United States District Court, E.D. Michigan, Southern Division
MAJOR L. RUSSELL, Plaintiff,
CITY OF DETROIT, et al., Defendants.
ORDER (1) DENYING DEFENDANTS' MOTION FOR AMENDED
JUDGMENT PURSUANT TO FED. R. CIV. P. 59(E) AND/OR
RELIEF FROM ORDER PURSUANT TO FED. R. CIV.
P. 60(B)(6) (ECF #44) AND (2) DENYING PLAINTIFF'S MOTION
FOR ALTERATION OF JUDGMENT UNDER FED. R. CIV. P. 59(E) (ECF
MATTHEW F. LEITMAN UNITED STATES DISTRICT JUDGE
action, Plaintiff Major L. Russell, asserts claims under 42
U.S.C. § 1981 (“Section 1981”) for race
discrimination and under 42 U.S.C. § 1983
(“Section 1983”) for retaliation in violation of
the First Amendment against several of his former superior
officers at the Detroit Fire Department (the
“DFD”) and against the City of Detroit.
(See Compl., ECF #1.) On November 6, 2017, the
Defendants moved for summary judgment on both claims.
(See ECF #28.) On May 2, 2018, the Court entered an
Opinion and Order in which it granted in part and denied in
part Defendants' motion for summary judgment.
(See Opinion and Order, ECF #41.) In the Opinion and
Order, the Court denied summary judgment on Russell's
First Amendment retaliation claim against Defendant
Houseworth and granted summary judgment in favor of
Defendants on all of Russell's remaining claims.
and Defendant Houseworth have now moved to alter or amend the
judgment pursuant to Rule 59(e) of the Federal Rules of Civil
Procedure. (See Defs.' Mot. to Alter or
Am. J., ECF #44; Pl.'s Mot. to Alter or Am. J., ECF #45.)
For the reasons explained below, the Court
DENIES both motions.
Rule 59, a court may alter the judgment based on: (1) a clear
error of law; (2) newly discovered evidence; (3) an
intervening change in controlling law; or (4) a need to
prevent manifest injustice.” Leisure Caviar, LLC v.
U.S. Fish & Wildlife Serv., 616 F.3d 612, 615 (6th
Cir. 2010) (internal quotations omitted). “A motion
under Rule 59(e) is not an opportunity to re-argue a
case.” Sault Ste. Marie Tribe of Chippewa
Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998).
And a party cannot use Rule 59(e) to “raise new legal
arguments that could have been raised before a judgment was
issued.” Roger Miller Music, Inc. v. Sony/ATV
Publ'g, LLC, 477 F.3d 383, 395 (6th Cir. 2007).
Court denies both motions because the Court already carefully
considered and rejected the bulk of each party's present
arguments in its prior Opinion and Order and because neither
party has demonstrated that the Court made a clear error of
law in the Opinion and Order. The Court addresses each
party's primary arguments below.
Houseworth challenges the Court's conclusion that Russell
was speaking on a matter of public concern in his letter to
Commissioner Donald Austin, dated May 18, 2013 (the
“Austin Letter”). The Court determined that the
Austin Letter addressed a matter of public concern because
Russell framed his complaints in that letter with reference
to Executive Order 2010-2, which relates to the City of
Detroit's anti-discrimination policy. The Court concluded
that in light of the manner in which Russell framed his
complaints, they could reasonably be understood as relating
to unlawful discrimination - a matter of public concern.
counters that the prohibitions in Executive Order 2010-2 are
not limited to unlawful discrimination and that Russell's
reference to that order does not necessarily indicate that he
is complaining about such discrimination. In support of this
argument, Houseworth highlights that the Executive Order is
named: “Internal Policy Against Discrimination and
Harassment.” (Defs.' Mot. to Alter
or Amend. J., ECF #44 at Pg. ID 1319; emphasis original.)
Houseworth appears to suggest that the word
“harassment” in the title indicates that the
Executive Order prohibits garden-variety harassment and
ordinary bad behavior that is not a matter of public concern.
Houseworth then concludes that since the Executive Order
applies to subjects that are not a matter of public concern,
Russell's “mere reference” to that order in
the Austin Letter did not transform the complaints in that
letter into matters of public concern.
plain language of Executive Order 2010-2 belies the
implication by Houseworth that the order broadly addresses
ordinary bad behavior and harassment that is not a matter of
public concern. The Executive Order focuses on discrimination
and harassment based on certain protected classes or
statuses, and this type of discrimination and harassment is a
matter of public concern. See e.g., Perry v.
McGinnis, 209 F.3d 597, 608 (6th Cir. 2000) (holding
that racial discrimination is “inherently a matter of
public concern”); Bonnell v. Lorenzo, 241 F.3d
800, 812 (6th Cir. 2001) (“[I]t is well-settled that
allegations of sexual harassment, like allegations of racial
harassment, are matters of public concern.”). The
Executive Order first explains that it “clarifies and
updates” two sections of the Detroit City Code, and
these sections both address unlawful discrimination and
harassment against members of protected classes and/or based
upon protected statuses. (Exec. Order 2010-2, ECF #31-4 at Pg.
ID 1041.) The Executive Order then provides that every
employee, manager, and supervisor is responsible “for
ensuring that subordinates or co-employees are afforded a
work environment that is free from improper or unwelcome
discrimination on the basis of race, color, religious
beliefs, national origin, age, marital status, disability,
sex, sexual orientation, or gender identification or
expression and from harassment on the basis of sex.”
(Id.) The Executive Order finally directs employees
who believe they have been subjected to discrimination on the
basis of these protected classes or to harassment on the
basis of sex to file a complaint with the Human Rights
Department. (See id.) Simply put, the Executive
Order is directed toward unlawful discrimination and
harassment, and thus Russell did address a matter of public
concern in the Austin Letter when he framed his complaints
with reference to the order.
additional review of the Austin Letter, the Court finds two
additional bases for concluding that Russell addressed a
matter of public concern in that letter. First, Russell
referred to internal disharmony among certain employees at
the DFD that could inhibit the DFD's ability to timely
and effectively respond to public emergencies; he did not
limit his complaints to mistreatment directed toward himself
alone. Specifically, Russell raised a concern that DFD
firefighter Sean Flanagan had engaged in serial bullying
against a number of DFD drivers and that that bullying was
part of a larger “misguided culture of the DFD [that]
relegates driver ranks as less honorable.”
(Id.) Serial bullying and devaluing of DFD drivers
could interfere with the DFD's ability to appropriately
carry out its mission, and the public would have an interest
in this potential threat to public safety.
Russell addressed misconduct by Flanagan that posed an
immediate and direct risk to public safety, and the public
would have an interest in that misconduct as well. More
specifically, Russell explained that while he was driving a
DFD fire engine to a fire, Flanagan (who was seated in the
cab behind Russell) went into a tirade and climbed over the
seat toward Russell. (See Id. at Pg. ID 1036-37.)
Flanagan's conduct interfered with Russell's ability
to drive the fire engine safely and arrive to the scene of
the emergency as quickly as possible. The public has an
interest in conduct by public employees that puts the driving
public at risk and hinders the ability of the DFD to respond
quickly to fire scenes.
of the reasons explained in the Opinion and Order and above,
the Court adheres to its conclusion that Russell addressed a