Martin v. Niles Housing Commission et al

Filing 41

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN S O U T H E R N DIVISION

D A V ID MARTIN, P l a in tif f , F ile No. 1:08-CV-961 v. H O N . ROBERT HOLMES BELL N IL E S HOUSING COMMISSION, et al., D e f e n d a n ts . / OPINION B e f o re the Court is a motion for summary judgment filed by Defendants Niles H o u sin g Commission, Niles Housing Commission Board of Directors, Scott Clark, Georgia B o g g s, and Jessica Millar. (Dkt. No. 31.) The Court has reviewed the parties' briefing with re sp e c t to the motion and has determined that oral argument is not necessary. W.D. Mich. L C ivR 7.2(d). For the reasons that follow, the Court will grant Defendants' motion in part a s to Plaintiff's federal claim and remand the remainder of the action to state court. I . Factual Background A c c o rd in g to his complaint, Plaintiff David Martin served as Interim Director of the N ile s Housing Commission ("NHC") for various periods in 2005 and 2007. In September 2 0 0 7 , he was appointed the Permanent Executive Director of the NHC. Plaintiff contends th a t, during his tenure as Executive Director, he made statements to other members of the

N H C regarding "concerns about the propriety or legality of the actions and statements of N H C Board members." (Compl. ¶ 27.) Plaintiff contends that, as Executive Director, he te rm in a te d several no-bid contracts that NHC board members had arranged with friends and f a m ily members. Plaintiff alleges that he informed several members of the board of the N H C , including Defendants Clark, Millar, and Boggs, that they were violating existing NHC p o lic ie s. According to Plaintiff, at a meeting on May 27, 2008, Defendant Millar stated that s h e had been intimidated by Plaintiff with respect to preparation of the minutes of a previous b o a rd meeting. Defendants Boggs, Clark, and Millar then voted to suspend Plaintiff in his p o s itio n as Executive Director. The board held another meeting on June 5, 2008. During the p u b lic portion of that meeting, Defendant Millar allegedly denied that she had been verbally in tim id a te d or threatened by Plaintiff, but asserted that her statements at the earlier meeting w e re based on a "gut feeling" to that effect. (Compl. ¶ 87.) Following a closed session at th e June 5 meeting, the board of the NHC voted to terminate Plaintiff. After Plaintiff re c e iv e d a notice of termination on June 12, 2008, Plaintiff requested a grievance hearing to c h a lle n g e the termination. The board of the NHC held the first part of a grievance hearing o n July 1, 2008, but decided to adjourn the remainder of the hearing until it could secure co u n sel. Following the July 1 hearing, Defendant Clark allegedly made comments that were q u o te d in the press to the effect that Plaintiff would not be rehired. The second part of the g rie v a n c e hearing was held on February 26, 2009, at which time the board affirmed its d e c is io n to terminate Plaintiff.

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I I . Procedural History P la in tif f filed the instant action on September 22, 2008, in Circuit Court for Berrien C o u n ty in the State of Michigan. The action was removed to this Court in October of 2008 p u rsu a n t to 28 U.S.C. §§ 1441(b) because one of Plaintiff's claims was a federal claim a ris in g under 42 U.S.C. § 1985. (Dkt. No. 1, Notice of Removal.) After removal, Plaintiff f ile d an amended complaint alleging seven claims, including one federal claim brought p u rsu a n t to 42 U.S.C. § 1983 for violation of Plaintiff's rights under the First Amendment. (D k t. No. 24, Revised First Am. Compl. ¶¶ 139-145.) The Court has original jurisdiction o v e r Plaintiff's federal claim pursuant to 28 U.S.C. § 1331, and may exercise supplemental ju ris d ic tio n over Plaintiff's state-law claims pursuant to 28 U.S.C. § 1367. I I I. Legal Standard U n d e r Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is p ro p e r if there is no genuine issue as to any material fact and the moving party is entitled to ju d g m e n t as a matter of law. In evaluating a motion for summary judgment the Court must lo o k beyond the pleadings and assess the proof to determine whether there is a genuine need f o r trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The C o u rt must construe the evidence and draw all reasonable inferences in favor of the n o n m o v in g party. Minges Creek, L.L.C. v. Royal Ins. Co. of Am., 442 F.3d 953, 955-56 (6th C ir. 2006). In order to defeat a summary judgment motion, the nonmoving party "must show s u f f ic ie n t evidence to create a genuine issue of material fact." Prebilich-Holland v. Gaylord

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E n t. Co., 297 F.3d 438, 442 (6th Cir. 2002) (citing Klepper v. First Am. Bank, 916 F.2d 337, 3 4 2 (6th Cir. 1990)). The nonmoving party must provide more than a scintilla of evidence. A n d e rs o n v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In other words, the nonmoving p a rty must present evidence sufficient to permit a reasonable jury to find in its favor. Id. E n try of summary judgment is appropriate "against a party who fails to make a showing s u f f ic ie n t to establish the existence of an element essential to that party's case, and on which th a t party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (19 8 6 ). IV . Analysis P lain tiff 's federal claim alleges that he was terminated in retaliation for engaging in c o n d u c t that is protected by the First Amendment. To establish a claim of retaliation under th e First Amendment, an employee must demonstrate that: (1 ) he engaged in constitutionally protected speech or conduct; (2) an adverse action w a s taken against him that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) there is a causal connection between elements one a n d two-that is, the adverse action was motivated at least in part by his protected c o n d u c t. S c a rb o r o u g h v. Morgan County Bd. of Educ., 470 F.3d 250, 255 (6th Cir. 2006). F u r th e rm o re , a public employee like Plaintiff must demonstrate "that the speech `touches on a matter of public concern' and that `his interest in the speech outweighs the government's c o u n te rv a ilin g interest in promoting the efficiency of the public service it provides as an e m p lo ye r.'" Haynes v. City of Circleville, 474 F.3d 357, 362 (6th Cir. 2007) (quoting Taylor

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v . Keith, 338 F.3d 639, 643 (6th Cir. 2003)). Finally, to qualify for protection, speech by a p u b lic employee must be made as a private citizen rather than pursuant to official duties. Id. a t 363 (citing Garcetti v. Ceballos, 547 U.S. 410 (2006)). Plaintiff's complaint alleges that h is protected conduct included: a. making statements to the press or in open Board meetings on matters of public interest[;] b. preventing members of the Board from interfering with the performance of [ P la in t if f ' s ] duties; c . informing members of the Board . . . of his intention to carry out the lawful d ire c tiv e s of HUD; d . carrying out . . . the lawful directives of HUD and the policies and procedures of NHC; e . acting . . . in accordance with the contracts and operating agreements between or a m o n g HUD, the Commission, the Board and the City; f . communicating truthfully with officials of HUD concerning matters of public c o n c ern ; g . filing the instant lawsuit; and h . thereafter exercising his free speech right to discuss, on his own or through c o u n se l, the NHC Board's misconduct and the HUD Report. (C o m p l. ¶ 140.) At a deposition, Plaintiff testified that the speech referred to in his co m p lain t concerned the eviction of a tenant and a dispute with other board members re g a rd in g the board's access to information and records under the Privacy Act. (Dkt. No. 31, D e f s .' Brief in Supp. of Mot. for Summ. J., App'x B, 06/11/2009 Martin Dep. 65-67, 78-80.) D e f e n d a n ts argue that this speech was not protected because it was made pursuant to 5

P lain tiff 's position as the Executive Director. Plaintiff himself testified that his statements o n the latter issues were made pursuant to his official duties. (Id. at 65, 67.) Plaintiff offers n o evidence or argument to raise a genuine issue of material fact with respect to whether he e n g a g ed in any conduct prior to the board's decision to terminate him on June 5, 2008, that w o u ld qualify for protection under the First Amendment. Indeed, in response to Defendants' m o tio n for summary judgment, Plaintiff concedes that "his statements made in his capacity a s Interim and Executive Director may not provide a clear basis for a First Amendment [r]etaliatio n claim." (Dkt. No. 33, Plf.'s Br. in Opp'n to Mot. for Summ. J. 22.) Nevertheless, Plaintiff contends that conduct after his termination on June 5, 2008, in c lu d in g the filing of the instant lawsuit in September of 2008, constitute protected conduct in support of his retaliation claim. In an affidavit filed in response to Defendants' motion, P la in tif f asserts that after the board decided to terminate him in June of 2008, he did not m a k e any public statements about his termination "until, shortly after the July 1, 2008 g rie v a n c e hearing [when Defendant Clark] publically stated that I would never be rehired." (D k t. No. 33, Attach. C, Martin Aff. ¶ 12.) After that time, Plaintiff states that he "made s e v e ra l statements challenging my termination" and "spoke with NHC residents and staff w h o were supportive of me." (Id.) Apart from the foregoing, Plaintiff offers no indication a s to the contents or context of his statements to indicate whether they would qualify as p ro tec ted speech. Plaintiff asserts that, in retaliation for his conduct, the board changed its p ro c e d u re s for the second grievance hearing. Plaintiff asserts that he was allowed to question

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D e f en d a n t Millar at the first grievance hearing but was not allowed to ask any questions or p re se n t any witnesses at the second hearing. Plaintiff apparently contends that "changing the ru le s to [Plaintiff's] great disadvantage" at the second grievance hearing, as well as the b o a rd 's affirmance of its decision not to reinstate him, constituted adverse action intended to deter him from engaging in protected conduct.1 However, as Defendants indicate, Plaintiff o f f ers no evidence to show that any of Plaintiff's conduct after July 2008 motivated any of th e board's actions. In other words, even if Plaintiff could show that he engaged in protected c o n d u c t after July 2008, and even if he could show that the board's conduct after the first g rie v a n ce hearing constituted adverse action, Plaintiff offers no evidence indicating that the latter was motivated by the former. Conclusory, unsupported allegations of causation are in s u f f ic ie n t to support a retaliation claim. See Evans v. Prospect Airport Servs., 286 F. A p p ' x 889, 896 (6th Cir. 2008); Holley v. Giles County, 165 F. App'x 447, 453 (6th Cir. 2 0 0 6 ); Harbin-Bey v. Rutter, 420 F.3d 571, 580 (6th Cir. 2005). At best, Plaintiff's evidence in d ic a te s that his allegedly protected conduct occurred some time before the board's actions. T h is is not sufficient to support an inference of retaliation. See Evans, 286 F. App'x at 895 ( n o tin g that even temporal proximity is not in itself sufficient to establish causation, unless the conduct and the adverse action occur very close in time).

The Court notes that Plaintiff offers no evidence that Defendants changed any a g re e d -u p o n rules under which Plaintiff would be allowed to ask questions and present w itn e ss e s, as Plaintiff suggests. Plaintiff himself testified that there was no set policy for h o w grievance hearings should be conducted. (Martin Dep. 52.) 7

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In summary, Plaintiff offers no evidence sufficient to raise a genuine issue of material f a ct with respect to (1) whether he engaged in any protected conduct that might have been th e basis for the board's decision to terminate him in June of 2008, and (2) whether any a c tio n s of the board after the grievance hearing in July of 2008 were motivated by any p ro te c te d conduct on the part of Plaintiff. For the foregoing reasons, the Court will grant s u m m a r y judgment in favor of Defendants as to Plaintiff's claim of retaliation under the First A m e n d m e n t. H a v in g resolved Plaintiff's federal claim, the Court notes that Plaintiff's remaining c laim s arise under state law. Pursuant to 28 U.S.C. § 1367(c)(3), the Court has discretion to d e c li n e to exercise supplemental jurisdiction over state-law claims when the claims over w h ic h the Court has original jurisdiction have been dismissed. Generally, when federal c la im s have been dismissed before trial, the Court should dismiss the state-law claims as w e l l . United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (noting that " [ n ]e e d les s decisions of state law should be avoided both as a matter of comity and to p ro m o te justice between the parties, by procuring for them a surer-footed reading of a p p lica b le law"); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988) ("[I]n the u s u a l case in which all federal-law claims are eliminated before trial, the balance of f a cto rs . . . will point toward declining to exercise jurisdiction over the remaining state-law c laim s." ). The Court notes that Plaintiff alleged a single federal claim, but the bulk of his c a se consists of his state-law claims. Comity and fairness weigh in favor of having a state

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c o u rt adjudicate Plaintiff's state-law claims. Moreover, because this case was removed from s ta te court, the Court may remand it to state court rather than dismiss the remaining claims. C o h ill, 484 U.S. at 357. A remand avoids the inconvenience and expense to the parties of re f ilin g pleadings in state court, and avoids the risk that Plaintiff's claims that were timely f ile d would be barred by a statute of limitations upon refiling. See id. at 351-52. Therefore, th e Court declines to exercise jurisdiction over Plaintiff's state-law claims and will remand th e action to state court. An order will be entered that is consistent with this opinion.

Dated: November 13, 2009

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

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