Winters v. Olivet, City of et al

Filing 27

ORDER granting 23 Motion for Summary Judgment. Signed by District Judge Lawrence P. Zatkoff. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

WILLIAM EDWARD WINTERS,
Case No. 2:10-cv-12438
Hon. Lawrence P. Zatkoff

Plaintiff,
v.
CITY OF OLIVET and
PETER LOTHAMER,
Defendants.
__________________________________/
OPINION AND ORDER

AT A SESSION of said Court, held in the United States Courthouse,
in the City of Port Huron, State of Michigan, on October 6, 2011.
PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
This matter is before the Court on Defendants’ Motion for Summary Judgment [dkt 23].
The parties have fully briefed the motion.1 The Court finds that the facts and legal arguments are
adequately presented in the parties’ papers such that the decision process would not be
significantly aided by oral argument. Therefore, pursuant to E.D. Mich. L.R. 7.1(f)(2), it is
hereby ORDERED that the Motion be resolved on the briefs submitted, without oral argument.
For the following reasons, Defendants’ Motion for Summary Judgment is GRANTED.
1

Defendants filed the instant Motion on April 15, 2011. Plaintiff filed a response to this Motion
on April 29, 2011 [dkt 24], to which Defendants replied on May 12, 2011 [dkt 25]. As of
Defendants’ reply to Plaintiff’s response to this Motion, the matter was fully briefed. Plaintiff
then filed a reply to Defendants’ reply on May 26, 2011 [dkt 26], which is not provided for in the
Eastern District of Michigan’s Local Rules. See E.D. Mich. L.R. 7.1. The Court, however,
acknowledges that Plaintiff, as a pro se plaintiff, is entitled to more liberal pleading standards
than if he was represented by counsel. As such, the Court will consider Plaintiff’s reply brief.

II. BACKGROUND
A. FACTUAL BACKGROUND
Plaintiff was employed by Defendant City of Olivet (“City”) in its Public Works
Department and was supervised by Defendant Peter Lothamer (“Lothamer”).2 On June 28, 2006,
Plaintiff was terminated for violating the terms of a written last chance agreement (“LCA”) he
signed with the City. Plaintiff alleges that his termination was actually in retaliation for a closed
session meeting he requested with the City of Olivet Board of Education (“School Board”),
where Plaintiff sought to dispute the School Board’s expulsion of his teenaged nephew, Jeremiah
Jewell (“Jewell”).3
With respect to the events leading up to Plaintiff’s termination, on November 15, 2005,
the School Board held a private session to consider disciplinary action against Jewell (“Meeting
I”). Jewell purportedly committed a criminal sexual act with a special education student on a
school bus, which was captured by the school bus’ onboard video camera. Plaintiff was in
attendance at Meeting I, where the School Board unanimously agreed to expel Jewell.
After the expulsion of his nephew, Plaintiff undertook his own investigation into the
incident. Based on his investigation, Plaintiff claims that Jewell was unjustly expelled. Plaintiff
alleges that his investigation uncovered that: 1) Olivet Public Schools Athletic Director Tom
Sowles (“Sowles”) “intentionally filed a false police report” with the Eaton County Sheriff’s
Department and coercively and inappropriately interrogated Jewell’s alleged victim; and 2)
Olivet Public Schools Superintendent Dave Campbell (“Campbell”) mischaracterized the results
of psychological evaluations of Jewell.4 These claims served as the basis for Plaintiff’s request

2

The parties’ briefs do not indicate Plaintiff’s exact job title.
The School Board is not a party in this matter.
4
Plaintiff attaches no evidence to his briefs to substantiate these allegations against Sowles,
Campbell, or the School Board.
3

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for a second School Board meeting (“Meeting II”), where Plaintiff sought to reveal the results of
his investigation to the School Board and ask that it consider reinstating Jewell.
The School Board granted Plaintiff’s request and held Meeting II on January 23, 2006.
Plaintiff requested that Meeting II be closed and confidential, and the School Board’s agenda for
that day referred to Plaintiff’s matter only as a “Closed Session for Review of Student
Disciplinary Hearing”—neither Plaintiff nor Jewell were identified by name. No City employees
or officials, including Defendant Lothamer, were present at Meeting II.
Plaintiff alleges that, while at Meeting II, he attempted to reveal his findings and ask for
Jewell’s reinstatement, but was prevented from doing so. Plaintiff states that he was “repeatedly
interrupted.” He further alleges that before he could ask that his nephew be reinstated, Campbell
recommended that the meeting be adjourned and rescheduled due to time constraints. Meeting II
was rescheduled for January 26, 2006, but was subsequently cancelled.
On September 6, 2006, Plaintiff tested positive for marijuana in a random drug test
pursuant to his employment with the City. The City was notified of Plaintiff’s positive test on
September 11, 2006. As a result, the City, through Lothamer, suspended Plaintiff from his job
for 30 days. Although Plaintiff could have been terminated solely on account of the positive
drug test, he was presented with a written agreement, titled “Last Chance Agreement Between
the City of Olivet and William Edward Winters.” The LCA required Plaintiff to be subject to six
unannounced follow-up tests in the first 12 months of his return to work. The LCA further
provided that Plaintiff would be discharged immediately for any further misconduct. Plaintiff
signed the LCA on October 9, 2006, and the Olivet City Council accepted.
On October 11, 2006, Plaintiff returned to work. On June 28, 2007, he was terminated
from his job with the City. Defendants claim that Plaintiff was fired because of his failure to
comply with the terms of the LCA. Defendants further claim, among other reasons, that:
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Plaintiff failed to pass a Department of Environmental Quality S-3 certification examination
required by the State of Michigan, refused to re-take the exam, and consistently exhibited a
negative attitude toward his supervisor and co-workers which worsened as he underwent the
random drug tests. After Plaintiff filed for unemployment benefits, the City disclosed these
reasons for Plaintiff’s termination to the Department of Labor and Economic Growth
Unemployment Insurance Agency in a letter dated July 11, 2007.
B.

PROCEDURAL BACKGROUND

On June 6, 2010, Plaintiff, proceeding pro se, filed his Complaint on the basis of
federal-question jurisdiction, naming the City and Lothamer as Defendants. The Complaint
listed the following Counts: Count I – retaliatory discharge under 42 U.S.C. § 1983; Count II –
wrongful discharge; Count III – intentional infliction of emotional distress; and Count IV –
discharge against public policy. On July 6, 2010, the Court entered an Order [dkt 3] dismissing
Plaintiff’s state-law claims (Counts II – IV). Plaintiff’s retaliation claim (Count I) is the only
remaining claim before the Court.
III. LEGAL STANDARD
“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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A party must support its
assertions by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for
purposes of the motion only), admissions, interrogatory answers,
or other materials; or;
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.
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Fed. R. Civ. P. 56(c)(1). “The court need consider only the cited materials, but it may consider
other materials in the record.” Fed. R. Civ. P. 56(c)(3).
The moving party bears the initial burden of demonstrating the absence of any genuine
dispute as to a material fact, and all inferences should be made in favor of the nonmoving party.
Celotex, 477 U.S. at 323.

The moving party discharges its burden by “‘showing’—that is,

pointing out to the district court—that there is an absence of evidence to support the nonmoving
party’s case.” Horton v. Potter, 369 F.3d 906, 909 (6th Cir. 2004) (citing Celotex, 477 U.S. at
325).
Once the moving party has met its initial burden, the burden then shifts to the nonmoving
party, who “must do more than simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
“[T]he mere existence of a scintilla of evidence in support of the [nonmoving party’s] position
will be insufficient [to defeat a motion for summary judgment]; there must be evidence on which
the jury could reasonably find for the [nonmoving party].” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 252 (1986).
III. ANALYSIS
To survive Defendants’ Motion for Summary Judgment, Plaintiff must establish a prima
facie case of retaliation under the First Amendment to the U.S. Constitution. Plaintiff must
demonstrate that: (1) he engaged in constitutionally protected speech; (2) adverse action was
taken against him; and (3) there is a causal connection such that the adverse action was
motivated at least in part by his protected speech. Scarbrough v. Morgan Cnty. Bd. of Ed., 470
F.3d 250, 255 (6th Cir. 2006) (citation omitted). The Court finds that Plaintiff has failed to
establish a prima facie case of First Amendment retaliation.
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A. CONSTITUTIONALLY PROTECTED SPEECH
Plaintiff claims that the protected speech occurred at Meeting II with the School Board on
January 23, 2006. In examining the nature of that speech, the Court first turns to the threshold
element in the Scarbrough analysis. To show that he engaged in constitutionally protected
speech, Plaintiff must, at a minimum, show that his alleged speech at School Board Meeting II
involved a matter of public concern. Id. at 255. Although speech that relates “to any matter of
political, social, or other concern to the community” touches upon matters of public concern, See
Connick v. Myers, 461 U.S. 138, 146 (1983), the court must determine “the point of the speech in
question . . . [because] [c]ontroversial parts of speech advancing only private interests do not
necessarily invoke First Amendment protection.” Dambrot v. Cent. Mich. Univ., 55 F.3d 1177,
1187 (6th Cir. 1995) (emphasis in original) (internal quotation and citation omitted). While
elaborating on this determination, the Sixth Circuit has pointed to the following factors: “the
focus of the speech; the point of the speech in question; to what purpose the employee spoke; the
intent of the speech; or the communicative purpose of the speaker.” Farhat v. Jopke, 370 F.3d
580, 592 (6th Cir. 2004) (internal quotations and citations omitted).
With respect to the focus of the speech; passing or fleeting references to an arguably
public matter do not elevate the speech to a matter of public concern where the focus or point of
the speech advances only a private interest. Id. at 592-93. The intent or communicative purpose
underlying an employee’s statement is relevant, but not necessarily dispositive, when
considering whether the statement may be fairly characterized as relating to a matter of public
concern. See Chappel v. Montgomery Cnty. Fire Prot. Dist. No. 1, 131 F.3d 564, 576 (6th Cir.
1997) (citing Cliff v. Bd. of Sch. Comm’rs of Indianapolis, Ind., 42 F.3d 403, 409 (7th Cir.
1994)). Whether speech amounts to a matter of public concern is a question of law for the court.

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Hughes v. Region VII Area Agency on Aging, 542 F.3d 169, 180 (6th Cir. 2008) (citation
omitted).
Here, Plaintiff’s claim is based on his speech that allegedly took place at Meeting II with
the School Board on January 23, 2006. Plaintiff contends that this alleged speech was
constitutionally protected, thereby precluding him from being terminated for the views expressed
in the speech. Plaintiff’s claim is flawed from the outset, however, because he has failed to
articulate exactly what, if anything, he said or was prevented from saying during Meeting II.
Plaintiff tries at length to characterize the speech as him bringing to light a matter of public
concern—school officials’ alleged “abuse and mistreatment of a teenage girl.” Yet, Plaintiff does
not even list, let alone substantiate, what he said to the School Board during Meeting II. As
such, Plaintiff’s allegations, as stated, must fail.
Notwithstanding Plaintiff’s failure to adequately state his claim, the Court finds that
Plaintiff’s primary “focus,” “point,” or “communicative purpose” in requesting the meeting and
engaging in the alleged speech was in fact to convince the School Board to reinstate Jewell—
merely a private concern. See Farhat, 370 F.3d at 592. Plaintiff began his investigation because
he believed that his nephew was innocent of the alleged sexual misconduct. Claiming to uncover
what he saw as grounds for Jewell’s reinstatement, Plaintiff specifically requested a “closed” and
“confidential” meeting—Meeting II—with the School Board. Had Plaintiff’s focus or
communicative purpose been to reveal to the public the results of his investigation, then the more
plausible outlet for his revelations would have been law enforcement or some other public
channel. The fact that Plaintiff requested a “closed” and “confidential” session of the School
Board makes it clear that his communicative purpose was not to inform the “general public”
regarding a matter of public concern; it was to convince the School Board to allow Jewell to
return to school.
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Further, even if the focus or communicative purpose of Plaintiff’s speech was to reveal
to the “general public” the results of his investigation, Plaintiff has nevertheless failed to explain
why his first and seemingly only attempt at doing so was byway of the “closed” and
“confidential” meeting with the School Board. The fact that Plaintiff emphasizes that Meeting II
was the “only forum available” to him, while also appearing to have made no further attempts to
report his allegations through other outlets, also tends to show that his communicative purpose
was Jewell’s reinstatement—a purely private matter.
As such, Plaintiff’s own actions indicate that the focus of his statements was to
advance his private interest in seeking Jewell’s reinstatement and thus did not necessarily invoke
First Amendment protection. See Hardy v. Jefferson Cmty. Coll., 260 F.3d 671, 678 (6th Cir.
2001). Thus, Plaintiff has failed to establish that the focus of his speech was a matter of public
concern.
B. CAUSAL CONNECTION BETWEEN SPEECH AND ADVERSE ACTION
Because Plaintiff has failed to satisfy the first element of the Scarbrough analysis, no
further inquiry is necessary to grant Defendants’ Motion. The Court, however, finds that even
assuming that Plaintiff’s alleged speech was a matter of public concern, his claim would
nevertheless fail because he has failed to establish any causal connection between the speech and
his termination.
The second and third elements of a claim of First Amendment retaliation require a
plaintiff to demonstrate that some adverse action was suffered and that the action was motivated
at least in part by the plaintiff’s protected speech. See Scarbrough, 470 F.3d at 255. To that end,
Plaintiff must demonstrate “that the speech at issue represented a substantial or motivating factor
in the adverse employment action.” Rodgers v. Banks, 344 F.3d 587, 602 (6th Cir. 2003)
(internal citations omitted).
8

Plaintiff has failed to establish that his alleged speech at School Board Meeting II was a
substantial or motivating factor in his termination from Defendant City, a separate legal entity.
First, Plaintiff has not provided any credible evidence to show that Lothamer was even aware of
the alleged speech. Plaintiff claims that Lothamer learned of the alleged speech through his
friends and acquaintances on the School Board. Using this single allegation, Plaintiff concludes
that “a common person with normal intelligence understands that [Lothamer could learn of the
speech] by a mere telephone call or a meeting on a street corner . . . . [Lothamer’s] treatment of
Plaintiff . . . demonstrates [that Lothamer was aware of the alleged speech.]”

Yet, Plaintiff

offers no credible evidence to show that Lothamer placed a “mere telephone call” to, or
participated in any “meeting on a street corner” with, school officials.

In fact, Plaintiff

confirmed at his deposition that no city officials, including Lothamer, were present during
Meeting II. Moreover, Defendants have submitted evidence in the form of affidavits that the
school officials never discussed Plaintiff’s speech with any City officials, and that no City
official, including Lothamer, discussed or had knowledge of Plaintiff’s speech.5 This evidence is
sufficient for Defendants to support the instant Motion, as the burden falls on Plaintiff to
establish a prima facie case of retaliation. See Scarbrough, 470 F.3d at 255.
Second, Plaintiff has provided only speculation and conclusory statements to support his
claim and thus cannot withstand Defendants’ Motion. See Hartsel v. Keys, 87 F.3d 795, 801–02
5

The school officials present at Meetings I and II have each submitted an affidavit denying that
they have ever discussed anything that occurred during either meeting with Lothamer or any
other City official. These officials include Campbell, Sowles, and Olivet High School Principal
Randal VanDyke. Additionally, several City officials have also submitted affidavits stating that
they were not present at either of the meetings and that, other than what they have learned from
Plaintiff’s filings in this lawsuit, they have no knowledge of anything that occurred during either
meeting. These officials include Lothamer, City of Olivet Mayor Gary Peterson, and City
Clerk/Treasurer Becky Palmer. The City officials further affirm through their respective
affidavits that they have never discussed either of the meetings with the school officials or any
member of the School Board.
9

(6th Cir. 1996) (explaining that conclusory statements, subjective beliefs, or intuition cannot
defeat summary judgment). For instance, Plaintiff claims that his filings have “proven as fact
that . . . Lothamer was aware of the Plaintiff’s comments.” For this, Plaintiff relies on the
deposition of his sister (Jewell’s mother), Tammy Knox, as “proof positive.” Yet, the Court’s
review of Knox’s deposition indicates that she was discussing her allegations that someone she
identified as Lothamer was following her and her daughter around the city and harassing them.
Responding to a question about why Defendants would retaliate against Plaintiff, Knox replied
with the conclusory statement that “the school is corrupt.”

Thus, Plaintiff’s “proof positive”

deposition is in fact immaterial speculation that fails to establish that Lothamer had any
knowledge of Plaintiff’s alleged speech at Meeting II of which would have him retaliate against
Plaintiff.
Moreover, Plaintiff argues that because “no one knew the reason why [he] was
wrongfully discharged,” it is inferable that the reason was his alleged speech. Plaintiff further
asks the Court to “provide a more logical or believable explanation.” The Court finds Plaintiff’s
argument misplaced at best. Even if the reasons for Plaintiff’s discharge were unknown to all,
this is a moot point.

The sole focus for the Court is determining whether Plaintiff was

discharged in retaliation for engaging in protected speech, as opposed to determining whether he
was wrongfully discharged in general. Insofar as it is Plaintiff who alleges retaliation, it is
Plaintiff who then bears the burden of establishing a prima facie case. See Scarbrough, 470 F.3d
at 255. Moreover, Plaintiff’s broad assertion is clearly untrue—the Department of Labor and
Economic Growth Unemployment Insurance Agency learned of Defendants’ reasons for
terminating Plaintiff in the July 11, 2007, letter from the City. As such, Plaintiff’s conclusory
allegation that “no one” knew the reasons why Plaintiff was discharged is insufficient to
establish a prima facie case of retaliation.
10

Last, the lack of temporal proximity between Plaintiff’s alleged speech and his
termination tends to disprove any causal connection. See Vereecke v. Huron Valley Sch. Dist.,
609 F.3d 392, 401 (6th Cir. 2010) (“The absence of close temporal proximity and the presence of
an obviously non-retaliatory basis for the defendants’ decision amount to insufficient evidence to
permit an inference of retaliatory motive.”). Plaintiff’s alleged speech occurred on January 23,
2006. Plaintiff was terminated on June 28, 2007. Thus, Plaintiff was not terminated until more
than seventeen months had passed since his alleged speech. Defendants have offered nonretaliatory reasons for doing so. Whether such non-retaliatory reasons were legitimate is not the
issue before the Court.

Rather, the Court must determine whether Plaintiff has provided

sufficient evidence to establish a causal connection between his alleged speech and his
termination. As noted, Plaintiff has failed to establish such a causal connection.
More significantly, it is undisputed that Defendants had legitimate, non-retaliatory
grounds for terminating Plaintiff prior to his actual termination. Plaintiff’s alleged speech took
place on January 23, 2006. On September 6, 2006, Plaintiff failed a drug test that constituted
legitimate cause for his termination.

Defendants did not terminate Plaintiff at that time,

providing him instead with the opportunity to sign the LCA and return to work. This also tends
to show that Plaintiff’s subsequent firing was not caused by his alleged speech at the Meeting.
Had Defendants wanted to fire Plaintiff for his alleged speech, they could have done so upon
Plaintiff’s failure to pass the drug test rather than allow Plaintiff to return to work under the
provisions of the LCA. For these reasons, Plaintiff has failed to establish that his alleged speech
was a motivating or substantial factor in his termination.
V. CONCLUSION
Accordingly, for the reasons set forth above, IT IS HEREBY ORDERED that
Defendants’ Motion for Summary Judgment [dkt 23] is GRANTED.
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IT IS SO ORDERED.
S/Lawrence P. Zatkoff
HON. LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE

Date: October 6, 2011

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