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Kardasz v. Spranger

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

May 6, 2019

PAUL KARDASZ, et al Plaintiffs,
v.
KAREN SPRANGER, et al Defendants,

          OPINION & ORDER (1) DENYING DEFENDANT MACOMB COUNTY'S MOTION FOR SUMMARY JUDGMENT (Dkt. 44) AND (2) DENYING DEFENDANT KAREN SPRANGER'S MOTION FOR SUMMARY JUDGMENT (Dkt. 47)

          Mark A. Goldsmith United States District Judge

         This matter is before the Court on Defendant Macomb County's (“Macomb”) and Defendant Karen Spranger's respective motions for summary judgment (Dkts. 44, 47). The issues have been fully briefed.[1] Because oral argument will not aid the decisional process, the motion will be decided based on the parties' briefing. See E.D. Mich. LR 7.1(f)(2); Fed.R.Civ.P. 78(b). For the reasons that follow, Defendants' respective motions are denied.

         I. BACKGROUND

         Plaintiff Paul Kardasz was the Chief Deputy Clerk of Macomb County from January 3, 2017 to March 10, 2017; Plaintiff Erin Stahl was the Chief Deputy Register of Deeds of Macomb County from January 3, 2017 to March 10, 2017. They were both appointed, and then fired, by Defendant Karen Spranger, who at the time was Clerk of Defendant Macomb County. The Chief Deputy Clerk is the highest appointed position in the Clerk's office, and is responsible for supervising the five departments of the Clerk's office; hiring, firing, and disciplining within the Clerk's office; and serving as the county's election official and liaison to several county leaders. See Def. Macomb Statement of Facts (“Macomb SOF”), ¶¶ 5-6 (Dkt. 44). The Chief Deputy Register of Deeds is responsible for supervising the Register of Deeds' office; hiring, firing, and disciplining within the Register of Deeds' office; developing and administering policy; and controlling expenditures for the Register of Deeds. Id. ¶ 7.

         The two months that Kardasz and Stahl worked under Spranger were contentious. Kardasz and Stahl opposed some of Spranger's internal decisions, including: replacing supervisory positions with appointees, appointing Jackie Ryan and Joseph Hunt as unpaid deputies, the decision not to fill vacant union positions, Ryan and Hunt attending meetings, and Spranger's use of Kardasz's computer after Spranger's IT privileges were revoked. Macomb SOF ¶ 9. By late January 2017, Stahl felt that she and Kardasz were soon to be replaced. See 1/25/2017 Facebook message, Ex. G to Macomb Mot., at PageID.837 (“I know that today [Spranger] was running around . . . and will be replacing [Kardasz] and myself with others.”) (Dkt. 44-8).

         According to Kardasz's uncontested testimony, on March 10, 2017, Kardasz confronted Spranger with a written ethics complaint and discussed with Spranger the concerns he had outlined. See Kardasz Dep., Ex. 5 to Pl. Resp. to Macomb Mot., at 142-144 (Dkt. 56-6). Kardasz submitted the complaint to the Macomb County Ethics Board that day, as Spranger stood by. Id. at 339. Spranger then told Kardasz that she would have to replace him over this. Id. at 151. Kardasz acknowledged that such a threat was not out of the ordinary. Id. Nonetheless, Spranger terminated Kardasz the following day - March 11 - with a termination letter dated March 10, handing him his termination letter and saying that “she was upset about yesterday.” Id. at 351.

         Stahl testified that she was contemplating drafting an ethics complaint at the same time. See Stahl Dep., Ex. C to Macomb Mot., at 397 (Dkt. 44-4). According to her testimony, she told Spranger on February 20 that she and Kardasz were “going to have to make a complaint if she doesn't change anything.” Id. The next day, Spranger called Stahl into her office and told her that she would fire her for being insubordinate if she did not make an attitude adjustment. Id. As with Kardasz, Spranger drafted a termination letter on March 10, see Stahl Termination Letter, Ex. 23 to Pl. Resp. to Macomb Mot. (Dkt. 56-24), though Stahl did not receive the termination letter until March 13, see Stahl Dep. at 329. Stahl submitted her ethics complaint to the Ethics Board during the weekend of March 11-12, and alerted Spranger to that fact on March 12. See id. at 326-327.

         Kardasz and Spranger brought this suit against Defendants, alleging a violation of 42 U.S.C. § 1983 for First Amendment retaliation and a violation of the Michigan Whistleblowers' Protection Act, Mich. Comp. Laws 15.361, et seq. Following the close of discovery, each Defendant brought a motion for summary judgment.

         II. STANDARD OF REVIEW

         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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[F]acts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine' dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380 (2007). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         III. ANALYSIS

         A. First Amendment Claim

         “To prove a claim under 42 U.S.C. § 1983, a plaintiff must establish: (1) that he was deprived of a right secured by the Constitution or laws of the United States, and (2) that he was subjected to or caused to be subjected to this deprivation by a person acting under color of state law.” Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir. 1994) (footnote omitted). Plaintiffs claim that the retaliation engaged in by Defendants violated the First Amendment. Such a claim has three elements: “(1) the plaintiff engaged in protected conduct; (2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) there is a causal connection between elements one and two-that is, the adverse action was motivated at least in part by the plaintiff's protected conduct.” Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999).

         1. Macomb's Motion

         Macomb makes three arguments, the first two of which relate to the first element of retaliation - whether the conduct was protected. Macomb argues: (i) Plaintiffs cannot maintain a First Amendment claim because they held confidential/policy-making positions, (ii) Plaintiffs' ethics complaints are not speech protected by the First Amendment, and (iii) there is no basis for municipal liability against Macomb County.

         a. Confidential/Policy-Making Position

          Macomb first argues that Plaintiffs cannot survive summary judgment because their dismissals were nothing more than patronage dismissals. Plaintiffs contend that the caselaw surrounding patronage dismissals is completely irrelevant to the claims at issue, as they were terminated in retaliation for their ethics complaints, not because of their political affiliation.

         Patronage dismissals, or dismissals due to failure to (i) support an elected official or (ii) abide by legislatively-enacted requirements based on religion or affiliation, are generally unconstitutional, as they violate a public employee's First Amendment right to political belief and expression. See Elrod v. Burns, 427 U.S. 347, 356-358 (1976). However, patronage dismissals are allowed where the circumstances call for a certain political affiliation as a legitimate requirement for employment. Id. at 366-368. The Sixth Circuit has explained that four categories of positions are subject to this exception:

Category One: positions specifically named in relevant federal, state, county, or municipal law to which discretionary authority with respect to the enforcement of that law or the carrying out of some other policy of political concern is granted;
Category Two: positions to which a significant portion of the total discretionary authority available to category one position-holders has been delegated; or positions not named in law, possessing by virtue of the jurisdiction's pattern or practice the same quantum or type of discretionary authority commonly held by category one positions in other jurisdictions;
Category Three: confidential advisors who spend a significant portion of their time on the job advising category one or category two position-holders on how to exercise their statutory or delegated policymaking authority, or other confidential employees who control the lines of communications to category one positions, category two positions or confidential advisors;
Category Four: positions that are part of a group of positions filled by balancing out political party representation, or that are filled by balancing out selections made by different governmental agents or bodies.

McCloud v. Testa, 97 F.3d 1536, 1557 (6th Cir. 1996). Macomb contends that the Deputy Clerk and Deputy Register of Deeds positions are Category Two and Three positions.

         Macomb's argument is unavailing. The premise of Macomb's argument is that Plaintiffs were fired because of their political affiliations, but such a claim is not borne out in any way by the record. Rather, Plaintiffs' claim is that they were fired for making ethics complaints. Thus, Plaintiffs' political affiliations have no bearing on this case.

         Macomb observes in its reply that the Elrod exception also applies to discharge based on speech if the plaintiff occupies a policymaking or confidential position and their speech addressed matters related to public policy. See Tompos v. City of Taylor, 644 Fed.Appx. 678, 681 (6th Cir. 2016). This argument was raised for the first time in the reply brief, which is sufficient reason to deny Macomb relief based on the argument. See Ross v. Choice Hotels Intern., Inc., 882 F.Supp.2d 951, 958 (S.D. Ohio 2012) (“Choice Hotels is confined to those grounds raised in its motion and initial memorandum in support in its attempt to obtain summary judgment. This Court has explained time and again that a reply brief is not the proper place to raise an issue for the first time.”) (internal quotation marks omitted).

         Regardless, the case relied on by Macomb is readily distinguishable. In Tompos, the City of Taylor's fire chief spoke out to the media and the City Council regarding funding for the fire department. The Sixth Circuit concluded that these statements constituted an “overt act of disloyalty” towards the mayor which would cause “significant disruption in the working relationship between a confidential employee and his superiors.” 644 Fed.Appx. at 683. The Sixth Circuit found that “where a confidential or policymaking public employee is discharged on the basis of speech related to his political or policy views, the Pickering balance favors the government as a matter of law.” Id. at 681 (citing Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 568 (1968)).[2]

         Here, unlike in Tompos, Plaintiffs made ethical complaints regarding Spranger's behavior that Plaintiffs believed constituted a violation of law; such complaints cannot be brushed off as mere political or policy disagreements. The plaintiff in Tompos made public statements related to disagreements he had with the mayor over funding of the fire department; unlike Plaintiffs here, he made no allegation that the mayor was breaking any kind of law. Further, there is no indication in this case that Plaintiffs went public with their complaints. Rather, Plaintiffs submitted their ethics complaints to Macomb County's Ethics Board. These were not disloyal acts in the manner contemplated by the Sixth Circuit in Tompos, in which a subordinate official publicly disagreed with his boss about a matter of public policy. Rather, Plaintiffs here utilized the process laid out by the county to alert the county of potential violations of law by a high-ranking county official. Unlike the cases in which the Pickering balance favors the efficiency interests of the government as an employer, the governmental interests here, where government employees were informing government institutions of potential wrongdoing by a high-ranking government official, weigh in favor of speech.[3]

         Accordingly, the Court does not agree with Macomb that these were patronage dismissals not subject to First Amendment retaliation claims.

         b. First Amendment Protection

          A public employee claiming free-speech retaliation in the employment context must meet three elements to establish a prima facie case: (1) the employee must have engaged in constitutionally-protected activity, (2) the employer's conduct must discourage individuals of “ordinary firmness” from participating in similar conduct, and (3) the employee's exercise in the constitutionally-protected activity must have been “a motivating factor” behind the employer's conduct. See Evans-Marshall v. Bd. of Educ. Of Tipp City Exempted Vill. Sch. Dist., 624 F.3d 332, 337 (6th Cir. 2010). If Plaintiffs prove their prima facie case, the burden shifts to Defendant to demonstrate that the same action would have been taken regardless of Plaintiffs' protected activity.[4] See Ratliff v. Wellington Exempted Vill. Sch. Bd. of Educ., 820 F.2d 792, 795 (6th Cir. 1987).

         Macomb raises three arguments, all of which relate to why the speech is not constitutionally-protected. Macomb argues: (i) the speech does not implicate a matter of public concern; (ii) the speech was made as an employee, rather than as a citizen; ...


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