United States District Court, E.D. Michigan, Southern Division
Mag.
Judge Patricia T. Morris
OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT [35]
JUDITH
E. LEVY, UNITED STATES DISTRICT JUDGE
Plaintiff
Garret DeWyse brings a First Amendment retaliation claim
against Saginaw County, its Sheriff, and a Deputy Sheriff
under 42 U.S.C. § 1983. Plaintiff also brings a Michigan
Whistleblowers' Protection Act claim against Saginaw
County under MCL § 15.362. Plaintiff alleges that he was
retaliated against when he uncovered and reported official
corruption. According to the complaint, Plaintiff was demoted
when he reported that certain individuals within the
Sheriff's Department were misappropriating funds seized
in the course of official operations.
Defendants
filed a motion for summary judgment on all counts. Both
parties agree that the statute of limitations has run on the
Whistleblowers' Protection Act claim. Defendants contend
that the First Amendment claim fails because, among other
reasons, Plaintiff cannot establish that he was speaking as a
private citizen instead of a public employee. For reasons set
forth below, the issue of whether Plaintiff was speaking as a
private citizen is dispositive. As such, the following
background facts will focus on that part of the record.
I.
Background
Plaintiff
was a Saginaw County Sheriff's Deputy, appointed in 2006.
Starting in 2011, he was assigned to work in the property and
evidence room. In that role, Plaintiff had the task of
logging everything that went in and out of the room. Although
the parties' specific accounts vary, the underlying
incident Plaintiff reported happened in spring of 2014.
The
Incident
On
February 27, 2014, Detective John Butcher deposited $22, 583
and two handguns into the evidence room. (ECF No. 43,
PageID.714.) The money and guns were taken from Pierre
Najjar, who was under investigation for selling narcotics.
Apparently, Mr. Najjar agreed to give Detective Butcher $22,
583 in cash instead of proceeding to civil forfeiture of his
vehicle. Plaintiff inventoried this property and alleges
Detective Butcher misrepresented the money as evidence, and
so Plaintiff did not realize it was civil forfeiture money.
(ECF No. 43, PageID.725.)
On
March 19, 2014, Detective Butcher requested that Plaintiff
“provide him with $2, 000 in cash out of the sealed
evidence bag.” (ECF No. 43-3, PageID.744.) Plaintiff
refused the request because he found it improper.
(Id.) Detective Butcher then went to their superior,
Lieutenant Pfau, who intervened and told Plaintiff to provide
Detective Butcher with the requested money. (Id.)
Plaintiff alleges that despite his objections, money was
continually removed from the evidence room between 2014 and
2015 until the entire $22, 583 had been depleted.
(Id. at PageID.745.)
The
Reporting
In
January 2016, Plaintiff was asked to compile information for
an annual report to the State of Michigan concerning civil
forfeiture activities during the 2015 calendar year. (ECF No.
43, PageID.718; ECF No. 35, PageID.235.) The report was
typically prepared by an Undersheriff, but the Sheriff asked
Plaintiff to prepare the report because the Undersheriff was
out sick that day. (ECF No. 43, PageID.725; ECF No. 35,
PageID.235.) Plaintiff had never been asked to prepare the
report before. To complete the report, the Sheriff asked
Plaintiff to “get financial information . . . needed
for the forfeiture reporting that goes to the state.”
(ECF No. 35-8, PageID.403.) Plaintiff remembers he needed to
inventory the cash and report “how much money was
brought in over the past year.” (Id.)
It was
in process of preparing this report that Plaintiff says he
first realized “the $22, 583 was off the books and
would neither be accounted for in the County's budget nor
the annual report to the State of Michigan.” (ECF
No.43-3, PageID.745.) Plaintiff did his own research and
alleges he learned that the Department's handling of
civil forfeiture money was illegal. (ECF No. 43, PageID.718.)
He says he also realized that the “scope of the
illegality” went up the chain of command and so he
reported this “to the County Finance Director in
January 2016.” (Id. at PageID726.)
Plaintiff's meeting with the Saginaw County Finance
Director took place on January 22, 2016. It is in this
meeting that Plaintiff contends he exercised his First
Amendment rights as a private citizen “when he
communicated about the misappropriated and illegally used
funds” to the Finance Director. (ECF No. 1, PageID.7.)
Defendants maintain that this entire interaction was
performed within the scope of Plaintiff's employment.
Nowhere
in the record does Plaintiff allege that he affirmatively
told the Finance Director that there was illegal activity in
the Sheriff's Department. Rather, Plaintiff implies that
by submitting financial documents and telling the Finance
Department that the $22, 583 in cash was gone, these actions
constituted reporting fraud. At the meeting, Plaintiff
testifies he told the Finance Director that the “money
that was in that fund had been completely exhausted.”
(ECF No. 35-4, PageID.376.) He also testifies that he emailed
the Finance Director a “spreadsheet with the
information I was told to give her.” (Id.)
From the record, this “spreadsheet” appears to be
a printed email with additional handwritten entries detailing
when Detective Butcher withdrew cash from the property room.
(ECF No. 35-5, PageID.383.) Plaintiff recalled that once he
told the Finance Director that the money had been
“exhausted” that she replied with “oh,
my” and “she looked completely alarmed.”
(ECF No. 35-4, PageID.376-377.)
Regardless
of the Finance Director's reaction, Defendants assert
that part of Plaintiff's job in compiling the 2015
year-end report was to “meet with and obtain
information from the Finance Director.” (ECF No. 35,
PageID.242.) In his deposition, Plaintiff also agreed that he
was asked by the Sheriff to “get some
information” to the County Finance Director regarding
the year-end report:
Q. Okay. So you, in addition to what you typically did on an
annual basis, also gave this information to [the Finance
Department] ...