown that Atkins

encour ag ed or condoned constitutional violations, as require d for her to be liable under § 1983 on a supervisory

liability theory

. The district court found that there is a g enuine issue of materia l fac t as t o the extent of Atkins’s involvem ent with the decisions to terminate the plaintiffs and to deny their demands for arbit ra t i o n
. This court lacks jurisdiction to consider “a district court’s summary judgme nt order insofar as that order deter mines whether or not the pretria l rec ord sets forth a ‘g enuine’ issue of fac t for trial.” Johnson v. Jones , 515 U.S. 304, 319-20 (1995). The only exception is “[w]hen opposing
p arties tell two differ ent stories, one of which is blatantly contra dicted by the rec ord, so that n o

rea sonable jury could believe it.” Scott , 550 U.S. at 380; Moldowan v. City of W arren , 578 F.3d 351,
370 (6th Cir. 2009) (finding that “whe re the trial court’s deter mination that a fac t is subject to

18Rodgers, et al. v. 36th District Court , et al.

No. 11-2201

rea sonable dispute is blatantly and demonstrably false, a court of appea ls may say s o , ev en on interlocutory

appea l”) (quoting W

ysong v. H

eath, 260 F. App’ x 848, 853 (6th Cir. 2008)). The district court’s conclusion that the plaintiffs demonstrated a g enuine issue of materia l fac t rested, in part, on an e- m ai l from Atkins to judge s and mag istrates discussing the plaintiffs’ terminations. Atkins argues t hat t he e-mail is hear say evidenc e, which c annot be c onsidered a t the
summary ju dg ment stag e, and sug g ests that the plaintiffs have prese nted no admissible evidenc e demonstrating Atkins’s inv o l v em en t with the plaintiffs’ terminations. Atkins’s argument fails for
two rea sons. First, Atkins’s e-ma il is not hear say , beca use i t is not being off

ere d to prove the truth of the matter asser

ted there in (that the terminated plaintiffs would not be returning to work). See Fe d.
R. Evid. 801(c) (def

ining “hear say ” as an out-of-court s t at ement that “a party offe rs i n evidenc e to
prove the truth of the matter ass erte d in the statement”)

. The plaintiffs offe r the e-ma il to demonstrate Atkins’s awa rene ss of and involvement with the decisions to terminate the plaintiffs and deny arbitra

tion. Seco n d , t h e district court’s decision also rested on documents from Meadow s
sug g esting that he lacke d authority to make decisions on critica l issues. There fore , the district court’s deter mination that there is a rea sonable dispute as t o At k i n s ’s involvement with the decisions to terminate the plaintiffs is not based solely on hear say , and its conclusion is not “blatan t l y and demonstrably false.” Moldowan , 578 F.3d at 370 (quotation marks a nd citation omitted). We lack jurisdiction to consider Atkins’s argument.

I V.

19Rodgers, et al. v. 36th District Court , et al.

No. 11-2201 For these rea sons, we aff irm the district court’s denial of Atkins’s motion for summary judgme nt on the basis of qualified immunity

.

20Rodgers, et al. v. 36th District Court , et al.

No. 11-2201 Martha Cra ig Daug htrey , concur ring

. I write separa tely only to note that we do not ha ve to

rea ch the question of whether a rea sonable officia l would have known that the CBA was still in eff ect
at the time the plaintiffs wer e terminated, beca use even if a rea sonable officia l would not have known that the contra ct was still in effe ct, Atkins still would not be entitled to qualified im munity . Under clea rly established Michig an law, at the expiration of a labor contra ct employ ers may not unilatera lly alter those “wa g es, hours, and other terms and conditions of emplo y m en t ” desig nated to be mandatory subjects of barg aining unless and until th e p ar ties have rea ched an impasse in their
contra ct neg otiations. Port Huron Educ. Ass’n ME A / N E A v. Port Huron Area Sch. Dist. , 550 N.W.2d 228, 234 (Mich. 1996) (quoting M.C.L

. § 423.215(1))

. “This prohibition ag ainst unilatera l

ac t ion prior to impasse serve s to foster labor peac e and must be liberally construed.” Loca l 1 4 6 7 , Int’l Ass’n of F

irefighters v

. Portage , 352 N.W.2d 284, 288 (Mich. Ct. App. 1984). Grieva nce and arbitration proce dures are mandatory subjects of barg aining under Michig an law, just as t h ey are under fede ral law labor law. County of Ottawa v. Jaklinski , 377 N.W.2d 668, 673 (Mich. 1985).
Henc e, a rea sonable officia l in Atkins’s position should have known t h at, even if the contra ct had expired, the plaintiffs wer e nonetheless entitled to the g rieva nce proce dures mandated by the CBA,
at least until an impasse had been rea ched in the contra ct neg otiations betwee n the union and the 36th District.

21