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Case Number: 22a0438n.06
Court: United States Court of Appeals for the Sixth Circuit on on appeal from the Western District of Michigan (Kent County)
Defendant's Attorney: Kyla Lillian Barranco
Description: Grand Rapids, Michigan employment law lawyers represented Plaintiffs, who sued Defendants on a civil rights violation theory under 28 U.S.C. 1981.
This case is about two employees who were disciplined for misconduct and for disobeying
certain rules when handling the transfer process for a subordinate. They brought suit alleging that
the punishment they received was not justified and was imposed instead in retaliation for their
opposition to their employer’s efforts to diversify the police force.
Michael Caldwell and Robert Hahn served as police officers for the Michigan State Police
(“MSP”) for over thirty years. Until recently, Caldwell was the captain of the seventh district in
northern Michigan. Hahn served as an inspector and reported to Caldwell in the same district.
Caldwell and Hahn have been close friends since they attended the state police recruit school
together in 1990.
In the fall of 2019, Plaintiffs were involved in a series of events that culminated in
Caldwell’s demotion and Hahn’s dismissal. Plaintiffs allege that their dismissal and demotion
were due to their voicing concerns over double standards and discriminatory treatment by the MSP
towards white males in promotion and hiring. Defendants contend that Plaintiffs were not
dismissed for voicing their concerns over discrimination, but rather, because of misconduct
relating to the interview and selection process of an employee seeking to transfer to an open
position in their district. Before the district court, Plaintiffs alleged that they were discriminated
against and retaliated against by the MSP because they are white males and because they opposed
MSP’s diversity initiatives. The district court determined that Plaintiffs failed to establish a prima
facie case of reverse discrimination because they could not point to any similarly situated nonwhite non-male employees who were treated differently. Plaintiffs have since abandoned an waived their discrimination claims, focusing only on their claim that they were retaliated against
for opposing MSP’s diversity initiatives.
The following sections detail the events that took place in the fall of 2019, when Plaintiffs:
(1) mishandled the transfer interview process of a subordinate; and (2) expressed their opinions
about the MSP’s new diversity initiatives.
On October 9, 2019, an assistant post commander position became available in Gaylord,
MI, in the seventh district (then Caldwell and Hahn’s district). The position was open only to
employees eligible for lateral transfer or demotion. The only officer to apply for the position was
a white male, Michael Bush. Bush had worked for the MSP for twenty years and had recently
been promoted to detective lieutenant, serving as the Traverse Narcotics Team Commander in the
When Bush expressed interest in the position, Hahn, Caldwell, and Bush’s direct
supervisor, First Lieutenant (“Lt.”) Belcher, each spoke with him individually and told him they
would not support his transfer because they needed him in the Traverse narcotics unit. Bush was
required to obtain a recommendation from his supervisor on a PD-35 form to submit with his
application. Belcher completed the PD-35 form for Bush and praised Bush’s work in his current
position but wrote that he was not recommended for the position because he had not been in his
latest position long enough to warrant a promotion to assistant post commander.
The PD-35 was forwarded to human resources (“HR”). Upon receipt of the PD-35, HR
Director Stephanie Horton spoke with Lt. Colonel Richard Arnold (Caldwell’s supervisor), and
they concluded that Belcher’s non-recommendation contained in the PD-35 was invalid because it
was based solely on Bush’s short time in his current position, and not on his performance.
Thereafter, Arnold called Caldwell and they discussed Bush’s application. Arnold told Caldwell
that MSP policy required Bush to be given an interview and that all policies should be followed.
Caldwell told Arnold that unless he was overruled, he planned to deny the transfer. Arnold assured
Caldwell that he would not overrule the results of the interview panel.3 Caldwell said he left the
conversation believing that Arnold told him to go through the motions of the policy.
The hiring manager for the assistant post commander position was First Lt.Jason Nemecek.
Caldwell instructed Nemecek to follow policy, convene an interview panel, and interview Bush
for the position. Caldwell made clear to Nemecek, however, that he would not approve the transfer
regardless of the results of the interview. On October 28, 2019, Nemecek and a colleague, Connie
Swander, interviewed Bush. Nemecek and Swander rated Bush very highly, 52 out of 60 points,
on a form known as the PD-11. The PD-11 is required for certain positions, but it was not required
for this position and HR did not list it as a required form in the instructions sent to Nemecek.
Nemecek and Swander both signed the completed PD-11 form.
Hahn received the signed PD-11 form and a memo indicating that Bush had been
recommended for the assistant post commander position. Hahn was surprised to receive this memo
and sent it to Caldwell. Caldwell spoke with Nemecek about the scores and the selection memo,
and Nemecek explained that he was going through the motions and believed he had done what the
process required. After this conversation, Caldwell purportedly believed that Nemecek may have
inflated Bush’s scores. Caldwell asked Hahn to follow up with Nemecek and ask him if the scores
on the PD-11 accurately reflected Bush’s performance in the interview, and if they did not, to
resubmit it with accurate scores. Hahn did as he was told and spoke with Nemecek. Nemecek, in turn, discussed Hahn’s comments with Connie Swander, but she refused to change the scores.
Nemecek let Hahn and Caldwell know that Swander did not want to revisit the score.
Caldwell then spoke with HR Director Stephanie Horton about Bush’s application and the
scores on the PD-11. During their conversation, Horton let Caldwell know that the lateral
interview process did not require the use of the PD-11 form or even a full selection memo. On
October 30, 2019, Nemecek revised the selection memo to advise that Bush would not be selected
and to request that the assistant post commander position be opened to all applicants.
* * *
Outcome: Summary judgment in favor of Defendants affirmed.