United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANTS' MOTIONS
FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR
PARTIAL SUMMARY JUDGMENT
H. CLELAND UNITED STATES DISTRICT JUDGE
is a firefighter for the City of Romulus. He brings this suit
alleging that he was unlawfully retaliated against for
exercising his First Amendment rights. He claims that
Defendant LeRoy Burcroff (the Mayor of Romulus), Defendant
Julie Wojtylko (the Mayor's Chief of Staff), and
Defendant Jadie Settles (the Director of Public Safety and
Plaintiff's supervisor), improperly suspended him after
text messages between Plaintiff and a former Romulus employee
were disclosed to the City. Plaintiff also names the City of
Romulus as a Defendant.
before the court are three motions for summary judgment:
Defendants Burcroff, Wojtylko, and City of Romulus move for
summary judgment as to all of Plaintiff's claims (Dkt.
#33); Defendant Settles similarly moves for summary judgment
as to all of Plaintiff's claims against him (Dkt. #36);
and Plaintiff moves for partial summary judgment as to Count
III of his Complaint, which seeks declaratory judgment that
the City of Romulus's “Policy #34” is a
facially unconstitutional prior restraint of free speech
(Dkt. #37). The motions are fully briefed and the court held
a hearing on November 29, 2017. Following the hearing, the
court ordered supplemental briefing from both parties, asking
them to address whether Plaintiff has standing to challenge
the constitutionality of Policy #34. (Dkt. #47.) For the
following reasons, Defendants' motions are granted and
Plaintiff's motion is denied.
suit finds its origin in a case formerly before this court:
Guzall v. City of Romulus, No. 13-11327 (E.D. Mich.)
(Parker, J.). The plaintiff there-Marianne Guzall- alleged
that she was unlawfully terminated by the City of Romulus and
some of its employees because she exercised her First
Amendment right to speak out about alleged corruption in
Romulus. (See Guzall Compl. Dkt. #41-2.) At some
point during that litigation, Guzall was ordered to disclose
over 1200 text messages exchanged between her and Plaintiff.
(Dkt. #41 Pg. ID 1057.) According to Plaintiff, these text
messages “discussed government corruption, misuse of
public funds, suspected illegal activity, and
Plaintiff[']s assistance/participation in the
Guzall litigation.” (Dkt. #41 Pg. ID 1057.)
The court in Guzall granted summary judgment to the
defendants, and judgment was entered in their favor.
Guzall v. City of Romulus, No. 13-11327, 2017 WL
3394751, at *16 (E.D. Mich. Aug. 8, 2017) (Parker, J.).
none of the individual Defendants in this case were named in
Guzall, they nonetheless learned of the text
messages. Sometime in July 2016, the Romulus City Attorney
provided Defendants Burcroff and Wojtylko copies of the
texts, and they read some-though not all-of them. (Dkt. #41-5
Pg. ID 1316, 1323-24; Burcroff Dep. Dkt. #41-6 Pg. ID 1358;
Wojtylko Dep. Dkt. #41-7 Pg. ID 1381.) Defendant Wojtylko was
“saddened” and “disappoint[ed]” by
the messages. (Wojtylko Dep. Dkt. #41-7 Pg. ID 1381.)
Defendant Burcroff cast them as “middle school gossip
stuff.” (Burcroff Dep. Dkt. #41-6 Pg. ID 1358.)
before August 2016, Defendant Settles learned about the text
messages “in passing.” (Settles Dep. Dkt. #41-11
Pg. ID 1431.) According to Defendant Settles, Defendants
Burcroff and Wojtylko may have mentioned the texts in his
presence, but he never discussed the texts with them.
(Id.) There is no dispute that Defendant Settles
did not read the texts. (Dkt. #36 Pg. ID 738; Dkt. #42 Pg. ID
happened after the disclosure of the texts in Guzall
(and why) is a matter of debate between the parties. The
parties agree that the pertinent events happened on August 2,
2016-a primary election day in Michigan.
morning, Defendant Burcroff received a phone call from
Douglas Geiss, a former state representative. (Burcroff Dep.
Dkt. #41-6 Pg. ID 1374.) Mr. Geiss informed Defendant
Burcroff that there may be some election signs too close to
polling places, a violation of rules requiring a buffer zone
around polling places on election day. (Id.) The
phone call was received just before Defendant Burcroff's
weekly executive team meeting, which generally commences at
8:30am. (Id.) Defendants Wojtylko and Settles
usually attend the weekly executive team meetings
(id. at Pg. ID 1355), though the parties have cited
nothing in the record to indicate whether they were in
attendance on August 2. The court has gleaned, of its own
accord, that at least Defendant Settles was in attendance on
August 2. (Settles Dep. Dkt. #41-11 Pg. ID 1442.) According
to Defendant Settles, there was no discussion of the election
at the meeting. (Id.)
same day, Plaintiff-on his day off-was at the Romulus
Athletic Center (“RAC”) polling location
supporting a candidate in the primary election. (Thiede Dep.
Dkt. #41-4 Pg. ID 1280.) He posted his location on Facebook.
(Id. at Pg. ID 1302.) He was wearing a t-shirt with
an International Association of Firefighters emblem on it.
(Id. at Pg. ID 1281.)
noon, two City of Romulus ordinance officers, at the
direction of Defendant Burcroff, arrived at the RAC. They
were purportedly there to check whether election activity was
happening within the 100-foot buffer zone around the polling
location. (Id. at Pg. ID 1300-03.) Plaintiff was
acquainted with one of the ordinance officers. (Thiede Dep.
Dkt. #41-4 Pg. ID 1299-30.)
ordinance officers informed Plaintiff that the sign
indicating the edge of the 100-foot buffer would need to be
moved, and they moved it. (Thiede Dep. Dkt. #41-4 Pg. ID
1300, 1302.) Plaintiff believes that the ordinance officers
were accusing him specifically of moving the 100-foot sign
from where the City would have placed it. But he also admits
that his name was never mentioned during his encounter with
the ordinance officers. (Id. at Pg. ID 1302.) The
City Clerk arrived during the interaction as part of her
rounds checking the precinct. (Id.; Craig-Bragg Dep.
Dkt. #41-10 Pg. ID 1408.) She was not at the location because
of Plaintiff, but she apologized to Plaintiff for the
inconvenience caused by moving the buffer sign. (Craig-Bragg
Dep. Dkt. #41-10 Pg. ID 1407-08.) Plaintiff apparently told
the City Clerk that “[t]his is a bad polling precinct
if you can't give the hundred feet.” (Thiede Dep.
Dkt. #41-4 Pg. ID 1281.)
point, Defendant Settles was informed by the City Ordinance
Director that there was a problem at the RAC involving
someone wearing a “T-shirt that said fireman.”
(Settles Dep. Dkt. #41-11 Pg. ID 1419.) Defendant Settles
went to the RAC with his secretary, and he got there about
fifteen to thirty minutes after the ordinance officers left.
(Id. at Pg. ID 1419-20; Thiede Dep. Dkt. #41-4 Pg.
to Plaintiff, Defendant Settles immediately came up to him
and said “I heard you had a run-in with my
ordinance.” (Thiede Dep. Dkt. #41-4 Pg. ID 1303.)
Plaintiff tried to explain what happened with the ordinance
officers. He also told Defendant Settles “I don't
work for you today” and “[y]ou're not my boss
today.” (Id. at Pg. ID 1303-04.) Another
person volunteering at the RAC with Plaintiff similarly tried
to explain what had happened with the ordinance officers.
(Warren Decl. Dkt. #41-9 Pg. ID 1402.)
Settles suspended Plaintiff until further notice and then
left. (Thiede Dep. Dkt. #41-4 Pg. ID 1304.) Plaintiff
maintains that while he was “flabbergasted, ” he
never yelled, never threatened Defendant Settles, and never
used profanity. (Id. at Pg. ID 1303.)
Settles, however, describes Plaintiff's conduct and words
as disrespectful and threatening. According to Defendant
Settles, Plaintiff raised his voice, pointed his finger, and
told Defendant Settles he wanted to “file a fucking
complaint.” (Settles Dep. Dkt. #41-11 Pg. ID 1424.)
Plaintiff told Defendant Settles that he was not required to
talk to him because it was his day off, and he continued to
make threats, including that he was going to call his
attorney. (Id.) Defendant Settles maintains that he
suspended Plaintiff because of Plaintiff's behavior and
disrespect. (Id. at Pg. ID 1442.)
was suspended (with pay) for one work day. (Thiede
Dep. Dkt. #41-4 Pg. ID 1284, 1313.) He has not been subjected to
any discipline since then. (Id. at Pg. ID 1284.)
after Plaintiff's suspension, Robert McLachlan-a person
identified only as a “City resident known to all
parties in this matter” (Dkt. #33 Pg. ID 346)-visited
the Mayor's Office. (McLachlan Dep. Dkt. #41-12 Pg. ID
1461; McLachlan Aff. Dkt. #41-8 Pg. ID 1399.) Defendant
Wojtylko allegedly told McLachlan, “I'm aware you
and [Plaintiff] are friends and are comparing notes. Be
careful. There's more than what is on the surface. He
said some hurtful, personal things about me in texts to
[Guzall], for which I will never forgive him for. He's
nobody's friend.” (McLachlan Aff. Dkt. #41-8 Pg. ID
1399.) Defendant Wojtylko continued: “[Plaintiff] knows
that we're coming after him for those texts made while on
duty, and he took the opportunity to react the way he did at
the RAC to deflect the attention to cover his ass.”
Burcroff also advised McLachlan “as a friend” to
distance himself from Plaintiff because Plaintiff was toxic.
(Id.) Defendant Burcroff allegedly told McLachlan
that the “RAC ‘incident' was the least of
‘his problems.'” (Id.) Somewhat
contradictorily, he also apparently told McLachlan that he
had spoken with Defendant Settles and that the interaction at
the RAC should have resulted in “no more than a verbal
reprimand because . . . it clearly never should have
September 2016, the City of Romulus adopted “Policy
#34.” (Dkt. #37 Pg. ID 773.) Policy #34 provides:
From time to time, the City of Romulus may be sued in a Court
of law. All verbal or written communications, information or
documents in the possession of the city related to City
business requested by a party to the litigation, or by a
third party on behalf of the party to the litigation, must be
coordinated through the City Attorney or the attorney
representing the City.
Therefore, all employees of the City shall not provide any
information or documents related to the City to a litigant or
a third party representing a litigant, unless otherwise
designated by the Mayor.
Further, all information or documents related to the City
must be provided to the City Attorney, or other attorney
representing the City in the litigation, for distribution to
the parties in the litigation or their representatives.
(Id.) There is no dispute that Plaintiff has never
been found in violation of Policy #34.
judgment is proper “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). “In deciding a motion for summary judgment, the
court must view the evidence in the light most favorable to
the non-moving party, drawing all reasonable inferences in
that party's favor.” Sagan v. United
States, 342 F.3d 493, 497 (6th Cir. 2003).
movant has the initial burden of showing the absence of a
genuine dispute as to a material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The burden then
shifts to the nonmovant, who must put forth enough evidence
to show that there exists “a genuine issue for
trial.” Horton v. Potter, 369 F.3d 906, 909
(6th Cir. 2004) (citation omitted). It is the parties'
responsibility to support their factual assertions by
citation to the record; the court is under no obligation to
search for materials in the record uncited by the parties.
brings two claims arising from his suspension: First
Amendment retaliation and violation of the Michigan
Whistleblower's Protection Act (“WPA”). He
also seeks declaratory judgment that Policy #34 is an
unconstitutional prior restraint on First Amendment free
speech. Each count will be addressed in turn.
First Amendment Retaliation
claims that the texts messages he exchanged with Guzall are
constitutionally-protected speech for which he was unlawfully
First Amendment protects a public employee's right, in
certain circumstances, to speak as a citizen addressing
matters of public concern.” Garcetti v.
Ceballos, 547 U.S. 410, 417 (2006). A claim for First
Amendment retaliation requires proof of three elements:
“1) the plaintiff engaged in constitutionally protected
speech; 2) the plaintiff was subjected to adverse action or
was deprived of some benefit, and 3) the protected speech was
a ‘substantial' or a ‘motivating factor'
in the adverse action.” Brandenburg v. Hous. Auth.
of Irvine, 253 F.3d 891, 897 (6th Cir. 2001); see
also Jenkins v. Rock Hill Local Sch. Dist., 513 F.3d
580, 585-86 (6th Cir. 2008). Defendants argue that
Plaintiff's texts are not protected First Amendment
speech and that, even if Plaintiff's texts
are protected, he has not established the required causal
connection-a “substantial” or
“motivating” factor-between his speech and his
suspension. The court agrees with Defendants on both points.
individual Defendants also argue that they are entitled to
qualified immunity on this claim (see Dkt. #33 Pg.
ID 355-57; Dkt. #36 Pg. ID 753-57) and Defendant Settles
argues that Plaintiff's claim against him in his official
capacity should be dismissed as duplicative of
Plaintiff's claim against Defendant City of Romulus (Dkt.
#36 Pg. ID 753-57). The court does not address these latter
arguments because Defendants are entitled to summary judgment
on other grounds.
court determines as a matter of law whether a public employee
engaged in constitutionally-protected speech. Farhat v.
Jopke, 370 F.3d 580, 593 (6th Cir. 2004). Where the
plaintiff is a public employee, the plaintiff must meet three
requirements to establish that his speech is protected: (1)
the employee's speech must relate to a matter of public
concern, see Connick v. Myers, 461 U.S. 138, 143
(6th Cir. 2010); (2) if the employee's speech relates to
a matter of public concern, the employee's interest
“in commenting on matters of public concern . . .
[must] outweigh the employer's interest in promoting
the efficiency of the public services it performs through its
employees, ” see Pickering v. Bd. of Educ.,
391 U.S. 563, 568 (1968); and (3) the employee's speech
must not be made “pursuant to . . . official duties,
” Garcetti v. Ceballos, 547 U.S. 410, 421
(2006). These three requirements-the “public concern,
” “balancing, ” and “pursuant
to” requirements-must all be satisfied for a public
employee's speech to be protected. Evans-Marshall v.
Bd. of Educ., 624 F.3d 332, 338 (6th Cir. 2010).
Defendants challenge the first requirement: they argue that
Plaintiff has not demonstrated that his speech relates to a
matter of public concern.
addresses a matter of public concern when it “involves
issues about which information is needed or appropriate to
enable the members of society to make informed decisions
about the operation of their government.”
Brandenburg, 253 F.3d at 898 (internal quotation and
citation omitted). “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 v.
Myers, 461 U.S. 138, 147-48 (1983). Accordingly, the
Sixth Circuit employs the “focus” test in
determining whether speech touches on a matter of public
concern. Farhat v. Jopke, 370 F.3d 580, 592 (6th
Cir. 2004). The court looks to the point or focus of the
speech in question and what the speaker intended to
communicate. Id. It does not matter whether the
speech was communicated to the public at large; private
conversations are also entitled to protected status where the
focus is a matter of public concern. Handy-Clay, 695
F.3d at 544.
court examines the speech's content, not the
speaker's motivation, when determining its focus.
Handy-Clay v. City of Memphis, 695 F.3d 531, 543-44
(6th Cir. 2012). Cursory references to private matters do not
deprive otherwise protected speech of its protected status.
Farhat, 370 F.3d at 589 (“[T]he entire speech