from the United States District Court for the Western
District of Michigan at Grand Rapids. 16-cv-01190-Janet T.
Neff, District Judge.
Pascoe, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing,
Michigan, for Appellees.
Haddad, Lansing, Michigan, pro se.
Before: SILER, ROGERS, and COOK, Circuit Judges.
Haddad sued under 42 U.S.C. § 1983 alleging he was
terminated by his employer, the Michigan Department of
Insurance and Financial Services ("MDIFS"), for
exercising his First Amendment rights. The district court
granted summary judgment in favor of Defendants, and Haddad
appeals, proceeding pro se. The district court's opinion
thoroughly and correctly addresses the issues raised by
Haddad on appeal. We uphold the district court's judgment
for the reasons given by the district court. The opinion and
order of the district court is attached as an appendix to
this opinion. We also briefly address an argument Haddad
raises for the first time on appeal.
dismissing Haddad's First Amendment retaliation claim,
the district court concluded that Haddad was not acting as a
private citizen, and thus was not entitled to First Amendment
protection. See Garcetti v. Ceballos, 547 U.S. 410,
421 (2006). Haddad argues for the first time on appeal that
he was acting as a "virtual private citizen"
because his duties as an examiner for MDIFS required him to
speak in the public interest and work to end the inclusion of
intra-family exclusion clauses ("IFEs") in
insurance policies. By making this argument, however, Haddad
acknowledges that he was acting pursuant to his official
duties when he sought to end the use of IFEs through his
examinations, the very activity that he claims was the basis
for his termination. He further acknowledges that he reached
out to attorneys at the Sinas Dramis law firm in order
"to learn about no-fault claims and lawsuits, so as to
better serve the public," which would relate to ongoing
or upcoming examinations. "[W]hen public employees make
statements pursuant to their official duties, the employees
are not speaking as citizens for First Amendment purposes,
and the Constitution does not insulate their communications
from employer discipline." Id. The district
court concluded that Haddad was not acting as a private
citizen because his desire to thwart the inclusion of IFEs in
insurance policies was part of his job as an examiner and he
had used his communications with the Sinas Dramis law firm to
further an official investigation. Haddad reinforces this
conclusion on appeal by acknowledging that his purpose for
reaching out and communicating with the Sinas Dramis law firm
regarding IFEs was to further his official work to end what
he believed to be an unfair insurer practice. Accordingly,
his conduct was part of the performance of his job, and the
district court did not err by concluding that Haddad was not
speaking as a private citizen. See Mayhew v. Town of
Smyrna, Tenn., 856 F.3d 456, 464-65 (6th Cir. 2017);
Weisbarth v. Geauga Park Dist., 499 F.3d 538, 543-46
(6th Cir. 2007).
we AFFIRM the district court's judgment.
STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN
GREGG, et al., Defendants.
JANET T. NEFF
filed this action alleging civil rights claims under 42
U.S.C. § 1983 against his former employer Defendant
Michigan Department of Insurance and Financial Services
(DIFS) and two individual Defendants: Randall Gregg, DIFS
Director of the Office of Legal Counsel; and Jean Boven, DIFS
Director of Insurance Licensing and Market Conduct Director.
filed a Motion for Summary Judgment Pursuant to Fed.R.Civ.P.
56 (ECF No. 38); Plaintiff filed a Response (ECF No. 42); and
Defendants filed a Reply (ECF No. 41). Having fully
considered the parties' briefs and accompanying exhibits,
the Court concludes that oral argument is unnecessary to
resolve the Motion. See W.D. Mich. LCivR 7.2(d). The
Court grants Defendants' motion.
took a position as an Examiner for the former Office of
Financial Insurance Regulation, now DIFS, in May 2011. During
the course of his employment, Plaintiff's central
function was to perform Market Conduct Exams (MCEs) to look
at the practices and procedures of a company to see whether
it is engaging in potentially unfair business practices in
dealing with insurance consumers. During the course of an
MCE, information submitted is confidential. Once the report
is approved by the Market Conduct Director, the report is
made available to the public on DIFS' website. An
Examiner is free to publicly discuss the information in the
report, including the identity of the insurer that was
examined, once it is made public.
the course of his MCE of Progressive Marathon Insurance
Company's no-fault benefit payments during 2013,
Plaintiff encountered the company's exclusion, referred
to as the "intra-family exclusion" (IFE), that
placed a substantial cap on the benefits a victim receives if
a family member is driving, significantly lowering payment
for pain and suffering benefits. Believing the IFE to be
deceptive, and questioning whether it was legal, Plaintiff
undertook efforts to educate himself about the IFE, first
within DIFS, and then through outside sources, eventually
conferring with attorneys Steve and George Sinas at the Sinas
Dramis law firm, who represent plaintiffs against insurance
companies. Plaintiff attended several of the firm's
People's Law School presentations and met with Steve
Sinas at a local sports bar to discuss no-fault law.
Plaintiff's investigation of the IFE included internal
emails with coworkers, and email correspondence and
discussions with attorney Steve Sinas concerning the
exclusion and MCEs conducted by DIFS.
after Defendant Boven became aware that Plaintiff was
questioning the legality of the IFE, she and Defendant Gregg
began a 3-4 week investigation of Plaintiff's activities.
Boven and Gregg interviewed Plaintiff on June 25, 2015.
Before questioning him, Gregg and Boven asked Plaintiff to
sign a "Garrity form." The
"Garrity form" advised Plaintiff of his
Garrity rights, and in particular stated that
"[a]ny statements made by you during these interviews,
or the fruits thereof, cannot be used against you in any
subsequent criminal proceeding."
9, 2015, DIFS, on Defendant Gregg's recommendation,
issued its Notice of Charges and Disciplinary Action to
Plaintiff, terminating his employment. DIFS claimed that
Plaintiff was terminated for violation of DIFS policy T-5,
"Information Privacy and Security Handling," DIFS
Policy G-3, "Confidentiality and Oath of Office,"
DTMB Policy 13.40.00, "Information Technology
Information Security," and Civil Service Rules 2-8,
2-8.1 and 2-8.2, "Ethical Standards of Conduct."
thereafter filed this action based on his alleged wrongful
termination. Plaintiff's Complaint alleges two counts
under § 1983: Count I, Violation of the Fifth Amendment,
Compelled Self Incrimination; and Count II, First Amendment
move for summary judgment under Rule 56. Summary judgment is
proper "if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(a). The
court must consider the evidence and all reasonable
inferences in favor of the nonmoving party. Burgess v.
Fischer, 735 F.3d 462, 471 (6th Cir. 2013); U.S.
S.E.C. v. Sierra Brokerage Servs., Inc., 712 F.3d 321,
327 (6th Cir. 2013). The moving party has the initial burden
of showing the absence of a genuine issue of material fact.
Jakubowski v. Christ Hosp., Inc., 627 F.3d 195, 200
(6th Cir. 2010). The burden then "shifts to the
nonmoving party, who must present some 'specific facts
showing that there is a genuine issue for trial.'"
Id. (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)). "There is no
genuine issue for trial where the record 'taken as a
whole could not lead a rational trier of fact to find for the
non-moving party.'" Burgess, 735 F.3d at
471 (quoting Matsushita Elec. Indus., Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986)). "The ultimate
inquiry is 'whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of
law.'" Sierra Brokerage Servs., 712 F.3d at
327 (quoting Anderson, 477 U.S. at 251-52).
establish a claim under 42 U.S.C. § 1983, 'a
plaintiff must set forth facts that, when construed
favorably, establish (1) the deprivation of a right secured
by the Constitution or laws of the United States (2) caused
by a person acting under the color of state law.'"
Scott v. Kent Cty., 679 Fed.Appx. 435, 438 (6th Cir.
2017) (quoting Burley v. Gagacki, 729 F.3d 610, 619
(6th Cir. 2013)). Plaintiff asserts constitutional claims
based on First Amendment retaliation and based on a
Garrity violation under the Fifth Amendment. The
Court's analysis addresses the law and arguments as
presented by the parties.
Official Capacity Claims
argue as an initial matter that Plaintiff's claims
against Defendant DIFS and Defendants Gregg and Boven in
their official capacities fail as a matter of law because
they are not "persons" for purposes of § 1983.
Plaintiff fails to address this argument.
well-settled that "neither a State nor its officials
acting in their official capacities are "persons"
under § 1983." Will v. Michigan Dep't of
State Police, 491 U.S. 58, 71 (1989). Defendant DFIS and
Defendants Gregg and Boven, in their official capacities, are
entitled to summary judgment.
First Amendment Claim
establish a prima facie case of First Amendment retaliation
under 42 U.S.C. §1983, a plaintiff must demonstrate
that: "(1) he was engaged in a constitutionally
protected activity; (2) he was subjected to adverse action or
deprived of some benefit; and (3) the protected speech was a
'substantial' or 'motivating factor' in the
adverse action." Farhat v. Jopke, 370 F.3d 580,
588 (6th Cir. 2004) (citing Leary v. Daeschner, 349
F.3d 888, 897 (6th Cir. 2003) (citations omitted)).
argue that Plaintiff cannot establish: (1) that he was
engaged in a constitutionally protected activity, since he
was not speaking as a private citizen; or (2) that his speech
was a substantial or motivating factor in his termination
(ECF No. 39 at PageID.215). Therefore, Plaintiff ...