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Haddad v. Gregg

United States Court of Appeals, Sixth Circuit

December 3, 2018

David Haddad, Plaintiff-Appellant,
Randall Gregg; Jean Boven; Michigan Department of Insurance and Financial Services, Defendants-Appellees.

          Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. 16-cv-01190-Janet T. Neff, District Judge.

         ON BRIEF:

          DJ Pascoe, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees.

          David Haddad, Lansing, Michigan, pro se.

          Before: SILER, ROGERS, and COOK, Circuit Judges.


          PER CURIAM.

         David 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.

         In 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).

         Accordingly, we AFFIRM the district court's judgment.



         DAVID HADDAD, Plaintiff,


         RANDALL GREGG, et al., Defendants.

         No. 1:16-cv-1190

          HON. JANET T. NEFF


         Plaintiff 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.

         Defendants 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.

         I. FACTS[1]

         Plaintiff 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.

         During 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.

         Ultimately, 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."

         On July 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."

         Plaintiff 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 Retaliation.


         Defendants 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).

         III. ANALYSIS

         "To 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.

         A. Official Capacity Claims

         Defendants 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.

         It is 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.

         B. First Amendment Claim

         To 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)).

         Defendants 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 ...

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