Purcell et al v. Fadlallah et al

Filing 56

OPINION and ORDER Granting Defendants' 41 Motion for Summary Judgment. Signed by District Judge Robert H. Cleland. (Loury, R)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

BRYAN PURCELL and
GEORGENE STERGALAS,
Plaintiffs,
v.

Case No. 10-13444

IMAD FADLALLAH, et al.,
Defendants.
/
OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Plaintiffs Bryan Purcell and Georgene Stergalas sued Dearborn Public Schools
(the “District”) and various District administrators alleging thirteen causes of action
under state and federal law, most of which are rooted in racial and religious
discrimination. Defendants move for summary judgment. The motion has been fully
briefed, and a hearing is unnecessary. See E.D. Mich. LR 7.1(f)(2). For the following
reasons, the court will grant Defendants’ motion.
I. BACKGROUND
Purcell and Stergalas each allege that, as employees of the District, they
suffered discrimination and violations of their constitutional rights by school
administrators. As Purcell’s and Stergalas’s interactions with Defendants do not
overlap, Plaintiffs’ histories with Defendants will be discussed separately.
A. Bryan Purcell
Purcell was hired as a teacher by the District in the 2000-2001 school year and
worked exclusively at Fordson High School (“Fordson”) until his termination in June

2012. During his employment, Purcell alleges that he suffered discrimination because
he is non-Arab, does not practice Islam, and has Type 1 diabetes. Purcell claims that
Maysam Alie-Bazzi, who served as Fordson’s assistant principal during the 2010-2011
and 2011-2012 school years, visited his classroom and encouraged his students to
attack him. Purcell asserts that Alie-Bazzi refused to discipline those students who
attacked him and then allowed them back into his classroom immediately following the
attack.1 Furthermore, Purcell claims that Alie-Bazzi placed a police officer in Purcell’s
classroom directly in front of his desk while Purcell was attempting to teach a class.
Purcell called Fordson’s main office to request administrator assistance when Alie-Bazzi
visited his classroom.
Youssef Mosallam was appointed the principal of Fordson for the 2010-2011
school year and, in March 2011, conducted a formal classroom observation and
evaluation of Purcell. Purcell claims that the evaluation was not legitimate and
contained fabricated allegations used as pretext to initiate his eventual termination.
Imad Fadlallah served as Fordson’s principal beginning in 2004 and retried in
2010. Purcell avers that Fadlallah harassed him by assigning Purcell to teach a high
percentage of disruptive and failing students. Purcell claims that Fadlallah also ordered
school officials to monitor his classroom and file false, negative reports regarding his
teaching capabilities.
Purcell is diabetic and claims that the District was aware of his medical condition
since 2000 but that, in 2006, Defendants harassed him by again requesting
1

Though Purcell never clarifies, it appears that the attack was physical, as
opposed to verbal.
2

documentation of his medical condition. Defendants aver that, in June 2006, Purcell for
the first time provided them with documentation of his medical condition that stated he
required a work schedule that allowed him to eat every two to three hours. Three times
during his employment, during the 2006-2007, 2008-2009, and 2009-2010 school years,
Purcell notified the District that his teaching schedule did not satisfy his medical needs.
For the 2008-2009 and 2009-2010 school years, Purcell concedes that the District
modified his schedule to his satisfaction. For the 2006-2007 school year, Purcell claims
that his amended schedule did not remedy his needs, but does not explain how the new
schedule prevented him from eating every two to three hours.
On May 26, 2006, Purcell presented a medical note that said he required an air
conditioned classroom because of his allergies. Defendants claim that they assigned
Purcell to such a room continuously from 2006 through the 2009-2010 school year.
Defendants state that Purcell did not have an air conditioned classroom for the 20102011 year only because he switched from teaching science classes to math classes. All
of the math classrooms were grouped together, which prevented Purcell from having an
air conditioned classroom. Purcell contends that he was never given an air conditioned
classroom following his May 2006 medical note and that he voluntarily switched from
science to math classes in order to avoid being harassed by the difficult students to
whom he was assigned to teach.
Purcell claims that he filed complaints of this harassment with Thomas Rafferty,
the District’s director of human resources. Purcell asserts that, instead of investigating
the complaints, Rafferty retaliated against him by writing negative employee evaluations
as a pretext for Purcell’s termination.
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Brian Whiston, the District’s superintendent, and Mosallam sought to terminate
Purcell and filed tenure charges against him. On May 17, 2011, the tenure charges
were presented to the Board of Education for the District and, during a public meeting
on May 23, 2011, the Board voted to proceed on the tenure charges. Purcell appealed
to the Michigan State Tenure Commission, and an administrative law judge (“ALJ”)
considered the tenure charges during a nine-day hearing. On June 8, 2012, the ALJ
issued a preliminary order that found there was just and reasonable cause for the
district to terminate Purcell. Consistent with the ALJ’s order, Purcell was terminated
effective June 8, 2012. Purcell filed forty-three “Exceptions” to the ALJ’s order. The
State Tenure Commission rejected the Exceptions and adopted the ALJ’s preliminary
order. Purcell did not appeal the State Tenure Commission’s decision with the Michigan
Court of Appeals.
B. Georgene Stergalas
Stergalas was hired as a teacher by the District in 1995 and assigned to teach at
Fordson. On September 26, 2008, Stergalas requested to transfer to either Dearborn
High School or Edsel Ford High School. In April 2009, Stergalas was transferred to
Dearborn High School where she currently remains employed.
Stergalas claims that she was discriminated against because she is a nonMuslim, non-Arab female. A student allegedly told Stergalas that the student was a
“victim of [Fadlallah’s] violence” and asked for Stergalas’s advice on how to handle the
situation. (Dkt. # 53-1 at Pg ID 1094.) Stergalas claims that she told the student to
report the incident to the authorities and that Fadlallah harassed Stergalas in retaliation.
Stergalas contends that, at one time, Fadlallah assigned her to simultaneously teach
4

two classes in different parts of the school. When Stergalas complained about the
assignment, Fadlallah allegedly yelled at her in front of students. Stergalas asserts that
Fadlallah ordered the emergency phone to be removed from her classroom and that
Fadlallah shared Stergalas’s medical records with third parties without her consent.
Finally, Stergalas avers that Fadlallah encouraged students to spy on and speak
negatively about her.
Stergalas claims that Whiston and Rafferty knew of Fadlallah’s discriminatory
behavior and, instead of stopping Fadlallah’s actions, encouraged Fadlallah to continue
the discrimination. Stergalas filed a harassment complaint with Rafferty in January
2009 who then conducted an internal investigation. Stergalas, however, claims that
Rafferty did not actually investigate the complaint but instead “rubber-stamped a
complete whitewash of the [District’s] outrageous and discriminatory behavior against
[her] based on [her] status as a non-Muslin, non-Arab woman and whistleblower.” (Dkt.
# 53-1 at Pg ID 1093.) While Stergalas admits that she filled out a form to request
transfer from Fordson, she claims that she had no input in the matter and did not wish to
be transferred. Instead, she maintains that she was forced to do so as a part of
Fadlallah’s plan to expel from Fordson all employees who were non-Muslim, non-Arab,
female, or whistleblowers.
In June 2009, Purcell and Stergalas filed complaints with the Equal Employment
Opportunity Commission (“EEOC”) alleging discrimination claims against Fadlallah,
Mosallam, Alie-Bazzi, Whiston, Rafferty, and the District. The EEOC was unable to
conclude whether Defendants violated any statutes and issued to Plaintiffs right-to-sue

5

letters. Plaintiffs timely filed this action on August 27, 2010, and which is now before
the court on Defendants’ motion for summary judgment.
II. STANDARD
Under Federal Rule of Civil Procedure 56, summary judgment is proper when
“there is no genuine issue as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). The moving party must first show the
absence of a genuine issue of material fact. Plant v. Morton Int’l, Inc., 212 F.3d 929,
934 (6th Cir. 2000) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The
burden then shifts to the non-moving party, who “must do more than simply show that
there is some metaphysical doubt as to the material facts.” Matsushita Electric Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
The non-moving party must put forth enough evidence to show that there exists a
genuine issue to be decided at trial. Plant, 212 F.3d at 934 (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 256 (1986)). “[T]here is no issue for trial unless there is
sufficient evidence favoring the nonmoving party for a jury to return a verdict for that
party. If the evidence is merely colorable, or is not significantly probative, summary
judgment may be granted.” Anderson, 477 U.S. at 249-50 (internal citations omitted).
Summary judgment is not appropriate when “the evidence presents a sufficient
disagreement to require submission to a jury.” Id. at 251-52. When deciding summary
judgment motions, “the court must view the evidence in the light most favorable to the
non-moving party, drawing all reasonable inferences in that party’s favor.” Sagan v.
United States, 342 F.3d 493, 497 (6th Cir. 2003) (citing Matsushita, 475 U.S. at 587).
The court does not weigh the evidence to determine the truth of the matter, but rather to
6

determine if the evidence creates a genuine issue for trial. Sagan, 342 F.3d at 497
(quoting Anderson, 477 U.S. at 249).
III. DISCUSSION
Defendants move for summary judgment on Plaintiffs’ thirteen counts. Plaintiffs’
response brief suffers from two defects that are fatal to their claims. First, the only
evidence Plaintiffs offer to establish an issue of fact are Purcell’s affidavit and
Stergalas’s affidavit. These affidavits are replete with conclusory assertions but contain
few detailed, factual allegations, rendering their evidentiary value to be “merely
colorable” at best. Second, Plaintiffs’ response brief is devoid of the fundamental
components of legal analysis: outlining a cause of action into its requisite elements,
alleging facts that satisfy those elements, and citing evidence that supports those facts.
Instead, Plaintiffs’ response brief offers conclusion after conclusion without any attempt
to inform the court of how that conclusion was reached. For these two reasons,
Defendants’ motion could be summarily granted. But for the sake of completeness,
each count will be addressed in turn.
A. Collateral Estoppel
Defendants contend that because Purcell advanced certain defenses in his
termination proceedings before the Michigan State Tenure Commission, he is
collaterally estopped from litigating violations of the Free Exercise Clause of the First
Amendment (Count 1); the Equal Protection Clause of the United States Constitution
(Count 4); the Americans with Disabilities Act (Count 7); the Equal Protection Clause of
the Michigan Constitution (Count 8); the Elliott-Larsen Civil Rights Act (Count 9); the

7

Persons with Disabilities Civil Rights Act (Count 10); and Title VII of the Civil Rights Act
of 1964 (Count 13).
The decisions of state administrative agencies are not given preclusive effect by
collateral estoppel when a claim is brought under Title VII, Smith v. Perkins Bd. of
Educ., 708 F.3d 821, 827 (6th Cir. 2013) (citing Univ. of Tenn. v. Elliott, 478 U.S. 788,
795-96 (1986)), or the Americans with Disabilities Act, Smith, 708 F.3d at 827-28. The
court need not decide, however, whether Purcell is collaterally estopped from litigating
the remaining five causes of action. Even if these claims are not precluded, they fail to
survive summary judgment because Purcell does not establish a genuine issue of fact.
B. First Amendment Claims
i. Free Exercise of Religion (Count 1)
Plaintiffs allege that Defendants infringed their First Amendment right to freely
practice their religion. The Free Exercise Clause protects the right to hold a religious
belief and engage in conduct motivated by the relief. Prater v. City of Burnside, Ky.,
289 F.3d 417, 427 (6th Cir. 2002) (citing Emp’t Div. v. Smith, 494 U.S. 872, 877 (1990)).
Purcell, in his affidavit, never alleges that Defendants prohibited him from practicing his
religion. Similarly, Stergalas does not specify the religious conduct that Defendants
prohibited. Instead, Stergalas simply claims that she “felt intimidated from exercising
[her] First Amendment rights with regard to engaging in protected speech and
permissible religious observances.” (Dkt. # 53-1 at Pg ID 1094.) Plaintiffs have not
offered evidence to support their claim that Defendants violated their right to freely
exercise their religion. Thus, summary judgment is warranted.
ii. Freedom of Speech (Count 2)
8

Plaintiffs claim that Defendants violated their First Amendment right to free
speech. When considering whether a public employer has violated a public employee’s
right to free speech, the court first determines whether the speech was directed toward
a matter of public concern. Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th Cir. 2001). If so,
then the court must decide whether the employee’s interest in making the speech
outweighed the employer’s interest in regulating the speech. Id. Here, Purcell’s
affidavit does not claim that Defendants abridged his freedom of speech, let alone what
public speech he made that Defendants regulated. Stergalas fairs no better, stating
only that she “felt intimated . . . to engag[e] in protected speech.” (Dkt. # 53-1 at Pg ID
1094). Neither Purcell nor Stergalas allege what speech Defendants unlawfully
regulated. Thus, the court is unable to determine whether the speech was directed at a
matter of public concern or if Plaintiffs’ interest in making the protected speech
outweighed Defendants’ interest in regulating the speech. The court will grant
Defendants summary judgment on Plaintiffs’ free speech claim.
iii. Freedom of Expressive Association (Count 3)
Plaintiffs assert that Defendants violated their First Amendment right of
expressive association. In analyzing an expressive association claim, the first step of a
three-part test is determining whether a group is entitled to protection. Miller v. City of
Cincinnati, 622 F.3d 524, 538 (6th Cir. 2010) (citing Boy Scouts of Am. v. Dale, 530
U.S. 640, 655 (2000)). Plaintiffs’ claim fails at this first step. Neither Purcell nor
Stergalas allege the group with which they sought to associate and engage in
expressive activity. Accordingly, summary judgment on the claim will be entered.
iv. Establishment Clause (Count 6)
9

Plaintiffs assert that Defendants violated the Establishment Clause by promoting
Islam over other religions, in particular Christianity. Under the test outlined in Lemon v.
Kurtzman, 403 U.S. 602, 612-13 (1971), a state action violates the Establishment
Clause if: “(1) the purpose of the state action is to aid or promote religion; (2) the
primary effect of the action is to aid or promote religion; or (3) the result is excessive
entanglement with religion.” Rusk v. Crestview Local Sch. Dist., 379 F.3d 418, 420 (6th
Cir. 2004). Plaintiffs fail to clarify what action was taken by Defendants that violated the
Establishment Clause. Plaintiffs state generally and in conclusory terms that
“Defendants established a preferred religion, Islam,” and that “Defendants aided and
promoted the Islamic religion and excessively entangled in religion, including the
enactment of Islamic religious restrictions.” (Dkt. # 53 at Pg ID 1087.) But these
assertions are not supported by facts or any citation to the record; just what state action
is supposed to have violated the Establishment Clause remains a mystery.
The only possible “state action” that can be discerned from Plaintiffs’ response
brief is Fadlallah’s alleged comments that Fordson is a school for Muslims and Arabs.
In their respective affidavits, both Plaintiffs assert that “[i]t is well known that Imad
Fadlallah has made repeated statements that he sees Fordson as a Muslim and/or Arab
school and that he would conduct and did conduct affairs accordingly.” (Dkts. # 53-1 at
Pg ID 1094; # 53-2 at Pg ID 1095.) But Plaintiffs do not argue how Fadlallah’s “well
known” statements constituted a “state action,” as they do not disclose of what any such
statements consisted, how the statements were made (e.g., at a school event or in an
official school letter disseminated to students and faculty), or who may have heard

10

them. Nor do Plaintiffs attempt to establish that Fadlallah’s statements violated the
Lemon test.
Without any explanation of what state action is supposed to have violated the
Establishment Clause, the claim fails.
C. Religious Discrimination (Counts 4, 8, & 9)
Plaintiffs argue that Defendants discriminated against them for not practicing
Islam. Plaintiffs allege their religious discrimination claim under the Equal Protection
Clause of the United States Constitution, U.S. Const. amend. XIV, § 1, (Count 4), the
Equal Protection Clause of the Michigan Constitution, Mich. Const. art. I, § 2, (Count 8),
and the Elliott-Larsen Civil Rights Act, Mich. Comp. Laws § 37.2101 et seq. (“ELCRA”),
(Count 9). “Michigan’s equal protection provision is coextensive with the Equal
Protection Clause of the United States Constitution.” Shepherd Montessori Ctr. Milan v.
Ann Arbor Charter Twp., 783 N.W.2d 695, 697 (Mich. 2010). The elements for
establishing an equal protection claim under the Fourteenth Amendment are the same
as those to satisfy a disparate treatment claim under Title VII of the Civil Rights Act of
1964. Perry v. McGinnis, 209 F.3d 597, 601 (6th Cir. 2000). Claims brought pursuant
to the ELCRA are also analyzed using the Title VII framework. Humenny v. Genex
Corp., 390 F.3d 901, 906 (6th Cir. 2004). Thus, Plaintiffs’ religious discrimination claim
brought pursuant to the United States Constitution, Michigan Constitution, and ELCRA
will be analyzed together using the Title VII standard.
In a Title VII claim, the plaintiff must show that “(1) he was a member of a
protected class; (2) he was subject to an adverse employment action; (3) he was
qualified for the job; and (4) for the same or similar conduct, he was treated differently
11

from similarly situated non-minority employees.” Perry, 209 F.3d at 601 (citations
omitted). Two employees are “similarly situated” when they “have dealt with the same
supervisor, have been subject to the same standards and have engaged in the same
conduct without such differentiating or mitigating circumstances that would distinguish
their conduct or the employer’s treatment of them for it.” Id. (citation omitted). Here,
Plaintiffs do not identify an employee with whom they claim to be similarly situated. Nor
do Plaintiffs attempt to show that Defendants treated differently an employee who was
similarly situated to Plaintiffs “in all respects.” Mitchel v. Toledo Hosp., 964 F.2d 577,
583 (6th Cir. 1992) (emphasis omitted). Thus, Plaintiffs do not meet their burden, and
their claim for religious discrimination fails under the United States Constitution, the
Michigan Constitution, and the ELCRA.
D. Fourteenth Amendment Due Process (Count 5)
i. Substantive Due Process - Vagueness
Plaintiffs allege in their complaint that Defendants’ work policies are
impermissibly vague in violation of the Fourteenth Amendment. A law is void for
vagueness if it “fails (1) to define the offense with sufficient definiteness that ordinary
people can understand prohibited conduct, and (2) to establish standards to permit
police to enforce the law in a non-arbitrary, non-discriminatory manner.” Belle Maer
Harbor v. Charter Twp. of Harrison, 170 F.3d 553, 556 (6th Cir. 1999). In response to
Defendants’ motion, Plaintiffs do not identify the work policy that they allege to be
unconstitutionally vague; in fact, Plaintiffs do not even reference their void-for
vagueness claim. As Plaintiffs abandon the claim, the court will grant summary
judgment for Defendants.
12

ii. Procedural Due Process
Plaintiffs’ complaint states that they were denied procedural due process under
the Fourteenth Amendment when Defendants “publicly disseminated false, defamatory,
and stigmatizing information about Plaintiffs, absent notice and a legitimate opportunity
to be heard.” (Dkt. # 27 at Pg ID 349 ¶ 106.) Like Plaintiffs’ substantive due process
claim, this one is also abandoned. Plaintiffs do not state in their response brief what
information about Plaintiffs was publicly disseminated, when, how, and to whom it was
disseminated, why it was false and defamatory, or why Plaintiffs were entitled to notice
and an opportunity to be heard before the information was disseminated. Plaintiffs do
not address how or when their procedural due process rights were violated, and the
claim necessarily fails.
E. Disability Discrimination
i. Americans with Disabilities Act (Count 7)
Purcell claims that Defendants discriminated against him for having diabetes and
failed to accommodate his medical needs in violation of the Americans with Disabilities
Act, 42 U.S.C. § 12111 et seq. (“ADA”). In order to establish a prima facie claim for
discrimination, a plaintiff must first prove that he is “disabled” under the ADA. Burns v.
Coca-Cola Enters., Inc., 222 F.3d 247, 252 (6th Cir. 2000). A plaintiff’s “ability to show
that he is ‘disabled’ within the meaning of the [ADA] is a threshold requirement for
recovery under the Act.” Id. at 253 (citation omitted). “An individual is considered
‘disabled’ under the ADA if he or she:
(A) has a physical or mental impairment that substantially limits one or more
of [his or her] major life activities . . .;
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(B) has a record of such impairment; or
(C) is regarded as having such an impairment.
Id. at 252 (citing 42 U.S.C. § 12102(2)).
Purcell makes no attempt to establish that his diabetic condition renders him
disabled under the ADA. Throughout his affidavit, Purcell baldly asserts that he has a
disability without providing facts to support the conclusion. In response to Defendants’
motion, Purcell professes, without explanation or argument, that he “has established
that he was regarded as having a physical or mental impairment that ‘substantially
limits’ one or more of his major life activities.” (Dkt. # 53 at Pg ID 1082.) But the ADA
requires a plaintiff to show that his impairment “substantially limits” his ability to engage
in a “major life activity,” both of which are terms of art requiring analysis. “Major life
activities” are “‘functions such as caring for oneself, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning, and working.’” Burns, 222 F.3d at 252
(quoting 29 C.F.R. § 1630.2(i)). “Substantially limits” means “‘significantly restricted in
the ability to perform either a class of jobs or a broad range of jobs in various classes as
compared to the average person having comparable training, skills and abilities.’”
Burns, 222 F.3d at 252 (quoting 29 C.F.R. § 1630.2(j)(3)(i)). Courts consider a number
of factors in determining whether an impairment is substantially limiting such as:
(i) The nature and severity of the claimant’s impairment;
(ii) The duration or expected duration of the impairment; and
(iii) The permanent or long term impact, or the expected permanent or long
term impact of or resulting from the impairment.

14

Burns, 222 F.3d at 252 (citing 29 C.F.R. § 1630.2(j)(2)(i)-(iii)). “Whether a person has a
disability under the ADA is an individualized inquiry,” Sutton v. United Air Lines, Inc.,
527 U.S. 471, 472 (1999), because “a physical condition that would not substantially
limit one person’s ability to work could substantially limit another’s depending on each
person’s occupation and range of qualifications,” Burns, 222 F.3d at 253. But Purcell
does not attempt this individualized inquiry. Purcell does not discuss the relevant
factors or conduct any analysis to establish that his diabetes “substantially limits” a
“major life activity.” Nor does his affidavit offer any evidence to support that conclusion
that Purcell is disabled under the ADA. Thus, the court will grant summary judgment in
favor of Defendants.
ii. Persons with Disabilities Civil Rights Act (Count 10)
The Persons with Disabilities Civil Rights Act, Mich. Comp. Laws § 37.1101 et
seq., (“PWDCRA”) prohibits an employer from discriminating against an employee
because of a disability “that is unrelated [or not directly related] to the individual’s ability
to perform the duties or a particular job or position.” Peden v. City of Detroit, 680
N.W.2d 857, 863 (Mich. 2004) (citing Mich. Comp. Laws § 37.1202(1)(a)-(e)). Similar
to the ADA, the PWDCRA requires a plaintiff to first show that he is “disabled” within the
meaning of the statute. Peden, 680 N.W.2d at 863. The PWDCRA defines “disability”
in nearly identical language as the ADA:
(i) A determinable physical or mental characteristic of an individual . . . if the
characteristic (A) . . . substantially limits 1 or more of the major life activities
of that individual and is unrelated to the individual’s ability to perform the
duties of a particular job or position . . .;
(ii) A history of [such a] determinable physical or mental characteristic . . .; or
15

(iii) Being regarded as having [such a] determinable physical or mental
characteristic . . . .
Id. (citing Mich. Comp. Laws § 37.1103(d)). As with his ADA claim, instead of analysis
and reference to the record, Purcell offers only the bald assertion that he “has brought
forth evidence that he was disabled under [the PWDCRA].” (Dkt. # 53 at Pg ID 33.)
Thus, for the same reasons that Defendants will be granted summary judgment on
Purcell’s ADA claim, Purcell’s PWDCRA claim fails.
F. Whistleblowers’ Protection Act (Count 11)
Stergalas alleges that a student told her that the student was a “victim of
violence” at the hands of Fadlallah (how Fadlallah victimized the student is never
explained). Allegedly, the student asked Stergalas whether the student should report
the incident of violence to the authorities, and Stergalas encouraged the student to do
so. Stergalas claims that, in response, Fadlallah retaliated against her by removing the
emergency telephone from her classroom, assigning her to teach two classes
simultaneously when the classrooms were at opposite ends of the school, yelling at
Stergalas in front of her students and colleagues, and initiating a non-stop “whispering
campaign” against her. Stergalas argues that Fadlallah’s actions violated Michigan’s
Whistleblowers’ Protection Act, Mich. Comp. Laws § 15.361 et seq. (“WPA”).
To establish a claim under the WPA, the plaintiff must show that he “(1) was
engaged in protected activity as defined by the Whistleblowers’ Protection Act, (2) the
plaintiff was discharged, and (3) a causal connection existed between the protected
activity and the discharge.” Shallal v. Catholic Soc. Servs. of Wayne Cnty., 566 N.W.2d
571, 574 (Mich. 1997). Stergalas asserts that encouraging the student to report
16

Fadlallah’s violence to the authorities constitutes a protected activity. Stergalas argues
that “[t]he fact that she herself did not report [the violence] directly but encouraged the
minor student to do so and counseled him does not make the activity any less
protected.” (Dkt. # 53 at Pg ID 1089). Actually, it does. “‘Protected activity’ under the
WPA consists of (1) reporting to a public body a violation of a law, regulation, or rule; (2)
being about to report such a violation to a public body; or (3) being asked by a public
body to participate in an investigation.” Chandler v. Dowell Schlumberger Inc., 572
N.W.2d 210, 212 (Mich. 1998) (citing Mich. Comp. Laws § 15.362). Perhaps directly
assisting in someone else’s report could suffice, but mere verbal encouragement of
another person to report a violation, without more, does not fall under any of these
categories, and thus does not constitute “protected activity” under the WPA.
Moreover, Stergalas does not point to any evidence indicating a causal
connection between her encouragement and her discharge.
The court will grant Defendants summary judgment on Stergalas’s WPA claim.
G. Right to Privacy (Count 12)
Stergalas argues that the District and Fadlallah disclosed her medical records to
third parties in violation of the Health Insurance Portability and Accountability Act, 42
U.S.C. § 1320d et seq., (“HIPAA”) and the common law right to privacy. The claim fails
under HIPAA because the statute does not provide a private right of action for alleged
disclosures of confidential medical information. Dodd v. Jones, 623 F.3d 563, 569 (8th
Cir. 2010) (holding that “HIPAA does not create a private right of action”); Wilkerson v.
Shinseki, 606 F.3d 1256, 1267 n.4 (10th Cir. 2010) (same); Acara v. Banks, 470 F.3d
569, 572 (5th Cir. 2006) (same).
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Michigan common law provides four theories of invasion of privacy: “(1) the
intrusion upon another’s seclusion or solitude, or into another’s private affairs; (2) a
public disclosure of private facts about the individual; (3) publicity that places someone
in a false light in the public eye; and (4) the appropriation of another’s likeness for the
defendant’s advantage.” Lewis v. LeGrow, 670 N.W.2d 675, 687 (Mich. Ct. App. 2003).
Stergalas never specifies which theory she alleges or attempts to apply the facts and
evidence in this case to one of them. By not providing the court with any guidance
regarding which invasion-of-privacy theory is at issue, Stergalas effectively abandons
the claim.
Of the four theories, public disclosure of private facts about an individual is the
most applicable based on Stergalas’s allegations. A claim for public disclosure of
private facts requires “(1) the disclosure of information, (2) that is highly offensive to a
reasonable person, and (3) that is of no legitimate concern to the public.” Doe v. Mills,
536 N.W.2d 824, 828 (Mich. Ct. App. 1995). Stergalas argues that Defendants
released her medical records, including the fact that she was seeing a psychiatrist, to a
school social worker and other third parties. Information regarding a person’s medical
treatment or condition are generally considered private. Id. at 829. However, Stergalas
fails to produce evidence to create a genuine issue of material fact regarding whether
Defendants actually disclosed her medical records. The only evidence Stergallas offers
is a single statement in her affidavit that reads “I do have personal, direct, firsthand
knowledge . . . that Mr. Fadlallah illegally shared my medical records and other
confidential information about me with third parties and induced those third parties to
harass me.” (Dkt. # 53-1 at Pg ID 1093-94.) But “a party cannot create a genuine issue
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of material fact by filing an affidavit, after a motion for summary judgment has been
made, that essentially contradicts his earlier deposition testimony.” Penny v. United
Parcel Serv., 128 F.3d 408, 415 (6th Cir. 1997). Such a situation is present here.
Defendants moved for summary judgment in October 2012 and highlighted Stergalas’s
deposition testimony that she had “[n]o direct firsthand knowledge” that Fadlallah was
involved “in any way” in sharing her medical information with anyone. (Dkt. # 41-9 at Pg
ID 763.) In response to Defendants’ motion, Stergalas filed an affidavit dated
December 7, 2012, asserting that she did have such knowledge. As Stergalas’s
affidavit was filed after Defendants moved for summary judgment and contradicts her
earlier deposition testimony, it cannot be used to create a genuine issue of material fact.
Furthermore, even if the affidavit did not contradict Stergalas’s deposition
testimony, it is insufficient to create an issue of fact that Fadlallah improperly shared
Stergalas’s medical information. The affidavit simply asserts that Fadlallah did so
without alleging what medical records Fadlallah shared, when Fadlallah shared those
records, or which third parties learned of the medical records. Summary judgment is
appropriate when the evidence favoring the nonmoving party is “not significantly
probative” and a jury could not return a verdict for the nonmoving party. Anderson, 477
U.S. at 249-50. Stergalas’s affidavit is not, by itself, sufficient evidence for a jury to find
in favor of Stergalas, and summary judgment is warranted.

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H. Retaliation (Count 13)

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Purcell alleges that Defendants retaliated against him in violation of Title VII after
he filed complaints against Defendants with the EEOC and in federal court.2
Specifically, Purcell argues that Defendants retaliated against him by: (1) placing a
police officer in his classroom; (2) encouraging students to harass and attack him; (3)
twice having security guards escort him off of campus and in front of his students; and
(4) terminating him. To establish a prima facie claim for retaliation, a plaintiff must show
that: “(1) she engaged in activity protected by Title VII; (2) this exercise of protected
rights was known to the defendant; (3) the defendant thereafter took an adverse
employment action against the plaintiff; and (4) there was a casual connection between
the protected activity and the adverse employment action.” Martin v. Toledo Cardiology
Consultants, Inc., 548 F.3d 405, 412 (6th Cir. 2008). In regards to the first three
retaliatory acts, Purcell’s affidavit does not constitute sufficient evidence to create a
genuine dispute of fact that such acts occurred. Nor does Purcell’s affidavit allege when
such acts occurred in order to establish a “casual connection” between his filing of
complaints against Defendants and their alleged retaliatory acts. It is undisputed,
however, that Purcell was terminated and that termination constitutes an “adverse
employment action.” The court assumes, without deciding, that Purcell has established
the remaining elements for a prima facie claim for retaliation and will continue with the
Title VII analysis.
2

In response to Defendants’ motion, Stergalas, for the first time, alleges that
Defendants unlawfully retaliated against her in addition to Purcell. Count 13 of the
complaint specifies that only Purcell is alleging unlawful retaliation, and the factual
allegations within the Count refer solely to Purcell by name. As Defendants were not
placed on notice that they had to defend a Title VII claim for retaliation with respect to
Stergalas, the court will not consider Stergalas’s untimely allegations.
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After the plaintiff has made a prima facie claim, the burden shifts to the employer
to offer a legitimate, nondiscriminatory reason for its action. Martin, 548 F.3d at 412.
When Defendants sought to terminate Purcell, they followed the procedures outlined in
the Michigan Teacher’s Tenure Act, Mich. Comp. Laws § 38.71 et seq., and filed tenure
charges against Purcell alleging that he lacked the ability to teach his students, failed to
effectively discipline his students or manage a classroom environment, and was unable
to establish a positive learning environment in the classroom. These tenure charges
satisfy Defendants’ burden of offering a nondiscriminatory reason for Purcell’s
termination.
Once an employer offers a nondiscriminatory reason, “the burden then shifts to
the plaintiff to demonstrate by a preponderance of evidence that the legitimate reason
given by the employer was a pretext for retaliation.” Martin, 548 F.3d at 412. “In order
to establish pretext, a plaintiff must demonstrate that (1) the proffered reason had no
basis in fact; (2) the proffered reason did not actually motivate plaintiff’s termination; or
(3) the proffered reason was insufficient to motivate plaintiff’s discharge.” Id. Here,
Purcell fails to meet his burden of establishing pretext. In considering the tenure
charges, the ALJ and Michigan State Tenure Commission ruled in favor of Defendants
and found that there was reasonable and just cause to terminate Purcell. Thus,
Defendants’ proffered reasons for terminating Purcell appear to be based in fact and
were sufficient to motivate his termination. Purcell has not offered evidence to the
contrary or to show that the tenure charges did not actually motive his termination.
Accordingly, as Purcell has not demonstrated that there is an issue of fact regarding
whether the tenure charges were a pretext for his termination, his retaliation claim fails.
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IV. CONCLUSION
This case began with highly alarming allegations of gross misconduct and nearly
unimaginable religious intolerance manifested, most shockingly, by the highest-ranking
officials in a public school. If it were true that a public school was being transformed
into a religiously restricted, unconstitutionally discriminatory environment, and that
objecting employees were made to suffer for their opposition to it, such information
should have been proved up and substantial penalties imposed upon the responsible
parties. With the complaint, the fuse to this explosive case was lit. But it eventually
fizzled out in the absence of evidence, or perhaps in the wake of inattention—the court
knows not which. The court imagines that Plaintiffs could have brought a focused
lawsuit that alleged a few (potentially) meritorious claims specifically tailored to the
appropriate parties. Instead, Plaintiffs seem to have thrown at the Defendants
everything but the kitchen sink—thirteen counts—in the apparent hope that one or two
central claims might survive even without actual evidence. The strategy proved fatal.
Most claims languished in want of discovery and remained undeveloped; the others
were simply abandoned. Accordingly,
IT IS ORDERED that Defendants’ motion for summary judgment [Dkt. # 41] is
GRANTED.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: July 17, 2013
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, July 17, 2013, by electronic and/or ordinary mail.
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s/Richard Loury for Lisa Wagner
Case Manager and Deputy Clerk
[phone]

Z:\Cleland\JUDGE'S DESK\C1 ORDERS\10-13444.PURCELL.Grant.Summary.Judg.wpd

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