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Whittie v. City of River Rouge

United States District Court, E.D. Michigan, Southern Division

September 12, 2017

DENNIS G. WHITTIE, Plaintiff,
v.
CITY OF RIVER ROUGE, et al., Defendants.

          OPINION AND ORDER

          John Corbett O'Meara, United States District Judge

         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.

         PROCEDURAL HISTORY

         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 Act claim.

         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.

         BACKGROUND FACTS

         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 ...


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