DeWyse v. Federspiel

          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] ...