Russell v. Detroit, City of et al

Filing 41

OPINION and ORDER Granting in Part and Denying in Part Defendants' 28 MOTION for Summary Judgment. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MAJOR L. RUSSELL,
Plaintiff,

Case No. 16-cv-11857
Hon. Matthew F. Leitman

v.
CITY OF DETROIT, et al.,
Defendants.
__________________________________________________________________/
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (ECF #28)
Plaintiff Major L. Russell, a former employee of the City of Detroit Fire
Department (the “DFD”), brings this civil action against several of his former
superior officers at the DFD and against the City of Detroit. Russell asserts a claim
under 42 U.S.C. § 1981 (“Section 1981”) for race discrimination and a claim under
42 U.S.C. § 1983 (“Section 1983”) for retaliation in violation of the First
Amendment. The Defendants have moved for summary judgment on both claims.
(See ECF #28.) Russell now concedes that he may not assert his race discrimination
claim against the Defendants under Section 1981. And as explained below, all of
the Defendants other than Deputy Chief Houseworth are entitled to summary
judgment on his First Amendment retaliation claim.

Accordingly, the Court

GRANTS the Defendants’ motion for summary judgment on Russell’s race

1

discrimination claim, GRANTS summary judgment in favor of all Defendants other
than Houseworth on Russell’s First Amendment retaliation claim, and DENIES
summary judgment against Houseworth on Russell’s First Amendment retaliation
claim.
I
A
On May 5, 1986, Russell, an African American, began working as a
Firefighter Driver with the DFD. (See Russell Dep. at 9, ECF #30-2 at Pg. ID 830.)
In 1998, the DFD promoted Russell to Fire Engine Operator. (See id. at 10, Pg. ID
830.) Russell held that position until he retired on April 14, 2017. (See id. at 181,
ECF #30-3 at Pg. ID 893.)
The DFD is organized with the following rank structure and job titles:
















Executive Fire Commissioner
First Deputy Commissioner
Second Deputy Commissioner
Chief of Department
Deputy Chief
Senior Chief
Battalion Chief
Captain
Senior Lieutenant
Lieutenant
Fire Engine Operator
Firefighter Driver
Senior Firefighter
Firefighter
Trial Firefighter
2

During the time periods at issue in this case, Defendant Craig Dougherty was
Chief of Department, Defendant James Houseworth was Deputy Chief, and
Defendants Joseph Rinehart, Eugene Biondo, and Joseph English were Battalion
Chiefs.
B
In December 2012, Russell was assigned to Engine 17 of the DFD. (See id. at
13, ECF #30-2 at Pg. ID 831.) At that time, Sean Flanagan, a Caucasian firefighter
who was also assigned to Engine 17, started treating Russell inappropriately. First,
Flanagan physically and verbally intimidated Russell during a fire engine run on
December 9, 2012. (See id. at 122, Pg. ID 858.) Before that run began, Russell and
Flanagan consulted a wall map for directions to the fire emergency’s location. (See
id.) Russell and Flanagan then approached the fire engine, and Russell heard
Flanagan say something. (See id.) Believing that Flanagan was talking about the
directions, Russell asked Flanagan to repeat what he said. (See id.) In response,
Flanagan “blew up and went into a tirade.” (See id.) He repeatedly told Russell to
“shut the fuck up.” (See id.) Flanagan then sat behind Russell in the fire engine and
continued yelling as Russell drove. (See id. at 129, ECF #30-3 at Pg. ID 880.)
Flanagan later attempted to climb over the interior barrier of the engine’s cab and
place his hands around Russell’s neck. (See id.) Lieutenant Mark Knowles, also
present on the run, then intervened and told Flanagan to sit down, and Flanagan did.
3

(See id.) Following that incident, Russell considered filing a complaint against
Flanagan, but Lt. Knowles convinced him not to. (See id. at 187, Pg. ID 894.) For
the next five months, Russell and Flanagan did not go on runs together.
Second, on May 15, 2013, Russell and Flanagan went on an emergency fire
run, and Flanagan again verbally attacked and physically threatened Russell. (See id.
at 139, Pg. ID 882.) On that run, Engine 17 was responding to an incident in which
a woman’s car had caught fire on the freeway. (See id.) On the drive back to the
station, Russell again was driving, and Flanagan was in the back seat. (See id. at
142, Pg. ID 883.) Flanagan stated that he thought the fire was suspicious, and
Russell perceived that Flanagan’s suspicion was based on the fact that the woman
driving the car was African American. (See id. at 143-44, Pg. ID 883-84.) During
their conversation, Flanagan told Russell to “shut the fuck up and drive.” (Id.)
Russell and Flanagan argued until they arrived back at the engine house. (See id. at
146, Pg. ID 884.) At the engine house, Flanagan approached Russell and physically
intimidated Russell by standing within a foot of his face. (See id. at 146-48, Pg. ID
884.)
C
Shortly after the second incident of harassment by Flanagan, Russell decided
to initiate disciplinary charges against Flanagan.

On May 18, 2013, Russell

completed a form entitled “Official – Detroit Fire Department – Charge.” (See

4

Flanagan Charge, ECF #31-3 at Pg. ID 1032-33.) In a section of the form labeled
“CHARGE,” Russell identified numerous policies that he believed Flanagan had
violated: “G/R 5.41 Neglect of Duty, G/R 11.2 Intimidation of a Member of Lesser
Rank, G/R 5.1 Using Profane and Abusive Language, Violation of Executive Order
No. 2010-1 Violence in the Workplace, Violation of Executive Order No. 2010-2
Internal Policy Against Discrimination and Harassment.” (Id.) The last policy
identified by Russell, Executive Order No. 2010-2, prohibits “discrimination on the
basis of race, color, religious beliefs, national origin, age, marital status, disability,
sex, sexual orientation, or gender identification or expression” in the workplace.
(Executive Order, ECF #31-4 at Pg. ID 1041.) Finally, in a section of the form
labeled “SPECIFICATION,” Russell wrote: “Sergeant Sean Flanagan used physical
and verbal intimidation towards FEO Major Russell. Sergeant Sean Flanagan used
profane and abusive language towards FEO Major Russell. A letter of further
explanation is attached.” (Id.)
In the attached letter – which was addressed to Donald Austin, Executive Fire
Commissioner (the “Austin Letter”) – Russell cited the same anti-harassment and
anti-discrimination policies that he identified on the charge form, including
Executive Order No. 2010-2. (See id. at Pg. ID 1036-1039.) The Austin Letter also
described in greater detail the harassing conduct by Flanagan that, according to
Russell, violated the City of Detroit’s anti-discrimination policies.

5

After Russell prepared the charge form and Austin Letter, he attempted to
submit them to the DFD in accordance with the Department’s disciplinary policies
and procedures. Under those rules, a grievant first submits charges to a Battalion
Chief. (See DFD Admin. Manual, ECF #31-8 at Pg. ID 1103.) The Battalion Chief
is then required to review the charges and forward them to the appropriate Deputy
Chief at the DFD’s headquarters in downtown Detroit. (See id.) At that point, the
DFD investigates the charges by, among other things, speaking with witnesses and
taking statements. (See Houseworth Dep. at 16-17, ECF #30-5 at Pg. ID 946.)
Finally, the DFD holds a hearing and decides whether to discipline the subject of the
charges or dismiss the charges. (See id. at 17, 20, Pg. ID 946-47.)
Russell contends that the individual Defendants did not handle his charges
properly. Specifically, he says that the individual Defendants ignored his charges
and/or refused to send the charges to the next level of the disciplinary process for
additional review and investigation. (See, e.g., Russell Dep. at 34-37, 54-55, 58-59,
64-65, 80-82, ECF #30-2 at Pg. ID 836-37, 841-42, 844, 848-49.) And he asserts
that the individual Defendants – some of whom are African American – denied him
access to the DFD’s internal disciplinary process because he is African American.1
(See, e.g., Compl. at ¶ 19(f), (k), (l).) He contends that as a result of the individual

1

Deputy Chief Houseworth, Battalion Chief Buchanan, and Chief of Department
King are African American. (See Russell Dep. at 120-21, ECF #30-2 at Pg. ID 858.)
6

Defendants’ acts and omissions, the DFD never investigated his charges against
Flanagan, never held a hearing on the charges, and never issued a decision with
respect to the charges.
Russell also says that the Defendants retaliated against him for filing the
charges against Flanagan. For instance, he contends that Deputy Chief Houseworth
threatened that Russell would experience a “mind fuck” in retaliation for pursuing
his charges. (Russell Dep. at 42-43, ECF #30-2 at Pg. ID 838.) He likewise insists
that as a result of the charge, Chief of Department Dougherty refused to permit him
to reschedule a furlough to begin on June 19, 2013 (see id. at 104-06, Pg. ID 854),
and Russell says he was falsely accused of being “AWOL” (absent without leave)
from work. (See id. at 17-18, ECF #30-2 at Pg. ID 832.) Finally, Russell also
maintains that he was denied the opportunity to work overtime. (See id. at 218-20,
ECF #30-3 at Pg. ID 902-03.)
D
At the same time Russell was pursuing disciplinary action against Flanagan,
Flanagan was pursuing disciplinary action against Russell. (See ECF #31-11.) On
May 30, 2013, Flanagan submitted written charges against Russell in which
Flanagan accused Russell of “us[ing] coarse and profane language to Sgt. Sean
Flanagan and Sgt Michael Dillon this being a violation of G.R. 5.1 [addressing

7

conduct with immediate supervisors].” (Id. at Pg. ID 1120; see ECF #31-9 at Pg. ID
1109-10.)
Flanagan’s charges, like Russell’s, went nowhere. Indeed, Flanagan did not
“hear anything at all” after he filed his charges against Russell (Flanagan Dep. at 21,
ECF #28-2 at Pg. ID 399), nor did Flanagan ever receive any “resolution” of his
charges against Russell. (Id. at 14-15, Pg. ID 397.)
E
The DFD has a standard practice that it “always” follows when, as here, two
employees have a workplace conflict that presents a risk of workplace violence. 2
(Lyon Dep. at 43, ECF #28-2 at Pg. ID 498; see also Dougherty Dep. at 21, ECF
#28-2 at Pg. ID 597; Houseworth Dep. at 61-62, ECF #28-2 at Pg. ID 543.) That
practice is to temporarily “detail” each of the employees to separate stations in
different areas until their conflict is investigated and resolved. (Lyon Dep. at 43,
ECF #28-2 at Pg. ID 498; Dougherty Dep. at 21, ECF #28-2 at Pg. ID 597;
Houseworth Dep. at 61-62, ECF #28-2 at Pg. ID 543; Flanagan Dep. at 12, ECF #282 at Pg. ID 397; Biondo Dep. at 60, ECF #28-2 at Pg. ID 432.)
Consistent with this standard practice, around June 12, 2013, Houseworth
issued an order detailing Russell and Flanagan to stations other than Engine 17 on

2

As noted above, in Russell’s charge form against Flanagan and the attached Austin
Letter, Russell charged Flanagan with violating the DFD’s policy banning violence
in the workplace. (See Flanagan Charges, ECF #31-3 at Pg. ID 1032, 1036.)
8

the days that they were scheduled to work together. (See Russell Dep. at 98, ECF
#30-2 at Pg. ID 852; ECF #31-9 at Pg. ID 1110-11.) In a later email, dated June 28,
2013, Dougherty confirmed that Flanagan and Russell were to be detailed to stations
other than Engine 17 on days they were scheduled to work together. (See ECF #282 at Pg. ID 611.)
The DFD detailed Russell to engine houses on the east side of Detroit. (See
Russell Dep. at 94-95, ECF #30-2 at Pg. ID 851.) Russell’s temporary detail lasted
only “a couple of weeks,” and after that time he returned to Engine 17. (See id. at
95, Pg. ID 851.) During that two-week period, Russell worked on roughly four
days.3 On those four days, Russell’s commute to work was roughly fifteen minutes
longer than his commute to Engine 17. (See id. at 235, ECF #30-3 at Pg. ID 906-07.)
In addition, unlike Engine 17, the stations to which Russell traveled on the four work
days were not located near the fitness facility at which Russell regularly worked out.
(See id. at 235-36, Pg. ID 906-907.)
The DFD sent Flanagan to Engine 40 on the west side of Detroit. (See
Flanagan Dep. at 13, ECF #28-2 at Pg. ID 397.) After Flanagan began this detail,
he left work on a medical leave. (See id. at 12, Pg. ID 397.) Flanagan transferred to

3

DFD firefighters work on a “Kelly” schedule, in which, on average, they work two
entire days (48 hours) during any given week. (See Russell Dep at 99-100, ECF #302 at Pg. ID 852-53.)
9

another engine house when he returned from his medical leave. (See id.) Flanagan
did not return to Engine 17. (See Russell Dep. at 232-33, ECF #30-3 at Pg. ID 906.)
F
While the DFD did not conduct an investigation into Russell’s charges against
Flanagan, the City of Detroit Human Rights Department did. (See Human Rights
Ltr. to Exec. Commissioner, ECF #32-10.) That department assigned Lesa Kent to
inquire into Russell’s allegations. At the end of her inquiry, Kent concluded that the
Russell’s allegations of workplace violence against Flanagan were “not
substantiated.” (Id. at Pg. ID 1181; emphasis omitted.) Kent, however, did opine
that Flanagan’s behavior was “not only offensive and unprofessional but was
unnecessary in the situation.” (Id.) Kent recommended that Flanagan be “reissued a
copy of Executive Order No. 2010-1, counseled on violence in the workplace in
accordance with City of Detroit guidelines, and disciplined based on department
guidelines for conduct unbecoming a supervisor.” (Id.)
G
On August 15, 2013, Russell filed charges with the Equal Employment
Opportunity Commission (the “EEOC”) against the City of Detroit. (See EEOC
Charge, ECF #32-12.) In these charges, Russell maintained that he was subjected to
racial discrimination by Flanagan and by his superiors who impeded his effort to
seek discipline against Flanagan. (See id. at Pg. ID 1186.)

10

On May 22, 2014, the EEOC informed Russell that after a review of his case
file, it was dismissing his charges of discrimination and retaliation. (See EEOC Ltr.,
ECF #28-2 at Pg. ID 659.) The EEOC concluded that Russell was not subjected to
discrimination or an adverse employment action:
Today (May 22, 2014), during our telephone conversation,
you [Russell] were informed that the evidence reveals that
Sergeant Flanagan (Caucasian) threatened you with bodily
harm and that he used profanity towards you. The
evidence does not reveal that you complained to the
employer that you were subjected to these actioned by
Sergeant Flanagan due to your race and/or gender. After
you complained, you were not treated unfavorably and you
have not incurred an adverse employment action. Based
on the previously-mentioned information, it does not
appear that you were discriminated or retaliated against
based on the laws enforced by this Agency.
(Id.)

H
On May 24, 2016, Russell filed this action against the City of Detroit, John
King, Sean Flanagan, James Houseworth, Joseph English, Joseph Rinehart, Eugene
Biondo, Cecilia Buchanan, and Craig Dougherty. (See Compl., ECF #1.) On
September 11, 2017, the Court entered an order in which it dismissed the Complaint
against Defendants John King, Sean Flanagan, and Cecilia Buchanan for failure to
prosecute. (See ECF #26.) Thus, only the City of Detroit, James Houseworth, Joseph
English, Joseph Rinehart, Eugene Biondo, and Craig Dougherty remain as
Defendants.
11

Russell’s Complaint contains two counts. In Count I, Russell brings a claim
under Section 1981 for intentional race discrimination.

He claims that the

Defendants discriminated against him based upon his race by “depriv[ing] [Russell
of] the same rights as are enjoyed by white citizens to the creation, performance,
enjoyment, and all benefits and privileges, of his contractual employment
relationship with Defendant [City of Detroit].” (Compl. at ¶25, ECF #1 at Pg. ID 89.) In Count II, Russell brings a claim under Section 1983 for retaliation in violation
of the First Amendment. He alleges that his charges against Flanagan included
protected speech under the First Amendment and that the Defendants retaliated
against him (in the ways described above) for that protected speech. (See id. at ¶¶
33-34, Pg. ID 10.)
On November 6, 2017, the Defendants moved for summary judgment. (See
ECF #28.) The Court held a hearing on the motion for summary judgment on March
15, 2018.
Following the motion hearing, the Court conducted independent research into
Russell’s claim under Section 1981. The Court then entered an order directing
Russell to show cause why that claim should not be dismissed with prejudice based
upon the decisions of the United States Court of Appeals for the Sixth Circuit in
Arendale v. City of Memphis, 519 F.3d 587, 598 (6th Cir. 2008) (holding that a
plaintiff may not assert a claim under Section 1981 against a municipality),

12

McCormick v. Miami Univ., 693 F.3d 654, 659 (6th Cir. 2012) (holding that a
plaintiff may not assert a claim under Section 1981 against a state actor in his
individual capacity), and Ginter v. Knight, 532 F.3d 567, 577 (6th Cir. 2008)
(holding that a plaintiff may not assert a claim under Section 1981 against a state
actor in his official capacity). On April 16, 2018, counsel for Russell filed a response
in which he said: “In light of the authority cited by this Court in opposition to the
viability of Plaintiff’s claim under 42 U.S.C. §1981, and after exhaustive research
verifying the same, Plaintiff disagrees with the reasoning of the authority but is
unable to distinguish it and concedes that it is controlling.” (ECF #38 at Pg. ID
1246.)
II
A movant is entitled to summary judgment when it “shows that there is no
genuine dispute as to any material fact . . . .” SEC v. Sierra Brokerage Servs., Inc.,
712 F.3d 321, 326-27 (6th Cir. 2013) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251-52 (1986)) (quotations omitted). When reviewing the record, “the
court must view the evidence in the light most favorable to the non-moving party
and draw all reasonable inferences in its favor.” Id. “The mere existence of a scintilla
of evidence in support of the [non-moving party’s] position will be insufficient; there
must be evidence on which the jury could reasonably find for [that party].”
Anderson, 477 U.S. at 252. Summary judgment is not appropriate when “the

13

evidence presents a sufficient disagreement to require submission to a jury.” Id. at
251-52. Indeed, “[c]redibility determinations, the weighing of the evidence and the
drafting of legitimate inferences from the facts are jury functions, not those of a
judge . . . .” Id. at 255.
III
As Russell properly concedes, the Defendants are entitled to summary
judgment on his claim under Section 1981.

That statute “prohibits racial

discrimination in the making and enforcement of contracts.” McCormick, 693 F.3d
at 659. Its protection “extends to ‘the making, performance, modification, and
termination of contracts, and the enjoyment of all benefits, privileges, terms, and
conditions of the contractual relationship.’” Amini v. Oberlin Coll., 440 F.3d 350,
358 (6th Cir. 2006) (quoting 42 U.S.C. § 1981(b)). But the statute does not provide
a cause of action against a municipality, see Arendale, 519 F.3d at 598, against a
state actor in his individual capacity, see McCormick, 693 F.3d at 661, or against a
state actor in his official capacity. See Ginter, 532 F.3d at 577. Thus, Russell’s
Section 1981 claims against the City of Detroit and the individual Defendants (all of
whom Russell alleges to be state actors) fail as a matter of law. The Court therefore
grants Defendants’ motion for summary judgment on Russell’s Section 1981 claims.

14

IV
All of the Defendants other than Houseworth are entitled to summary
judgment on Russell’s Section 1983 claim for First Amendment retaliation.4
A
“First Amendment retaliation claims are analyzed under a burden-shifting
framework.” Dye v. Office of the Racing Comm’n, 702 F.3d 286, 294 (6th Cir. 2012).
Under that framework, “[a] plaintiff must first make a prima facie case of retaliation,
which comprises the following elements: (1) he engaged in constitutionally
protected speech or conduct; (2) an adverse action was taken against him that would
deter a person of ordinary firmness from continuing to engage in that conduct; (3)
there is a causal connection between elements one and two—that is, the adverse
action was motivated at least in part by his protected conduct.” Id. (internal
quotations omitted). “If the employee establishes a prima facie case, the burden then

4

Section 1983 provides in relevant part that:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper
proceeding for redress . . . .

42 U.S.C. § 1983.
15

shifts to the employer to demonstrate by a preponderance of the evidence that the
employment decision would have been the same absent the protected conduct.” Id.
(internal quotations omitted). “Once this shift has occurred, summary judgment is
warranted if, in light of the evidence viewed in the light most favorable to the
plaintiff, no reasonable juror could fail to return a verdict for the defendant.” Id.
(internal quotations omitted). “[T]the burden does not shift back to a plaintiff to
show pretext in First Amendment retaliation claims.” Id.
B
Defendants first argue that they are entitled to summary judgment on Russell’s
First Amendment retaliation claim because Russell did not engage in any
constitutionally protected speech. The Court disagrees.
“Three Supreme Court cases define the contours of the free speech rights of
public employees.” Evans-Marshall v. Bd of Educ. of Tipp Exempted Vill. Sch. Dist.,
624 F.3d 332, 337 (6th Cir. 2010). These cases establish three “requirements”:
The “matters of public concern” requirement. The First
Amendment protects the speech of employees only when
it involves “matters of public concern.” Connick v. Myers,
461 U.S. 138, 143 (1983). In Connick . . . the Court
explained that not all employee speech is protected, only
speech that “fairly [may be] considered as relating to”
issues “of political, social, or other concern to the
community.” Id. at 146. . . . When, by contrast, an
employee’s speech does not relate to a matter of public
concern, public officials enjoy “wide latitude” in
responding to it without “intrusive oversight by the
judiciary in the name of the First Amendment.” Id.
16

The “balancing” requirement. If the employee establishes
that her speech touches “matters of public concern,” a
balancing test determines whether the employee or the
employer wins. See Pickering [v. Board of Education],
391 U.S. [563,] 568 [(1968)]. . . . In resolving the claim,
the Court “balance[d] . . . the interests of the teacher, as a
citizen, in commenting on matters of public concern”
against “the interest of the State, as an employer, in
promoting the efficiency of the public services it performs
through its employees.” [Id.]
[….]
The “pursuant to” requirement. In the last case in the
trilogy, a prosecutor reviewed a private complaint that a
police officer’s affidavit used to obtain a search warrant
contained
several
misrepresentations. Garcetti [v.
Ceballos ], 547 U.S. [410,] 413-14 [(2006)]. . . . In
rejecting [the public employee’s] free-speech claim, the
Court did not deny that the prosecutor’s speech related to
a matter of “public concern” under Connick, and it did not
take
on
the
lower
court’s
reasoning
that Pickering balancing favored the employee. It instead
concluded that the First Amendment did not apply. “The
controlling factor,” the Court reasoned, “is that his
expressions were made pursuant to his duties as a calendar
deputy,” making the relevant speaker the government
entity, not the individual. Id. at 421 . . . . “We hold that
when public employees make statements pursuant to their
official duties, the employees are not speaking as citizens
for First Amendment purposes, and the Constitution does
not insulate their communications from employer
discipline.” Id.
Id. at 337-38.
Defendants insist that Russell cannot satisfy the “matter of public concern”
requirement because his complaints about Flanagan “concerned an employment

17

matter only of personal interest . . . .”5 (Mot. for Summ. J., ECF #28 at Pg. ID 222.)
This argument has real force. Russell’s primary contention in the body of the Austin
Letter appears to be that Flanagan did not treat him (Russell) with the appropriate
level of respect due to a driver of his rank and seniority. (See Austin Letter, ECF
#31-3 at Pg. ID 1036.) Thus, the body of the letter looks a lot like a run-of-the-mill
employee “beef” that is not a matter of public concern. See Farahat v. Jopke, 370
F.3d 580, 593 (6th Cir. 2004).
But the body of the letter does not stand alone. It is preceded and framed by
Russell’s reference to the anti-discrimination policy in Executive Order No. 2010-2.
(See Austin Letter, ECF #31-3 at Pg. ID 1036.) The body of the letter is therefore
reasonably understood to be describing mistreatment by Flanagan that Russell
regards as examples of unlawful discrimination. In fact, both Lesa Kent, of the
Human Rights Department, and Chief of Department Dougherty understood that
Russell’s charge form and the attached Austin Letter raised concerns about
“discrimination” by Flanagan. (Dougherty Dep. at 13, 26, ECF #28-2 at Pg. ID 595,
598; Kent Dep. at 17, ECF #28-2 at Pg. ID 621.) Moreover, Russell told at least
some of his superior officers within the DFD that his charges against Flanagan were

5

During the hearing on Defendants’ motion for summary judgment, the Court
pressed Russell’s counsel to specifically identify the protected speech on which
Russell’s First Amendment claim is based. Counsel clarified that the claim is based
upon his racial discrimination allegations in the charge form against Flanagan and
the attached Austin Letter.
18

based, at least in part, on “discrimination” by Flanagan. (Russell Dep. at 221, ECF
#30-3 at Pg. ID 903.)
Allegations of unlawful discrimination are “inherently a matter of public
concern.” Perry v. McGinnis, 209 F.3d 597, 608 (6th Cir. 2000). Indeed, it is “wellsettled” that allegations of “racial harassment” are matters of public concern. Bonnell
v. Lorenzo, 241 F.3d 800, 812 (6th Cir. 2001). And that is true “even if [the
allegations] are tied to personal employment disputes.” Warren v. Ohio Dep’t of
Public Safety, 24 Fed. App’x 259, 267-68 (6th Cir. 2001). Thus, Russell’s complaint
that Flanagan violated the City of Detroit’s anti-discrimination policy involved a
matter of public concern. See Perry, 209 F.3d at 608-10 (holding that allegation of
racial discrimination was matter of public concern).
That Russell’s charges included some matters of private interest does not
remove the charges from the realm of public concern. “The relevant analysis here
is whether the communication touches “upon matters only of personal interest . . .
.” Mosholder v. Barnhardt, 679 F.3d 443, 450–51 (6th Cir. 2012) (quoting
Connick, 461 U.S. at 147, 103 S.Ct. 1684 (emphasis added)).

“A public

concern/private interest analysis does not require that a communication be utterly
bereft of private observations or even expressions of private interest.” Id. On the
contrary, the public concern requirement is met “if any part of an employee’s speech
. . . relates to a matter of public concern . . . .” Bonnell, 241 F.3d at 812 (emphasis

19

added). That is the case here. See Jennings v. Wayne County, 2015 WL 5589869, at
**11-15 (E.D. Mich. Sept. 22, 2015) (holding that employee grievance motivated
“generally” by employee’s “interest in her personal employment situation” satisfied
public concern requirement because it related to sexual harassment which, like racial
harassment, is a matter of public concern).

Accordingly, the Court rejects

Defendants’ argument that Russell’s First Amendment retaliation claim fails
because Russell did not speak on a matter of public concern.6
C
Defendants further contend that Russell’s claim fails because they did not
subject him to an adverse action and/or because if they subjected him to such an
action, they did not do so based upon his protected activity. The Court agrees in
part. As set forth below, Russell has identified one adverse action – an alleged threat
by Defendant Houseworth – that may have been based upon his protected speech
and that would not have been taken in the absence of his protected speech. Thus,
the Court will grant summary judgment against Russell on his First Amendment
retaliation claim except to the extent that it rests upon the single alleged threat by

6

In Defendants’ motion for summary judgment, they do not attempt to show how
Russell’s claim fails under the Pickering balancing test nor do they contend that
Russell was speaking pursuant to his job duties. Thus, the Court will not grant
summary judgment to the Defendants on the ground that Russell has failed to satisfy
the “balancing requirement” or the “‘pursuant to’ requirement” as identified in
Evans-Marshall, supra.
20

Deputy Chief Houseworth.

The Court addresses below each adverse action

identified by Russell.
1
Russell first contends that the Defendants took adverse action against him
when they detailed him out of Engine 17 after he filed his charges against Flanagan.
The Court has serious doubts as to whether the detailing rises to the level of an
adverse action. For an action to qualify as “adverse,” it must be serious enough to
“deter a person or ordinary firmness from exercise of the right at stake.” ThaddeusX v. Blatter, 175 F.3d 378, 396 (6th Cir. 1999). Common examples of adverse
actions include “discharge, demotions, refusal to hire, nonrenewal of contracts, and
failure to promote.” Id. While “the effect on freedom of speech need not be great in
order to be actionable,” a court must nonetheless “be careful to ensure that real injury
is involved.” Mezibov v. Allen, 411 F.3d 712, 721 (6th Cir. 2005). In other words,
the injury arising from an adverse action must be more than “de minimis.”
Wurzelbacher v. Jones-Kelley, 675 F.3d 580, 584 (6th Cir. 2012). However, the
adverse action “threshold is intended to weed out only inconsequential actions, and
is not a means whereby solely egregious retaliatory acts are allowed to proceed past
summary judgment.” Thaddeus-X, 175 F.3d at 398.
Russell’s detail out of Engine 17 seems inconsequential in several respects.
To begin, it lasted a very short time – roughly two weeks. (See Russell Dep. at 95,

21

ECF #30-2 at Pg. ID 851.) And during that time, Russell would have been scheduled
to work only four days. (See id. at 99-100, Pg. ID 852-53.) Moreover, Russell’s
drive to the engine houses other than Engine 17 was a mere 15 minutes longer than
his drive to Engine 17. (See id. at 235-36, ECF #30-3 at Pg. ID 906-07.)
Russell’s primary complaint about the detailing appears to be that the engine
houses other than Engine 17 were less convenient because they were not located as
close to his workout facility. (See id.) But interference with the convenience of
Russell’s preferred exercise routine does not seem to rise to the level of an adverse
action. See, e.g., Mills v. Willams, 476 F. Supp. 2d 653, 661 (E.D. Mich. 2007),
aff’d. Mill v. Williams, 276 Fed. App’x 417 (6th Cir. 2008) (“Purely personal reasons
for preferring a former state of affairs over the current state of affairs are insufficient
to make a change an adverse action.” (citing Strouss v. Michigan Dept. of
Corrections, 250 F.3d 336, 343 n.2 (6th Cir. 2001)); Bradley v. Arwood, 2014 WL
5350833, at *11 (E.D. Mich. Oct. 20, 2014) (same).
But even if the detailing did amount to an adverse action, Russell’s First
Amendment retaliation claim based upon the detailing would still fail. That is
because the Defendants have shown that Russell would have been detailed to another
station even if his complaint against Flanagan did not include his protected speech
concerning racial discrimination. See Garceau v. City of Flint, 2016 WL 4537813,
at **19-20 (E.D. Mich. Aug. 31, 2016) (granting summary judgment on First

22

Amendment retaliation claim to defendants because “[d]efendants have shown that
the employment decision would have been the same absent the protected conduct . .
.”). As described above, the DFD detailed Russell out of Engine 17 because he and
Flanagan were involved in a conflict that presented a risk of workplace violence.
The DFD always separated employees in this manner when a risk of workplace
violence arose.7 Thus, the fact that Russell’s charges included protected allegations
of racial discrimination had nothing to do with the decision to detail him out of
Engine 17. Indeed, the DFD detailed Flanagan out of Engine 17 even though his
charges against Russell did not contain any protected speech. In short, on the record
before the Court, no reasonable jury could find that the Defendants detailed Russell
out of Engine 17 based upon his protected speech, and the Defendants are thus

7

Russell did not present evidence contradicting the Defendants’ testimony that it
was the DFD’s regular practice to separate employees involved in a workplace
conflict that presented a risk of violence. In Russell’s deposition, he was asked
generally about whether he was aware of a DFD policy to separate employees
involved in a conflict. He said that he was “not aware” of whether the separation
happens in every case of a conflict and did not affirmatively deny that it happens.
(Russell Dep. at 236, ECF #30-3 at Pg. ID 907.) More importantly, the question
focused on employee conflicts generally and was not limited to conflicts presenting
a risk of workplace violence. Russell offered no testimony – and has not submitted
an affidavit – specifically addressing how the DFD responded to employee conflicts,
like the one between himself and Flanagan, that presented a serious risk of workplace
violence. Thus, there is no evidence in the record contradicting the Defendants’
testimony that the DFD always separated employees involved a conflict that
presented a risk of violence.
23

entitled to summary judgment on Russell’s retaliation claim to the extent that it rests
upon the detailing. 
2
Russell next contends that the Defendants took adverse action against him
when they refused to permit him to reschedule his furlough. (See Russell Dep. at
104, ECF #30-2 at Pg. ID 854). Again, the Court has questions as to whether this
conduct by Defendants rose to the level of an adverse action. It is not clear that
refusing to allow an employee to reschedule previously-scheduled time off is
sufficiently serious that it would chill a person of ordinary firmness from engaging
in protected activity.
But even if the refusal to allow Russell to reschedule his furlough did rise to
the level of an adverse action, Russell’s claim would still fail to the extent that it is
based upon the refusal. That is because Defendants have shown that they would
have taken the action in the absence of Russell’s protected speech. Chief of
Department Dougherty determined that Russell would not be allowed to reschedule
his furlough. Dougherty explained that he declined to reschedule Russell’s furlough
because the date on which Russell wanted to begin his furlough was the date that
Lesa Kent from the Human Rights Department was scheduled to interview Russell
as part of her investigation into Russell’s charges against Flanagan. (See Dougherty
Dep. at 27-28, ECF #28-2 at Pg. ID 599.) Simply put, Dougherty declined to permit

24

Russell to be absent on his requested day because his absence would have interfered
with the orderly progress of Kent’s investigation. Russell has not presented any
evidence to the contrary. Thus, no reasonable jury could find that the Defendants
denied Russell’s requested furlough change because he engaged in protected speech,
and Defendants are entitled to summary judgment on Russell’s claim to the extent
that it rests on the furlough change request refusal.
3
Russell next contends that the Defendants took adverse action against him by
denying him overtime opportunities. (See Russell Dep. at 218-20, ECF #30-2 at Pg.
ID 902-03.) But he cites no evidence that any Defendant ever denied a single request
for overtime that he presented. Instead, Russell seems to argue that Defendants
constructively denied him overtime opportunities by leaving intact the unacceptable
risk that if he took overtime, he would be forced to work alongside Flanagan.
However, Russell has not presented any evidence that he faced any risk of working
with Flanagan once the two were detailed to separate stations. As noted above,
Flanagan went on medical leave and subsequently transferred out of Engine 17. (See
Russell Dep. at 232-33, ECF #30-3 at Pg. ID 906.) Russell has not presented any
evidence showing that he faced any meaningful risk of encountering Flanagan on
any overtime shift from that point forward. Thus, he has not supported his theory
that the Defendants constructively denied him overtime opportunities by leaving him

25

exposed to working with Flanagan, and the Defendants are entitled to summary
judgment on his claim to the extent that it rests upon the lack of overtime
opportunities allegation.
4
Russell also alleges that the Defendants took adverse action against him by
deeming him absent without leave (AWOL). But Russell has not presented any
evidence of a causal connection between the AWOL designation and his charges
against Flanagan. Russell filed the charges against Flanagan in May 2013. He was
deemed AWOL about 17 months later, in October 2014. That is not sufficient
temporal proximity to support an inference of causation. See Vereecke v. Huron
Valley Sch. Dist., 609 F.3d 392, 401 (6th Cir. 2010) (finding temporal proximity
insufficient to support inference of causal connection when alleged adverse action
occurred eight months after protected speech). And Russell has not identified any
other evidence that could support an inference that the AWOL designation resulted
from his charges against Flanagan.

Thus, to the extent that Russell’s First

Amendment retaliation claim rests upon the AWOL designation, it fails because
Russell cannot establish the causation element of his prima face case.
5
Russell contends that the Defendants took adverse action against him by
ignoring and/or failing to properly advance his charges against Flanagan through the

26

DFD discipline process. (See Resp. to Mot. for Summ. J., ECF #30 at Pg. ID 82122.) But Russell has not cited any authority for the proposition that ignoring and/or
failing to process a complaint rises to the level of an adverse action. And at least
some courts have distinguished between ignoring protected speech in an employee’s
complaint and taking affirmative inappropriate action in response to such speech.
See, e.g., Jennings v. Town of Stratford, 263 F.Supp.3d 391, 403 (D. Conn. 2017)
(finding sufficient evidence of adverse action where “instead” of “do[ing] nothing”
in response to an employee’s complaint, a supervisor affirmatively threatened the
employee with repercussions).

Russell has not persuaded the Court that the

Defendants’ alleged failure to act in response to his charges against Flanagan rose
to the level of an adverse action.
Moreover, Russell has not shown a causal connection between his protected
speech and the Defendants’ alleged failure to process his charges against Flanagan.
As noted above, Flanagan’s charges against Russell met the exact same fate as
Russell’s charges against Flanagan: both went nowhere in the DFD disciplinary
process and neither of the charges was heard or resolved. The equal treatment of the
two charges belies Russell’s allegation that the Defendants declined to process
Russell’s charges against Flanagan because they contained protected speech. For all
of these reasons, Defendants are entitled to summary judgment on Russell’s

27

retaliation claim to the extent that it rests on the Defendants’ alleged failure to
advance his charges against Flanagan through the DFD grievance process.
6
Finally, Russell contends that Defendant Houseworth took adverse action
against him when Houseworth threatened that Russell would face a “mind fuck” if
Russell persisted in pursuing his charges against Flanagan. As the Sixth Circuit has
explained, “threats alone can constitute an adverse action if the threat is capable of
deterring a person of ordinary firmness from engaging in protected conduct.” Hill v.
Lappin, 630 F.3d 468, 474 (6th Cir. 2010).8 A jury could reasonably conclude that
Houseworth’s “mind fuck” comment was such a threat. Indeed, the statement can
reasonably be interpreted as an admonition that unless Russell withdrew his charges
against Flanagan, he would face serious emotional and psychological abuse without
any avenue for relief. Russell may pursue his retaliation claim against Houseworth
based upon this threat because Houseworth tied the threat to Russell’s charges
against Flanagan (which satisfies the causation element of Russell’s claim) and
because a jury could find that Houseworth would not have made the threat in the
absence of Russell’s charges against Flanagan.

8

See also Jennings, 263 F.Supp.3d at 403 (supervisor’s threat to employee amounted
to adverse action sufficient to support First Amendment retaliation claim).
28

V
The City of Detroit is entitled to summary judgment on Russell’s Section 1983
claim. “A municipality is liable for a constitutional violation when execution of the
municipality’s policy or custom inflicts the alleged injury.” Jones v. City of
Cincinnati, 521 F.3d 555, 560 (6th Cir. 2008) (citing Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 694 (1978)). However, “[a] municipality cannot be held liable under
§ 1983 absent an underlying constitutional violation by its officers.” Id.

As

described above, with the sole exception of the First Amendment retaliation claim
against Defendant Houseworth, Russell has not established any underlying
constitutional violations by any of the individual Defendants. For that reason, the
City of Detroit is entitled to summary judgment on all of Russell’s claims other than
the threat-based claim against Houseworth. And the City is entitled to summary
judgment on that claim because Russell has not presented any evidence that the City
had a custom or policy of tolerating threats by its officials against subordinate
employees who engage in protected speech.
VI
For the reasons stated above, Defendants’ motion for summary judgment is
GRANTED IN PART and DENIED IN PART as follows:
1. The motion is DENIED to the extent that it seeks summary judgment in
favor of Defendant Houseworth on Russell’s First Amendment retaliation

29

claim. That claim may proceed to trial but only to the extent that it rests
upon Defendant Houseworth’s alleged “mind fuck” threat.
2. The motion is GRANTED in all other respects.
IT IS SO ORDERED.

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE

Dated: May 2, 2018

I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on May 2, 2018, by electronic means and/or
ordinary mail.
s/ Holly A. Monda
Case Manager
[phone]

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