Russell v. Detroit, City of et al

Filing 46

ORDER (1) Denying Defendant's 44 Motion for Amended Judgment Pursuant to Fed.R.Civ.P. 59(e) and/or Relief From Order Pursuant to Fed.R.Civ.P. 60(b)(6) and (2) Denying Plaintiff's 45 Motion for Alteration of Judgment Under Fed.R.Civ.P. 59(e). 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.
__________________________________________________________________/
ORDER (1) DENYING DEFENDANTS’ MOTION FOR AMENDED
JUDGMENT PURSUANT TO FED. R. CIV. P. 59(e) AND/OR RELIEF
FROM ORDER PURSUANT TO FED. R. CIV. P. 60(b)(6) (ECF #44) AND
(2) DENYING PLAINTIFF’S MOTION FOR ALTERATION OF
JUDGMENT UNDER FED. R. CIV. P. 59(e) (ECF #45)

In this action, Plaintiff Major L. Russell, asserts claims under 42 U.S.C. §
1981 (“Section 1981”) for race discrimination and under 42 U.S.C. § 1983 (“Section
1983”) for retaliation in violation of the First Amendment against several of his
former superior officers at the Detroit Fire Department (the “DFD”) and against the
City of Detroit. (See Compl., ECF #1.) On November 6, 2017, the Defendants
moved for summary judgment on both claims. (See ECF #28.) On May 2, 2018, the
Court entered an Opinion and Order in which it granted in part and denied in part
Defendants’ motion for summary judgment. (See Opinion and Order, ECF #41.) In
the Opinion and Order, the Court denied summary judgment on Russell’s First

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Amendment retaliation claim against Defendant Houseworth and granted summary
judgment in favor of Defendants on all of Russell’s remaining claims.
Russell and Defendant Houseworth1 have now moved to alter or amend the
judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure.2 (See Defs.’
Mot. to Alter or Am. J., ECF #44; Pl.’s Mot. to Alter or Am. J., ECF #45.) For the
reasons explained below, the Court DENIES both motions.
I
“Under Rule 59, a court may alter the judgment based on: (1) a clear error of
law; (2) newly discovered evidence; (3) an intervening change in controlling law; or
(4) a need to prevent manifest injustice.” Leisure Caviar, LLC v. U.S. Fish & Wildlife
Serv., 616 F.3d 612, 615 (6th Cir. 2010) (internal quotations omitted). “A motion
under Rule 59(e) is not an opportunity to re-argue a case.” Sault Ste. Marie Tribe of

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The motion was brought in the name of all of the Defendants. However, in the
Opinion and Order, the Court ruled that all Defendants other than Houseworth were
entitled to summary judgment on Russell’s claims. Thus, Houseworth is the only
remaining Defendant in this case and the only Defendant who may move to alter or
amend the judgment.

2

Defendants also moved for relief from the Opinion and Order pursuant to Rule
60(b)(6) of the Federal Rules of Civil Procedure. Relief under Rule 60(b) can only
be obtained after the entry of a judgment. See Carter v. Robinson, 211 F.R.D. 549,
550 (E.D. Mich. 2003) (holding that defendants “are not entitled to relief under Rule
60(b)(6) because they are not seeking relief from a final judgment” following a
partial denial of summary judgment). Here, the Court did not enter a final judgment
following its Opinion and Order because there remained a claim against Defendant
Houseworth. Accordingly, relief under Rule 60(b)(6) is not presently available to
the Defendants.
2

Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998). And a party cannot
use Rule 59(e) to “raise new legal arguments that could have been raised before a
judgment was issued.” Roger Miller Music, Inc. v. Sony/ATV Publ'g, LLC, 477 F.3d
383, 395 (6th Cir. 2007).
II
The Court denies both motions because the Court already carefully considered
and rejected the bulk of each party’s present arguments in its prior Opinion and
Order and because neither party has demonstrated that the Court made a clear error
of law in the Opinion and Order. The Court addresses each party’s primary
arguments below.
A
Defendant Houseworth challenges the Court’s conclusion that Russell was
speaking on a matter of public concern in his letter to Commissioner Donald Austin,
dated May 18, 2013 (the “Austin Letter”). The Court determined that the Austin
Letter addressed a matter of public concern because Russell framed his complaints
in that letter with reference to Executive Order 2010-2, which relates to the City of
Detroit’s anti-discrimination policy. The Court concluded that in light of the manner
in which Russell framed his complaints, they could reasonably be understood as
relating to unlawful discrimination – a matter of public concern.

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Houseworth counters that the prohibitions in Executive Order 2010-2 are not
limited to unlawful discrimination and that Russell’s reference to that order does not
necessarily indicate that he is complaining about such discrimination. In support of
this argument, Houseworth highlights that the Executive Order is named: “Internal
Policy Against Discrimination and Harassment.” (Defs.’ Mot. to Alter or Amend.
J., ECF #44 at Pg. ID 1319; emphasis original.) Houseworth appears to suggest that
the word “harassment” in the title indicates that the Executive Order prohibits
garden-variety harassment and ordinary bad behavior that is not a matter of public
concern. Houseworth then concludes that since the Executive Order applies to
subjects that are not a matter of public concern, Russell’s “mere reference” to that
order in the Austin Letter did not transform the complaints in that letter into matters
of public concern.
The plain language of Executive Order 2010-2 belies the implication by
Houseworth that the order broadly addresses ordinary bad behavior and harassment
that is not a matter of public concern.

The Executive Order focuses on

discrimination and harassment based on certain protected classes or statuses, and
this type of discrimination and harassment is a matter of public concern. See e.g.,
Perry v. McGinnis, 209 F.3d 597, 608 (6th Cir. 2000) (holding that racial
discrimination is “inherently a matter of public concern”); Bonnell v. Lorenzo, 241
F.3d 800, 812 (6th Cir. 2001) (“[I]t is well-settled that allegations of sexual

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harassment, like allegations of racial harassment, are matters of public concern.”).
The Executive Order first explains that it “clarifies and updates” two sections of the
Detroit City Code, and these sections both address unlawful discrimination and
harassment against members of protected classes and/or based upon protected
statuses.3 (Exec. Order 2010-2, ECF #31-4 at Pg. ID 1041.) The Executive Order
then provides that every employee, manager, and supervisor is responsible “for
ensuring that subordinates or co-employees are afforded a work environment that is
free from improper or unwelcome discrimination on the basis of race, color, religious
beliefs, national origin, age, marital status, disability, sex, sexual orientation, or
gender identification or expression and from harassment on the basis of sex.” (Id.)
The Executive Order finally directs employees who believe they have been subjected
to discrimination on the basis of these protected classes or to harassment on the basis
of sex to file a complaint with the Human Rights Department. (See id.) Simply put,
the Executive Order is directed toward unlawful discrimination and harassment, and
thus Russell did address a matter of public concern in the Austin Letter when he
framed his complaints with reference to the order.

3

The Executive Order explains: “This Executive Order clarifies and updates the City
of Detroit’s employment practices regarding discrimination or harassment as
delineated: 1) in Section 27-3-1 of the 1984 Detroit City Code governing
discrimination on the basis of race, color, religious beliefs, national origin, age,
marital status, disability, sex, sexual orientation, or gender identification or
expression, and 2) in Section 13-12-1 of the 1984 Detroit City Code governing
sexual harassment.” (Exec. Order 2010-2, ECF #31-4 at Pg. ID 1041.)
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Upon additional review of the Austin Letter, the Court finds two additional
bases for concluding that Russell addressed a matter of public concern in that letter.
First, Russell referred to internal disharmony among certain employees at the DFD
that could inhibit the DFD’s ability to timely and effectively respond to public
emergencies; he did not limit his complaints to mistreatment directed toward himself
alone. Specifically, Russell raised a concern that DFD firefighter Sean Flanagan had
engaged in serial bullying against a number of DFD drivers and that that bullying
was part of a larger “misguided culture of the DFD [that] relegates driver ranks as
less honorable.” (Id.) Serial bullying and devaluing of DFD drivers could interfere
with the DFD’s ability to appropriately carry out its mission, and the public would
have an interest in this potential threat to public safety.
Second, Russell addressed misconduct by Flanagan that posed an immediate
and direct risk to public safety, and the public would have an interest in that
misconduct as well. More specifically, Russell explained that while he was driving
a DFD fire engine to a fire, Flanagan (who was seated in the cab behind Russell)
went into a tirade and climbed over the seat toward Russell. (See id. at Pg. ID 103637.) Flanagan’s conduct interfered with Russell’s ability to drive the fire engine
safely and arrive to the scene of the emergency as quickly as possible. The public
has an interest in conduct by public employees that puts the driving public at risk
and hinders the ability of the DFD to respond quickly to fire scenes.

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For all of the reasons explained in the Opinion and Order and above, the Court
adheres to its conclusion that Russell addressed a matter of public concern in the
Austin Letter.
B
Russell argues that the Court erred by failing to recognize that comments and
actions directed toward him by DFD employees other than Houseworth could have
deterred a person of ordinary firmness from engaging in protected conduct. (See Pl.’s
Mot. to Alter or Am. J., ECF #45 at Pg. ID 1326-29.) Russell contends that these
other comments and actions were sufficient to support his First Amendment
retaliation claim against the other Defendants.
However, many of the comments and actions identified by Russell were made
by individuals who are not defendants in this action, and those comments and actions
are not relevant to Russell’s First Amendment claims against the individual
Defendants.
Nor has Russell persuaded the Court that the comments and actions he
identifies are sufficient to support his claim that the City of Detroit had a custom or
policy of tolerating threats against employees who complained about discrimination
and harassment. Russell has not identified a comment or action (other than the
“mind fuck” statement by Houseworth) that rises to the level of a threat, and thus he
has failed to show that the City regularly tolerated threats. Moreover, even if the

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statements identified by Russell did rise to the level of threats, Russell has not
presented evidence that the City of Detroit had a policy or custom of tolerating such
threats. Russell has not sufficiently shown that the City was aware of and chose to
tolerate a meaningful number of the purported threats he identifies.
III
For the reasons stated above, the Court DENIES both Defendants’ motion to
alter or amend the judgment and for relief from the judgment (ECF #44) and
Russell’s motion to alter or amend the judgment (ECF #45).
IT IS SO ORDERED.

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

Dated: June 12, 2018

I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on June 12, 2018, by electronic means and/or
ordinary mail.
s/ Holly A. Monda
Case Manager
[phone]

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