PATRICK J. DUGGAN, District Judge.
On October 5, 2010, Robert Majchrzak ("Plaintiff") filed this lawsuit, alleging that Wayne County ("the County") and Kerreen Conley wrongfully terminated his employment in response to his raising concerns about faulty equipment at a sewage pumping station. Plaintiff and Defendants filed cross-motions for summary judgment pursuant to Federal Rule of Civil Procedure 56, and these motions are presently before the Court. The matter has been fully briefed, and the Court heard oral argument on September 8, 2011. For the reasons stated below, the Court denies Defendants' motion and grants Plaintiff's motion.
Plaintiff was formerly employed as a pump station mechanic at the Milk River Pumping Station ("MRPS"), a sanitary sewage pump station located in northeast Wayne County, Michigan. MRPS serves the cities of Grosse Pointe Woods, Harper Woods, and St. Clair Shores. During heavy rains, the water level rises in an underground storage area known as the "wet well." When the wet well reaches a certain level, water is pumped to a Detroit wastewater treatment plant, preventing the flooding of basements in nearby homes. The Michigan Department of Environmental Quality has issued a permit authorizing MRPS to discharge water into the Milk River in accordance with certain limitations and monitoring requirements.
Wayne County operates MRPS and sets billing rates for customer communities. Wayne County also prepares the MRPS budget, although budget oversight responsibility lies with the Milk River Intercounty Drainage District (the "Drainage District"), a drainage district created pursuant to Michigan's Drain Code of 1956, Michigan Compiled Laws § 280.101 et seq. The Drainage District is led by a five-member Drainage Board consisting of one representative each from Wayne County, Macomb County, and the Michigan Department of Agriculture, plus two rotating members from the cities of Harper Woods, Grosse Pointe Woods, and St. Clair Shores. In July 2010, the Board's members were Michael Gregg, from the Michigan Department of Agriculture; Butler Benton, Jr., from the Wayne County Department of Public Services; Gene Schabath, from the Macomb County Public Works Office; Robert Hinson, the Mayor of St. Clair Shores; and James Leidlein, the Manager of the City of Harper Woods. As part of the annual budgeting process, Wayne County invites representatives of the customer communities to an informal meeting to review the budget before it is presented to the Drainage
On July 1, the informal budget meeting was held in the City of Grosse Pointe Woods. Dennis Scully presented the budget for Wayne County, and attending as representatives of the customer communities were Laura Stowall for Harper Woods and Al Fincham for Grosse Pointe Woods. Plaintiff took four hours of vacation time to attend the meeting, allegedly appearing without invitation. Appearing with Plaintiff was Irene Maguet, a St. Clair Shores resident who frequently attends Drainage Board meetings and has been called "the watch-dog for the Milk River." Conley Dep. 39:24, Mar. 31, 2011.
Plaintiff claims that he introduced himself to the meeting attendees as a citizen of Macomb County who worked at the Milk River Pump Station. Majchrzak Dep. 127:24-128:1, Mar. 7, 2011. Fincham and Stowall did not recall Plaintiff stating that he was a concerned citizen. Stowall Dep. 29:1-13, Apr. 26, 2011; Fincham Dep. 36:16-24, Apr. 26, 2011. Attendees were handed copies of the following memo Plaintiff had drafted:
Pl.'s Br. Supp. Mot. Summ. J. Ex. A. Meeting attendees apparently questioned Plaintiff about the contents of this memo.
After the meeting, Scully advised Kerreen Conley, Wayne County's Facilities Management Director, of Plaintiff's attendance at the meeting and his 14-point memo. Conley, Benton, and Wayne County Superintendent Firooz Fath-Azam investigated the memo for accuracy. This investigation concluded that although many of the statements regarding equipment failures were correct, MRPS was in compliance with all operational requirements.
On July 7, 2010, Conley terminated Plaintiff's employment. His discharge notice provides the following reason for termination:
Pl.'s Br. Supp. Mot. Summ. J. Ex. F.
On October 5, 2010, Plaintiff filed this action, seeking damages under Michigan's Whistleblowers' Protection Act ("WPA"), Michigan Compiled Laws § 15.361 et seq., and 42 U.S.C. § 1983 for violation of his rights under the First Amendment to the United States Constitution. Defendants have moved for summary judgment on Plaintiff's claims pursuant to Federal Rule of Civil Procedure 56, and Plaintiff has filed a motion for partial summary judgment as to liability.
Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The central inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). After adequate time for discovery and upon motion, Rule 56 mandates summary judgment against a party who fails to establish the existence of an element essential to that party's case and on which that party bears the burden of proof at trial. See Celotex Corp. v.
Once the movant meets this burden, the non-movant must come forward with specific facts showing that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). To demonstrate a genuine issue, the non-movant must present sufficient evidence upon which a jury could reasonably find for the non-movant; a "scintilla of evidence" is insufficient. Liberty Lobby, 477 U.S. at 252, 106 S.Ct. at 2512. The court must accept as true the non-movant's evidence and draw "all justifiable inferences" in the non-movant's favor. Id. at 255, 106 S.Ct. at 2513. The inquiry is whether the evidence presented is such that a jury applying the relevant evidentiary standard could "reasonably find for either the plaintiff or the defendant." Id., 106 S.Ct. at 2514.
"The WPA was enacted to encourage employees to assist in law enforcement and to protect employees who participate in whistleblowing activities." Trepanier v. Nat'l Amusements, Inc., 250 Mich.App. 578, 584, 649 N.W.2d 754, 758 (Mich.Ct. App.2002). The statute provides in pertinent part:
Michigan Compiled Laws § 15.362. "To establish a prima facie case, it must be shown that (1) the plaintiff was engaged in protected activity as defined by the Whistleblowers' Protection Act, (2) the plaintiff was discharged, and (3) a causal connection existed between the protected activity and the discharge." Shallal v. Catholic Soc. Servs., 455 Mich. 604, 610, 566 N.W.2d 571, 574 (Mich.1997). If Plaintiff succeeds in establishing his prima facie case, the burden shifts to Defendants to articulate a legitimate reason for the discharge. See Phinney v. Verbrugge, 222 Mich.App. 513, 563, 564 N.W.2d 532, 558 (Mich.Ct.App. 1997). If Defendants carry this burden, Plaintiff may prevail by proving that the reason offered was a pretext for the discharge. Id. at 563, 564 N.W.2d at 558.
There is no dispute that Plaintiff was discharged, and his disciplinary notice clearly provides that he was discharged for his actions at the July 1, 2010 meeting. The parties disagree as to whether those actions constitute protected activity under the WPA. "An employee is engaged in protected activity under the Whistleblowers' Protection Act who has reported, or is about to report, a suspected violation of law to a public body." Shallal, 455 Mich. at 610, 566 N.W.2d at 575. "The suspected violation of the law is judged on a subjectively reasonable standard." Smith v. Gentiva Health Servs., Inc., 296 F.Supp.2d 758, 762 (E.D.Mich.2003) (citing Melchi v. Burns Int'l Sec. Servs., Inc., 597 F.Supp. 575 (E.D.Mich.1984)).
Plaintiff may not have made his report to the Drainage Board as he had intended, but he nevertheless reported to a "public body" within the meaning of the statute. A "public body" includes "[a] county, city, township, village, intercounty, intercity, or regional governing body, a council, school district, special district, or municipal corporation, or a board, department, commission, council, agency, or any member or employee thereof." Michigan Compiled Laws § 15.361(d)(iii). Plaintiff distributed his memo to individuals employed by Wayne County and the cities of Harper Woods and Grosse Pointe Woods. These employees fall within the scope of the statutory definition. The statute's language does not limit its protections to reports made to the intended public body, and the Court can see no reason to impose such a constraint where the legislature did not do so.
Defendants argue that Plaintiff's claim fails because the State, County, and Drainage Board were already aware of the information Plaintiff reported. They assert, without any supporting authority, that "[t]he whistleblower bears the burden of establishing that he was justified in believing that a report to the public body was necessary." Defs.' Reply Br. 3. The Court is unaware of any case law imposing this burden, and the statute's language certainly does not do so. This requirement would actually conflict with the purpose of the WPA, as theoretically, only the first employee to report a suspected violation would enjoy the statute's protections. Absent some indication that the legislature intended such narrow protection, the Court will apply the statute as it was enacted.
Defendants assert that even if Plaintiff could make his prima facie case, they have shown a legitimate reason for terminating his employment. They contend that Plaintiff made false claims, but a plaintiff need not establish the truth of his allegations to prevail under the WPA. See Melchi, 597 F.Supp. at 583 (the legislature's decision to protect reporting of "suspected violations" encourages employees to report violations, and the statute's purpose would be thwarted if employees were subject to reprisal where it is ultimately shown that the employer did not violate the law). Furthermore, the State of Michigan's violation and enforcement notices indicate that Plaintiffs allegations were not entirely baseless. The County's investigation summary also conceded that many of Plaintiff's allegations
Plaintiff has established protected activity under the WPA, as he reasonably believed that the County's conduct violated the law and reported the suspected violation to a public body. Plaintiff's termination notice clearly provides that he was discharged because of this activity. The Court therefore concludes that Plaintiff must be granted summary judgment on his WPA claim with respect to the issue of Defendants' liability.
The Court notes that there is evidence indicating that Plaintiff's motives were not entirely altruistic. For example, Plaintiff's memo recommends regular meetings between management and employees, and asks why the County is not accountable to its employees. These matters cannot be considered anything but employment gripes. Defendants have also presented testimony indicating that Plaintiff's reporting of violations was motivated in part by dissatisfaction with recent organizational changes. However, where the primary focus of the employee's communication is the suspected violation of the law, as the Court believes is the case here, the employee may still obtain relief. Melchi, 597 F.Supp. at 586. In such instances, courts have factored the plaintiff's mixed motives into the determination of damages. See id. The jury should therefore be permitted to hear evidence of Plaintiff's personal motives for raising the suspected violations and factor those motives into their determination of damages.
"While public employees may not be required to sacrifice their First Amendment free speech rights in order to obtain or continue their employment, a state is afforded greater leeway to control speech that threatens to undermine the state's ability to perform its legitimate functions." Rodgers v. Banks, 344 F.3d 587, 596 (6th Cir.2003) (citations omitted). "Therefore, in determining whether a public employer has violated the First Amendment by firing a public employee for engaging in speech, the Supreme Court has instructed courts to engage in a three-step inquiry." Id. First, the Court must determine whether the speech addressed a matter of public concern. Id. (citing Connick v. Myers, 461 U.S. 138, 143, 103 S.Ct. 1684, 1688, 75 L.Ed.2d 708 (1983)). This is a question of law for the Court to resolve, although there may be factual questions for a jury if it is disputed what words were specifically stated. Hughes v. Region VII Area Agency on Aging, 542 F.3d 169, 180 (6th Cir.2008). "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, 103 S.Ct. at 1690. "Matters of public concern include speech that `relates to any matter of political, social, or other concern to the community.'" Rodgers, 344 F.3d at 596 (quoting Connick, 461 U.S. at 146, 103 S.Ct. at 1690). "[S]peech falling into this category includes informing the public that a governmental entity failed to `discharge its governmental responsibilities.'" Id. (quoting Connick, 461 U.S. at 148, 103 S.Ct. at 1690). It does not matter if the employee's suspicions were incorrect, so long as the statements were of public concern and not false statements deliberately or recklessly made. See v. City of Elyria, 502 F.3d 484, 492 (6th Cir.2007). "The inquiry
"Along these lines, the Supreme Court has emphasized that the employee must be speaking as a citizen, not as an employee for personal interest purposes." Rodgers, 344 F.3d at 596. A public employee speaking pursuant to his official responsibilities is not speaking as a citizen, and his speech is therefore not constitutionally protected. Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 1960, 164 L.Ed.2d 689 (2006).
If the speech addressed a matter of public concern, the Court must "balance the interests of the public 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 services it performs through its employees.'" Rodgers, 344 F.3d at 596 (quoting Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968)). The application of the Pickering balancing test is a matter of law for the Court to decide. Hughes, 542 F.3d at 181.
"Finally, the court must determine whether the employee's speech was a substantial or motivating factor in the employer's decision to take the adverse employment action against the employee." Rodgers, 344 F.3d at 596 (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977)). "[T]he employee must `point to specific, nonconclusory allegations reasonably linking her speech to employer discipline.'" Id. at 602 (quoting Farmer v. Cleveland Pub. Power, 295 F.3d 593, 602 (6th Cir.2002)).
The evidence in this case indicates that Plaintiff's speech involved a matter of public concern and was entitled to First Amendment protection. Plaintiff's statements addressed the operational capability of a sewage pumping facility. This is obviously of concern to local residents, whose basements could be flooded in the event of an equipment failure. Plaintiff called attention to equipment failures that apparently constituted violations of state environmental regulations, and "[p]ublic interest is near its zenith when ensuring that public organizations are being operated in accordance with the law." Marohnic v. Walker, 800 F.2d 613, 616 (6th Cir. 1986) (citing Connick, 461 U.S. at 149, 103 S.Ct. at 1691).
Defendants argue that Plaintiff was not speaking as a citizen, but the Court disagrees. Plaintiff may have intended to advance his own interests through the memo, but his motive is only one factor to be considered in determining whether his speech may be characterized as relating to a matter of public concern. Chappel, 131 F.3d at 576. Personal motivation can exempt speech from First Amendment protection where it so dominates the substance of the speech that the "point" or "communicative purpose" of the speech becomes a matter of merely personal concern. Id. at 574-75. "Whether an employee's statement is predominated by `the employee's personal interest qua employee' is primarily a content-based inquiry, not an exclusively motive-based inquiry." Id. at 575 (quoting Brown v. City of Trenton, 867 F.2d 318, 322 (6th Cir.1989)). Although the evidence suggests that Plaintiff was personally motivated to criticize the County's management of MRPS, the Court cannot conclude that expression of an employment gripe was the point of Plaintiff's speech. The first eleven of the fourteen points in Plaintiff's memo address equipment failures, several of which apparently
Plaintiff's claim is not barred by Garcetti, as Defendants argue, as he did not speak pursuant to his official job duties. Plaintiff attended the meeting during his vacation time, and there is no indication that his position required him to attend board or budget meetings or otherwise raise concerns to MRPS customer communities. It is irrelevant that Plaintiff conveyed knowledge gained through his employment. The Supreme Court has made clear that the public has a right to hear public employees' views even on matters related to their employers, as "[p]ublic employees are `the members of a community most likely to have informed and definite opinions' about a wide range of matters related, directly or indirectly, to their employment." Borough of Duryea v. Guarnieri, ___ U.S. ___, 131 S.Ct. 2488, 2500, 180 L.Ed.2d 408 (2011) (quoting Pickering, 391 U.S. at 572, 88 S.Ct. at 1736).
The Court next considers the Pickering balancing of interests, and concludes that it weighs in Plaintiff's favor. This balancing of interests has been found to weigh in favor of protecting public employees' speech where there is no indication that the speech impeded the employee's ability to perform job duties or otherwise interfered with the employer's operation. See Pickering, 391 U.S. at 573, 88 S.Ct. at 1737. Here, Plaintiff has presented testimony of Butler Benton, Jr., stating that the memo did not cause embarrassment for the County. See Arbitration Tr. 515. Defendants have also failed to identify any disruption of operations resulting from the memo. There is no evidence before the Court indicating that Plaintiff's speech impeded his ability to perform his job duties as a mechanic. Although Defendants have a general interest in ensuring that the County's operations are viewed as efficient and effective, the Court concludes that this interest is not so great as to justify limiting employees' contributions to public debate. Statements by public employees on matters of public concern "must be accorded First Amendment protection despite the fact that the statements are directed at their nominal superiors." Pickering, 391 U.S. at 574, 88 S.Ct. at 1737.
Finally, it cannot be reasonably debated that Plaintiff's speech was the motivating factor for his termination. Plaintiff's termination notice specifically cites his conduct at the July 1 budget meeting as the reason for his termination. See Pl.'s Br. Supp. Mot. Summ. J. Ex. F. The Court therefore concludes that Plaintiff has established Defendants' liability under 42 U.S.C. § 1983 for First Amendment retaliation.
Accordingly,
On October 5, 2010, Robert Majchrzak ("Plaintiff") filed this lawsuit, alleging that Wayne County ("the County") and Kerreen Conley wrongfully terminated his employment in response to his raising concerns about faulty equipment at a sewage pumping station. Presently before the Court is the County's motion for reconsideration of the Court's order denying Defendants'
Plaintiff was formerly employed as a mechanic at the Milk River Pumping Station, a sanitary sewage pump station operated by the County. The County holds regular meetings with representatives of customer communities, and held such a meeting on July 1, 2010. Plaintiff attended this meeting and introduced himself to the other attendees as a citizen of Macomb County who worked at the Milk River Pumping Station. He distributed copies of a memo detailing, among other things, broken equipment at the pumping station. Plaintiff alleged that due to these equipment failures, the station was not in compliance with its permit from the Michigan Department of Environmental Quality. Plaintiff's employment was terminated the next week. His discharge notice provides the following reason for his termination:
Compl. ¶ 13.
Plaintiff filed this suit against the County and one of its managers, Kerreen Conley, seeking damages under Michigan's Whistleblowers' Protection Act, Michigan Compiled Laws § 15.361 et seq., and 42 U.S.C. § 1983 for violation of his rights under the First Amendment to the United States Constitution. Defendants moved for summary judgment, and Plaintiff moved for partial summary judgment with respect to the issue of liability. The Court denied Defendants' motion and granted Plaintiff's motion in an Opinion and Order dated December 22, 2011. On January 31, 2012, the County filed a motion for reconsideration of this order, arguing that Plaintiff has failed to establish that his termination resulted from an official County policy. Plaintiff filed his motion to strike the County's motion on February 7, 2012. In his motion, Plaintiff also seeks sanctions under Local Rule 11.1 on grounds that the County's motion is frivolous.
A motion for reconsideration is granted only if the movant demonstrates that the Court and the parties have been misled by a palpable defect and that correcting the defect will result in a different disposition of the case. E.D. Mich. LR 7.1(h)(3). A "palpable defect" is one that is "obvious, clear, unmistakable, manifest, or plain." Fleck v. Titan Tire Corp., 177 F.Supp.2d 605, 624 (E.D.Mich.2001). "[T]he court will not grant motions for rehearing or reconsideration that merely present the same issues ruled upon by the court, either expressly or by reasonable implication." E.D. Mich. LR 7.1(h)(3). The purpose of a motion for reconsideration is not "to give an unhappy litigant one additional chance to sway the judge." Pakideh v. Ahadi, 99 F.Supp.2d 805, 809 (E.D.Mich.2000) (quoting Durkin v. Taylor, 444 F.Supp. 879, 889 (E.D.Va.1977)).
Plaintiff argues that the motion for reconsideration is untimely, and the Court agrees. A motion for reconsideration "must be filed within 14 days after entry of the judgment or order." E.D. Mich. LR 7.1(h)(1). The order that is the subject of
The County argues that Plaintiff must establish that his termination resulted from an official County policy in order to impose municipal liability, citing Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
Id. at 694, 98 S.Ct. at 2037-38. The court must "`identify those officials or governmental bodies who speak with final policymaking authority for the local governmental actor concerning the action alleged to have caused the particular constitutional or statutory violation at issue.'" McMillian v. Monroe Cnty., 520 U.S. 781, 784-85, 117 S.Ct. 1734, 1736, 138 L.Ed.2d 1 (1997) (quoting Jett v. Dallas Independent School Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 2724, 105 L.Ed.2d 598 (1989)).
The Court concludes that Plaintiff's evidence is more than sufficient to establish that his termination resulted from an official County policy. Butler Benton, who was at the relevant time the County's Deputy Director of the Department of Environment, testified that he made the decision to terminate Plaintiff's employment. Arbitration Tr. 415:16-416:1, Apr. 21, 2011. Benton testified that he exercised "broad policy and managerial control of the department, and all aspects of [its] operations," including the Milk River Pumping Station. Arbitration Tr. 386:1-24. Benton stated that he made "all decisions regarding suspension or termination," and was not required to consult the County's Labor Relations or Human Resources staffs in making such decisions. Arbitration Tr. 429:19-25. Joyce Ivory, the president of the union of which Plaintiff was a member, confirmed this, stating that as Deputy Director of the Department of Environment, Benton had "complete and final authority over discipline, discharge, work rules, and all other policies in the Department." Ivory Aff. ¶ 8. According to Ivory, Benton "was the highest ranking County official in the department where [Plaintiff] worked," and "was responsible for revising the discipline policies cited to by the County in [Plaintiff's] notice of discharge." Id. This evidence establishes that with respect to Plaintiff's termination, Benton was an official "whose edicts or acts may fairly be said to represent official policy." Monell, 436 U.S. at 694, 98 S.Ct. at 2037-38; see also Burkhart v. Randles, 764 F.2d 1196, 1202-03 (6th Cir.1985). Contrary to the County's assertion, Plaintiff's claim does not rest upon respondeat superior liability. The Court has carefully reviewed the County's arguments, but concludes that it did not err in granting Plaintiff's motion. Accordingly, the County's motion for reconsideration must be denied.
As the Court has concluded that the County's motion for reconsideration shall be denied, Plaintiff's motion to strike the County's motion is moot.
Plaintiff also requests sanctions pursuant to Local Rule 11.1, arguing that the County filed its motion simply to delay trial. Pursuant to the Local Rule, the
Fed.R.Civ.P. 11(c)(2). The Sixth Circuit has interpreted this provision as a mandatory "safe harbor" prerequisite to seeking sanctions. See Ridder v. City of Springfield, 109 F.3d 288, 296-97 (6th Cir.1997). Plaintiff has not complied with the "safe harbor" provision. The motion for sanctions was not filed separately, and was filed only seven days after the challenged motion. The Court must therefore deny Plaintiff's motion for sanctions.
Accordingly,
