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Thiede v. Burcroff

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

January 18, 2018

JOHN THIEDE, Plaintiff,
LEROY BURCROFF, et al., Defendants.



         Plaintiff 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.

         Presently 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.

         I. BACKGROUND

         Plaintiff's 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.).

         Though 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.)

         Sometime 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.)[1] There is no dispute that Defendant Settles did not read the texts. (Dkt. #36 Pg. ID 738; Dkt. #42 Pg. ID 1661.)

         What 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.

         That 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.)

         That 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.)

         Around 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.)

         The 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.)

         At some 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. ID 1303.)

         According 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.)

         Defendant 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.)

         Defendant 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.)[2]

         Plaintiff was suspended (with pay) for one work day. (Thiede Dep. Dkt. #41-4 Pg. ID 1284, 1313.)[3] He has not been subjected to any discipline since then. (Id. at Pg. ID 1284.)

         Sometime 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.” (Id.)

         Defendant 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 happened.” (Id.)

         In 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.

         II. STANDARD

         Summary 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).

         The 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. Fed.R.Civ.P. 56(c).


         Plaintiff 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.

         A. First Amendment Retaliation

         Plaintiff claims that the texts messages he exchanged with Guzall are constitutionally-protected speech for which he was unlawfully disciplined.

         “[T]he 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[4] 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.

         The 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.

         1. Protected Speech

         The 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.

         Speech 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.

         The 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 does ...

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