McCoy v. State of Michigan et al
Filing
92
ORDER AND OPINION re dispositive motions, order dismissing individual defendants and notice of status conference date. Signed by District Judge Denise Page Hood. (LSau)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
FREDDIE McCOY,
Plaintiff,
Case No. 06-10837-DT
v.
HONORABLE DENISE PAGE HOOD
STATE OF MICHIGAN, MICHIGAN
DEPARTMENT OF CORRECTIONS,
JEANNE HIGGINS, KENNETH ROMANOWSKI,
GERALD CONWAY, EDDIE CARGOR,
KATHY WARNER and JOHN JUNGLING,
Defendants.
___________________________________________/
ORDER AND OPINION RE DISPOSITIVE MOTIONS,
ORDER DISMISSING INDIVIDUAL DEFENDANTS
AND
NOTICE OF STATUS CONFERENCE DATE
I.
BACKGROUND/FACTS
On February 24, 2006, Plaintiff Freddie McCoy (“McCoy”) filed the instant suit against
various Defendants including: the State of Michigan, the Michigan Department of Corrections
(“MDOC”), Jeanne Higgins, Kenneth Romanowski, Gerald Conway, Eddie Cargor, Kathy Warner,
and John Jungling. McCoy claims that his termination constitutes race discrimination and retaliation
for protected union activity under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., and
violates equal protection, due process, and the First Amendment under 42 U.S.C. § 1983. McCoy
also alleges a violation of the Michigan Elliot-Larsen Civil Rights Act MCL 37.2201, et seq. (Doc.
1, Comp.)
Prior to the instant suit, McCoy filed various actions against the MDOC. McCoy’s first suit
followed his termination in 1997 after a series of rule infractions. McCoy was ultimately reinstated.
McCoy brought suit in state court on May 3, 1999 (“1999 state court case”), alleging that he was
disciplined in a discriminatory manner based on his gender. The state court dismissed the suit with
prejudice on November 3, 2000, but granted McCoy fifteen days to amend his complaint. The state
court granted Defendants’ Motion for Summary Disposition on November 24, 2004.
Plaintiff filed a second lawsuit on October 4, 2001 (“2001 federal court case”) in the U.S.
District Court for the Eastern District of Michigan, claiming gender and race-based discrimination.
McCoy v. MDOC, Case No. 01-73785 (Taylor). The 2001 federal lawsuit was dismissed with
prejudice on April 4, 2002.
McCoy filed two petitions for review challenging the decisions of the Michigan Department
of Civil Rights in connection with complaints filed involving his employment. McCoy v. Michigan
Department of Civil Rights, Genessee County Circuit Court, Files No. 05-082829-AA and 05082854-AA. These two cases were pending at the time Defendants’ filed their initial Motion to
Dismiss on March 31, 2006. On August 21, 2006, the state court judge entered an Order Granting
Defendants’ Motion to Dismiss with prejudice in Case No. 05-82829-AA. There is no indication
as to the resolution of Case No. 05-082854-11.
On February 24, 2006, McCoy filed the present lawsuit. In its initial Motion to Dismiss,
Defendants argued that the Plaintiff’s claims were barred by res judicata, qualified immunity, and
sovereign immunity. On April 10, 2007, the Court entered an Order granting in part and denying
in part Defendants’ Motion to Dismiss. On March 31, 2008, the Court entered an Order granting
Defendants’ Motion for Reconsideration and the case was dismissed based on res judicata. McCoy
filed a Notice of Appeal.
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The Sixth Circuit Court of Appeals issued an Opinion on March 12, 2010 reversing this
Court’s grant of the Defendants’ Motion to Dismiss. The Sixth Circuit found that McCoy’s current
case was not barred by the doctrine of res judicata. McCoy v. State of Michigan, Case No. 08-1641
(6th Cir. Mar. 12, 2010)(unpublished). The Sixth Circuit affirmed the Court’s conclusion that
Defendants, in their official capacities, are entitled to sovereign immunity on the 42 U.S.C. § 1983
claims. The Section 1983 claims against the State of Michigan, the MDOC and the individuals in
their official capacities are dismissed. However, sovereign immunity claims as to the employer 42
U.S.C. § 2000e et seq. (“Title VII”) remain. The Sixth Circuit found that a suit against the
individual Defendants in their individual capacities is precluded under Title VII because they are
not alleged to have been McCoy’s employers but that the Section 1983 suit remains as to the
individual Defendants in their individual capacity.
The matter was remanded for further
proceedings. The mandate issued on April 6, 2010.
The Sixth Circuit found the events on and following June 14, 2004 most relevant to the case
at hand. On this date, McCoy was working during his assigned shift when he asked Higgins for
permission to leave his post for lunch. McCoy alleges that Higgins granted permission but later
accused him of leaving his post without relief, and informed him that he would be subject to
disciplinary action for his violation of two MDOC policies. Although McCoy continued to work
during the MDOC’s investigations of the alleged infractions, McCoy was terminated following a
hearing on September 13, 2004, which cited the incidents of June 14, 2004.
On remand, Defendant MDOC filed a Motion to Dismiss or Summary Judgment. The
individual Defendants filed a separate Motion to Dismiss or for Summary Judgment. Defendants
file their motions under Rules 12(b)(1) or (6) and Rule 56(a) of the Rules of Civil Procedure.
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Responses and replies have been filed. A hearing was held on the matter.
II.
ANALYSIS
A.
Standard of Review
Rule 12(b)(1) provides for dismissal for lack of jurisdiction over the subject matter. Fed. R.
Civ. P. 12(b)(1). Motions under Rule 12(b)(1) fall into two general categories: facial attacks and
factual attacks. See, RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir.
1996). A facial attack challenges the pleading itself. In considering this type of attack, the court
must take all material allegations in the complaint as true, and construe them in light most favorable
to the non-moving party. Id. Where subject matter jurisdiction is factually attacked, the plaintiff
bears the burden of proving jurisdiction to survive the motion, and “the trial court is free to weigh
the evidence and satisfy itself as to the existence of its power to hear the case.” Id. In a factual
attack of subject matter jurisdiction, “no presumptive truthfulness attaches to plaintiff’s allegations,
and the existence of disputed material facts will not preclude the trial court from evaluating for itself
the merits of jurisdictional claims.” Id.
Rule 12(b)(6) of the Rules of Civil Procedure provides for a motion to dismiss based on
failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court explained that “a plaintiff's obligation
to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do[.] Factual allegations must
be enough to raise a right to relief above the speculative level....” Id. at 555 (internal citations
omitted). Although not outright overruling the “notice pleading” requirement under Rule 8(a)(2)
entirely, Twombly concluded that the “no set of facts” standard “is best forgotten as an incomplete
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negative gloss on an accepted pleading standard.” Id. at 563. To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is
plausible on its face.” Id. at 570. A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged. Id. at 556. The plausibility standard is not akin to a “probability requirement,”
but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a
complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the
line between possibility and plausibility of ‘entitlement to relief.’” Id. at 557. Such allegations are
not to be discounted because they are “unrealistic or nonsensical,” but rather because they do
nothing more than state a legal conclusion–even if that conclusion is cast in the form of a factual
allegation.” Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1951, 173 L.Ed.2d 868 (2009). In sum,
for a complaint to survive a motion to dismiss, the non-conclusory “factual content” and the
reasonable inferences from that content, must be “plausibly suggestive” of a claim entitling a
plaintiff to relief. Id. Where the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged-but it has not “show [n]”-“that the pleader
is entitled to relief.” Fed. Rule Civ. Proc. 8(a)(2). The court primarily considers the allegations in
the complaint, although matters of public record, orders, items appearing in the record of the case,
and exhibits attached to the complaint may also be taken into account. Amini v. Oberlin College,
259 F.3d 493, 502 (6th Cir. 2001).
Rule 56(a) of the Rules of Civil Procedures provides that the court “shall grant summary
judgment 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 presence of factual disputes
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will preclude granting of summary judgment only if the disputes are genuine and concern material
facts. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact
is “genuine” only if “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Id. Although the court must view the motion in the light most favorable to the
nonmoving party, where “the moving party has carried its burden under Rule 56(c), its opponent
must do more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Celotex Corp.
v. Catrett, 477 U.S. 317, 323-24 (1986). Summary judgment must be entered against a party who
fails to make a showing sufficient to establish the existence of an element essential to that party's
case, and on which that party will bear the burden of proof at trial. In such a situation, there can be
“no genuine issue as to any material fact,” since a complete failure of proof concerning an essential
element of the nonmoving party's case necessarily renders all other facts immaterial. Celotex Corp.,
477 U.S. at 322-23. A court must look to the substantive law to identify which facts are material.
Anderson, 477 U.S. at 248.
B.
Res Judicata
The MDOC and the individual Defendants again argue that res judicata applies to the instant
case based on the cases cited before the Genessee Circuit Court. McCoy responds that the Sixth
Circuit has ruled on the res judicata argument.
The Sixth Circuit found that although state court actions involved claims of discrimination
and retaliation, they did not result from the same MDOC actions: “The gravamen of McCoy’s
federal complaint is that his 2004 termination and the activities and complaints surrounding that
termination, which took place from June 2004 onward, are, despite everything that may have
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occurred previously, themselves actionable. In essence, the origin of the two claims is simply not
the same.” See McCoy, supra, at 9. The Sixth Circuit found that new and independent claims were
not barred under res judicata even though they could have been resolved in previous litigation. Id.
The Sixth Circuit found the events on and following June 14, 2004 most relevant to the case at hand
when McCoy was working during his assigned shift and asked Higgins for permission to leave his
post for lunch.
The Genessee Circuit Court cases cited by Defendants do not involve the June 14, 2004
incident. Case No. 05-82829-AA involved a July 31, 2002 incident where McCoy was charged with
work rule violations #10, Class 1 Insubordination, and #32, Inattention to Duty. (Ex. 6, MDOC’s
motion, Doc. No. 73-7, ¶ 19) Case No. 05-82354-AA involved a May 27, 2002 incident where
McCoy was charged with a violation of work rule #36, Failure to Take Count. As the Sixth Circuit
noted, the events at issue in the instant case involve the June 14, 2004 incident where McCoy alleges
that Higgins granted him permission to leave, but later accused him of leaving his post without
relief. McCoy was charged with violations of work rules #30, Proper Duty Relief, and #31, Failure
to Take Proper Security Precautions. Res judicata does not apply in this case based on the two cases
filed before the Genessee Circuit Court. This Court is bound by the ruling issued by the Sixth
Circuit.
C.
Race Discrimination under Title VII
1.
Prima Facie Case
The MDOC moves to dismiss McCoy’s claim of race discrimination under Title VII. McCoy
responds that the evidence against the MDOC is mountainous and the motion should be dismissed.
Under the burden shifting approach developed for Title VII cases in McDonnell Douglas
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Corp. v. Green, 411 U.S. 792 (1972), a plaintiff must establish a prima facie case and create a
presumption of discrimination by showing by a preponderance of the evidence: (1) that he/she
belongs to a protected class; (2) that he/she was subjected to an adverse employment action; (3) that
he/she was qualified for the job; and (4) that he/she was treated differently from similarly situated
employees from a non–protected class. McDonnell Douglas, 411 U.S. at 802; Talley v. Bravo Pitino
Restaurant, 61 F.3d 1241, 1246 (6th Cir. 1995); and Wilcoxon v. Minnesota Mining & Mfg. Co., 235
Mich. App. 347, 361 (1999). Alternatively, a plaintiff could establish a prima facie case by
presenting credible, direct evidence of discriminatory intent. Terbovitz v. Fiscal Court of Adair
County, 825 F.2d 111 (6th Cir. 1987).
If a plaintiff proves a prima facie case, the burden of persuasion shifts to the employer to
articulate some legitimate, nondiscriminatory reason for the employment decision. McDonnell
Douglas, 411 U.S. at 802. Once the employer carries this burden, the burden then shifts back to
plaintiff to prove by a preponderance of the evidence that the legitimate reasons offered by the
employer were not its true reasons, but were a pretext for discrimination. Id.; Ang v. Proctor &
Gamble Co., 932 F.2d 540, 548 (6th Cir. 1991). The plaintiff may meet this burden by showing:
1) that the stated reasons had no basis in fact; 2) that the stated reasons were not the actual reasons;
or 3) that the stated reasons were insufficient to explain the employer’s action. Wheeler v. McKinley
Enters., 937 F.2d 1158, 1162 (6th Cir. 1991). The burden of persuasion always remains, however,
with the plaintiff. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993).
For purposes of its motion only, the MDOC acknowledges that McCoy, an AfricanAmerican, is a member of a protected class; that he was subject to an adverse employment action
when he was terminated in 2004; and that he was qualified for the position of corrections officer.
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(MDOC Br., p. 12) The MDOC argues that McCoy is unable to show that he was subjected to
disparate treatment compared to similarly situated employees. McCoy states that both AfricanAmerican and Caucasian corrections officers routinely left their posts without proper duty relief and
these violations of Rules 30 and 31 went unpunished. (McCoy 2008 Dep., pp. 140-142) The
MDOC claims that McCoy has not pointed to any individual leaving his or her post and abandoning
an entire housing unit knowing that the only other corrections officer on the unit was away from his
or her post.
In response, McCoy claims he filed a grievance based on race discrimination because he was
discharged due to his race, indicating he is aware of White employee who left without proper duty
coverage, but was never disciplined. (Doc. No. 85, Resp., Ex. V). McCoy does not identify any
specific employee who was not disciplined for leaving his or her post without proper duty coverage
who were not disciplined.
An employee whom a plaintiff seeks to use as a comparable must be similarly-situated in “all
of the relevant respects.” Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir.
1998). The failure to identify a similarly situated employee who was treated more favorably than
plaintiff is fatal to the plaintiff’s claim under a disparate treatment theory. Mitchell v. Toledo
Hospital, 964 F.2d 577, 583 (6th Cir. 1992). The similarly situated employee must have the same
supervisor, be subject to the same standards and engaged in conduct of comparable seriousness to
Plaintiff. Id.
In this case, McCoy does not identify one employee similarly situated to him who was
treated more favorably than McCoy. McCoy has failed to state a prima facie case of employment
discrimination based on race.
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D.
Retaliation under Title VII
The MDOC also moves to dismiss the retaliation claim under Title VII claiming McCoy is
unable to establish a prima facie case. McCoy responds that there are genuine issue of material fact
preventing summary judgment on this claim.
The elements of a prima facie case of under Title VII and the Elliott Larsen retaliation claims
are the same: 1) that plaintiff engaged in an activity protected by Title VII or Elliott Larsen; 2) that
the defendant knew of this exercise of plaintiff’s protected rights; 3) that defendant consequently
took an employment action adverse to plaintiff; and 4) that there is a causal connection between the
protected activity and the adverse employment action. Balmer v. HCA, Inc., 423 F.3d 606, 613-14
(6th Cir. 2005); Abbott v. Crown Motor Co., Inc., 348 F.3d 537, 542 (6th Cir. 2003).
Causation can be proven indirectly through circumstantial evidence such as suspicious
timing. Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 523, 525 (6th Cir. 2008). Temporal
proximity between an assertion of Title VII rights and a materially adverse action, is sufficient to
establish the causal connection element of a retaliation claim where an adverse employment action
occurs very close in time after an employer learns of a protected activity. Id. at 525. Where the
nexus is not “very close,” the Sixth Circuit has declined to find a causal connection based on timing
alone. Id. at 523. In such a case, the plaintiff must proffer additional evidence of retaliatory conduct
to establish a causal connection between the protected activity and the adverse employment action.
Little v. BP Exploration & Oil Co., 265 F.3d 357, 364 (6th Cir. 2001). A combination of evidence
may include other employees’ fear of retaliation, repeated comments regarding discipline,
atmosphere where a plaintiff’s activities were scrutinized more carefully than those of comparably
situated employees, both black and white, more unwarranted criticism of plaintiff’s work, and more
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frequent disciplinary writeups of plaintiff for trivial matters. Id.
In this case, McCoy argues that given his history of filing various complaints and grievances
against MDOC employees and supervisors, he has stated a prima facie case of retaliation. McCoy
submitted in exhibit C of his response a chronological listing of all the harassment claims against
McCoy and all the grievances and complaints McCoy filed against the MDOC and various
employees since 1997. (Doc. No. 78, Resp., Ex. C) As the Sixth Circuit made clear, “the events in
the state-court litigation are far removed temporally from the facts and claims asserted in the instant
case.” McCoy, supra, at 8. “Although the complaint mentions that from ‘1999 through 2003’
McCoy ‘was personally involved in filing numerous internal complaints alleging racial
discrimination,” ... “this statement cannot be read as comprising the asserted cause of action; it is
mere background information on the somewhat tumultuous relationship between the parties.” Id.
The Sixth Circuit noted that if “it is obvious that the alleged ongoing retaliation is actually the
defendant continuing on the same course of conduct, which has previously been found by a court
to be proper, a subsequent court must conclude that the plaintiff is simply trying to relitigate the
same claim.” Id. at 10. Based on the Sixth Circuit opinion, the Court will not look to events prior
to 2004 to form the basis of McCoy’s retaliation claim.
Applying the prima facie factors in this case based on 2004 events, McCoy has shown he
was engaged in activities protected by Title VII. McCoy was terminated on September 13, 2004.
He filed a grievance on June 7, 2004 regarding time and attendance; an MDOC Harassment Report
and Prevention Form Complaint on June 8, 2004 regarding false allegations of count errors; an
internal MDOC Complaint regarding retaliation; a grievance on June 24, 2004 regarding work
overtime; and, a September 11, 2004 MDOC Discriminatory Harassment Complaint form regarding
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misuse of housing unit camera to harass black employees. (Doc. No. 78, Resp., Ex. C)
McCoy has also shown that Defendants knew of his various grievances and complaint forms
filed given that these were filed with the MDOC. Although the MDOC claims that the ultimate
decision maker terminating McCoy, Kathy Warner, was not aware of McCoy’s numerous
complaints, a closer review of her deposition shows otherwise. Warner testified that she was not
aware of complaints against staff members and supervisors alleging civil rights violations, rule
violations and safety and health violations. (Warner Dep., p. 29) However, the discipline packets
regarding the May and June 2004 issues involving McCoy, had McCoy’s own statement listing some
of the things he had complaint about and reported. (Warner Dep., p. 29) Warner testified that
McCoy listed a couple of different things but she did not recall what was listed. (Warner Dep., p.
29) Part of the packet also included a handwritten by McCoy regarding a racist and retaliatory
investigation because of the numerous civil rights complaints and pending lawsuits against the
MDOC.
(Warner Dep., pp. 48-49)
In addition, the packet submitted to Warner and the
recommendation to terminate McCoy was made by others who had knowledge of McCoy’s various
complaints and grievances in 2004. (Doc. No. 78, Resp., Ex. C)
McCoy was terminated on September 13, 2004, which is undisputed in this case, which
constitutes an employment action adverse to McCoy. Regarding the causal connection, as noted
above, McCoy filed various complaints and grievances beginning in June 2004, which was the same
month as the alleged incident which Defendants claim was the basis of his termination in September
13, 2004, after hearings were conducted. The time beginning in June 2004 through September 13,
2004 is not more than four months. There is a genuine issue of material fact based on these various
grievances and complaints that McCoy’s September 13, 2004 termination may have been in
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retaliation for the filing of these grievances and complaints.
Based on the above analysis, McCoy has shown a genuine issue of material fact that his
termination in September 2004 was in retaliation to the various grievances and complaints McCoy
made beginning in June 2004 against various officials in the MDOC. The Title VII claim of
retaliation against the MDOC is denied.
E.
Individual Defendants
1.
Qualified Immunity
The individual Defendants move for summary judgment arguing that McCoy is unable to
show his constitutional rights were violated and that they are entitled to qualified immunity. McCoy
responds that there are genuine issue of material fact as to whether his constitutional rights were
violated and that the individual Defendants are not entitled to qualified immunity.
Government officials are entitled to qualified immunity where their actions do not “violate
clearly established statutory or constitutional rights of which a reasonable person would have
known.” Green v. Reeves, 80 F.3d 1101, 1104 (6th Cir. 1996) (citing Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). Qualified immunity is an initial threshold question the court is required to rule
on early in the proceedings so that the costs and expenses of trial are avoided where the defense is
dispositive. Saucier v. Katz, 533 U.S. 194, 201 (2001). Qualified immunity is “an entitlement not
to stand trial or face the other burdens of litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
The privilege is “an immunity from suit rather than a mere defense to liability; and like an absolute
immunity, it is effectively lost if a case is erroneously permitted to go to trial.” Id.
The Supreme Court in Saucier v. Katz instituted a two-step inquiry to determine qualified
immunity which inquiry was to be performed sequentially. In Pearson v. Callahan, 555 U.S. 223
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(2009), the Supreme Court abandoned the requirement that the inquiry must be performed
sequentially. Although courts are free to consider the questions in whatever order is appropriate,
the Supreme Court ruled that the two questions announced in Saucier v. Katz remain good law and
that it is often beneficial to engage in the two-step inquiry. Pearson, 555 U.S. at 236.
The first inquiry to determine qualified immunity is, taken in the light most favorable to the
party asserting the injury, do the facts alleged show the official’s conduct violated a constitutional
right. Siegert v. Gilley, 500 U.S. 226, 232 (1991). ?To successfully state a claim under 42 U.S.C.
§ 1983, a plaintiff must identify a right secured by the United States Constitution and the deprivation
of that right by a person acting under color of state law.” Russo v. City of Cincinnati, 953 F.2d 1036
(6th Cir. 1992). The following requirements must be met: (1) the conduct at issue must have been
under color of state law; (2) the conduct must have caused a deprivation of constitutional rights; and
(3) the deprivation must have occurred without due process of law. Nishiyama v. Dickson County,
814 F.2d 277, 279 (6th Cir. 1987). As § 1983 is not itself a source of substantive rights, and only
a method for vindicating federal rights elsewhere conferred, a plaintiff must set forth specific
constitutional grounds for asserting a § 1983 claim. Graham v. Connor, 490 U.S. 386, 393-394
(1989); Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979).
If no constitutional right has been violated, there is no necessity for further inquiries
concerning qualified immunity. Saucier, 533 U.S. at 201. If a violation could be made out, the next
step is to determine whether the right was clearly established in light of the specific context of the
case, not as a broad general proposition. Id. Under the doctrine of qualified immunity, an official
will not be found personally liable for money damages unless the official’s actions violate “clearly
established statutory or constitutional rights of which a reasonable person would have known.”
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Harlow, 457 U.S. at 818. The “clearly established” rights allegedly violated by the official cannot
be considered at an abstract level, but must be approached at a level of specificity, “[t]he contours
of the right must be sufficiently clear that a reasonable official would understand that what he is
doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 639 (1987). “Reasonableness” is
a question of law to be decided by the trial court. Jeffers v. Heavrin, 10 F.3d 380 (6th Cir. 1993).
2.
Constitutional Rights
McCoy asserts three constitutional rights violation against the individual Defendants: first
amendment retaliation, deprivation of procedural due process and violation of his right to equal
protection. Applying the first step in analyzing qualified immunity, each of these rights are
addressed below to determine whether McCoy’s constitutional rights have been violated by the
individual Defendants.
a.
First Amendment
To establish a First Amendment retaliation claim, a plaintiff must prove three elements: (1)
that the plaintiff was engaged in a constitutionally protected activity; (2) that the defendant’s
adverse action caused the plaintiff to suffer an injury that would likely chill a person of ordinary
firmness from continuing to engage in that activity; and (3) that the adverse action was motivated
at least in part as a response to the exercise of the plaintiff's constitutional rights. Leary v.
Daeschner, 228 F.3d 729, 737 (6th Cir. 2000). If the plaintiff can establish the three elements of his
First Amendment retaliation claim, the burden of persuasion then shifts to the defendants, who must
show, by a preponderance of the evidence, that they would have taken the same action even in the
absence of the protected conduct. Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036, 1048 (6th Cir.
2001)
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To demonstrate that a plaintiff was engaging in constitutionally protected speech, he must
show that his speech touched on matters of public concern, and that his interest in commenting upon
matters of public concern outweighs the interest of the State, as an employer, in promoting the
efficiency of the public services it performs through its employees. Id. “Whether an employee’s
speech addresses a matter of public concern must be determined by the content, form, and context
of a given statement, as revealed by the whole record.” Connick v. Myers, 461 U.S. 138, 147-48
(1983). Speech involves a matter of public concern when it involves “any matter of political, social,
or other concern to the community.” Leary, 349 F.3d at 899. This type of speech must be
differentiated from a public employee’s speech that involves matters of personal interest which are
not protected. Id. A federal court is not the appropriate forum to review the wisdom of a personnel
decision taken by a public agency in reaction to the employer’s behavior. Connick, 461 U.S. at 147
(1983). While “the First Amendment does not require a public office to be run as a roundtable for
employee complaints over internal office affairs,” it does protect speech regarding any “matter of
legitimate public concern,” Id. at 145, 149. In cases involving employee speech, the court must
engage in a two-part analysis. First, the court must determine whether the speech is related to a
matter of public concern. If the commentary related only to matters of personal concern, the Court’s
inquiry would be, in most circumstances, at an end, and the plaintiff's claims should be dismissed.
Connick, 461 U.S. at 147 (“We hold only that when a public employee speaks not as a citizen upon
matters of public concern, but instead as an employee upon matters only of personal interest, absent
the most unusual circumstances, a federal court is not the appropriate forum in which to review the
wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's
behavior.”). If, however, the court determines the speech involved is a matter of public concern, the
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court then must perform a balancing test to determine whether the government’s interest in the
efficient and effective provision of government services outweighed the employee’s interest in
speaking upon that particular matter. Id. at 150-54; Pickering v. Bd. of Educ., 391 U.S. 563 (1968).
Speech that tangentially touches upon matters of political, social or other concern to the community
will not rise to the level of protected speech if it is made as an employee addressing matters of only
personal concern, rather than as a citizen addressing the community agenda. Connick, 461 U.S. at
147. Certain speech may be “mixed speech,” which involves both personal and public matters.
Bonnell v. Lorenzo, 241 F.3d 800, 812 (6th Cir.2001) (recognizing that the First Amendment
protects speech involving “mixed questions of private and public concern, where the employee is
speaking both as a citizen as well as an employee”); Perry v. McGinnis, 209 F.3d 597, 606 (6th
Cir.2000) ( Because the speech served to ensure that the [state agency] was operating in accordance
with the law, it concerns public matters.).
McCoy argues that his complaints and grievances, although communicated privately to his
employer, is protected speech. In his response to the arguments by the individual Defendants,
McCoy does not specifically identify which speech is protected and appears to argue all of his
grievances and complaints are protected.
Looking at the events in 2004, McCoy’s complaints and grievances, McCoy grieved
Jungling’s attendance memoranda and the 2004 paper incident where McCoy was told he could not
bring papers into work which McCoy claims led to his termination in 2004. (McCoy Dep., p. 170)
McCoy claims Cargor retaliated against him because he was the personnel manager and controlled
everything in the disciplinary conferences. (McCoy Dep., pp. 160-62, 171-73) McCoy also claims
that Romanowski, the warden, had complete discretion as to how to, or whether to proceed on
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matters against McCoy and was aware of the numerous complaints McCoy had filed against him and
the facility. (McCoy Dep., pp. 166-67, 174) Regarding Higgins, McCoy claims she has a pattern
of investigations directed at black employees and influenced the June 14 allegation by lying about
the incident and because she is Conway’s direct supervisor. (McCoy Dep., pp. 167, 174-75) McCoy
asserts that Conway retaliated against him because during investigations, he would omit certain
probing questions and the investigation was always one-sided against McCoy. (McCoy Dep., pp.
164-65) As to Warner, she is the person who terminated McCoy and McCoy claims she received
the recommendation but did not thoroughly review the evidence and simply relied on everything
written by Cargor. (McCoy Dep., p. 173)
It appears that McCoy’s complaints and grievances in 2004 involve his status as an employee
and relate to certain work rules McCoy was alleged to have violated, such as leaving his post,
attendance issues and bringing private papers involving his complaints and grievances into work.
McCoy has not identified that any of his complaints and grievances touch on a matter of public
concern to the community, such as the health and well-being of others, including prisoners. The
identified complaints appear to be internal management-staff issues. McCoy has failed to establish
that his speech is protected under the First Amendment. McCoy’s First Amendment retaliation
claim must be dismissed.
b.
Procedural Due Process
McCoy alleges a procedural due process claim asserting that his pretermination hearing was
meaningless and predetermined. Defendants argue that McCoy received his due process rights in
accordance with the collective bargaining agreement, the Civil Service Rules and various policies
and procedures.
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Due process requires some sort of pretermination hearing. Farhat v. Jopke, 370 F.3d 580,
595 (6th Cir. 2004). Due process requires that the public employee be given “oral or written notice
of the charges against him or her, an explanation of the employer’s evidence, and an opportunity to
present his or her side of the story to the employer.” Buckner v. City of Highland Park, 901 F.3d
491, 494 (6th Cir. 1988). The Sixth Circuit has held that in the pretermination state, the employee
does not have a right to, and the Constitution does not require, a neutral and impartial decision
maker. Farhat, 370 F.3d at 595.
In this case, McCoy admits to receiving notification by Cargor of his disciplinary conference
scheduled for August 3, 2004. (McCoy Dep., pp. 120-24) McCoy received the investigation report
and supporting documentation prepared by Conway on July 25, 2004, prior to the conference.
(McCoy Dep., pp. 123-24) McCoy attended the conference with his union representative, Charles
Wright. (McCoy Dep., p. 125) Included in the investigation packet was McCoy’s own handwritten
notes about the incident. (McCoy, Dep., pp. 123-124, 184-85) McCoy argues that he did not
receive the security camera videotape prior to the hearing showing that McCoy was in the food
service area instead of his post. However, the videotape merely confirms what McCoy admits
to–that he was in fact not at his post but was in the food service area. McCoy’s claim is that Higgins
lied in her statements because Higgins had given McCoy permission to leave his post for a lunch
break. Whether or not McCoy received the videotape prior to the hearing does not render the
conference meaningless. McCoy received the required due process in that he received notice of the
charges against him, he received the evidence relied on by the MDOC, McCoy had the opportunity
to present his side of the story and McCoy had representation at the hearing. McCoy’s procedural
due process claim must be dismissed.
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c.
Equal Protection Clause
The individual Defendants argue that McCoy’s Equal Protection claim must fail as a matter
of law for the same reasons his Title VII race discrimination claim must fail. McCoy asserts that
he has provided an abundance of evidence proving that Defendants favor white employees and
specifically treated him unfavorably, in part, because he is black.
The Fourteenth Amendment equal protection clause requires that a plaintiff must
demonstrate that similarly situated individuals were treated differently and this difference was based
on invidious discrimination. Nordlinger v. Hahn, 505 U.S. 1 (1992). “The Equal Protection Clause
prohibits discrimination by government which either burdens a fundamental right, targets a suspect
class, or intentionally treats one differently than others similarly situated without any rational basis
for the difference.” Tri-Health, Inc. v. Board of Commissioners, 430 F.3d 783, 788 (6th Cir. 2005).
Claims of employment discrimination under § 1983 must be analyzed using the same analytical
framework applicable to Title VII actions. Weberg v. Franks, 229 F.3d 514, 522 (6th Cir. 2000).
For the same reasons set forth above as to McCoy’s Title VII race discrimination claim,
McCoy’s equal protection claim against the individual Defendants must be dismissed.
III.
CONCLUSION
For the reasons set forth above,
IT IS ORDERED that Defendant Michigan Department of Correction’s Motion to Dismiss
or for Summary Judgment (Doc. No. 73, filed 7/23/2011) is GRANTED IN PART and DENIED IN
PART. The Title VII retaliation claim remains as to the Defendant employer (State of Michigan
and/or the Michigan Department of Corrections).
IT IS FURTHER ORDERED that the individual Defendants’ Motion to Dismiss or for
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Summary Judgment (Doc. No. 74, filed 7/22/2011) is GRANTED.
IT IS FURTHER ORDERED that Defendants Jeanne Higgins, Kenneth Romanowski, Gerald
Conway, Eddie Cargor, Kathy Warner and John Jungling are DISMISSED with prejudice.
IT IS FURTHER ORDERED that a Status Conference is set for the remaining parties for
April 17, 2012, 2:15 p.m. The parties must be prepared to discuss any remaining discovery matter.
The Court will set a Final Pretrial Conference and Trial Dates at the conference.
s/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: March 16, 2012
I hereby certify that a copy of the foregoing document was served upon counsel of record on March
16, 2012, by electronic and/or ordinary mail.
s/LaShawn R. Saulsberry
Case Manager
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