Gregory T. KELLY, Plaintiff-Appellant, v. WARREN COUNTY BOARD OF COMMISSIONERS; Thomas Ariss; Rachel A. Hutzel; Frank Young; and Erik Tonstad, Defendants-Appellees, 396 F. App'x 246

COOK, Circuit Judge. Gregory Kelly sued the Warren County Board of Commissioners (Board), Sheriff Thomas Ariss, and Prosecutor Rachel Hut-zel for First Amendment retaliation after the Board refused to hire him as a 911 dispatcher. The district court granted the defendants

summary judgment. Kelly now appeals, asserting that he provided sufficient evidence to permit a reasonable jury to conclude that: (1) the Board’s refusal to hire him constituted First Amendment retaliation; and

(2) Ariss and Hutzel violated Kelly’s First Amendment rights by contacting South to express concern over Kelly’s hire. Because Kelly failed to make a prima facie showing of First Amendment retaliation against any of the defendants, we affirm. I. Kelly worked as a 911 operator for Warren County for approximately four years during the late 1980s. Department supervisor Frank Young recalled Kelly as an “outstanding communications officer.” Kelly began his law enforcement career in 1989 and for eight years worked as a police officer for Hamilton Township under the auspices of the Warren County Sheriffs Department.

As Warren County Sheriff, defendant Ariss reviewed Kelly’s 1995 application to become a full-time deputy and determined that Kelly’s background left him unsuited for the job. Kelly’s propensity to clash with supervisors repeatedly jeopardized his employment status, leading to numerous job changes over the years that followed. While working as a police officer, he complained about dishonesty and cover-ups within the Hamilton Township Police Department — including one episode in which a fellow officer put a gun to Kelly’s head— and filed suit against Police Chief Eugene Duvelius and the Township in 1999.

Kelly alleged that Duvelius threatened to fire him in violation of the First Amendment for exposing the Department’s shortcomings. The parties settled in early 2000. The Village of Lynchburg hired Kelly as a police officer in 2001, but terminated him in early 2002 after he accused the police chief of destroying evidence and assaulting a juvenile. Kelly’s next employer, CSX Railroad, terminated him after he allegedly threatened a hearing officer. Upon losing his job with CSX, Kelly contacted Young and asked if he might return to work as a 911 dispatcher.

He revealed the two misdemeanors in his record and warned that Sheriff Ariss might try to interfere with his hire because he campaigned for Ariss’s opponent in the recent election. Young nonetheless recommended Kelly’s hire in early January 2005. The Board’s three Commissioners, who together constitute the appointing authority for the County’s 911 dispatchers, unanimously approved Young’s recommendation subject to a background check. Within a few days, Commissioner Pat South received separate phone calls from Ariss and Prosecutor Hutzel expressing concern about Kelly’s potential hire.

Ariss told South that hiring Kelly would “not be a very good idea.” The Sheriff remained concerned about Kelly’s trustworthiness and recommended that the Commissioners perform a thorough background check. Hutzel relayed limited information to South about Kelly’s prior run — ins with Duvelius — all of which South later acknowledged she learned about from contemporaneous newspaper reports-and, like Ariss, advised the Board to look into Kelly’s background. South reassured Ariss and Hutzel that the Board would review the results of a background check, as Board procedures dictated.

The Commissioners met in executive session to review the background documents collected by the County’s Human Resources Department, which exposed Kelly’s two misdemeanor convictions: one arising from Kelly’s ongoing disputes with neighbors; the other from a physical altercation between Kelly and an individual angry with Kelly’s then-girlfriend. In deposition, each Commissioner revealed what prompted Ms or her decision to rescind the provisional employment offer.

Although she did not remember the specific charges, Commissioner South recalled reading about Kelly fighting with someone, noted that the word “gun” appeared in the reports, and expressed concern over Kelly’s numerous conflicts with law enforcement. She also recollected learning that Kelly intimidated his female co-workers. Commissioner Mike Kilburn, Kelly’s family friend who supported him in employment endeavors in the past, cited Kelly’s past problems with law enforcement and remembered a particular altercation with a Hamilton Township police officer involving a gun.

Kilburn recalled details of two incidents between Kelly and his neighbors resulting in one of Kelly’s misdemeanor convictions for aggravated menacing and assault. Commissioner David Young noted Kelly’s several incidents with police (also recalling a gun’s involvement) and expressed concern over past conflicts with local police departments where Kelly worked, includmg the Hamilton Township Police Department, though Young could not remember details. Young also disclosed his discomfort with Kelly’s interactions with the Commissioner’s brother, Warren, who Kelly called and asked to put in a “good word” for him.

The Commissioners determined that Kelly’s misdemeanor convictions and employment history made Mm ill-suited for the position, which, due to the heavy reliance placed on dispatchers by law enforcement officers, required a high degree of trust. This conclusion prompted them to rescind then-employment offer by unanimous vote. Kelly sued the Board, Ariss, and Hutzel under 42 U.S.C. § 1983, alleging that his previous lawsuit against Police Commissioner Eugene Duvelius and support of Ariss’s political opponent — both activities protected by the First Amendment — motivated the Board’s decision.

The Board responded that Kelly’s checkered background, not his protected speech, persuaded it of Kelly’s unfitness to serve as a dispatcher. Following discovery, the district court granted

summary judgment to all defendants. Though the court found that Kelly’s actions constituted protected conduct, and that the Board perpetrated an adverse employment action when it refused to hire him, it concluded that Kelly did not present sufficient evidence to support the contention that his protected conduct motivated the Board’s decision. The court also granted Ariss and Hutzel

summary judgment, finding that qualified immunity protected them from suit in their mdividual capacities, and that Kelly failed to provide sufficient evidence of retaliation to hold them liable in their official capacities. Kelly timely appealed. II. We review the district court’s grant of

summary judgment de novo, affirming if the evidence, viewed in the light most favorable to Kelly, demonstrates that no genuine issue exists as to any material fact and that the defendants are entitled to judgment as a matter of law. Village of Oakwood v. State Bank & Trust Co., 539 F.3d 373, 377 (6th Cir.2008). A.

First Amendment Retaliation Claim Against the Board To establish a prima facie case of First Amendment retaliation against the Board under § 1983, Kelly must establish that: (1) he engaged in protected conduct; (2) he suffered an adverse action likely to chill a person of ordinary firmness from continuing to engage in the protected activity; and (3) his protected conduct was a substantial or motivating factor in the adverse action. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir.1999) (en banc).

When a potential public employee seeks to demonstrate protected conduct in the First Amendment retaliation context, he must show that the speech touched on a matter of public concern. Connick v. Myers, 461 U.S. 138, 145-49, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). If Kelly makes the prima facie showing, the burden shifts to the Board. Mt. Healthy Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). The Board may defeat Kelly’s claim by showing either that, under the balancing test established by Pickering v.

Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), the Board’s legitimate interest in regulating employee speech to maintain an efficient workplace outweighed Kelly’s First Amendment rights, Connick, 461 U.S. at 150, 103 S.Ct. 1684, or that under the mixed-motive analysis established by Mt. Healthy, 429 U.S. at 287, 97 S.Ct. 568, it would have rescinded Kelly’s offer even absent his protected conduct, id. Kelly’s failure to establish that his protected conduct motivated the Board’s decision to rescind its offer dooms his retaliation claim. Mt. Healthy, 429 U.S. at 287, 97 S.Ct. 568.

No direct evidence exists that the Commissioners considered Kelly’s protected conduct when they decided to rescind their employment offer. In an attempt to show causation, Kelly questions how the Board could have placed so much weight on his misdemeanor convictions, which he calls “minor disputes arising from personal issues,” both of which occurred more that five years prior to the Board’s hiring decision and resulted from his negative relationship with the Warren County Prosecutor’s Office.

He doubts that his background could have caused the Board to rescind its offer when both Frank Young and Commissioner Kilburn knew of his misdemeanor record, and allegedly deemed it “insignificant.” He avers that jurors could easily find that Ariss’s and Hutzel’s conversations with Commissioner South negatively influenced the Board. But Kelly presented insufficient evidence to raise an inference of causation and his mere speculation does not create a genuine issue of material fact to overcome

summary judgment. See Hartsel v. Keys, 87 F.3d 795, 801-02 (6th Cir.1996) (conclusory statements, subjective beliefs, or intuition cannot defeat

summary judgment). Indeed, direct evidence reveals that neither of Kelly’s two protected activities— campaigning for Ariss’s opponent and suing Duvelius — prompted the Board to rescind its offer. All of the Commissioners consistently testified that Kelly’s run-ins with law enforcement and his history of rocky employment relationships led them to question whether he could perform well as a 911 dispatcher. Only Commissioner Young’s acknowledgment that he considered Kelly’s negative employment relationship with the Hamilton Township Police Department in evaluating Kelly’s background arguably supports Kelly’s claim.

Yet, two other Commissioners considered only unquestionably proper information. And because only two Commissioners needed to vote to rescind their offer, Young’s admission alone (which itself remains vague enough to label it an evaluation of his past employment, not his protected conduct) cannot render the Board’s decision unconstitutional. Kelly attempts to overcome the direct evidence against him with circumstantial evidence that, he contends, permits an inference of unconstitutionality. Barrett v.

Harrington, 130 F.3d 246, 263 (6th Cir.1997) (finding “inferences raised by the evidence ... sufficient to create a question of fact and avoid

summary judgment” where the record statements “reveal the possibility that ... [defendant] did have a retaliatory motive”). He urges the court to reverse

summary judgment by inferring unconstitutional motives from the Board’s failure to (1) treat him like other potential hires and (2) follow regular procedures. First, Kelly points to Lori Jones’s rehire following her discharge for violating an internal policy — specifically, fraternizing with an inmate — as evidence of different treatment, implying an unconstitutional motive. Though disparate treatment can give rise to an inference of unlawful motives, Arnett v. Myers, 281 F.3d 552, 560-61 (6th Cir.2002), Kelly’s attempted comparison misses the mark.

Jones violated policy, but did not give the Board cause to believe that she could not be trusted while working with law enforcement in Warren County. Though the Board might doubt her trustworthiness as a prison guard, her past indiscretion says nothing about her ability to perform 911 dispatcher duties. By contrast, Kelly’s background check and employment history prompted the Board to believe that he could not establish the required trust with the law enforcement personnel who would rely on him for their safety.

Second, Kelly contends that the Board strayed from its stated policies, holding him to a higher standard. See Village of Arlington Hts. v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). He highlights the fact that the job application form does not ask about misdemeanors and that Frank Young’s recommendation usually suffices as a basis for the Board to hire an applicant, but it did not for him. No one disputes that the Board’s policy dictated that it hire a candidate provisionally, subject to a background check.

The provisional-hire policy afforded the Board a safety valve, allowing it to reject candidates whom, though recommended and conditionally hired at the urging of a supervisor, the background check disqualified. Even if the Board confirmed all previous individuals’ provisional employment offers after looking into their background, its failure to do so here does not evidence a departure from normal procedure unless Kelly demonstrates that background checks of other candidates revealed similarly disconcerting information, a showing he fails to make.

Without direct or circumstantial evidence to create a genuine issue of material fact as to the causation element, Kelly’s First Amendment retaliation claim against the Board fails. B. First Amendment Retaliation Claims Against Ariss and Hutzel Kelly similarly fails to make a pri-ma facie showing of First Amendment retaliation in his suit against Ariss and Hut-zel, the individuals who cautioned South against hiring Kelly, because he does not show “an adverse action by [Ariss and Hutzel] ... that would deter a person of ordinary firmness from continuing to engage” in the protected activity. See Fritz v.

Charter Twp. of Comstock, 592 F.3d 718, 723 (6th Cir.2010). The only adverse action Kelly complains of is the Board’s refusal to hire him. Ariss and Hutzel counter that they cannot be liable for the Board’s decision because the Board possessed final hiring authority. Although a recent Sixth Circuit case forecloses their argument, the standard that case establishes proves fatal to Kelly’s claim nonetheless. See id. at 726-28. In Fritz, this court decided a “close” case involving a public official who encouraged a private employer to terminate someone because of her protected conduct.

The court noted that a public official need not have the direct authority to make employment decisions in order for his actions to qualify as adverse. Id. at 726. It evaluated instead the official’s ability to exercise control over the employer’s business, finding that the public official’s comments in Fritz qualified as “ ‘a threat to take action tangibly affecting employment status.’ ” Id. at 728 (quoting Samad v. Jenkins, 845 F.2d 660, 663 (6th Cir.1988)).

The court decided that the public official’s “power to substantially affect [the plaintiffs] ability to do business in [the area] through [his] role in enacting township ordinances and making zoning decisions” made the threat credible and would deter a person of ordinary firmness from engaging in the protected conduct. Id. at 726. Unlike the defendants in Fritz, Ariss and Hutzel lacked power to affect the Board’s decisions. Though Kelly alleges that personal, social, or familial relationships gave Ariss’s and Hutzel’s recommendations extra weight, he does not substantiate the claim in any cognizable way.

Thus, even if Ariss and Hutzel expressly encouraged South to vote against Kelly’s hire because of his protected conduct, and the Board did just that, Kelly fails to present evidence that either individual held sufficient influence over the Board to deter a person of ordinary firmness from exercising his free expression rights. This influence analysis allows us to easily distinguish the two cases upon which Kelly relies to demonstrate Ariss’s and Hutzel’s liability. In Worrell v.

Henry, 219 F.3d 1197 (10th Cir.2000), a police officer, without whom a drug task force could not operate, wielded his influence to unconstitutionally prevent the hire of another officer. Id. at 1202. The court found the adverse action element of the plaintiffs prima facie case met because the influential officer “caused” the supervisor to rescind his employment offer. Id. at 1213. Similarly, in Helvey v. City of Maplewood, 154 F.3d 841 (8th Cir.1998), a city manager with control over liquor licenses told a bar owner to fire an employee for testifying against the city’s police officers. Id. at 843.

The court found that the employee’s allegations that the city manager used his regulatory authority to coerce the employee’s termination were sufficient to create a factual dispute and avoid

summary judgment. Id. at 844. Unable to prove the second prima facie element, Kelly’s claims against Ariss and Hutzel fail. III. We affirm the district court’s grant of

summary judgment to all defendants. . Because Kelly's claim against the Board fails on the merits, we proceed as if Kelly presented sufficient evidence of a county policy or custom underlying the Board's refusal to hire him to satisfy the Monell policy or custom requirement. See Monell v. New York Dept. of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). . The dissent concedes that no causal connection exists between Kelly’s protected activities and South's vote against his hire for the dispatch position.

The dissent argues, however, that "the vague statements of Commissioner!] Kilburn ... leave open the possibility that [he] considered not only that Kelly had a negative relationship with the Hamilton Township Police Department because he had quit and had an altercation with an officer, but also that Kelly had previously sued the Hamilton Township Chief of Police.” Dissent at 256. We respectfully disagree that Kilburn made "vague statements” open to such varying

interpretations. In discussing the reasons the Commissioners declined to hire Kelly, Kil-bum identified the incident he deemed problematic. Kilburn Dep. at 24-25. Though he did not "really recall all the specifics,” he did recall that "there could have been a gun involved." Id. This statement refers to Kelly's allegation that another police officer put a gun to Kelly's head. Notably, Kilburn never referred to the lawsuit against Duvelius. . Kelly sued Ariss and Hutzel in their official and individual capacities.

Though the district court resolved the individual- and official-capacity claims on different grounds, both claims require Kelly to make the three-part prima facie showing to prevail. Because he fails to do so, we need not differentiate between the two claims.