MARK A. GOLDSMITH, District Judge.
This matter is before the Court on Defendants Anthony Stewart and Randy Franks' motion for summary judgment (Dkt. 27). The motion has been fully briefed, and a hearing was held on May 3, 2018. For the reasons that follow, Defendants' motion is granted.
Plaintiff William Smith, an African-American male, began working for the Michigan Department of Corrections ("MDOC") as a Corrections Officer at the Detroit Detention Center ("DDC") on March 18, 2001. Compl. ¶ 13 (Dkt. 1). Defendant Anthony Stewart was the Warden of the DDC, and Defendant Randy Franks was the Discipline Coordinator.
On April 28, 2014 — the following Monday — the Detroit Police Department contacted Stewart, the Warden at the DDC, to inform him that Smith was allegedly involved in a felony.
An allegation of wrongdoing triggers MDOC's disciplinary procedures. An investigation is commenced to determine whether the charges have merit, and the employee is typically notified that he or she is being investigated. SAMF ¶ 1. Following the investigation, MDOC schedules a disciplinary conference with the employee to determine if there is enough evidence to substantiate an allegation that is raised in the investigatory report, and the employee will receive notice of the disciplinary conference. SAMF ¶ 9. After the conference, MDOC notifies the employee in writing of the results and the disciplinary action to be taken or recommended. SAMF ¶ 15.
While Smith was detained at the DDC, Aaron Payne, an investigator in MDOC's Internal Affairs division, came to speak with him. SAMF ¶ 44. Smith told Payne to contact his attorney.
The investigation into Smith's arrest was finished on June 20, 2014. SMF ¶ 24. The investigation report concluded that Smith appeared to have violated two work rules: Rule No. 5, Conduct Unbecoming, and Rule No. 38, Reporting Requirements. SMF ¶ 25; Investigation Report, Ex. 6 to Def. Mot., at 6, PageID.352 (Dkt. 27-7).
Rule No. 5 of the MDOC Employee Handbook provides,
Any conduct by employees involving theft shall result in discharge. MDOC Employee Handbook, Ex. 7 to Def. Mot., at 20, PageID.356 (Dkt. 27-8). Rule No. 38 provides,
On June 21, 2014, a Notice of Disciplinary Conference was apparently "produced." SMF ¶ 33. There is no indication that Smith received this notice: the employee signature is missing, and an Employee Disciplinary Report dated September 8, 2014 is blank in the space provided for "DATE the Employee was Served with a Written Notice of Charge,"
A disciplinary conference was held on August 1, 2014. SMF ¶ 31. Smith attended the conference, along with a union representative, Kenneth Gibson.
The record of the disciplinary conference reflects that Smith informed those present that the charge of assault less than murder against him was dismissed. SAMF ¶ 37, Record of Disciplinary Conference, Ex. K to Pl. Resp., at 1, PageID.363 (Dkt. 32-11). He further stated that his next court date would be August 7, 2014, where he would be heard on charges of two counts of felonious assault, felony-firearm, and destruction of property of $20,000. Record of Disciplinary Conference at 1, PageID.363. Smith disputed the factual allegations underlying his charges and alleged work violations. SAMF ¶ 37.
At the conclusion of the hearing, Stewart determined that Smith's behavior violated MDOC Rules 5 and 38, and recommended that Smith be discharged. SMF ¶¶ 41-42. On September 8, 2014, MDOC Discipline Coordinator Jennifer Nanasy also decided to terminate Smith, SMF ¶ 43; Nanasy provided an affidavit stating that she independently determined that discharge was appropriate. Jennifer Nanasy Aff., Ex. 2 to Def. Reply, ¶ 13 (Dkt. 37-3). Smith was terminated on September 8, 2014. SAMF ¶ 27.
Following the termination, Smith had the ability to file a grievance through his union or with the Michigan Civil Service Commission. SMF ¶ 44. A grievance filed through the union would need to be filed within twenty-one days of his termination; for a grievance filed pursuant to the Michigan Civil Service Commission guidelines, the deadline would be fourteen days after his termination.
Eduardo Reyes, the former MDOC union local chapter Vice President and President, testified that he filed a grievance on Smith's behalf, but he could not identify when the grievance was filed or produce a copy of it. SMF ¶ 48. MDOC has no record of receiving a grievance submitted by or on behalf of Smith in 2014.
The charges against Smith were dismissed without prejudice on March 18, 2015. Order of Dismissal, Ex. 16 to Def. Mot. (Dkt. 27-17). Smith attempted to have MDOC reinstate him to his position, but his request was denied. SAMF ¶¶ 60-61. Franks testified that he could not recall an instance where an employee was charged with a felony and failed to be reinstated after the felony charges were dismissed. SAMF ¶ 65.
Smith filed the instant complaint on October 10, 2016, alleging violations of his due process and equal protection rights and a claim of conspiracy. Defendants have moved for summary judgment on all claims.
A motion for summary judgment under Federal Rule of Civil Procedure 56 shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists when there are "disputes over facts that might affect the outcome of the suit under the governing law."
Once the movant satisfies its initial burden of demonstrating the absence of any genuine issue of material fact, the burden shifts to the nonmoving party to set forth specific facts showing a triable issue of material fact.
Smith asserts several claims pursuant to 42 U.S.C § 1983. To prevail on a § 1983 claim, a plaintiff must prove that "(1) the defendant was a person acting under the color of state law, and (2) the defendant deprived the plaintiff of rights, privileged, or immunities secured by the Constitution or laws of the United States."
Smith argues that he was denied his right to procedural due process, guaranteed by the Fourteenth Amendment to the Constitution, because he was denied the pre-termination and posttermination process which he is owed as a public employee.
"[P]rior to termination of a public employee who has a property interest in his employment, the due process clause requires that the employee be given `oral or written notice of the charges against him or her, an explanation of the employer's evidence, and an opportunity to present his or her side of the story to the employer.'"
Smith certainly received notice of the conference — although he may not have received the standard notice form, he did learn that the conference was taking place, and appeared with a union representative. The record of the conference reflects that Stewart provided a summary of the allegations against Smith, and allowed him an opportunity to respond. Smith admits that he took such an opportunity, stating that at the conference he denied all of the facts underlying his alleged work violations. SAMF ¶ 37.
Smith argues that he "was not even aware of the charges until he showed up at the conference with no time to adequately prepare." Pl. Resp. at 25, PageID.831 (Dkt. 32). There is no indication in the record that, prior to the hearing, Smith was aware of what the charges against him were. The Notice of Conference clearly provides this information, but as stated, there is no indication that Smith ever received this Notice. The Questionnaire that Smith received in May does not provide any information about which rules he was accused of violating.
However, he was informed at the conference of the charges against him. "[A]n employee has a right to be informed of the nature of the charges, but is not necessarily entitled to significant advance warning of the time of the hearing. Indeed, other courts have found pretermination proceedings to be constitutionally adequate where an employee was only informed of the nature of the charges during the hearing."
Similarly, in
Here, Smith was informed of the charges against him at the hearing, was informed of the evidence against him, and had the opportunity to respond to the charges. He therefore received the pre-termination due process to which he is entitled.
Smith also argues that he was not afforded his post-termination due process.
Here, Smith had post-termination remedies available; although he claims that he was unable to file a grievance, this appears to be an issue with his union rather than with Defendants.
Smith also claims that Eduardo Reyes filed a grievance on his behalf. The Grievance Procedure provides that a non-probationary employee who alleges that she was suspended, demoted, or discharged without just cause may initiate a grievance: "In the Department of Corrections, grievances regarding disciplinary action for a penalty determined by the director or his/her designee shall be filed directly to Step 2. All other disciplinary action grievances shall be initiated in writing and filed to the Step 1 designee." MCO Agreement, Ex. 13 to Def. Mot., at 31, PageID.392 (Dkt. 27-14). The time limit for a Step 1 grievance is twenty-one days; for Step 2, the grievance must be appealed "within 45 calendar days from receipt of the Step 1 written answer." MCO Agreement at 34, PageID.395. Reyes does not know when he filed the grievance, saying only in his deposition that "it was warm outside." Eduardo Reyes Dep., Ex. Q to Pl. Resp., at 30, PageID.1122 (Dkt. 32-17). He did not remember what year it was.
Based on the above, Smith's procedural due process claim is denied.
In order to state a substantive due process claim, a plaintiff must show either "(1) official acts that are unreasonable and arbitrary and `may not take place no matter what procedural protections accompany them,' [or] (2) official conduct that `shocks the conscience.'"
"[I]f a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process."
The Due Process Clause also "provides heightened protection against government interference with certain fundamental rights and liberty interests."
For these reasons, Smith's substantive due process claim is dismissed.
Smith argues that his right to equal protection was violated because a number of other MDOC employees were charged with felonies based on conduct similar to that of which Smith was accused, but were not terminated and are still employed by MDOC. Pl. Resp. at 28, PageID.834.
"To establish an equal protection claim against a public employer under § 1983, the plaintiff must show that the employer made an adverse employment decision with discriminatory intent and purpose."
To establish a prima facie case, Smith must show that (1) he is a member of a protected class, (2) he suffered an adverse employment action, (3) he was qualified for his position, and (4) he was treated differently than similarly-situated non-protected employees.
Defendants argue that Smith cannot prove that he was treated differently than nonprotected individuals for the same or similar conduct. Def. Mot. at 19, PageID.284. Smith argues that he has "testified to a number of employees, including some charged with felonies based on conduct similar to that which he was accused of, that were not terminated[.]" Pl. Resp. at 28, PageID.834. The principle evidence Smith has is his own deposition testimony, where he admitted that he did not know many of the particulars of these individuals' situations, did not see police reports or speak to investigators in these cases, and learned of much of this information through other people.
Smith also relies on Stewart's testimony, where Stewart acknowledged that he attended a disciplinary conference for a white police officer, who was recently convicted of a misdemeanor and is still employed. Stewart Dep. Tr., Ex. B to Pl. Resp., at 34-35, PageID.923 (Dkt. 32-2). But Smith was charged with a felony, not a misdemeanor, and there is reason to think that these would be treated differently. For example, Rule 16, "Criminal Acts — Felony" establishes certain reporting requirements when an employee is charged with a felony, and specifically notes that "[f]elonious behavior not resulting in a felony conviction may still result in disciplinary action up to and including discharge for violation of Work Rule #5 `Conduct Unbecoming.'" MDOC Employee Handbook at 24, PageID.357.
The second employee that Stewart mentioned was Abraham Paraza, who was still working even though criminal charges were pending against him. Stewart Dep. Tr. at 129, PageID.960. There is no indication that these charges were felony charges, nor is there any basis Stewart identifies for his knowledge of Paraza's conduct and subsequent discipline. Stewart did not testify that he was involved in Paraza's disciplinary proceedings.
Finally, Smith points to testimony from Aaron Payne, where Payne stated that he had never seen a situation where an employee was terminated for failing to report that he was arrested; i.e. for violating Rule No. 38. Aaron Payne Dep. Tr., Ex. E to Pl. Resp., at 72, PageID.1025 (Dkt. 32-5). But Smith was terminated for violating both Rule No. 38
Accordingly, Smith has failed to put forth evidence of a similarly-situated non-protected employee who was treated differently than he was. Because he cannot meet his burden of establishing a prima facie case, the Court need not continue with the burden-shifting analysis. The equal protection claim is dismissed.
Finally, Smith argues that Defendants conspired to deprive him of the equal protections of the law. In order to prevail on a claim for conspiracy pursuant to 42 U.S.C. § 1985, a plaintiff must prove that defendants
Because all of the other claims are dismissed against Defendants Stewart and Franks, the conspiracy claim cannot stand.
For the reasons provided, Defendants' motion for summary judgment (Dkt. 27) is granted.
SO ORDERED.
A separate section of the CBA provides that if an employee is suspended for investigation, suspension without pay "shall not exceed a total of seven calendar days."
