Albert DiBrito v. City of St. Joseph, et al

Filing

OPINION filed : AFFIRMED. Decision not for publication. Eugene E. Siler, Jr. (AUTHORING), Alice M. Batchelder, and Richard Allen Griffin, Circuit Judges.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0026n.06
Case No. 16-1357
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ALBERT DIBRITO,
Plaintiff-Appellant,
v.
CITY OF ST. JOSEPH, et al.,
Defendants-Appellees.

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FILED
Jan 13, 2017
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF
MICHIGAN

BEFORE: SILER, BATCHELDER, and GRIFFIN, Circuit Judges.
SILER, Circuit Judge. Albert DiBrito and Mark Clapp both worked at the City of St.
Joseph’s Public Safety Department (“PSD”). Clapp was the Director, and DiBrito was the
Deputy Director. City Manager Richard Lewis would eventually fire DiBrito from his position
as Deputy Director. DiBrito argues that he was fired for two complaints made about Clapp to
Lewis—(1) complaint about Clapp’s purchase of a firearm and (2) complaint about Clapp’s
alleged defamatory comments made to another officer. These complaints, according to DiBrito,
were protected speech under the First Amendment.

Because DiBrito’s complaints are not

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protected speech under the First Amendment and he has failed to establish a required element of
a due process violation, we affirm the district court’s grant of summary judgment.1
FACTUAL AND PROCEDURAL BACKGROUND
After an extensive career with the Federal Bureau of Investigations (“FBI”), DiBrito
began working for the City of St. Joseph (“City”) as the deputy director of the PSD. As deputy
director, DiBrito reported to Clapp, PSD’s director.
From the beginning, DiBrito began keeping notes of actions that Clapp took, and that
DiBrito disapproved. In 2013, a city resident called the PSD requesting that a firearm be
removed from her residence after her husband’s death. Officer Tom Vaught met with the citizen,
obtained the firearm, and obtained permission to destroy or auction the firearm. Vaught then
turned the firearm over to Clapp. After deciding that he would like to keep the firearm for
himself, Clapp began discussing with several individuals if he should purchase it. DiBrito
advised Clapp not to purchase the firearm. However, Clapp took the firearm home with him and
the next day he paid the city resident $50 for the firearm.
DiBrito decided to “check[]. . . some legal issues” related to Clapp’s purchase of the
firearm, including contacting the United States Attorney’s office, but was unable to find any city
policy or federal law that Clapp had violated.
In 2014, DiBrito had a disagreement with Jim Crowe, who was the command equal of
DiBrito on the fire department side of the PSD. Crowe believed DiBrito had a role in Crowe’s
rejection from a police chief training program. After the incident, DiBrito met with Clapp to

1

Because we do not find a constitutional violation, we need not discuss qualified
immunity or municipality liability under Monell v. Department of Social Services, 436 U.S. 658,
694 (1978).
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discuss the issue. At this meeting, Clapp threatened DiBrito’s termination if DiBrito had a role
in Crowe’s rejection.
The same day as the DiBrito-Clapp meeting, Clapp met with Vaught to discuss a
promotion that Vaught did not receive. To counteract Vaught’s questioning of the unfairness of
the hiring process, Clapp told Vaught that the hiring of DiBrito was also unfair. Clapp went on
to explain that the City’s former city manager hired DiBrito even though other candidates had
better qualifications because DiBrito was investigating the former city manager. Clapp told
Vaught that DiBrito dropped the investigation in exchange for this job and project money.
Vaught told DiBrito about Clapp’s comments. The next business day DiBrito filed a
formal complaint with Lewis regarding Clapp’s firearm purchase that occurred four months
prior. Although DiBrito admitted that he could not find any policy that had been violated and
that the United States Attorney’s office had stated no federal law was violated, DiBrito suggested
that Lewis contact the Michigan State Police to investigate. While DiBrito did not mention
Clapp’s comments to Vaught in the formal complaint, DiBrito did tell Lewis about the comments
the following day.
Due to the complaint, Lewis investigated and placed Clapp on administrative leave.
Lewis sent a copy of DiBrito’s complaint to the Michigan State Police. The state police
responded that it would not conduct a criminal investigation because “the elements to prove that
a crime was committed and prove it beyond a reasonable doubt to a jury would be extremely
unlikely.” Lewis also determined that no city policy prohibited Clapp’s conduct. To avoid this
happening again in the future, Lewis directed DiBrito to draft a policy prohibiting the conduct.
The investigation left Lewis “troubled by the background of the complaint,” and he
believed that DiBrito’s “own words and statements” indicated that DiBrito knew Clapp had not

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violated the law. The investigation also revealed numerous management issues within the PSD.
Therefore, the City hired Theresa Smith Lloyd, an attorney, to conduct a third-party
investigation.
After interviewing a number of city employees, Lloyd submitted a report in 2014. The
report concluded that Clapp’s statements to Vaught regarding DiBrito’s hiring were
“inappropriate statements for a commanding officer to make regarding a second in charge,” and
the “issue should be dealt with appropriately within the department.” The report also stated that
many employees had raised issues regarding DiBrito’s “honesty, inappropriate statements to
subordinates regarding a commanding officer, favoritism, and retaliation,” and such issues “must
be addressed with DiBrito.” After receiving this report, Lewis terminated DiBrito and suspended
Clapp for five days without pay.
After his termination, DiBrito sued the City, Lewis, and Clapp (“Defendants”). DiBrito
alleged that his termination violated his constitutional rights under the First Amendment and Due
Process Clause, as well as Michigan statutory and common law. The district court granted
summary judgment to the Defendants on the federal claims and declined to exercise jurisdiction
over the state-law claims.
STANDARD OF REVIEW
“We review de novo the district court’s grant of summary judgment.” Cherry Hill
Vineyards, LLC v. Lilly, 553 F.3d 423, 431 (6th Cir. 2008) (citing Lenscrafters Inc. v. Robinson,
403 F.3d 798, 802 (6th Cir. 2005)).

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DISCUSSION
I.

First Amendment Retaliation
DiBrito argues that Lewis and Clapp fired him due to his constitutionally protected

speech in violation of the First Amendment. In particular, DiBrito argues that he made two
constitutionally protected statements: (1) the complaint about Clapp’s purchase of the firearm
and (2) the complaint about Clapp’s statements to Vaught.
a. Legal Standard
A plaintiff alleging a claim of First Amendment retaliation must demonstrate that (1) he
engaged in constitutionally protected conduct; (2) he suffered an adverse action sufficient to
deter a person of ordinary firmness from engaging in such conduct; and (3) the adverse action
was motivated at least in part by the plaintiff’s protected conduct. Handy-Clay v. City of
Memphis, 695 F.3d 531, 539 (6th Cir. 2012).
“When a citizen enters government service, the citizen by necessity must accept certain
limitations on his or her freedom.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). “However,
public employees do not forfeit all their First Amendment rights simply because they are
employed by the state or municipality.” Handy-Clay, 695 F.3d at 539. Instead, the Supreme
Court has “sought both to promote the individual and societal interests that are served when
employees speak as citizens on matters of public concern and to respect the needs of government
employers attempting to perform their important public functions.” Garcetti, 547 U.S. at 420.
To accomplish this goal, “the Supreme Court has established a three-part test for
evaluating whether a public employee’s speech is constitutionally protected.”

Handy-Clay,

695 F.3d at 540. The plaintiff must show:
(1) that h[is] speech was made as a private citizen, rather than pursuant to h[is]
official duties; (2) that h[is] speech involved a matter of public concern; and (3)
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that h[is] interest as a citizen in speaking on the matter outweighed the state’s
interest, as an employer, in promoting the efficiency of the public services it
performs through its employees.
Id. (citation and internal quotation marks omitted).
b. Constitutionally Protected Speech
DiBrito argues that both of his statements are constitutionally protected because the
statements were made as a private citizen and related to a matter of public concern. DiBrito
argues that he submitted the complaints because of ethical and efficiency concerns at the PSD.
These statements, according to DiBrito, were made as a “concerned” private citizen. Similarly,
DiBrito argues that both statements implicated public concern. As for the complaint about
Clapp’s firearm purchase, DiBrito argues that it raises a matter of public concern because the
firearm was public property and misappropriated by Clapp. As for the complaint about Clapp’s
comments to Vaught, DiBrito argues that it rises to the level of a public concern because it
alleges a serious allegation—defamation—rather than a normal run-of-the-mill employment
dispute.
We disagree.

As discussed below, we find that DiBrito did not engage in

constitutionally-protected speech. First, DiBrito’s complaint about Clapp’s firearm purchase was
made pursuant to his official duties as Deputy Director of Public Safety rather than a private
citizen. Second, DiBrito’s complaint about Clapp’s comments to Vaught did not relate to a
matter of public concern rather a private intra-office employment dispute.
i. Complaint About Clapp’s Firearm Purchase
The First Amendment does not insulate a public employee from employer discipline
when the employee makes a statement pursuant to his official duties. Garcetti, 547 U.S. at 421.
In Garcetti, the Supreme Court explained:

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Restricting speech that owes its existence to a public employee’s professional
responsibilities does not infringe any liberties the employee might have enjoyed
as a private citizen. It simply reflects the exercise of employer control over what
the employer itself has commissioned or created.
Id. at 421–22. In Lane v. Franks, 134 S. Ct. 2369 (2014), the Court made clear that the Garcetti
exception is narrow. The exception does not apply to “speech that simply relates to public
employment or concerns information learned in the course of public employment,” but “[t]he
critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope
of an employee’s duties, not whether it merely concerns those duties.” Id. at 2379. We have
explained, “[a]fter Lane, the Garcetti exception to First Amendment protection for speech . . .
must be read narrowly as speech that an employee made in furtherance of the ordinary
responsibilities of his employment.” Boulton v. Swanson, 795 F.3d 526, 534 (6th Cir. 2015).
DiBrito’s complaint about Clapp’s firearm purchase was made “in furtherance of the
ordinary responsibilities of his employment.”2 Id. DiBrito, as Deputy Director of Public Safety,
was the second highest ranking law enforcement officer in the City. Among other duties,
DiBrito “assumes command of the Public Safety Department (including fire division) in the
absence of the Public Safety Director” and “performs all the duties of a police officer.”
Furthermore, DiBrito admitted that he was involved with the day-to-day action at the police
department going to the scene of a crime and responding to calls. He testified, for instance, that
he would go on patrol with the officers when they were short staffed and liked to be “shoulderto-shoulder” with his subordinates. See Garcetti, 547 U.S. at 424–25 (describing the proper

2

It must be noted that the district court incorrectly cited DiBrito’s job duties. The district
court cited the job duties of the Director rather than the Deputy Director. But, both parties agree
that this was incorrect; therefore, it is not a dispute of material fact that can overcome summary
judgment. DiBrito has also attached the correct job duties to his opening brief. We have
considered the correct job duties in reviewing this case de novo.
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inquiry as a practical one to determine whether something is within the job duties of the
employee).
As a police officer, DiBrito felt that Clapp had violated the law when he purchased the
firearm given to the PSD. After reviewing the state law and contacting federal officials, DiBrito
prepared a complaint to Lewis.

This complaint was prepared on department letterhead,

referenced a police report regarding the turned-in firearm, made recommendations regarding
additional investigations that should be undertaken, and was signed “Deputy Director Al
DiBrito.” These facts prove that DiBrito was acting as Deputy Director of the PSD rather than a
“concerned” citizen.
Therefore, DiBrito’s complaint about Clapp’s firearm purchase is not protected because it
was made pursuant to his official duties rather than as a private citizen. See id. at 422.
ii. Complaint About Clapp’s Comments to Vaught
Even if an employee speaks as a private citizen, the speech is not protected unless it
relates to a matter of public concern. “In general, a matter of public concern is a ‘matter of
political, social, or other concern to the community.’” Jackson v. Leighton, 168 F.3d 903, 909
(6th Cir. 1999) (quoting Connick v. Myers, 461 U.S. 138, 146 (1983)). Courts must “distinguish
matters of public concern from internal office politics.” Id. Courts are to consider the content,
form, and context of the statement in light of the record. Connick, 461 U.S. at 147–48.
Following Connick, we have held “mere assertions of incompetence and poor
management decision-making to be run-of-the-mill employment disputes—particularly when the
recommended course of action would benefit the employee.” See Boulton, 795 F.3d at 532
(listing cases). Speech addresses matters of public concern “when it alleges corruption and

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misuse of public funds, failure to follow state law, major state policy decisions, or discrimination
of some form.” Id. (internal citations omitted).
DiBrito’s complaint about Clapp’s comments to Vaught was an employment grievance
concerning matters of personal interest—the allegedly defamatory comments. While DiBrito
argues that he was raising serious allegations of defamation which “threaten[ed] the continued
effective operation of the [PSD],” that argument is unpersuasive. In Connick, the Supreme Court
explained that not all matters within a government office are matters of public concern:
To presume that all matters which transpire within a government office are of
public concern would mean that virtually every remark—and certainly every
criticism directed at a public official—would plant the seed of a constitutional
case. While as a matter of good judgment, public officials should be receptive to
constructive criticism offered by their employees, the First Amendment does not
require a public office to be run as a roundtable for employee complaints over
internal office affairs.
461 U.S. at 149. Therefore, a federal court, through a First Amendment challenge, is not the
appropriate forum to determine whether a supervisor’s alleged unprofessional conduct threatens
the effective operation of a public office.
Thus DiBrito’s complaint about Clapp’s comments to Vaught is not protected speech
because it concerns an employment dispute rather than a matter of public concern. See Boulton,
795 F.3d at 532.
II.

Due Process
In addition to the First Amendment retaliation claim, DiBrito also asserts that his

termination violated his rights under the Due Process Clause. In his complaint, DiBrito states
that his right to substantive due process was violated. This claim fails too. See, e.g., Thaddeus-X
v. Blatter, 175 F.3d 378, 387 (6th Cir. 2002) (“[W]here a particular Amendment provides an
explicit textual source of constitutional protection against a particular sort of government

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behavior, that Amendment, not the more generalized notion of substantive due process, must be
the guide for analyzing these claims.” (quoting Albright v. Oliver, 510 U.S. 266, 273 (1994))).
At summary judgment, DiBrito offered clarification to his claim stating that he suffered injuries
to his reputation and good name which threatens his individual freedom to pursue business or
employment opportunities. See Med Corp. v. City of Lima, 296 F.3d 404, 414 (6th Cir. 2002).
We have held that an injury to one’s reputation, good name, honor, or integrity constitutes a
deprivation of a liberty interest when five elements are met. Id.
In this case, DiBrito fails to satisfy the second element: “foreclose[ure] [of] his freedom
to take advantage of other employment opportunities.” Id. (citation omitted). DiBrito has failed
to provide any evidence that the statements have prevented future employment opportunities.
Instead, he provides naked allegations that the statements “by their nature would cause an
uncrossable barrier for [him] seeking future employment with a law enforcement employer.”
This is not enough. A statement that “merely makes a plaintiff less attractive to other employers
. . . does not constitute a liberty deprivation.” Id. (quoting Ludwig v. Bd. of Trs. of Ferris State
Univ., 123 F.3d 404, 410 (6th Cir. 1997)). Even a denied business opportunity—something
DiBrito has not demonstrated—“does not deprive a person of a liberty interest, for the ability to
obtain future business or employment opportunities is not jeopardized.” Id. (quoting Bannum,
Inc. v. Town of Ashland, 922 F.2d 197, 201 (4th Cir. 1990)).
AFFIRMED.

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