NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0374n.06 No. 10-1766 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT GARY STEVENS, Plaintiff-Appellant,

v. THETFOR D TOWNSHI P; EI L EEN KERR; J OHN C ONGDO N; CL YDE HOWD; J UL I E PAUL SO N; SHEL L Y AYOT TE; J AKE B ARTON, Def endants-A

ppellees, L UTHER HATCHET T, Def endant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON AP P E AL FROM THE UNI TED STATES DI STRI CT COU R T FOR THE EASTERN DI STRI CT OF MI CHI GAN

BEF ORE: GI L MAN, ROGERS, and STRANCH, Circuit J udg es. ROGERS, Circuit J udg e. This case involves a dispute over the sale of a small parc el of land in Thetfor d Township, Michig an, which the Thetf o rd T ownship Boa

rd of Trustee s voted to sell throug h a bidding proce ss to adjac ent landowner s for $900 instead of to Gar y Stevens for $2,008.57. Stevens contends that members of the Boa rd voted a g ainst him as retaliation for his past criticism of the Boa

rd and its individual members, and he appea ls from the district court’s g rant of summary judgme nt to Thetfor d Township and the individual Boa rd members. Howeve r, the evidenc e Stevens prese nts fails to support the infere nce that a majority of the Boa rd members acte d with a reta liatory

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motive. Since a majo ri t y v ote is nece ssary to eff ect the sale, Stevens cannot make the require d showing that reta liation was a motivating fac tor for the sale of the land to the other bidde r. I

. Gar y Stevens, a resident of Thetfor d Township, was by his own descr iption a “known, vocal critic” of the Thetfor d Township Boa rd of Trustee s (the Boa

rd). He attended Boa

rd meeting s regularly and often spoke out a t the m a g ainst policies adopted by the B oard, a

nd also wrote le tters to the editor of the local newspa per criticizing Boa

rd members. I n 2008, Stevens decide d to run for Clerk of Thetfor d Township, a position that would have place d him on the Boa rd, but in Aug ust he lost in t he primar

y to incumbent Boa

rd m ember J ulie Paulson. Cindy Hicks, an inc umbent Boa rd member who alig ned herse lf with Stevens, also lost. Stevens’s failed candida cy did not qu el l his criticisms; he continued to attend B oard me eting s and voice his opinions. At the September 8, 2008 Boa rd meeting , the pre- elec tion Boa rd was still in office

. The Boa rd considere d selling a triang ular parc el of land located close to the northwest corne r of Vienna and Center Roads in downtown Thet fo rd Township. The parc el is small and not subject to development, sandwiche d in the middle of sever al other plots. A strip of land called a “cle arvie w” border s the parc el on two sides and oc cupies the spa ce be tween the subject par cel a nd the stree ts. Be cause of the clea

rview, no portion of the parc el direc tly abuts a roadw ay . The clea rview, owned by the State of Michig an, is desig nated to rema in undevelope d so as to provide clea r sight lines for drivers a pproac hing the town’s ce ntral interse ction.

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The third side of the parc el is border ed by land owned by J ames and Kate Gerzetich, wher e the Gerzetiches have a hair salon. I n September 2006, the Gerzetiches had approa ched the Boa rd with a reque st to purcha se the subject parc el so that they could clea n up the brush and debris that had

acc umulated on it. The Boa rd declined the Gerzetiches’ reque st at that time, instead voting to lease the proper

ty to them for $1.00 per y ear . The Gerzetiches beg an clea ning and maintaining the parc el. I n September 2008, the Gerzetiches ag ain approa ched the Board about purcha sing the proper ty , citing their interest in doing further clea n-up work. The Boa

rd discussed this reque st at its meeting s on September 8 and 22, both of which Stevens attended and spoke at. The rec ord does not indicate which comments in the meeting minutes are attributable to Stevens. At the second meeting , the Boa rd voted to sell the proper ty and acc ept bids for its purcha se, which the Boa rd adver tised in a local newspa

per on the advice of the Township’s attorney

. The Boar d also rec eived a valuation of the subjec t property

from the township asse ssor in the amount of $900. At the next meeting , held on October 27, 2008, the Boa rd revie wed the two seale d bids it had

rec eived for the proper

ty

. The Gerzetiches had submitt ed a bid of $900, and Stevens had submitt ed

a bid of $2,0 0 8

. 5 7

. Boa rd member Eileen Ker

r then moved to sell the subject parc el to the Gerzetiches. She testified in her deposition that such a motion was the proce dural mecha nism throug h which a Boa

rd member prese nts an issue first for discussion and t h en for a vote by the Boa rd. Board m em b er J ohn Congdon expressed conce rn with the future owner ’s acc ess to the landlocked plot and asked Stevens if he had proper ty abutting the subject parc el. Stevens stated that

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he did not. Congdon then asked Stevens how he planned to acc ess the parc el, and Stevens said that he would acc ess it from Vienna Road. Congdon stated that he was not comforta ble proce eding with the vote until the Boa

rd knew whether an individual would h ave acc ess to the parc el acr oss the clea rview. The Boa

rd agree d to investigate the ac cess issue, a nd Ker r withdrew

her motion. After the meeting , Ker

r was alleg edly overhe ard telling fellow Boa rd member Shelly Ay otte that “ther e was no way that Gar y Stevens would ever g et the subject proper ty .” Ker r’s justification for this statement, offe red at her deposition, was that she believed that the Boa rd would not sell the parc el to any one who did not have acc ess. After the meeting , township assessor J ill Edson emailed Steve Gasser , a repr esenta tive from the Michig an De partment of T ranspor tation (MDOT), w ith the following que stion: The Boa rd of Trustee s has asked me to inquire as to whether a parc el which is owned by the township, located at the corne r of Vienna and Center Roads has acc ess throug h the clea r-view are a. I f y ou could g ive me wh at ever information you have with reg ards to this issue, I would g reatly

appre ciate it. Gasser responde d in releva

nt part: MDOT owns a clea

r vision corne r at all 4 quadra nts of M-57 and Center Road. MDOT does not allow acc ess throug h these corne rs since they wer e purcha sed for the purpose of

sight vision safe ty

. During his deposition, Gasser acknow ledg ed that he was considering only vehicular acc ess when he responde d to the inquiry , and he believed that pedestria ns could walk acr oss the clea rview, but the only information the B oard r ece ived was this email re sponse.

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Be fore the next meeting , the newly elec ted members o f t h e Bo ard assumed the positions

vacated by their outgoing prede cessor s. The new Boa rd was comprised of four incumbent members

— Ay otte, Congdon, Ker r, and J ulie Paulson — an d t h ree new members — J ake Ba rton, Cly de Howd, and S. Piechnik. The next Boa

rd meeting took place on November 24, 2008. Stevens attended this meeting , but the rec ord does not indicate whether he spoke. Howd noted the email from Gasser and moved to sell the subject parc el to the Gerzetiches, and Ker r seconde d the motion. The Boa rd discussed the proposal, and new Boa

rd member Piechnik q

u e s ti o n e d wh e th e r th e o wner of another adjoining parc el

was awa re of the bidding proce ss. Only Piechnik voted ag ainst Howd’s motion; the rema ining six Boa rd member s voted to sell the proper ty to the Gerzetiches. Eac h of these six Boa

rd members has provided an aff idavit in which the member asser ts that his or her vote was based primarily on the accessibility issue — rely ing on t h e em ail from Gasser

as a blanket prohibition on acc ess — and denies that the member was motivated by S t ev en s’s criticisms. Stevens points out, howeve r, that any one can acc ess t h e p arcel by walking acr oss the clea rview, a fac t that some of the B oard me mbers admitted to silently wonder ing about but which none questioned a loud. I n Fe bruar

y 2009, Stevens filed a complaint in fede ral court ag ainst Thetfor d Township and all members of the Boa

rd ot h er than Piechnik. Around this time, a local newspa per ran a story

cover ing Steve ns’s lawsuit. The story included the f

ollowing quote f

rom Ker r: The rea son I pref

err ed (Ge rzetich’s) bid was beca use I didn’t understand why any one would wa

nt a small piece of landlocke d proper ty

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I n the end, I thought it would crea te more conflict. I had people contac t me telling me that he was g oing to torture the Ge rzetich’s [sic] ever y time the y wanted to use their fr ont door. Ididn’t see the pur pose and I

still don’t. Ididn’t mean to embar

rass Mr. Stevens. And I don’t think that any one has violated his rig ht to free speec h. Stevens asserts that Ker

r actua lly made this comment prior to the vote and the lawsuit, but he provides no support for

this alleg ation. After completing discovery , the defe ndants filed a motion for summary jud gm ent. The district court g rante d the motion, finding that Stevens “ha[d] not prese nted evidenc e indicating that his bid was not acc epted out of a motivation to reta liate ag ainst him for exercising his constitutional ri gh t s ” and there fore had not cre ated a g enuine issue of materia l fac t to withstand summ ar y judgme nt. Stevens has timely appea led that dec ision.

I I

. Stevens’s appea l fails beca use he cannot make the requisite showing of a causa l connec tion betwee n the alleg edly adver se action of the Boa rd and his protec ted conduct. No one disputes that Stevens’s criticism of the Township Boa rd is protec ted conduct, which is the first nece ssary showing for a reta liation claim. See Paige v. Coyner , 614 F.3d 273, 280-81 (6th Cir. 2010), wher e we held that voicing an opinion at a p ublic hear ing about a proposed public works projec t is protec ted conduct. Nor does any one dis pute t hat t h e Boa rd’s decision to sell the property to a lower bidder could be considere d an adver se action ag ainst Stevens, one “th at wo u l d l i kely chill a person of ordinary firmness from continuing to eng ag e i n [t he protec ted] activity ,” the second require d showing , see id. at 277. Howeve r, to demonstrate a causa l connec tion betwee n the protec ted conduct

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and the Boa

rd’s action, Stevens must “prof fer evidenc e sufficie nt to raise the infere nce that his

. . . protec ted activity was a motivating fac tor for the adver se decision.” See Arnett v. Mye rs , 281 F.3d 552, 560 ( 6th Cir. 2002). This he has fa iled to do. S t evens has failed to make the requisite showing that his criticisms of the Boa rd we re a motivating fac tor for a majority of the Boa rd’s members, and only a majority would be able to eff ect the adver se action of selling the proper ty to the other bi d d er s . This circ uit has explained that a motivating fac tor “is one without which the action being challen ged s i m p ly would not have been taken.” Holzeme r v. C i t

y of Mem phis , 621 F.3d 512, 525 (6th Cir. 2010) (citation and internal quotation marks omitted). An argument of motivation “must point to specific , nonconclusory alleg ations rea sonably linking [pl aintiff’s] speec h to [t he ad v e r s e action].” Veree cke v. Huron Valley Sch. Dist. , 609 F.3d 392 , 4 00 (6th Cir. 2010) (citation and internal quotation marks omitted). Stevens has not cre ated a g enuine issue of materia l fac t with respe ct to enough of the Boa rd members to show that but for a r etaliatory motive, he would have been sold the pr operty at issue. Stevens’s case is wea

kest ag ainst the two incoming Boa rd members named in his suit, Ba rton and Howd. These individuals wer e not Boa rd memb er s at t h e time of Stevens’s confirme d most

rec ent critica l comments, and those comments wer e not aimed at them. Al t houg h Stevens has supplied aff

idavits in which Barton and Howd admit to being awa re of his irksome nature, he has prese nted no evidenc e that either Ba rton or Howd was aff

ecte d by any of his comments. The rec ord does not sug g est that either of these two members was alig ned with the incumbent defe ndants in the elec tion; indeed, Ba

rton ran on Stevens’s slate during the p ri m ar i es . The only other fac t offe red

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ag ainst the new Boa

rd members that could sug g est a reta liatory motive on their part is that they

acc epted such a signific antly lower bid on the proper ty , which was arguably ag ainst the Township’s interests. These fac ts do not imply a reta liatory motive for their votes. Stevens has failed to prese nt sufficie nt evidenc e of a causa l connec tion betwee n his criticisms and the decision of these two Boa rd members to vote in fa

vor of se lling the pa

rce l to the Gerzetiche s. Stevens’s case also fails ag ainst Congdon, the incumbent Boa rd member who first raised the issue of acc essibility for the parc el beca use of the clea

rview. The only additional evidenc e offe red ag ainst Congdon is that he w as pre sent for a nd the object of

some of Stevens’s c riticisms. This is not enoug h; the mere temporal proxi mity of Stevens’s criticisms to Congdon’ s vote cannot support the i nfer ence of a reta liatory motive in this case . The bare fact that an adverse action occurs after the plaintiff’s protec ted conduct is g ener ally not suf ficient in itself to support an infe renc e that the defe ndants acte d with a reta liatory motive without additional evidenc e of causation. See Farmer v. Cleveland Public Power , 295 F.3d 593, 602 (6th Cir. 2002). Given the objective rea sons for selling the land to the Gerzetiches — including their past maintenanc e of the proper ty and their rea dy acc ess to it — temporal proxi mity alone is not signific ant enoug h here to cre ate an infere nce of reta liatory motive. This is not a ca se like Arnett v. Mye rs , 281 F.3d 552, wher e Tenne ssee Wil dlife Resource s Ag ency ag ents remove d and destroy ed the Arne tts’ duck blinds shortly afte r Gar y Arne tt’s criticism of the Ag ency ’s manag ement of a lake. There , many unreg istered blinds exis ted at the lake, but only the Arne tts’ blinds wer e destroy ed. The ag ents’ actions wer e more targ e te d and more retributive than

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those in this case . Her e, Congdon simply declined to acc ept Stevens’s bid. Stevens also offe rs fac ts that are less convincing than those in Paige v. Coyner , 614 F.3d 2 7 3

. T h er e, Paige criticized a proposed inter state projec t at a public hea ring conducte d by

the port-a

uthority executive di rec tor. The direc tor took it upon herse lf a wee k later to call Paige ’s employ er, to whom s h e gave false repor ts on what Paig e had said at the meeting , which alleg edly resulted in Paig e’s dismissal. This court concluded that Paige had alleg ed suff icient fa cts to withstand summary judgme nt, including evidenc e that the officia l had exhibi ted a “visibly neg ative rea ction” to Paige ’s comments and made alleg edly false statements to he r employ er. Id. at 282-83. Her e, there is no e vidence of a neg ative

rea ction on Congdon’ s part to Stevens’s criticisms, and his actions are far less nefa rious. The case s do not support the infere nce that Congdon had a reta liatory motive when he voted ag ainst Stevens. Even if the evidenc e Stevens prese nts a g ainst Congdon wer e enoug h to c reate an infere nce that his vote was motivated in part by Stevens’s criticisms, Congdon h as m et h i s burden under Kennedy v. City of Villa Hills, Ky. , 635 F.3d 210, 218-19 (6th Cir. 2011) , of “demonstra t[ ing] that he would have t ak en t h e s ame action in the absenc e of the protec ted activity ” (interna l citations, quotation marks, and brac kets omitted). This burden is a high one; the evidenc e must be “such that

ever y rea sonable juror would conclude that the def endant met its burden of showing that it would have taken the same action even in the absenc e of the protec ted conduct.” Arnett , 281 F.3d at 561 (citation omitted). Cong don has satisfied his burde n. Congdon has signific ant evidenc e supporting his asser tion. He was the one who first broug ht

u p t h e i s s ue of acc ess to the proper ty , a move that delay ed the actua l vote on the propert y fr o m

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occur ring until afte r the new Boa rd was seate d. Gasser ’s em ai l i n fo rm ed the Boa rd that acc ess

acr oss the cl ea rv iew was not allowed, which was precisely the concern Congdon had raised. The lower bid acc epted by the Boa rd equale d the assessment value of the proper ty

. The Gerzetiches had

car ed well for the proper

ty during their lease , had in fac t sug g ested the sale in the first place , and had

a continuing interest in its upkeep. The proper ty had no discernible use. Although “[a] defe ndant’s motivation for taking action ag ainst the plaintiff is usually a matter best suited for the jury ,” Paige , 614 F.3d at 282, wher e, as here , ever y rea sonable juror would find that Congdon would have voted the same e ven abse nt Stevens’s criticisms, summary judgme nt must st and. We need not consider the rema ining Boa rd members. Stevens has not prese nted enough fac ts for a preliminary showing of retaliatory motive for at least four of t he Board members, and so his appea l must be dismi ssed. I f re taliation served a s the motivating fa ctor for less than a majority of the seven- member Boa

rd, the ultimate decision would not chang e and so reta liation could not serve as the but-f

or ca use of the B oard’ s decision as a whole. I I I

. The evidentiar

y issue that Stevens raises in a footnote is easily resolved. Stevens argues that the defe ndants improperly supported their motion for summary judgme nt with aff idavits replicating t h ei r d ep osition testimony in lieu of filing the actua l depositions. We find no issue with t h es e actions. The aff

idavits wer e made on persona l knowledg e, set out fac ts that would be admissible in evidenc e, and showed that the aff iants wer e competent to testify on the matters stated. They satisfied all the require ments for aff idavits used to support a motion for summary judgme nt under Fe d. R. Civ.

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P. 5 6 (c )(4). Nothing in Fe d. R. Civ. P. 56(c) (1)( A) sug g ests that one ty pe of support, such as a deposition, is pref

era ble to a nother, such as a

n aff idavit. Stevens does not appea r to cha lleng e the aff idavits on any of the g rounds listed in Rule 56(c) (4), but simply beca use they wer e duplicative. He argues that the depositions should have been used instead. Since Stevens subsequently order ed the deposition transcr ipts, both parties have now had the opportunity to s u b m i t t h e portions they deeme d rele vant to support their respe ctive positions, and so we have had the opportunity to consider both. Our judg ment rema ins unchang ed. I V. We affir m the judgme nt of the district court.

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Ronald Lee Gilm an, concurring. Although I concur i n t h e decision rea ched by the lead opinion, Ido so relucta

ntly . My conce rns ar e as f

ollows: First, reta liation for Stevens’s criticisms of the Boa rd need only be “ a motivating fac tor for the adve rse de cision.” Arnett v. My ers , 281 F.3d 552, 560 ( 6th Cir. 2002) (empha sis a dded). The fac t that the Boa

rd may also have been motivated by rea sons other than reta lia t i o n d o es littl e to demonstrate that they “w ould have taken the same action in the absence of the protected activity ” or to absolve them of

liability for their decision. See Kennedy

v. City of Villa Hills, Ky. , 635 F.3d 210, 218-19 (6th Cir. 2011) (interna l quotation marks omitted). I believe that a rea sonable juror might conclude that, despite the justifications advanc ed by the lead opinion, r etaliation serve d as a motivating fa ctor for

sever al of the B oard me mbers. Second, I rema in tr o u b l ed b y the fac t that the vote of the Boa rd’s majority appea

rs to g o ag ainst the best interests of the Township by choosing to acc ept less money for the land in question without a g ood rea son in the rec ord for doing so. When f ace d with a decision to take more money

versus less money for the same parc el o f T o wn s h i p l and, one would think that the Boa rd would choose the highe r bid without reg ard to the pe rsonal cha rac teristics of the diff

ere nt bidders. I f the disparity betwee n the two bids had bee n much larg er—sa y , for e x ample, $10,000—I believe that this court could more rea dil y d ra w an infere nce of reta liatory motive solely from the Boa rd’s action. But the roug hly $1,100 differ ence betwee n the two bids is surely no more than a tiny fra ction of the Township’s total annual budg et. Any infere nce that could be draw n from this small differ ence is undermined by the fact that two of the new Boar d members voted for the lesser bid.

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That they voted ag ainst the appar ent best interests of the Township is puzz ling, particula rly considering that they had never been subject to Steve ns’s criticisms. Neve rtheless, their decisions sug g est that rea sons other than reta liation motivated the votes of at least some of the Boa rd members. Despite the above conce rns, I concur with the lead opinion’s conclusion that Stevens has not prese nted suffic ient evidenc e to support a f inding that either of the two new Boa rd members, J ake Ba rton and Cly de Howd, acte d with a reta liatory motive. On the other hand, I find the case ag ainst J ohn Congdon at least plausible. Con gdon, an incumbent member of the Boa rd, was prese nt for many of Stevens’s critica l rema rks at Boa

rd meeting s and also ran ag ainst St ev en s o n Ke rr ’s and Paulson’s elec toral ticket. The case ag ainst him is bolstered by the temporal proxi m i t y betwee n Stevens’s criticism and the Boa rd’s action. See Arnett , 281 F.3d at 560-61 (asse rting that temporal proxi mity may serve as circ umstantial evidenc e of a defe ndant’s reta liatory intent). And the evidenc e in the rec ord g ives rise to a rea sonable infere nce that Boa rd members Eileen Ker

r and J ulie Paulson may

have be en motivated by

reta liation. But one more Boar d member was s till require d to have acted w ith a reta liatory motivation in order for St evens’ s case to survive sum mary judgme nt , and thi s is wher e I believe that his case fails. Stevens’s claim ag ainst Shelly Ay otte is limit ed to the fac t that she was an incumbent Boa rd member who voted ag ainst his bid for the land in que stion. As a result, I find nothing more than a scintilla of eviden ce t o s upport Stevens’s claim ag ainst her. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252 (1986) (“The mere exis tence of a scintilla of evidenc e in support of the plaintiff’s position will be insufficient; there must be evidenc e on which the jury could rea sonably find for the

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. I f the rec ord included even a bit more evidenc e of a reta liatory motive on Ay otte’s part, Iwould be inclined to re verse and re mand this case f or a jury deter mination. Divining a party ’s motivation is g ener ally rese rved for the jury , and the defe ndants must meet

a very high burden of demonstrating that no rea sonable ju ro r wo u l d find in Stevens’s favor

. See Arnett , 281 F.3d at 561. But without more evidenc e of a reta liatory motive ag ainst Ay otte, I find my self in ag ree ment with the lead opinion. I there fore concur .

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