Garceau et al v. Flint, City of
Filing
17
OPINION AND ORDER granting in part and denying in part 7 Motion to Dismiss. Signed by District Judge Paul D. Borman. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT GARCEAU, ET AL.,
Plaintiff,
v.
Case No. 12-cv-15513
Paul D. Borman
United States District Judge
CITY OF FLINT, ET AL.,
Defendant.
_______________________________/
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION TO PARTIALLY DISMISS (Dkt. No. 7)
The matter before the Court is Defendants’ Motion to Partially Dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6) filed on February 4, 2013. (Dkt. No. 7). Plaintiff filed
a response (Dkt. No. 12) and Defendants filed a reply (Dkt. No. 14).
The oral argument on this matter was held Wednesday, October 16, 2013 at 2:00 PM. For
the following reasons, the Court GRANTS IN PART and DENIES IN PART Defendants’
Motion to Dismiss.
I. BACKGROUND
This is a class action suit that arises from allegations of reverse race discrimination
against Defendants the City of Flint, Alvern Lock the Chief of Police of the City of Flint, and
Darryl Patterson a Captain in the Flint Police Department. Both individual Defendants are being
sued in their individual capacity. (Second Am. Compl. ¶¶ 5, 6). This action was originally filed
on December 17, 2012. (Dkt. No. 1). An amended complaint was filed on December 28, 2012.
(Dkt. No. 5). Then, by agreement of the parties, Plaintiffs filed a Second Amended Complaint
on January 29, 2013. (Dkt. No. 6).
Plaintiffs allege that Defendants had a “policy, rule, custom and/or practice of favoring
African-American/black Police Officers over Caucasian/white Police Officers” in their
employment practices, including but not limited to provisional promotions. (Second Am.
Compl. ¶ 8). Plaintiffs also allege that Defendants harassed and retaliated against
Caucasian/white Police Officers that opposed this policy. (Id. ¶ 9).
Plaintiffs state that on June 7, 2012, Defendants administered a “sergeant test” to
African-American/black police officers to determine if they were fit to continue serving pursuant
to their provisional promotions as sergeants. (Id. ¶ 22). On August 12, 2012, the results of the
test showed that certain officers had not passed the test. (Id. ¶ 23). Despite their failing scores,
Defendants Lock and Patterson allowed these police officers to retain their provisional
promotions. (Id. ¶ 24). On August 15, 2012, Defendant Lock issued a memorandum that set
forth which officers were provisionally promoted to sergeant. (Id. ¶ 26, Ex. 2). This list
included five officers that had flunked the “sergeant test”. (Id., Ex. 2). Defendant Patterson had
participated in the decision-making process which led to these provisional promotions. (Id. ¶
28).
On August 29, 2012, Plaintiffs filed a “class action grievance” which complained the
promotions violated their collective bargaining agreement. (Id. ¶ 31, Ex. 3, Grievance).
Defendant Patterson responded to the class action grievance by stating “Qualified employees
were chosen for temporary position.” (Id. ¶ 32, Ex. 3). Plaintiffs then allege that Defendants
began to harass and retaliate against Plaintiffs who “opposed and/or resisted” the discrimination.
(Id. ¶ 33). Defendants “accomplish[ed] [this retaliation and harassment] by increasing scrutiny
2
on Plaintiffs and/or meting out pretextual discipline to Plaintiffs.” (Id.).
Plaintiffs allege that on September 15, 2012, Defendant Patterson gave a LEIN printout
to another officer and advised him that the vehicles on the printout were improperly parked in
the lots around the Police Station. (Id. ¶ 50, Ex. 4, Incident Report regarding LEIN). Plaintiffs
allege this was an “attempt to discipline four Police Officers...” (Id.). Approximately two
months later, Plaintiff Garceau sent a letter complaining of Defendant Patterson’s use of the
LEIN technology and that his and the other officers’ rights were violated by Defendant
Patterson’s actions. (Ex. 4). At some point, Plaintiff Garceau was notified that he was to appear
at a so-called “Loudermill hearing” which was the first discipline that Plaintiff Garceau had
received in more than fifteen years as an officer. (Id. ¶ 52). On November 13, 2012, Plaintiff
Alan Dickenson II, complained in writing about the harassment he was receiving from
“command staff.” (Id. ¶ 54, Ex. 5). On November 21, 2012, Plaintiffs allege that Defendant
Lock made a threatening comment directed at Plaintiff Garceau at a staff meeting.
On December 17, 2012, Plaintiffs filed this action. (Dkt. No. 1). On January 11, 2013,
Plaintiff Garceau received a three day suspension for “unsatisfactory performance” where a
minority police officer with a “long history of bad discipline” only received an oral reprimand.
(Second Am. Compl. ¶ 55). On January 15, 2013, Plaintiff Dickenson II, received an eight day,
“extremely excessive,” suspension for an undisclosed infraction. (Id. ¶ 56). Plaintiffs also allege
the City Attorney noted that this lawsuit would create a lot of paperwork and a minority Sergeant
of Internal Affairs stated that “Every time Garceau gets in trouble he wants to sue? Okay, then
we’ll document everything on Garceau from now on.” (Id. ¶¶ 57, 58).
Defendants now move for this Court to find that Plaintiffs’ Count II and III should be
3
dismissed for failure to state a claim. Defendants also ask that all claims against Defendant City
of Flint be dismissed because Plaintiffs have not alleged the City did or failed to do anything that
caused the violations. Finally, Defendants allege that Plaintiffs have failed to properly plead a
claim of conspiracy.
II. LEGAL STANDARD
Fed. R. Civ. P. 12(b)(6) allows for the dismissal of a case where the complaint fails to
state a claim upon which relief can be granted. When reviewing a motion to dismiss under Rule
12(b)(6), a court must “construe the complaint in the light most favorable to the plaintiff, accept
its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” DirectTV, Inc.
v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). But the court “need not accept as true legal
conclusions or unwarranted factual inferences.” Id. (quoting Gregory v. Shelby County, 220 F.3d
433, 446 (6th Cir. 2000)). “[L]egal conclusions masquerading as factual allegations will not
suffice.” Eidson v. State of Term. Dep’t of Children's Servs., 510 F.3d 631, 634 (6th Cir. 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....” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007) (internal citations omitted). Dismissal is only appropriate if the plaintiff has failed to
offer sufficient factual allegations that make the asserted claim plausible on its face. Id. at 570.
In Ashcroft v. Iqbal, 556 U.S. 662 (2009) the Supreme Court clarified the concept of
“plausibility” stating:
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.”
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[Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007)]. 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 (brackets omitted).
Id. at 678. A plaintiff’s factual allegations, while “assumed to be true, must do more than create
speculation or suspicion of a legally cognizable cause of action; they must show entitlement to
relief.” LULAC v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007) (citing Twombly, 550 U.S. at 555556). Thus, “[t]o state a valid claim, a complaint must contain either direct or inferential
allegations respecting all the material elements to sustain recovery under some viable legal
theory.” Bredesen, 500 F.3d at 527 (citing Twombly, 550 U.S. at 562).
III. ANALYSIS
Defendants now move this Court to dismiss Plaintiffs’ claim of “Harassment and/or
Retaliation based upon race in violation of Equal Protection rights asserted by Plaintiffs
Dickenson II, Howe, Garceau and Wooster.” (Second Am. Compl. ¶¶ 44-65). Plaintiffs base
this “race retaliation” claim on both 42 U.S.C. § 1983 and § 1981. For the following reasons the
Court will dismiss this claim.
A.
Plaintiffs’ Equal Protection Claims under § 1983 and § 1981
Defendants first argue that Plaintiffs’ claim for race retaliation based on the Fourteenth
Amendment Equal Protection Clause must fail because there is no such cause of action that
arises under § 1983. Plaintiffs acquiesce in their briefing and “withdraw the Fourteenth
Amendment retaliation claim, only.” (Plf. Br. at ix, 6). Therefore, the Court need not reach this
claim as Plaintiffs have stipulated to its dismissal. Plaintiffs go on to assert that their race
5
retaliation claim properly arises under § 1981 and they have properly pled this action. (Second
Am. Compl. ¶ 46). Defendants, however, argue that § 1981 only provides a cause of action
against private entities.
The Court finds that the law is clear in the Sixth Circuit that there is no private cause of
action arising from § 1981 against governmental entities or state actors in their official or
individual capacities.1
“Section 1981 prohibits racial discrimination in the making and enforcement of
contracts.” McCormick v. Miami Univ., 693 F.3d 654, 659 (6th Cir. 2012) (citing Runyon v.
McCrary, 427 U.S. 160 (1976)). In Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989), “the
Supreme Court found that § 1981's implicit cause of action does not extend to suits brought
against state actors.” Arendale v. City of Memphis, 519 F.3d 587, 594 (6th Cir. 2008). Two
years after Jett was decided, Congress passed the Civil Rights Act of 1991 which amended §
1981. In relevant part, the amendment added subsection c, which states:
(c) Protection against impairment
The rights protected by this section are protected against impairment by
nongovernmental discrimination and impairment under color of State law.
42 U.S.C. § 1981(c). This resulted in a split in the circuits on whether the amendment overruled
Jett and created a private cause of action against state actors and governmental entities.
Arendale, 519 F.3d at 596. In Arendale, the Sixth Circuit held Jett was not overruled and was
still binding authority. Id. at 598-99. As a result, the court held the amendment did not create a
separate cause of action under § 1981 against a state actor or a governmental entity. Id. (stating
1
The Court notes that Plaintiffs did not address this issue during oral argument and therefore
appear to have abandoned this claim as well.
6
“we hold that ‘the express cause of action for damages created by § 1983 constitutes the
exclusive federal remedy for violation of the rights guaranteed in § 1981 by state governmental
units,’ Jett, 491 U.S. at 733, no independent cause of action against municipalities is created by §
1981(c).” ).
Four years after the Arendale decision, the Sixth Circuit revisited § 1981 in McCormick
v. Miami University, 693 F.3d 654 (6th Cir. 2012) to address the question of “whether § 1983's
express cause of action against state actors precludes using § 1981 as a mechanism to sue state
actors for money damages in their individual capacity.” Id. at 659. The court noted that Jett
remains binding authority in the Sixth Circuit and that under Jett’s reasoning, “this circuit has
held that a plaintiff cannot use § 1981 to sue a state actor in his or her official capacity.”
McCormick, 693 F.3d at 660 (citing Grinter v. Knight, 532 F.3d 567, 577 (6th Cir. 2008)). The
court then went on to hold that “the reasoning of Jett is equally applicable to the § 1981 suits
against state actors sued in their individual capacity” and therefore such a claim is barred.2
2
The Sixth Circuit did recognize in a footnote that,
there may be cases in which a plaintiff seeks to hold a state employee liable for §
1981 violations unrelated to the defendant’s status as a state employee. Section §
1983, however, only permits suits against state actors – i.e. defendants who have
exercised power possessed by virtue of state law and made possible only because
they were clothed with the authority of state law. If the defendant’s alleged
infringement of § 1981 is not fairly attributable to the state, nothing in our
holding bars a plaintiff from bringing suit against the defendant under § 1981 as a
private actor. This was certainly not the case here because all three faculty
members’ alleged misconduct was related to their status as state employees.
McCormick, 693 F.3d at 661 n. 3 (internal citation omitted). Here, Plaintiffs have asserted their
claims against state employees in their individual capacity and for alleged misconduct committed
while employed by the state, not as private actors. The Plaintiffs specifically allege that both
individual Defendants were acting “under the color of law”. (Second Am. Compl. ¶¶ 5, 6).
7
McCormick, 693 F.3d at 661.
As the Sixth Circuit has specifically held that § 1981 cannot be used as a vehicle to sue
municipalities or state actors in their official or individual capacities for money damages,
Plaintiffs’ § 1981 claim must be dismissed. In the instant case, Plaintiffs rely on Johnson v.
University of Cincinnati, 215 F.3d 561 (6th Cir. 2000) for their argument that a plaintiff can
recover under § 1981 for a claim of “race retaliation.” (Plf. Br. at 7). In Johnson, the plaintiff
brought an action against certain university officials alleging he was discriminated and retaliated
against based on his advancement of minorities and women. The court found that plaintiff could
bring his discrimination and retaliation claims against two officials in their individual capacities
based on Title VII and § 1981.
First, this case is distinguishable from the current action because it predates McCormick
which held that § 1981 cannot be the basis of a private action against state actors in their
individual capacities. Further, Johnson is not relevant to the inquiry of whether Plaintiffs’ standalone claim of retaliation based on the Fourteenth Amendment can proceed through a § 1981
cause of action. In Johnson, the Plaintiff also based his claim of retaliation on a Title VII action.
In the instant case Plaintiff is seeking to assert this claim only under § 1981 which does not
provide a private cause of action. It is also worth noting that the cases upon which the Johnson
court relies upon, Wilson v. Lear-Siegler, Inc., 558 F.2d 1266 (6th Cir. 1977) and Alizadeh V.
Safeway Stores, Inc., 802 F.2d 111 (5th Cir. 1986), both involve a plaintiff suing a private
company - not a governmental entity or state actor.
For these reasons, the Court dismisses Plaintiffs’ claim of ‘race retaliation’ under § 1981.
B.
Retaliation in violation of the First Amendment (Count III)
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Plaintiffs allege a claim of “First Amendment Violations” in Count III of their Second
Amended Complaint. To establish a case of retaliation for speech protected under the First
amendment a plaintiff must allege he “(1) engaged in constitutionally protected conduct; (2) an
adverse action was taken against plaintiff that would deter a person of ordinary firmness from
continuing to engage in that conduct; and (3) the adverse action was motivated at least in part by
the plaintiff’s protected conduct.” Fritz v. Charter Tp. of Comstock, 592 F.3d 718, 723 (6th Cir.
2010). The Sixth Circuit recently noted that “[i]t is well-established that the federal government
has a greater ability to curtail the free-speech rights of its employees than the public generally –
though that ability is not boundless.” Housey v. Macomb County, No. 12-1766, 2013 WL
4007736, *4 (6th Cir. Aug. 6, 2013). Because of this fact, the Supreme Court has devised a
three-part framework to evaluate whether a public employee’s speech is protected under the First
Amendment. Therefore, a public employee’s speech is protected only when: “(1) it touches on
‘a matter of public concern,’ Connick [v. Myers, 461 U.S. 138,] 146 (1983); (2) it is not uttered
pursuant to the employee’s ‘official duties’ but rather ‘as a citizen,’ Garcetti v. Ceballos, 547
U.S. 410, 421 (2006); and (3) the employee’s interest in the speech outweighs the government’s
interest in promoting ‘the effective and efficient fulfillment of its responsibilities to the public,’
Id. at 450.” Housey, 2013 WL 4007736, *4; see also Weisbarth v. Geauga Park Dist., 499 F.3d
538, (6th Cir. 2007).
In the instant case, Plaintiffs allege that the four “designated plaintiffs” engaged in a
protected activity when they “raised and/or disclosed matters of ‘public concern,’ regarding (1)
that police officers were “victims of race based discrimination, retaliation and harassment in
violation of law”; (2) plaintiffs opposed the race based discrimination/retaliation and harassment
9
against Caucasian/white Police Officers that was being meted out by Defendants herein”; (3)
Defendants “violated the LEIN machinery and/or LEIN checking mechanisms for their own
personal purposes in violation of Plaintiffs’ Constitutional rights.” (Second Am. Compl. ¶ 69a).
Further, Plaintiffs allege that they were retaliated against and/or punished by Defendants [] in
such a way that it would chill an ordinarily firm victim, [], from raising the aforesaid matters of
public concern” and there was a causal connection between the protected activity and retaliation
or punishment. (Second Am. Compl. ¶¶ 69a - 69b).
Plaintiffs appear to argue in their briefing that they have successfully alleged three
separate instances of protected First Amendment activities- the filing of a class action grievance
protesting the promotions, complaints that Defendants misused LEIN, and the filing of the
instant lawsuit. Defendants argue that all three of these claims fail either because there was no
issue of public concern, Plaintiffs were speaking as citizens, the claim was not properly pled or
there was no adverse action taken.
1.
Grievance
Defendants argue that Plaintiffs’ class action grievance did not involve a matter of public
concern and therefore, their claim based on this conduct fails. Plaintiffs argue that the class
action grievance addresses a matter of concern because it addresses discrimination. To this end,
Plaintiffs refer to the class action grievance in their briefing as “complaining about race
discrimination that was perpetrated by the means of hopscotching over more senior police
officers,” (Plf. Br. at 9; see also Plf. Br. at 16, Plaintiffs state “[i]n our case, we have Plaintiffs
who filed a ‘class action’ grievance complaining about ongoing and rampant discrimination in
the operation of the police department for the City of Flint.”). Plaintiffs’ Second Amended
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Complaint also refers to the class action grievance as “protesting the racial promotions.”
(Second Am. Compl. ¶¶ 51, 73).
“Speech touches upon a matter of public concern if it can be ‘fairly considered as relating
to any matter of political, social or other concern to the community.’” Taylor v. Keith, 338 F.3d
639, 644 (6th Cir. 2003) (quoting Connick, 461 U.S. at 146)). “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 record as a whole.” Id. (citation omitted). “In general,
speech involves matters of public concern when it involves ‘issues about which information is
needed or appropriate to enable the members of society to make informed decisions about the
operation of their government.’” Albert v. Mitchell, 42 Fed. Appx. 691, 693 (6th Cir. 2002)
(quoting Brandenburg v. Housing Authority of Irvine, 253 F.3d 891, 898 (6th Cir. 2001)).
However, “[i]nternal personnel disputes or complaints about an employer’s performance are not
such matters.” Id. (citation omitted); see also Brown v. City of Trenton, 867 F.2d 318, 322 (6th
Cir. 1989).
Defendants do not argue that allegations of racial discrimination are not a matter of
public concern, rather, Defendants note that the grievance fails to state any claim, complaint or
insinuation regarding any sort of discrimination.3 The grievance, states “On 08/19/12
provisional promotions were made violating the current collective bargaining agreement. Senior
officers who were next in line according to the bargaining agreement were passed over for the
provisional promotion to the rank of Sergeant.” (Second Am. Compl. Ex. 3, Grievance).
3
The “class action grievance” also fails to evidence the names of any of the Plaintiffs (it is
signed by a non-party). Plaintiffs fail to plead how Defendants identified Plaintiffs as the
authors behind the “class action grievance”.
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Plaintiffs did not allege in the Second Amended Complaint that there were any statements or
complaints outside of this class action grievance that would give rise to Defendants believing
that this grievance actually concerned racial discrimination. Further, there is nothing in the
record indicating that there was any complaint, verbal or otherwise, made to a superior regarding
racial discrimination.
Therefore, where the grievance fails to address or implicate any sort of discrimination
and the Second Amended Complaint is devoid of any allegations regarding how Defendants
would have interpreted it differently, the Court need not address whether discrimination is a
matter of public concern. The pertinent inquiry must be whether the Plaintiffs’ class action
grievance alleging promotions that violated a collective bargaining agreement is a “matter of
public concern.”
The Sixth Circuit has explained,
[i]f the speech relates primarily to a matter of ‘limited public interest’ and does
not ‘seek to bring to light actual or potential wrongdoing or breach of public
trust,’ centering instead on matters primarily, if not exclusively ‘of personal
interest’ to the employee such as employee grievances over internal working
conditions, etc., that fact must be weighed in determining whether a matter of true
public concern is involved....”
Brown, 867 F.2d at 322 (quoting Jurgensen v. Fairfax County, 745 F.2d 868, 879 (4th Cir.
1984)). In the current action, it does not appear that a complaint regarding promotions in
violation of seniority in the police department would implicate a breach of the public trust.
In Albert, a corrections officer made complaints to his superiors about the conditions at
the facility including concerns regarding “favoritism and unfairness in the assignments given and
overtime opportunities afforded to corrections personnel...” Albert, 42 Fed. Appx. at 692. In
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dismissing the case for failure to state a claim, the Sixth Circuit examined whether the plaintiff’s
complaints touched on a matter of public concern. The court held that “Albert’s third allegation
regarding his personal concerns over his personnel treatment may be of paramount importance to
him, but whether one corrections officer receives a promotion, overtime, a valid request for a
transfer, or in general is treated fairly does not effect the commonwealth.” Id. at 693. Similar to
Albert, a complaint regarding promotions not based on seniority or in violation of a collective
bargaining agreement can be seen as one of “tantamount” importance to the officers but not
affecting the commonwealth. Therefore, because the class action grievance is not a public
concern, there is no protected conduct and Plaintiffs’ claim for retaliation based on the filing of
the grievance is dismissed.
2.
Complaints about LEIN usage
Plaintiffs also argue that they have alleged a complaint about Defendants’ alleged misuse
of the LEIN system constitutes protected conduct because “ensuring compliance with the law” is
a matter of public concern.4
The Court holds that Plaintiffs have failed to set forth a plausible claim of First
Amendment retaliation regarding complaints of the LEIN technology. Indeed, from the Second
Amended Complaint it is clear that any allegation regarding the misuse of the LEIN technology
is alleged as an example of retaliation by Defendants rather than an instance of protected speech.
In their briefing, Plaintiffs refer the Court to paragraph 72 which states:
4
Plaintiffs’ briefing does not specifically make allegations surrounding Plaintiff Garceau’s
single complaint about Defendant Patterson’s use of LEIN. Rather, Plaintiffs’ allegations deal
with the actual use of LEIN as an attempt at discipline. (Second Am. Compl. 72).
13
That, specifically, but not by way of limitation, right after the class action
grievance [] was filed, Defendant Patterson unlawfully used the LEIN machine to
attempt to discipline the four designated Plaintiffs herein, as this Court can see
with its own eyes by the document attached...
(Second Am. Compl. ¶ 72). This allegation, however, does not evidence that Plaintiffs were
engaging in any protected speech but rather it is merely an allegation stating that shortly after the
class action grievance was filed, a Defendant allegedly used the LEIN technology to attempt to
discipline Plaintiffs. Plaintiffs make no allegations concerning complaints regarding the LEIN
usage or retaliation that followed that complaint.5
As noted in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), dismissal is appropriate
if the plaintiff has failed to offer sufficient factual allegations that make the asserted claim
plausible on its face. Id. at 570. Here, Plaintiffs have not asserted any facts that could be
construed to construct a First Amendment retaliation claim from Defendants’ conduct involving
LEIN technology. Therefore, this claim fails.
3.
Lawsuit
5
Plaintiffs contended at oral argument that this claim was valid because Plaintiff Garceau
went outside the agency to complain about the Defendants’ use of LEIN. Plaintiffs relied upon
Handy-Clay v. City of Memphis, Tennessee, 695 F.3d 531 (6th Cir. 2012) for the argument that
going outside the regular chain of command is so extraordinary that it weighs in favor of finding
that a plaintiff is not speaking as a private citizen. Id. at 542-43. Here, the Court need not
address whether Plaintiff Garceau was speaking as a private citizen as the Second Amended
Complaint fails to set forth an adequate claim. Further, it is pertinent to note that Plaintiff
Garceau’s complaint “outside the regular chain of command” is attached to the Second Amended
Complaint but not explained. In fact, it is unclear from the record to whom Plaintiff Garceau
actually complained.
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Finally, Plaintiffs allege that the filing of this lawsuit was protected speech.6 Defendants’
argue that because Plaintiffs have failed to allege an adverse action that post-dates the filing of
this lawsuit, Plaintiffs have failed to set forth a claim. To this end, Defendants argue that a
remark by a City Attorney regarding this lawsuit cannot amount to an adverse action. However,
the Court notes that in addition to the remark by the defense attorney (Second Am. Compl. ¶ 79),
Plaintiffs have also alleged in the Second Amended Complaint the excessive suspensions of
Plaintiff Garceau and of Plaintiff Dickenson II, both of these suspensions post date the filing of
this action. (Second Am. Compl. ¶¶ 77, 78).
Therefore, taking all the allegations in the Complaint as true, the Court finds that
Plaintiffs have successfully alleged an adverse action that could be related to the filing of this
lawsuit. This claim will go forward.
C.
Plaintiffs’ Conspiracy Claims
Defendants argue Plaintiffs’ claim of a conspiracy between Defendants must fail because
Plaintiffs do not plead any specific facts to support their theory. Plaintiffs assert that they have
properly pled a conspiracy claim and direct the Court to paragraph 37 which states:
That the Defendants herein acted in concert with one another and aided and
abetted one another in accomplishing and effecting their unlawful race policy and
in effecting their unlawful retaliation policy, as well as in accomplishing the
actions and consequences set forth herein, the exact nature and extent of which
concerted activity is well known to Defendants, but not to Plaintiffs – yet.
6
Although the Plaintiffs fail to specifically refer to this lawsuit in their Second Amended
Complaint, the Court finds that this conduct falls under the general allegation that Plaintiffs
“opposed the race based discrimination/retaliation and harassment against Caucasian/white
Police Officers that was being meted out by Defendants herein.” (Second Am. Compl. ¶ 69a(ii)).
15
(Second Am. Compl. ¶ 37).
The Court notes that Plaintiffs have failed to set forth an enumerated conspiracy claim in
their Second Amended Complaint. Rather, Plaintiffs have merely inserted the language quoted
above into each of the three asserted claims (See Second Am. Compl. ¶¶ 37, 59, and 81).
Further, Plaintiffs have not set forth any particularized facts regarding conspiracy beyond these
identical one paragraph recitations. The Court finds that under these circumstances, Plaintiffs’
Second Amended Complaint has not asserted a claim for conspiracy. Therefore, the Court need
not address the issue of whether the claim is plausible; there is no conspiracy claim asserted.7
D.
Plaintiffs’ Claim against the City
Finally, Defendants argue that Plaintiffs have failed to set forth a valid claim against
Defendant City of Flint. Plaintiffs allege in their Second Amended Complaint that Defendant
City of Flint “has a pattern and practice, and past historical policy, of discriminating in favor of
African-American/black employees and discriminating against Caucasian/white employees as
indicated by the following two litigations: (a) Middleton v. The City of Flint [92 F.3d 396 (6th
Cir. 1996)]; and (b) Speer v. The City of Flint [No. 08-13526, 2010 WL 5462477 (E.D. Mich.
Dec. 29, 2010)].” (Second Am. Compl. ¶12a). The Court notes that Middleton was an action in
which an affirmative action policy was challenged and overturned by the Sixth Circuit. In Speer,
the plaintiff police officer alleged a First Amendment violation after he was disciplined for
speaking to the press regarding the Flint Police Department’s practices.
For a municipality to be liable for a constitutional violation under § 1983, the violation
7
The Court also notes that Plaintiff did not dispute this finding during oral argument.
16
must be a result of a policy or custom of the city. Monell v. Dept. of Social Services, 436 U.S.
658, 694 (1978). “That is to say, the liability of counties and other local governments under §
1983 depends solely on whether the plaintiff’s constitutional rights have been violated as a result
of a ‘policy’ or ‘custom’ attributable to the county or local government.” Holloway v. Brush,
220 F.3d 767, 772 (6th Cir. 2000).
Defendants argue primarily that Plaintiffs have set forth conflicting allegations, stating at
one point that the individual Defendants acted in violation of “Defendants own rules” but also
that the Defendants’ actions were taken pursuant to unconstitutional City of Flint policies.
(Second Am. Compl. ¶¶ 8, 17). Defendants argue that this inconsistency makes the claim
implausible. The Court finds this argument unavailing. Although Twombly and Iqbal require a
plaintiff to set forth a plausible claim, this standard does not go so far as to abrogate the Federal
Rules of Civil Procedure which allow that “a party may state as many separate claims or
defenses as it has, regardless of consistency.” Fed. R. Civ. P. 8(e).
Defendants also argue Plaintiffs’ claim against Defendant City of Flint fails because it
does not set forth enough facts, and rely upon the Sixth Circuit decision in Highfill v. City of
Memphis, 425 Fed. Appx. 470 (6th Cir. 2011) to support this argument. In Highfill, the Sixth
Circuit found the plaintiff failed to establish the defendant city was the “moving force” behind a
policy of reverse discrimination when the only evidence presented was the testimony of a few
witnesses. Id. at 476. This case is easily distinguishable from the instant case as Highfill was
dismissed on a motion for summary judgment, not a motion to dismiss. Therefore, the Sixth
Circuit and the lower court had the opportunity to view actual evidence that the plaintiff was
given an opportunity to collect rather than only evaluating allegations. Therefore, the Court
17
finds that Defendants’ arguments are off the mark.
While it is true that mere conclusory allegations will not win the day, Plaintiffs have
alleged that the Defendant City of Flint has a documented history of reverse discrimination.
(Second Am. Compl. ¶ 12a). Further, Plaintiffs have alleged that the Defendants “had a policy
rule, custom, and/or practice of favoring African-American/black Police Officers over
Caucasian/while Police Officers, such as Plaintiffs, when it came to the terms and conditions of
employment, which included, but not by way of limitation, promotions, provisional and
otherwise.” (Id. ¶ 8). Plaintiffs then allege a scheme by which unfit minorities were promoted
over more qualified non-minorities and claim that this scheme was “consistent with effecting and
implementing the agreement/policy of favoring African-American/black Police Officers referred
to hereinabove paragraphs 8 and 9.” (Id. ¶¶ 29, 7-42). Given that Plaintiffs have supplied some
factual content to their legal claims, the Court can make a plausible inference of wrongdoing.8
See Southfield Ltd. Partnership v. Flagstar Bank, FSB, 727 F.3d 502, 502 (6th Cir. 2013). For
these reasons, the Court denies Defendants’ request to dismiss these claims.
8
To the extent Defendants appear to argue that Plaintiffs cannot claim the Chief of Police was
a policy maker, the Court finds this argument to be premature. Again, Defendants rely on law
and arguments based on an evaluation of evidence which is premature at this stage in the
litigation.
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IV. CONCLUSION
For these reasons, the Court GRANTS IN PART AND DENIES IN PART Defendants’
Motion to Dismiss.
SO ORDERED.
s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: November 7, 2013
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or
party of record herein by electronic means or first class U.S. mail on November 7, 2013.
s/Deborah Tofil
Case Manager
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