Ladach v. City of Romulus d/b/a City of Rolumus Police Department et al
Filing
24
ORDER granting in part and denying in part 17 Motion for Summary Judgment - Signed by District Judge Nancy G. Edmunds. (LBar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KEVIN PAUL LADACH,
Case No. 17-10554
Plaintiff,
Honorable Nancy G. Edmunds
v.
CITY OF ROMULUS d/b/a CITY OF
ROMULUS POLICE DEPARTMENT, JADIE
SETTLES, and DERRAN SHELBY,
Defendants.
/
OPINION AND ORDER DENYING IN PART AND GRANTING IN PART
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [17]
This civil rights lawsuit arises out of the discipline, suspension, and demotion of
Plaintiff Kevin Paul Ladach while employed as a police officer for Defendant City of
Romulus. Plaintiff claims that Defendants retaliated against him for exercising his First
Amendment right of access to the courts and free speech by filing an earlier lawsuit against
Defendant City of Romulus, Defendant Captain Derran Shelby, and former Chief of Police
Robert Dickerson.
Currently before the Court is Defendants' Motion for Summary
Judgement (Dkt. # 17). Defendants argue that Defendant Shelby and Defendant Jadie
Settles, Director of Public Safety for the City of Romulus, are entitled to qualified immunity.
Defendants also argue that Plaintiff did not engage in protected activity, as he did not speak
as a private citizen on a matter of public concern when he filed his prior lawsuit. Further,
according to Defendants, Plaintiff cannot establish a prima facie case of retaliation, and
Defendants' stated business reasons for their actions were legitimate and not pretextual.
For the reasons stated below, this Court DENIES IN PART Defendants' motion and
GRANTS IN PART the motion only as to the official capacity claims against Settles and
Shelby.
I.
FACTS
Plaintiff Kevin Paul Ladach is currently employed with the City of Romulus Police
Department ("RPD"). (Dkt. # 19-2, Pg ID 405). He was hired by RPD as a dispatcher in
1999. Id. at Pg ID 320. In 2003, the City of Romulus sponsored Plaintiff through the police
academy. Id. From 2003 through 2009, Plaintiff worked as an RPD road patrolman. Id.
at Pg ID 321. He was assigned to the detective bureau in 2009, and he was Detective of
the Year in 2010. Id.; Dkt. # 19-3, Pg ID 415. In July 2011, former Chief of Police Michael
St. Andre promoted Plaintiff to Road Patrol Sergeant. (Dkt. # 19-2, Pg ID 321-22). In
December 2011, after St. Andre was removed from his position following his guilty plea to
criminal charges against him, Plaintiff was reassigned to a newly created administrative
sergeant position by new Chief of Police Robert Dickerson. See id.; Dkt. # 19-7. In this
new position, Plaintiff had responsibilities in the records bureau, detective bureau, and
property and evidence room, and he was designated the Freedom of Information Act
("FOIA") coordinator for RPD. (Dkt. # 19-2, Pg ID 321-22; Dkt. # 19-4, Pg ID 422).
Defendant Captain Derran Shelby supervised detectives, including Plaintiff. See Dkt. # 194, Pg ID 327, 420.
On August 1, 2012, Plaintiff learned that an RPD officer had allegedly punched a
handcuffed arrestee in lock-up. See Dkt. # 19-2, Pg ID 324; Dkt. # 19-5, Pg ID 454; Rataj
v. City of Romulus, 306 Mich. App. 735, 740 (2014). The incident was captured on
surveillance video. (Dkt. # 19-2, Pg ID 324). A few days later, the assaulted person
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requested a copy of the surveillance video. See Dkt. # 19-5, Pg ID 454. Plaintiff made
copies of the video because he feared that it would disappear.1 See Dkt. # 19-2, Pg ID
324-25; Dkt. # 19-5, Pg ID 454-55, 458). On September 21, 2012, Plaintiff received a FOIA
request from an attorney for the surveillance video. (Dkt. # 19-2, Pg ID 411). Plaintiff
prepared the FOIA packet with the video on a disc and gave it to Dickerson. Id. at Pg ID
326. Subsequently, Shelby asked Plaintiff to meet with him and Dickerson, and they
ordered Plaintiff to destroy his copies of the video. Id. at Pg ID 325-26; Dkt. # 19-10. On
October 5, 2012, Plaintiff contacted the Michigan Attorney General's ("AG") Office to report
Dickerson's order to destroy his copies of the video, which Plaintiff believed to be evidence
of a crime. (Dkt. # 19-2, Pg ID 325; Dkt. # 19-9, Pg ID 506). On October 8, 2012, Plaintiff
gave Shelby a memo detailing his AG report. (Dkt. # 19-4, Pg ID 421; Dkt. # 19-10).
Plaintiff's contact with the AG's office was common knowledge within RPD. (Dkt. # 19-11,
Pg ID 514).
On January 9, 2013, Plaintiff reported to Dickerson that Shelby received pay for days
that he did not work. See Dkt. # 19-12; Dkt. # 19-9. Plaintiff was soon after relieved of his
duties in the detective bureau and transferred to being a road patrol sergeant. See Dkt. #
19-5, Pg ID 461-62. On January 31, 2013, Deputy Chief John Leacher issued Plaintiff an
oral reprimand for failing to check his subpoena box, which resulted in an officer going to
court and being compensated for four hours of overtime when he was no longer needed.
See Dkt. # 19-14. This was Plaintiff's first-ever discipline, and he disputed it. See Dkt. #
1
At the time, the Michigan State Police ("MSP") and the Federal Bureau of Investigation
("FBI") were investigating RPD for corruption, and several RPD officers, including St.
Andre, were eventually convicted of various criminal offenses. See Dkt. # 19-6; Dkt. #
19-7; Dkt. # 19-8.
3
19-2, Pg ID 327; Dkt. # 19-9.
Plaintiff reported to Leacher and HR that Shelby
recommended this discipline because Plaintiff reported Shelby's suspected payroll fraud.
Id.
In February 2013, Plaintiff filed a lawsuit against Dickerson, Shelby, and the City of
Romulus alleging that the defendants had retaliated against him because he refused to
destroy evidence of suspected criminal activity, reported suspected illegal activity to RPD
and the AG's Office, and exercised his free speech rights. See Dkt. # 19-5, Pg ID 463.
On September 12, 2013, Shelby ordered Lieutenant Phil Czernik to investigate
Plaintiff for an alleged failure to collect evidence. (Dkt. # 19-4, Pg ID 426; Dkt. # 19-16).
Czernik found no violations and recommended no discipline for Plaintiff. (Dkt. # 19-4, Pg
ID 426; Dkt. # 19-17). Shelby overrode Czernik's recommendation and recommended that
Plaintiff be issued a written reprimand. (Dkt. # 19-4, Pg ID 426; Dkt. # 19-18). Deputy
Chief Leacher issued Plaintiff a written reprimand. Id.; Dkt. # 19-19. Shelby testified at his
deposition that he did not know of any other time when he disciplined a subordinate in a
situation where the investigating officer found no violation. (Dkt. # 19-4, Pg ID 427). On
December 14, 2013, Leacher suspended Plaintiff for five days without pay for
insubordination after Plaintiff disobeyed Shelby's order to address a prisoner concern, was
disrespectful to Shelby, and yelled at Shelby. (Dkt. # 19-20). Plaintiff filed a grievance, and
this suspension was reduced to a two-day suspension. (Dkt. # 19-2, Pg ID 329).
In May 2014, Plaintiff, Dickerson, Shelby, and the City of Romulus settled the 2013
lawsuit. (Dkt. # 19-21). The settlement agreement required the removal of any written
reprimands and oral counseling in Plaintiff's personnel file as of May 2014. Id. at Pg ID
564; Dkt. # 19-2, Pg ID 327-28. It also required the removal of the five-day suspension if
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Plaintiff had no further disciplinary action taken against him during the course of his
employment within that year. (Dkt. # 19-21, Pg ID 564).
On August 27, 2014, Plaintiff was promoted to Lieutenant. (Dkt. # 19-22). This
promotion was mandated by a letter of understanding, signed in October 2012, between
Plaintiff's union and the City of Romulus. See Dkt. # 19-23. Captain Joshua Monte
became Plaintiff's direct supervisor. (Dkt. # 19-2, Pg ID 332). However, Plaintiff still
received some correspondence from Captain Shelby about police report corrections. Id.
In November 2014, Defendant Jadie Settles became the Director of Public Safety at
RPD. See Dkt. # 19-24; Dkt. # 19-2, Pg ID 330; Dkt. # 17-5, Pg ID 175. Settles joined the
City of Romulus while Dickerson was the mayor's Chief of Staff. (Dkt. # 17-5, Pg ID 175).
Settles had previously worked with Dickerson at the Wayne County Sheriff's Office for 25
years, and the two are friends, play golf together one to two times per month, and socialize
occasionally. Id. at Pg ID 174-75, 191. Dickerson had told Settles at least some details
about Plaintiff's 2013 lawsuit. (Dkt. # 17-5, Pg ID 192).
On November 15, 2014, Plaintiff ordered the termination of a police chase. See Dkt.
# 19-25. Shelby ordered Sergeant Roger Salwa to investigate Plaintiff's performance as
shift commander during that incident. (Dkt. # 19-2, Pg ID 377-78; Dkt. # 19-4, Pg ID 446).
Salwa found no violation or wrongdoing on Plaintiff's part. (Dkt. # 19-2, Pg ID 377; Dkt. #
19-4, Pg ID 446). Plaintiff testified that Salwa told him in confidence that, after he
completed his investigation, Shelby asked Salwa to look harder to try to find some violation
by Plaintiff. (Dkt. # 19-2, Pg ID 377). According to Plaintiff, this is the first and only time
he is aware of that a sergeant, a subordinate officer, has been ordered to investigate a
lieutenant, a superior officer, at RPD. (Dkt. # 19-25, Pg ID 577).
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In February 2015, Plaintiff met with Settles and spoke to him about the 2013 lawsuit.
See Dkt. # 19-2, Pg ID 336-37; Dkt. # 17-5, Pg ID 178. Settles asked Plaintiff if he could
put all that behind him and get along with Shelby, and Plaintiff replied that he could not.
(Dkt. # 19-2, Pg ID 337; Dkt. # 17-5, Pg ID 178). Settles testified that he was disappointed
with Plaintiff's response. (Dkt. # 17-5, Pg ID 178). According to Plaintiff, this is when his
relationship with Settles completely changed and became retaliatory. (Dkt. # 19-2, Pg ID
337). Settles spoke with Shelby, and Shelby confirmed that he had been grooming Plaintiff
to be a supervisor but that their relationship deteriorated around the time of the MSP and
FBI investigations into RPD.
(Dkt. # 17-5, Pg ID 179).
Settles began monitoring
interactions between Shelby and Plaintiff in order to determine whether any future discipline
issued to Plaintiff from Shelby was warranted. Id.
On March 17, 2015, Plaintiff and Lieutenant Damian Hull were ordered to send an
officer to the Romulus library to read to children. (Dkt. # 19-26; Dkt. # 19-11, Pg ID 525).
When no officer showed, Shelby received a call from the library and may have told Monte.
(Dkt. # 19-4, Pg ID 438). Monte issued Plaintiff a written reprimand and issued Hull an oral
reprimand. (Dkt. # 19-2, Pg ID 323, 361; Dkt. # 19-11, Pg ID 525; Dkt. # 19-26; Dkt. # 1927). Monte did not discuss the discipline with anyone before issuing the reprimands. (Dkt.
# 19-11, Pg ID 526). Monte testified that he gave Plaintiff a written reprimand because he
had a few oral reprimands in the years before the library incident. Id. at Pg ID 525. Plaintiff
notes that all prior written and oral reprimands had been removed from his personnel file
per the settlement agreement, and that Hull had received a discipline prior to the library
incident. See Dkt. # 19-28. Plaintiff acknowledged that he let the City of Romulus down
when he failed to send an officer to the library for an important event. (Dkt. # 19-2, Pg ID
6
361-62). Nevertheless, Plaintiff asked Settles why he was given a harsher discipline than
Hull for the same infraction. Plaintiff complained that Shelby was harassing him because
Plaintiff filed his 2013 lawsuit.
Id. at Pg ID 341-42.
According to Plaintiff, Settles
responded that Hull should have probably received a written reprimand as well. Id. at Pg
ID 362. Settles reduced Plaintiff's discipline to an oral reprimand. Id. at 363; Dkt. # 17-5,
Pg ID 177.
On April 2, 2015, Shelby issued Plaintiff a written reprimand because Plaintiff failed
to sign subpoenas. (Dkt. # 19-29; Dkt. # 19-2, Pg ID 343; Dkt. # 19-4, Pg ID 439-40).
Although Shelby was not Plaintiff's direct supervisor at the time, Shelby testified that he
issued the discipline because the incident directly impacted his operations. (Dkt. # 19-4,
Pg ID 440). Plaintiff admits that he did forget to put his signature on the subpoenas. (Dkt.
# 19-2, Pg ID 343). Sergeant Labrit Jackson received oral counseling for this same
infraction. Id. at Pg ID 367; Dkt. # 19-4, Pg ID 440. According to Plaintiff, in September
2014, Shelby ordered him to conduct an investigation into subpoena violations. (Dkt. # 1925, Pg ID 577). Plaintiff investigated and reported that Sergeant Derek Turner had violated
the subpoena protocol, but Turner was never disciplined for this particular infraction.2 Id.;
Dkt. # 19-2, Pg ID 367. Shelby testified that the other officers immediately corrected their
behavior with regard to the subpoena protocol and did not make excuses, unlike Plaintiff.
(Dkt. # 19-4, Pg ID 440-41). Settles reduced Plaintiff's discipline to an oral reprimand.
(Dkt. # 17-5, Pg ID 178). Regarding the two discipline reductions, Settles testified that, in
his opinion, the original disciplines were warranted but that he was new to RPD and wanted
2
Turner was, however, subsequently demoted and terminated based on 37 charges
against him for a variety of violations. (Dkt. # 17-5, Pg ID 186).
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to show the officers that everyone could start fresh and move forward under his leadership.
Id. at Pg ID 179.
On April 20, 2015, Shelby issued Plaintiff a written reprimand because Plaintiff did not
return a police report correction to Shelby quickly enough. (Dkt. # 19-2, Pg ID 343).
Shelby testified that he, and not Monte, issued this discipline because the report and
investigation impacted Shelby's area of responsibility. (Dkt. # 19-4, Pg ID 443). Monte
testified that Shelby oversaw report corrections for all of RPD. (Dkt. # 19-11, Pg ID 522).
The report was authored by Sergeant Eric Harris, and Plaintiff gave the report back to him
for correction. (Dkt. # 19-2, Pg ID 344). The corrections were completed 3-4 weeks later.
Id. Plaintiff testified that report corrections should be done as quickly as possible. (Dkt. #
19-2, Pg ID 343-44). His response to Shelby was that Harris had advised him that he had
made multiple attempts to contact the suspect for a statement and never received an
answer. (Dkt. # 19-4, Pg ID 443). Shelby testified that, in his opinion, Plaintiff had
accepted an insufficient explanation from Harris. Id. at Pg ID 444. Plaintiff took a
photograph of a file cover sheet to show that another Lieutenant, Hull, was not being
reprimanded for a report correction that had been outstanding for many months. (Dkt. #
19-30, Pg ID 587; Dkt. # 19-2, Pg ID 345-49). Plaintiff complained to Settles and Shelby
that he was the only command officer being singled out for this kind of retaliatory discipline
and pointed out Hull's report correction that had been outstanding for much longer. (Dkt.
# 19-2, Pg ID 345-49). Settles and Shelby responded that Plaintiff needed to just worry
about himself. Id. Shelby and Monte testified that Hull was having a problem with Turner
not completing report corrections in a timely manner, and that Hull talked to Shelby and
Monte about this issue several times. (Dkt. # 19-4, Pg ID 444; Dkt. # 19-11, Pg ID 530-32).
8
Turner was disciplined for failure to timely complete reports and report corrections, which
was part of his termination. (Dkt. # 19-11, Pg ID 530-31). Hull received a written
reprimand for failing to document the issue Turner had regarding report corrections. Id. at
Pg ID 530.
According to Shelby, the other Lieutenants were never late on report
corrections and did not make excuses. (Dkt. # 19-4, Pg ID 444).
In August 2015, Plaintiff reported probationary dispatcher Sarah Rodriguez's job
performance issues to Monte and Salwa at a staff meeting. Plaintiff was on vacation at the
time and offered to document the issues upon his return, but Monte told him not to worry
about it and that he would have another officer do it. (Dkt. # 19-2, Pg ID 382). On
September 4, 2015, Monte ordered Plaintiff to answer questions in writing about
Rodriguez's job performance issues, and about any bullying behavior displayed by several
other officers on Plaintiff's shift. (Dkt. # 19-35).
On September 15, 2015, Plaintiff
responded that Rodriguez felt harassed by Settles and Shelby when they repeatedly asked
her for call times. (Dkt. # 19-34, Pg ID 616). Plaintiff further wrote that Rodriguez told him
that Settles gave her "the creeps" when he sat down next to her, leaned on a table and
stated, "Let me holla at you." Id. Plaintiff admits that he failed to document in writing
Rodriguez's performance issues and failed to report or document in writing her feelings of
being harassed and "creeped out" by Settles. (Dkt. # 19-2, Pg ID 371-75). However,
Plaintiff maintains that he did not need to document any complaint of harassment because
he witnessed the entire incident between Rodriguez and Settles, and it did not meet the
City's definition of harassment. Id. at Pg ID 371. Settles testified that when he read
Plaintiff's answers he immediately wanted an investigation because he did not want any
complaints of harassment against him. (Dkt. # 17-5, Pg ID 180). Rodriguez subsequently
9
denied ever being harassed by any member of RPD. (Dkt. # 19-38; Dkt. # 19-11, Pg ID
523).
On September 29, 2015, Settles ordered Plaintiff to appear for a disciplinary Director's
Hearing. (Dkt. # 19-37). Monte testified that he initiated the request for a Director's
Hearing without input from Shelby. (Dkt. # 19-11, Pg ID 522). Monte wanted to lay out the
problems that were going on with Plaintiff's shift that were not being rectified. Id. at Pg ID
521. According to Monte, these included officers not using the K-9s in the way they were
supposed to be utilized; officers with performance issues, including problems with response
time; officers not being courteous to other officers; Plaintiff's lack of trust in his superiors
and not being receptive to coaching from any of his superiors; and Plaintiff's failure to hold
the officers in his shift accountable for their productivity and attitudes; and the issues with
Rodriguez. Id. at Pg ID 517-21. According to Monte, Plaintiff was not responding to
progressive discipline, and Plaintiff's shift was the only one with officers who were not
getting along. Id. at Pg ID 521; see Dkt. # 19-33.
The Director's Hearing was held on October 7, 2015, and Settles found Plaintiff guilty
of the following policy violations:
Count I
Failed to take appropriate actions and corrective measures with a probationary
employee whose work performance was unsatisfactory.
Failed to document and properly address radio issues with appropriate
discipline.
Failed to document and properly address Probationary Employee who
displayed attitude issues.
Count II
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Lacks the competency to perform the duties and assume the responsibilities
of Shift Lieutenant in a manner that is consistent with the functions and goals
of the department.
Fail's [sic] to monitor, evaluate and take corrective measures for low
performing officers.
Fail's [sic] to take initiative to correct deficiencies within his authority and report
deficiencies in all matters beyond his authority to his commanding officers.
Fails to work in Unisom [sic] and cooperate with upper command and
administrators to seek ways to deliver effective, lawful, efficient, safe services
to the general public and to accomplish the Mission of the Romulus Police
Department which is needed in today [sic] society.
(Dkt. # 19-39; Dkt. # 19-40).
On October 16, 2015, Settles signed an Order of Discipline suspending Plaintiff for
30 days without pay and demoting him from Lieutenant to patrolman. (Dkt. # 19-40).
Shelby also signed this Order as a witness. Id. Shelby testified that he did not recommend
this discipline, and that Settles never spoke with him regarding the decision to impose this
discipline nor did he ask Shelby's opinion about this discipline. (Dkt. # 17-6, Pg ID 237).
Plaintiff's union filed a grievance, and the matter was submitted to binding arbitration. See
Dkt. # 19-41; Dkt. # 19-42. Chief of Staff Dickerson reduced Plaintiff's discipline to a 30day suspension without pay and demotion from Lieutenant to Sergeant. (Dkt. # 17-10; Dkt.
# 19-2, Pg ID 330-31).
On October 13, 2015, Shelby asked Plaintiff to complete a misdemeanor warrant
request packet. (Dkt. # 19-31; Dkt. # 19-2, Pg ID 352). Plaintiff did not understand why
Shelby sent him the packet because the incident involved a felony, and the detective
bureau completes all felony warrant packets. (Dkt. # 19-2, Pg ID 352; Dkt. # 19-11, Pg ID
533-34; Dkt. # 17-5, Pg ID 188-89). Plaintiff reported to Monte that Shelby was retaliating
11
against him by creating unnecessary work for him before finding out whether the prosecutor
wanted to charge the incident as a felony or misdemeanor. (Dkt. # 19-32; Dkt. # 19-2, Pg
ID 353). Shelby testified that he sent this case to Plaintiff because the case involved
domestic violence, and the prosecutor had suggested it be handled at the local level. (Dkt.
# 19-4, Pg ID 447). Monte testified that he asked Shelby about this, and Shelby told him
that the prosecutor had requested that a misdemeanor warrant packet be submitted. (Dkt.
# 19-11, Pg ID 533). Settles assigned an internal affairs detective to investigate this
incident after Plaintiff complained, and the detective concluded that Shelby had not violated
any policies. (Dkt. # 17-5, Pg ID 188).
On September 22, 2016, the arbitrator concluded that the discipline issued following
the Director's Hearing was extreme and unwarranted:
[T]he Director of Public Services issued an extreme form of discipline. The
demotion from Lieutenant to Patrol Officer and a thirty (30) days suspension,
without pay, was guaranteed to cause Grievant to lose thousands of dollars in
the course of his career . . . After a thorough review of the record, I find that the
City has not sustained its burden of proof for establishing just cause for a
demotion and a thirty (30) day suspension without pay. . . . [T]he evidence
established that Grievant did not always communicate properly but it is not true
that he had no idea about what was going on during his shift, or that he
deliberately neglected his duties.
(Dkt. # 19-41, Pg ID 644, 646). The arbitrator further found that Rodriguez's harassment
complaint was not made as a formal complaint and did not qualify as harassment as
prohibited by City policy. While Plaintiff did not document Rodriguez's performance issues
or discipline her, the arbitrator noted that he attended a meeting while on vacation to speak
to a supervisor about Rodriguez, and they agreed to return her to training. Id. at Pg ID 647.
The arbitrator found that Plaintiff's supervision and attempts to improve Rodriguez's
12
performance were appropriate. Id. at Pg ID 648. Regarding Plaintiff's trust issues with his
commanding officers and discipline record, the arbitrator concluded as follows.
Grievant told the Director he did not trust management and thought he was
being retaliated against because of the lawsuit he had previously filed against
the City that had been settled. Grievant told the Director that one of the two
Department Captains had refused to speak to him ever since. The Director
found this most disturbing and considered Grievant unfit to be part of the
management team. . . .
During the Director's hearing Grievant told the Director that he did not trust him
or the two Captains in his chain of command. He stated he thought he was
being singled out and disciplined for things that other Lieutenants did and
received no discipline. This caused the Director to conclude that Grievant was
not an effective member of the management team and tended to blame others
for his deficiencies rather than cooperating with Command Officers and
administrators to provide the best service possible. On this issue, I note it
came up at the hearing at a time when emotions were elevated. This perhaps,
explains the severity of the Grievant's discipline. In the final analysis, however,
I find that Grievant's views about his Captains and Director are not legitimate
grounds for extreme discipline until they adversely affect his performance in a
serious way. Under the facts of this case, Grievant's performance was not
perfect, but I find there was no just cause for severe discipline. A review of his
record also does not provide just cause for severe discipline. Grievant was
reprimanded three times in the spring of 2015. At the time [h]e had been a
Lieutenant for less than a year. Nothing in the record suggests a repeat of
these problems so I find they are not just cause for the discipline at issue here.
There is also some accusation that Grievant did not properly investigate a dent
in a police car and also did not properly assign the K-9 Unit on his shift.
However, no discipline was imposed for these alleged deficiencies and again,
I find they are not grounds for severe discipline.
Id. at Pg ID 648. Plaintiff was restored to Lieutenant, given back pay, and issued a written
reprimand. See id. at Pg ID 649; Dkt. # 19-2, Pg ID 331, 387-88. In December 2016, the
union and the City of Romulus agreed that Shelby and Settles would limit their contact with
Plaintiff "until such time as there is a final disposition of the hostile work environment
complaint." (Dkt. # 19-43).
II.
STANDARD OF REVIEW
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It is well established that summary judgment under Federal Rule of Civil Procedure
56 is proper when the movant “shows that there is no genuine dispute as to any material
fact, and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
S.E.C. 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)) (quotation marks 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. Furthermore,
the “substantive law will identify which facts are material, and summary judgment will not
lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id. When considering the
material facts on the record, a court must bear in mind that “[t]he mere existence of a
scintilla of evidence in support of the plaintiff's position will be insufficient; there must be
evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at
252. The nonmoving party's version of the facts must be relied upon unless blatantly
contradicted by record evidence, such as a video recording. Scott v. Harris, 550 U.S. 372,
378, 380-81 (2007).
III.
ANALYSIS
A. Whether Plaintiff Can Establish a Prima Facie Case of Retaliation
In a constitutional retaliation case, the plaintiff has the burden of establishing a prima
facie case, which consists of three elements: (1) the plaintiff engaged in a constitutionally
protected activity; (2) the defendant took an adverse action which caused the plaintiff to
suffer an injury that would likely chill a person of ordinary firmness from continuing to
engage in that activity; and (3) the adverse action was motivated at least in part by the
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plaintiff's protected conduct. Jenkins v. Rock Hill Local Sch. Dist., 513 F.3d 580, 585-86
(6th Cir. 2008); Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). "If the
plaintiff meets this burden, the burden of production shifts to the defendant, . . . but if the
defendant can show he would have taken the same action in the absence of the protected
activity, he is entitled to summary judgment." Jenkins, 513 F.3d at 586 (citing Thaddeus-X,
175 F.3d at 399). In this case, the parties dispute the first and third elements of the prima
facie case.
1. Whether Plaintiff Engaged in Constitutionally Protected Activity
Defendants argue that Plaintiff did not engage in First Amendment protected activity
when he filed his 2013 lawsuit because he did not speak as a citizen on a matter of public
concern, but rather, complained of an employment dispute related to matters involving his
job duties.
Plaintiff responds that he filed his lawsuit as a citizen, not as an employee. He
maintains that filing a lawsuit alleging that RPD leadership ordered him to destroy evidence,
obstruct justice, and cover up an assault of a private citizen by an officer, as well as
monitoring Shelby's payroll records and reporting suspected fraud, were not part of
Plaintiff's official job duties as a detective or FOIA coordinator. Plaintiff further argues that
his speech and lawsuit were matters of public concern because they concerned the coverup of a prisoner assault, theft of public funds, and obstruction of justice by RPD officers.
Plaintiff notes that when he filed his lawsuit, RPD was under investigation for
embezzlement, mishandling evidence, and other potential crimes.
A public employee does not relinquish all his First Amendment rights by virtue of
government employment. Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will Cnty.,
15
Ill., 391 U.S. 563, 568 (1968). However, when a public employee sues a government
employer under the First Amendment Speech Clause and/or Petition Clause, the employee
must show that he or she spoke as a citizen on a matter of public concern rather than as
an employee on a matter only of personal interest. Borough of Duryea, Pa. v. Guarnieri,
564 U.S. 379, 386, 398-99 (2011). Courts must balance the interest of an employee, as
a citizen, in commenting upon matters of public concern and the interest of the State, as
an employer, in promoting the efficiency of the public service it performs through its
employees. Pickering, 391 U.S. at 568. This balancing approach "reflects both the
historical evolvement of the rights of public employees, and the common sense realization
that government offices could not function if every employment decision became a
constitutional matter." Connick v. Myers, 461 U.S. 138, 143 (1983). The balancing
approach also recognizes that "public employees are often the members of the community
who are likely to have informed opinions as to the operations of their public employers,
operations which are of substantial concern to the public." City of San Diego, Cal. v. Roe,
543 U.S. 77, 82 (2004).
With these principles in mind, the Court must determine whether Plaintiff engaged in
constitutionally protected activity by answering: (i) whether Plaintiff spoke as a citizen; (ii)
whether Plaintiff spoke on a matter of public concern; and (iii) whether Plaintiff's speech
interest in commenting on matters of public concern outweighs the interest of the State, as
an employer, in promoting the efficiency of the public services it performs through its
employees. See Mayhew v. Town of Smyrna, Tenn., 856 F.3d 456, 462 (6th Cir. 2017).
i. Whether Plaintiff Spoke as a Citizen
16
Public employees do not speak as citizens for First Amendment purposes when they
make statements pursuant to their official duties, in which case the Constitution does not
insulate their communications from employer discipline. Garcetti v. Ceballos, 547 U.S. 410,
421 (2006); Weisbarth v. Geauga Park Dist., 499 F.3d 538, 543 (6th Cir. 2007). The
content of an employee's speech informs the threshold inquiry of whether the speech was
made pursuant to an employee's official duties. Weisbarth, 499 F.3d at 545. "[T]he mere
fact that a citizen's speech concerns information acquired by virtue of his public
employment does not transform that speech into employee—rather than citizen—speech.
The critical question under Garcetti is whether the speech at issue is itself ordinarily within
the scope of an employee's duties, not whether it merely concerns those duties." Lane v.
Franks, 134 S. Ct. 2369, 2379 (2014). In Lane, the Supreme Court stressed that the
importance of public employee speech is especially evident in the context of a public
corruption scandal. Id. at 2380.
In this case, Plaintiff filed a lawsuit in 2013 alleging that the City of Romulus,
Dickerson, and Shelby retaliated against him in violation of his First Amendment rights
because he reported suspected unlawful activity to the Michigan AG's Office, refused to
destroy a video of a fellow officer assaulting an arrestee, and reported to the City of
Romulus Human Resources Department that he believed Shelby had received pay for time
that he did not work. Filing such a lawsuit was clearly outside of Plaintiff's ordinary duties
as an RPD officer and FOIA coordinator, which included processing FOIA requests and
preserving police videos. Plaintiff was not employed to file such a lawsuit. Although they
concerned information acquired by virtue of Plaintiff's public employment, the statements
in Plaintiff's 2013 lawsuit were not made pursuant to Plaintiff's official duties as a detective
17
or FOIA coordinator. The mere fact that Plaintiff's 2013 complaint referenced some of
Plaintiff's job duties did not transform the lawsuit into employee speech. See Garcetti, 547
U.S. at 421-22 (noting that the controlling factor in determining that the employee did not
speak as a citizen was that he wrote his internal memo because that was part of what he
was employed to do, and distinguishing Pickering where the employee spoke as a citizen
when he wrote a letter to a newspaper which had no official significance and bore
similarities to letters regularly submitted by other citizens).
In Handy-Clay v. City of Memphis, Tenn., 695 F.3d 531, 542 (6th Cir. 2012), the Sixth
Circuit determined that the employee spoke as a citizen because her speech concerned
improper use of funds; the speech was directed to an audience both inside and outside of
her department; the speech directed to individuals outside of her department was clearly
not part of her official duties; the employee was not asked to investigate or give her opinion
on the alleged misconduct; and her comments were extraordinary rather than everyday
communications. The same reasoning applies in this case. Plaintiff's speech concerned
improper use of funds when Shelby was allegedly paid for time that he did not work, as well
as suspected corruption in order to cover up an officer's assault on a handcuffed arrestee.
The lawsuit was not internal communication within Plaintiff's department; rather, it became
a part of the public record when it was filed in federal court, and filing it was not part of
Plaintiff's official duties. Plaintiff was not asked to investigate or give his opinion on the
alleged misconduct, and the filing of the lawsuit was an extraordinary rather than everyday
work communication. Accordingly, the Court concludes that Plaintiff spoke as a citizen
when he filed his 2013 lawsuit.
ii. Whether Plaintiff Spoke on a Matter of Public Concern
18
"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
whole record."
Connick, 461 U.S. at 147-48.
However, courts do not look at the
employee's motivation for speaking in making this determination. Handy-Clay, 695 F.3d
at 543-44. A matter of public concern is a subject of legitimate news interest and of general
political or social interest and value to the public at the time of publication. Roe, 543 U.S.
at 83-84; Lane, 134 S. Ct. at 2380. "[P]ublic interest is near its zenith when ensuring that
public organizations are being operated in accordance with the law, when exposing graft
and corruption, and when seeing that public funds are not purloined or wasted."
Handy-Clay, 695 F.3d at 543 (internal quotation marks omitted) (quoting Chappel v.
Montgomery Cnty. Fire Prot. Dist. No. 1, 131 F.3d 564, 576 (6th Cir. 1997)). Speech that
addresses failure to follow state law, major state policy decisions, or discrimination also
addresses a matter of public concern. See Boulton v. Swanson, 795 F.3d 526, 532 (6th
Cir. 2015) (collecting cases). In contrast, mere assertions of incompetence and poor
management decision-making are run-of-the-mill employment disputes and do not address
a matter of public concern. Id. Similarly, speech regarding internal departmental morale
or performance of or change in an employee's own duties is not a matter of public concern.
See Weisbarth, 499 F.3d at 547. "It is not necessary for the entire expression [at issue] to
address matters of public concern, as long as some portion of the speech does." Mayhew,
856 F.3d at 467-68 (internal quotation marks and citations omitted) (noting that the
employee's complaint e-mail included a personal grievance about a disliked supervisor and
bleak future job prospects as well as allegations that the town had failed to follow its own
19
hiring policies when it allegedly promoted two unqualified individuals, and concluding that
the employee complaint constituted speech about a public concern).
Plaintiff's 2013 complaint alleged that the City of Romulus, Dickerson, and Shelby
retaliated against him in violation of his First Amendment rights because he reported
suspected unlawful activity to the Michigan AG's Office, refused to destroy a video of a
fellow officer assaulting an arrestee, and reported to the City of Romulus Human
Resources Department that he believed Shelby had received pay for time that he did not
work. It further alleged that Dickerson had not commenced a timely investigation of the
alleged prisoner assault, had denied the victim's request for the video of the alleged
assault, had informed Plaintiff that he did not want to give the video to the victim so the
victim could utilize the services of an attorney to complete a complaint packet, and had
ordered Plaintiff to destroy the digital copy of the video from Plaintiff's RPD computer.
According to the 2013 complaint, Plaintiff reported suspicions of a possible cover-up to the
AG's Office. Plaintiff also reported to the City of Romulus Human Resources Department
that he believed Shelby had received pay for time that he did not work. In his 2013
complaint, Plaintiff claimed that the defendants retaliated against him by transferring him
from the detective bureau to road patrol sergeant, which caused him to lose a 5% pay
increase, the Detective title, his City vehicle and City cell phone, more desirable work shifts,
and the privilege of scheduling his own overtime. A fair reading of the 2013 complaint
indicates that, while it contained a personal grievance regarding the transfer and loss of
certain benefits, it also contained allegations of a cover-up and corruption at RPD involving
the mistreatment of a detained arrestee, as well as misuse of public funds. The allegations
of a cover-up, corruption, and misuse of public funds are matters of public concern, and
20
Plaintiff's lawsuit informed the public about important aspects of RPD's functioning and
operations and exposed alleged governmental inefficiency and misconduct, regardless of
Plaintiff's motivation for filing his complaint, and regardless of the fact that a portion of the
lawsuit addressed a personal grievance. See Lane, 134 S. Ct. at 2380; Roe, 543 U.S. at
84; Handy-Clay, 695 F.3d at 543-44; Boulton, 795 F.3d at 532; Mayhew, 856 F.3d at 46768. The forum in which Plaintiff's lawsuit was filed, federal court, also supports the
conclusion that it related to a matter of public concern. See Guarnieri, 564 U.S. at 398.
The lawsuit was addressed to a public audience, filed outside of the workplace, and
involved some content outside of Plaintiff's duties as an RPD employee. See United States
v. Nat'l Treasury Emps. Union, 513 U.S. 454, 466 (1995). The Court concludes that
Plaintiff spoke on a matter of public concern.
iii. Whether Plaintiff's Speech Interest Outweighs the State's Interest in
Promoting Efficiency
As the Sixth Circuit has explained,
In order to justify a restriction on speech of public concern by a public
employee, [the] plaintiff's speech must impair discipline by superiors, have a
detrimental impact on close working relationships, undermine a legitimate goal
or mission of the employer, impede the performance of the speaker's duties,
or impair harmony among co-workers. The state bears the burden of showing
a legitimate justification for the [restriction]. [Courts] look for evidence of the
impact of the statement on the city's legitimate organizational interests.
Brandenburg v. Hous. Auth. of Irvine, 253 F.3d 891, 899 (6th Cir. 2001) (quoting Meyers
v. City of Cincinnati, 934 F.2d 726, 730 (6th Cir. 1991)).
In this case, Defendants do not argue that Plaintiff's 2013 lawsuit disrupted the
efficient operation of RPD, and there is no evidence in the record to suggest that was the
21
case. The record indicates that following the filing of his lawsuit, Plaintiff continued to
perform his duties and was promoted shortly after the lawsuit settled. The Court concludes
that, in this case, Plaintiff's speech interest in commenting on matters of public concern
outweighed RPD's interest in promoting the efficiency of the public services it performs
through its officers.
The Court further concludes that Plaintiff's exercise of his First Amendment right to
petition and speak on issues of public concern when he filed his 2013 lawsuit is therefore
constitutionally protected from retaliation.
2. Whether Plaintiff's Prior Lawsuit was a Substantial Motivating Factor in
the Adverse Employment Actions
To establish his prima facie case of retaliation, Plaintiff must next show that the
adverse actions he complains of were motivated at least in part by his protected conduct,
the filing of his 2013 lawsuit.
Defendants argue that there is no temporal proximity between the 2013 lawsuit and
the suspension and demotion in October 2015. Defendants further argue that there is no
causal nexus between the 2013 lawsuit and the 2015 suspension and demotion because
it was Monte who initiated the request for a Director's Hearing in 2015 after noticing several
issues with Plaintiff's performance, without input from Shelby, and because Monte and
Settles were not parties to the prior suit and Settles was not yet employed by the City of
Romulus at the time. Defendants note that Plaintiff does not claim that Monte had any
retaliatory animus against him. Defendants further note that Settles attempted to work with
Plaintiff and reduced two written reprimands to oral reprimands at Plaintiff's request. Citing
Vereecke v. Huron Valley Sch. Dist., 609 F.3d 392 (6th Cir. 2010), Defendants also
22
maintain that there is not sufficient evidence to permit an inference of retaliatory motive
because they had ample legitimate reason to suspend and demote Plaintiff.
Plaintiff responds that he was subjected to unwarranted investigations, disciplines,
and demotions because of his 2013 lawsuit. He argues that Shelby resented him for filing
his 2013 lawsuit and subjected him to retaliation and influenced the adverse employment
actions against Plaintiff after the lawsuit settled. Plaintiff maintains that there is a genuine
issue of material fact because Plaintiff was disciplined differently and more harshly than
other officers who engaged in the same violations.
To establish the causation element of a prima facie case of constitutional retaliation,
the plaintiff must show that the exercise of the protected right was a substantial or
motivating factor in the defendant's alleged retaliatory conduct. Rondigo, L.L.C. v. Casco
Twp., Mich., 330 F. App'x 511, 523 (6th Cir. 2009). "A 'motivating factor' is essentially butfor cause—without which the action being challenged simply would not have been taken."
Vereecke, 609 F.3d at 400 (internal quotation marks and citations omitted). If an individual
defendant's animus against a coworker's exercise of First Amendment rights is a link in the
causal chain that leads to the adverse employment action, the individual defendant may
be liable even if he is not the final decisionmaker. See Sims v. City of Madisonville, 894
F.3d 632, 639-40 (5th Cir. 2018) (collecting cases and explaining that individual liability for
a government official who violates constitutional rights turns on traditional tort principles of
but-for causation). An adverse employment action taken in retaliation for the exercise of
a constitutionally protected right is actionable even if the act would have been proper had
it been taken for a different reason. See Hazel v. Quinn, 933 F. Supp. 2d 884, 888 (E.D.
Mich. 2013) (citations omitted).
23
In determining whether a causal connection exists, courts can look to circumstantial
evidence, including the timing of events and disparate treatment of similarly situated
individuals. Id. "[T]he more time that elapses between the protected activity and the
adverse employment action, the more the plaintiff must supplement his claim with other
evidence of retaliatory conduct to establish causality." Id. (internal quotation marks
omitted) (quoting Mickey v. Zeidler Tool & Die Co., 526 F.3d 516, 524-25 (6th Cir. 2008)).
The plaintiff must "point to specific, nonconclusory allegations reasonably linking her
speech to employer discipline." Rodgers v. Banks, 344 F.3d 587, 602 (6th Cir. 2003)
(internal quotation marks and citations omitted).
Viewing the facts in the light most favorable to Plaintiff and drawing all reasonable
inferences in his favor, the record indicates as follows. Plaintiff maintained an unblemished
employment record with RPD for fourteen years, including being recognized in 2010 as
Detective of the Year and various promotions in 2003, 2009, and 2011. All of the problems
at issue in this case occurred in the three years after Plaintiff filed his 2013 lawsuit. Shelby
recommended that Plaintiff receive his first-ever discipline three months after Plaintiff
contacted the AG's Office regarding the suspected assault cover-up and a few weeks after
Plaintiff reported that Shelby had received pay for time he did not work; these incidents
were the precise subject of the lawsuit, which Plaintiff filed in February 2013. Seven
months after the filing of the lawsuit, Shelby overrode Czernick's recommendation that
Plaintiff receive no discipline, and Plaintiff was issued a written reprimand. Shelby could
not remember any other time he overrode a recommendation of no discipline, which
permits an inference that Shelby began treating Plaintiff in a disparate manner and
heightened his scrutiny of Plaintiff's work. Three months later, Plaintiff was suspended for
24
five days for insubordination against Shelby. This suspension was reduced to two days
after Plaintiff filed a grievance, which permits an inference that the discipline Shelby
recommended was too severe.
Five months later, Plaintiff's lawsuit settled, and the settlement agreement required
the removal of prior discipline from Plaintiff's record. Three months later, Plaintiff was
promoted to Lieutenant as required by a 2012 letter of understanding between the union
and the City. Monte became Plaintiff's direct supervisor, and shortly thereafter, Settles
joined the City and became the head of RPD. In November 2014, five months after the
lawsuit settled, Shelby ordered Salwa to investigate Plaintiff's performance, the only time
a subordinate sergeant has been ordered to investigate a superior lieutenant at RPD, again
permitting an inference that Shelby continued to intensely scrutinize Plaintiff's work and
treat him differently from other officers. There is also some indication that when Salwa
found no wrongdoing on Plaintiff's part, Shelby ordered him to look harder.
Viewing the facts in the light most favorable to Plaintiff, Settles had knowledge of
Plaintiff's 2013 lawsuit when he began working for the City, because his friend Chief of Staff
Dickerson had shared at least some details with Settles. Additionally, in February 2015,
shortly after Settles started working in his new role, Plaintiff met with Settles and told him
the details of his 2013 lawsuit. Settles asked Plaintiff if he could put all of the negative
history with Shelby behind him, and Settles admitted to being disappointed when Plaintiff
responded that he could not. Plaintiff testified that this is when Settles' relationship with
Plaintiff became retaliatory. After that meeting, Settles spoke with Shelby and decided to
monitor the interactions and disciplines between Shelby and Plaintiff, which permits an
25
inference that there was reason to monitor Shelby's disciplines, and that Shelby may have
been scrutinizing Plaintiff's work to an unwarranted level.
About a month later, Shelby issued Plaintiff a written reprimand for failing to sign
subpoenas. The record indicates that Jackson and Turner also violated the RPD subpoena
protocol but received oral counseling or no discipline, indicating disparate treatment of
Plaintiff on Shelby's part. Settles reduced this discipline to an oral reprimand, permitting
the inference that the severity of the discipline that Shelby imposed on Plaintiff was
unwarranted. A few weeks later, Shelby issued Plaintiff another written reprimand for a 3-4
week delay in returning report corrections to Shelby. The record indicates that Hull had a
report correction outstanding for many months but was not disciplined for this particular
violation, indicating disparate treatment of Plaintiff on Shelby's part.
Five months later, Monte initiated a request for the Director's Hearing for reasons that
included Plaintiff's lack of trust in his superiors and Plaintiff not responding to progressive
discipline. The hearing took place about eight months after Plaintiff disappointed Settles
during their conversation about Plaintiff's 2013 lawsuit. During the hearing, Plaintiff again
raised concerns that Shelby was retaliating against him for his 2013 lawsuit by singling him
out and disciplining him more harshly than other officers. Plaintiff told Settles that Shelby
had actually refused to speak to Plaintiff ever since Plaintiff filed his lawsuit. Settles
proceeded to impose severe discipline for issues with Rodriguez—which viewing the facts
in the light most favorable to Plaintiff, Plaintiff had handled appropriately by coaching
Rodriguez and orally reporting her performance issues to Monte (as discussed in the
arbitrator's opinion)—and for Plaintiff's trust issues and inability to work in unison with upper
command. The arbitrator later concluded that there was no just cause for the severe
26
discipline that Settles imposed, which included a suspension without pay and demotion
from Lieutenant to patrolman (several ranks down). Viewing the facts in the light most
favorable to the Plaintiff, a reasonable juror could reach a similar conclusion. The arbitrator
noted that Plaintiff had been disciplined three times in the spring, had been a Lieutenant
for less than a year, and had not repeated any of the same mistakes he had been
disciplined for.
The Court concludes that Plaintiff has established a causal link between his First
Amendment protected activity and his subsequent discipline, suspension, and demotion.3
See Hamilton v. Gen. Elec. Co., 556 F.3d 428, 435-36 (6th Cir. 2009) (explaining that an
employer cannot conceal retaliatory motive by heightening its scrutiny of the employee and
waiting for or contriving an ostensibly legal basis for the adverse employment action);
Moore v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073, 1080 (6th Cir. 1999) (noting
3
Defendants rely in large part on Vereecke to argue that there is no causal link in this
case between the protected activity and the adverse employment actions. The Court finds
that Vereecke is factually distinguishable. In determining Vereecke had failed to establish
a causal link, the court found that Vereecke's bad behavior served as strong motivation for
the discipline issued. Vereecke, 609 F.3d at 401. This bad behavior included wearing an
incendiary t-shirt to school basketball games he attended as athletic director; sending a
controversial letter to a parent on behalf of a school committee without authorization from
the committee; admittedly "blowing his temper" at a school athletic event and yelling
profanity at an opposing coach and team; failing to take safety precautions and inform the
administration about a controversial sportsmanship display at an athletic event that led to
a fight among students; and taking a school refrigerator home without permission. Id. at
396-98. Further, Vereecke's supervisor had expressed displeasure with Vereecke's
conduct prior to his protected activity. Id. at 402. In contrast, viewing the facts in the light
most favorable to Plaintiff in this case, the record indicates that he was a competent officer
who made some relatively minor mistakes and did not always communicate perfectly, as
described by the arbitrator. See Dkt. # 19-41, Pg ID 644-48. Further, Plaintiff has shown
that he was treated in a disparate manner, and that he was subjected to unduly harsh
discipline. The Court further notes that, unlike in Vereecke, Plaintiff's supervisors had not
expressed displeasure with Plaintiff's performance or conduct prior to the events that led
to Plaintiff filing his 2013 lawsuit.
27
that more frequent disciplinary writeups of the plaintiff for trivial matters and unwarranted
criticism of the plaintiff's work, when viewed as a whole, can support causation); Dye v.
Office of the Racing Comm'n, 702 F.3d 286, 305 (6th Cir. 2012) ("Incidents of misconduct
that do not rise to the level of an adverse employment action may be relevant . . . to show
a pattern of mistreatment on the job based on [the] plaintiff's protected activities."); HandyClay, 695 F.3d at 545-46 (noting that knowledge of the protected speech is relevant to
causation); Taylor v. Keith, 338 F.3d 639, 646-47 (6th Cir. 2003) (finding that a reasonable
juror could conclude that the defendants' disparate treatment of the officers involved in an
arrest incident showed that the defendants targeted the plaintiff officers because of their
speech, and reversing the district court's grant of summary judgment in favor of
defendants).
Given that Plaintiff established a causal link, Defendants may show by a
preponderance of the evidence that they would have made the same employment
decisions even in the absence of the protected conduct, the filing of Plaintiff's 2013 lawsuit.
Once this burden shift has occurred, summary judgment is warranted only 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. Dye, 702 F.3d at 294-95. "Unlike in the McDonnell
Douglass burden-shifting framework, the burden does not shift back to a plaintiff to show
pretext in First Amendment retaliation claims." Id. at 295. A defendant's burden at this last
stage of the prima facie case "involves a determination of fact and is ordinarily reserved for
the jury or the court in its fact-finding role." Rodgers, 344 F.3d at 603 (internal quotation
marks and citations omitted).
28
Defendants argue that, even if Plaintiff can establish a prima facie case of retaliation,
the Court should dismiss Plaintiff's claims because Defendants' actions were based on
legitimate business reasons, and Defendant would have taken those same actions
regardless of any protected activity.
According to Defendants, Plaintiff was treated
consistent with other command officers and had several performance issues.
Plaintiff responds that an issue of fact exists as to whether Defendants' disparate
treatment of Plaintiff was for legitimate business purposes in light of the arbitrator's reversal
of the suspension and demotion, and the fact that Plaintiff was disciplined more harshly
than others who engaged in the same violations.
Although Defendants provide some evidence of Plaintiff's performance issues in
support of their proffered reasons for the adverse employment actions, and although there
could be innocent explanations for Defendants' actions, this evidence is nonetheless
insufficient to show that no reasonable juror could fail to return a verdict for Plaintiff.
Viewing the facts in the light most favorable to Plaintiff, a reasonable juror could conclude
that Shelby intended to cause Plaintiff to be disciplined, suspended, and demoted, and that
Shelby's sustained pattern of disparate and/or unwarranted discipline was a link in the
causal chain that lead to the Director's Hearing and to the subsequent suspension and
demotion. The temporal proximity between the filing of the 2013 lawsuit and the beginning
of the sustained pattern of Shelby's heightened scrutiny and harsh disciplines, coupled
with the disparate manner in which RPD disciplined officers for the kinds of violations at
issue, constitute sufficient evidence at this stage for Plaintiff to create a genuine issue that
his 2013 lawsuit was a substantial or motivating factor in his termination. The same goes
for the temporal proximity between Plaintiff and Settles' February 2015 meeting during
29
which Plaintiff shared the details of his 2013 lawsuit, and the suspension without pay and
demotion that Settles imposed in October 2015, coupled with the severity of the discipline
when examined under the totality of the circumstances. "Moreover, in the First Amendment
context, a defendant's motivation for taking action against the plaintiff is usually a matter
best suited for the jury." Dye, 702 F.3d at 305 (internal quotation marks omitted) (quoting
Paige v. Coyner, 614 F.3d 273, 282 (6th Cir. 2010)); see Rodgers, 344 F.3d at 603.
Viewing the facts in the light most favorable to the Plaintiff, a reasonable jury could
conclude that Plaintiff's 2013 lawsuit was a substantial motivating factor in the adverse
employment actions he complains of. Plaintiff has established his prima facie case of
constitutional retaliation.
B. Whether Settles and Shelby are Entitled to Qualified Immunity
Government officials are entitled to qualified immunity where their actions do not
"violate clearly established statutory or constitutional rights of which a reasonable person
would have known." Green v. Reeves, 80 F.3d 1101, 1104 (6th Cir. 1996) (citing Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982)). A government official will not be immune if, on
an objective basis, it is obvious that no reasonably competent officer would have concluded
that the action at issue was lawful; but if the officer of reasonable competence could
disagree on this issue, immunity should be recognized. Malley v. Briggs, 475 U.S. 335, 341
(1986). Qualified immunity is an initial threshold question the court is required to rule on
early in the proceeding so that the costs and expenses of trial are avoided where the
defense is dispositive. Saucier v. Katz, 533 U.S. 194, 201 (2001). Qualified immunity is
"an entitlement not to stand trial or face the other burdens of litigation." Mitchell v. Forsyth,
472 U.S. 511, 526 (1985). The privilege is "an immunity from suit rather than a mere
30
defense to liability; and like an absolute immunity, it is effectively lost if a case is
erroneously permitted to go to trial." Id.
The first inquiry to determine qualified immunity is whether, taken in the light most
favorable to the party asserting the injury, the facts alleged show that the official's conduct
violated a constitutional right.
Siegert v. Gilley, 500 U.S. 226, 232 (1991).
"Each
defendant's liability must be assessed individually based on his own actions." Binay v.
Bettendorf, 601 F.3d 640, 650 (6th Cir. 2010). If no constitutional right would have been
violated, there is no necessity for further inquiries concerning qualified immunity. Saucier,
533 U.S. at 201. If a violation could be made out, the next step is to determine whether the
right was clearly established in light of the specific context of the case, not as a broad
general proposition. Id. Under the doctrine of qualified immunity, an official will not be
found personally liable for money damages unless the official's actions violate "clearly
established statutory or constitutional rights of which a reasonable person would have
known." Harlow, 457 U.S. at 818. The "clearly established" rights allegedly violated by the
officials cannot be considered at an abstract level, but must be approached at a level of
specificity: "The contours of the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right." Anderson v. Creighton, 483
U.S. 635, 639 (1987). "Reasonableness" is a question of law to be decided by the trial
court.
Individual Defendants Settles and Shelby argue that they are entitled to qualified
immunity because they did not violate a clearly established constitutional right with regard
to their interactions with Plaintiff, and there was an objectively reasonable basis for their
actions under the totality of the circumstances. Defendants repeat the same arguments
31
discussed above, noting that Settles was not a party to the prior lawsuit, was not employed
at the City when the lawsuit settled, and had never seen the lawsuit. Settles also reduced
two prior disciplines issued to Plaintiff. Defendants further note that Shelby testified that
he would never retaliate against someone for filing a lawsuit, and that neither Shelby nor
Settles initiated the Director's Hearing; Monte did.
Plaintiff responds that qualified immunity cannot shield Settles or Shelby from liability
for knowing violations of Plaintiff's constitutional right of access to the court and right to file
his 2013 lawsuit.
The Court concludes that there remain genuine issues of material facts to preclude
summary judgment in favor of Defendants. The Court's analysis in the preceding sections
makes it clear that, taken in the light most favorable to Plaintiff, the facts alleged show that
Shelby's conduct as well as Settles' conduct violated Plaintiff's First Amendment right to be
free from retaliation for speaking or petitioning on matters of public concern. That right has
long been clearly established in various factual scenarios as discussed in the cases cited
above. See also Chappel v. Montgomery Cnty. Fire Prot. Dist. No. 1, 131 F.3d 564, 580
(6th Cir. 1997) ("All public officials have been charged with knowing that public employees
may not be disciplined for engaging in speech on matters of public concern . . . ."). In light
of the Court's analysis above, the totality of the circumstances, and Plaintiff's clearly
established constitutional right, the Court concludes that Shelby's actions as well as Settles'
actions, taken in the light most favorable to Plaintiff, were objectively unreasonable.
C. Whether Official Capacity Claims Against Settles and Shelby are Duplicative
Defendants argue that Plaintiff's official capacity claims against Defendants Settles
and Shelby should be dismissed as duplicative.
32
Plaintiff responds that no binding Sixth Circuit appellate authority requires dismissal
of Plaintiff's official capacity claims against Shelby and Settles.
As the Sixth Circuit has explained,
A suit against an individual "in his official capacity" has been held to be
essentially a suit directly against the local government unit . . . . Official
capacity suits[] generally represent only another way of pleading an action
against an entity of which an officer is an agent. [] As long as the government
entity receives notice and an opportunity to respond, an official capacity suit is,
in all respects other than name, to be treated as a suit against the entity.
Leach v. Shelby Cnty. Sheriff, 891 F.2d 1241, 1245 (6th Cir. 1989) (internal quotation
marks omitted) (quoting Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)); see Pusey v.
City of Youngstown, 11 F.3d 652, 657 (6th Cir. 1993). If a lawsuit includes individual
defendants being sued in their official capacity as municipal officials and the municipal
entity itself is also a defendant, then the court may dismiss the official capacity claims
against the individuals as redundant. See Ebelt v. Cnty. of Ogemaw, 231 F. Supp. 2d 563,
568 (E.D. Mich. 2002) (citing Vance v. Cnty. of Santa Clara, 928 F. Supp. 993, 996 (N.D.
Cal. 1996)).
In this case, Plaintiff is asserting claims against Settles and Shelby in both their official
and individual capacities, and Plaintiff is also asserting claims against the City of Romulus
itself. Accordingly, the Court will dismiss the official capacity claims against Settles and
Shelby.
IV.
CONCLUSION
For the reasons set forth above, the Court hereby DENIES IN PART Defendants'
Motion for Summary Judgment (Dkt. # 17), and GRANTS IN PART the motion only as to
the official capacity claims against Settles and Shelby.
33
SO ORDERED.
s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: August 24, 2018
I hereby certify that a copy of the foregoing document was served upon counsel of
record on August 24, 2018, by electronic and/or ordinary mail.
s/Lisa Bartlett
Case Manager
34
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