ERIC CARLYLE DEAN and ELIZABETH DEAN v. CITY OF BAY CITY, MICHIGAN, ROBERT V. BELLEMAN, and JAMES PALENICK

The Honorable Karl S. Forester, Senior United States District Judge for the Eastern*
District of Kentucky, sitting by designation.
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0339n.06
Filed: May 15, 2007
Nos. 06-1192 and 06-1657
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ERIC CARLYLE DEAN and
ELIZABETH DEAN,
Plaintiffs-Appellants,
V.
CITY OF BAY CITY, MICHIGAN,
ROBERT V. BELLEMAN, and JAMES
PALENICK,
Defendants-Appellees.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
MICHIGAN
Before: MERRITT and MARTIN, Circuit Judges; FORESTER, Senior District
Judge.*
KARL S. FORESTER, Senior District Judge. The Plaintiffs-Appellants, Eric Carlyle Dean and
Elizabeth Dean, filed a civil rights complaint against the defendants alleging constitutional violations
and various state law claims based upon the alleged wrongful termination of Eric Dean’s
employment. After the filing of the defendants’ motions for summary judgment, the Deans sought
to amend their Complaint to assert additional claims, including a claim under Title I of the

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Americans with Disabilities Act, 42 U.S.C. § 12111 (hereinafter the “ADA”). The district court
subsequently granted the defendants’ motions for summary judgment, denied the Deans’ motion to
amend, and judgment was entered in favor of the defendants. Thereafter, the Deans moved the court
to reconsider dismissing their claims and for leave to amend their Complaint to add a claim under
Title II of the ADA. The district court denied the Deans’ motion to reconsider. This appeal
followed.
I. FACTUAL AND PROCEDURAL BACKGROUND
On July 10, 2000, Eric Dean was hired as Director of Power & Technology for the City of
Bay City, Michigan. As Director of Power & Technology, Dean served as a department head with
oversight authority of Bay City’s electric power supply. Dean reported directly to Bay City Manager
James Palenick.
Over the course of the next year, Palenick developed significant concerns regarding Dean’s
abilities to administer the department, manage employees, and oversee Bay City’s electric power
supply. When Dean returned to work after undergoing a gastric bypass operation in November 2001,
Palenick and others noticed that Dean’s cognitive thinking, lucidity, and thought process was slowed,
that he dozed in and out of consciousness at staff meetings, spoke with a slow, slurred speech, and
failed to respond coherently to questions posed by supervisors. An extensive performance evaluation
of Dean dated July 27, 2002 revealed a litany of specific job performance deficiencies. As a result,
Palenick hired a private investigations firm to conduct a background investigation and employee
productivity surveillance of Dean. Before completion of the investigation, however, Palenick was
terminated as City Manager on August 5, 2002.
Robert Belleman was hired to replace Palenick as City Manager on August 9, 2002.

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Surveillance against Dean continued, and revealed no evidence that Dean used alcohol or drugs
during his employment with Bay City. Another performance evaluation of Dean was completed on
November 21, 2003. This evaluation also noted Dean’s failure to adequately perform his job duties.
On November 24, 2003, Belleman terminated Dean’s employment, citing poor job performance and
the unprofitability of the electric utility as the reasons for his termination.
A grievance hearing was held on December 8, 2003. Dean advised that he had nothing to
present and wanted the matter to go to arbitration. On April 7, 2004, Dean withdrew from
arbitration. This civil rights action was subsequently filed pursuant to 42 U.S.C. § 1983 on May 3,
2004. In their Complaint, the Deans allege that Eric Dean was terminated in retaliation for engaging
in protected speech under the First Amendment and in violation of his procedural due process rights
under the Fourteenth Amendment. The Complaint also asserts state tort and breach of contract
claims. The named defendants, the City of Bay City, Michigan, Robert Belleman, and James
Palenick, filed their answers denying the Deans’ claims.
Discovery soon commenced and revealed to the defendants that Dean had a problem with
alcohol and prescription pain pills during his employment. At the conclusion of the discovery
period, the defendants filed their motions for summary judgment. Before the district court ruled on
the motions for summary judgment, the Deans filed a motion to amend their Complaint to assert
claims for invasion of privacy, violation of Title I of the ADA, and wrongful discharge. On October
28, 2005, the district court denied the Deans’ motion to amend on the grounds it was untimely and
the amendment would be futile.
Then, on December 30, 2005, the district court dismissed, with prejudice, the Deans’
constitutional claims against Bay City and Belleman. The district court declined to exercise

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supplemental jurisdiction and dismissed without prejudice the Deans’ state law claims against Bay
City, Belleman, and Palenick. On January 9, 2006, the Deans filed a motion for reconsideration
seeking reconsideration of the district court’s order entering judgment in favor of the defendants and
denying the Deans’ motion to amend the Complaint, and for the first time seeking to amend their
complaint to add a claim under Title II of the ADA. On January 13, 2006, the Deans filed their
notice of appeal regarding the district court’s order granting the defendants’ motion for summary
judgment, but not the district court’s order of October 28, 2005 denying the Dean’s motion to amend.
The district court, on February 16, 2006, denied the Deans’ motion for reconsideration.
On April 11, 2006, the Deans filed a motion seeking an extension of time to file an amended
notice of appeal to challenge the district court’s denial of its motion for reconsideration. On April
21, 2006, the district court granted the Deans’ motion to extend time to file an amended appeal. An
amended notice of appeal was filed on April 24, 2006 challenging the district court’s December 30,
2005 order and judgment and the February 16, 2006 order denying the motion for reconsideration.
II. JURISDICTION OVER THE DEANS’ APPEAL
Before turning to the merits of the Deans’ appeal, this Court must first address whether it has
jurisdiction over this matter. The Federal Rules of Appellate Procedure require litigants in civil
cases to file a notice of appeal “with the district clerk within 30 days after the judgment or order
appealed is entered.” Fed. R. App. P. 4(a)(1)(A). This 30 day period, however, is tolled by certain
post-decision motions, including a motion for reconsideration, provided the tolling motion is filed
within 10 days after entry of the judgment. Fed. R. App. P. 4(a)(4); see also Myers v. Ace Hardware,
Inc., 777 F.2d 1099, 1103 (6 Cir. 1985). In this case, the district court entered its Opinion andth
Order and judgment on December 30, 2005 and the Deans filed a timely notice of appeal on January

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Defendant Palenick argues that the Deans’ motion for reconsideration and notice of1
appeal are untimely with respect to the district court’s October 28, 2005 order denying their
motion for leave to file an amended appeal. However, the denial of a request for leave to file an
amended complaint is not immediately appealable. Marathon Petroleum Co. v. Pendleton, 889
F.2d 1509, 1511 n.11 (6 Cir. 1989). Only after entry of final judgment does such a non-finalth
ruling become appealable. McLaurin v. Fischer, 768 F.2d 98, 102 (6 Cir. 1985).th
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13, 2006. However, prior to filing their notice of appeal, the Deans filed, on January 9, 2006, their
motion for reconsideration of the district court’s entry of judgment in favor of the defendants and
denial of the Deans’ motion to amend the complaint to add a claim under Title II of the ADA. The
notice of appeal was filed after the court entered a judgment, but before the court disposed of the
motion for reconsideration; therefore, the notice of appeal becomes effective on the date the district
court denied the Deans’ motion for reconsideration - February 16, 2006. See Fed. R. App. P.
4(a)(4)(B).
Because the order denying their motion to reconsider was entered on February 16, 2006, the
Deans had thirty days from February 16, 2006 to file an amended notice of appeal of that order.1
Fed. R. App. P. 4(a). Although the Deans failed to file an amended notice of appeal within this thirty
day period, they did file a motion for extension of time to amend their appeal to include the district
court’s denial of their motion to reconsider on April 16, 2006. Under Rule 4(a)(5), the district court
may extend the time to file a notice of appeal by thirty days if a party files a motion for extension
of time no later than thirty days after the time prescribed for filing a notice of appeal, provided the
party shows excusable neglect or good cause. Fed. R. App. P. 4(a)(5). In this case, the Deans’
motion for extension of time to amend their appeal was filed within the prescribed sixty day period
and the district court found good cause for the delay based on recent events in related litigation. The
district court thus granted the Deans’ motion, and ordered that an amended notice of appeal be filed

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on or before May 3, 2006. The Deans’ amended notice of appeal was filed on April 21, 2006.
Accordingly, this court has jurisdiction to hear the Deans’ appeal of the district court’s orders of
December 30, 2005 and February 16, 2006.
III. THE DISTRICT COURT’S DECISION TO DENY LEAVE TO AMEND IS
AFFIRMED ON ALTERNATIVE GROUNDS
The Deans originally brought this wrongful termination action alleging various federal and
state law theories. However, after discovery revealed evidence of Eric Dean’s alcoholism and drug
dependence, the Deans attempted to assert, inter alia, an additional wrongful termination theory
under the ADA based on their allegation that the defendants regarded Eric Dean as disabled by his
alcoholism and drug dependence. Reviewing the Deans’ motion to amend under Rule 15 (a) of the
Federal Rules of Civil Procedure, the district court noted that discovery was closed and allowing the
amendment would result in the reopening of discovery and undue prejudice to the defendants. More
importantly, the district court held that the proposed claim under Title I of the ADA would be futile
because the Deans failed to pursue the requisite administrative relief prior to filing suit. The Deans
do not appeal this ruling.
The district court then entered summary judgment on the Deans’ federal claims, and declined
to exercise jurisdiction over the Deans’ state law claims. In an apparent effort to avoid the
administrative exhaustion requirement contained in Title I of the ADA, and after judgment had been
entered in favor of the defendants, the Deans sought to amend their complaint to assert for the first
time a claim for wrongful termination under Title II of the ADA. Because the Deans’ proposed
amendment was contained in a motion to reconsider, the district court reviewed this matter pursuant
to Rule 59(e) and Rule 60(b) of the Federal Rules of Civil Procedure.

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While noting that the Sixth Circuit had not yet resolved the issue of whether Title II is
applicable in employment cases, the district court reviewed the current state of the law and
concluded that “it is unlikely that the Sixth Circuit would hold that Title II of the ADA applies to
employment cases, which are covered explicitly by Title I. Moreover, even if Title II applies to
employment cases, the administrative rule requires a claimant to abide by the exhaustion
requirements stated in Title I.” It is on these grounds that the district court denied the Deans’ attempt
to proceed on the Title II claim. While this Court agrees that the district court was correct in denying
the Deans’ motion, the decision will be affirmed for other reasons supported by the record. See Salve
Regina College v. Russell, 499 U.S. 225, 231 (1991)(“The obligation of responsible appellate
jurisdiction implies the requisite authority to review independently a lower court’s determinations”);
Andrews v. State of Ohio, 104 F.3d 803, 808 (6 Cir. 1997)(holding that this court may affirm on anyth
grounds supported by the record, even if different from the district court’s grounds).
Although the Deans’ motion was couched as a motion for reconsideration under Rule 59(e)
and Rule 60(b), the Deans were actually attempting to assert a new claim for the first time. A motion
for reconsideration based on Rule 59(e) or Rule 60(b) is not the proper vehicle for asserting a new
claim for the first time. Rather, Rule 15(a) governs motions for leave to amend pleadings, and states
in pertinent part that “a party may amend the party’s pleading only by leave of court or by written
consent of the adverse party; and leave shall be freely given when justice so requires.” Fed. R. Civ.
P. 15(a). While this is a liberal standard, the district court need not grant leave to amend if there is
evidence of delay, prejudice, or futility. Foman v. Davis, 371 U.S. 178, 182 (1962); Midkiff v.
Adams County Regional Water District, 409 F.3d 758, 767 (6 Cir. 2005); Inge v. Rock Financialth
Corp., 388 F.3d 930, 937 (6 Cir. 2004). In this case, discovery was closed, dispositive motionsth

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were filed, and judgment had already been entered in favor of the defendants. Allowing the Deans
to proceed with their proposed amendment at this juncture would have necessitated, at a minimum,
the reopening of discovery and another round of dispositive motions. Given the substantial prejudice
this would impart upon the defendants, the district court would not have abused its discretion in
denying the Deans’ attempt to assert a claim under Title II of the ADA. Consequently, the decision
of the district court denying the Deans leave to assert a claim under Title II of the ADA is
AFFIRMED on these alternative grounds, and this Court declines to reach the novel issue of whether
Title II of the ADA applies to employment cases.
IV. THE DISTRICT COURT DID NOT ERR IN DISMISSING THE DEANS’
PROCEDURAL DUE PROCESS CLAIMS.
With respect to the district court’s denial of the Deans’ motion to reconsider the order
granting summary judgment on their federal claims, this court should apply a de novo standard of
review using the same standard employed by the district court. Gage Products. Co. v. Henkel Corp.,
393 F.3d 629, 637 (6 Cir. 2004). Summary judgment is proper where no genuine issue of materialth
fact exists and the movant is entitled to judgment as a matter of law. Moross Ltd. Partnership v.
Fleckenstein Capital, Inc., 466 F.3d 508, 515 (6 Cir. 2006); see also Fed. R. Civ. P. 56(c). Inth
considering a motion for summary judgment, evidence is to be construed, and all reasonable
inferences therefrom are to be construed, in the light most favorable to the non-movant. The issue
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. Moross, 466 F.3d at 515. “The mere
existence of a scintilla of evidence in support of the [non-movant]’s position will be insufficient;
there must be evidence on which the jury could reasonably find for the plaintiff.” Id.

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The Deans contend that Eric Dean’s termination violated his rights under the Due Process
Clause of the Fourteenth Amendment because the pre- and post-termination procedures were
constitutionally inadequate. The Fourteenth Amendment’s guarantee of procedural due process
assures that the deprivation of life, liberty, or property “be preceded by notice and opportunity for
a hearing appropriate to the nature of the case.” Cleveland Bd. of Education v. Loudermill, 470 U.S.
532 (1986). When faced with a claim for violation of due process rights, federal courts engage in
a two-step analysis. First, the court must determine whether a protected property interest exists, and
second, what procedures are required to protect that interest. Singfield v. Akron Metropolitan
Housing Auth., 389 F.3d 555, 565 (6 Cir. 2004); Johnston-Taylor v. Gannon, 907 F.2d 1577, 1581th
(6 Cir. 1990).th
Generally, state civil servants may have a property interest in continued employment under
certain circumstances and must be afforded due process before being discharged. Loudermill, 470
U.S. 538; Relford v. Lexington-Fayette Urban County Government, 390 F.3d 452, 460 (6 Cir.th
2004). However, courts must look to an independent source, such as state law, to determine whether
or not a property interest exists. Loudermill, 470 U.S. at 539. A showing that a civil servant may
be fired only for cause, by operation of state contract law, statute, administrative rules and
regulations is sufficient to satisfy the first step of the analysis. Farhat v. Jopke, 370 F.3d 580, 595
(6 Cir. 2004).th
Under Michigan law, a plaintiff can prove he is a “just cause” employee by three means: “(1)
proof of a ‘contractual provision for a definite term of employment or a provision forbidding
discharge absent just cause;’ (2) an express agreement, either written or oral, regarding job security
that is clear and unequivocal; or (3) a contractual provision, implied at law, where an employer’s

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policies and procedures instill a ‘legitimate expectation’ of job security in the employee.” Lytle v.
Malady, 579 N.W.2d 906, 911 (Mich. 1998) (citing Toussaint v. Blue Cross & Blue Shield of
Michigan, 292 N.W.2d 880 (Mich. 1980)). There is no dispute among the parties that no contractual
provision guaranteeing “just cause” termination exists. Nor is there any evidence of an express
written or oral agreement. However, the evidence does suggest that Bay City’s policies and
procedures created a legitimate expectation of a secure job that would not be withdrawn without just
cause. For instance, Bay City’s employment manual sets out a detailed grievance procedure in which
employees may challenge decisions to terminate, including the right to a hearing before the city
commission. Such a procedure is inconsistent with an employer’s privilege of discharging
employees at will. Moreover, Bay City indeed offered Eric Dean the right of grievance to be
followed by arbitration, again suggesting that he is not an at-will employee. Thus, the Deans have
established that Eric Dean had a property interest sufficient to trigger the second step of the analysis.
The formality of the process due under federal law “depends upon the importance of the
[property] interest” at stake. Farhat, 370 F.3d at 595. In this case, the Deans challenge the
sufficiency of both the pre-termination and post-termination hearings. With respect to the pre-
termination due process, the Sixth Circuit simply requires notice and an opportunity to present his
or her side of the story to the official responsible for the termination. Id.; Buckner v. City of
Highland Park, 901 F.2d 491, 494 (6 Cir. 1990). Eric Dean’s job performance reviews, which heth
discussed with defendant Belleman, gave him notice of his deficiencies well in advance of his
termination. The fact that the notice made no reference to his dependence on drugs or alcohol is
irrelevant since the defendants clearly had no knowledge that his poor job performance may have
been related to his drug and alcohol dependency. Certainly, the notice provided to Eric Dean was

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constitutionally adequate.
Eric Dean was also afforded a pre-termination opportunity to met with Belleman to discuss
his performance evaluation on November 21, 2003. Eric Dean reviewed the evaluation, challenged
the allegations that he had lied, and left the meeting without further discussion. By letter of
November 24, 2003, Eric Dean was notified of his termination. Pursuant to Bay City’s rules, on
December 8, 2003 a grievance hearing was held wherein Eric Dean advised he had nothing to present
and simply wanted the matter to go to arbitration before a neutral decision-maker as allowed under
the rules. However, on April 7, 2004, Eric Dean withdrew from arbitration. By declining to
participate in the post-termination arbitration, Eric Dean waived whatever remained of his procedural
due process claim. Farhat, 370 F.3d at 596.
The Deans argue that Eric Dean withdrew from arbitration because he could not afford to
obtain the necessary documents requested pursuant to the Freedom of Information Act. However,
the relevant arbitration rules clearly provide that an arbitrator may independently subpoena any
necessary witnesses and documents. Accordingly, the decision of the district court denying the
Deans’ procedural due process challenges to Eric Dean’s termination is AFFIRMED.

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