NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0491n.06
No. 10-2304
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

BEN UPTON, Plaintiff-Appellant,

v. CI TY OF ROYAL OAK; J I M EL L I SON; TOM HOOVE R; MARY J O DI PAOL O; C. BRI AN J AMES, Def endants-A

ppellees. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL F ROM THE UNITED STATE S DISTRICT COURT F OR THE EASTE RN DISTRICT OF M ICHIGAN

BEFORE: SILE R, ROG ERS, an d WHIT E, Circuit Judges.
HELE NE N. WHITE , Circuit Judge. Be n Upton appea ls t h e d i s trict court’s g rant of
summary judgme nt to Def endant City of Roy al Oak, his forme r employ er, and the individual Def endants, City officia ls he alleg es participa t ed in terminating his employ ment as a 1
firef ighte r/para

medic. Upton alleg ed t h at Defendants terminated him in reta liation for his speec h and activities in support of a ballot proposal that called for a minimum ratio of firef ighte rs to Roy al Oak’ s population (the manning initiative), deprive d h i m o f due proce ss both pre- and post- his termination, and pa

rticipated in a

civil conspirac y . We AFF I RM in part and REVERSE in part.

Def endant Ellison was the May or of Roy al Oak at all pertinent times, Def endant Hoover the 1 City Manag er, Defe ndant J ames the Assistan t City Attorney , and Defenda nt DiPaolo the Director of Human Resour ces.No. 10-2304

Upton v. City of Royal Oak, e t al.
I Upton beg an employ

ment as a firef

ighte r for Def

endant City of Roy al Oak (the City ) in
Fe bruar y 1992, and beca

me president of the firef

ighte rs’ union in 1996, an office he hel d at all pertinent times. I n the fac e of the City ’s considering substantially reduc ing firef ighte r personne l, Upton and the firef

ighte rs petitioned in the spring and summer of 2004 to place the manning initiative on the November 2004 ballot. The initiative cause d discord betwee n Upton and City officia ls. Upton’s on-the-job injury - June 8, 2004
On J une 8, 2004, during the period when Upton and the firef ighte rs wer e petitioning for the manning initiative, Upton slipped and fell from a fire t ru ck afte r fighting a fire. He was admitted to the hospital a

nd diag nosed with shoulder and ne ck injuries, including acute my ofasc ial cer vical strain. Fr om J une 8, 2004, Upton was in and out of work, on light duty , sick leave and injury leave

. I n the interim, Def

endant Tom Hoover was appointed City Manag er in the summer of 2004. The City sent Upton for an independe nt medical examination (I ME) by Dr. Xeller

. Dr. Xeller

wrote the City ’s insurer, Citi zens Manag ement, I nc., on J anuar y 4, 2005, that he had e x amined Upton six months afte r the J une 8, 2004 work injury , and that Upton’s resulting c e r v ic al strain had resolved. Upton returne d to work but the fire chief sent him home beca

use he w as on medica tion.
Be g inning in Feb ru ary 2005, Upton used his sick day s, and sick day s donated by other employ ees, a

nd then was of

f work on le ave w ithout pay

. Upton filed a w orker ’s compensa tion claim in April 2005. R. 37-24 at 2.

-2-No. 10-2304

Upton v. City of Royal Oak, e t al. On April 16, 2005, one of Upton’s neurosur g eons, Dr. Ho, deter mined that Upton was able

to return to work without restric tion as of May 4, 2005. Upton did so and worke d for sever al wee ks.
Howeve r, following a chec k-up on May 31, 2005, Dr. Ho rest ri cted Upton from li fting more than
35 pounds: “per

manent restric tion of no lifting g rea ter than 35 lbs dx 721.0 cer vical spondy losis.[ ]” 2 Upton repor

ted to work the f

ollowing da

y but was told to go home

. On J une 28, 2005, Def

endant Assistant Cit y

Attorney C. Bria n J ames sent a

memorandum

to Def endant City Manag er Hoover stating that Upton should be and was offe red a police dispatcher position beca

use t he C ity was o n we ak g round i n the worker’s compensation case and that Upton had ac cepte d the offe r:

The City Manag er [Defenda nt Hoover ] and the May or [Defenda nt J im Ellison] and the City Commi ssion may be awa re that firef

ighte r Be n Upton has been off work due to medical reas o n s fo r the past sever al m onths. For the beginning of that time the City was pay ing worke r’s compensa tion benef its and then those benef

its wer e terminated by the City

. Since the termination of the w/c benef its Up t o n has been using his sick bank and day s proff ere d to him by other firef

ighte rs. For the past month he has been on leave without pay
. Upton has long ag o exceede d the 60 [day ] maxi mum for light duty in the fire depar tment

. T h er e i s an upcoming mediation hear ing reg arding the worke r’s comp case for Thursday

. After consultation with and betwee n the City ’s worke r’s c omp attorney , [Defenda nt] MJ Dipaolo [ sic ], Human Resource s Direc tor and our own off ice, it has be en conc luded that the best case for the City would be to offe r Upton a job within the ROPOA as a P S A (d i s patche r). Upton acc epted the position today

. The City will drop its co n test (we are advised that the City is in a very prec arious position in that litigation any way ) to the previously su s pended worke r’s comp benef its. This resolution provides sever al plusses [ sic ] for the City

. I t may also provide a minus or two when one or both of the police and f

ire unions file a

g rieva nce( s).

Cervica l Spondy losis i s a disorder in which there is abnorma l wea r on the car

tilage and 2 bones of the neck (ce rvica l verte brae ), and a common cause of chronic neck pain. See MedlinePlus Medica l Ency clopedia at www. nlm.nih. g ov/ medlineplus/ ency / article/ 000436.htm

.

-3-No. 10-2304

Upton v. City of Royal Oak, e t al.

The City will avoid most of the c ost of continuing to c ontest the w/c matter at which we are advised is e x tremely unlikely for the City to pr evail. We w ill have the comp lawy er continue to pursue discovery as to Upton’s “side job”. The City at least halves its exposure for pay ing Upton w/c or disability benef its. By employ ing Upton the City g ets a dispatcher position filled without pay ing extra benef its to a new hire. The C i t y re d u ces its w/c ex posure from 80% of $70,000 +/- to providing the differ ence betwee n the dispatcher ’s salary ($34,000-$38000) and t h e 8 0 % of the firef ighte r salary

. I n round numbers that reduc es the City ’s liability by not less than 50% without taking into acc ount the added benef it of not pay ing additional benef its to a brand new PSA. The City avoids cre ating a new “lig ht duty ” past prac tice at the fire depar tment. The City cre ates a new “past prac tice” of slotti ng th e i n jured elsewhe re in the City , I F a position is vaca

nt and appr opriate . . . . The w/c ag ency will mandate that Upton participa te in voc reha b to try to return Upton to full health. The dispatcher job ma

y provide a dded ince ntive to U pton to reha

b himself to tr

y to expedite his return to full time duties at the fire house. As alway s, I thank y ou and MJ Dipaolo [ sic ] for y our cooper ation. Please call me if y ou have any questions

. . . R. 37-6. That afte rnoon, Def endant C i t y Manag er Hoover forwa rded Def endant Assistant City Attorney J ames’s me mo to the Cit y Commi ssioners stating : The attached report from Br ian J ames in the Att orney ’s Office is forwa rded to y ou for y our information. We have been dealing with Mr. Upton’s Workers Comp case for the past sever al months. The solution that Mr. J ames descr ibes has been thought out by [t hen-City Attorney ] Mr. Semchena [ ], Mr. J ames, Ms. Dipaolo [ sic ],t he 3 Workers’ Comp Attorney and my self.
I n approving the filling of vaca nt positions in the Police Depa rtment last wee k by the Commi ssion, we included the filling of the vaca nt PSA position. By filling it in this fashion, we resolve se vera l matters, as de scribed by Mr. J ames. I plan on moving forwa

rd with this resolution unless any of y ou have conce rns. I t is an administrative resolution that I s trong ly rec ommend. I must implement this by this Thursday , which is the end of the month.
R. 37-6 at 2.

Semchena was appar ently Def endant J ames’s boss and Roy al Oak’ s City Attorney until he 3 retire d in September 2005. R. 37-25 a t 8. -4-No. 10-2304

Upton v. City of Royal Oak, e t al. Howeve r, Def

endants withdrew the dispatcher position offe r the following day , and offe red Upton a part-time, non-union position as a code enfor ceme nt office r, which he declined beca use it

was a n at-will position and the City was implementing lay offs a t the time. Upton consulted with another neurosur g eon, Dr. Sidhu, who, by letter dated J une 30, 2005, disag ree d with Dr. Ho, noting that he had seen Upton and “[a]t this stag e, clinically he does not need
opera tive intervention. Fr om my viewpoint, he can return to work without restric tions and I g ave him a note for tha t.” R. 37-11 at 2.
I n late J uly 2005, the City and its I nsuranc e Adjuster, Donna Har t, sent Upton for a functional
capa city test at Be aumont Hea lth Centers Work A bility Prog ram. The attending phy sical thera pist

rec ommended that Upton underg o a work-ha rdening prog ram. See R. 30-8 at 17-18 (“I t would
appea r that Mr. Upton would be a go o d candida te for a work harde ning prog ram. The prog ram would focus on incre asing his overa ll streng th and endura nce, as well as toleranc e to job rela ted postures and positions and duties that he would entail as a para medic as well as a firef

ighte r.
. . . I f
Mr. Upton was to enroll in work harde ning, he would need a phy sician presc ription as well as insurance authorization.”)
I nsuranc e Adjuster Har

t testified on deposition that she decide d ag ainst approving the workharde ning progr am beca

use the reha

bilitation specia list who conducte d Upton’s study could not
g uara ntee that Upton would be able to re turn to work at f ull capac ity

. The City sent Upton for another I ME by orthopedic surg eon Dr. May er, who conclude d that Upton was able to return to work without restric tion. See R. 30-8 at 16 (“A fter revie wing the MRI films, my opinion as di ctated on June 24, 2005, rema ins unchang ed. I find no objective reason to
-5-No. 10-2304

Upton v. City of Royal Oak, e t al. indicate any need for perma nent restric tions or restric tion from return to full unrestric ted work place activities.”)
I n t he meantime, Def

endant Human Resource s Direc tor DiPaolo worke d with I nsuran ce Adjuster Har

t on Upton’s worke r’s compensa tion claim. Har t testified that Citi zens Manag ement’s worke r’s c ompensation attorney , Paula Murra y , sent her the following on Aug ust 24, 2005: 4
ATTORNEY CON TACT 8/11/05 J ust finished t h e confe renc e call on Be n Upton. He has reta ined an attorney , Mr. Akhtar, w ho was in on the tele phone conf ere nce . . . . I t is Mr. Upton’s position that he did not re p o rt to work at the part time code enfor ceme nt job which the city offe red via email, beca use it was not the job that had been discussed in his meeting with the City

. He claims that he tried to call the City for c larifica

tion, but had no response to his ca lls. His attorney

has sug g ested that the pr incipals g et tog ether in a fac e to fa ce me eting to see if we can hammer o u t an ag ree ment reg arding a potential return to work. Given my understanding that the City wants t o push this man into a disability retire ment, I do not know that they would enter tain. This needs to be discussed with them. I would sug g est a c onfer ence call. The file has been place d on a continued mediation date of 8/24/05 at 10 : 0 0

. . . . Please a dvise how y ou wish to procee d.
R. 37-22 at 2. A sec ond “Notepa d Detail” dated September 12, 2005, states:
EMPL OYER/I

NSURED CONTACT meeting with si [self insured] on 9/8/05 c laim disc ussed in de tail the ee [employ ee] will have a m eeting with the d i s ab i l ity board we wil l awa it to see if they are g oing to turn him down for duty disability or fo rc e h im into reg ular retire ment . mary

jo [Defenda nt DiPaolo] will provide the board all information we have g ather ed as well as dr may er ime we are hopeful they will code it a reg ular retire ment. I f they do g ive

Har t testified these we re e x cer pts of emails she re ceive d and save d to her Note pad. 4 -6-No. 10-2304

Upton v. City of Royal Oak, e t al. him a duty disability it will certainly hurt our wc case
. The meeting is on 9/21 our new tria l date is 10/12/05.
R. 37-21 at 2.
Defendan ts involu ntarily ret ire Upton Around September 2005, Def endants applied to the C i t y ’s Employ ees Retirement Sy stem
Boa rd of Trustee s for Upton to be retire d on a disability

. I n mid-September, Upton rec eived notice

5
that his retirem en t would be considere d at a Boa rd of Trustee s meeting on September 21, 2005. Def endants provided eac h member of the Boa rd a larg e packe t of documents pertinent to U pton in advanc e of the meeting ; the packe t included extensive medical a nd pay roll rec ords.
I n advanc e of the meeting , Def endant Huma

n Resource s Direc tor Mary J o Di Paolo sent a memo to the Boa

rd of Tr ustees date d September 15, 2005, stating : Be n Upton is a 15-y ear [ sic 13-y ear ] fire fig hter with the City

. . . Mr. Upton alleg es that on J une 8, 2 0 0 4 he fell from a Fire Depa rtment vehicle causing an injury that preve nts him from perfor ming the e ssential duties of a Roy al Oak f ire fig hter.
Fr om J une 8, 2004 until May 31, 2005 M r. Upton has been in and out of work on injury leave , light duty and sick leave

. Please ref er to the enclose d pay

roll rec ords. On May 31, 2005, Mr. Upton’s persona l phy sician stated that he must work light duty on a perma

nent basis. The Fire Depa rtment has a light duty provision for only 60 day s, which has been exhausted. Be cause Mr. Upton’s leave banks w ere depleted, he has been on leave without pay since that time. Due to Mr. Upton’s claim that he is perma nently unable to perf

orm the essential duties of a fire fig hter, the City Manag er has applied to the Retirement Boa rd to place him on disability retire ment.

Def endant City Manag er Hoover was on the five-me mber Boa rd of Trustee s. R. 30-6 at 26. 5 The rema ini n g fo u r members wer e J an Hunt, chair person; Ron Race ; Pat Cappello and Michae l Andrzejak. R. 37-19 a t 3. -7-No. 10-2304

Upton v. City of Royal Oak, e t al. R. 37-19 at 2. Def

endants Hoover and J ames asked the Boa rd of Trust ee s t o d etermine whether Upton’s on-the-job injury was the cause of his disability and whether to retire Upton on a non-duty disability

. As Hoover and J ames recommende d, the Board c o n cl u ded that Upton’s di sability was not duty -re lated and vote d to involuntarily retire him on a non-duty

disability

. Worker’ s Com pensation p roce eding 6
I n 2007, sever al y ear s afte r Def endants terminated Upton’s employ ment, h i s wo rker’s
compensa tion claim went to trial. The worke r’s compensa tion mag istrate issued her decision in May 2009, afte r Upton filed the instant suit, and held that Upton “met his burden in establishing that but for the work rela ted injury he sustained on J une 8, 2004, he wou l d h av e been able to continue to work as a firef

ighte r until such time that he rea ched reg ular retire ment ag e.” R. 37-24. The
mag istrate observe d: “ the City ’s decision as to w hich [m edica l] opinion to rely upon was arbitra ry and capr icious, when the City choose [ sic ] not to use the same doctor’s opinion in deter min i n g whether the plaintiff’s disability was work rela ted as they did to make the deter mination that he was disabled,” that “Af

ter listening to the testimony of al l o f t h e wi tnesses I am left with the distinct impression that plaintiff not being all owed to return to work was due to a political and financ ial
ag enda” and that “[t] here had been prec eden[t] that would have allowed plaintiff, an ex perie nced employ ee, to rema in on the job in a restric ted capa city

. Mary J o Di Paolo made the decision to follow a previously ignor ed rule that only allowed an em p l o y ee to work six ty day s in a restricted
capa city .” R. 37-24.

Def endants submitt ed excerpts of testimony g iven i n the worke r’s compensa tion case in 6 support of their motion for summary judgme nt, and Upton submitted the mag istrate’s opinion.

-8-No. 10-2304

Upton v. City of Royal Oak, e t al.

II - F IRST AMENDMENT RETALIATIO N CLAIM This court revie ws de novo a district court’s deter mination to g rant summary judgme nt. Sowards v. Loudon Cnty., Tenn. , 203 F.3d 426, 431 (6th Cir. 2000). Summary judgme nt is proper only if there is no g enuine issue as to any materia l fac t and the moving party is entitled to judgme nt

as a m at t er o f law. This court views infere nces to be drawn from the underly ing fac ts in the l ight most favora

ble to the nonmoving pa

rty

. Id.
I n deter mining whether a public employ er has violated the First A me ndment by firing a public employ ee for eng ag ing in spe ech, the Supreme Court has instructe d courts to eng ag e in a three -step inquiry

. First, a c ourt must ascer tain whether

the re levant speec h addre ssed a matter of public conce rn
. . . a question of law for the court

. . . . S ec ond, if we conclude that an employ ee’ s speec h involved a matter of p u b l i c conce rn and was not made pursuant to the employ ee’ s officia l duties, we then must balanc e the interests of the public employ ee, as a citizen, in commenting upon matters of public conce rn and the interest of the State, as an employ er, in promoting the efficienc y o f t h e p ublic service s it perf orms throug h its employ ees. Def endant bear s the burden of demonstrating that leg itimate grounds exis ted justify ing the termination. Rodgers [ v. Banks ], 344 F.3d [587 , ] 596 [6t h Cir. 2003] quoting Picke ring v. Bd. of Educ. , 391 U.S. 563, 568 (1968) . . . . Finally , we m ust deter

mine whether the employ ee’ s speec h was a substantial or motivating fac tor in the employ er’ s decision to take the adver se employ ment action ag ainst the employ ee. Rodgers , 344 F.3d at 596 (citing Mt. Healthy Ci ty Sch. Dist Bd. of Educ. v. Doyle , 429 U.S. 274, 287 (1977), and Perry v. McG innis , 209 F.3d 597, 604 (6th Cir. 2000). Hughes v . Region VII Area Agenc y on Aging , 542 F.3d 169, 180- 81 (6th Cir. 2008) (most internal citations and quotations omitted). “Usua lly , the question of causa tion is a fac t u al i s s u e t o be resolved by

a jury , . . . and may

be satisfied by circ umstantial e vidence .” Hartsel v. Keys , 87 F.3d 795, 803 (6th Cir. 1996) (interna l citations omit ted).

-9-No. 10-2304

Upton v. City of Royal Oak, e t al. A Def endants conce ded for purposes of summary judgme nt that Upton’s speec h was constitutionally protec ted and that he suffe red an adver se employ ment action, but arg ued that Upton failed to prese nt evidenc e that would support a finding that his speec h rela ting to the ballot initiative

was a substantial or motivating fac tor in the decision t o re t i re h im or terminate his employ ment.
De fe n d an t s also arg ued that Upton could not satisfy the causation element “due to the s ubstanti al time lapse betwe en the pr otected spe ech a nd the adve rse e mploy

ment action.”
B Vi ew ing the fac ts and infere nces there from in a light most favor able to Upton, the First Amendment reta liation claim should have survived summary judgme nt. Upton, the president of the firef ighte r’s union, circ ulated petitions in support of the manning initiative, which would cause the City char ter to be amende d and require the City to hire more firef ighte rs. Upton testified o n deposition that on or around J une 28, 2004, Hoover called him twice and demande d that Upton pull the manning -initiative petitions back, say ing tha t U pton w ould r eg ret not ha

ving pulled the m, that
“if this g oes throug h, y ou and the firef ighte rs will end up with a black ey e,” and that “this will never end for y ou.” R. 30-3 at 44-48. Upton testified that Def endant May or Ellison also called him in late
J une to a sk him to pull the petitions. R. 30-3 at 51-53. Upton did not pull the petitions a nd Roy al Oak voter s approve d the fire fig hters’ ma nning initiative in Novembe r 2004.
I n J une 2005, afte r Def

endants had confe rre d and offe red Upton a police dispatcher position, Def endant City Manag er Hoover deter mined that the offe r be withdrawn. R. 37 at 10. Def endants claimed in the district court that they withdrew the offe r beca use civil service rules require d that the -10-No. 10-2304

Upton v. City of Royal Oak, e t al. position be posted, y et they did not explain why they discovere d this only afte r Upton acc epted their job offe r, nor did they provide or cite the purportedly applicable civil service rule. R. 30-6 at 47-56.
De fe n d ants Hoover and DiPaolo, who participa ted in deter mining to offe r Upton t h e dispatcher position and in withdrawing the offe r, and wer e i n s t ru m en tal in advanc ing the City ’s application to the Boa

rd to involuntarily retire Upton in September 2005, responde d “I don’t rec all”

at their depositions to dozens of questions addre ssing the withdrawa l of the dispatcher position and their re commending to the Boa rd that Upton be involuntarily retire d on a non-duty

disability

. Fur ther, a t the time that Defe ndants applied to the Retirement B oard to involuntarily retire Upton in Septe mber 2005, three of the four doctors that had examined U pton, inc luding the City ’s

two doctors that had conducte d I MEs, had clea red h i m t o return to work as a firef ighte r without restric tion. I n addition, the phy sical thera pist that tested Upton on the City ’s reque st rec ommended that Upt on underg o a work-ha rdening prog ram. Nonethele ss, Def endants rec ommended to the Retirement Boa

rd of Trustee s that Upton be involuntarily retire d on a disability

. Boa rd of Trustee s member Race testified on deposition that in all his y ear s on the Boa rd, the City had never submitt ed such a retire ment application to the Boa rd and that the City ’s action was unusual beca use “B en had only been of f for about t hree to four months , something in that time fra me. We had people in the police depar

tment I was specific ally awa re of wer e off for a y ear befor e they wer e put on disability .”
R. 30-7. Viewing the fac ts and infere nces there from in a light most favor able to Upton, a rea sonable jury could infer that Upton’s political speec h and activities in support of the firef ighte r manning

-11-No. 10-2304

Upton v. City of Royal Oak, e t al. initiative wer e a substantial or motivating fac tor in Def endants’ withdrawa l of the offe r of the police dispatcher

position and in terminating Upton’ s employ ment by retiring him.
We are not persua ded by Def endants’ arg ument that too much time elapse d betwee n Upton’s protec ted speec h and activities and Def endants’ adver se actions to support a causa l co n n ection betwee n the two. Upton counter s this arg ument by maintaining that Def endants could not have taken adver se actions ag ainst him while he was on worke r’s c ompensation leave , i.e., until he returne d to work. The rec ord supports this arg ument. Be g inning in Fe bruar y 2005, Upton used sick day s, and sick day s donated by other employ ees, and then was off work on leave without pay
. Dr. Ho approve d Upton’s

return to wo rk wi t h o u t restric tion eff ective May 4, 2005, and Upton returne d to work for sever al

wee ks. On May 31, 2005, Dr. Ho restric ted Upton to lifting no more than 35 pounds, an d Up t o n
ag ain was of

f work. Def

endants offere d Upton a poli ce dispatcher positi on in late J une 2005, but then immediately withdrew it. Def endants then offe red Upton a part-time at-will position at a time that the City

was implementing lay offs.
A rea sonable jury could conclude based on this evidenc e that within 1 1/2 months of Upton’s brief return to work in May 2005, Def endants offe red but immediatel y withdrew the police dispatcher offe r, which would have provided Upton benef its and continued his union membership, and then offe red him a part-time position with no job secur ity or benef its. A rea sonable jury could also conclude that soon afte r Upton’s phy sician, Dr. Sidhu, cl ear ed him to return to work without restric tions on J une 30, 2005, Def endants decide d to terminate Upton’s employ ment by apply

ing to the Retirement Boa

rd to involuntarily retire him. See, e.g. , R. 37-22 at 2 (Aug ust 24, 2005 email to -12-No. 10-2304

Upton v. City of Royal Oak, e t al. I nsuranc e Adjuster Har

t from insurer’ s worke r’s compensa tion atto rn ey s t ati ng “Given my understanding that the C ity wants t o push this man i nto a dis ability retire ment, I do not know t hat they would enter

tain [negotiating with Upton and plaintiff’s counsel a return to work for Upton.]” The only case Def

endants cite in support of their arg ument that too much time elapse d betwee n Upton’s protec ted activities and Def endants’ adver se actions to support a causa l connec tion betwee n the two, W

allscetti v. Fox , 258 F.3d 662 ( 7th Cir. 2001), is not bindi ng on this court and,
in any event, is distinguishable. W allscetti s t at es that “ without more , [t he four-month time lapse] is too long to support a re asonable infere nce of causa tion.” 258 F.3d a t 669 (emphasis adde d). I n W allscetti , the threa

ts the plaintiff pointed to as evi d en ce o f re t aliatory motive wer e made by the plaintiff’s subordinate, and the plaintiff provided no evidenc e to support that those who decide d to terminate her r elied on the subordina te’s opinion in de ciding to te rminate her employ ment. Id. I n
cont ra s t , in the instant case , the alleg ed threa ts wer e made by Upton’s superior, Def endant City Manag er Hoover , who also withdrew the offe r to U pton of a police dispatcher position, advoc ated that the City involuntarily retire Upton, and vot ed to involuntarily retire him on a non-duty disability

. 7

We reje ct Upton’s arg ument that the Worker’s Compensation mag istrate’s deter mination 7 that the City acte d arbitra rily and capr iciously by rely ing on one doctor’s opinion on t h e question whether Up t o n was disabled, and on a differ ent doctor’s opinion on the question whether his disability was due to an on-the-job injury , is res judicata. The mag istrate did not resolve a disputed fac t essential to both the worke r’ s co m p ensation proce eding and the instant action. Eck erman v. Tenn. Dep’ t of Safety , 636 F.3d 202, 210 (6th Cir. 2010). I n the worke r’s compensa tion proce eding , the factual di spute was whether Upton was disabled and whether his disabili t y wa s work related. Her e, the fa ctual dispute is whether Upton’s First Amendment speec h and activities wer e a substantial or motivating fa ctor in the City ’s adve rse a ctions ag ainst him. -13-No. 10-2304

Upton v. City of Royal Oak, e t al. We conclude tha t Upton’s First Amendme nt retaliation cla im was improperly dismiss ed.
III - P ROCEDURAL DUE P ROCESS Upton asser

ts that althoug h he rec eived notice that the Boa rd of Trustee s would consider his retire ment at t h e S ep t em b er 21, 2005 meeting , he 1) did not rec eive oral or written notice of the char g es ag ainst him, 2) did not rec eive an explanation o f the employ er’ s evidenc e, and 3) did not have oppor

tunity at the hea

ring to present his side of the story

. The Due Process clause of t h e Four teenth Amendment provides that cer tain substantive rig hts, including a proper

ty rig ht in continued employ ment, “ca nnot be deprive d except pursuant to consti t utionally adequa

te proce dures.” Cleveland Bd. of Educ. v. Loudermill , 470 U.S. 532, 541 (1985). “The essential re quirements of due proce ss . . . are notice and an opportunit y to respond. The opportunity

to pr esent rea sons, e ither in person or in writing, w hy

proposed a ction should not be take n is a fundame ntal due proc ess re quirement.” Id. at 546.

To establish a proce dural due proce ss violation under 42 U.S.C. § 1983, [t he plaintiff] is require d to de monstrate thre e ele ments: ( 1) that it ha d a life, liberty , or proper ty interest protec ted by the Due Process Clause of the Four teenth Amendment; (2) that it was d eprive d of that protec ted interest within the meaning of the due proce ss clause ; and (3) that the [defendant] did not aff ord it adequate proce dural rig hts before depriving it of its protected intere st.
W edgewood Ltd. P’ship I v. Twp. of Liberty, Ohio , 610 F.3d 340, 350 ( 6th Cir. 2010). “The ten u re d public employ ee[ ] is entitled to oral or written not ice of the charg es aga inst 8 him, an explanation of the employ er’ s evidenc e, and an opportunity to prese nt his side of the story .”

Def endants do not arg ue that Upton did not have a protec ted proper ty interest in continued 8 employ ment, or that Upton wa s not deprived of his employ

ment. -14-No. 10-2304

Upton v. City of Royal Oak, e t al. Id .; see also Morrison v. W arren , 375 F.3d 468, 47 4 -7 5 (6th Cir. 2004). The pre- depriva tion hear i n g n ee d n o t be elaborate

. I f an employ ee is not aff orded due proce ss befor e the depriva tion, then an a dequate post-depriva tion remedy may satisfy his right to due pr ocess of law. W alsh , 424 F.3d a t 514.
As ref lected in the min u t es of the Boa rd of Trustee s’ meeting , the City explained at the meeting its evidenc e ag ainst Upton and g ave Upton an opportunity to respond to that ev i d en ce
. Upton addre ssed the Boa rd, reque sted that he be enter ed i n a work-ha rdening prog ram, and emphasized to the Boa

rd that he wanted to return to work as a firef ighte r. The minutes also ref lect that Def endant J ames discussed Upton’s medical rec ords and explained that the City ’s position was that Upton’s disability

pre- dated his June 2004 on the job injury

. R. 37-19 at 3-7. 9 Thus, Up t o n re ceived notice of the char g es ag ainst him at the Boa rd meeting and was aff orded opportunity to respond to those char g es. His claim that the pre- depriva tion hear ing violated his due proce ss rig hts theref ore f ails. Upton also arg ues that t he dis trict court c lear ly err ed by ignor ing his a

rg ument that he wa s deprive d of a post-depriva tion hear ing. Upton asser ts that he reque sted a post-termination hear ing befor e the Civil Service Commission and that Defe ndant J ames told the Commissi on that it could

not proper ly hold a hear ing as to the conduct and actions of the Retirement Boa rd. R. 37 at 17-18.

Upton had been trea

ted for cer vical strain befor e his J une 2004 on-the-job injury , including 9 in Febr uary 2004, when he woke up with seve re ne ck pain. F ollowing a n MRI , the phy sician, Dr. Ker win, by letter dated Fe bruar y 27, 2004, stated that Upton would be further evalua ted by Dr. Sidhu, a neurosurg eon, and until then he w as disabled f rom work. R. 30-9. -15-No. 10-2304

Upton v. City of Royal Oak, e t al. Upton does not addre ss Def endants’ arg

ument that his proper rec ourse was not to file a direc t
appea l to the Civil Service Commi ssion, but ra t h er , to initiate a g rieva nce under the collective barg aining ag ree ment betw een the C ity and the firef ighte rs’ union. I n this reg ard, Upton testified

on depositi o n t hat he verba lly reque sted that the union file a g rieva nce and was told it would be done, but that it did not happen as far as he knew. R. 3-0- 3 at 28. He a lso testified that the uni on

was ref using to pur sue his pr eviously filed g rieva nces. These are not ma tters proper ly resolved by this court; they are betwee n Upton and t h e firef ighte rs’ union. On the rec ord befor e us, Upton’s claim that he was denied a post-depriva tion hear ing is without support. See also Jeffer s o n v. Jefferson Cnty. Public Sch. Sys. , 360 F.3d 583, 588 (6th Cir. 2004) (“I f satisfac tory state proce dures

are provided in proce dural due proce ss case , then no constitutional depriva tion has occur red despite the injury ,” citing Hudson v. Palme r , 468 U.S. 517, 533 (1984)).
IV - QUALIF IED IMMUN ITY Upton challeng es the district court’s alterna tive d e te rmination that the individual Def endants

wer e entitled to qualifi ed i mmunity

. This aff irmative defe nse shields g overnme nt officia ls perf orming discretionar

y functions from liability for civil damag es insofar as their conduct does not violate clea

rly established statutory or constitutional rig hts of which a rea sonable person would have known. Cochran v. Gilliam , 656 F.3d 300, 306 ( 6th Cir. 2011). The First Amendment protec ts g overnme nt employ ees’ rig ht to speak out on matters of public conce rn without repr isal from their employ er. Dambrot v. Central Mich. Univ. , 55 F.3d 1177,
1185 (6th Cir. 1995). “The circ ulation of initiative and ref ere ndum petitions involves ‘cor e political
speec h,’ and is, ther efor e, prote cted by the Fir st Amendment.” See Pest Committee v. M iller , 626 -16-No. 10-2304

Upton v. City of Royal Oak, e t al. F.3d 1097, 1106 (9th Cir. 2010), quoting Mey er v. Grant , 486 U.S. 414, 421 (1988). We deter mined above that Upton prese nted sufficie nt eviden ce t h at his protec ted speec h and activities wer e a 1 0
substantial or motivating fac tor in Def endants’ adver se employ

ment actions ag ainst him to survive
summary judgme nt. Id. And, Upton’s rig ht to eng ag e in spe ech on matters of public conce rn was clea rly established in 2005, when Def endants took adver se employ ment actions ag ainst Upton. Chappel v. Montgomery Cnty. Fire Prot. Dist. No. 1 , 131 F.3d 564, 580 (6th Cir. 1997) (obser ving that “[a]ll p u b l i c o fficials have been char g ed with knowing that public employ ees may not be disciplined for eng ag ing in speec h on matters of public conce rn.”) We there fore vacate the district
court’s alterna

tive deter mination that the individua l Def endants wer e entitled to qualified immunit y . V Upton also challeng es the district court’s deter mination that Def

endant City , a municipality ,

was not subject to liability

. Upton’s appellate brief states in the heading on this issue that the district

court err ed in finding that municipal liability cannot be imposed unless injuries are inflicted pursuant
to a policy or custom and then held that Upton failed to ide ntify such a policy or custom. Upton is incorre ct on both counts, as the district cour t’s opinion evidence s: Upton corr ectly notes that liability may be imposed upon a municipality for a single decision by a policy

maker

. Pembaur v. City of Cincinnati , 475 U.S. 469, 480 (1986). Under this theory Upton poi n t s t o p ro visions in the R oy al Oak City Charter which g rant executive rule making authority to the law depar tment and the City Manag er.

Def endants’ motion for summary judgme nt stated “we will assume for the purposes of this 1 0 motion only that Plaintiff’s alleg ed speec h as it rela ted to the ballot initiat[ ive] was constitutionally protec ted,” but arg ued that Upton failed to pres en t ev i d ence that would support a finding that his speec h rela

ting to the ballot initiative was a substantial or motivating fac tor in the decision to retire him. -17-No. 10-2304

Upton v. City of Royal Oak, e t al. Then, looking to the scope of their power as municipal executives, Upton claims that the Def endants, J ames and Hoover , exposed the City to lia b i l i t y as the result [ sic ] their comments about the probabili t y of losing its worke r’s compensa tion case
. Unfortuna tely , Up t o n ’s arg ument on this issue is confusing and somewhat convoluted. Be cause this issue was not properly briefe d and analy

zed – and he has not prese nted any persua sive arg ument or author i t y t o rebut the Def endants’ arg ument – the motion for summary judgme nt in favor of the City on this g round will be g rante d.
R. 48 at 14-15. Def endant City

had ar g ued in the di strict court that althoug h municipal liability can attach under Pembaur , the City ’s policy with respe ct to elig ibilit y for retire ment is established throug h the collective barg aining proce ss, and none of the individual Def endants or City had unilatera l authority

to cre ate or amend that policy , implementation of the policy was deleg ated to the Retirement Boa rd, and that even the Retirement Boa rd had no power to amend the policies established in the collective barg aining ag ree ment. R. 46 at 4-5.
Be cause Upton did not counter this arg ument below and, on appea l a sserts (other tha n in a heading ) only that Def

endants’ motion is prema ture and should be left for trial, summary judgme nt
was prope rly

g rante d.
VI Upton’s final challeng e is to the district court’s dismiss al of his conspirac y claim. Upton’s complaint alleg ed:
24. Def endants acting in conce rt with one another , illega lly , maliciousl y , an d wrong fully conspired with one another with the intent to and for the illega l purpose of terminating Plaintiff’s employ ment ag ainst his will and beca use of his action in ref using to withdraw his petition to have a minimum staffing pattern made part of the city char ter.

-18-No. 10-2304

Upton v. City of Royal Oak, e t al. 25. This c onspiracy resulted in the illega l, unlawful, or tortious activity of illega lly and without proper cause in the termination of Plaintiff’s employ ment with the City of Roy al Oak. As a result of the conspirac y and Def endants[’] illega l, wrong ful and tortious act, Plaintiff sustained the following damag es . . . . Def endants arg

ued below that the intra-c orporat e co nspiracy doctrine barr ed this claim, relying on one Six th Circuit decision, Hull v. Cuyahoga Valley Joint Vocational Sch o o l Di strict
B o ard of Education , 926 F.2d 505, 510 (6th Cir. 1991), and one unpublished decision o f t h e Michig an Court of Appea ls, Tropf v. Holzman & Holzman , Nos. 257019, 25783, 2006 WL 120377 (Mich. Ct. App. J an. 17, 2006) ( unpublished).
I n Hull , this court observe d:
To sustain a cause o f action under 42 U.S.C. § 1985(3), a plaintiff must prove the exis tence of a conspirac y among “t wo or more persons.” Plaintiff alleg es that district superintend ent Schuck, e x ecutive direc tor Plance, and voca ti o n a l s u p e r v is o r Ro me s c o n s p ir e d toge ther to deprive her of her constitutional rig hts. Def endants arg

ue that the “i ntra-c orpora

te conspirac y ” theory bars this claim. The theory states:
I t is basic in the law of conspirac y that y ou must have two persons or entities to have a co nspiracy

. A corpor ation cannot conspire with itself any more than a private individual can, and it is the g ener al rule that the ac ts of the ag ent ar e the a cts of the c orpora tion. Nelson Radio & Supply Co., Inc. v. Motorola, Inc. , 200 F.2d 911, 914 (5th Cir.1952), cert. de nied , 345 U.S. 925 [ ] (1953).
We ag ree with defe ndants. This court has adopted the g ener al rule in civil conspirac y case s that a corpor ation cannot conspire with its own ag ents or employ ees. Doherty v. American Motors Corp. , 728 F.2d 334, 339 (6th Cir. 1984). Although the doctrine was first develope d in the context of antitrust litigation, this court in Doherty stated, “[T] he same rule has been consistently applied in alleg ations of conspirac y under the Civil Rights Act.” Id

. This c ourt in Doherty ag ree d with a second circ uit decision, Herrmann v. Moore , 576 F.2d 453 (2nd Cir.1978), which a p p li e d th e “ intra-c orpora

te conspirac y ” doctrine to bar the plaintiff’s § 1985(2) claim. I n Herrmann , the plaintiff -19-No. 10-2304

Upton v. City of Royal Oak, e t al. had all eged a conspirac y betwee n an educational corpor ation, the Br ookly n L aw School, and its trustees and employ ees. I n the prese nt case , plaintiff is alleg ing a conspirac y betwee n a school distric t superintende nt, the executive direc tor of the district, and a school administrator, all of whom are employ ees or ag ents of the Boa rd. Since all of the def

endants a re me mbers of the same collective entity , there are not tw o s epar ate “people ” to form a conspirac y . We believe that this court’s opinion in Doherty is dispositi v e of this issue. The district court’s g rant of defe ndants’ motion for summary judgme nt on the § 1985(3) claim is here by aff irmed on this ground. Hull , 926 F.2d a t 509-10.
I n T r o p f , the Michig an Court of Appea ls aff irmed the dismiss al of the plaintiffs’ civil conspirac y

claim, conc luding that they had fa iled to raise a

g enuine issue of

materia l fac t: Plaintiff s fi rst arg ue that summary dispositi on was inappropria te on the civil conspirac y claim beca

use they prese nt ed d o cumentary evidenc e that cre ated a g enuine issue of materia l fac t. We disag ree
. The essential elements of a civil conspirac y are : (1) a conce rted action (2) by a combination of two or more persons (3) to acc omplish an unlawful purpose (4) or a lawf u l purpose by unlawful means. Admiral Ins C o v C olumbia Casualty Ins C o , 1 9 4 M i ch App 300, 313; 486 NW2d 351 (1992). Def

endants corr ectly arg

ued that there could be no civil conspirac y if they we re ac t i n g as ag ents within the scope of the ag ency ag ree ment. The intracorpor ate trust doctrine holds that a cause of action does not exis t for civil conspirac y betwee n a corpor ation an d i t s agents acting within the scope of their employ ment. See, e.g. , Landmark Sav & Loan v Loeb Rho a des , Ho r n b lower & Co , 527 F Supp 206, 209 (ED Mich, 1981). The intra-c orpora te conspirac y doctrine was first develope d in an anti-trust ca se, Nelson Radio and Supply Co v Motorola , 200 F.2d 911 (CA 5, 1952), and the United States Court of Ap p ea l s fo r the Six th Circuit subsequently adopted the doctrine in that context. See, e.g. , Nurse Midwifery Assoc v Hibbett, 918 F.2d 605, 615 (CA 6, 1990). Other jurisdictions have ap p l i ed t h e intra-c orpora te conspirac y doctrine to bar conspirac y actions in other contexts wher e the ag ent is acting within the scope of his authority

. See, e.g. , Hodges v. Tomberlin , 510 F Supp 1280, 1286 (S D Ga , 1 9 80); Renne r v W urdeme n , 231 Neb 8, 16; 434 NW2d 536 (1989); Soft W ater Utiliti es, Inc v LeFe vre , 159 I nd App 529, 539; 308 NE2d 395 (1974)

. I n Blair v Check

er Cab Co , 219 Mich App 6 6 7 , 674; 558 NW2d 439 (1996), this Court, althoug h not addre ssing the prec ise question at i ssue i n this case , noted t hat “an ag ent o r employ ee cannot be considere d a separate entity from his principal or -20-No. 10-2304

Upton v. City of Royal Oak, e t al.
corpor ate employ er, respe ctively , as ‘long as the ag ent or employ ee acts only within the s cope of his ag ency [ o r] em ploy ment. Id. , quoting Metro C lub, Inc v Schostak Bros & Co, Inc , 89 Mich App 417, 420; 280 NW2d 553 (1979). “An attorney often acts as his client’s ag ent, and his authority may be g overne d by what he is expressly authorized to do as well as by his implied authority

. Uniproprop, Inc, v Morganroth, 260 Mich App 442, 447; 678 NW2d 638 (2004).
Her e, plaintiffs failed to prese nt any evidenc e that defe ndants wer e acting as any thing other than ag ents within the scope of their ag ree ment when the al l ege d fra ud occur red. Plaintiffs prese nted evidenc e that defe ndants acte d for L y nne Wole n ski and 20th Century Corporation in the mortg ag e license application proce ss and at the land contra ct forf

eiture hear ing. Howeve r, the alleg ation that defe ndants participa ted in Wolenski’s fra

udulent behavior was not supported by any evidenc e. Karl Tropf admitted that Holzman never made any repr esenta tions to plaintiffs. Plaintiffs prese nted no evidenc e that defe ndants had any knowledg e that the deed or land contra ct wer e fra

udulent. Plaintiffs also did not prese nt evidenc e to support their co nclusion that Wolenski would not have rec eived a mortg ag e license wi t h o u t defe ndants’ letter of support. Plaintiffs’ conclusion that they would no t h av e l o s t their house if defe ndants had not sup p o rt ed Wolenski’s application is specula tive, espec ially beca

use plaintiffs stopped making mortg ag e pay ments and their h o use was sold in a forf

eiture sale over one y ear befor e Wolenski offe red them a land contra ct in order to r edee m their proper ty

. Tropf , 2006 WL 120377, at *1-2. Upton arg ued in response to Def endants’ motion for summ ary judgme nt that an action for civil conspirac y is rec og nized under the fac ts prese nted here , rely ing on Cranford v. W

ayne County Sheriff , No. 218859, 2001 WL 637408 (Mich. Ct. App. May 25, 2001) (unpublished), in which the plaintiff, a deputy chief in the Way ne County Sheriff’ s Depa rtment, alleg ed that the Way ne County Sheriff and the ch i ef of opera tions upheld his demotion and termination of his employ ment. The
p l aint iff alleg ed violation of the Whis tleblower Protection Act, M.C.L

. 15.362 et seq ., and tort claims including civil conspirac y . Th e defe ndants moved for summary dispositi on for failure to state

a claim and on the basis of g overnme ntal immunit y ; they did not raise the intra-c orpora te conspirac y

-21-No. 10-2304

Upton v. City of Royal Oak, e t al. doctrine, nor di d t he court addre ss it. The trial court g rante d the defe ndants’ motion on both
g rounds. T h e Michig an Court of Appea ls reve rsed the dismiss al of the whistleblower and civil conspirac y

claims, observing as to the latter: The trial court dismiss ed this claim beca use it conclude d that “the failure o f defe ndants to conduc t a civi l forf eiture indicates no unlawful purpose nor commis s io n o f a lawful purpose by unlawful means.” Howeve r, plaintiff’s complaint alleg ed that defe ndants order ed him to return alre ady forf eited vehicles beca

use the vehicles wer e seized from rela tives of h i gh l y place d elec ted officia ls. Ag ain, the alleg ations in plaintiff’s complaint are not d ir e c te d a t th e in it ial discretionar

y decision whether to seize a vehicle. I nstead, plaintiff’s claim implicates defe ndants’ conduct at a point wher e defe ndants no longe r had discretion to deter mine which vehicles to seize. Acc epting plaintiff’s alleg ations as true, we find that they sufficie ntly alleg e an unlawful purpose, and the trial court err ed in dismiss ing the civil conspirac y claim pursuant to MCR 2.116(C)(8) [failure t o state a cl ai m ; t he equivalent of Fed. R ule of Civ. Pro. 12(b)(6) ]. We simi larly

conclude that defe ndants wer e not entitled to summary dispositi on of the conspirac y claim pursuant to MCR 2.116(C)(7) on the b asi s of g overnme ntal immunit y . State ag encie s are immune f rom tort liability if they are “eng ag ed in the exercise or discharg e of a g overnme ntal function” at the time the alleg ed tort occur s. MCL 691.1407; MSA 3.996(107). A g overnme ntal function is an “ac tivity which is expressly or impliedly mandated or authorized by constitution, state, or other law.” An ag ency ’s ultra vires activities are not entitled to imm unity

.

. . . . Her e, plaintiff al l ege d that defe ndants acte d in conce rt to violate state law by returning alre ady forf

eited vehicles to the sons of influential city politicians, and by asking plaintiff to cover up these violations by swee ping the repor ts involving these m at t er s “under the rug .” Although defe ndants had the discretion

. . . to det er m i n e whether to seize the vehicles in question, the statute g ives defe ndants no authority to revoke forf

eit ures. I t is appar ent that the conduct alleg ed in plaintiff’s complaint would not be within the scope of defe ndant’s authority and, there fore , would not be protec ted by g overnme nt al immunit y . We conclude that the t rial court err ed when it dism issed plaintiff’s civil conspira cy claim. Cranford , 2001 WL 637408, at *5 (some inter nal citations omitted). Thus, Cranford

did not involve the intra-cor porate conspirac y

doctrine.

-22-No. 10-2304

Upton v. City of Royal Oak, e t al. The district court in the instant case ag ree d with Def endants that the intra-c orpora te conspirac y doctrine barr ed Upton’s claim, and conclude d that beca use Upton had not addre ssed the doctrine, he had def

aulted on this issue: Upton’s claim must fail based on the intra-c orpor ate conspirac y doctrine, which provides that a corpor ation ca n n o t co nspire with its own ag ents or employ ees. Doherty v. American Motors Corp. , 728 F.2d 334, 339 ([6th Cir.] 1984). Where all of the defe ndants are members of the same collective entity , the law d o es not rec og nize the exis tence of two s ep ar ate “people ” to form a conspirac y . Hull v. Cuyahoga Valley Joint Vocationa l S chool Dis

. Board of Education , 926 F.2d 505, 510 (6th Cir. 1991) (apply ing intra-c onspiracy doctrine to a school district superintende nt, the executive direc tor of the district, a nd a school administrator, all of whom were em p l o y ee s or ag ents of the Boa rd). Upton does not addre ss this arg ument in his respon s i v e b ri ef, and, thus, he – by virtue of his silence – has defa ulted on this issue. All of the individually named Def endants work as employ ees or ag ents of the City of Roy al Oak. As such, under Doherty , and simil ar prec edent, they all belong to one collec tive entity and thus cannot form a conspiracy with one another

. The Def

endants are there fore entitled to a summary judgme nt on this count of Upton’s c omplaint.
R. 48 at 13-14.
On appea l, Upton arg ues that he did not defa ult on this issue beca

use he arg ued Cranford in
response to Def

endants’ motion for summary judgme nt and Cranford “spec ifically rec og nizes that there is a ca

use of a ction wher e y ou have c orpora te conspira tors.” Pl.’s Br . at 44.
I n any event, althoug h Upton did not defa ult on the issue, the district court’s observa tions on the m erits are ne v er t h eless apt. We find this case indisti ng uishable from Hull , 926 F.2d 505, and find Cranford of littl e g uidance both beca use the intra-c orporat e conspirac y doctrine was not d i s cu s s ed and beca

use the conspirator ial acts alleg ed wer e not the reta liation in violation of th e Whis tleblower Protec tion Act, but the clea rly ultra vires a cts of re turning the vehicle s.

-23-No. 10-2304

Upton v. City of Royal Oak, e t al. The distric t co u rt thus did not err in deter mining that Upton’s civil conspirac y claim was barr ed by the intra-c orpora te conspira cy doctrine.
VII
For the foreg oing rea sons, we AF F IRM the g rant of summar y judgme nt to Defe ndants on Upt o n’s proce dural due proce ss claim, municipal liability claim, and civil conspirac y claim,
REVERSE the g rant of summary judgme nt on Upton’s First Amendment reta liation cl ai m, VACATE the g rant of summary judgme nt to the individual Def endants on immunit y g rounds, and
REMAND for f

urther pr ocee dings.

-24-