Whittie v. River Rouge, City of et al

Filing 35

OPINION AND ORDER granting in part and denying in part 30 Motion for Summary Judgment. Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DENNIS G. WHITTIE,
Plaintiff,
Case No. 14-10070
v.
Hon. John Corbett O’Meara
CITY OF RIVER ROUGE and
JEFFREY HARRIS, individually and
in his official capacity, and jointly
and severally,
Defendants.
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OPINION AND ORDER GRANTING IN PART AND DENYING
IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Before the court is Defendants’ motion for summary judgment, filed April
20, 2015, which has been fully briefed. The court heard oral argument and took
the matter under advisement on July 30, 2015. For the reasons explained below,
Defendants’ motion is granted in part and denied in part.
BACKGROUND FACTS
Plaintiff Dennis Whittie is employed by Defendant City of River Rouge as a
part-time police officer. Defendant Jeffrey Harris was employed by the city as its
Chief of Police and Fire. Whittie alleges that Defendants retaliated against him in
violation of his First Amendment rights and the Michigan Whistleblowers’

Protection Act by changing his shift and by failing to hire him as a full-time
officer. Whittie contends that these actions were taken because he complained to
MIOSHA about the lack of standard operating procedures for fire suppression and
about the lack of policies and other issues related to exposure to blood-borne
pathogens.
Whittie began working for the City of River Rouge as a non-union, part-time
police officer in 2007 and continues to work in that capacity. Whittie also began
attending law school full time in 2013. In February 2013, Whittie sent an email to
his supervisors regarding the need to order rubber gloves in bulk to avoid running
out. Whittie contends that, despite this email, problems with the lack of rubber
gloves continued.
On April 6, 2013, Whittie was exposed to a prisoner’s blood and contends
that the lack of rubber gloves and the city’s lack of policy to address such exposure
“exacerbated” the problem. (Defendants claim that gloves were available.)
Whittie contends that he filed a MIOSHA complaint regarding the lack of bloodborne pathogen policy, training, and equipment.
On April 29, 2013, Whittie filed an anonymous MIOSHA complaint. The
complaint did not mention blood-borne pathogens, but stated: “The City of River
Rouge currently operates a Police and Fire Department Public Safety service with
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no Stand [sic] Operating Procures and/or Standard Operating Guild [sic] in place.
The lack of these articles does place PSO employees in an unsafe/hazardous
environment. The Department refuses to give an [sic] put in place policy and tells
its employees ‘We are going to Wing it for now.” Def.’s Ex. M.
MIOSHA informed the city of the complaint on May 6, 2013. Def.’s Ex. N.
The city responded to the complaint and MIOSHA regarded the response to be
satisfactory. Def.’s Ex. O. Although the MIOSHA complaint was anonymous,
there is evidence in the record that Harris knew of Whittie’s complaints. See
Vanderaa Dep. at 46; Lopez Dep. at 60-61.
Whittie contends that, after his MIOSHA complaint, Defendant Harris
assigned him to a different shift and, from May 2013 through December 2013,
Harris refused to accommodate Whittie’s law school schedule as had been done in
the past.
In May 2013, Harris held a staff meeting, which became heated. Harris said,
“oh ya, how many officers have been disciplined in the last three months if I’m so
bad?” Whittie said, “Me, chief, it was a verbal from Sgt. Vanderaa.” Harris
allegedly responded, “ya, well you got more coming!” Whittie contends that, after
the meeting, Harris spoke about officers making complaints outside of River
Rouge and trying to make him look bad.
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Whittie contends that in September 2013, he told “others including in front
of the City’s Mayor that Harris was intoxicated while on-duty at the Rouge Days
Festival.” Harris admits that he was in the beer tent, but denies that he was on duty
or intoxicated. Whittie contends that Harris continued to assign him to the day
shift, which conflicted with his law school schedule.
Sometime after the Rouge Days Festival, Whittie contends that he had a
discussion with Harris regarding the lack of policies in the department. According
to Whittie, Harris told him that he was “retiring in 1 year and a couple of months”
and that Whittie could “bitch to whoever you want” about the lack of policies.
Harris also said that Whittie’s reports to the “State” did not do anything for him.
In October 2013, all part-time officers, including Whittie, were interviewed
for a new full-time officer position. The interviews were conducted by Sergeants
Vanderaa, Dotson, and Lozon, with input from Lieutenants Lopez and Price.
Harris sat in on the interviews. Ultimately, Harris made a recommendation to the
public safety commission. Harris Dep. I at 105; Harris Dep. II at 12. Whittie was
not chosen for the position and claims that he is better qualified than the successful
candidate, Richard Morofski.
Whittie filed this action on January 7, 2014, alleging retaliation in violation
of the First Amendment and the Whistleblowers’ Protection Act. Defendants seek
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summary judgment on both of Whittie’s claims.
LAW AND ANALYSIS
I.

Summary Judgment Standard
Summary judgment is appropriate if “there is no genuine issue as to any

material fact and . . . the moving party is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c). When reviewing a motion for summary judgment, the facts
and any reasonable inferences drawn from the facts must be viewed in the light
most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252 (1986).
II.

First Amendment Retaliation
Whittie contends that he was retaliated against for making his complaints in

violation of the First Amendment. For a public employee to establish a claim for
First Amendment retaliation, he must demonstrate:
(1) that he was engaged in constitutionally protected
activity; (2) that the defendant’s adverse action caused
him to suffer an injury that would likely chill a person of
ordinary firmness from continuing to engage in that
activity; and (3) that the adverse action was motivated at
least in part as a response to the exercise of his
constitutional rights.
Leary v. Daeschner, 228 F.3d 729, 737 (6th Cir. 2000). To show that he engaged in
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constitutionally protected speech, Whittie must show that his speech touched on
matters of public concern and the his “interest in commenting upon matters of
public concern . . . outweigh[s] the interest of the State, as an employer, in
promoting the efficiency of the public services it performs through its employees.”
Id. If the plaintiff can establish the three elements outlined above, the burden of
persuasion then shifts to the defendants, who must show, by a preponderance of the
evidence, that they “would have taken the same action even in the absence of the
protected conduct.” Id. at 737.
Defendants contend that Whittie did not engage in protected speech, did not
suffer an adverse employment action, and that there is no causal connection
between his speech and the allegedly adverse actions.
To be constitutionally protected, Whittie’s speech must have touched on a
matter of public concern. Matters of public concern are matters of “political,
social, or other concern to the community,” as opposed to matters “only of
personal interest.” See Cockrel v. Shelby Cty. Sch. Dist., 270 F.3d 1036, 1052 (6th
Cir. 2002). “In general, speech involves matters of public concern when it
involves ‘issues about which information is needed or appropriate to enable the
members of society to make informed decisions about the operation of their
government.’” Banks v. Wolfe Cty. Bd. of Ed., 330 F.3d 888, 893 (6th Cir. 2003)
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(“Public interest ‘is near its zenith when ensuring that public organizations are
being operated in accordance with the law.’”).
Whittie’s speech, most obviously the MIOSHA complaint, touches on
matters of public concern. The MIOSHA complaint addresses the lack of standard
operating procedures for fire suppression, which are required by state regulation.
MIOSHA Administrative Rule 408.17451. “When an institution oversees some
aspect of public safety, the correct operation of that institution is a matter of public
concern.” Hoover v. Radabaugh, 307 F.3d 460, 466 (6th Cir. 2002).
As a result of Defendants’ adverse actions, Whittie has alleged an injury
“that would likely chill a person of ordinary firmness from continuing to engage
in” protected activity. See Bell v. Johnson, 308 F.3d 594, 603-604 (6th Cir. 2002).
Although Defendants acknowledge that the failure to promote Whittie constitutes a
sufficient adverse action, they suggest that the shift change does not. To the
contrary, Whittie need not show an “adverse employment action” of the level
required in an employment discrimination case. Rather, the injury must “chill a
person of ordinary firmness.” Id. Further, “unless the claimed retaliatory action is
truly ‘inconsequential,’ the plaintiff’s claim should go to the jury.” Bell, 308 F.3d
at 603. In this case, Defendants accommodated Plaintiff’s school schedule by
assigning him to the midnight shift for approximately two years. After his
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complaints, Defendants assigned him to the day shift, which caused him to be
unable to work as many hours as he had previously, with a loss in pay. This
concrete injury is more than “inconsequential” and sufficient to survive summary
judgment.
Whittie has also established a causal connection between his protected
activity and Defendants’ adverse actions. Viewing the record most favorably to
Plaintiff, Harris knew of Plaintiff’s complaints and reacted with hostility. Soon
after Plaintiff complained, Harris changed his shift.1 Other officers testified that
they did not know of any reason why Plaintiff’s schedule could not be
accommodated. Defendants do not have an explanation for failing to
accommodate Plaintiff’s schedule, as had been done previously, other than that
officers often changed shifts.2 “An act taken in retaliation for the exercise of a
constitutionally protected right is actionable even if the action would have been

1

Defendants maintain that the May 2013 shift schedule was completed before
Plaintiff’s MIOSHA complaint was received by Defendants. Plaintiff complained
internally before the MIOSHA complaint was filed; further, the shift schedule was
completed on a monthly basis. Defendants continued to assign Plaintiff to the day shift
for months, despite his request to accommodate his school schedule. Whether the shift
change was the result of a retaliatory motive is for the trier of fact.
2

Defendants argue that they are not required to accommodate Plaintiff’s school
schedule. The court agrees with this general proposition and does not hold that
employers are required to do so. Under the circumstances of this case, however,
Defendants’ failure to do so raises an inference of retaliation.
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proper if taken for a different reason.” Hoover, 307 F.3d at 467.
Whittie also was not hired for the full-time officer position. Whittie
contends that he was objectively more qualified than the successful candidate; and
Defendants do not attempt to dispute this or explain why Whittie did not receive
the promotion. Defendants simply state that none of the officers on the interview
panel selected Whittie as their first choice. There is no contemporaneous record of
the interview process. Rather, after this suit was filed, Harris asked the interview
panel to rank the candidates in an email. According to Whittie, Lt. Deborah Price
told him that although she was asked for her input into the hiring decision, “Jeff
[Harris] and his boys made that decision way before he asked me.” Decl. of D.
Whittie at ¶35.
Viewing the record in the light most favorable to Plaintiff, a reasonable jury
could find that Harris retaliated against Whittie as a result of his complaints by
refusing to accommodate his schedule and by not hiring him as a full-time officer.
Defendants have not demonstrated that the shift change and hiring decision would
have been made in the absence of Whittie’s protected conduct. See Cockrel, 270
F.3d at 1056-57.
A.

Qualified Immunity

Defendants argue that Harris is entitled to qualified immunity. See Harlow
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v. Fitzgerald, 457 U.S. 800, 818 (1982) (“Government officials performing
discretionary functions generally are shielded from liability for civil damages
insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.”). The court
analyzes qualified immunity pursuant to a two part test: “[i]f a plaintiff’s facts
make out a constitutional violation, the court must then proceed to determine
whether or not that right was clearly established.” Hoover, 307 F.3d at 467. “A
right is clearly established if a reasonable official would understand that what he is
doing violates that right.” Id. at 468.
As discussed above, viewing the facts in the light most favorable to Whittie,
he has demonstrated a First Amendment violation. Further, the right to be free of
First Amendment retaliation is clearly established. See Hoover, 307 F.3d at 469
(“We agree with the district court that, as a matter of pure law, the rights here are
clearly established: a reasonable official would know that terminating an employee
with the motivation, even in part, of quieting the plaintiff’s public speech about the
illegal activities of the Department violates the Constitution.”). Accordingly,
Harris is not entitled to qualified immunity.
B.

Municipal Liability

Defendants also argue that Plaintiff cannot establish the liability of the City
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of River Rouge. To prevail in a § 1983 suit against a municipality, a plaintiff must
show that the alleged federal right violation occurred because of a municipal policy
or custom. Monell v. Dep’t of Social Servs., 436 U.S. 658, 694 (1978).
There are at least four avenues a plaintiff may take to
prove the existence of a municipality’s illegal policy or
custom. The plaintiff can look to (1) the municipality’s
legislative enactments or official agency policies; (2)
actions taken by officials with final decision-making
authority; (3) a policy of inadequate training or
supervision; or (4) a custom of tolerance or acquiescence
of federal rights violations.
Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005).
Plaintiff argues that the adverse actions taken against him were taken by
officials with final decision-making authority: Chief Harris (shift change) and the
city’s public safety commission (failure to promote). Defendants do not dispute
this or explain why the City should be absolved of liability. See Meyers v. City of
Cincinnati, 14 F.3d 1115, 1117-18 (6th Cir. 1994) (“If the decision to punish him
for exercising his constitutional rights was made by the ‘government’s authorized
decisionmakers’ the City is responsible.”).
III.

Whistleblowers’ Protection Act
The analysis under the Whistleblowers’ Protection Act is similar to that of

Plaintiff’s First Amendment claim. See West v. General Motors Corp., 469 Mich.
177, 183-84 (2003) (a plaintiff must show protected activity, adverse action, and a
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causal connection). See also M.C.L. 15.362.
As Defendants point out, however, the statute of limitations on a WPA claim
is 90 days. M.C.L. 15.363(1). Plaintiff filed this action on January 7, 2014.
Plaintiff was notified that he was not hired for the full-time position on October 7,
2013. Ninety days from October 7, 2013, is January 5, 2014. Plaintiff’s failure to
hire/promote claim and the shift changes from May 2013 through October 2013 are
barred by the statute of limitations.
The adverse actions (shift changes) that occurred in November 2013 and
December 2013 are not barred by the statute of limitations. However, given the
likelihood of jury confusion regarding this piece of Plaintiff’s WPA claim and his
partially overlapping First Amendment claim, the court will decline to exercise
supplemental jurisdiction over Plaintiff’s remaining WPA claim. See 28 U.S.C. §
1367(c); United Mine Workers v. Gibbs, 383 U.S. 715 (1966); Padilla v. City of
Saginaw, 867 F. Supp. 1309 (E.D. Mich. 1994); Sanford v. Detroit Pub. Schs.,
2014 WL 1922722 (E.D. Mich. 2014) (“Mixing federal-law claims with
supplemental state-law claims can cause procedural and substantive problems; in
the interest of judicial economy and convenience, these problems should be
avoided.”).

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ORDER
IT IS HEREBY ORDERED that Defendants’ April 20, 2015 motion for
summary judgment is GRANTED IN PART with respect to Plaintiff’s WPA claim
and DENIED IN PART with respect to Plaintiff’s First Amendment claim.

s/John Corbett O’Meara
United States District Judge
Date: August 18, 2015

I hereby certify that a copy of the foregoing document was served upon
counsel of record on this date, August 18, 2015, using the ECF system.

s/William Barkholz
Case Manager

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