Hudson v. City of Highland Park, Michigan et al

Filing 72

ORDER Granting in Part and Denying in Part Highland Park Defendants' 62 Motion for Judgment on the Pleadings; and Granting Leona Group Defendants' 63 Motion to Dismiss. Signed by District Judge Stephen J. Murphy, III. (DPar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
PETER HUDSON,
Plaintiff,

Case No. 2:16-cv-12369

v.

HONORABLE STEPHEN J. MURPHY, III

CITY OF HIGHLAND PARK, MICHIGAN,
et al.,
Defendants.
/
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART HIGHLAND
PARK DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS [62]
AND GRANTING LEONA GROUP DEFENDANTS' MOTION TO DISMISS [63]
After the City of Highland Park terminated Plaintiff Peter Hudson's employment,
Hudson filed suit against Defendants City of Highland Park, Highland Park Fire Chief Derek
Hillman, Highland Park Human Resources Director Makini Jackson, the Leona Group, LLC,
and Carmen Willingham. Hudson raised eight causes of action based on religious
discrimination and related state-law contract and invasion-of-privacy claims. The Highland
Park Defendants moved for judgment on the pleadings or to dismiss and the Leona Group
Defendants moved to dismiss. For the reasons stated below, the Court will grant in part and
deny in part the Highland Park Defendants' motion and will grant the Leona Group
Defendants' motion.
BACKGROUND
The City of Highland Park employed Hudson as a full-time firefighter. Also, Hudson
worked part-time for Leona Group, LLC (at the Highland Park Renaissance Academy, a
local charter school) as a handyman and coach. Hudson alleges that Hillman and Jackson
suspended his employment because he claimed pay as a Fire Engine Operator, and then

terminated his employment because he had claimed to work for the Leona Group while he
was working for the Fire Department.
Hudson alleges that Leona Group principal Carmen Willingham provided his
timesheets—without his permission— to Hillman and Jackson. The timesheets showed that
Hudson claimed to work for Leona Group on the same week days he claimed to have
worked at the fire station. Hudson submits that he actually worked for Leona on the
weekends, and Willingham instructed him to record his weekend work as weekday work
on the timesheets because the school's payroll system would not allow her to pay him for
weekend work.
Hudson claims to be a devout Christian. He alleges that Hillman and Jackson
discharged him based on his Christian faith and his outspoken criticism of sexual
misconduct in the firehouse. Hudson contends that—as a result of sexual misconduct—his
co-workers were not present for duty during fire alarms, and neglected to maintain lifesaving equipment like oxygen tanks. After he was terminated, Hudson filed an amended
complaint. ECF 61. The Highland Park Defendants timely moved for judgment on the
pleadings or to dismiss for failure to state a claim, ECF 62, and the Leona Group
Defendants timely moved to dismiss for failure to state a claim. ECF 63.
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of a complaint for
failure to state a claim upon which relief can be granted. If a complaint's allegations are not
"sufficient 'to raise a right to relief above the speculative level,' and to 'state a claim to relief
that is plausible on its face'" then the Court must grant a motion to dismiss. Hensley Mfg.
v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009) (citation omitted) (quoting Bell Atl. Corp.
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v. Twombly, 550 U.S. 544, 555, 570 (2007)). The Court views the complaint in the light
most favorable to the plaintiff, presumes the truth of all well-pled factual assertions, and
draws every reasonable inference in favor of the non-moving party. Bassett v. Nat'l
Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008). If "a cause of action fails as
a matter of law, regardless of whether the plaintiff's factual allegations are true or not," then
the Court must grant dismissal. Winnett v. Caterpillar, Inc., 553 F.3d 1000, 1005 (6th Cir.
2009).
Rule 12(c) provides for judgment on the pleadings. The Court analyzes 12(b)(6) and
12(c) motions in the same manner because both test whether the complaint "met the
minimal requirements of notice pleading." EEOC v. J.H. Routh Packing Co., 246 F.3d 850,
855 (6th Cir. 2001).
DISCUSSION
I.

Highland Park Defendants' Motion for Judgment on the Pleadings and Motion to
Dismiss [62]
Hudson brought five claims against the Highland Park Defendants: (1) Disparate

treatment and hostile work environment as to City of Highland Park, 42 U.S.C. § 2000e-2;
(2) Disparate treatment, suspension and discharge as to City of Highland Park, 42 U.S.C.
§ 2000; (3) Deprivation of right to freedom of speech as to Hillman, Jackson, and City of
Highland Park, 42 U.S.C. § 1983; (4) Deprivation of Due Process as to Hillman, Jackson,
and the City of Highland Park, 42 U.S.C. § 1983; and (5) Breach of Contract as to City of
Highland Park. The Highland Park Defendants did not address—or dispute—whether
Hudson has alleged sufficient factual allegations to satisfy basic pleading requirements.
Rather, they argue that qualified immunity bars all of Hudson's claims.

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The qualified-immunity doctrine "'shield[s]' public officials from money-damages
liability if 'their conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.'" Citizens in Charge, Inc. v. Husted, 810
F.3d 437, 440 (6th Cir. 2016) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
"Qualified immunity 'gives ample room for mistaken judgments' by protecting 'all but the
plainly incompetent or those who knowingly violate the law.'" Chappell v. City of Cleveland,
585 F.3d 901, 907 (6th Cir. 2009) (quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991)).
"Plaintiff bears the burden of showing that defendants are not entitled to qualified
immunity." Chappell, 585 F.3d at 907. To defeat qualified immunity, the Plaintiff must
establish that "a constitutional right was violated" and "that the right was clearly
established." Id. The Court looks "first to decisions of the Supreme Court, then to decisions
of [the Sixth Circuit] and other courts within our [C]ircuit, and finally to decisions of other
circuits" to determine whether a right is clearly established. Thomas v. Cohen, 304 F.3d
563, 580 (6th Cir. 2002) (quotations omitted).
A. Count One - Religious Discrimination: Hostile Work Environment
Hudson claims that the City of Highland permitted severe and pervasive religious
harassment to occur in violation of 42 U.S.C. § 2000e-2(a)(1). ECF 61 ¶¶ 71–81. And in
arguing that qualified immunity bars Hudson's claim, the City is mistaken "because a
municipality is not entitled to qualified immunity." Pollard v. City of Columbus, 780 F.3d 395,
401 (6th Cir.), cert. denied, 136 S. Ct. 217 (2015). Highland Park "is not eligible for qualified
immunity because it is a city, not an individual." Hidden Vill., LLC v. City of Lakewood, 734
F.3d 519, 523 (6th Cir. 2013). Therefore, Highland Park's request for qualified immunity
must be denied.
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B. Count Two - Religious Discrimination: Wrongful Discharge
Hudson claims that Highland Park suspended and discharged him based on his
religion in violation of 42 U.S.C. § 2000e-2(a)(1). ECF 61 ¶¶ 82–99. Again, Highland Park's
request for qualified immunity must be denied. Pollard, 780 F.3d at 401 ("[A] municipality
is not entitled to qualified immunity[.]").
C. Count Three - Free Speech Deprivation: 42 U.S.C. § 1983
Hudson alleges that Highland Park, Hillman, and Jackson acted under color of law
to violate his First Amendment right to free speech. ECF 61 ¶¶100–08. Defendants do not
directly address this cause of action in their motion to dismiss. Rather, they argue generally
that qualified immunity precludes Hudson's claim.
As a threshold matter, "qualified immunity [is] a defense available only to individual
government officials sued in their personal capacity." United Pet Supply, Inc. v. City of
Chattanooga, 768 F.3d 464, 484 (6th Cir. 2014). "Defendants sued in their official
capacities are not eligible for qualified immunity." Barker v. Goodrich, 649 F.3d 428, 433
(6th Cir. 2011). Therefore, to the extent Hillman and Jackson seek qualified immunity in
their official capacity as Highland Park Fire Chief and Human Resources Director, their
requests must be denied.
As to personal liability, however, Hudson has not met his burden to overcome
Hillman's and Jackson's qualified immunity. Although public employees have a clearly
established constitutional right under the First Amendment to be free from retaliation
because of speech on "a matter of public concern," Connick v. Myers, 461 U.S. 138, 147
(1983), Hudson failed to plead sufficient facts to show a violation of that right. "To state a
claim for relief under § 1983 for a First Amendment retaliation claim, a plaintiff must show
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that: (1) the plaintiff engaged in protected conduct; (2) an adverse action was taken against
the plaintiff that would deter a person of ordinary firmness from continuing to engage in that
conduct; and (3) there is a causal connection between elements one and two—that is, the
adverse action was motivated at least in part by the plaintiff's protected conduct." King v.
Zamiara, 680 F.3d 686, 694 (6th Cir. 2012).
Hudson's complaint alleges that he routinely spoke out about the adverse impact of
sexual misconduct in the Fire Department: decreased morale of department personnel,
poorly maintained equipment, fire-fighters failing to respond to fire alarms, increased
response time to emergencies, reduced effectiveness in fire-fighting capability, and damage
to the department's reputation in the community. ECF 61 ¶ 103. These are issues of public
concern because they relate to the readiness of first responders to provide emergency
services. Additionally, Hudson has shown he suffered an adverse action: suspension and
termination. Id. ¶ 106. But Hudson has not sufficiently established the third
element—causation—to show a violation of his constitutional right to free speech. His
allegations that connect his discharge to his speech are conclusory. Id. ¶¶ 39, 60. Although
Hudson alleges that Hillman told another fire-fighter that "he was tired of Hudson's
complaints," id. ¶ 30, that claim alone is insufficient to show that Hillman and Jackson fired
Hudson because of his speech regarding sexual misconduct in the Fire Department. Thus,
Hillman and Jackson are entitled to qualified immunity—in their personal capacities—from
Hudson's First-Amendment claim.
D. Count Four - Deprivation of Due Process: 42 U.S.C. § 1983
Hudson alleges that Highland Park, Hillman, and Jackson violated his constitutional
right to a pre-termination notice and hearing while acting under color of law. Id. ¶¶ 109–29.
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Defendants failed to directly respond to this count and instead argue for blanket qualified
immunity.
Hudson had a property right in continued employment with the Fire Department
because his contract barred discharge without "just cause." ECF 61, PgID 1387. As a
result, Hudson had clearly established constitutional due-process rights related to his
employment. See, e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985).
When an employee has a property right in continued employment, due process requires
the state to provide pre-termination "notice of the charges against him or her, an
explanation of the employer's evidence, and an opportunity to present his or her side of the
story to the employer." Buckner v. City of Highland Park, 901 F.2d 491, 494 (6th Cir. 1990).
Hudson claims he did not receive adequate notice prior to his termination.
Specifically, Hudson alleges that he and his union representative had scheduled a meeting
with Hillman and Jackson to dispute his suspension for claiming Fire Engine Operator pay.
At the meeting, Hudson contends that—without any prior warning—Hillman and Jackson
terminated his employment because he "improperly claimed hourly wages at the [Leona
Group] school when he was actually working for the City." ECF 67, PgID 1919; see also
ECF 61 ¶ 113. Assuming his claim is true—as the Court must when reviewing the
sufficiency of the pleadings under a motion to dismiss—Hudson did not receive adequate
pre-termination notice of the reason for his discharge. Hudson's complaint sufficiently
alleges a clearly established constitutional due process violation and therefore defeats
Hillman's and Jackson's claims for qualified immunity. Lane v. City of Pickerington, 588 F.
App'x 456, 468 (6th Cir. 2014) (holding that qualified immunity was not available because
"a jury could find that [plaintiff] was terminated based on allegations not contained in the
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notice of the pre-disciplinary conference; a reasonable official would thus have known the
notice was constitutionally inadequate").
The Defendants argue that Hudson was fired for falsifying his Fire Department
timesheets, not his Leona Group timesheets. Not only does this argument fail to accept
Hudson's allegation as true, but also it "conflates the clearly established procedural right
at issue with the reason for the termination, and ignores the patent inadequacy of the
notice." Id. Regardless of why the Defendants discharged Hudson, they allegedly failed to
provide pre-termination notice and thus deprived Hudson of a "meaningful opportunity to
tell his side of the story." Id. (quoting Loudermill, 470 U.S. at 545–46). Reasonable officials
know that due process bars termination by ambush. Qualified immunity does not bar
Hudson's due process claim against Hillman and Jackson.
E. Count Five - Breach of Contract
Hudson claims that Highland Park breached his contract. ECF 61 ¶¶ 130–35.
Defendants do not address this claim other than in their general argument that all of
Hudson's claims are barred by qualified immunity. But Hudson's claim for breach of
contract against Highland Park is not precluded by qualified immunity because—as
discussed above—the doctrine does not apply to a municipality. Pollard, 780 F.3d at 401.
In sum, the Highland Park Defendants' Motion for Judgment on the Pleadings will be
granted in part and denied in part. Qualified immunity is denied to the City of Highland Park.
Hillman and Jackson receive qualified immunity—as to their personal liability only—on
Hudson's claim for First Amendment retaliation. Qualified immunity is denied to Hillman and
Jackson on Hudson's remaining claims.

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II.

Leona Group Defendants' Motion to Dismiss for Failure to State a Claim
Hudson brought three claims against the Leona Group Defendants: (1) Intentional

Interference with a Contract; (2) Public Disclosure of Private Facts; and (3) False Light
Invasion of Privacy.
A. Count Six - Intentional Interference with Contract
"[T]he elements of tortious interference with contract are (1) the existence of a
contract, (2) a breach of the contract, and (3) an unjustified instigation of the breach by the
defendant." Erickson's Flooring & Supply Co. v. Tembec, Inc., 212 F. App'x 558, 565 (6th
Cir. 2007). In addition, a plaintiff must prove "either 'the intentional doing of a per se
wrongful act or the intentional doing of a lawful act with malice and unjustified in law for the
purpose of invading plaintiff's contractual rights.'" Id. at 565–66 (quoting Feldman v. Green,
138 Mich. App. 360, 369 (1984)). "The essential thing is the purpose to cause the [breach
of contract]. If the actor does not have this purpose, his conduct does not subject him to
liability under this rule[.]" Knight Enters. v. RPF Oil Co., 299 Mich. App. 275, 281 (2013)
(quotations omitted).
Hudson's claim fails because he has not alleged sufficient facts to show that the
Leona Group Defendants provided the timesheets to the Highland Park Defendants "for the
purpose of invading plaintiff's contractual rights." Erickson's Flooring, 212 F. App'x at 566
(quoting Feldman, 138 Mich. App. at 369). Hudson argues, however, that he need not show
an intent to instigate the breach, so long as he shows a per se wrongful act "that is
inherently wrongful or . . . can never be justified under any circumstances." Prysak v. R.L.
Polk Co., 193 Mich. App. 1, 12–13 (1992). According to Hudson, the act of providing
inaccurate timesheets to the Highland Park Defendants, without explaining the
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context—i.e., that the weekday work listed on the timesheets was actually performed on
the weekend—was a per se wrongful act because it violated three statutes: BullardPlawecki Employee Right to Know Act, Mich. Comp. Laws § 423.505 ("If either the
employer or employee knowingly places in the personnel record information which is false,
then the employer or employee, whichever is appropriate, shall have remedy through legal
action to have that information expunged."), the Fair Labor Standards Act, 29 U.S.C. §
211(c) (requiring every employer to "make, keep, and preserve such records of the persons
employed by him"), and Title I of the No Child Left Behind Act of 2001 (20 U.S.C. §§
6301–7941 (2012)).
Hudson's argument is unavailing. The case law leaves no room for doubt: without an
intent to cause a breach, there can be no liability for intentional interference with a contract.
See, e.g., Knight, 299 Mich. App. at 280–81. Intent is not alleged and Hudson's claim must
be dismissed.
B. Count Seven - Public Disclosure of Private Facts
"This form of invasion of privacy requires that the disclosed information be highly
offensive to a reasonable person and of no legitimate concern to the public. To be
actionable, the embarrassing information generally must be revealed to the general public
or a large number of persons." Sargent v. Barbara Ann Karmanos Cancer Inst., No.
01-73666, 2003 WL 21359350, at *13 (E.D. Mich. Feb. 7, 2003) (citation omitted) (quoting
Fry v. Ionia Sentinel-Standard, 101 Mich. App. 725, 728 (1980)). The Leona Group
Defendants argue that the release of Hudson's time sheet did not include embarrassing or
highly offensive information and thus, the count fails to state a claim.

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The Court agrees. The timesheets contained wage information and did not contain
the kind of embarrassing information that could give rise to a claim for public disclosure.
See, e.g., Doe v. Mills, 212 Mich. App. 73, 80 (1995) (holding that "plaintiffs have alleged
a prima facie case of public disclosure of embarrassing private facts" based on protesters
carrying signs in public that "disclosed information publicizing [plaintiffs'] decision to have
an abortion"). Hudson argues, however, that the timesheets revealed private information
because they showed when he was away from home, and thus when his wife was home
alone, which invades the sanctuary of his home. His argument is unpersuasive because
being away from home is not information "highly offensive to a reasonable person."
Sargent, 2003 WL 21359350, at *13. His claim fails as a matter of law.
C. Count Eight - False Light
"In order to maintain an action for false-light invasion of privacy, a plaintiff must show
that the defendant broadcast to the public in general, or to a large number of people,
information that was unreasonable and highly objectionable by attributing to the plaintiff
characteristics, conduct, or beliefs that were false and placed the plaintiff in a false
position." Duran v. Detroit News, Inc., 200 Mich. App. 622, 631–32 (1993). The Leona
Group Defendants argue that Hudson only alleged the disclosure of information to Chief
Hillman. Also, they contend that the timesheet information released was not "unreasonable
and highly objectionable." Therefore, they conclude that Hudson has not met the "publicity"
or "highly objectionable" elements of a false-light claim.
The Court agrees. Hudson's allegation that Willingham provided Hillman with a copy
of the timesheets does not sufficiently state a false-light claim. Willingham did not disclose
"unreasonable or highly objectionable material." Rather, she disclosed Hudson's
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timesheets, which he filled out and verified as accurate. The timesheets showed the days
that Hudson claimed to have worked for the Leona Defendants.
Hudson responds that the timesheets were highly objectionable because they "falsely
presented him as claiming work time at school when he was really working at the Fire
Department." ECF 68, PgID 2142. But as Hudson acknowledges in his complaint, he did
in fact claim to work for the Leona Group during times when he was actually working for the
Fire Department. ECF 61 ¶ 43. Whether Willingham had a moral responsibility to explain
to the Highland Park Defendants that Hudson had actually worked on weekends is a
separate question and not for the Court to answer. The Court's inquiry is limited to whether
the facts alleged in Hudson's complaint—as a matter of law—state a claim upon which
relief may be granted. They do not, because the timesheets did not contain "highly
objectionable material," but instead merely show the time Hudson claimed to have worked
for the Leona Group Defendants. His false-light claim must be dismissed.
WHEREFORE it is hereby ORDERED that the Highland Park Defendants' Motion
for Judgment on the Pleadings [62] is GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that the Leona Group Defendants' Motion to Dismiss
[63] is GRANTED.
SO ORDERED.

Dated: June 30, 2017

s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge

I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on June 30, 2017, by electronic and/or ordinary mail.
s/David P. Parker
Case Manager
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