United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER (1) DENYING DEFENDANT MACOMB
COUNTY'S MOTION FOR RECONSIDERATION (Dkt. 62) AND (2)
DENYING DEFENDANT KAREN SPRANGER'S
MOTION FOR RECONSIDERATION (Dkt. 63)
A. GOLDSMITH UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant Macomb County's
and Defendant Karen Spranger's motions for
reconsideration (Dkts. 62 & 63) of the Court's May 6,
2019 Opinion denying their respective motions for summary
judgment (Dkt. 60). Because oral argument will not aid the
decisional process, the motions 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, the motions
bringing a motion for reconsideration “must not only
demonstrate a palpable defect by which the Court and the
parties and other persons entitled to be heard on the motion
have been misled but also show that correcting the defect
will result in a different disposition of the case.”
E.D. Mich. L.R. 7.1(h).
Macomb County (“Macomb”) raises three grounds for
reconsideration: (i) the Court failed to apply the correct
First Amendment analysis as it relates to policy making and
confidential positions, (ii) the Court did not recognize a
causal link to establish municipal liability, and (iii) the
Court failed to realize that Macomb was not Plaintiff's
employer and did not discharge Plaintiff. See Macomb
Mot. for Recon. (Dkt. 62).
first argues that the Court failed to apply the correct First
Amendment analysis applicable to appointments to policy
making and confidential positions. See Macomb Mot.
for Recon. at 3-11. Macomb argues that the Sixth Circuit has
previously found that employees in such positions may always
be discharged for insubordinate speech, such as speech
related to contrary political or policy views. See
id. at 4-5 (citing Silberstein v. City of
Dayton, 440 F.3d 306, 319 (6th Cir 2006); Rose v.
Stephens, 291 F.3d 917 (6th Cir. 2002); Latham v.
Office of Atty. Gen. of State of OH, 395 F.3d 261 (6th
Cir. 2005)). Macomb particularly relies on Rose, in
which the Sixth Circuit observed that “it is
insubordination for an employee whose position requires
loyalty to speak on job-related issues in a manner contrary
to the position of his employer[.]” 291 F.3d at 923.
initial matter, as the Court explained in its opinion on
Macomb's summary judgment motion, Macomb did not raise
this argument until its reply brief. This reason alone is
sufficient 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, as the Court already noted, “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.” See 5/6/19 Op. & Order at
6 (Dkt. 60). Additionally, the speech here is not job-related
in the sense contemplated by the Sixth Circuit in
Rose, where the offending speech fell within the
plaintiff's job duties. Here, Plaintiffs reported alleged
violations that they observed while at work, but which did
not specifically involve their job duties. Macomb has pointed
to no cases in which a court determined that government
officials could be fired for filing ethical complaints
regarding alleged violations of law without offending the
First Amendment. Accordingly, this aspect of its motion for
reconsideration is denied.
next argues that the Court failed to recognize the need for a
causal link to establish municipal liability. See
Macomb Mot. for Recon. at 12-16. Macomb argues that the Court
improperly concluded that Spranger's decisions, as the
person responsible for revocation of appointments, can be
imputed to the County, contending that the Court had a
“complete misunderstanding of the relationship between
the County Clerk and the County.” Id. at 15.
However, Macomb also observes that the “County Clerk
has final decision making authority regarding these
appointments” and that that “authority makes her
the decision maker responsible for the employment
decision.” Id. at 16. As the Court noted in
its opinion on the summary judgment motion, municipal
liability attaches where “decisions [are] made by
officials whose decisions are not subject to review.”
5/6/19 Op. & Order at 14. Further, Macomb still has not
provided “support for its contention that the authority
to make municipal policy must be legislatively enacted by the
municipality itself to attach municipal liability under
§ 1983.” Id. Accordingly, this aspect of
Macomb's motion is denied.
Macomb argues that the Court erred in finding that the county
was Plaintiffs' employer and discharged Plaintiffs in
violation of the Whistleblower Protection Act
(“WPA”), Mich. Comp. Laws § 15.362.
See Macomb Mot. for Recon. at 16-19. Macomb contends
that the Court misapplied the economic reality test that it
claims applies to such inquiries, and that Macomb took no
employment action against Plaintiffs. Macomb made these same
arguments in its motion for summary judgment, and the Court
found against it. See 5/6/19 Op. & Order at
18-19, 21. But “[m]otions for reconsideration do not
allow the losing party to repeat arguments previously
considered and rejected.” White v. Mortgage
Electronic Registration Sys., Inc., No. 05-40018, 2006
WL 2130507 at *1 (E.D. Mich. July 28, 2006) (internal
quotation marks omitted). Macomb points to no facts not
previously available to the parties or a clear error a law
that would warrant reconsideration of the Court's prior
decision. See Owner-Operator Indep. Drivers Ass'n,
Inc. v. Arctic Exp., Inc., 288 F.Supp.2d 895, 900 (S.D.
Ohio 2003) (“As a general principle, motions for
reconsideration are granted if the moving party demonstrates:
(1) a clear error of law; (2) newly discovered evidence that
was not previously available to the parties; or (3) an
intervening change in controlling law.”). Thus, this
aspect of Macomb's motion is denied.
these reasons, Macomb's motion for reconsideration (Dkt.
62) is denied.
Karen Spranger raises two grounds: (i) Spranger did not act
under color of state law and (ii) the Court improperly found
a causal link between Stahl's ethics complaint and her
termination, as she was terminated before the filing of the
complaint. See Spranger Mot. for Recon. (Dkt. 63).
previously raised both of these arguments in her motion for
summary judgment, and the Court ruled against her on both
counts. See 5/6/19 Op. & Order at 15-17.
Regarding the color-of-state-law argument, the Court
previously found that “Spranger cites no case that says
a writ of quo warranto invalidates all action that the
official took while in office, and it cannot be the case that
an earlier act of wrongdoing can negate responsibility for
later acts of wrongdoing.” Id. at 15. Spranger
still has not done so. Thus, this aspect of her motion is
denied. Regarding the timing argument, the Court explicitly
noted that the February 20 conversation between Stahl and
Spranger made Spranger aware that the ethics complaint would
be filed. See id. at 16. As made clear by the Court,