Whittie v. River Rouge, City of et al
OPINION AND ORDER granting in part and denying in part 76 Motion for Summary Judgment; granting in part and denying in part 77 Motion for Partial Summary Judgment. Signed by District Judge John Corbett O'Meara. (WBar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
DENNIS G. WHITTIE,
Case No. 14-10070
Hon. John Corbett O’Meara
CITY OF RIVER ROUGE, et al.,
OPINION AND ORDER
Before the court are Plaintiff’s motion for partial summary judgment and
Defendants’ motion for summary judgment. The court heard oral argument on
August 24, 2017, and took the matter under advisement.
In this consolidated case, Plaintiff Dennis Whittie filed his original
complaint in 2014. Whittie was employed as a part-time police officer for the City
of River Rouge. In the original complaint, Whittie alleged 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. Defendants sought summary judgment, which the court denied
with respect to Plaintiff’s First Amendment retaliation claim. The court declined
to exercise supplemental jurisdiction over Plaintiff’s Whistleblowers’ Protection
Subsequently, Whittie was terminated from his employment by the City.
Whittie filed a second complaint, which was later amended, alleging that his
termination violated his due process and First Amendment rights and constituted a
breach of the City’s Charter. The cases were consolidated. Whittie seeks summary
judgment on his due process and breach of contract claims; Defendants seek
summary judgment on all of Plaintiff’s claims.
Whittie was hired by the City of River Rouge in 2008 as a part-time police
officer. The City and the police officers’ union agreed to the creation of part-time
police officer positions as a result of financial challenges facing the City. The City
contends that it intended these part-time police officers to be at-will employees.
The part-time police officer positions were created pursuant to a Letter of
Agreement between the union and the City, which provides:
POLC Unit I agrees to allow the City to facilitate the Use
of Part Time Officers. . . . The POLC Unit I understands
that the City is having financial problems and is willing
to allow the City to contract out One, (1) DEA position
on a temporary basis. This position will be considered an
at will position. The person filling this position will be
an at will employees [sic], and will never make a wage
more than that of a Three Year Patrolman’s Base Wage
of $47,396.47, at the signing of this agreement.
Pl.’s Ex. 7 (Letter of Agreement). At the time of his hiring, Whittie signed an oath
of office, which provides:
By offering this oath of office and requiring a signature,
no written or implied contract for employment or
continued employment is being offered. For any reason
that an employee is found to be incapable, unqualified or
unfit for employment or continued employment, or the
employee’s best efforts to comply with the required
obligations, responsibilities, duties and task performances
associated with this oath are unsatisfactory, that
employee is subject to removal.
Def.’s Ex. 4. As a part-time officer, Plaintiff was not a member of the union,
which represents full-time police officers.
After Plaintiff filed his original lawsuit in 2014, Defendant Police Chief
Jeffrey Harris retired in January 2015. Defendant Deborah Price became the chief
of the City’s police department. Plaintiff contends that he and Price had a good
working relationship for several years, but that Price became increasingly hostile
toward him as he raised various problems in the department.
In April 2015, Plaintiff posted at the police station a photograph with
superimposed comments (a “meme”) of a sergeant sleeping in his police vehicle
while on duty. When Price raised the issue at a staff meeting, Plaintiff admitted
posting the photo. Later, Price told Plaintiff to “stop playing like that.” Plaintiff
states that Price did not indicate that he would disciplined. Price, however,
testified that she considered this issue “the straw that broke the camel’s back.”
Def.’s Ex. 7, Price Dep. at 134. According to Price, Plaintiff was “being
insubordinate, usurping my authority, creating divisiveness, not being courteous to
his fellow officers, creating dissention among the troops.” Id. at 154.
In mid-April 2015, the City received notice from MIOSHA about a
complaint Plaintiff had made regarding the police department’s handling of safety
related to blood-borne pathogens. For the police department’s violations,
MIOSHA imposed a $2,800 fine.
Plaintiff alleges that around the same time, Price’s secretary and a lieutenant
began printing up police reports related to citizen complaints about Plaintiff, some
of which were five years old, “for no good reason.”
After the “meme” incident, the City hired attorney James Acho to investigate
Plaintiff. Acho testified that, after interviewing the majority of the officers in the
department, the general sentiment was that Plaintiff was a “cancer in the
department” because of his “undermining nature and a desire to supersede those
who oversee him.” Acho Dep. at 19.
In May 2015, Plaintiff met with Price to express his concerns about various
incidents: civil rights violations of one of his fellow officers, ongoing LIEN
violations in the department, racist rants on Facebook by an officer, the unlawful
release of a prisoner, wage and hour violations, and that an officer allegedly
received sexual favors in exchange for not making an arrest. See Pl.’s Ex. 3 at ¶
78; Defs.’ Ex. 28. Plaintiff contends that “Price’s reactions at the meeting were
negative toward me.” Pl.’s Ex. 3 at ¶ 80.
Plaintiff went on workers’ compensation leave due to a back injury on June
22, 2015. Having graduated from law school in January 2015, Plaintiff formed a
law firm called the Whittie Law Center in June 2015. While on workers’
compensation leave, Plaintiff represented clients as a practicing attorney.
During Plaintiff’s medical leave, the City hired Lance Owens, who had
worked as a part-time police officer, as a full-time officer. Defendants contend that
Owens was hired as a full-time officer because he received another offer of
employment and the City wanted to retain him. See Def.’s Ex. 37.
After Plaintiff returned from leave in February 2016, he was presented with
a letter from Price notifying him that “your actions have been found to be in
violation of your responsibilities as an employee of the City of River Rouge.”
Defs.’ Ex. 12. “Your decision to reproduce a photograph of a fellow officer in a
compromised position and disseminate this image, utilize your own letterhead
despite being directed to refrain from such use, and your decision to engage in
unauthorized outside employment all constitute violations of your responsibilities
as a City of River Rouge Police Officer.” Id. Price informed Plaintiff that he
would have an opportunity to respond to the charges set forth in the letter at a
hearing scheduled for February 22, 2016.
At the hearing, Plaintiff stated that he received the letter outlining the
charges against him, but that he was “at a loss to even properly respond yet
because there’s just a laundry list of charges but no application. . . . [N]o analysis.”
Defs.’ Ex. 17 at 1. The City’s attorney told Plaintiff, “this is your opportunity to
respond to these charges.” Id. Plaintiff asked numerous questions about the
charges and stated that he felt he was singled out for discipline and retaliated
against. Subsequently, Plaintiff also responded to the charges in writing,
reiterating that he disagreed that the charges warranted his termination and felt that
they were retaliatory. Pl.’s Ex. 37.
On March 2, 2016, Price sent Plaintiff a letter indicating that the charges
against him had been sustained and that she was recommending his termination.
Defs.’ Ex. 19. She denied his claim of retaliation and stated that “the City rejects
your defense of: I did engage in these actions, but I should not be disciplined for
it.” Id. Price also informed Plaintiff, “[t]hough not required you are permitted to
have this termination reviewed by a Trial Board of the City of River Rouge Public
Safety Commission.” Id.
By letter dated March 5, 2016, Plaintiff responded that “I fully expect that
you and the City of River Rouge will follow the River Rouge City Charter,
including Section 163.” Section 163 of the City of River Rouge Charter provides
No member of the fire or police department shall be
demoted or dismissed, and no member of either force,
except the probationary members shall be dismissed
except upon formal verified complaint and after trial and
conviction by the commission of public safety sitting as a
trial board. Said persons so charged shall be furnished
with a copy of the complaint together with a notice of the
time and place of the hearing thereon, and may have the
benefit of legal counsel to represent him if he so desires.
After trial and conviction, punishment shall be fixed by
the commission of public safety and a copy of its
findings filed with the city clerk.
Def.’s Ex. 5.
On March 24, 2016, the City of River Rouge Public Safety Commission
conducted a hearing to review Plaintiff’s termination. See Defs.’ Ex. 21 (hearing
transcript). At the conclusion of the hearing, the Public Safety Commission voted
unanimously to support Price’s decision to terminate Plaintiff.
Plaintiff contends that, based upon the termination procedure set forth in the
Charter, he had a property interest in his employment and he could not be deprived
of that property interest without due process. Plaintiff also contends that the City’s
failure to follow the termination procedure set forth in the Charter constitutes a
breach of contract. Plaintiff argues that his termination was based upon various
complaints he made about violations of law inside the department, in violation of
his rights under the First Amendment and Whistleblowers’ Protection Act.
Defendants maintain that Plaintiff was terminated as a result of insubordination
and other inappropriate behavior.
LAW AND ANALYSIS
Standard of Review
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). The party opposing summary judgment,
however, must present more than a “mere scintilla” of evidence; the evidence must
be such that a reasonable jury could find in favor of the plaintiff. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
The Due Process Clause of the Fourteenth Amendment to the United States
Constitution “provides that certain substantive rights – life, liberty, and property –
cannot be deprived except pursuant to constitutionally adequate procedures.”
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985). When analyzing
a due process claim, the court first considers “whether the plaintiff has a property
interest entitled to due process protection.” Mitchell v. Frankhauser, 375 F.3d 477,
480 (6th Cir. 2004). If the plaintiff has a protected property interest, the court
“must then determine what process is due.” Id.
Whether Plaintiff has a protected property interest in his police officer
position depends upon state law. Bailey v. Floyd Cty. Bd. of Educ., 106 F.3d 135,
141 (6th Cir. 1997). To establish a property interest, he must “point to some
statutory or contractual right conferred by the state which supports a legitimate
claim to continued employment.” Id. A property interest may be created by a state
statute, formal contract (such as a collective bargaining agreement), or “a contract
implied from the circumstances.” Singfield v. Akron Metro. Housing Auth., 389
F.3d 555, 565 (6th Cir. 2004). An at-will employee does not have a protected
property interest in continued employment. Waters v. Churchill, 511 U.S. 661, 679
Under Michigan law, “when an employment agreement is silent regarding
the type of employment relationship, at will employment, not just-cause
employment, is presumed.” Mannix v. County of Monroe, 348 F.3d 526, 532 (6th
Cir. 2003) (citation omitted). A just-cause relationship may arise “either by
express agreement, oral or written, or as a result of an employee’s legitimate
expectations grounded in an employer’s policy statements.” Id. (quoting Toussaint
v. Blue Cross & Blue Shield of Mich., 408 Mich. 579 (1980)).
Plaintiff contends that he had a just-cause employment relationship with the
City based upon an express contract theory.1 “To overcome the presumption of
employment at will, a party must present sufficient proof either of a contractual
provision for a definite term of employment or a provision forbidding discharge
absent just cause.” Rood v. Gen. Dynamics Corp., 444 Mich. 107, 117 (1993). In
support of his express contract theory, Plaintiff points to the City Charter, which
provides that no member of the police force “shall be dismissed except upon
formal verified complaint and after trial and conviction by the commission of
public safety sitting as a trial board.” Although the Charter does not expressly
provide just-cause protection, Plaintiff argues that this trial procedure implies a
Defendants argue that Plaintiff was an at-will employee, based upon the Letter of
Agreement between the union and City that allowed for the hiring of part-time officers.
The Letter of Agreement, however, specifically designates “One, (1) DEA position” as
being “at-will.” The Letter of Agreement cannot be read to designate part-time police
officers as “at-will.”
just-cause standard.2 See Elmore v. Police Comm’r of the City of Detroit, 92
Mich. App. 382, 385 (1979). In Elmore, the Michigan Court of Appeals concluded
that similar language – providing an officer the “opportunity of being heard in his
defense”– implied that “cause” must be established. Id. The Elmore court did not
cite any authority for this proposition, however.
More recent case law indicates that a termination procedure (such as binding
arbitration) does not create a just-cause standard. See Samples v. Botsford Gen.
Hosp., 2007 WL 1610439 at *3 (Mich. App. June 5, 2007) (“[T]he adoption of a
binding arbitration policy does not convert at-will employment into just-cause.”);
Mannix, 348 F.3d at 535 (“Neither the adoption of systematic procedures for
dealing with employees nor the creation of disciplinary guidelines transforms an
at-will relationship into one prohibiting discharge except for just-cause.”); Biggs v.
Hilton Hotel Corp., 194 Mich. App. 239, 241-42 (1992) (“The fact that defendant
had established a disciplinary system for its employees and, apparently, obligated
plaintiff to abide by that disciplinary system in dealing with his subordinates does
not establish unequivocally plaintiff’s position that he was a just-cause employee
rather than an at-will employee.”); Willoughby v. Vill. of Dexter, 709 F. Supp.
In contrast, the City expressly agreed to just-cause protection for officers covered
by the collective bargaining agreement. See Defs.’ Ex. 22 (CBA).
781, 784 & n.1 (E.D. Mich. 1989) (“Although the ordinance provides for a specific
termination procedure, which the council followed, there is no language stating
that the council may only remove the manager for good cause.”).
The court concludes that although the City Charter provides for a procedure
to be followed in the event of termination, it does not create a contractual or other
legal entitlement to just-cause employment. Moreover, the oath of office signed by
Plaintiff provides that “no written or implied contract for employment or continued
employment is being offered. For any reason that an employee is found to be
incapable, unqualified or unfit for employment or continued employment, or the
employee’s best efforts to comply with the required obligations, responsibilities,
duties and task performances associated with this oath are unsatisfactory, that
employee is subject to removal.” At most, this language creates a “satisfaction
contract,” which is “not a just-cause or good-cause contract.” Meagher v. Wayne
State Univ., 222 Mich. App. 700, 722-23 (1997) (under a satisfaction contract
“[t]he employer is the sole judge of whether the person’s job performance is
satisfactory.”). Such language is insufficient to create a just-cause contract or a
legitimate expectation of a just-cause standard. Absent just-cause protection,
Plaintiff does not have a property interest in his employment and his due process
claim cannot be sustained. The court will grant summary judgment in favor of
Defendants on this claim.
Breach of Contract
Plaintiff also asserts a breach of contract claim, contending that he was
legally entitled to the termination procedure set forth in the City Charter, which
states that “no member” of the police department “shall be dismissed except upon
formal verified complaint and after trial and conviction by the commission of
public safety sitting as a trial board. Said persons so charged shall be furnished
with a copy of the complaint together with a notice of the time and place of the
hearing thereon, and may have the benefit of legal counsel to represent him if he so
desires. After trial and conviction, punishment shall be fixed by the commission of
public safety and a copy of its findings filed with the city clerk.”
Defendants do not dispute that this specific procedure was not followed, nor
have they persuasively explained why this procedure does not apply to Plaintiff,
who was clearly a “member” of the police department. Accordingly, the court will
grant summary judgment in favor of Plaintiff on his breach of contract claim, to the
extent he seeks the benefit of the procedure set forth in the Charter. To the extent
Plaintiff bases his breach of contract claim on a just-cause termination standard,
the court denies Plaintiff’s motion for summary judgment and grants Defendants’
motion, for the reasons explained above.
Plaintiff also claims that he was discharged in retaliation for exercising his
First Amendment rights. Prior to his termination, he allegedly reported the
following incidents to Defendant Police Chief Deborah Price: (1) alleged LEIN
violations by the department; (2) racist rants by follow City police officers on
social media; (3) an alleged unlawful release of a prisoner; (4) wage and hour
violations; and (5) a sergeant receiving oral sex in exchange for not making an
arrest/issuing a citation.
A public employee alleging First Amendment retaliation must establish that
(1) he engaged in protected conduct; (2) he suffered an adverse action sufficient to
deter a person of ordinary firmness from engaging in such conduct; and (3) the
adverse action was motivated at least in part by the protected conduct. Handy-Clay
v. City of Memphis, Tennessee, 695 F.3d 531, 539 (6th Cir. 2012). “If the
employee establishes a prima facie case, the burden then shifts to the employer to
demonstrate by a preponderance of the evidence that the employment decision
would have been the same absent the protected conduct.” Boulton v. Swanson, 795
F.3d 526, 531 (6th Cir. 2015) (citation omitted).
To show protected conduct in the First Amendment context, the employee
must establish three elements: first, the employee must speak about “matters of
public concern,” second, his “must speak as a private citizen and not as an
employee pursuant to his official duties,” and third, the employee must show that
his speech interest outweighs “the interest of the State, as an employer, in
promoting the efficiency of the public services it performs through its employees.”
Mayhew v. Town of Smyrna, Tennessee, 856 F.3d 456, 462 (6th Cir. 2017).
Defendants argue that Plaintiff did not engage in protected conduct, because
he was not speaking as a citizen, but pursuant to his official duties.3 See Garcetti v.
Ceballos, 547 U.S. 410 (2006). Defendants maintain that Plaintiff’s speech was
not protected because it “owes its existence” to his responsibilities as a police
officer. According to Defendants, Plaintiff complained “up his chain of command”
about matters “directly related to his duties as a police officer.” See Docket No. 76
As made clear by the Supreme Court in Lane v. Franks, 134 S.Ct. 2369
(2014), Defendants misapprehend the private citizen/employee test. An
employee’s speech pursuant to his official duties does not “simply relate to public
employment or concern information learned in the course of public employment.”
The court declines Defendants’ untimely invitation to reconsider its 2015 ruling
regarding Plaintiff’s original First Amendment claim.
Lane v. Franks, 134 S.Ct. 2369, 2379 (2014). Rather, “the critical question . . . is
whether the speech at issue is itself ordinarily within the scope of an employee’s
duties, not whether it merely concerns those duties.” Id. at 2379 (emphasis added).
See Boulton, 795 F.3d at 534 (“After Lane . . . . the phrase ‘owes its existence to a
public employee’s professional responsibilities’ must be read narrowly as speech
that an employee made in furtherance of the ordinary responsibilities of his
Although Defendants make the conclusory argument that Plaintiff’s speech
was “directly related” to his duties as a police officer, they do not address the
“critical question” of whether Plaintiff’s speech was “itself ordinarily within the
scope” of his duties. For example, Defendants do not address whether it was part
of Plaintiff’s ordinary job responsibilities to report wrongdoing by other employees
or suspected civil rights or wage and hour violations in the department. Cf.
Mayhew, 856 F.3d at 464-66, 469 (lab supervisor’s speech about water samples
was within the scope of his duties, but his speech about the city failing to follow its
own hiring polices was not). Plaintiff contends that his speech was not within the
scope of his job duties, and Defendants do not rebut this argument. Accordingly,
Defendants’ unsupported argument that Plaintiff was not speaking as a “citizen”
Defendants argue that Plaintiff cannot establish a causal connection between
his speech and the decision to terminate his employment. “In order to establish a
causal connection between the protected conduct and the adverse action, plaintiff
must produce enough evidence of a retaliatory motive such that a reasonable juror
could conclude that the demotion would not have occurred but for his engagement
in protected activity. A causal link can be shown through direct or circumstantial
evidence, including showing temporal proximity between engaging in protected
activity and suffering an adverse employment action that may create an inference
of causation.” Eckerman v. Tennessee Dep’t of Safety, 636 F.3d 202, 209 (6th Cir.
2010). Contrary to Defendants’ argument, Plaintiff need not show that his
termination was solely motivated by his protected speech.4 Rather, Plaintiff must
show that the adverse action was “motivated at least in part” by the protected
conduct. See, e.g., Boulton, 795 F.3d at 530; Handy-Clay, 695 F.3d at 545; Mt.
Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 287 (1977) (plaintiff
must show protected conduct was a “substantial” or “motivating” factor).
Plaintiff has alleged that he and Chief Price had a harmonious working
The case Defendants cite for this proposition is inapposite; it addresses the
standard for awarding attorney fee sanctions, not First Amendment retaliation causation.
See Goodyear Tire & Rubber Co. v. Haeger, 137 S.Ct. 1178, 1184 (2017).
relationship, which changed after his protected speech. Plaintiff also contends that
the reasons given for his termination were pretextual. For example, Plaintiff
asserts that Price knew about his use of personal letterhead and his outside
employment, but that these issues only became the basis for discipline after he
engaged in protected speech. See Whittie Dec. at ¶¶ 64-80. Plaintiff also contends
that although Price told him to “stop playing like that” after the “meme” incident,
she gave no indication that he would be disciplined until after his protected
activity. These factual allegations, coupled with Price’s “negative” attitude toward
Plaintiff’s reports of wrongdoing within the department, raise an inference that
Plaintiff’s termination was motivated at least in part by his protected speech.
Plaintiff has alleged sufficient facts in this regard to establish a causal connection,
satisfying the elements necessary for a prima facie case.5
One an employee establishes a prima facie case, “the burden then shifts to
the employer to demonstrate by a preponderance of the evidence that the
employment decision would have been the same absent the protected conduct.”
Boulton, 795 F.3d at 531. “Once this shift has occurred, summary judgment is
warranted if, in light of the evidence viewed in the light most favorable to the
The parties do not dispute that Plaintiff suffered an adverse action: his
termination and the decision to hire/promote Owens as a full-time officer.
plaintiff, no reasonable juror could fail to return a verdict for the defendant.”
Given the factual dispute regarding the motivation behind Plaintiff’s
termination, Defendant has not met this standard and summary judgment on this
portion of Plaintiff’s First Amendment claim is inappropriate. See Handy-Clay,
695 F.3d at 545 (A “defendant’s motivation for taking action against the plaintiff is
usually a matter best suited for the jury.”).
With respect to his failure to hire/promote claim, however, Plaintiff has
failed to make a causal connection. While Plaintiff was on medical leave in
October 2015, the City offered part-time officer Lance Owens a full-time position.
Defendants contend that the City did so because Owens had been offered a fulltime officer position in another community and it did not want to lose him. The
full-time position was essentially created for Owens. Plaintiff has not shown that
his protected conduct was a factor in Owens receiving the position instead of him.
Moreover, Defendants have demonstrated that Owens would have been
hired/promoted absent Plaintiff’s protected conduct. Accordingly, the court will
grant summary judgment in favor of Defendants with respect to Plaintiff’s failure
to hire/promote claim.
In light of the factual dispute regarding the motivation for Plaintiff’s
termination, Price is not entitled to qualified immunity. See generally Harlow 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 Plaintiff,
he has alleged sufficient facts to demonstrate 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.”). Therefore, Price is not entitled to qualified immunity.
Defendants also argue that Plaintiff cannot establish liability against the City
of River Rouge. In order to establish municipal liability under § 1983, a plaintiff
must point to a municipal policy or custom that is behind the constitutional
violation. See Monell v. Dept. of Social Servs. of the City of New York, 436 U.S.
658, 690 (1978). “The ‘official policy’ requirement was intended to distinguish
acts of the municipality from acts of employees of the municipality, and thereby
make clear that municipal liability is limited to action for which the municipality is
actually responsible.” Meyers v. City of Cincinnati, 14 F.3d 1115, 1117 (6th Cir.
1994) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986)).
The City of River Rouge Public Safety Commission has “sole management
and control” over the police department pursuant to the City Charter. See Charter
at § 158. Defendants do not dispute that the Public Safety Commission acted as
the final policymaker for the City when it approved Plaintiff’s termination. See
Meyers, 14 F.3d at 1118 (“The Commission’s review does not preclude liability;
on the contrary, the Commission’s denial of Meyers’ appeal is the ultimate source
of liability in this case.”). Defendants have not established that summary judgment
is appropriate with respect to Plaintiff’s municipal liability claim.
Whistleblowers’ Protection Act
Plaintiff also asserts a Michigan Whistleblowers’ Protection Act (“WPA”)
claim, which requires an analysis similar to that of the 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 causal connection). See also M.C.L.
15.362. However, consistent with the court’s decision in Plaintiff’s original case,
which noted that WPA and First Amendment claims overlap, the court will decline
to exercise supplemental jurisdiction over Plaintiff’s WPA claim so as to avoid
jury confusion. 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.”).
IT IS HEREBY ORDERED that Plaintiff’s motion for summary judgment is
GRANTED IN PART and DENIED IN PART, consistent with this opinion and
IT IS FURTHER ORDERED that Defendants’ motion for summary
judgment is GRANTED IN PART and DENIED IN PART, consistent with this
opinion and order.
s/John Corbett O’Meara
United States District Judge
Date: September 12, 2017
I hereby certify that a copy of the foregoing document was served upon
counsel of record on this date, September 12, 2017, using the ECF system.
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